ICR 25(a) Reinstated

The Supreme Court has reinstated, effective 1/1/2011, the rule which permits a party to disqualify a judge without cause. Here's the Order: http://www.isc.idaho.gov/ICR_25a_Order.pdf.

Back to Back Riders are Not Authorized and More on When to File a Notice of Appeal in Rider Cases

The Supreme Court dismissed an appeal as untimely when the defendant filed his Notice of Appeal after the District Court relinquished jurisdiction after an illegal second rider.

In State v. Urrabazo, the District Court sent the defendant on a rider, then relinquished jurisdiction but then immediately ordered a second consecutive period of retained jurisdiction on that same day. The District Court relinquished jurisdiction again at the end of the second rider and the defendant filed a notice of appeal. The Supreme Court held the notice was untimely because it was not filed within 42 days after the District Court put the defendant on the second rider!

The Supreme Court reasoned that I.C. § 19-2601(4), which permits an additional period of retained jurisdiction "after a defendant has been placed on probation," did not permit Urrabazo's second rider. It held that "I.C. § 19-2601(4) requires that a defendant be placed on probation and subsequently be found to have violated the probation before a district court may order a second period of retained jurisdiction[.]" Accordingly, the District Court had no subject matter jurisdiction to order the second rider. Consequently, the Defendant should have filed a notice of appeal within 42 days after being sent on the second rider.

I'm not sure how Mr. Urrabazo was supposed to know this since the District Court didn't know it couldn't send him on a second rider. But the Supreme Court dismisses this concern in a footnote, stating that "[w]hile it is unfortunate that the district court misread the statute and possibly mislead Urrabazo about its application" Urrabazo "provides no authority for the proposition that the filing deadline should be extended under circumstances where the statute in question clearly discloses the orders he relies upon on to be void for lack of subject matter jurisdiction."

In a similar case, the Court of Appeals recently dismissed an appeal from an order relinquishing jurisdiction, again for an untimely notice of appeal.

In State v. Ward, the defendant was sent on a rider. The District Court lost jurisdiction after 180 days but did not hold a rider review hearing until the 188th day. The notice of appeal was filed 42 days after the hearing but 50 days after the District Court lost jurisdiction. Thus, the notice of appeal was untimely.

This problem could have been avoided had the attorney filed the notice of appeal right after the rider review hearing instead of waiting the entire 42 days. There is no reason to wait the entire time if you know you're going to file a notice of appeal. Further, I guess we now need to calendar the Notice of Appeal for no later than 222 days (180 + 42) after our client is sent on a rider, unless, of course, he is sent on one of the new 360 day riders.

To read the Urrabazo opinion: http://www.isc.idaho.gov/opinions/URRABAZO%2033459.pdf

To read the Ward opinion: http://www.isc.idaho.gov/opinions/ward37265.pdf

You Can't Steal Something From Someone Who Doesn't Own It.

That self-evident proposition was reaffirmed in State v. Bennett, wherein the Court vacated a conviction for grand theft. The tricky part was figuring out who was the owner.

Bennett purchased a travel trailer from LeFave, then moved out of state with the trailer but without fully paying for it. Bennett and LeFave had an agreement that Bennett could take possession of the trailer and would make payments. LeFave, however, did not keep a security interest in the trailer. Bennett was later charged with grand theft under I.C. §§ 18-2403(1) and 18-2407(1)(b) and with being a persistent violator. A jury found Bennett guilty of grand theft and he later pleaded guilty to the persistent violator allegation.

The Supreme Court vacated the conviction. It reasoned that in order for Bennett to have committed the crime, "LeFave must have been the 'owner' of the trailer" because I.C. § 18-2403(1) states that: "A person steals property and commits theft when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof." (Emphasis in original.) An "owner" is "any person who has a right to possession thereof superior to that of the taker, obtainer or withholder." Therefore, the State was required to prove LeFave had a possessory right in the trailer superior to Bennett's right to possess.

However, since LeFave delivered the trailer to Bennett without retaining any legally supported secured interest, it was Bennett who had the superior possessory right. Thus, LeFave was not the "owner" of the trailer under I.C. § 18-2403(1) and the evidence was insufficient to convict. As an added bonus, the persistent violator conviction was also vacated.

This case is a good reminder to not assume anything when you're putting together a defense. Interestingly, the defense at trial was different from the Supreme Court's reasoning. Bennett argued that there was insufficient evidence that the amount owed on the trailer was over $1000, thus conceding a petit theft. (Luckily, the sufficiency claim was reviewable on appeal even under State v. Perry because Bennett's unwaived constitutional right to have the state prove every element of the offense beyond a reasonable doubt was plainly violated.)

Congratulations to Heather Crawford and Sara Thomas from SAPD!

The opinion is here: http://www.isc.idaho.gov/opinions/Bennett%2036678.pdf

Substitute Opinion in Perry

In October I asked the question What Does "Shall Not Be Given Retroactive Application" Mean?, wondering what that phrase in State v. Perry meant. Perry, you might recall, is the case which makes it more difficult to successfully raise unobjected to errors on appeal. (In short, the Court held that "where an error has occurred at trial and was not followed by a contemporaneous objection, such error shall only be reviewed where the defendant demonstrates to an appellate court that one of his unwaived constitutional rights was plainly violated. If the defendant meets this burden then an appellate court shall review the error under the harmless error test, with the defendant bearing the burden of proving there is a reasonable possibility that the error affected the outcome of the trial.")

My question was answered in the substitute opinion issued in Perry last week and it turns out that no retroactive application means that the "clarified standards shall be applied to all cases not yet final on direct review." So, if your case is on direct appeal, the "clarified standards" apply even if your case was completed in the district court before Perry was decided.

To read the substitute opinion click here: http://www.isc.idaho.gov/opinions/PERRY%20SUB2%2012-7.pdf.

State v. Ciccone - Notice of Appeal

In the third criminal case of the day, the Supreme Court dismissed Albert Ciccone's appeal from two murder convictions because the notice of appeal was untimely.

The District Court pronounced sentence on June 7, 2005, but the filing stamp bore a handwritten notation of May 7, 2005. On June 21, 2005, having noticed the discrepancy, the District Court entered an amended judgment. Forty-two days later, Mr. Ciccone's notice of appeal was filed.

The Supreme Court dismissed the appeal as untimely holding that the time for appeal began on June 7, 2005. The Court wrote that a party cannot complain of prejudice due to the lack of notice that the 42-day window for appeal had begun unless both 1) the clerk cannot prove it served the document and 2) the party did not actually know that a final judgment had been entered. Here, even though the judgment bore the wrong date, a copy of it had been served on counsel on June 8.

The lesson: File the notice of appeal sooner rather than later because the 42-day window for appeal begins to run as soon as the judgment is entered -- even if the judgment contains errors that will later have to be corrected. It is not difficult to withdraw an appeal that the client later decides was ill-advised. It is impossible to file a late appeal.

Busy Day at the Court

The Court issued seven (!) new opinions today (and one substitute opinion), including three criminal cases.

In State v. Ruiz, the district court would not permit the defendant to cross-examine a codefendant about the mandatory prison sentence he avoided by agreeing to testify for the State. The Supreme Court held that the lower court erred by not conducting the analysis required by IRE 403 and vacated the conviction.

Morrison and Ruiz were both charged with trafficking in methamphetamine. Morrison agreed to testify against Ruiz in exchange for a reduction in the charge against him to delivery of a controlled substance, thus avoiding the three year mandatory minimum sentence. The State agreed to recommend probation if Morrison testified truthfully. During Ruiz’s trial, the prosecutor, outside the presence of the jury, stated that there should not be any mention of the mandatory minimum that Morrison avoided and the district court limited Ruiz's cross-examination in that way.

The Supreme Court found the district court erred. First, it noted that the district court found that evidence of the mandatory minimum was relevant and thus presumptively admissible under IRE 402. It then noted that relevant evidence may be excluded under Rule 403. "To exclude evidence under Rule 403, the trial court must address whether the probative value is substantially outweighed by one of the considerations listed in the Rule." However, "[t]he district court here did not conduct that analysis. It merely said, "You can’t talk about minimum mandatories." It concluded that "[b]ecause it excluded the evidence without conducting the analysis required by Rule 403, the district court erred."

Because it vacated the conviction under IRE 403, the Court did not reach Ruiz's claim that his right to confront witnesses was violated.

This case may be helpful to us because it suggests the Court must do the 403 weighing on the record. That only makes sense because a mental weighing of 403 factors is not reviewable on appeal. What's more, on the record weighing will lead to fully thought out and hence better decisions by the trial courts.

State v. Ruiz, http://www.isc.idaho.gov/opinions/Ruiz%2036514.pdf

In State v. Moore, the Court held that the district court did not have authority in a criminal case to direct the Idaho Department of Correction to return a presentence investigation report.

Moore filed a post-conviction petition under Estrada v. State and got his sentence vacated. Before the resentencing, Moore asked the district court to order the IDOC to return its copy of the first PSI to keep it from being taken into account when Moore was considered for parole. The district court denied the request holding that it did not have the authority to do so.

