What's Up in the 8th
Imagination, and even a minimal logical process, eluded Larry
Ellis. The police arrived in response to
the latest domestic disturbance call, and they asked Larry why his live-in
girlfriend's eye was swollen. What to
say, what to say? You could come up with
something long and involved, but that's kind of hard to do on the spur of the
moment, and nothing in the 8th's opinion in State
v. Ellis leads you to believe that Larry's a long and involved kind of
guy anyway. But all you really have to
do is come up with a brief explanation of how some other mechanism might have
caused the injury. You can go even go
with the old standby "she walked into a door."
Hey, it's worked for other guys.
So what's the best Larry can do? The sad tale is conveyed by one of the police
officers: "When asked how
she got the black eye, Ellis said she must have punched herself in the face."
Fail.
In State
v. Bloom, the court rejects Bloom's contention that the trial judge should
have held a hearing to determine if Bloom was incompetent. But didn't the court, just weeks ago in State
v. Morris, vacate a guilty plea because there was no finding of
competency? What's the diff? ("What's the diff"? Really?
What're you, twelve?) The
difference is that in Bloom, the judge
had never ordered a hearing, and the court found that there was ample evidence
of Bloom's ability to understand what was going on. So if you're a judge and you don't order an
evaluation, your decision is going to be reviewed for abuse of discretion, and it's
unlikely to be reversed unless the record indicates the defendant was wearing a
drool bucket during the plea. But if you
do order an evaluation and there isn't a journal entry making a decision on
competency, it's coming back.
State
v. Wells is another data point on the court's
work on consecutive sentencing. Wells
was given probation in a pair of felony nonsupport cases, and when a year later
he'd managed to pay only a paltry $285 toward his arrearage of nearly forty
large, the judge gave him two 11-month sentences and ran them consecutively.
Whether consecutive sentences were
proper is the issue, and the law is simple:
In order to impose consecutive sentences, the judge must first find that
they're necessary to protect the public or punish the offender, and that they
aren't disproportionate to the seriousness of the conduct or the danger to the
public. He then has to make one of three
additional findings: the offense was
committed while the offender was on bond, probation, or some sort of
supervision, the defendant's criminal history shows consecutive sentences are
necessary, or that the harm of the multiple offenses was so great or unusual
that a single prison term would adequately reflect the seriousness of the
conduct.
Here's what the judge said in
imposing the consecutive sentences:
Now, I've issued consecutive sentences here and these are discretionary consecutive sentences. I believe that the harm was so great or unusual that a single term would not adequately reflect the seriousness of the conduct of the defendant.
The rearage [sic] amount here is $38,992.58. You know, I spent 24 years in domestic relations law prior to becoming a judge and that is as high as any number I ever heard before. I put you on community-control to give you an opportunity and you've paid only $285. You haven't cooperated in any way of any substantial manner except completing a class. You failed to submit to drug tests. Failed to show for employment programming. So, I believe this is the appropriate sentence at this time.
The appellate court finds this is
sufficient, and it's clearly not. The
second paragraph might serve as a more than adequate explanation of why Wells
should be deemed a probation violator, but it has nothing to do with why he
should get consecutive sentences. There's
nothing whatsoever even addressing the first finding, seriousness of the
conduct, danger to the public, and proportionality of the punishment, let alone
making findings on them.
This represents an unfortunate
retreat from the 8th's previous decisions in this are, which have usually held
that the judge must make the specific findings.
Wells may certainly have deserved consecutive sentences, but the
procedure we have set up for determining that does not include the appellate
court deciding it. You can debate
whether the judge has to do more than just make findings, but he at least has
to do that, because that's what the law says.
Appellate review of consecutive sentences is enough of a mess without
blurring the one bright line there is.
But what the appellate court
giveth to the State in Wells, it
taketh away in State
v. Curlee-Jones. A few weeks
back I told
you about State
v. Jones, a case in which, according to Jones and his witnesses, the
police roughed him up, and according to the police, they restrained him because
he was acting crazy. Curlee-Jones is
Jones' mother, and she arrived at the scene in a car, with a passenger who
seemed to be taking video of the donnybrook on a cell phone. One of the officers decided that the phone
constituted evidence, and demanded it be turned over. The passenger gave the phone to Curlee-Jones,
who stuffed it down her shirt and started to drive away. That ended with her being dragged from the
car and being tasered. (The police
eventually retrieved the phone; it didn't have video capability.)
Curlee-Jones is convicted of
tampering with evidence, two counts of assaulting police officers, and one of
resisting arrest, but by the time the panel gets done, only the last
survives. The tampering charge goes away
because, well... Curlee-Jones wasn't trying to "conceal" the cellphone, she was
merely trying to keep the police from getting it, and she did this in "plain
sight" of the police. The assault
charges are based upon the police claims that Curlee-Jones was swinging her
arms and kicking the officers. But that,
the court decides, was "part and parcel" of the resisting charge, and there is
no evidence that Curlee-Jones did this "knowingly to cause harm to the
officers."
When Jones came down, I said I could understand the court's sustaining his convictions for assaulting a police officer and resisting arrest -- the officers' testimony was sufficient for that -- but suggested that from my jaundiced and admittedly biased perspective, I had a "sneaking suspicion that Jones' method of assault was to repeatedly strike the police officers in their fists with his face." I think this panel had some serious questions about the "official" version, too. There's not supposed to be such a thing as jury nullification, but every lawyer knows there is. And sometimes there's such a thing as appellate nullification, too.
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