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What's up in the 8th - Apocalypse Now

Yep,  Marlon Brando's "the horror... the horror..."  accurately encapsulates the 8th's criminal decisions last week.  Fourteen criminal decisions, and the best defendants can muster is a sentence vacated so that the trial court can tell the defendant that post-release controls are discretionary, not mandatory.  The court was much more forgiving of civil attorneys who ignore the rules of procedure, a subject we'll turn to tomorrow.  In the meantime, a survey of the wreckage...

Like bad Friday the 13th movies, some criminal defendants make repeat appearances before the appellate courts.  Typical is Charles Craddock II, who has prosecuted IV previous appeals from his 1999 conviction.  His Vth attempt focuses on the refusal of the trial court to hold a hearing on his motion to vacate his plea, an argument which founders because it was raised, and rejected, way back in Craddock I.  Similarly situated is the defendant in State v. Smith:  Smith had lost his first appeal, then in Son of State v. Smith appealed the trial court's denial of his motion to vacate his plea.  In 2008, however, the court vacated his sentence and brought him back for a new sentencing hearing because he hadn't been advised of post-release controls.  Smith appeals from that resentencing, and the only argument of note is his contention that the trial court, in re-sentencing him, was duty-bound to consider his behavior during the ten years he'd spent in prison, a contention that is, shall we say, ill-received. 

Two other defendants fare similarly on sentencing issues, in State v. Abdualdabat and State v. HollowayThe defendant in State v. Hartson  claims the court erred in not referring him for a pre-sentence investigation and giving him 10 months for drug possession, and that goes as well as you might expect. 

Even on 4th Amendment issues, this week finds the 8th siding with the State.  In State v. Fowler, the court upholds a frisk of the defendant, against the claim that there wasn't a "reasonable suspicion" that he was armed and dangerous.  The "totality of the circumstances" indicate otherwise, says the court, noting that the reasonable suspicion standard is undemanding:  "the officer need not be absolutely certain that the individual is armed, and neither must he be in fear of imminent harm."  State v. Coleman is a 52-page opus on Franks hearings, and I'll discuss that in detail on Thursday.  Remember, our motto here at The Briefcase:  we read the cases so you don't have to.

The week wouldn't be complete without a couple of headscratchers.  In State v. Roberts, the defendant waived a jury, then complained on appeal that the waiver hadn't been done in open court, as the law requires.  True, there was a signed waiver in the file, and the court's journal entry stated, "Defendant executed a written jury waiver and on the record orally waived defendant's right to a trial by jury."  The portion I've emphasized, though, found no support outside of the entry:  there was no transcript of any recorded hearing where the waiver was made.  No problem, says the court: 

Appellant has the duty to provide the appellate court with a transcript of the relevant trial court proceedings.  When portions of the transcript necessary for resolution of assigned errors are omitted from the record, the reviewing court has nothing to pass upon and thus, as to those assigned errors, the court has no choice but to presume the validity of the lower court's proceedings, and affirm.

Let me see if I understand this.  The defendant claims something wasn't done in open court.  There is no record before the appellate court of the thing being done in open court.  Because the defendant hasn't presented a transcript of it having been done in open court -- because no such transcript exists, because it wasn't done in open court -- the appellate panel will presume that such a transcript does exist, and blame the defendant for not providing it.  That's the sort of logic that would make Lewis Carroll proud.

Last, we come to State v. Manning, in which the defendant seeks to reopen his appeal from his conviction of a child sexual offense, making a chain ineffective assistance of counsel claim:  his trial attorney was ineffective for not objecting to the testimony of the State's expert who testified to the child's veracity, in violation of State v. Boston, and his appellate attorney was ineffective for not raising his trial counsel's ineffectiveness in that regard.  The court brushes this aside in a paragraph, noting that "we have found on numerous occasions [that] Boston does not apply when the child victim actually testifies and is subject to cross-examination."  Here the child testified, so that's the end of that.

It's also completely wrong, as I explained the first time the 8th ruled that way, and again less than a year ago.  Yet the beat goes on:  we now have half a dozen cases from the 8th saying that an expert can testify that a child is telling the truth about sexual abuse so long as the child testifies, too, and nowhere in those half dozen cases is there a shred of reasoning or analysis to support that conclusion.  And you know what?  A year from now, we're going to have an even dozen cases saying that, because not a single judge took the time to do anything other than parrot what some other judge wrote.

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