The Supreme Court agreed. It noted that while IC § 20-237 requires that "a copy of the presentence investigation report, if any, . . . shall be delivered into the custody of the director[,]" it does not "grant the court authority to demand the return of a PSI." In response to the argument that the Court Rules gave the district court authority, the Court stated that the separation of powers clause of the Idaho Constitution (Article II, § 1), would prohibit the Court from directing the IDOC, who was not a party to the case, to take an action under a Court Rule. "This Court has no authority to determine the Department's record retention policies." Thus, it held that the district court did not err.

The Court went on to note, however, that "[i]f Moore contends that the Department's consideration of some of the information would violate his Fifth Amendment Rights, he can address that matter with the Department."

State v. Moore, http://www.isc.idaho.gov/opinions/Moore%2036578.pdf

We'll put up a post on the third criminal case later today. In the meantime, here's a link:
State v. Ciccone, http://www.isc.idaho.gov/opinions/Ciccone%2036877.pdf

Tonight on Frontline

The PBS program Frontline has a show on tonight about the Norfolk Four.

You might remember that four sailors stationed in Norfolk, Virginia, falsely confessed to the rape and murder of the wife of another sailor. The sailors and experts explain that high-pressure police interrogation techniques led them to falsely confess. It's also a story of police and prosecutorial misconduct because the State wouldn't back off the prosecutions even after the only suspect who left DNA evidence at the crime scene confessed and told the police he did it alone, a scenario which fit the rest of the forensic evidence.

False confessions are real and are a real problem for defense attorneys. Most potential jurors believe that they would never confess to a crime they didn't commit and it's our job to overcome that mindset. This show might give us some ideas on how to do that.

Three Arguments Today

The Court hears argument in three criminal cases today.

State v. Robert W. Skurlock: Thirty-two or thirty-three minutes after sunset on February 27, 2009, the Sandpoint Police executed a "daytime"search warrant on Robert W. Skurlock’s motel room and found some marijuana. The court denied the subsequent motion to suppress, relying on State v. Burnside, 113 Idaho 65, 741 P.2d 352 (Ct. App. 1987), which defines "daytime" as the period from "dawn to darkness where darkness is the point at which insufficient natural light exists with which to distinguish another’s features."

On appeal, Mr. Skurlock argues that Burnside should be overruled. Instead, he asks the Court to adopt the bright-line standard in State v. Simmons, 866 P.2d 614 (Utah App. 1993), which prohibits "daytime" warrants from being served one-half hour after sunset to one-half hour before sunrise.

State v. Walter E. Moore: Mr. Moore was granted a new sentencing hearing for the crime of L&L after a successful post-conviction Estrada claim. Before the resentencing, he asked the court to order that the original PSI and psychosexual evaluation be removed from his IDOC files. The district court denied the motion believing it had no authority to grant the motion.

Mr. Moore argues on appeal that the district court had the authority to remove the reports and evaluation from the IDOC files. He also argues that his sentence of life with thirteen years fixed should be vacated or modified.

State of Idaho v. Jim Howard, III: A jury found Mr. Howard guilty of DUI, but the district court judge found him not guilty of the felony enhancement because it excluded proof of one of the two prior convictions, a California conviction, for not satisfying the state and federal requirements for full faith and credit under I.C. § 9-312 and 28 U.S.C. § 1738. The State appealed, arguing that the California judgment should have been considered because it was admissible under the Rules of Evidence.

The Court of Appeals dismissed the appeal as barred by double jeopardy. The Supreme Court granted review of both the full faith and credit and the double jeopardy issues.

Challenge to Validity of Charge Waived by Failure to Raise in District Court.

Here's the latest Supreme Court case refusing to consider an issue because it was not raised below. State v. Luis Pierce, http://www.isc.idaho.gov/opinions/State%20v.%20Pierce%20-%20FINAL.pdf. In Pierce, the appellant pleaded guilty to an information charging sex abuse of a child under sixteen (pulling down the panties of a four year old and having a look) and was placed on probation. He later admitted to a violation of that probation. The district court revoked and imposed the suspended sentence.

On appeal, sharp-eyed counsel noticed that the prosecutor made a passing reference to presenting the case to the grand jury. When she was offering photographs as a supplement to the presentence report, the prosecutor stated "These were shown to the grand jury as well." Appellate counsel then challenged the subject-matter jurisdiction of the district court under Article I, § 8 of the state constitution which provides, in part, "[t]hat after a charge has been ignored by a grand jury, no person shall be held to answer, or for trial therefor, upon information of the public prosecutor."

The Court, however, declined to reach the issue because there was no challenge to validity of the information made in the district court. In resolving the issue this way, the Court found that a violation of the above constitutional provision did not deprive the district court of subject-matter jurisdiction. Otherwise, the Court would have had to reach the issue as subject matter jurisdiction can be raised "at any time, including for the first time on appeal." State v. Rogers, 140 Idaho 223, 227, 91 P.3d 1127, 1131 (2004). The Court wrote that "under our current rules of criminal procedure, the appropriate course of action in cases wherein a grand jury has ignored the charge and returned a not true bill is for the defendant to move for dismissal pursuant to I.C.R. 12(b). The failure to do so constitutes a waiver of the issue in the criminal action."

This part of the opinion is concerning. Defense counsel couldn't have had an inkling that the case had been presented to the grand jury until the prosecutor made the comment about the grand jury at sentencing. But motions under I.C.R. 12(b) must be "raised before the trial[.]" So, defense counsel is required to find out whether the prosecutor submitted the case to the grand jury in every case where the case proceeds by the filing of a complaint? I assume the late disclosure in this case amounts to "excusable neglect" which permits the court "to relieve the party of failure to comply with this rule" under 12(d). But if this ever happens to me, I'm going to file a Rule 12(b) motion and a motion to withdraw the guilty plea under Rule 33(c).

Free Money for PDs!

If you're a public defender who is still paying back student loans, take a look at this website (http://www.uidaho.edu/law/jrjgrant/guidelines) and see if you can get some repayment help from the feds. According to the site: "The [Idaho/John R. Justice] Program provides educational loan repayment benefits to prosecutors and public defenders in Idaho (ID), using funding from the John R. Justice (JRJ) Program. The purpose of the program is to encourage qualified attorneys to choose careers as prosecutors and public defenders and to continue in that service."

It looks like those selected can get up to $6,000 a year and up to $60,000 in total lifetime benefits. In return, you must agree to “remain employed as a prosecutor or public defender for a period of service of not less than three years (36 months) unless involuntarily separated from employment.” (Emphasis added.) That's a good deal.

See #32 in my recent book "51 Good Reasons to Get Fired." Get your ID/JRJ money, tell your boss to shove his/her caseload, get involuntarily separated and then open up that lucrative private law practice you've been dreaming about. It worked for me, except for the lucrative part and the part about telling my boss to shove it. Actually, I didn't get any money from the feds either. But I have most definitely been involuntarily separated.

What Does "Shall Not Be Given Retroactive Application" Mean?

Last July the Court issued State v. Perry which changed the standards employed by Idaho appellate courts in analyzing trial errors for fundamental error and harmless error. The new standards make it more difficult to prevail on appeal without an objection below. See SCOIDBlog for Thursday, July 22, 2010: State v. Perry -- Restatement of Appellate Standards of Review.

There was a small silver lining in the opinion. It appeared that the new rules would be given prospective application only. I say "appeared" because the Court said "[t]his restatement shall not be given retroactive application," but then applied the new standards to Perry's case. This left me wondering: Is Perry retroactive or not? That question bothered Mr. Perry so much that he filed a petition for rehearing.

Today we found out the Court is going to apply the rule retroactively, notwithstanding its statement above, at least until the petition for rehearing in Perry is decided.

In State v. Longest, the appellant argued that the State had breached the plea agreement. Unfortunately, trial counsel had not objected at the time of the breach. Undeterred, Mr. Longest argued that it could be considered for the first time on appeal under the pre-Perry fundamental error doctrine. The Court, however, applied the new Perry standard and stated that "Longest's claim of error does not pass muster under Idaho's fundamental error doctrine and will not be reviewed for the first time on appeal."

So, if Perry applies to cases tried before Perry was decided, what does the Court mean when it says that Perry shall not be given retroactive application? Does it mean that Perry does not apply to cases where a post-conviction petition has been filed? I don't think so. How could a new rule of appellate review apply to a post-conviction case pending in the trial court? Moreover, Perry is unfavorable to defendants/appellants so why would a post-conviction petitioner seek retroactive application? To my mind, the Court's statement in Perry cannot be squared with its application of the new rules in these cases.

I'm hoping that the Court grants Mr. Perry's petition for rehearing and makes it clear that Perry does not apply to cases decided in the district court prior to the issuance of that opinion.


To read State v. Longest: http://www.isc.idaho.gov/opinions/Longest%20opinion.pdf
To read State v. Perry: http://www.isc.idaho.gov/opinions/Perry.pdf

Judge's Ruling Admitting Highly Prejudicial Evidence The Week Before Trial Did Not Require Continuance Where No Specific Prejudice Was Shown.

