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What's Up in the 8th

I've often wondered if members of the criminal bar shouldn't call themselves "plea lawyers" or "sentencing lawyers" instead of "trial lawyers."  The fact is we do ten pleas for every trial, and for that reason, the sentencing is the most significant event in a criminal case.  And yet lawyers who will prepare for trial by poring over police reports and witness statements, making outlines of cross-examinations of key witnesses, spending hours deciding on a theory of the case and figuring out how to develop that from voir dire through closing argument, will walk into a plea or sentencing hearing with only some vague idea of pitching the judge on their client's "poor judgment" and hoping for the best.  And sometimes, we don't even read the law before we go in there.

That, apparently, is what happened to Roselio Gonzalez.

Gonzalez was charged with two counts of gross sexual imposition involving children and two counts of kidnapping, each with a sexual predator specification.  He pled out to the GSI counts, and in return the State dropped the kidnapping and SVP.  At the plea hearing, he was told by everybody -- the judge, the prosecutor, his own lawyer -- that this would result in his being classified as a Tier III sex offender.  That would've been true if the SVP spec remained, but dropping that resulted in a Tier II classification.  The error persists through sentencing, where the judge imposes maximum consecutive sentences and a Tier III registration requirement.  In State v. Gonzalez, the panel reverses the classification, noting that "the transcript of the plea hearing clearly reflects that Gonzales's acquiescence to the classification was due to a mistake, rather than due to the plea agreement itself."  That observation is probably unnecessary; Gonzalez's knowing acquiescence to a greater classification than the law permitted would be no more valid than his agreement to a 12-year sentence for a second degree felony.  Getting back to that sentence, though, that sticks.  The 8th's jurisprudence on disproportionate sentencing has gone through numerous iterations, and this one is that the appellate court won't consider it unless the issue, and at least some evidence establishing it, was presented in the trial court.

Lesson for Lawyers No. 2:  Before you go into a hearing, figure out what you have to prove.  In Lakewood v. Shelton, the City of Lakewood, which is featured prominently in the 8th's frequent beatdowns of local municipalities, gets whacked again, this time on a search issue in a drunk driving case.  A police fficer stopped Shelton because his license plate was obscured by snow, but either snow falls off or officer knocks it off -- darned if he can remember which -- before he gets to talk to Shelton.  That's when reasonable suspicion disappears, and the officer should have turned around and left; there's no longer any reason for the detention.  Well, maybe not just turned around and left; there are cases which hold that the officer can at least advise the driver why he was stopped.  And if in the process of that, the officer observes that the driver might be intoxicated, well, that does give a basis for continuing the detention.  In fact, that might very well have been what happened here, but we'll never know:  for reasons known only to him and his god, the prosecutor decided not to have the cop testify about anything that happened after the cop approached the driver.  D'oh!

Lesson for Clients:  You know that sign in the jail that says all calls will be monitored?  That's not there just for grins and giggles.  They mean it, as the defendant in State v. Grimes found out.  His car was impounded after his arrest for drugs, and four days later when his girlfriend refused to loan him hers, he took it from her at gunpoint.  That led to more charges, and a few months later, in an effort to dissuade her from testifying in the robbery case, he called her from jail and threatened her.  Tack on an intimidation charge, and the court upholds the trial judge's decision to join all three cases for trial:  they're all inextricably interrelated, and so joinder is appropriate.

In State v. Smith, Smith and a woman named Pope worked together, then began an intimate relationship.  Things turned ugly when Pope tried to break it off, with Smith beating her at work and violating protective orders.  Smith was convicted of numerous offenses, including felonious assault, and given a four-year prison term, but much of the court's attention is focused on the misdemeanor conviction for domestic violence, especially the element of causing harm "to a family or household member."  The court concludes that Pope was "living as a spouse," based on the fact that Smith had keys to her apartment, came and went as he pleased, kept personal items there, and assisted her in paying her bills when she needed it.  The court's conclusion that Smith had so insinuated himself into Pope's life that their arrangement constitued cohabitation is perhaps supportable, but made somewhat unsettling by the fact that Smith was married to someone else during this entire time.

A civil case on gender discrimination, in Lascu v. Apex Paper Box Co.  We learn a lot about the law here, the McDonnell Douglas test for determining whether plaintiff has made a prima facie case of discrimination, and how that's modified when we're talking about a reduction in force, as opposed to a failure to hire or promote, or a termination.  We learn a good bit about Sharon Lascu, too, how she began her employment with Apex back in 1979, then worked her way up the assembly line, on the gluer machine, then the Meihle machine, the windmill press, and eventually the liner and coater machines, being trained as both a feeder and operator.  (And no, I have no idea of what any of that means, either.)  We learn about the travails of Apex -- its sales fell almost 10% in 2008, and plunged 43% the following year, forcing it to lay off 40 employees, including Lascu.  The court finds nothing to show that Lascu was the victim of discrimination in this regard, and affirms summary judgment.

Sometimes we lawyers when reading cases tend to view the people involved as nothing more than pieces on a legal chessboard, moving from this space to that space as one legal doctrine or another is invoked.  It's easy to do that here, but as I read the opinion, all I could think of was that Sharon Lascu had spent 30 years of her life working for Apex, and by all accounts doing a good job of it, only to be let go into the worst economy I've seen in my lifetime.  There's nothing the law could do about that, and perhaps nothing the law should do about that, but that makes it no less a tragedy.

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