What's Up in the 8th
One of the nice things about doing this blog is that I learn
a lot of stuff. Just this week, for
example, I learned something I didn't know about inventory searches, what
pretrial motion rulings a guilty plea will waive, and which ones it won't, and
that I probably want to stay away from something called Four Loko.
That latter tidbit comes via State v. Hudson, an appeal from a
denial of a petition for post-conviction relief based on the shortcomings of
trial counsel, one of which was the "failure to investigate and present the
unusual effects of Four Loko." That went
nowhere, as did the other claims, but, intrigued as I always am by new information,
I not only Googled Four Loko (and you can too), I dialed up my
BFF Lexis and learned that the drink is mentioned in five Ohio cases. That doesn't seem too bad. I didn't check it out, but based on my
personal experience, I'm guessing that MD 20 20 would have generated
hits in the triple figures.
From State v. Kalinowski, we learn the
value of patience. Hardly a week goes by
that I don't see a case where some poor rummy files a "motion to correct void
sentence" from prison, claiming that post-release controls weren't properly
imposed in his case. He's told that
since State v. Fischer, only the
portion of the sentence dealing with PRC is void; the net result is that he's
hauled back before the trial judge, who does PRC right this time, The End. But not Kalinowski. He was sentenced to 10 years in prison after
pleading guilty to 36 rapes (no, that's not a typo) back in 2002. The judge didn't say anything about PRC
during the sentencing, and the only thing in the journal entry was a statement
that "postrelease control is a part of this prison sentence for the maximum
period allowed," which was good enough back then, but then so was Lindsey
Lohan's acting career. Kalinowski
carefully bides his time, waiting until his prison sentence is over before
filing a motion to terminate PRC. It
wasn't properly imposed, and you can't impose it once the defendant has
finished his prison sentence, so Kalinowski no longer has to spend the next
five years with The Man looking over his shoulder.
State v. Hullum teaches a lesson
about inventory searches. The police
stop Hullum for hit-skip, tow the car to the station for impoundment. An inventory search of the trunk reveals a backpack,
and the police look inside and find drugs.
The law is that the police cannot open closed containers they come
across during an inventory search unless there is a standardized policy or
practice specifically governing the opening of such containers. The
policy doesn't have to be written, but more is required than the officer's
testimony that he always opened them.
That's all the State has here, and the evidence gets tossed.
From State v. Brusiter we learn something we should've already
known: a guilty plea constitutes a
waiver of any claims regarding pretrial motions, like a motion to
suppress. Brusiter argues that the
trial judge had a duty to inform him of that effect, but there's no law to
support that. There's plenty of law to
support the idea that the defense lawyer has the duty to know that and inform
the defendant, and the case should more properly have been brought as a
petition for post-conviction relief, alleging ineffective assistance of
counsel. Like Kalinowski, Brusiter's a smart
guy, too, because I checked the docket, and that's what he did. That's still pending, so we'll see how it
turns out. Of course, that depends upon
him showing that his attorney didn't tell
him about that, and that's another story.
State
v. Kutkut presents a plethora of lessons. In
July of 2004, Jason Horvath was found dead of a gunshot wound, and a year
later, the police charged Kutkut and a few others with his death. A few days after Horvath's death, though, Kutkut
had left the US for Jordan. In 2009, he
was arrested in Turkey by Interpol, based on the outstanding warrant from the
US. It took two years to get him
extradited from Turkey, and he ultimately pled guilty to involuntary
manslaughter and aggravated robbery.
He appeals from his conviction and 23-year sentence, arguing
that his speedy trial rights were violated by the delay between the time he was
picked up in Turkey and the time he was brought over here. Hold it, you say: didn't you just tell us that a plea of guilty
waives any pretrial rulings? Well, yes,
but here's today's lesson: while it waives
a claim based on his statutory right,
it doesn't waive one based on his constitutional
right. And so the court plunges into
the four-step analysis required by Barker
v. Wingo. The first is the length of
the delay; one year is presumed prejudicial, so Kutkut wins that round.
From there, it's all downhill, though. The third factor is the defendant's assertion
of the right, and the fourth is the prejudice to him; Kutkut makes no argument
as to the latter, and his argument on the former is simply that he told the
Turkish authorities at one point that he'd like to go back because of the
deplorable conditions of Turkish jails, something I did not need to read this case to learn.
That leaves only the second factor, the reason for the
delay. Here's where I learn something
else: there's such a word as "fugitivity,"
which can be considered in determining this factor. The court's opinion here isn't entirely clear
on the degree to which this can be considered, but that's largely because the
law is muddled: you can find cases
saying that fleeing the country waives the right to speedy trial, and others
saying that it's only a factor to be taken into consideration. In any event, Kutkut fought extradition, and
it appears that the American authorities took the reasonable steps necessary to
bring him back, so that's that.
One other thing to be
learned from Kutkut: don't rely on courts to tell you which
countries have an extradition treaty with the US. The opinion says that Jordan doesn't, but
according to the State Department, it does.
If you're intent upon getting beyond the long arm of The Man, you might
want to start by checking
here.
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