The Court has affirmed the first-degree murder conviction of Donna Thorgren. This case presented the question of whether the trial court abused its discretion in denying a motion to continue a trial when it changed its mind about the admissibility of highly inculpatory evidence a week before it was set to start.

Donna Thorngren was charged by the grand jury with murdering her husband. Her son, Austin, was indicted as an accessory. The cases were severed for trial because the State wanted to introduce a statement the son made to his friend. According to the Court: "The statement occurred after a conversation between Donna and Austin in a shed outside Donna's mother's home on the day Curtis was murdered, but before his body was discovered. Ketterling entered the shed shortly after Donna left and found Austin visibly shaken. When Ketterling asked Austin what was wrong, he said 'I think my mom did it.' "

At the motion to sever, the court said that the statement "would not be admissible as against Donna."

One week before trial, the district court changed its ruling and held that the statement would be admissible as an excited utterance. Donna filed a motion for continuance arguing the changed ruling impaired her trial strategy. The motion was denied by the district court. Donna was convicted.

On appeal, she argued that: 1) the statement was not an excited utterance; 2) her right to due process was violated when the court changed its ruling only a week before trial; and 3) the court should have granted the motion to continue.

The Court rejected all three arguments. It first held that the court did not abuse its discretion in admitting the statement even though it was made in response to a question and not a spontaneous statement. "The question in this case does not undermine its spontaneity because Ketterling asked a[n] . . . open-ended question ('what was wrong') to which Austin briefly replied 'I think my mom did it.' Because the question was not specific or leading, and because Austin's response was brief and made while emotionally unsettled, the statement does not lack spontaneity or bear other indicia of reflective thought."

Second, the Court found that Donna's reliance on the pretrial ruling was not justified thus her due process rights were not violated when the court changed its mind. It explained: "The district court's initial 'ruling' on the shed statement merely served as a backdrop for its determination of the motion to sever the trials, and was not a definitive ruling on the ultimate admissibility of the shed statement." It stated that "[b]ecause the pretrial ruling in this case was not definitive on the issue of the admissibility of the shed statement, but rather concerned whether Donna and Austin should be tried separately, Donna was not in a position to 'sensibly rely' on the definitiveness of the ruling[.]" "Moreover," it continued, "even if the district court did definitively rule on the admissibility of the shed statement, a party must be mindful of a court's discretion to change its own pretrial rulings, especially evidentiary rulings."

Third, the Court found that Donna did not demonstrate that her substantial rights were prejudiced by the denial of the motion to continue. The only specific argument made in support of the motion was that counsel had not sufficiently prepared to impeach Ketterling's testimony. "However, Ketterling was thoroughly impeached at trial, which supports a finding of no prejudice" and, "Donna's failure to raise and pursue the issue immediately after her conviction and before sentencing, provides additional assurance that Donna suffered no prejudice as a result of this ruling."

Here's a link to the opinion. http://www.isc.idaho.gov/opinions/Thorngren%20opinion.pdf

Wednesday at the Court

The Court hears two criminal law appeals today.

The first is State v. Gary Hartwig. This is a case about whether certain amendments to the Sex Offender Registration Act can be applied retroactively.

In 1991, Hartwig pleaded guilty to one count of L&L. He was sentenced to ten years with five years fixed. The sentence was suspended and he was placed on probation. In 1998, Hartwig’s probation was terminated and his case was dismissed. In 2006, Hartwig petitioned the district court to be released from the sex offender registry.

In 2001, however, the Sex Offender Registration Act was amended to designate certain crimes as "aggravated offenses," including L&L. An offender convicted of an aggravated offense may not be removed from the sex offender registry. The court found that the 2001 amendments applied to Hartwig and that he was ineligible for release from the registration requirements even though Hartwig pleaded guilty in 1991.

Hartwig argues on appeal that the 2001 amendments cannot apply to him under a) Idaho’s retroactivity law; b) the state and federal prohibitions on ex post facto laws; c) due process guarantees; and d) the Contracts Clauses of the State and Federal Constitutions.

It would be unjust to apply the 2001 Amendments retroactively to Hartwig. He entered into a plea agreement with the State where he was permitted to petition for removal from the sex offender registry. The State can't take away in 2001 what Hartwig paid for in 1991 with his guilty plea. By the way: Changes which help criminal defendants are never applied retroactively. See e.g., Rhoades v. State, where the Court held that Ring v. Arizona did not apply to death row inmates whose direct appeals were over before Ring was decided.

The second case is State v. Mario Ruiz. This case presents an important question about the scope of defense cross-examination of the State's cooperating witness.

Ruiz and Josh Morrison were both charged with trafficking meth and delivery of meth. The trafficking charge had a three-year mandatory minimum sentence. In exchange for his testimony against Ruiz, the State dismissed the trafficking charge against Morrison and he was allowed to plead to the delivery with a probation recommendation.

At trial, Ruiz's attorney tried to cross-examine Morrison about the benefits he was getting for his testimony. The district court allowed Ruiz to establish that Morrison’s trafficking charge had been dismissed and that the State was going to recommend probation, but was not permitted to ask questions about the three-year mandatory minimum prison sentence. The court stated that it did not want the jury to know of the penalty if Ruiz were to be convicted.

Ruiz argues on appeal that he had a right to cross-examine about Morrison avoiding the mandatory minimum sentence under both the Confrontation Clause and the Rules of Evidence.

If we can't fully cross-examine the informant about his deal, most of the fun of being a trial attorney has been taken away from us. (State v. Perry already took away what little fun appellate attorneys were allowed to have.) There's no doubt in my mind that this is a Confrontation Clause violation. The only question is whether the State can prove that the error was harmless beyond a reasonable doubt.

Friday at the Court

The Court heard argument in three civil cases yesterday and have three more scheduled for today. There is one criminal case on the Friday docket and it's an important one. State v. Torey Adamcik involves a 16 year old who was convicted, along with another teenager, Brian Draper, of the first-degree murder of a classmate. Despite a total absence of any prior record, Torey was sentenced to life imprisonment without the possibility of parole. [Disclosure: I am one of Torey's attorneys.]

The sentence is challenged on appeal as is the sufficiency of the evidence at trial. There is also a Miranda issue, a prosecutorial misconduct issue and challenges to the district court's jury instructions.

On the Road Again (Or Not)

The Court is on the road for the rest of the week. It hears arguments in Idaho Falls today and tomorrow then moves to Pocatello on Friday.

Today the Court hears argument in three civil cases. The first involves a dispute over a Warranty Deed and a repurchase agreement. The last is a parental termination case. The middle case (In the Matter of the License Suspension of Steven M. Wanner), may be of interest to SCOIDBlog readers.

In that case, Steve Wanner was stopped on suspicion of DUI. He failed two breath tests and was given the standard Notice of Suspension form, including the part which informs the driver that an administrative hearing must be requested within seven days. Wanner's request was filed outside the seven days and the Idaho Department of Transportation denied the request as untimely. Wanner appealed to the district court. The court found that the Notice did not provide sufficient notice regarding the effect of the suspension on his commercial driving privileges. It wrote: "Due process requires that drivers with CDLs, who are driving non-commercial vehicles at the time of suspension, be given notice of the impact of I.C. § 49-335(2) and its one year disqualification in the Notice of Suspension." The court excused the untimely filing and, presumably, vacated the suspension.

The IDOT appealed the district court’s determination and argues that the district court lacked jurisdiction because Wanner failed to timely request a hearing and that the standard notice provided sufficient notice to Wanner.

Post-Labor Day Pickup?

It was a quiet August at the Court. No criminal opinions were issued. But with Labor Day in the rear view mirror, I expect things will really start to pick up.

The Court did hear argument in three criminal cases in August, so stay tuned. One of the cases, State v. Ethan Windom, is a challenge to the Life Without Possibility of Parole sentence Judge Copsey imposed on a sixteen year old who killed his mother. According to the Court: "Before sentencing, two doctors both diagnosed Ethan with paranoid schizophrenia and opined that the murder was a product of his mental illness. They each concluded that Ethan was a good candidate for rehabilitation. The district court nonetheless sentenced Ethan to a fixed-life sentence with no possibility of parole, the maximum available." Hopefully, the Court will do something to correct this sentence. There are at least two other juvenile LWOP cases before the Court including State v. Torey Adamcik, which will be argued this month.


In addition to Adamcik, the Court has a full slate of oral arguments in September. The Court has already heard argument in two criminal cases including State v. Albert Ciccone, a murder case where the Court of Appeals dismissed the appeal finding that the Notice of Appeal was not timely filed. And this in a case where Judge Wetherell imposed a fixed-life sentence. (Geez, what is it with the Ada County District Judges and LWOP sentences?)

While the Supreme Court has accepted review in Ciccone and may allow the appeal to proceed, it's worth noting that there is no reason to hold off filing a Notice of Appeal. There is no advantage in waiting until the last minute but a late notice waives your client's right to appeal and practically guarantees a post-conviction petition being filed against you.

