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What's up in the 8th

happystpatricksdaycatA St. Paddy's day hangover, apparently.  Not surprising, given the plethora of Irish judges on the court, but this results in only nine decisions, less than half the normal workload.  Four are in criminal cases, and every one involves the validity of a plea, with defendants batting .500.

While there are innumerable ways to screw up a trial, the avenues by which a plea can go south are much more limited.  One way to do it is to tell a defendant that he'll be eligible for judicial release in 3½ years, then give him an 11-year sentence, which means he can't apply for judicial release at all.  (It's not available for anyone sentenced to more than ten years.)  In State v. Ealom, the court says that requires a do-over.  The same result obtains in State v. McGrath, where the defendant had been declared incompetent, a review of the lower court docket and the allegations in his pro se appeal providing ample basis for such a finding.  The trial judge took a plea in the case, though, without making a finding that McGrath had been restored to competency, and the court holds you can't do that:  once a defendant has been adjudged incompetent, a plea or trial can't be had without a subsequent hearing and specific determination that he's been restored to competency.

Defendants don't fare so well in State v. Malone and State v. BlanchardMalone complained that the judge hadn't told him that he faced mandatory time, a claim belied by his counsel's statement to the exact contrary at the plea.  Blanchard pled out to over a dozen child pornography counts, and the court rejects his contention that the plea is invalid because the trial court didn't advise him that he would be automatically classified as a sex offender under the Adam Walsh Act.  That Blanchard will have to register as a sex offender when he gets out of prison seems the least of his problems; he was 48 at the time of sentencing, and was given 50 years imprisonment.  You do the math.

A mixed bag in the civil arena, too.  Peter Shenyey was hurt in an accident with an uninsured motorist, submitted his $14,000 in medical expenses to State Farm under the med-pay provision of the policy, then submitted the same expenses and demanded payment of $14,000 under the UM coverage.  The policy had a specific provision saying that State Farm wouldn't pay under UM anything it had paid under the med-pay clause, and in Shenyey v. Glasgow, the court notes that the law was changed to permit this back in 2001. 

In Feng v. Kelley & Ferraro, the court upholds an $800,000+ malpractice verdict arising out of a divorce case.  On the 2nd day of the divorce trial, F&K was presented with a loan application signed by their client, which allegedly overvalued certain assets.  Feng alleged that K&F pressured her into accepting an unfavorable settlement by telling her that opposing counsel would "walk across the street" to get her indicted on the loan application, and "represented that opposing counsel in her divorce action possessed just the type of unsavory character to do so."   (I checked the docket; whatever other deficiences existed in K&F's representation, assessment of character was not one of them.)  The court was shocked -- shocked! -- that K&F would tell her such a thing:

 No one from K&F told Feng that such threats are illegal and unethical - that is, that no attorney may use the threat of criminal prosecution to effect a result in a civil case.

Imagine that.

The moral of Penix v. Avon Laundry is that if you've got a trial judge who sticks to deadlines in a civil case, don't expect the appellate court to bail you out if you don't meet them.  Instead of responding to the defendant's motion for summary judgment, Penix filed motions seeking an extension to file a response, under Rule 56(F).  The judge didn't buy it, and neither does the 8th, especially since Penix had been less than diligent in discovery.  (For example, although she re-filed her complaint in April -- she'd dismissed the first time -- she didn't file any discovery until December 1, two months after the case management conference, and only a month before the discovery cutoff deadline.)

What's interesting about Penix, though, is the contrast with the decision a few weeks back in Davis v. Tops MarketsIn Penix, the plaintiff has until March 14, 2008, to file a response to summary judgment, instead files a bunch of motions seeking an extension under 56(F) and to impose discovery sanctions; the judge denies them, grants summary judgment, and the court affirms.  In Davis, the plaintiffs had until February 11, 2008, to respond to the motion for summary judgment, they filed nothing, and the court granted summary judgment nine days later.  A week later, plaintiffs file a motion to vacate the summary judgment, claiming that they needed more time to arrange depositions, and the court of appeals reverses the denial of the motion.

Well, maybe the moral of the story is that if you've got a trial judge who sticks to deadlines in a civil case, don't expect the appellate court to bail you out if you don't meet them, unless it decides to.

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