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What's Up in the 8th

There must be something in the water up here:  of the eight criminal cases decided by the 8th District last week, five involved sex offenses.  The only "win" for defendants comes in State v. Locke, where Locke, a 42-year-old policeman, has sex with a 15-year-old on numerous occasions, and "used his cellphone to record his crimes," marking the moment that the selfie craze officially got out of hand.  

The judge gave Locke consecutive sentences totaling 19 years, and the State concedes the judge didn't make any of the required findings.  Perhaps anticipating what will happen on the remand - "Findings?  You want findings?  Well, here are some findings for you" - Locke argues that the court should simply make the sentences concurrent.  That's been raised before, in a concurring opinion, and is based on the logic that concurrent sentences are the default unless the judge makes the findings, so if the judge doesn't, concurrent sentences should be the result.  The court does have the power to modify a sentence if it finds error, but that doesn't happen here, and is unlikely to in the future.

Locke's claim that the sentences should have merged fails because his attorney didn't raise it; in fact, he voiced no objection when the prosecutor opined at sentencing that the offenses weren't allied.  The opinion does give a helpful hint, however; Locke could raise in a post-conviction relief petition, which allows him to introduce evidence beyond the record, that his attorney was ineffective for failing to argue that the offenses were allied.

Allied offenses is also in the mix in In re J.A.H., a juvenile rape case in which J.A.H. digitally penetrated a 12-year-old.  He's charged with rape under two sections:  sex with someone under 13, and sex by force.  Since it's only one incident, those two merge, right?  Wrong; last year in In re A.G., the 8th held that because "technically, a juvenile is not being convicted of a criminal offense," he doesn't get the same protections as an adult against sentencing for allied offenses.  Instead of using the "same conduct" test in State v. Johnson, the Blockburger analysis is used:  the offenses don't merge as long as each offense has an element that the other does not.  A.G. is before the Supreme Court, so we'll see how that shakes out.

J.A.H. does get one break:  the court finds that the evidence supporting his adjudication of gross sexual imposition is insufficient.  That's somewhat shaky, though.  The issue is whether J.A.H. did anything besides digitally penetrate the victim; the victim testified that he didn't, but a police officer testified that the girl had told him that J.A.H. rubbed her vaginal area before inserting his finger.  While the trial judge found the girl's statement to the officer was an excited utterance, the panel decides it shouldn't have come in because it was testimonial, and thus barred by Crawford.

A couple problems there.  First, in determining sufficiency of the evidence, even evidence that should have been excluded is considered, on the theory that if it had been excluded, the prosecutor may have used other, admissible evidence to prove the point.  Second, and more critical, is that the victim testified, and Crawford doesn't apply in that instance:  Crawford is based on the right of confrontation, and where the declarant testifies at trial and is cross-examined, the defendant has been afforded that right.

State v. Pluhar indicates the difference between the Adam Walsh Act and Megan's Law.  Pluhar pleads guilty to rape and assorted other sex offenses, and argues that the plea should be vacated because the judge didn't tell him about the sex offender registration requirements.  That would be a good argument under the AWA; the court held that statute was punitive, and thus the failure to tell a defendant about registration gets a judge reversed.  But Pluhar's crimes were committed in the late 90's, so he's subject to Megan's Law, and that's "remedial," not "punitive."

Things get ugly after that.  Pluhar contends that there was no evidence of "significant harm" to the victims, because two of them didn't appear at the sentencing.  The court rejects this as a "crass argument," and finds "even more offensive" Pluhar's assertion that "raping an unconscious woman somehow results in less harm or the trial court cannot assume significant harm was inflicted." 

Finally, the defendant in Parma v. Benedict, a drunk driving case, raises eleven assignments of error, and meets with, shall we say, limited success:  one claim is actually found to have merit, but the error is found harmless.  The noteworthy aspect of Benedict is that he was drunk while riding a motorcycle, a choice that suggests that the self-preservation gene in Benedict's family is a recessive one.  That Benedict is indeed a hard case is typified by this exchange from the opinion:  "Patrolman Hanley then asked, 'Do you choose to take the breath test: yes or no?' When Benedict refused, Patrolman Hanley asked him again. Benedict replied, 'Nope. Pretty sure I didn't stutter the first time.'"

There was also an important decision in a case involving plea bargaining.  That deserves its own post, so we'll talk about that tomorrow.

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