Also, the Court has issued revised criminal jury instructions. You can find the revised packet at
http://www.isc.idaho.gov/idaho_courts_e.htm. In particular, the Court has substantially revised ICJI 103, the burden of proof/reasonable doubt instruction by omitting the "moral certainty" language. Reasonable doubt is now defined as:

"A reasonable doubt is not a mere possible or imaginary doubt. It is a doubt based on reason and common sense. It may arise from a careful and impartial consideration of all the evidence, or from lack of evidence. If after considering all the evidence you have a reasonable doubt about the defendant's guilt, you must find the defendant not guilty."

This strikes me as a pretty tepid definition of reasonable doubt and it's not much help to a juror to start out by saying what reasonable doubt "is not." That undermines the importance of the requirement, in my view. Even worse, the Court eliminated the alternative reasonable doubt instruction, 103A, which used the "hesitate to act" language that I preferred.

One Thumb Up. One Thumb Down

The Court issued two more criminal cases today. One with a favorable result for the defense and the other. . . .

First, the good news. The Court reversed the denial of a motion to suppress in State v. Frederick, http://www.isc.idaho.gov/opinions/State%20v%20%20Frederick%20-%20FINAL.pdf. In Frederick, the state conceded that the search was illegal under Arizona v. Gant, but argued that a "good-faith" exception should apply because the search was conducted prior to the issuance of Gant. The Court rejected the state's argument in this case, while holding out the possibility of applying the good-faith exception under different facts. The Court wrote:

"It is our view that retroactivity rules do not preclude application of the good faith exception when an officer relies on case law. We note, however, that the Supreme Court has emphasized that the good faith described in United States v. Leon 'must be objectively reasonable.' The burden of proving that such objectively reasonable good faith reliance existed is on the State. In this case, the State has failed to meet that burden." (Internal citations and parenthetical phrases omitted.)

The Court also held that Mr. Frederick had not preserved his state constitutional claim for appeal because he failed to mention the claim in his argument before the district court, did not cite to any authority expressly mentioning the state constitution, and did not obtain a ruling on the issue from the district court.

And speaking of not preserving an issue for appeal, the Court found in Kelly v. State that a pro se petitioner had waived his claim that he had not received adequate notice before his post-conviction petition was dismissed. In doing so, the Court reiterated the rule in DeRushé v. State that "an appellant may not challenge the sufficiency of the notice contained in the state's motion for summary disposition, and accompanying memoranda, for the first time on appeal." It also rejected Kelly's argument that he had not received any notice of some claims as not supported by the record.

The most useful part of the opinion for practitioners appears in a footnote where the Court says:

"To properly preserve this issue for appeal, an applicant would merely have to raise the issue below so that the district court had an opportunity to rule on it. For example, where the petitioner for post-conviction relief receives a motion for summary dismissal and does not feel that the motion for summary dismissal and accompanying memoranda provides him with sufficient notice of the grounds for summary dismissal - under the standard established in DeRushé - he may file a motion with the district court under I.R.C.P. 7, objecting to the motion for summary dismissal on the basis that it fails to provide him with sufficient notice. Likewise, the petitioner could object to the sufficiency of the notice at the summary dismissal hearing before the district court. Finally, if the district court grants the State's motion for summary dismissal, the petitioner may file an I.R.C.P. 11 motion for reconsideration, citing to DeRushé and arguing that the State's motion and accompanying memoranda did not provide sufficient notice."

Unfortunately, Mr. Kelly never asked for an attorney to represent him at the district court and his petition was dismissed before DeRushé was issued.

Kelly v. State, http://www.isc.idaho.gov/opinions/kelly%20opn.pdf

Court Holds Sex Offender Registration Law Does Not Infringe on Right to Travel

Richard Yeoman was convicted of rape in Washington in 1984 and was required to register as a sex offender there. He moved to Idaho in 2007, did not register and was charged with failing to register as a sex offender. He entered a conditional plea of guilty reserving his right to appeal the denial of his motion to dismiss.

Yeoman made two arguments on appeal: 1) That the sex offender registration law did not apply to him because he was convicted before July 1, 1993, the effective date of the statute; and 2) That, if the statute applies, his constitutional right to travel was violated. Today, the Supreme Court rejected both arguments.

As to the first argument, the Court wrote:

"When construing Idaho Code § 18-8304 as a whole, subsection (1)(c) is not limited to crimes for which the person was convicted on or after July 1, 1993. Subsection (1)(c) incorporates by reference "the offenses listed in subsection (1)(a) of this section." (Emphasis added). Subsection (1)(a) applies to any person who "[o]n or after July 1, 1993, is convicted of the crime, or an attempt, a solicitation, or a conspiracy to commit a crime provided for in section . . . 18-6101 (rape, but excluding 18-6101(1) . . .) . . . ." (Emphasis added.) Subsection (1)(c) does not incorporate by reference the convictions listed in subsection (1)(a); it incorporates by reference the offenses listed. The offenses are listed by reference to their respective code sections. The date of conviction for one of those offenses is not part of the definition of the crime as set forth in the code section. The date a person was convicted of a crime does not become part of the definition of the offense for which he or she was convicted. Therefore, subsection (1)(c) applies to Defendant."

As to the second argument, the Court tartly wrote that "[b]ecause [Mr. Yeoman] was required to register while residing in Washington, it is difficult to see how the requirement that he register in this State in any way infringed upon his right to travel to or become a resident of this State." It then went on to state that even assuming that the registration requirement imposed a penalty on Mr. Yeoman's right to change residence, it was still valid because it was necessary to promote a compelling state interest. i.e., the "strong interest in preventing future sexual offenses and alerting local law enforcement and citizens to the whereabouts of those that could reoffend."

State v. Yeoman, http://www.isc.idaho.gov/opinions/State%20v.%20Yeoman%20OPINION.pdf

Perry Fundamental Error Update

A substitute opinion was issued in State v. Perry on Friday. The new opinion states that in cases where a trial error was not followed by a contemporaneous objection the defendant bears the burden of demonstrating that there is a reasonable possibility that the error affected the outcome of the trial. The Court's original opinion required that the defendant demonstrate beyond a reasonable doubt that the error affected the outcome.

http://www.isc.idaho.gov/opinions/Perry.pdf

Rule Permitting Automatic DQ of Judge Suspended

Idaho Criminal Rule 25(a), which permits the disqualification of a judge without cause, has been suspended by the Idaho Supreme Court immediately. The Court in doing so stated that the rule has been used "excessively and abused so that the use of the rule should be curtailed and a study made of the possible modification or elimination of the rule."

http://www.isc.idaho.gov/links/Order-suspending-ICR25a.pdf

I don't know what the Court is seeing in its statistics, but I can assure it that I use Rule 25(a) only rarely and then very selectively.

Bujak Bank Records Held Exempt from Public Records Law

The Idaho Press Tribune is reporting that Judge Kathryn Sticklen has held that Canyon County Prosecutor John Bujak is not required to turn over financial documents relating to a contract between the prosecutor and the City of Nampa to provide prosecution services. Bob Henry had filed a public records request for the documents. The newspaper quotes Judge Sticklen as holding the records "are not documents that relate to the duties of the CPA. Rather, they are private records of Bujak under the contract with the City.”

Interestingly, the City of Nampa announced earlier this week that it would start paying contract money directly to Canyon County and not to Mr. Bujak personally.

Here's a link to today's Press-Trib article: http://www.idahopress.com/news/article_ca698946-9675-11df-b1eb-001cc4c03286.html.

State v. Perry -- Restatement of Appellate Standards of Review

The Supreme Court has changed the standards of review on appeal. In State v. Perry, issued July 8, 2010, the Court conducted an extensive review of fundamental error and harmless error in Idaho and reformulated the standards. Per Perry (which specifically is not to be applied retroactively):

On appeal, courts are to engage in the following analysis:

(1) If the alleged error was followed by a contemporaneous objection at trial, the appellate court will apply the Chapman harmless error test. Where the defendant meets the initial burden of showing that a violation occurred, the state then has the burden of demonstrating beyond a reasonable doubt that the constitutional violation did not contribute to the jury's verdict. There are 2 exceptions:

(a) Where the error is a structural defect, affecting the base structure of the trial to the point that a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, the appellate court must automatically vacate and remand.

(b) Where the jury reached its verdict based upon an erroneous instruction, an appellate court shall generally vacate and remand. However, in the limited situation where the jury received proper instruction on all but one element of an offense, and where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the verdict would have been the same absent the error, the erroneous instruction is to be found harmless. On the other hand, if a rational jury could have found that the state failed to prove the omitted element then the appellate court must vacate and remand.

(2) If the alleged error was not followed by a contemporaneous objection, it may only be reviewed under the fundamental error doctrine -- which has been changed. Fundamental error review is now a three-prong test wherein the defendant bears the burden of persuading the appellate court that the error: (1) violated one or more of the defendant's unwaived constitutional rights; (2) plainly exists; and (3) was not harmless. In determining whether the error was harmless, the burden has been moved from the state to the defense. The defendant must prove beyond a reasonable doubt that the error affected the outcome of the trial.

Perry clarifies that the same standards of review apply to claims of prosecutorial misconduct as to all other trial errors.

