Thursday, December 10, 2009
Failure to Rule Upon Motion for Appointment of Counsel is Harmless Error When Post-Conviction Petition Does Not Raise Possibility of Valid Claim.
Melton v. State. For more: http://www.isc.idaho.gov/opinions/melton%20final%20opn.pdf
Wednesday, December 9, 2009
Today at the Court: 12/9/09
The Court will hear three arguments today, two of which involve criminal cases. The first criminal case is McKay v. State and the other is State v. James.
McKay is a post conviction case arising from a felony vehicular manslaughter conviction. Mr. McKay argues that the elements jury instruction was erroneous because it omitted the language from the Pattern Jury Instruction that the "operation of the motor vehicle in such unlawful manner was a significant cause of the death" and substituted language which did not accurately describe the elements. Mr. McKay's petition alleges his trial counsel was ineffective for failing to object to the instruction and that his appellate counsel was ineffective for failing to challenge the instruction on direct appeal.
In James, the police searched a car that James was a passenger in and found drugs and drug paraphernalia. He, along with the others, was questioned by the officer, without the benefit of Miranda warnings. James said that the drugs were his after the officer threatened to arrest them all if no one admitted ownership. The district court found that James was not in custody and Miranda warnings were not required. The Court of Appeals disagreed. The Supreme Court will finally decide.
McKay is a post conviction case arising from a felony vehicular manslaughter conviction. Mr. McKay argues that the elements jury instruction was erroneous because it omitted the language from the Pattern Jury Instruction that the "operation of the motor vehicle in such unlawful manner was a significant cause of the death" and substituted language which did not accurately describe the elements. Mr. McKay's petition alleges his trial counsel was ineffective for failing to object to the instruction and that his appellate counsel was ineffective for failing to challenge the instruction on direct appeal.
In James, the police searched a car that James was a passenger in and found drugs and drug paraphernalia. He, along with the others, was questioned by the officer, without the benefit of Miranda warnings. James said that the drugs were his after the officer threatened to arrest them all if no one admitted ownership. The district court found that James was not in custody and Miranda warnings were not required. The Court of Appeals disagreed. The Supreme Court will finally decide.
Friday, December 4, 2009
Today's Oral Arguments
The Court will hear two criminal law cases today.
In State v. Cobler, the defendant was charged with sexual battery of a minor. The court issued a no contact order prohibiting Mr. Cobler from contacting the victim and all minors until dismissal of the case, even though he had three minor children. The district court later sentenced him to prison but did not vacate the no contact order. Mr. Cobler filed a Rule 35 motion and a motion to modify the no contact order to allow contact with his children. The court denied both motions.
On appeal, Mr. Cobler challenges the validity of the continuing no contact order.
The Court of Appeals opinion, holding that the no contact order violated Mr. Cobler’s fundamental rights as a parent, is available here: http://www.isc.idaho.gov/opinions/coblerSUB34308.pdf
In State v. Peterson, the appellant was convicted of felony possession of a controlled substance. Mr. Peterson argues that, under a plea agreement in another case, the State promised not to charge him for that offense.
The Court of Appeals unpublished opinion, affirming the district court, is available here: http://www.isc.idaho.gov/opinions/peterson33137.pdf
In State v. Cobler, the defendant was charged with sexual battery of a minor. The court issued a no contact order prohibiting Mr. Cobler from contacting the victim and all minors until dismissal of the case, even though he had three minor children. The district court later sentenced him to prison but did not vacate the no contact order. Mr. Cobler filed a Rule 35 motion and a motion to modify the no contact order to allow contact with his children. The court denied both motions.
On appeal, Mr. Cobler challenges the validity of the continuing no contact order.
The Court of Appeals opinion, holding that the no contact order violated Mr. Cobler’s fundamental rights as a parent, is available here: http://www.isc.idaho.gov/opinions/coblerSUB34308.pdf
In State v. Peterson, the appellant was convicted of felony possession of a controlled substance. Mr. Peterson argues that, under a plea agreement in another case, the State promised not to charge him for that offense.
The Court of Appeals unpublished opinion, affirming the district court, is available here: http://www.isc.idaho.gov/opinions/peterson33137.pdf
Wednesday, December 2, 2009
Today's Docket
The Court will hear argument in three cases today. Ridgley v. State, an appeal from the summary dismissal of a post-conviction petition, is the only criminal case on the docket.
