What's Up in the 8th
I've written before about the steep odds against an appellate court reversing a lower court's denial of a motion to vacate a guilty plea; there are few words more hollow in law than that such motions, pre-sentence, should be "liberally and freely granted." That doesn't keep defendants from trying, and this week they pursue a variety of novel arguments.
The hands-down winner in that category is provided in State v. Jefferson. Jefferson had pled guilty to breaking and entering, theft, and vandalism, only to be charged a month later with breaking and entering, theft, and vandalism. If you noticed a pattern here, so did the State; at his trial on the second set of charges, they introduced his conviction of the first as 404(B) evidence. Jefferson argues that this isn't fair: when he pled guilty, the judge hadn't advised him that the State could do this. There are a great many collateral consequences which can flow from a conviction. A second domestic violence, telephone harassment, or OVI conviction subjects you to harsher penalties. A drug conviction can result in loss of financial aid for college. Employers may be more reluctant to hire you. The courts have uniformly held that a judge has no obligation to advise you of any of this, and to that list is added the intricacies of the law involving use of 404(B) evidence. Good news for Jefferson, though; his appeal of the second case remains pending, and the 8th has shown much more willingness to closely scrutinize the use of that evidence than it has attempts to vacate pleas.
One consequence a trial judge does have a duty to warn a defendant about is its effect on his immigration status if he's not a citizen. The 8th has been very receptive to motions to vacate pleas on that basis, but that seems to be coming to an end. Last week, in State v. Velazquez, the 8th rejected a motion to vacate a plea where the defendant claimed his attorney failed to advise him of those consequences, finding that the trial court's reading of the statutory advisement under 2943.031 cured any problems. Similarly, it rejects the defendant's attempt to vacate his 1999 plea in State v. Tejada. The court finds that, under the Supreme Court's decision in State v. Francis, a court need only "substantially" comply with the statute. It's not entirely clear that that's the holding of Francis, mainly because it's not clear what the holding of Francis actually is. In any event, in Tejada the court properly rejects the timeliness argument the State raises -- the timeliness is measured from when the defendant finds about about the deportation consequences, not when the plea is made -- but correctly concludes that Tejada can't show any prejudice: it was his subsequent 2007 drug conviction that landed him in trouble with the INS people.
The futility of attempts to vacate a plea is perhaps best highlighted by the one of the pro se defendant's assignments of error in State v. Rembert:
If a defendant pleads guilty only because of what counsel tells him he has been assured is going to happen and after the guilty plea, it doesn't happen. Can this court find that the plea was voluntarily made or was it made under false pretense/beliefs or influenced under misguided advice through counsel?
The court never gets around to answering Rembert's question, because he didn't file a transcript of the plea hearing. But, yes, a court can find that a plea was voluntarily entered where the defendant pled guilty because of what counsel assured him was going to happen, but didn't. And it happens every day.
The court tackles the allied offense issue in State v. Johnson, trying to determine whether attempted intimidation and menacing by stalking should have merged. The analysis now requires a focus whether the offenses were committed by the same conduct. Complicating that here is the fact that the case comes up on a guilty plea, and thus the record is rather sparse as to what actually happened. Uncomplicating it is the fact that it happened many, many times: not only did Johnson call the victim 967 times, the State submitted a two-inch stack of letters he'd written her. That's separate conduct in anybody's book.
The defendant also obsesses in State v. Broom, and finds himself the worse for it. Convicted of criminal trespass and vandalism for breaking into a scrap-metal business, he appeared at sentencing and heard the judge announce that, despite 15 prior convictions of the same thing, the judge was going to put him in a work-release facility. Broom "became highly disruptive and had to be removed from the courtroom," and when the court reconvened the sentencing two days later, it announced that "Broom's demonstrated volatility" merited a 9-month prison sentence. Broom again loudly voiced his displeasure, and the judge upped the ante to one year in prison. The panel affirms, noting that the judge had not previously finalized the sentence.
Perhaps the county's budgetary crunch has forced cancellation of the court's Westlaw subscription, for Broom is notable for something else. Broom argues that his conviction, which was based on circumstantial evidence, was against the manifest weight of the evidence, and the court uses the test of whether the circumstantial evidence is irreconcilable with any reasonable theory of innocence, citing State v. Jenks, decided 20 years ago. Jenks actually abandoned that test; there's no difference in how circumstantial and direct evidence are evaluated.
Cases involving the Castle Doctrine are popping up with more regularity, and the defendant in State v. Yates tries to get on that bandwagon, arguing that his pro se motion for new trial from his 2005 convictions should have been granted because of the passage of the statutes implementing the doctrine in 2008. The court notes that he doesn't explain why the doctrine would have helped him, but the larger point is that there's no way it could: such a change in the law doesn't apply retroactively to someone whose conviction has already become final. Yates didn't receive any more benefit from the adoption of the Castle Doctrine than he did from Congress' annual resolution honoring the Super Bowl winner.
Another issue which is achieving more attention is discovery, and that provides the only win for defendants this week. We'll talk about that tomorrow.