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What's Up in the 8th

Every now and then we have a Week at the 8th District.  Sometimes it's Consecutive Sentencing Week; others, it's Allied Offenses Week.  (We even once had Bar Shooting Week.)  So now we have Probation Violation Week, with four of the court's seven decisions devoted to that subject.

So let's see what we learn.

We'll start with State v. Marks.  Marks was sentenced on several counts, and the judge imposed an 18-month prison sentence on one, and five years of community control sanctions on the other, the latter to begin upon his release, with the Damoclean Sword of four years of prison on that hanging over his head.  When he gets out, he's hit with a notice of violation of the sanctions, based on his violating a no-contact order by sending two letters to the victim while incarcerated.  The judge orders an evidentiary hearing on this, and ships him for the four years.

Two problems.  First, you can't impose a no-contact order as part of a prison sentence.  And Marks didn't violate the sanctions by contacting the victim because he sent the letters before the sanctions started to run, and you can't violate someone for something they did before sanctions started.  The biggest lesson here, though, is that you can't hold that somebody violated probation without a hearing, which is what the judge did; despite ordering an evidentiary hearing, none was ever held.

The lack of hearing isn't a problem in State v. FyeThe judge gives Fye judicial release six months into a three-year sentence, but nine days after Fye is released, the judge issues a capias.  Why?  Turns out Fye celebrated his release with a Facebook posting which included a photo of him with the middle finger of both hands extended.  Rule No. 2 on the probation sheet is that "upon reporting to the Probation Department and when in Court you shall conduct yourself in an orderly manner," and the court finds the photo violates that direction, and ships Fye back for the remainder of the term.

The State beseeches the panel to "interpret Rule #2 realistically; after reporting to the probation department probationers should conduct themselves in an orderly fashion at all times, whether in court, at the mall, or in the probation department." 

One of these things is not like the others.  And that one thing is not included in Rule #2, so the panel reverses, apparently sharing my belief that spending $25,000 a year to imprison someone for giving the finger on Facebook is not a wise expenditure of taxpayer dollars.  Frankly, I'd rather see that than another damned dog picture, although in truth the panel's position on dog pictures is less clear.

State v. George and State v. Johnson both deal with one common pleas judge's position that prosecutors are not a proper party to a probation violation hearing.  For the umpteenth time, the 8th upholds the policy.  How that's eventually going to shake out is less certain.  Back in September, as I discussed here, the Supreme Court held oral arguments on that issue in State v. RosarioRosario is almost certain to get dismissed as improvidently allowed, but last week the court accepted jurisdiction in a similar case.  Fye provides one potential argument for the defense:  if the prosecutor's going to stand up and claim that the defendant can be sent to prison for giving somebody the finger at a shopping mall, I don't really need to hear from him.

State v. Bell shows that the court is still struggling with the aftermath of its en banc decision in State v. Jones on pre-indictment delay.  These cases are invariably very fact-intensive, but some basic principles emerge.

First, a big plus for the defendant is if he was identified at the time of the crime.  That avoids the effect of DNA results; the DNA tells the police nothing that they didn't know all along.

Second, there needs to be at least a semblance of an argument that the sexual activity could have been consensual.  If your semen winds up in a stranger, as Ricky Ricardo would say, you got some 'splainin' to do.

Third, it helps if a key witness is dead; that's pretty much the gold standard in pre-indictment delay cases.  (The big issue left over from Jones is whether the defendant has to show what the dead person testified to.)  The more critical the witness is - one being on the scene would be very helpful - the more likely the court's going to find prejudice.

Bell also deals with the issue of prosecutorial misconduct.  In closing argument, the prosecutor told the jury about how the octopus emits a blank ink cloud to escape danger, and analogized that to the defense's efforts to "get out from under this overwhelming evidence of guilt," promising to "spend a little time clearing up that murkiness."  There's only so far you can go in denigrating defense counsel - the opinion notes a case from the 1st District, where the conviction was reversed because the prosecutor told the jury that the defense lawyer was "really good at making chicken salad out of chicken [shit]."  (The brackets are in the original quote; I have no idea what euphemism the prosecutor actually used.)  But the panel finds that this prosecutor's Cephalopodian metaphor didn't cross the line.

Bell committed the crime in 1993, so the court sentenced him to 7 to 25 years in prison, in accordance with the law in effect at that time.  The 8th has consistently held a defendant in that situation is entitled to be sentenced under HB 86, also an issue that the Supreme Court has taken up, so the sentence is reversed.  The trial judge had initially imposed post-release controls, but subsequently vacated that.  The panel tells him to include post-release controls when he resentences Bell, because PRC is part of HB 86.

But that's wrong.  A person who committed a crime before HB 86's effective date, September 30, 2011, is entitled to be sentenced under HB 86's provisions if it reduces the defendant's sentence.  Post-release control increases a defendant's sentence; it not only provides for supervision of the defendant, but puts him at risk of being returned to prison.

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