Ridgley's petition alleged, inter alia, that his attorney did not provide effective assistance of counsel because counsel failed to consider whether Ridgley’s severe grief and depression rendered him incompetent or unable to make a rational decision about pleading guilty. Ridgley's wife had died just 16 days prior to the entry of the guilty plea.
The COA concluded that the district court erred in dismissing this claim as "Ridgley’s evidence is sufficient to raise a genuine issue of fact regarding his emotional state and the competence of the lawyer’s representation of Ridgley in light of the alleged emotional state. Although it might well be said that nearly any criminal defendant will be somewhat depressed at facing the possibility of conviction of a serious crime, there is evidence here from which it could be found that Ridgley’s level of depression was far more consequential than the typical emotional distress at facing prosecution." The COA reversed the dismissal in part and remanded the case for further proceedings on this claim, but the state's petition for review was granted.
The COA opinion can be found here: http://www.isc.idaho.gov/opinions/ridgley.pdf
Ridgley's petition alleged, inter alia, that his attorney did not provide effective assistance of counsel because counsel failed to consider whether Ridgley’s severe grief and depression rendered him incompetent or unable to make a rational decision about pleading guilty. Ridgley's wife had died just 16 days prior to the entry of the guilty plea.
The COA concluded that the district court erred in dismissing this claim as "Ridgley’s evidence is sufficient to raise a genuine issue of fact regarding his emotional state and the competence of the lawyer’s representation of Ridgley in light of the alleged emotional state. Although it might well be said that nearly any criminal defendant will be somewhat depressed at facing the possibility of conviction of a serious crime, there is evidence here from which it could be found that Ridgley’s level of depression was far more consequential than the typical emotional distress at facing prosecution." The COA reversed the dismissal in part and remanded the case for further proceedings on this claim, but the state's petition for review was granted.
The COA opinion can be found here: http://www.isc.idaho.gov/opinions/ridgley.pdf
Tuesday, December 1, 2009
Pro Se Appellant Drives Off With Victory!
Today a pro se appellant got his speeding conviction reversed due to insufficient evidence.
At trial, "[t]he officer testified that he had been trained in visually estimating the speed of vehicles and had received certification of the ability to make estimates within 5 miles per hour of the actual speed. He said that he had estimated the speed of Estes’ vehicle at 65 miles per hour, 10 miles per hour over the speed limit."
The magistrate found that the officer’s testimony was proof beyond a reasonable doubt that the driver was speeding. The Court of Appeals disagreed, writing:
"Although the officer implied that he met a certification standard requiring that he be able to make estimations falling within 5 miles per hour of the actual speed, he did not testify as to the required accuracy rate. That is, he did not disclose whether certification required that he be able to meet that 5-mile-per-hour variance standard 65 percent of the time or 99 percent of the time, nor what his actual rate was. An accuracy frequency approaching 100 percent would give far greater support to a finding of guilt beyond a reasonable doubt than would a substantially lower accuracy rate. Here, the trial evidence is void of any information at all on the officer’s accuracy rate. In addition, the State produced no evidence of the distance between the officer’s location and Estes’ vehicle when the officer made his estimation, the angle of his view, or how long he observed the vehicle before reaching his conclusion. We do not hold, as some courts apparently have, that an officer’s estimate can never be sufficient to prove a speeding infraction. We hold only that on this evidentiary record, and given that the difference between the estimated speed and the speed limit in this case was not great, the State failed to prove beyond a reasonable doubt that Estes’ vehicle was travelling above the speed limit." (Emphasis added.)
Congratulations to Mr. Estes for his perseverance and for a job well done!
State v. Estes, http://www.isc.idaho.gov/opinions/Estes,%20David.pdf
At trial, "[t]he officer testified that he had been trained in visually estimating the speed of vehicles and had received certification of the ability to make estimates within 5 miles per hour of the actual speed. He said that he had estimated the speed of Estes’ vehicle at 65 miles per hour, 10 miles per hour over the speed limit."
