Monday, December 27, 2010
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
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
Wednesday, December 15, 2010
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
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.
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.
Wednesday, November 24, 2010
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.
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
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
Tuesday, November 9, 2010
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.
Monday, November 8, 2010
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.
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.
Thursday, October 14, 2010
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).
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).
Thursday, October 7, 2010
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.
Wednesday, October 6, 2010
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
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
Sunday, October 3, 2010
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
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, September 29, 2010
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.
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, September 24, 2010
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.
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.
Wednesday, September 22, 2010
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.
Tuesday, September 7, 2010
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.
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.
Tuesday, July 27, 2010
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
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
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
Monday, July 26, 2010
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
http://www.isc.idaho.gov/opinions/Perry.pdf
Friday, July 23, 2010
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.
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.
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