Perry also addresses some other issues.

With regard to IRE 412 evidence, on appeal, the court will only look at the IRE 412 hearing. The court will not review the admissibility of evidence included in the IRE 412 notice, but not specifically included in the hearing argument.

The Court also clarified the definition of "sex crime" for purposes of IRE 412(e)(2) limiting it to false allegations concerning the defendant currently on trial. IRE 412(e)(2) does not apply to false allegations involving a perpetrator other than the defendant.

Regarding Perry's claims of prosecutorial misconduct, the Court held that it is misconduct for the prosecutor to elicit vouching testimony from witnesses, but that the misconduct does not violate any constitutional rights. Likewise, there is no excuse for a prosecutor referring to improperly elicited vouching evidence in closing, but again such misconduct does not amount to a constitutional violation.

http://www.isc.idaho.gov/opinions/new%20perry%20final%20opn%204.pdf

Appellate Record Rule Updated

Appellate Rule 27 has been amended to permit the entire district court file to be scanned and submitted to the Supreme Court in CD format as the appellate record. Previously, counsel had to designate the documents to be included. However, each county has to agree to make this option available to counsel and only Ada, Kootenai, Fremont and Jerome have done so. The number of counties opting in will likely grow and the Supreme Court website will keep an up to date list.

The rule can be found at http://www.isc.idaho.gov/appell%20rule%2027.pdf

I participated in the trial of this method of preparing the record and liked it. Currently, appellate counsel needs to compare the Register of Actions to the file ordered by trial counsel and then try to determine whether everything needed is in the record. When the record needs to be augmented, the appeal can be delayed. It'll be better for appellate counsel and the Court to simply get the complete record to begin with and the CD format makes that possible. I can't speak for other appellate lawyers, but I encourage trial lawyers in the four participating counties to use this option. If others disagree, especially SAPD lawyers, please post a comment.

Ring Still Not Retroactive

The Court today reaffirmed its recent decision in Rhoades et al. v. State, 2010 WL 937272 (Mar. 17, 2010), that Ring v. Arizona, 536 U.S. 584 (2002), is not retroactive under Idaho law. Ring held that the jury must find all facts which make a defendant eligible for the death penalty. Idaho law used to allow the judges to make that determination.

State v. Fields, http://www.isc.idaho.gov/opinions/fields%202010%20final%20opn.pdf

Rhoades, you might remember, adopted the federal retroactivity rule under state law and then applied this new rule of retroactivity to the defendants and found the new rule in Ring was not retroactive.

Course of Conduct in Felony Stalking Charge May Not Include Acts Constituting Prior Misdemeanor Stalking Conviction

The Court has issued its opinion in State v. Stewart. Mr. Stewart was charged with felony stalking. The Information alleged that a prior misdemeanor stalking was part of the course of conduct constituting the felony. It also alleged that the crime was a felony because Mr. Stewart had been previously convicted of stalking. Mr. Stewart's motion to dismiss the information was denied and he entered a conditional plea of guilty. Today the Court vacated the conviction.

On appeal, the Court first noted that: "To commit the crime of felony stalking, the person must first violate section 18-7906 by engaging in a prohibited course of conduct. That course of conduct requires repeated acts of nonconsensual contact involving the victim or a family or household member of the victim." (Internal citations omitted.) It then held: "To have committed felony stalking under this subsection, Defendant would have to have engaged in a course of conduct that violated section 18-7906 and he would have to have been previously convicted of misdemeanor stalking by earlier engaging in a course of conduct that violated section 18-7906. There would have to be two separate courses of conduct, each of which violates that section. Otherwise, he could not have engaged in a course of conduct that violated section 18-7906 and previously been convicted of misdemeanor stalking." Accordingly, it vacated the conviction and remanded for further proceedings.

The Court also construes the meaning of other subsections of the statute and notes that it appears that Mr. Stewart could not have committed the offenses under those theories either.

Finally, the Court holds that a defendant who has waived a preliminary hearing cannot later dispute whether there is probable cause to charge even if the state amends the information. But he can challenge whether there was probable cause to issue an arrest warrant.

State v. Stewart, http://www.isc.idaho.gov/opinions/State%20v.%20Stewart%20Opinion.pdf

Since We're All Immigration Lawyers Now . . .

In light of Padilla, we've got to keep up on immigration law. So here's a synposis of a SCOTUS opinion issued just this morning regarding aggravated felonies.

In Carachuri-Rosendo v. Holder, the petitioner, who was seeking discretionary relief from deportation, had two misdemeanor drug possession offenses. One was for possession of less than two ounces of marijuana, for which he received 20 days in jail. The other was for possession without a prescription of one tablet of an antianxiety drug, for he received 10 days in jail. He was not charged under a state recidivist provision. Luckily for him, the Court held "that second or subsequent simple possession offenses are not aggravated felonies under §1101(a)(43) when, as in this case, the state conviction is not based on the fact of a prior conviction.”

Opinion at http://www.supremecourt.gov/opinions/09pdf/09-60.pdf

Canyon Co. Prosecutor to Release Details of Private Contract

"Details on how Canyon County Prosecuting Attorney John Bujak will spend $200,000 for the city of Nampa’s misdemeanor prosecution will come out Monday in a county budget meeting," according to an article in the Idaho Press Tribune. Here's a link: http://www.idahopress.com/news/article_f983272c-7457-11df-bb76-001cc4c03286.html

Last month, Nampa businessman Bob Henry filed a lawsuit seeking records about the contract, after his public records requests were unsuccessful. Bujak maintains the records are not covered by the public records law. The Third District Trial Court Administrator is seeking an out-of-district judge to preside over that case.

Bujak said that $400,000 of the approximately $600,000 contact has gone for salaries and rest is being held for overhead. Apparently, overhead is set to be paid in a lump sum at the end of the year.

My question is what's happening to the interest on that money? Of course, 3% on that amount doesn't add up to much, but it seems to me that it all belongs to Canyon County.

Today at the Court

The Court will hear argument in two cases today. One of those is State v. Yeoman.

Richard Yeoman, a registered sex offender in Washington, moved to Idaho in 2007. He was later charged for failing to register. After his motion to dismiss was denied, he entered a conditional plea of guilty preserving his right to appeal.

Mr. Yeoman argues that the sex offender registration statute doesn't apply to him because he was convicted in 1984. Subsections (a), (b) and (d) of I.C. 18-8304 say that the registration requirements apply to those who have been convicted, or who are incarcerated or on supervision as of July 1, 1993, including those who have been convicted in other states. Subsection (c) doesn't have a trigger date, but states that the chapter applies to everyone who "was required to register as a sex offender in any other state or jurisdiction and enters the state to establish permanent or temporary residence." Subsections (b) and (c) of the statute appear to be inconsistent.

Alternatively, he argues that, if the statute applies, it violates his right to travel and gives special preference to citizens of Idaho over other U.S. citizens in violation of the equal protection clause.

Today at the Court

The Court will hear argument in two cases today, one civil and the other criminal. The criminal case is State v. Stewart, an appeal from the denial of a motion to dismiss a first degree stalking charge.

The central basis for the motion to dismiss is that the charging document fails to allege a "course of conduct," an element of stalking. The complaining witness said that she had received e-mails from Mr. Stewart in violation of a no contact order. Mr. Stewart admitted to sending an e-mail. In response to the motion, the State amended its complaint twice and a hearing was held on the motion. The district court denied the motion, finding that the State’s amended information was sufficient. Mr. Stewart then entered a conditional plea of guilty permitting him to appeal the district court's ruling.

Substitute Opinion in Death Penalty Case

The Court issued a substitute opinion in State v. Shackelford today. The results remain the same. Mr. Shackelford's conviction is affirmed, but he gets a new sentencing hearing. The only change in the opinion appears to be the omission of a comment in footnote 3 that Shackelford did not make a confrontation clause objection at trial.

State v. Shackelford, http://www.isc.idaho.gov/opinions/Shackelford%20CORRsubstitute%20opn.pdf

Parental Drug Testing as Condition of Juvenile Probation Unconstitutional

The Supreme Court has unanimously held that the juvenile court may not order the parents of a juvenile to undergo drug testing as a condition of their child's probation.

The Court wrote: "In summary, the magistrate’s order requiring the Does to undergo urinalysis testing constituted a search under the Fourth Amendment of the U.S. Constitution that is presumptively invalid absent a warrant. The intrusion is not extraordinarily invasive, but the Does do not have a diminished expectation of privacy in their bodies simply because their daughter is on juvenile probation. The search is therefore unconstitutional because it primarily furthers the State’s interest in law enforcement."

State v. Jane Doe, II and John Doe, I, http://www.isc.idaho.gov/opinions/State%20v%20Jane%20Doe%20II.pdf

Suspect's Silence Does Not Invoke Miranda Right to Remain Silent

The United States Supreme Court held today that a suspect's silence during a interrogation did not invoke his right to remain silent. Just as a suspect’s Miranda right to counsel must be invoked "unambiguously" under Davis v. United States, 512 U. S. 452 (1994), if the accused makes an "ambiguous or equivocal" statement or no statement as to his right to remain silent, the police are not required to end the interrogation or ask questions to clarify the accused’s intent.

