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The 8th District takes a new look at Foster

Interesting.  Last Wednesday, I wrote a post about a sentencing decision out of the 10th District, in which the court had affirmed a sentence where the defendant's only objection was that the court hadn't made the findings necessary for a more-than-minimum or maximum prison sentence, findings that were required under the old law but were declared unconstiutional in State v. Foster.  I indicated that the 10th District's approach (also used by the 9th) made sense:  there's no error in failing to make findings which are no longer required.  I also pointed out that the 8th District hadn't adopted this approach yet, as evidenced by a decision just three weeks ago, when, faced with the exact arguments the defendant raised in the 10th District case, the 8th District vacated the sentence and remanded for resentencing.

Well, lo and behold, the very next day, the 8th District came out with its decision in State v. Murphy.  Ms. Murphy had run afoul of the law, and her particular derelictions earned her a 5-year stretch in prison.  She filed a delayed appeal, arguing that the judge had erred in giving her more than the minimum term, since she'd never done time before and the judge hadn't made any of the findings the statute required to do that.

Judge Corrigan, writing for a unanimous court (Judges Gallagher and Calbrese joining), began by noting that the appellant "appears benightedly unaware that she is asking this court to enforce a sentencing scheme that has been declared unconstitutional."  That's perhaps an overly harsh assessment; the appellant's brief was filed 19 days before Foster was decided.  That aside, Judge Corrigan correctly noted that there wasn't much point in remanding the case back for the findings required by the statute, given the statute's unconstitutionality; as he stated, "if the court did not make the required findings under the old sentencing regime, it would serve no purpose whatsoever to remand the case back to the court so that it could once again not make the findings."  The court affirmed the sentence, and that was that.

Now, I'd really like to believe that Judge Corrigan read my post last Wednesday, said, "Wow!  This guy's onto something!" and, in the ensuing 24 hours, changed the opinion to reflect what the 9th and 10th Districts were doing.  Then again, I'd really like to believe that the wisest expenditure of my time would be figuring out what I'm going to do with all that money when I win the lottery this week.

Frankly, considering my experience the last time I had Judge Corrigan on the panel for an appeal, I think winning the lottery is more likely.

On the other hand, at least he didn't call me "benighted."

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