What's up in the 8th
This week's decisions from the 8th District give lessons on post-release control, 404(B) evidence, and what not to do in plea discussions, and feature a cast of characters -- Apache Hightower, Ebay Fuller, and Taiwan Wiggins -- that would feel at home in an Elmore Leonard novel.
Fourteen years after post-release control was included in the 1996 sentencing reforms, trial judges are still struggling to get it right. Of special concern this week is the plea. In State v. Griffin, the judge failed to inform Griffin of the consequences of violating PRC. In State v. Lang, the judge told Lang that his PRC was three years at the discretion of the Adult Parole Authority, when it was five years mandatory. In State v. Wolford, the judge did correctly advise Wolford about PRC; the problem is that in addition to felonious assault, he'd pled out to aggravated murder and murder, and was going to be placed on parole for those.
So why does Wolford get a do-over and the other two don't? When advising a defendant of his constitutional rights at a plea, "strict compliance" is necessary. But when you're telling him about something non-constitutional, like PRC, only "substantial" reliance is required. What's more, even if the judge hasn't substantially complied -- as was the case in Griffin and Lang -- the defendant still has to show prejudice, i.e., that he wouldn't have entered the plea if he'd been given the correct information. The court notes there's nothing in the record indicating that PRC "was of particular concern or import to Lang," and similarly concludes in Griffin's case that "a review of the record. . . shows that defendant did not make a showing of prejudice."
Bu there are substantial differences between the two. Lang who was facing 30 years in prison (he got 15), and it's doubtful that knowing he'd be on post-release controls for an additional two years played into his decision whether to plead. Griffin, though, was looking at substantial time: he got 21 years, which means he could have gone back to prison for up to an additional ten for a PRC violation. That's information you'd want to know. In fact, it served as the basis for the reversal in Wolford: the court had told told him he could do up to one-half his original sentence if he violated. That was correct as far as PRC is concerned, but Wolford also would be on parole after he got done serving the time on his aggravated murder and murder convictions, and if he violated the terms of those -- which, of course, are the same terms as PRC -- he could go back to prison for the rest of his life. Considering that Wolford had backed out of an earlier plea deal because of his uncertainty regarding the effect of a violation of PRC, the appellate court decides that there's enough here to conclude that Wolford has shown prejudice by the court's faulty instruction.
A sidenote: Griffin also gets a reversal, not on the PRC, but because the trial judge thought the two 3rd degree felony robberies he pled to were 2nd degree felonies. Griffin got five years on each of those, run consecutively, and although a defendant can get five years on a third degree felony -- it's the maximum sentence -- the appellate court wasn't going to presume that the trial judge intended to max Griffin out on those charges, and sends it back.
Admission of evidence of "other acts" under EvidR 404(B) has always given the courts fits. A couple of months ago I highlighted a questionable Supreme Court decision on that rule, while just two weeks ago I complimented the 8th on its handling of the subject. The pendulum swings back in State v. Samilton. Samilton was charged with intimidating his parole officer; when she met with him and informed him of a post-release violation and his hearing date, Samilton cursed at her and told her, "Do you know who I am? I can call out anything." The parole officer was permitted to testify that she knew Samilton was a gang member because she'd reviewed his record, and thus took his threats seriously.
The court could have held that, because Samilton's trial attorney had failed to object, any violation of the evidentiary rule didn't rise to the level requiring reversal under plain error. Instead, it held the evidence admissible. According to the court,
the State made no attempt to use the gang evidence as proof of Samilton's character. Rather, the evidence was offered to demonstrate that, as a gang member, Samilton had the opportunity to carry out his threats, despite being in jail.
That may be true, but it completely misses the point. Samilton wasn't charged with carrying out his threats, but with making them; whether he could carry them out is not an element of the crime, and is completely irrelevant. As is whether the parole officer believed he could carry them out; again, the State is not required to prove her subjective belief as to whether Samilton had the intent, much less the ability, to make good on his threats. Rule 404(B) requires that, even where the other acts evidence is theoretically admissible, the trial judge has to find that its probative value exceeds its prejudicial effect in order to allow it. Here, the evidence was unquestionably prejudicial, and served no purpose.
Finally, comic relief is provided by State v. Curry, in which the defendant and her friends were part of a local gang called the "Baby Mamas." The innocuous-sounding name masked more vicious propensities: according to the State, Curry and her confederates had assaulted another woman, breaking her nose. Curry's defense was that the victim had made the whole story up to get even with the gang, one of whose members, Apache Hightower, was in a "relationship" with the father of one of the victim's children. Curry's street cred is enhanced with a conviction, albeit as a misdemeanant: the judge, in a bench trial on the felonious assault charge, found her guilty of the lesser offense of assault, presumably after he stopped giggling.