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What's Up in the 8th

So what has the 8th District wraught in the past two weeks?  Several defendants fail to navigate the nuances of social networking, and a couple of other defendants try to disprove F. Scott Fitzgerald's observation that there are no second acts in American lives.

Devon Hubbard, for example, begs for a do-over, with a twist.  Charged with rape of his girl-friend's two-year old son, he pleaded guilty, then two days later filed a motion to withdraw his plea.  You know what happens next, right?  The judge denies the motion, he appeals, the appellate panel affirms, noting that a "change of heart" isn't sufficient to allow a defendant to withdraw his plea, notwithstanding the language about how a presentence motion to withdraw should be "freely and liberally granted."

Well, no, that's not what happens.  What happens is that the judge does allow Hubbard to withdraw his plea, he goes to trial, and gets convicted and sentenced to 25 years to life.  At which point he appeals, claiming that the judge shouldn't have granted his motion to withdraw the plea.  In State v. Hubbard, the court explains how Hubbard falls on the wrong side of the doctrine of invited error, which, in simplified form, is that if you ask somebody to do some thing, you can't complain if they do.

Paul Henderson wants a second shot, too, as Paulette Gentry can attest.  She was the shift supervisor at Town Air Freight back in September of 2009, when she noticed a package arrive that aroused her suspicions:  it seemed strikingly similar to a large package of marijuana that had been delivered for pickup by Henderson a year earlier.  This one, too, was addressed to Henderson, and so Gentry called in a sheriff's deputy and a drug-sniffing dog -- the latter of whom definitely proved not to be Henderson's best friend -- and, sure enough, the package contained some 60 pounds of the demon weed.  Henderson had made one modification to his scheme:  whereas he'd used his real name in 2008, this time he had addressed the package to "Paul Anderson."  Clever, no?  Not clever enough; in State v. Henderson, the court affirms his conviction and nine-year prison sentence, his pro se appeal raising six assignments of error, the second of which -- that the conviction violated his right to freedom of speech and assembly -- telling you all you need to know about their merits.

The defendants in State v. Thompson and State v. Yates learn hard lessons.  Thompson actually learns two.  The first is that when you make a phone call from the jail, the little advisement they play about how the calls are monitored and recorded isn't just for grins and giggles:  they actually do that.  The second is that when they play those calls at your trial to show that you attempted to get your girlfriend to dissuade the victim of the felonious assault you committed from showing up at trial, they don't have to present much in the way of proof that you're the one who made the calls:  authentication of the calls does not require that Thompson be conclusively identified as caller, but only that the evidence "be sufficient to afford a rational basis for a jury to decide that the evidence is what its proponent claims it to be."  Yates also learns a lesson in social networking, that being that evidence about his MySpace account, in which he calls himself "Murdaman Flocka," will be admissible in his trial for -- you guessed it -- murder.

I'm of the belief that delayed gratification is one of the most important concepts to grasp.  It can be especially hard if you're sitting in prison, and your fellow inmates find out that the judge screwed up the imposition of post-release controls in your sentencing, and start pestering you to file a motion to vacate the sentence.  Roland Clarke resisted the temptation, waiting until after he finishes serving his sentence to raise the issue.  In State v. Clarke, the court demonstrates why his patience pays off.  Back in 2004, the judge who'd sentenced him on a first-degree felony told him only that there was a "possibility of five years post-release control, which may include supervision by the Adult Parole Authority."  Not good enough:  a five-year period of PRC is mandatory for a first-degree felony, and anything short of that isn't a sufficient advisement.

The State tries to escape by arguing that Clarke's initial appeal didn't raise the issue, so it's now barred by res judicata.  And that would normally be true, except that the Supreme Court in Fischer held that res judicata didn't apply to sentences that do not conform to statutory postrelease-control mandates." 

So what happens under Fischer, of course, is that the trial court simply does a quick resentencing hearing to include the appropriate language about PRC, or maybe even does it by way of a nunc pro tunc entry.  Except remember that bit about Clarke waiting to get out of prison before he filed his motion?   Under State v. Bezak, post-release controls can no longer be imposed once a defendant has completed his prison sentence, so Clarke avoids having a parole officer looking over his shoulder for the next five years.  Smart man.

Still a couple of cases to go, but we'll do that tomorrow, where we'll learn why it's sometimes a problem to have 12 judges on an appellate court.


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