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What's Up in the 8th

I ran into one of the countless legions of my regular readers over in the Justice Center last week, who said, "I thought you were on vacation."  Ah, taking a break from here and taking a vacation are two different things, I'm afraid.  Anyway, I've got two weeks of 8th District decisions to go through, and there are probably several which will be of great interest to you trial practitioners, giving you the extra knowledge which will allow you to get that child molester or gang killer off.

Well, as they used to say in the car commercial, "Not exactly."

Tomorrow we'll talk about how last Wednesday's Supreme Court decision in State v. Bonnell might affect the 8th's law on consecutive sentencing, but it was relatively quiet on that front in the past two weeks.  The court continued to send back cases where the judge didn't make the necessary findings, even where an expansive reading of the judge's remarks might have sufficed. 

Of course, if the judge does make the findings, you're stuck with arguing that the record "clearly and convincingly" doesn't support them, the futility of that task is demonstrated by State v. Donat and State v. WilliamsThe court doesn't even break a sweat on Donat, understandable given that Donat had pled to menacing by stalking two people six months after he'd gotten out of prison for menacing by stalking the same two people, and had a resume - er, criminal history - chockfull of misdemeanor and felony convictions, 34 of them to be exact.

Williams wasn't a candidate for the Good Neighbor Award, either, having been given consecutive sentences on three cases, two of them armed robberies.  But here the court lays out just how tough this line of attack is.  The panel says that trial judge's weighing of the factors -- whether harm was actually so great that consecutive sentences are necessary, for example - is unreviewable; basically, you can win this argument only "where the court claimed to rely on a fact that the record on appeal shows to be demonstrably wrong -- for example, attributing to the defendant a prior conviction that does not exist."

A new feature for the blog premiers this week:  Saved by Harmless Error™.  That award goes to State v. TaylorTaylor was on trial for raping his minor cousin, and when the victim broke down crying on cross-examination, the judge asked her if she'd like to have the nice lady from the Victim Impact Unit stand next to her during her testimony.  Taylor argues this was prejudicial - ya think? - but the lead opinion cites several cases where that sort of thing was upheld, including one where a 5-year-old boy was permitted to testify while sitting on his father's lap.  As the concurring opinion notes, though, those cases involved young children; here, the alleged victim was 17.  It's not clear exactly what Taylor holds:  the judge who wrote the concurring opinion said that he thought the procedure was improper and unfair, but that it was harmless "in light of the overwhelming evidence of guilt," but he didn't concur only in judgment, and neither did the judge who concurred in both opinions. 

Confession is good for the soul, and it doesn't matter whether the guy in the robe is a priest or a judge, as the defendants in State v. Blackley and State v. Wright learn.   Blackley and a co-defendant were charged with sexually assaulting an 11-year-old girl.  The co-defendant pled to the rape, Blackley went to trial and then pled to gross sexual imposition in the midst of that, and both received 5-year sentences.  Blackley argues disproportionality, but the panel finds his remorse, or lack thereof, a sufficient distinguishing factor; the trial court noted that Blackley's father was more apologetic toward the victim than Blackley was.  As for Wright, this exchange best captures his problems with acceptance of responsibility:

DEFENDANT:  I'm sorry that Mr. Hobbs got shot that night. 

THE COURT: I'm sorry he got shot, too. That's different than saying, 'I'm sorry I shot you, Mr. Hobbs.'

As the politicians like to say when they're caught making a mess, "mistakes were made."

But while Blackley and Wright learn the benefits of verbosity, at least when expressing remorse, the defendant in State v. Smith learns the wisdom of knowing when to shut up.  Smith was initially sentenced to 8 years on an aggravated robbery plus one year for the gun spec, and the judge tossed on another 12 months on a drug case for good measure, running everything consecutively.  Smith appealed, the panel decided the evidence wasn't sufficient for the gun spec, so vacated that conviction and sent the case back.  Smith had been a good boy in prison, taking several courses to better himself, so the judge decided to run the sentences concurrently.  Smith appealed again, arguing that the judge abused his discretion in giving an eight-year sentence.

Not only did the panel reject that, it found that the judge erred in running the sentences concurrently.  The judge shouldn't have done a resentencing at all; the remand was limited to vacating the sentence for the firearm spec.  It goes back again, the judge imposes consecutive sentences like he was told to do, and Smith appeals a third time, claiming that the judge didn't make the necessary findings for consecutive sentences.  Didn't have to:  the judge was only authorized to follow the court's instructions regarding the spec and "was without jurisdiction to conduct a de novo resentencing complete with findings." 

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