What's up in the 8th
The court decided to make trial judges' jobs easier this week, telling them what they need to do in order to impose restitution, charge a jury on a lesser offense, or decide whether to accept a plea. Plus, a big reversal on speedy trial, which we'll talk about tomorrow, and a reversal on a child sex case, which we'll discuss on Thursday.
State v. Mathis and State v. Martin, both murder prosecutions, present the question of charging on lesser offenses. Mathis argued that the judge should have instructed the jury on the lesser-included offense of negligent homicide and involuntary manslaughter, an argument rendered problematic by the fact that the evidence showed Mathis had pointed the gun at the victim from about a foot away, called him a "bitch," and shot him in the eye. Martin felt similarly compelled to accompany his acts with a profanity, yelling "that's what you do for a motha fucker" as he fired shots into the victim's car. (Well, we're not sure exactly what he called him; the court's opinion modestly uses the phrase "motha f***." Note to self: a post on how appellate courts handle profanities and obscenities in opinions might be of interest, at least on a slow day.) Martin's claim to entitlement to a charge on involuntary manslaughter met the same fate as Mathis'. The court noted, correctly, that the test is not whether there is any evidence supporting the lesser charge, but whether the evidence is such that a jury could reasonably acquit the defendant on the greater charge and convict him of the lesser.
State v. Abraham presents the not unusual question of what to do with a defendant who's entering a guilty plea while denying that he's guilty. Abraham's denial was only partial, but quite vocal -- he pled to four aggravated robberies, while adamantly insisting that he hadn't done one of them.
Oddly enough, the court sidesteps this question, although that might have been because of how the issue was framed for the appeal, which was whether Abraham understood the charges against him. The defense relied heavily on State v. Blair, a 1998 2nd District case which holds that a judge at a plea hearing has a duty to explain the elements of each of the offenses to the defendant, i.e., "what the State would have to prove to convict him."
The Abraham opinion distinguishes Blair, saying that "the record demonstrates that Abraham had acquired an understanding of the nature of the charges against him." It could have gone farther: Blair is simply bad law, with most courts distinguishing or rejecteding it. (Even the 2nd District backed away from it just a couple years later.) If you show up for a plea, there's a pretty good chance that at some point you've discussed with your attorney what the State needs to prove to convict you, and barring some expression of doubt on that score during the plea, there seems little need for an extensive explanation of the elements.
Besides, Abraham's problem wasn't that he didn't understand what he was being accused of, he just denied it in one particular. That problem isn't addressed by the opinion; although it states that "a defendant who has entered a guilty plea without asserting actual innocence is presumed to understand that he has completely admitted his guilt," there's no attempt to reconcile that language with the fact that that's precisely what Abraham did.
In State v. Miller, the defendant was a bouncer, and his overly aggressive pursuit of that vocation led him to be charged with two counts of felonious assault. He agreed to plead guilty to a lesser charge of aggravated assault, and at the plea hearing, the judge informed Miller that the victim was requesting restitution of $20,410. Miller's attorney stated his client was "concerned" about the amount, but after further discussions, Miller went ahead with the plea. Two weeks later, he showed up for sentencing; he was placed on community control, with no mention made of restitution. After the state subsequently filed a motion for restitution, the trial court determined that it had erred in failing to include restitution, and amended the order to include the full amount of $20,410.
The appellate panel winds up with three opinions, all on the question of whether the omission in the original order was a "clerical mistake" which was correctable under Criminal Rule 36, with two judges deciding that it is and the dissent concluding to the contrary. Oddly, none of the three mention the restitution statute, specifically the portion which provides that "the court shall hold a hearing on restitution if the offender, victim, or survivor disputes the amount." That's pretty much what happened here; Miller voiced his discomfort with the amount, and the judge asked finally asked him at the plea hearing "how do you plead to aggravated assault [with] a potential order of restitution in the amount of $20,409.35?" Although the State subsequently moved for a hearing on restitution, none was actually conducted; the trial judge simply reviewed the record and determined that the failure to order restitution was an oversight.
One gets the impression that the majority was simply indulging the trial court's cleanup of its mess. It's fairly clear that Miller was promised probation in return for paying the victim's medical bills, and allowing him to retain his part of the bargain without having to pay restitution certainly would have been unfair. Still, the result doesn't do a lot to clarify exactly when a court can use Rule 36 to clean up a judgment entry, and the method by which the amount of restitution was determined and imposed leaves something to be desired.