The magistrate found that the officer’s testimony was proof beyond a reasonable doubt that the driver was speeding. The Court of Appeals disagreed, writing:
"Although the officer implied that he met a certification standard requiring that he be able to make estimations falling within 5 miles per hour of the actual speed, he did not testify as to the required accuracy rate. That is, he did not disclose whether certification required that he be able to meet that 5-mile-per-hour variance standard 65 percent of the time or 99 percent of the time, nor what his actual rate was. An accuracy frequency approaching 100 percent would give far greater support to a finding of guilt beyond a reasonable doubt than would a substantially lower accuracy rate. Here, the trial evidence is void of any information at all on the officer’s accuracy rate. In addition, the State produced no evidence of the distance between the officer’s location and Estes’ vehicle when the officer made his estimation, the angle of his view, or how long he observed the vehicle before reaching his conclusion. We do not hold, as some courts apparently have, that an officer’s estimate can never be sufficient to prove a speeding infraction. We hold only that on this evidentiary record, and given that the difference between the estimated speed and the speed limit in this case was not great, the State failed to prove beyond a reasonable doubt that Estes’ vehicle was travelling above the speed limit." (Emphasis added.)
Congratulations to Mr. Estes for his perseverance and for a job well done!
State v. Estes, http://www.isc.idaho.gov/opinions/Estes,%20David.pdf
Monday, November 30, 2009
People Who Do Reprehensible Things are People Too
The Court issued five opinions in civil cases on Friday. Now usually, as regular readers know, SCOIDBlog does not concern itself with civil cases, but there is some language in one of those cases which may help criminal defense lawyers.
In Shelton v. Shelton, Mr. Shelton filed a motion to modify child custody payments. The alleged material change in circumstances was that "he lost his job [earning $16.55 per hour] after pleading guilty to a sex crime, that he was serving one year in jail with work release, and that he was currently employed earning $6.25 per hour." The trial court dismissed the motion pursuant to I.R.C.P 12(b)(6). The Supreme Court dismissed Mr. Shelton's appeal because the Notice of Appeal was filed one day too late. However, it noted that the motion could be refiled in the trial court as it was dismissed without prejudice. The Court then addressed some issues which might arise if such a motion was filed.
The issue of interest here is that the trial court dismissed Mr. Shelton's motion "because he had failed to offer at the hearing admissible testimony supporting his contention that there had been a substantial and material change in circumstances justifying a modification of the child support." However, "[t]here is no requirement that a party defending against a 12(b)(6) motion must offer admissible testimony at the hearing on the motion" and the trial court should not have dismissed on the failure to do so.
Here comes the useful language:
In Shelton v. Shelton, Mr. Shelton filed a motion to modify child custody payments. The alleged material change in circumstances was that "he lost his job [earning $16.55 per hour] after pleading guilty to a sex crime, that he was serving one year in jail with work release, and that he was currently employed earning $6.25 per hour." The trial court dismissed the motion pursuant to I.R.C.P 12(b)(6). The Supreme Court dismissed Mr. Shelton's appeal because the Notice of Appeal was filed one day too late. However, it noted that the motion could be refiled in the trial court as it was dismissed without prejudice. The Court then addressed some issues which might arise if such a motion was filed.
The issue of interest here is that the trial court dismissed Mr. Shelton's motion "because he had failed to offer at the hearing admissible testimony supporting his contention that there had been a substantial and material change in circumstances justifying a modification of the child support." However, "[t]here is no requirement that a party defending against a 12(b)(6) motion must offer admissible testimony at the hearing on the motion" and the trial court should not have dismissed on the failure to do so.
Here comes the useful language:
"The first issue is that all litigants, including those such as Father who are incarcerated for reprehensible conduct, are entitled to equality under the law. Not only is a pro se litigant held to the same standards and rules as an attorney, but the pro se litigant is entitled to have the rules of civil procedure applied to him or her in the same manner as they would be applied to an attorney. In this case, the magistrate judge did not do so. He created a unique procedural hurdle that Father tripped over, resulting in the dismissal of his motion." (Citations omitted, emphasis added.)
While it is not pertinent to my practice, I understand that some SCOIDBlog readers have, on occasion, represented people who are accused of/have done reprehensible things. For those readers, this language can be used as a reminder to our trial courts that we are all entitled to the equal protection of the laws.
Shelton v. Shelton, http://www.isc.idaho.gov/opinions/Shelton%20v.%20Shelton.pdf
Friday, November 27, 2009
Rule 33 May Not Be Used to Challenge Jurisdiction of Court After a Conviction Becomes Final
The Supreme Court has affirmed the denial of a Rule 33 Motion to Withdraw Guilty Plea holding the District Court did not have jurisdiction to consider the claim.