The suspect, Van Chester Thompkins, was arrested and then Mirandized. Two officers then interrogated him for three hours about a fatal shooting. While mostly silent during the interrogation, Thompkins never said that he wanted to remain silent or that he wanted an attorney. Eventually, he answered "yes" when asked if he prayed to God to forgive him for the shooting.

The state courts found there was no Miranda violation as did the federal district court on habeas review. The Sixth Circuit reversed the district court, holding that the state courts erred in finding an implied waiver of Thompkins’ right to remain silent. The Supreme Court reversed.

It found that Thompkins never unambiguously invoked his right to remain silent and further waived that right when he made the "yes" statement to police. Thus, it appears that if the state can establish that Miranda warnings were given and understood by the suspect, a later uncoerced statement will establish an implied waiver.

The Court also rejected a claim of ineffective assistance of counsel for failing to request a limiting instruction because Thompson could not show the error, if any, prejudiced him.

Berghuis v. Thompkins, http://www.supremecourt.gov/opinions/09pdf/08-1470.pdf

Interesting New 404(b) Case

The Court of Appeals vacated five counts of L&L today and remanded for a new trial due to I.R.E. 404(b) error. The Court emphasized that "[a]t the time of its decision, the district court did not have the benefit of our Supreme Court's opinions in [State v.] Grist, [147 Idaho 49, 52, 205 P.3d 1185, 1188 (2009)] and State v. Johnson, 148 Idaho 664, 227 P.3d 918 (2010). "

One important feature of the opinion is that the COA reiterates that there is no sex crime exception to 404(b) analysis post-Grist. "Courts are to apply the same standard in sexual abuse cases as is applied in other cases for allowing evidence of other bad acts under Rule 404(b)."

The opinion is a good guide on how to analyze the state's proffered 404(b) evidence for objections to its admissibility.

Congratulations to Justin Curtis of the SAPD.

State v. Pokorney, http://www.isc.idaho.gov/opinions/pokorney%20opinion.pdf

Justice Burdick Wins

In a surprisingly not-close contest, Justice Roger Burdick has won reelection. Judge John Bradbury, after losing a razor-thin race to Justice Joel Horton in 2008, only received 41.7% of the vote and lost by more than 28,000 votes.

Lawsuit Seeks Information About Deposits of Public Money Into Prosecutor Maintained Bank Account

Last Friday, a petition to compel disclosure of public records was filed against Canyon County Prosecutor John Bujak, the Canyon County Prosecutor's Office and Canyon County. The lawsuit seeks records regarding a bank account maintained by Mr. Bujak. The petition alleges that money owed to Canyon County is being placed into an account controlled by Mr. Bujak. The petition also alleges that only about 40% of the money received by Mr. Bujak has been transferred from that account to the Canyon County General Fund.

Here's the background. In 2009, the Canyon County Prosecutor's office contracted with the City of Nampa for prosecutorial services for $598,357.88 per year. The contract was later amended to change the recipient of Nampa's payments from the Canyon County Auditor to Mr. Bujak. The petition alleges the money went directly to Mr. Bujak's account. Canyon County was aware of this arrangement and passed a resolution stating that Mr. Bujak "realize no financial advantage" from the contract. However, according to the petition, Mr. Bujak received payments from Nampa totalling $344,509.04, which were put into the bank account, but has reimbursed the county $135,637.14.

The petitioner, Bob Henry, wants to know what's happened to the money and has filed a series of public records requests. Mr. Henry is the owner of Henry Insurance in Nampa and a former member of the Nampa School District Board. He is also an unsuccessful candidate for a seat on the Nampa City Council.

One of the responses to Mr. Henry's requests explained that Mr. Bujak pays the operating costs and "Prosecutor's Office salary adjustments" out of the funds and then "essentially donates" the rest to the County General Fund. (It appears that the deputy prosecutors get a salary bump funded by the Nampa contract too.) Mr. Henry then asked for documentation relating to the bank account to determine for himself how the $208,871.90 difference between receipts from Nampa and donations to the General Fund had been handled. According to the petition, Mr. Bujak told Mr. Henry in a telephone conversation that the bank account was not subject to a public records request. Mr. Henry apparently disagrees.

I wouldn't be the least bit surprised if every penny of the $208,871.90 has been properly spent. I also wouldn't be surprised if the taxpayers of Nampa are saving money over their previous contract with a private law firm. It does surprise me that an elected public official would try to keep that information secret. Besides, Nixon and Watergate should have taught us that a coverup can do more damage than what's being covered-up.

Juvenile LWOP Sentence Unconstitutional for Non-Homicide Offenses

The Supreme Court has held that a life sentence without possibility of parole violates the 8th Amendment when the defendant is a juvenile and the crime is not a homicide. Until today, Idaho was among the states which permitted such sentences. (Of course, the Idaho Code also purports to permit the death penalty for some non-homicide crimes so our statutes are a bit behind the times.)

Graham v. Florida, http://www.supremecourt.gov/opinions/09pdf/08-7412.pdf

Update on State v. Cantrell

Thankfully, the State Appellate Public Defender has petitioned for review in State v. Cantrell. I knew it would, but I'm still relieved to know it's been done.

Cantrell, you might recall, is the case where the Court of Appeals adopted a per se, bright line, rule permitting an officer to search the passenger compartment of a vehicle whenever the driver is arrested for DUI. In my view, the COA simply created a DUI exception to Arizona v. Gant and that ain't right Fourth-Amendment-wise. It is also ironic because Gant specifically rejected a per se, bright line rule permitting such searches incident to arrest. The COA, however, did not follow the Supreme Court's example and simply created a narrower per se rule than the one rejected in Gant.

Hopefully our Supreme Court will take the case and repudiate that part of the COA opinion.

Court Dismisses Capital Post-Conviction Appeal

The Court dismissed capital defendant Gene Stuart's appeal today. The district court had found that Stuart's successive petition was untimely under I.C. 19-2719 and dismissed.

On appeal, the state moved to dismiss the case under Idaho Code § 19-2719(5) which provides:

"If the defendant fails to apply for relief as provided in this section and within the time limits specified, he shall be deemed to have waived such claims for relief as were known, or reasonably should have been known. The courts of Idaho shall have no power to consider any such claims for relief as have been so waived or grant any such relief." The Court has added a "reasonable time" requirement to the statute, i.e., "[c]laims not known or which could not have reasonably been known within 42 days of judgment must be asserted within a reasonable time after they are known or reasonably could have been known."

Stuart responded by arguing that I.C. 19-2719 did not retroactively apply to his case and was an ex post facto law. He also made a number of other state and federal constitutional challenges to the statute. The Court rejected all of those arguments and dismissed the appeal.

Stuart v. State, http://www.isc.idaho.gov/opinions/Stuart34200.pdf

Supreme Court Justice Election Debate

Last week Justice Burdick (pictured on the left) and Judge Bradbury (on the right) debated live on public television. If you missed it, you can watch it here: http://www.idahoptv.org/elections/2010/.

The program's worth your while. There's a good exchange about the school funding litigation and the role of the Court in making sure the Legislature meets its constitutional requirement to "establish and maintain a general, uniform and thorough system of public, free common schools." Justice Burdick defends the position taken by the Court while Judge Bradbury advocates a more active approach.

Today at the Court

Today the Supreme Court hears oral argument in three cases. The only one involving criminal law is a post-conviction case, Kelly v. State.

One issue in Kelly is the effect, if any, of DeRushe v. State on cases where a court grants the state's motion for summary disposition on grounds not set out in the state's motion. DeRushe held, in part, that a petitioner who is represented by counsel may not challenge the adequacy of the state's notice for the first time on appeal. It also stated that the state's basis for the motion need only be set out with "reasonable particularity."

Another issue is whether the district court should have allowed Kelly, who was pro se, to present oral argument in opposition to the state's motion. The court scheduled a hearing on the state's motion. Mr. Kelly, who was in IDOC custody but held in Texas, did not appear. The court noted in its order dismissing the case that "Kelly did not request to appear at the hearing . . . until after the hearing was held." Mr. Kelly, however, had mailed a motion to transport ten days prior to the hearing which was not received by the court until two days after.

Immigration Law Seminar Coming Up

Maria Andrade's Law Office is sponsoring a seminar entitled: "Defending the Noncitizen: New Duties for Criminal Defense Attorneys in Light of Padilla v. Kentucky." Maria promises to discuss the impact of Padilla on criminal defense practice and teach immigration law basics.

Friday, June 4, 2009, 8:00 a.m. to 5:00 p.m.
Red Lion Downtowner, Boise Idaho.

I'll pass on more information as it becomes available.

Sentencing Appeal Dismissed as Moot

Does the District Court have the authority to impose a second rider without an intervening period of probation? In Alexander Barclay's case, the District Court thought it did and put Mr. Barclay on a second rider immediately after he finished a disappointing first one. (Mr. Barclay's second rider didn't go too well either and the District Court eventually relinquished jurisdiction.) Mr. Barclay appealled and the Court of Appeals held the District Court did not have the jurisdiction to grant a second rider because it had not placed Mr. Barclay on probation first. Today the Supreme Court dismissed the appeal because Mr. Barclay had finished serving his sentence. It also vacated the Court of Appeals opinion.

