8th District - Year in Review
The 8th District handed down 1023 decisions last year, 223 fewer than in 2011. That was in keeping with a general decline in Supreme Court and appellate cases, about 800 fewer than the year before. The 8th still did the heavy lifting, issuing about over 300 more opinions than the next-highest volume court, which was the 5th District, with 691 cases.
That's the quantitative result. What's the qualitative analysis? Let's take a look.
The court continued to wrestle with the issue of allied offenses in the wake of the Supreme Court's 2010 decision in State v. Johnson. Most of the wrestling had to do with how to handle the issue when the case had been resolved by plea, rather than trial. Given Johnson's focus on the defendant's conduct, a plea doesn't afford much factual basis for determining this question, especially where neither the parties nor the trial judge had addressed it. That means plain error review, but that's not a problem, because the Supreme Court's held that imposition of sentences for offenses which should be allied is plain error. The 8th has vacillated on how to handle this: in State v. Lindsey, it held that the defense's failure to offer any evidence on the issue below precluded a finding of plain error, but subsequently backed away from that in State v. Baker, and in State v. Maddox held that the State bears the burden of providing sufficient evidence at the sentencing hearing of how the offenses occurred in order to determine whether they merge. The lesson here is that everybody - the trial judge, the defense attorney, and the prosecutor - has to pay more attention to this. Even a stipulation that the offenses aren't allied might not be enough; as Baker notes, this "merely supplants an allied offense issue with an ineffective assistance of counsel one -- for mistakenly advising the defendant to agree to multiple sentences for a single crime."
Sentencing is also the subject of several other decisions, notably State v. Bonness, where the court reversed as being excessive a 52½-year sentence for a former policeman who pled guilty to attempted rape and multiple counts of child pornography. As I detailed here, the 8th's jurisprudence on disproportionality has been something other than a seamless web, and Bonness lent little clarity to it. (Note: on the remand, Bonness was given 32 years; the case is on appeal again.)
Of course, disproportionality as a legal concept has faded in significance since passage of HB 86, and its reinstatement of the requirement that judges make findings of fact before imposing consecutive sentences. Again, the court's jurisprudence here is a bit muddled, but no more so than that of other districts, the problem centering around everybody's belief that the new law dispenses with the requirement that the judge provide reasons for his findings. (I provided an argument contra here.) For the most part, the court has been fairly consistent in requiring the judge to make the findings required by the statute. Not necessarily using the exact language, the court noted in State v. Blackwell, finding that the judge there said enough about what a bad person Blackwell was to conclude that she'd made the required findings.
Another major feature of HB 86 was the "mandatory probation" provision - a requirement that one convicted of a fourth or fifth degree felony receive community control sanctions in most cases. That raises several questions, as I pointed out here and here, such as whether the "lookback" period of two years applies to all felonies or only violent misdemeanors, and whether the provision is constitutional at all. The court didn't address any of those issues, although it might have in State v. Taylor, instead concluding that HB 86 didn't apply, wrongly using the offense date rather than the sentencing date as the relevant one. One other issue raised by HB 86 was whether the reduction in threshold - the amount necessary to charge a felony was raised from $500 to $1,000 - meant that the defendant was entitled to a misdemeanor classification as well as a misdemeanor penalty. In State v. Steinfurth, the court rejected the reclassification argument, but the better reasoning, that the defendant is entitled to the lesser classification, is found in the 5th District's decision in State v. Gillespie and the 2nd's in State v. Arnold.
One of the most helpful decisions for appellate lawyers was In re C.T. One of the difficulties in appealing from a bench trial is that the appellate court will presume that the trial judge disregarded inadmissible evidence. In C.T., the court held that doesn't apply when the judge allows evidence in over defense objection.
As for substantive law, lawyers handling "aggravated shoplifting" cases - those where a defendant is confronted by a security guard, pushes him aside in an attempt to escape, and winds up with a robbery charge - should look to State v. Miller and State v. Griggs. In Griggs, the defendant had grabbed the victim's cellphone away from her, and the court found this was insufficient to establish the "force or threat of force" element of robbery. In Miller, the court reversed a conviction of assaulting a police officer; the defendant's "flailing around" in reaction to the officers' attempt to arrest him, which had resulted in one of the officers being kicked in the shins, wasn't sufficient to prove that the defendant had "knowingly" attempted to inflict harm. And anyone handling a case involving an allegation of rape under the substantial incapacity theory needs to take a look at State v. Rivera, where the court finds evidence of a 15-year-old's consumption didn't equate to intoxication, let alone incapacity.
As usual, the court saved its best work for 4th and 5th Amendment cases. In State v. Arguelles (discussed in detail here), the court held in essence that an officer's "repeated asking" if he can conduct a search despite "repeated refusals" can, in and of itself, place the defendant in custody, and thus require Miranda warnings. That complemented the result in State v. Dieckhoner. The police had stopped Dieckhoner for a busted headlight, told him to fix it, and then asked "by the way, do you have anything illegal, guns, knives, bombs, anything?" Dieckhoner said no, and the cop asked if it would be okay to "check his person." By this time another cop had arrived on the scene, and was standing five feet away. Deickhoner agreed to be patted down, and a small bag of cocaine was recovered from his pocket. Although the trial court had found Dieckhoner had consented to the search, the 8th reversed, finding this was merely "submission to a claim of lawful authority."
And in State v. Woods, the court gave the State as big a smackdown as I've seen, affirming the grant of a motion to suppress in a case involving an obviously bogus inventory search, noting,
This is a classic example of a police officer's intentional use of an unlawful traffic stop, under a questionable codified ordinance, for the sole purpose of conducting a fishing expedition for evidence of another crime, and a tailored script at the motion to suppress hearing to justify the stop and subsequent searches.
Comments