Micah Wegner pleaded guilty to a single count of L&L after being waived into adult court. His judgment and sentence was affirmed on direct appeal. He did not file a post-conviction petition. Two and a half years after his direct appeal was final, he filed a pro se "Motion to Withdraw Plea to Correct Manifest Injustice, I.C.R. 33(c)." His argument was that could not have been found guilty of L&L because he was under the age of fourteen at the time of the alleged offense and Idaho Code section 20-509 does not list L&L as one of the offenses for which minor children can be tried as adults.
The Supreme Court relied upon State v. Jakoski, 139 Idaho 352, 355, 79 P.3d 711 (2003), where it stated that:
"Absent a statute or rule extending its jurisdiction, the trial court’s jurisdiction to amend or set aside a judgment expires once the judgment becomes final, either by expiration of the time for appeal or affirmance of the judgment on appeal."
The Jakoski Court held that once a judgment of conviction becomes final, "the district court no longer [has] jurisdiction to hear a motion to withdraw [a] guilty plea."
The Court, in rejecting Wegner's argument that there should be an exception to Jakoski for cases where the court did not have adult jurisdiction over a juvenile, explained that:
"Wegner seeks, in essence, to utilize Rule 33 as a means of collaterally attacking a judgment that has become final. We decline to allow such an attack. The appropriate avenue for obtaining relief from a final judgment of conviction is a proceeding brought pursuant to the Uniform Post-Conviction Procedure Act set out in Chapter 49, Title 19, Idaho Code. Wegner may not utilize Rule 33 as a means of circumventing or supplementing this statutory remedy."
State v. Wegner, http://www.isc.idaho.gov/opinions/Wegner%20Opinion.pdf
Lesson learned: Do not sit on your rights. Even though there are many cases which say that a challenge to subject-matter jurisdiction is never waived, in fact, such challenges are waived if not raised on direct appeal, in a Rule 33 motion made before the appeal is over, or in a timely post-conviction application. Possibly such a challenge could be raised in a Rule 35 motion to correct an illegal sentence if the illegality was apparent from the face of the record. See State v. Clements (decided October 15th). In Wegner, however, it was not clear from the face of the record because the charging period included time before and after he turned fourteen and it was not clear when the event he pleaded guilty to occurred.
Micah Wegner pleaded guilty to a single count of L&L after being waived into adult court. His judgment and sentence was affirmed on direct appeal. He did not file a post-conviction petition. Two and a half years after his direct appeal was final, he filed a pro se "Motion to Withdraw Plea to Correct Manifest Injustice, I.C.R. 33(c)." His argument was that could not have been found guilty of L&L because he was under the age of fourteen at the time of the alleged offense and Idaho Code section 20-509 does not list L&L as one of the offenses for which minor children can be tried as adults.
The Supreme Court relied upon State v. Jakoski, 139 Idaho 352, 355, 79 P.3d 711 (2003), where it stated that:
"Absent a statute or rule extending its jurisdiction, the trial court’s jurisdiction to amend or set aside a judgment expires once the judgment becomes final, either by expiration of the time for appeal or affirmance of the judgment on appeal."
The Jakoski Court held that once a judgment of conviction becomes final, "the district court no longer [has] jurisdiction to hear a motion to withdraw [a] guilty plea."
The Court, in rejecting Wegner's argument that there should be an exception to Jakoski for cases where the court did not have adult jurisdiction over a juvenile, explained that:
"Wegner seeks, in essence, to utilize Rule 33 as a means of collaterally attacking a judgment that has become final. We decline to allow such an attack. The appropriate avenue for obtaining relief from a final judgment of conviction is a proceeding brought pursuant to the Uniform Post-Conviction Procedure Act set out in Chapter 49, Title 19, Idaho Code. Wegner may not utilize Rule 33 as a means of circumventing or supplementing this statutory remedy."
State v. Wegner, http://www.isc.idaho.gov/opinions/Wegner%20Opinion.pdf
Lesson learned: Do not sit on your rights. Even though there are many cases which say that a challenge to subject-matter jurisdiction is never waived, in fact, such challenges are waived if not raised on direct appeal, in a Rule 33 motion made before the appeal is over, or in a timely post-conviction application. Possibly such a challenge could be raised in a Rule 35 motion to correct an illegal sentence if the illegality was apparent from the face of the record. See State v. Clements (decided October 15th). In Wegner, however, it was not clear from the face of the record because the charging period included time before and after he turned fourteen and it was not clear when the event he pleaded guilty to occurred.
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