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What's Up in the 8th

You know things are getting bad when for the second week in a row the only win for defendants in the 8th District's cases is getting driving privileges to work.

The W comes in State v. SemenchukSemenchuk was convicted in 2007 for drunk driving, emphasis on "drunk":  the police found Semenchuk driving in circles in a parking lot, with his pants pulled down after having urinated on himself, and determined he was too intoxicated to take the field sobriety tests.  He was given a lifetime drivers suspension, but applied for occupational driving privileges seven years later.  The statute specifies that one can seek "modification or termination" of a lifetime ban, but only after 15 years, so the judge denies it.  But earlier this year in State v. Manocchio the Supreme Court held that a grant of limited privileges wasn't a "modification" within the meaning of the statute, so Semenchuk is able to drive to work, and we can only hope that they have bathrooms on his job site.

I had an oral argument in an appeal in a case on consecutive sentences a few weeks back, and it turned into more of a discussion on whether the question "what is meaningful appellate review of sentences" is as reality-based as "what do unicorns eat?"  It was a good time - we talked, we laughed, we cried - but the resulting opinion in State v. Warner doesn't do my client any good.  Notable is the footnote in the panel's opinion, which contends that "soft sentencing grid" would "bridge the proportionality and consistency gaps" in the current sentencing scheme, astutely noting that "judicial discretion and consistency in sentencing share a decidedly inverse relationship."  Word up.  But don't hold your breath waiting for that to change.

A couple of deportation cases pop up.  The first is State v. Villavicencio, where eleven years after he finished serving his sentence of two years of community control sanctions for attempted felonious assault and domestic violence, Villavicencio files a motion to vacate his plea, claiming that the judge failed to advise him of the immigration consequences.  The judge is required to do that, but not if you tell him that you're a citizen, which Villavicencio did.  He claims that he's actually citizen of El Salvador, but thought when the judge asked him if he was a citizen, "she meant I reside in Cleveland."  There's a word for people who reside in Cleveland, and it ain't "citizen." 

More troubling is the result in State v. HuangHuang, a non-citizen, pled no contest to domestic violence in 2001, and now seeks to vacate it because The Man wants to deport him.  He claimed that his attorney was ineffective for not advising him that deportation was mandatory, but the attorney testified at hearing that he did discuss the possibility of deportation with Huang, and that's enough for the court.  The big case on this, of course, was the Supreme Court's decision in Padilla v. Kentucky (discussed here). The panel distinguishes Padilla, and cites several other cases which do the same thing:  in Padilla, defense counsel specifically told the defendant "not to worry" about immigration consequences. 

But that's wrong:  as I explained in a post two years ago, the majority in Padilla specifically rejected the notion that ineffective assistance could be shown only upon affirmative misadvice.  Padilla says that when the immigration consequences are clear - and it's absolutely clear that someone convicted of any crime of violence is automatically deportable - you have to advise them of the consequences, and where it's not, you should refer the client to an immigration attorney.

And if further proof of the irrelevancy of my commentary was needed, we have State v. Finklea, a case involving a father's rape of his daughter while she was between the ages of 12 and 16.  The main takeaway from the case is the interpretation of the Supreme Court's decision in State v. Eskridge, that that because a father held a "position of authority" over his four-year-old daughter, only a "minimal degree of force" was necessary to satisfy the force element of rape.  Finklea extends that to the 12-year-old; indeed, to any minor child.

The more interesting, and problematic, aspect of Finklea is its treatment of the wife's testimony that she while she initially disbelieved her daughter, S.F., "she believed S.F. after S.F. accurately described Albert's penis, which has an unusual appearance."  Finklea argues that this constituted opinion testimony on the child's veracity, which is barred by the Supreme Court's decision in State v. Boston. 

The panel rejects, and probably rightfully so; Boston arguably bars only expert testimony on the subject.  But then the panel has to go ahead and say that "Boston doesn't apply when the child victim testifies."  As I explained in a blog post six years ago, this is wrong, wrong, wrong.  No doubt, when the panel reads this, they'll do a sua sponte reconsideration and correct its ruling.  No doubt.

Meanwhile, if you're wondering what was "unusual" about Finklea's penis - and get on with your bad self, you know you are - that comes later in the court's opinion:  it turns out that Finklea's penis is "unusually small."



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