The State argued that not only did the District Court not have authority to impose a second rider without first placing the defendant on probation but also that Mr. Barclay's appeal was untimely because he did not file it within 42 days of the first order relinquishing jurisdiction. The Supreme Court did not reach either issue. It further found that none of the exceptions to the mootness doctrine ("(1) when there is the possibility of collateral legal consequences imposed on the person raising the issue; (2) when the challenged conduct is likely to evade judicial review and thus is capable of repetition; and (3) when an otherwise moot issue raises concerns of substantial public interest.") applied.

State v. Barclay, http://www.isc.idaho.gov/opinions/Barclay36237.pdf

Estrada Post-Conviction Case – Important Guidance for PC Counsel

Yesterday, the Court of Appeals issued a substitute opinion in Esquivel v. State, which offers two lessons of importance. First, it reiterates what is needed to prove up an Estrada claim in post-conviction. And, second, it eliminates any possibility of an appellate court taking judicial notice of prior proceedings in a case on appeal.

Esquivel was convicted of three counts of lewd conduct. As part of sentencing he was ordered to undergo a psychosexual evaluation. However, he was never advised that he had Fifth Amendment rights relative to the evaluation, thus creating an Estrada violation. (Estrada v. State, 143 Idaho 558, 149 P.3d 833 (2006), holding that trial counsel renders deficient representation when he/she fails to advise defendants of Fifth Amendment rights in submitting to a PSE.) In post-conviction, the district court held, contrary to statements it made at sentencing, that there was no prejudice from the violation because the court did not consider the PSE in imposing sentence.

Hughes v. State, 148 Idaho 448, 224 P.3d 515 (Ct.App. 2009), was decided after appellate briefing in Esquivel, but was applied to the case. Hughes holds that three factors are to be considered in determining whether an Estrada violation was prejudicial: 1) Whether the PSE was materially unfavorable (if not, game over, no prejudice); 2) the extent of the sentencing court’s reliance on the PSE; and 3) the totality of the evidence before the sentencing court.

Because Hughes was not the law when Esquivel’s case was before the District Court, PC counsel did not include the PSE as an exhibit. Thus, the Court of Appeals held, it would assume that the PSE was not unfavorable and that prejudice did not result from the Estrada violation.

First Lesson: If you have an Estrada claim in post-conviction, you must put the PSE as well as the sentencing transcript and the PSI and any other material before the sentencing court into evidence before the district court in post-conviction. Don’t assume that just because the post-conviction judge was also the trial and sentencing judge that you don’t have to put these items into evidence as exhibits on post-conviction. If you don’t put them in, you absolutely cannot prove prejudice.

Second Lesson: REALLY REALLY IMPORTANT IN EVERY POST-CONVICTION CASE – Hidden in plain sight or not so plain sight, in footnote 3, the Court of Appeals sets out very strict rules regarding post conviction and appellate records – rules you simply cannot break. A post-conviction case is not an extension of the prior criminal case. Therefore, nothing from the prior criminal case is before the post-conviction court unless it is entered as an exhibit. “Exhibits, as well as transcripts of the pre-trial proceedings, the trial, and sentencing hearing in the criminal case, even if previously prepared as a result of a direct appeal or otherwise, are not before the trial court in the post-conviction proceeding and do not become part of the record on appeal unless presented to the trial court as exhibits or unless the trial court takes judicial notice of such records from the criminal case.” Even if the district court reviews such materials, if the items were not made exhibits in the post-conviction case or if the district court did not, on the record, take judicial notice of them, they will not be considered on appeal. Further, on appeal, the items will only be considered if they have been designated in accord with IAR 28 or augmented by motion pursuant to IAR 30.

This is going to come up a lot. The rule for creating the record is, of course, applicable to and important in even post-conviction case, but I can see at least three situations right now where it’s going to be much in play. 1. Estrada cases like this one. 2. DeRushé cases. 3. Padilla cases. In all of these cases, you may have a clear error – there was no advice of Fifth Amendment rights, the client was not allowed to testify, a plea was entered without advisement of immigration consequences, but if you don’t put the whole trial or plea records, including all transcripts, PSEs, and PSIs into evidence before the district court, you can’t prove up your claim and you can’t get relief on appeal.

You can read Esquivel at http://www.isc.idaho.gov/opinions/Esquivel,%20Carlos%20-%20Sub.pdf

Post-Padilla Practice Advisory

The Immigrant Defense Project has issued a practice advisory entitled "Duty of Criminal Defense Counsel Representing an Immigrant Defendant after Padilla v. Kentucky." The advisory includes an immigration consequences checklist as a starting point for counsel.

As of this moment, the advisory hasn't been posted online but the IDP website urges us to "check back soon." Here's a link: http://www.immigrantdefenseproject.org/. The IDP also says that "Defense attorneys and immigrants facing criminal charges may also call IDP’s hotline [212-725-6422] for information and consultation on immigration consequences of criminal dispositions."

ABA Telecast/Webcast CLE Re: The Intersection of Criminal and Immigration Laws

In light of Padilla v. Kentucky, the ABA is sponsoring a CLE on "The Intersection of Criminal and Immigration Laws." For those who are interested, the ABA notes that the Idaho State Bar does accept ABA teleconferences for CLE credit. More information on the CLE and how to register can be found at: http://www.abanet.org/cle/programs/t10pkr1.html

Thoughts on Padilla

Wow. It has taken me all day to really digest this case.

As mentioned in an earlier post the U.S. Supreme Court issued a ground-breaking decision today. In Padilla vs. Kentucky, the Supremes held that constitutionally effective counsel must provide their non-citizen clients immigration advice. How accurate and thorough the advice must be depends upon the particular facts of the case. Further, only defendants who can show prejudice caused by the lack of correct advice will state a claim for ineffective assistance of counsel. The case involved a long-term Lawful Permanent Resident (LPR or Permanent Resident Alien) who plead guilty to a drug offense that is an “aggravated felony” under the Immigration and Nationality Act. Any aggravated felony makes nearly every LPR deportable and statutorily ineligible for relief from deportation. In Padilla, the defendant specifically asked his lawyer if the conviction would affect his immigration status. The defense attorney told the defendant that deportation was unlikely due to the defendant’s long residence in the United States.

Many attorneys following case law discussing the intersection of effective assistance of counsel, the collateral consequences doctrine and immigration law thought the Supremes would hold that only where a defense attorney provides affirmative misadvice, such as the case in Padilla, is ineffective. Oh no; the Court went further: “We conclude that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment Right to Counsel.” Strickland applies. The Court explains that there is a continuum of the accuracy and amount of immigration advice to be provided by effective counsel. Where the law is clear that the conviction will result in deportation, the advice must be clear. Where the law is unclear that a conviction will result in deportation, the Court suggests that advising the defendant that the criminal charge “may” present a risk to their immigration status would be sufficient. This is one of those situations where remaining silent is not the most prudent course of action--at least not for defense counsel.

While I applaud the decision, I do not underestimate the difficulty that a lawyer unfamiliar with immigration law will have determining if a particular client’s conviction will definitely cause deportation or just make deportation possible. Nevertheless, there are untold numbers of people who plead guilty to offenses that guaranteed their deportation on the advice of counsel. Having had to explain the difference between criminal and immigration law to numerous parents, wives and children of people who unknowingly agreed to their own permanent banishment from the U.S., I look forward to fewer of these conversations.

SCOTUS Holds That Defense Attorney Must Inform Non-Citizen Clients of Possible Immigration Consequences

The Court issued its opinion in Padilla v. Kentucky this morning. Padilla alleged in a post-conviction petition that his counsel "not only failed to advise him of [the immigration] consequence[s of pleading guilty] prior to his entering the plea, but also told him that he 'did not have to worry about immigration status since he had been in the country so long.'" Padilla alleged that he had relied on this erroneous advice when he pleaded guilty. He also alleged that he would have gone to trial had he received correct advice from his attorney.

The question before the Court was "whether, as a matter of federal law, Padilla’s counsel had an obligation to advise him that the offense to which he was pleading guilty would result in his removal from this country."

The Court concluded: "It is our responsibility under the Constitution to ensure that no criminal defendant—whether a citizen or not—is left to the mercies of incompetent counsel. To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation. Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less." (Internal quotations and citations omitted.)

The Court thus found the first prong of the Strickland v. Washington test for ineffective assistance of counsel, assuming Padilla's allegations were true. It then remanded the case to determine whether Padilla was prejudiced by counsel's deficient performance.

Here's a link to the opinion: http://www.supremecourt.gov/opinions/09pdf/08-651.pdf

Wendell Juvenile Curfew Upheld

The Court rejected several constitutional challenges to the Wendell juvenile curfew ordinance today. Doe argued that the ordinance was void for vagueness, overbroad, and violative of both equal protection and of the fundamental right of a parent to direct the upbringing of his or her child.
The magistrate and district court both rejected the constitutional challenges, but the Court of Appeals found that the Ordinance was unconstitutionally overbroad.

