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What's Up in the 8th

There will come a time when everybody figures out post-release controls.  That time is not today.  That, a tattoo party gone wrong, and Joanne Schneider gets bad news about her sentence are the featured stories this week.

The investors in Joanne Schneider's enterprise, which consisted of buying, rehabilitating, and then renting commercial properties, had a pretty good gig going, sometimes getting interest payments as high as 18% on their money.  Alas, it all unraveled in 2004, when the whole thing was revealed to be a -- who knew? -- Ponzi scheme, with total loss to investors of around $60 million.  But Schneider and her husband found the judge sympathetic; she gave hubby probation and Schneider the minimum sentence of three years.  For those keeping score, Schneider got 1/7th the time that Juanita Myrick got for stealing nearly 70 times as much money.

Except, as the appellate court held last week in State v. Schneider, the minimum sentence was ten years, not three.  Actually, state officials alerted the prosecutor's office to this right after the sentencing.  Schneider pled to a variety of charges, including engaging in corrupt activities and securities fraud, both first-degree felonies.  Seems there's a provision in the corrupt activities statute that makes the ten-year sentence mandatory if one of the charged activities is also a first-degree felony.  No wonder everybody missed it; the court notes that the section is "not the General Assembly's finest work" (what possibly could be?), the entire section consisting of a single sentence of 307 words, 23 commas, and a partridge in a pear tree.  The court remands it for resentencing, but Schneider will of course have the option to withdraw her plea and take her chances at trial.

I filed an appeals brief this past week with some misgivings; the only error was that the trial court told the defendant he'd have five years of mandatory post-release controls, instead of three.  The whole thing was pretty much a waste of time, I acknowledged in the brief, since this was a post-July 1, 2006 sentencing, and under State v. Singleton (discussed here) the net result will be a resentencing at which the only thing which will happen is that the trial judge will impose the correct term of PRC.  I needn't have felt too bad; the trial judges in State v. Lombardo and State v. Smith get to do the same thing, the first because he forgot to tell Lombardo the consequences of violating PRC, and the second for not mentioning it at all.  The advice on PRC in State v. Anderson was even more botched, since it shouldn't have been mentioned at all:  Anderson was pleading to murder, but was incorrectly told she'd be placed on PRC instead of parole.  But advice about PRC (or parole) concerns a non-constitutional right, which requires only substantial compliance; even if the judge fails to "substantially comply," as occurred here, the defendant must still show prejudice, i.e., that she wouldn't have entered the plea if she'd had the correct information.  Anderson didn't show that here, so the plea stands.

Let's say your 17-year-old daughter comes to you with an idea for her 18th birthday party:  you'll rent out two rooms at a local motel.  In the first will be a tattoo artist so party-goers can get a tattoo, and the second room will be for a sleepover for daughter and some of her friends, and will also serve as an overflow area for guests waiting to get tattooed.  You have a nagging suspicion that this might not turn out well, but, like most overindulgent parents nowadays, you hate saying no.

Well, good news:  you can dissuade her by gently directing her to the case of State v. Scales, where a similar birthday bash occurred, only to have Scales and his brother, offended by something or other, put an end to the festivities by pulling out guns and shooting five people.  Their aim was no better than their disposition, fortunately, and so they only wound up with convictions and nine-year sentences for felonious assault. 

Notwithstanding the unwillingness of any of their victims to testify who shot them, the forensic evidence is enough to survive sufficiency and manifest weight challenges.  The more interesting issue is that the tape of the interview with three of the prosecution witnesses was lost, and the defense claimed that because of this their ability to cross-examine the witnesses was hampered.  Perhaps true, said the court, but the test here is whether the evidence was "materially exculpatory" or merely "potentially useful"; if the latter, as was the case here, the defense has to show that the state was guilty of "bad faith" in losing the evidence. 

At any rate, we can only hope that the young lady has a more sedate event planned for her 19th birthday.


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