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What's Up in the 8th

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Allied offenses and sentencing were the key issues this week, but I came away from reading the decisions with a basic principle of mine reaffirmed:  Sometimes, you need to know when to shut up.  

Christopher Thomas pled out in a child porn case in 2010.  He was a teacher, and was also charged with having sexual contact with two children, so the judge hammered him, giving him 93 years in prison.  He appealed, and in State v. Thomas the 8th District found that six counts of endangering children were allied offenses, and so remanded it back for resentencing.

Resentencing on what?  The Supreme Court's decision in State v. Wilson makes it clear that the resentencing in such cases is limited to letting state elect which charges to proceed on and to sentence on those.  While Thomas conceded that issue on remand, for some reason the State asked for resentencing on the whole case.  The judge did so, giving Thomas "only" 21 years.  So does Thomas count his blessings, and the 72 years in prison he just avoided?  No, he appeals again.  Last week, in State v. Thomas II, the court notes that resentencing should have been limited, but dismisses the appeal because the journal entry didn't constitute final appealable order.  (Instead of doing an entirely brand new entry, the judge simply put one on saying how the previous order was "amended.") 

So what happens now?  If there is another resentencing, it's quite likely that the State will have figured out that it's not a de novo resentencing on the whole case, so Thomas will wind up with a sentence a lot closer to 93 years than to 21.  But there's another catch:  in his original appeal, Thomas argued that the sentence was excessive, and while the court didn't reach that issue because of the remand for the allied offense issue, it made it pretty clear that the argument had some legs; in fact, one judge dissented, saying he would have found it excessive.  So I think we can count on eventually seeing a State v. Thomas III. 

The excessiveness of the sentence, this time 15 years, is also featured argument in State v. Mannarino, arrayed in various forms:  failure to follow the statutory requirements for imposing consecutive sentences, allied offenses, disproportionality...

All for naught.  The result isn't particularly disturbing.  An argument that the judge failed to advise Mannarino that the effect of a guilty plea is an admission of guilt is self-evidently absurd; that might work for some poor schmuck in misdemeanor court, but it's a much tougher sell when you've got a guy saying "guilty" 117 times with a lawyer standing next to him.  The argument about consecutive sentences was nitpicking:  the judge said the sentence was "not disproportionate" instead of saying "not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public."  Mannarino had stipulated in the plea bargain that the offenses weren't allied.  As for the basic argument, that the sentence was excessive because it was disproportionate to what other defendants received, the State made a fairly good case that this wasn't a run-of-the-mill child porn case:  Mannarino had a lot of it, he was sharing it with others, and he'd started hitting on minors in chat rooms.  Mannarino did what a lot of defendants in these cases are doing any more, both at trial and on appeal:  presenting a list of journal entries of other child porn defendants -- in Mannarino's appeal, 18 of them -- showing what they were convicted of and the sentence they received.  As on previous occasions, the court brusquely rejects this.  We'll talk about that some more tomorrow.

The defendants in State v. Veto and State v. Piscura are similarly situated, but make different arguments.  Both plead guilty to an arson involving three victims, and Veto complains that his sentence is disproportionate, because he got nine years and Piscura only got six.  The court brushes that off; Veto was the mastermind of the crime, if that term can be applied to someone dumb enough to leave text messages on his phone like "I can make three firebombs, and I know one place that needs it."  Although his trial attorney raised an allied offense argument, Veto does not pursue that on appeal - the concurring judge would have considered it sua sponte, but the majority won't - but Piscura does, and is rewarded by the court holding that in this case the conviction for possession of criminal tools should have merged with the conviction for possession of dangerous ordnance.  To no practical effect, of course; the sentences had been run concurrently.

Over ninety-five percent of criminal cases are resolved by pleas, so it comes as little surprise that there's only one decision involving a trial, State v. Simmons, an appeal I handled.  Simmons was convicted of rape, and the court finds error in the nurse's being allowed to read into the record the entire statement given to her by the victim.  The State argued that it should've been allowed in under EvidR 803(4), the hearsay exception for statements made for purposes of medical treatment and diagnosis.  The court finds that the statement here went far afield from that, the narrative detailing how the victim met Simmons, Simmons' statements and demeanor during the offense, and what he did afterward, and thus "were not for the purpose of medical treatment, but rather related primarily to the investigation of appellant."  Of course, this all gets swept under the Harmless Error Rug.  A good analysis and some good language nonetheless, and it might be useful in another case with better facts. 

One more thing.  The opinion notes that "although not argued by appellant, the testimonial nature of the improperly admitted hearsay statements raises the issue of the Confrontation Clause," then dispenses with that argument in the very next sentence, noting that since the victim "testified at trial and was subject to cross-examination, appellant's confrontation rights were not violated."  Hmmm.  Perhaps that's why appellant didn't argue that... 

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