What's Up in the 8th
The 8th District hands down about a dozen criminal decisions a week, and sometimes there are several which present interesting issues. And sometimes there aren't; they just rehash well-settled areas of law. Even when that happens, though, there's something to discuss, which is what you pay me the big bucks to do, so here goes.
I generally don't like it when a judge reads off of cue cards when doing a plea. Waiving all those constitutional rights that the Founding Fathers felt were so important, and pleading guilty to a felony, is a big deal to a defendant, or at least should be, and you get a better feel for that if the judge is looking the defendant in the eye and talking to him like a real person. Of course, the downside to that is that every once in a great while the judge is going to forget something, like the judge, normally a very thorough one, did in State v. Fisher, where mention of the defendant's right to confront witnesses was omitted. Strict compliance with Rule 11's plea requirements is necessary insofar as constitutional rights are concerned, so Fisher's attempt to vacate his plea is successful.
Not so for the defendants in State v. Owens and State v. Irizarry. Irizarry argued that the trial court hadn't told him that post-release controls were mandatory, or that by pleading guilty to involuntary manslaughter he was admitting to killing the victim. The last claim is so not going anywhere, and as for the first, while the judge didn't use the magic word "mandatory," he did say, "you shall be on post-release controls for five years," and that's good enough. Owens is in an even worse position: his motion to withdraw the plea is filed after sentencing, which means that instead of getting the benefit of the "should be liberally granted" standard (which admittedly is honored mainly in the breach), he has to surmount the "only to correct a manifest justice" hurdle. He falls woefully short, his grievance that his attorney promised him a six-year sentence refuted by the dozen or so times in the plea transcript that he acknowledges he's pleading to an agreed nine-year sentence.
Allied offenses also qualify for a trifecta of cases, and prompt some head-scratching. In State v. Walton, a barmaid succumbs to Walton's entreaties to have breakfast with him, which necessitates a short stopover in his hotel room. Of course, what happens there is that he rapes her twice. Two weeks after correctly concluding that taking a woman from one area of the bar to another between rapes isn't sufficient asportation to provide a separate animus for kidnapping, the court decides that slamming the victim's head against the wall and forcing her into the bathroom then back onto the bed is. For good measure, it throws in some mumbo-jumbo from a 7th District case about how covering the victim's mouth increased ""the risk of suffocation that would not have existed without this form of restraint." Hey, guys, here's the easy way out: taking the victim from the bar to the hotel would be more than sufficient asportation for a separate kidnapping conviction, and kidnapping can be committed by deception.
Allied offenses also get a workout in State v. Andrews, as does Andrews: fired from his job, he starts whaling on a co-employee with a baseball bat, then follows him out to the victim's car and beats him some more. This earns him two convictions for felonious assault, one for using a deadly weapon and one for causing serious physical harm. He argues that the offenses should merge, but the court finds a separate animus from the separate attacks. This probably wasn't intended by the indictment: the outcome means that although the two attacks are virtually indistinguishable in their method and result, Andrews used a deadly weapon in one and caused serious physical harm in the other.
Allied offenses don't get a workout in State v. Crumbley, but should. Police suspect Crumbley and a cohort of robbing an elderly man of his social security checks, and stake out the house; when Crumbley and the other man break down the door and grab the victim, the police immediately intervene and grab him. It's hard to see how the resultant kidnapping and robbery convictions wouldn't merge, but nobody raises the issue.
Crumbley is odd for another reason: the opinion says that the aggravated robbery conviction is against the manifest weight of the evidence because there was no proof of serious physical harm, but the conviction will be affirmed because a reversal for manifest weight requires the concurrence of all three judges, and that isn't present here. It turns out that only the author of the opinion holds the view that the weight of the evidence compels reversal, which results in the anamoly of two of the three judges dissenting. This stems from the 8th District's practice of having the panel decide which judge will write the opinion before they hear oral argument and vote on the case.
Finally, the weekly lessons that the court's decisions always impart. From State v. McKnight, we learn that you're not going to get very far in a claim that the judge improperly denied you your right to represent yourself at trial if (1) it took a year and half to restore you to competency to stand trial, (2) you don't mention anything about representing yourself until the day of trial, and (3) when you do mention it and the judge says, "Well, we'll have to have a hearing," you say "never mind." And the moral of State v. Johnston is that if you're going to claim "mutual combat" as a defense, it's going to be a tough sell if the other guy has a broken jaw, fractured face, knocked-out tooth, was hospitalized for four days, and had his jaw wired shut for several months, and you don't have any injuries, except maybe some bruising on your knuckles from where the victim kept hitting you in the fist with his face.
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