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What's up in the 8th

A real live post this time.  No lifelines to civil attorneys who haven't learned the rules, a split in search and seizure decisions, and three dissents in criminal cases, doubling the amount for the entire year.  That, and some reminders to trial judges not to get too cute, are on tap this week down by the lake.

In the latter category, we have two cases.  In State v. Farraj, the trial judge tells Farraj that if he pleads, he'll get ten years in prison.  Farraj wants to think about, does, and cops.  At the sentencing, the judge notes that the sentence is one "that many will consider too lenient,"  so he's going to "put a little protective sentencing in place here today," and gives Farraj an additional 24 years, suspended on the condition that he's deported at the end of his ten-year sentence.  Do you really need the court of appeals to tell you that's a no-no?  The other case, State v. Thomas, is simply one of the judge jumping the gun:  the defendant had agreed to allow the judge to determine the repeat violent offender specifications, and the judge announced his finding on those specs as soon as the jury returned their guilty verdict.  Alas, this was before the prosecutor submitted the certified journal entries showing the prior convictions.  Over a dissent, the court vacates the conviction on those specs, saying at the time the judge made his decision there was insufficient evidence to support it.

Another dissent comes in one of the two search cases, the other of which I'll discuss next week.  In State v. Hoppert, the defendant is a passenger in a vehicle that's legally stopped; the driver is arrested because of outstanding warrants, and helpfully informs the police that there's a heroin spoon in a container in the back seat.  The police handcuff Hoppert, bring out a police dog, and after the dog fails to alert to the driver's vehicle, they have him sniff out Hoppert's car, which is parked nearby.  The dog alerts, and lo and behold, the cops find a heroin spoon in her car, too.

The court reverses the grant of the motion to suppress, holding that the dog sniff isn't a search, which is true; the dog sniffs the outside of the vehicle, and one doesn't have an expectation of privacy in the outside of their car.  The dissent argues there was no reason to detain the passenger until the dog got there.  That's pretty much a tossup:  you could argue, as does the dissent, that simply because a closed container with a heroin spoon was found in the back seat of the driver's car doesn't make the passenger guilty of possession, but you could also argue that it gives the police probable cause as to guilt, which is all they need here.

Yet another dissent comes in State v. Gray, involving spousal competency; Gray's wife had cut a deal in return for her testimony, getting aggravated murder charges reduced to obstruction of justice.  It wasn't until the second day of her testimony that anyone realized there was an issue with regard to her competency to testify, and the judge sought to clean it up by examining her on her discussions about this with her own lawyers.  The appellate court says this is enough, having a hard time believing that any amount of advice would have caused Mrs. Gray to reconsider facing an agg murder prosecution.  The dissent argues that the case law requires the judge to take an "active role" in determining that the witness waived the privilege, and here the judge did nothing more than pass the buck to the witness' lawyers.  If you've got a case on spousal competency, both opinions here are worth a look.

A case that didn't engender any dissents, but should have, is State v. NormanNorman pled out to several offenses, one of which was failure to comply.  Any prison sentence for that offense has to run consecutively to any other sentence imposed, but the judge didn't tell him about that at the plea.  He argued that the judge's failure to do so warranted vacating the plea.

Turns out that the court considered the exact same issue six years ago in State v. Dudenas, and concluded that there was no problem, its conclusion buttressed by nothing more than a quote from a 1988 Supreme Court decision, State v. Johnson, which had held in the syllabus that

Failure to inform a defendant who pleads guilty to more than one offense that the court may order him to serve any sentences imposed consecutively, rather than concurrently, is not a violation of Crim. R. 11(C)(2), and does not render the plea involuntary.

The emphasis on "may" is mine; as the Norman court acknowledges, several other districts have concluded that Johnson is inapplicable to the situation where a consecutive sentence is required.

So, does the Norman court engage in a lengthy analysis to determine who's right?  Nope; after admitting that "Dudenas does not engage in the kind of analysis employed by the appellate districts that reach different results on the issue," the court says nonetheless that Dudenas "is a binding decision from this court and we are duty-bound to follow it as precedent within this appellate district."

Huh?  I'm perfectly willing to agree that, with 12 judges, you don't want to get into a situation of dueling panels overruling each other's decisions.  On the other hand, the 8th District is not a superior court to the 8th District; Dudenas is not binding, because you can overrule it.  And where the earlier opinion contains no analysis whatsoever, and other courts have engaged in the proper analysis to demonstrate its weaknesses, well, then overruled it should be.

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