The Supreme Court rejected the first three challenges and found that Doe did not have standing to assert his parents' right. State v. Doe, http://www.isc.idaho.gov/opinions/John%20Doe%20Opinion.pdf

Revised Cobler Opinion Issued

The Court issued an amended opinion in State v. Cobler today. (This is the case where the Court held that the district court abused its discretion in denying a motion to modify a no contact order, but upheld the sentence imposed and the denial of the Rule 35 motion.)

There was some language in the original opinion that suggested (1) that the district court could not consider good conduct while incarcerated as grounds in support of a sentence reduction, and (2) that the information that could properly be considered was had to be something that could serve “as an underlying basis for the sentence.” This could be read to mean that the new and additional information submitted in support of a Rule 35 motion had to be available but not presented at the time of sentencing.

In today's opinion the following language from the original is missing: "Furthermore, prison behavior is not the type of new or additional information that will support a Rule 35 motion, as it could not serve as an underlying basis for Cobler’s sentence." Thus, it is now clear that post-sentencing behavior can be considered by the Court as a basis for a reduction of sentence under Rule 35. It is equally clear, however, that the sentencing court does not need to give much weight to that evidence. ("Furthermore, the district court did not abuse its discretion in giving little or no weight to Cobler’s good behavior while in prison.")

Overall, this is good news. To read the amended opinion: http://www.isc.idaho.gov/opinions/CoblerSUB.pdf

Couldn't Happen to a Nicer Guy

Please join me in raising a cerveza or, if you prefer, a mezcal, to toast SCOIDBlog contributor and good guy JD Hallin who is getting married on Saturday. The bride to be is the lovely Elizabeth Carter formerly of Ketchum, Idaho.

And take a look at the hotel in Cabo San Lucas where the wedding will be. Nicely done, JD.

The wedding celebration includes several pool-side, alcohol-laden get-togethers prior to the big event. Of course, this is no surprise to those who know JD, but it sounds like they make a fun couple too. I gather this from a quick review of the wedding registry, which runs heavily towards cocktail shakers, martini glasses and champagne flutes. (Oh to be young again.)

Congratulations Elizabeth and JD and best wishes from SCOIDBlog.

To check out the wedding website: http://weddings.theknot.com/pwp/pwp2/view/MemberPage.aspx?coupleid=8411921446398403&pid=5990905

Ada County Deputy PD Honored

Congratulations to Amil Myshin on being inducted as a Fellow of the American College of Trial Lawyers! Amil is one of only four Idaho criminal defense lawyer in the College (the esteemed Fred Hoopes, Keith Roark and David Nevin are the other three). Amil has been with the Ada County Public Defenders since 1985.

Successive Capital PCP Dismissed

Today the Court affirmed the dismissal of a successive post-conviction petition in a capital case finding that it was barred under I.C. § 19-2719. Pizzuto v. State, http://www.isc.idaho.gov/opinions/State%20v.pdf.

Idaho Code § 19-2719 governs post-conviction petitions in capital cases to the extent they conflict with the UPCPA. Subsection (3) gives the defendant only 42 days after "the filing of the judgment imposing the punishment of death" to "file any legal or factual challenge to the sentence or conviction that is known or reasonably should be known." If the defendant fails to do so, the defendant "shall be deemed to have waived such claims for relief as were known, or reasonably should have been known." I.C. § 19-2719(5). In capital cases, therefore, "a successive petition is allowed only where the petitioner can demonstrate that the issues raised were not known or could not reasonably have been known within the forty-two day time frame." (The non-capital post-conviction statute, by contrast, requires a waiver be knowing, voluntary, and intelligent. I.C. § 19-4908.)

Here, the Court found that none of Pizzuto's claims fell within the exception to the 42 day rule. It also found that 19-2719 was constitutional.

Former UI Football Player May Sue Former AG Ashcroft

Abdullah al-Kidd sued former U.S. Attorney General John Ashcroft and others charging that his civil rights were violated by his arrest without probable cause on a material witness warrant. Judge Lodge let the lawsuit proceed, rejecting Mr. Ashcroft's claim that he was immune to such lawsuits. The Ninth Circuit affirmed and, yesterday, the Court denied the defendant's petition for rehearing en banc.

The order makes for interesting reading. Here's a summary of the allegations:

"The facts alleged in al-Kidd’s complaint are chilling, and serve as a cautionary tale to law-abiding citizens of the United States who fear the excesses of a powerful national government, as did many members of the Founding Generation. Al-Kidd, born Lavoni T. Kidd, is a United States citizen, born in Wichita, Kansas, and raised in Seattle, Washington. He graduated from the University of Idaho, where he was a highly regarded running back on the university’s football team. He was married and had two young children.

While at the university, al-Kidd converted to Islam and changed his name to Abdullah al-Kidd. In the spring and summer of 2002, al-Kidd became a target of FBI surveillance conducted as part of a broad anti-terrorism investigation, aimed at Arab and Muslim men. Al-Kidd cooperated with the FBI on several occasions when FBI agents asked to interview him.

Previous to this time, Ashcroft and others operating at his direction, or in concert with him, had decided to undertake a novel use of 18 U.S.C. § 3144, the material witness statute."

Al-Kidd was then arrested on a material witness warrant in the case of United States v. Sami Al-Hussayen, a case alleging, inter alia, that Sami provided material aid to terrorists. [Disclosure: My law firm represented Sami and obtained an acquittal on the terrorism charges and some of the immigration charges. The jury hung on the other immigration charge. I was not involved in the case.]

The Court continues:

"Al-Kidd was arrested more than a year before the Al-Hussayen trial began. In their interviews with al-Kidd, the FBI never suggested, let alone demanded, that al-Kidd appear as a witness in the Al-Hussayen trial. While in custody, al-Kidd was repeatedly questioned about matters unrelated to Al-Hussayen’s alleged visa violations or false statements, but was never given a Miranda warning. Al-Kidd was never called as a witness in the Al-Hussayen trial or in any other criminal proceeding despite his assurances that he would be willing to be a witness.

Importantly, al-Kidd was never charged with the commission of any crime, even though [FBI Director] Mueller had boasted to Congress that the government had at that point in time charged over 200 'suspected terrorists' with crimes, and named al-Kidd individually, as well as four other persons who had been criminally charged with terrorism-related offenses, as evidence of the government’s recent successes."

Here's what Judge M. Smith wrote in response to the dissent’s claim that allowing this type of claim against Ashcroft will discourage others from becoming Attorney General:

"The truth is that there are legions of highly qualified attorneys who would gladly abandon almost any other position for the opportunity to serve as Attorney General of the United States. But it is critically important that whoever serves in that position be dedicated to the rule of law, and to upholding and defending the Constitution of the United States. Mindful that some in high office can be guilty of excessive zeal, former Justice Brandeis, in his famous dissent in Olmstead v. United States, stated:

'Experience should teach us to be most on our guard
to protect liberty when the government’s purposes
are beneficent. Men born to freedom are naturally
alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious
encroachment by men of zeal, well-meaning but
without understanding.'

277 U.S. 438, 572-73 (1928 ) (Brandeis, J., dissenting)."

Great stuff. For more: al-Kidd v. Ashcroft, http://www.ca9.uscourts.gov/datastore/opinions/2010/03/18/06-36059.pdf

Two More Opinions

The Court issued opinions in another two criminal cases today. The first is an opinion upon rehearing in State v. Pina, http://www.isc.idaho.gov/opinions/State%20v%20Pina%20SUB.pdf. This opinion replaces the one issued last year. (See SCOIDBlog, July 8, 2009, "Another Murder Conviction Vacated.") The substitute opinion also vacates the conviction. The majority (with Justice W. Jones writing with Justice J. Jones and the Chief Justice concurring) holds that Idaho follows the agency theory of felony-murder. "Under the agency theory, the felony-murder rule is only applied to actors who are acting in concert in furtherance of a common plan or scheme to commit the underlying felony and one of them causes the death during the perpetration of the felony, regardless of who actually fired the fatal shot."

The district court, however, instructed the jury that it could find Mr. Pina guilty even if he was not acting in concert with the person who killed the victim. The Court found this was reversible error.

Congratulations (again) to Sara Thomas of SAPD!

The other case, Eby v. State, http://www.isc.idaho.gov/opinions/Eby%20v.%20State,%2036568.pdf, presented a narrow issue: May a post-conviction petitioner file a IRCP 60(b) motion to revive a petition dismissed for inactivity under IRCP 40(c)? The Court held that it may, only in post-conviction cases, and then only upon a "showing of unique and compelling circumstances justifying relief." The Court, noting that the dismissal was only granted "[a]fter years of shocking and disgraceful neglect of his case by a series of attorneys appointed to represent Daniel Lee Eby" remanded the "case to the district court for consideration of whether the facts presented by Eby constitute grounds for relief under I.R.C.P. 60(b)(6)."

This is a case which I worked on with my wife, Deborah Whipple. Thank you, Deb, for the excellent work!