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What's Up in the 8th

Imagination, and even a minimal logical process, eluded Larry Ellis.  The police arrived in response to the latest domestic disturbance call, and they asked Larry why his live-in girlfriend's eye was swollen.  What to say, what to say?  You could come up with something long and involved, but that's kind of hard to do on the spur of the moment, and nothing in the 8th's opinion in State v. Ellis leads you to believe that Larry's a long and involved kind of guy anyway.  But all you really have to do is come up with a brief explanation of how some other mechanism might have caused the injury.  You can go even go with the old standby "she walked into a door."  Hey, it's worked for other guys.

So what's the best Larry can do?  The sad tale is conveyed by one of the police officers:  "When asked how she got the black eye, Ellis said she must have punched herself in the face."


In State v. Bloom, the court rejects Bloom's contention that the trial judge should have held a hearing to determine if Bloom was incompetent.  But didn't the court, just weeks ago in State v. Morris, vacate a guilty plea because there was no finding of competency?  What's the diff?  ("What's the diff"?  Really?  What're you, twelve?)  The difference is that in Bloom, the judge had never ordered a hearing, and the court found that there was ample evidence of Bloom's ability to understand what was going on.  So if you're a judge and you don't order an evaluation, your decision is going to be reviewed for abuse of discretion, and it's unlikely to be reversed unless the record indicates the defendant was wearing a drool bucket during the plea.  But if you do order an evaluation and there isn't a journal entry making a decision on competency, it's coming back.

State v. Wells is another data point on the court's work on consecutive sentencing.  Wells was given probation in a pair of felony nonsupport cases, and when a year later he'd managed to pay only a paltry $285 toward his arrearage of nearly forty large, the judge gave him two 11-month sentences and ran them consecutively.

Whether consecutive sentences were proper is the issue, and the law is simple:  In order to impose consecutive sentences, the judge must first find that they're necessary to protect the public or punish the offender, and that they aren't disproportionate to the seriousness of the conduct or the danger to the public.  He then has to make one of three additional findings:  the offense was committed while the offender was on bond, probation, or some sort of supervision, the defendant's criminal history shows consecutive sentences are necessary, or that the harm of the multiple offenses was so great or unusual that a single prison term would adequately reflect the seriousness of the conduct.

Here's what the judge said in imposing the consecutive sentences:

Now, I've issued consecutive sentences here and these are discretionary consecutive sentences. I believe that the harm was so great or unusual that a single term would not adequately reflect the seriousness of the conduct of the defendant.

The rearage [sic] amount here is $38,992.58.  You know, I spent 24 years in domestic relations law prior to becoming a judge and that is as high as any number I ever heard before. I put you on community-control to give you an opportunity and you've paid only $285. You haven't cooperated in any way of any substantial manner except completing a class. You failed to submit to drug tests.  Failed to show for employment programming. So, I believe this is the appropriate sentence at this time.

The appellate court finds this is sufficient, and it's clearly not.  The second paragraph might serve as a more than adequate explanation of why Wells should be deemed a probation violator, but it has nothing to do with why he should get consecutive sentences.  There's nothing whatsoever even addressing the first finding, seriousness of the conduct, danger to the public, and proportionality of the punishment, let alone making findings on them.

This represents an unfortunate retreat from the 8th's previous decisions in this are, which have usually held that the judge must make the specific findings.  Wells may certainly have deserved consecutive sentences, but the procedure we have set up for determining that does not include the appellate court deciding it.  You can debate whether the judge has to do more than just make findings, but he at least has to do that, because that's what the law says.  Appellate review of consecutive sentences is enough of a mess without blurring the one bright line there is.

But what the appellate court giveth to the State in Wells, it taketh away in State v. Curlee-JonesA few weeks back I told you about State v. Jones, a case in which, according to Jones and his witnesses, the police roughed him up, and according to the police, they restrained him because he was acting crazy.  Curlee-Jones is Jones' mother, and she arrived at the scene in a car, with a passenger who seemed to be taking video of the donnybrook on a cell phone.  One of the officers decided that the phone constituted evidence, and demanded it be turned over.  The passenger gave the phone to Curlee-Jones, who stuffed it down her shirt and started to drive away.  That ended with her being dragged from the car and being tasered.  (The police eventually retrieved the phone; it didn't have video capability.)

Curlee-Jones is convicted of tampering with evidence, two counts of assaulting police officers, and one of resisting arrest, but by the time the panel gets done, only the last survives.  The tampering charge goes away because, well... Curlee-Jones wasn't trying to "conceal" the cellphone, she was merely trying to keep the police from getting it, and she did this in "plain sight" of the police.  The assault charges are based upon the police claims that Curlee-Jones was swinging her arms and kicking the officers.  But that, the court decides, was "part and parcel" of the resisting charge, and there is no evidence that Curlee-Jones did this "knowingly to cause harm to the officers."   

When Jones came down, I said I could understand the court's sustaining his convictions for assaulting a police officer and resisting arrest -- the officers' testimony was sufficient for that -- but suggested that from my jaundiced and admittedly biased perspective, I had a "sneaking suspicion that Jones' method of assault was to repeatedly strike the police officers in their fists with his face."  I think this panel had some serious questions about the "official" version, too.  There's not supposed to be such a thing as jury nullification, but every lawyer knows there is.  And sometimes there's such a thing as appellate nullification, too.  


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