What's Up in the 8th
When is a defendant competent to enter a guilty plea? When can you introduce evidence that the alleged victim of a rape case is a prostitute? Is the 8th District adopting a harder tone on consecutive sentencing cases? How in the world do you win a case on appeal from the denial of a motion to withdraw a plea? And when will I stop posing questions and get down to telling you about the decisions the 8th handed down last week?
A year or so ago, in State v. Nia, the 8th rendered an en banc decision requiring strict compliance with the statutory findings necessary to impose consecutive sentences. Then the Supreme Court handed down State v. Bonnell, which numerous panels in the 8th decided created a "more relaxed" standard. Well, it appears to be Nia-time again. Tony Stephens was given ten years of consecutive time, but last year the court reversed it, finding that the judge had made none of the required findings. So it goes back, and a different judge sentences Stephens to the same ten years. In State v. Stephens, that gets reversed, too; the State concedes that the judge again didn't make the required findings.
What didn't the judge do? The judge said "I don't believe this is disproportionate to the sentence imposed for similar conduct," and the panel decides this wasn't close enough to the finding that "consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public."
Now, I'm not seeing a whole lot of daylight between those. What's baffling to me is that the State conceded the error. I've had two cases in the last six months where the judge didn't come within miles of making any of the findings, and the State fought me on both. Maybe it's just me.
Consecutive sentences are also the issue in State v. Daniels, but that doesn't go anywhere; the judge made the findings. In fact, Daniels doesn't argue that he didn't, but instead claims that the record doesn't support the findings. The court ignores that contention, preferring to focus on the findings, but Daniel's argument is a very tough sell in any event.
The more worrisome part of the opinion is its handling of Daniels' assertion that he wasn't competent to enter a guilty plea. After Daniels pled, the judge ordered a presentence investigation and a psychiatric report in mitigation. The shrink found that not only did Daniels suffer from mental problems, but that he was incompetent. They shipped him off to a room at the Rubber Ramada, where he was eventually restored to competency sufficient to stand before the judge and be sentenced to ten years.
The court finds that the record
does not support the contention that Daniels was incompetent at the time of the guilty plea hearing, especially when the psychological evaluation Daniels relies on was completed one month after entering into his guilty pleas.
That's kind of weak. The fact that the judge referred Daniels for a psychiatric evaluation suggests that there was some inkling at the time of the plea that Daniels was off-kilter. The reason for the panel's shrugging this off might be a suspicion that the doctor got it wrong; the doctor who "restored" Daniels to competency found that he was malingering. Still, one wishes the panel would have given more consideration to the assertion that when one is found incompetent a month after a plea, arguing that he was incompetent at the time of the plea can't be dismissed with a "well, that was a month ago."
The defendant in State v. Farkosh has better luck; the case is a rare reversal of the denial of a motion to withdraw one, and also portrays the perils of dual representation. Farkosh and his son were charged with insurance fraud, theft, forgery, tampering with records, and a couple of lesser charges, and hired the same lawyer to represent both of them. The State offered them a package deal: the tampering and the lesser charges would be dismissed, and they'd plead to the others.
They took it, but before the sentencing Farkosh père canned the lawyer and hired a new one, who filed a motion to withdraw the plea due to the potential or actual conflict of interest in the original attorney representing both parties. The trial court acknowledged the possibility of the conflict in an abbreviated hearing - including the arguments of counsel, the issue of the conflict was disposed of in a tidy seven pages of the transcript - but held that since the Rule 11 colloquy was complete, the plea had been knowingly, voluntarily, and intelligently entered.
The panel finds that the judge didn't adequately explore the conflict of interest. But it's not a straight reversal; the case is remanded for another hearing on the issue. Don't be surprised if I'm writing about Farkosh II a year from now.
State v. Battiste is the rape-shield case, and provides a good primer on when the rape shield statute has to give way to the defendant's 6th Amendment right to present a defense. The general rule is that evidence of prior sexual conduct can't be brought out simply to impeach the witness' credibility, but can be if it goes to a substantive issue, like consent. There's a more particular rule for allegations of prostitution: if there is evidence that financial arrangements were entered into in this particular case, evidence comes in, if not, not. Here, not: Battiste denies that he had sex with the woman, period, regardless of the issue of payment, or lack thereof.
Tomorrow, we'll talk about State v. Gulley, which raises the question: can the State extend the statute of limitations by indicting someone's DNA profile? And no, I'm not watching too much television, thank you.