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What's Up in the 8th

I once had a case on appeal where the trial court improperly imposed post-release control on a weapons under disability charge.  Given that the guy had also received a life-without-parole sentence for killing someone with the gun he wasn't supposed to have, that might not seem like a big deal, but PRC has to be imposed properly, no matter how foolishly so, so back it came.  When the judge imposed the sentence, she asked the prosecutor whether PRC was mandatory or discretionary.  "Mandatory," the prosecutor said, so that's what the judge did, and assigned me the appeal.

PRC was discretionary.  So they dragged the defendant back from prison yet again to properly impose PRC on a guy who's never going to get out of prison.

The moral of that story, besides "PRC law is stupid," is "look it up yourself."  Last week's decision in State v. Weakley drives that point home.

Weakley was convicted with 20-some counts of engaging in a pattern of criminal activity, conspiracy, and identity fraud, but he didn't have to be.  The State had initially offered him a deal whereby he'd plead out to conspiracy and three other third-degree felonies.  After Weakley rejected that, the State offered him another deal, substituting another third-degree felony for the conspiracy charge, agreeing to a four year sentence and to not object when Weakley filed for judicial release after six months.  Weakley rejected as well.

On the morning of trial, the State offered to go back to the original deal.  According to the prosecutor, though, that meant Weakley was ineligible for judicial release:  conspiracy to commit a violation of the corrupt practice activity statute is excluded from judicial release.  Weakley turned the deal down and went to trial.

Every criminal lawyer has his "he shoulda taken the deal" story, and now Weakley's lawyer has one, too:  Weakley was convicted and sentenced to nearly 16 years in prison.

But remember that part about how conspiracy to commit a corrupt practices activity charge makes one ineligible for judicial release?  It doesn't; the statute plainly says it does only if the defendant was holding public office at the time of the offense.

So what happens now?  That takes us back to the Supreme Court's 2012 decision in Lafler v. Cooper.  Lafler spurned a plea offer of six years on an attempted murder charge because his lawyer had told him that since all of the shots hit the victim below the waist, the state couldn't prove intent to kill.  Well, no, that's not how it works.  The Court found that bad advice during plea negotiations constitutes ineffective assistance of counsel if the defendant can demonstrate that he would have taken the plea, the court would have accepted it, and the end result of the plea would have been more favorable than the trial outcome.

Weakley meets this test.  Normally, that means that the case goes back to the trial court with instructions to allow Weakley to accept the plea deal.  (If he doesn't, then the trial verdict gets reinstated.  Wow!  Tough decision!)  But Weakley winds up better off than that.  A lot of hinky things went on at trial:  a witness blurted out something about Weakley being incarcerated, a letter from Weakley's Federal probation officer was accidentally included in the exhibits which went to the jury, and Weakley's lawyer didn't ask to bifurcate the weapons charge and try that to the bench, which meant that the jury found out about an additional prior offense.  So if Weakley doesn't want to take the deal, he can still choose to go to trial.

And thus likely to provide another lawyer with a "he shoulda taken the deal" story.

State v. Garner provides the paradigm of a Pyrrhic victory.  Garner was convicted of numerous counts of child rape and gross sexual imposition, but the judge imposed the wrong sentence on the latter, so the court of appeals shipped it back.  It gets reversed again last week because instead of doing a complete resentencing on remand, the judge simply imposed the sentence on the GSI counts, and didn't allow for allocution. 

So that's good for Garner, right?  Not so much:  the decision leaves in place the two consecutive life-without-parole sentences that Garner got for the rapes.

Clarence Mack killed a man in 1991, and was convicted and sentenced to death.  And he's still around; last week's decision in State v. Mack, an appeal from the denial of post-conviction relief, is merely his latest foray in the court system.  It was preceded by

    • The direct appeal from his conviction.  He lost in the court of appeals and the Supreme Court.
    • His first petition for post-conviction relief.  Denied by the trial court, denial affirmed by the court of appeals and the Supreme Court. 
    • His motion to reopen the appeal.  Guess what happened in the court of appeals and Supreme Court?
    • His habeas petition to Federal court.  That got stayed so he could go back to state courts to exhaust his remedies.
    • His second petition for post-conviction relief.  Denied by the trial court, affirmed by the court of appeals on the grounds that he didn't meet the jurisdictional requirements for a successive petition.
    • His appeal to the Supreme Court.  It reversed and remanded it back to the court of appeals for a decision on the merits.
    • Along the way, he passed go and collected $200, but had to go back three spaces.  I think.

He loses his latest effort, and I won't go into detail why.  Suffice it to say that our good friend Ray Judicata has at least managed to whittle the issues Mack can raise from the 29 he presented in his original appeal to the Supreme Court to a more manageable five.

Don't cry for Mack, Argentina.  He's still got the appeal to the Supreme Court from this latest decision, and if he loses that, he'll have exhausted his state remedies, so back it goes to the Federal District Court for hearing on his habeas petition.  If he loses there -- and if the past is indeed prologue, he will -- there's an appeal to the 6th Circuit, and the US Supreme Court.

From there, who knows?  As Mack approaches the 30th anniversary of his crime, it seems safe to venture that he's got a better shot at dying of natural causes than of getting the needle.

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