Friday, February 15, 2013

IAC found in federal drug conspiracy case that carried mandatory life sentence

Branden Bell won in United States v. Gilmore, Case No. 12-2263-JWL (Dist. Kan. Feb. 4, 2013), a motion to vacate sentence pursuant to 28 U.S.C. § 2255.  In the underlying criminal case (Dist. Kan. Case No. 07-20164-05-JWL), Mr. Gilmore was convicted by a federal jury of conspiracy to distribute and to possess with intent to distribute more than 50 grams of methamphetamine.  He was sentenced to the mandatory minimum sentence of life imprisonment, which was imposed based on his two prior convictions for felony drug offenses.  See 21 U.S.C. § 841(b)(1)(A)(vii).  In granting the 2255 motion, the court found that trial counsel's performance was deficient and that it prejudiced the outcome of the process.  The memorandum opinion is available here.

Specifically, the court found that Gilmore's attorneys were ineffective because they should have advised him that he was facing a mandatory life sentence based on the two prior felony drug offenses and based on his trial attorney's apparently misunderstanding of federal drug conspiracy laws:
The court is persuaded that Mr. Gilmore received constitutionally deficient representation from initial counsel by counsel’s failure to advise Mr. Gilmore that his convictions could trigger a “double” bill of information under § 851 from the government which would result in a mandatory minimum life sentence.  [Citations omitted.]  Of course, the deficient performance of Mr. Gilmore’s initial counsel occurred early enough in the case that the errors could have been corrected by trial counsel in sufficient time to preclude any prejudice to Mr. Gilmore. Unfortunately, trial counsel not only failed to correct the errors of initial counsel but compounded those errors through her own deficient performance.
It is undisputed that trial counsel, by July 2008, knew that Mr. Gilmore had two prior felony drug convictions. Nonetheless, her July 21, 2008 letter to Mr. Gilmore clearly indicates that trial counsel did not understand the implication of those two prior drug convictions. She cautioned Mr. Gilmore that he was facing “a substantial amount” of time (she calculated a guidelines range of 360 months to life) and her handwritten notes indicate to the court that trial counsel believed that Mr. Gilmore was eligible for a guidelines sentence. Certainly, nothing in the letter or the attachments notifies Mr. Gilmore of any possibility of a mandatory minimum life sentence.
 The court is also convinced that, during this same time frame, trial counsel’s understanding of federal drug conspiracy laws and her assessment of the evidence against Mr. Gilmore were entirely inaccurate. The court is persuaded that trial counsel led Mr. Gilmore to believe that his chances of securing an acquittal were higher than the law would support under the facts of the case and that Mr. Gilmore’s protestations of his “innocence” were informed by trial counsel’s advice. Specifically, trial counsel advised Mr. Gilmore that “sharing” drugs did not mean “distributing” drugs. Mr. Gilmore testified that trial counsel gave him that advice and that testimony is corroborated by trial counsel’s own arguments during the instruction conference at trial. While that legal question is apparently an open one in the Tenth Circuit, [citation omitted], trial counsel’s advice to Mr. Gilmore that the two concepts were, in fact, different is not the law of the Circuit. Nonetheless, Mr. Gilmore, presumably with the go-ahead from trial counsel, testified at length at trial about purchasing methamphetamine from a known drug dealer and sharing those drugs with his co-defendants, his friends and his girlfriend on numerous occasions.
Mr. Gilmore also testified that he drove one or more of his co-defendants to Kansas City, Kansas for the purpose of purchasing methamphetamine, that he knew his co-defendants were drug dealers at the time, and that he assumed his co-defendants were bringing methamphetamine back to St. Joseph, Missouri. Mr. Gilmore’s decision to testify without hesitation about such matters indicates a belief that his level of involvement with his co-defendants did not constitute a violation of federal drug conspiracy laws—a belief that the court is convinced was informed by trial counsel. Trial counsel reviewed the proffer statements on numerous occasions and did not see anything “particularly damning” about Mr. Gilmore. She asked the prosecutor if she was “missing something.” Trial counsel admitted at the evidentiary hearing that she had “some concern about whether or not they had evidence against him.”
After carefully considering the evidence presented at the hearing, the court concludes that Mr. Gilmore has established the requisite prejudice in two respects. First, the court is persuaded that Mr. Gilmore, with the advice and guidance of competent counsel, would likely have obtained a plea agreement in the summer of 2008—prior to the filing of the § 851 notice—that would have contemplated either a 20-year mandatory minimum sentence or, at worst, a mandatory minimum life sentence, but in either case with the opportunity for a reduced sentence under § 3553(e) for substantial assistance. Second, the court is persuaded that Mr. Gilmore, again with the advice and guidance of competent counsel, would likely have obtained a plea agreement just prior to trial that, while incorporating the mandatory minimum life sentence triggered by the § 851 notice, would have provided Mr. Gilmore an opportunity to nonetheless get out from under that statutory minimum through substantial assistance.
In sum, trial counsel’s failure to understand and communicate to Mr. Gilmore the sentencing implications of his two prior felony drug convictions, coupled with trial counsel’s misunderstanding of federal drug conspiracy laws, deprived Mr. Gilmore of the opportunity to make a knowing and intelligent decision about whether to accept the government’s standing plea offer. Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012) (criminal defendant is entitled to competent advice of counsel in plea negotiations). The court is similarly persuaded that Mr. Gilmore’s continued protestations of innocence and his decision to proceed to trial were undoubtedly informed by the affirmative misadvice he received from trial counsel. For the foregoing reasons, the court concludes that Mr. Gilmore’s counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment. 
Regarding the prejudice of counsel's deficient performance, the court made the following factual findings:
[T]he court finds it reasonably probable that Mr. Gilmore and the government would have entered a cooperation agreement in April 2009 if Mr. Gilmore had been represented by constitutionally effective counsel at that time. 
* * *
The mandatory minimum, of course, would only be inapplicable if Mr. Gilmore cooperated and the government filed a § 3553(e) or if the government withdrew the § 851 notice. Because the court is not persuaded that the government would have agreed to withdraw that notice, the prosecutor’s reference to acceptance of responsibility must indicate that she anticipated Mr. Gilmore’s cooperation and the subsequent filing of a § 3553(e) motion.  The court is also persuaded that Mr. Gilmore would have accepted a cooperation agreement . . . .  And while it is impossible to say at this juncture what the nature and scope of Mr. Gilmore’s cooperation might have been (or how useful that information might have been to the government), the court is nonetheless persuaded that a reasonable probability exists that Mr. Gilmore’s ultimate sentence would have been less severe than a life sentence.
Thus, the court concluded that Gilmore demonstrated both that his counsel’s performance was constitutionally deficient and that the performance prejudiced Mr. Gilmore.  Regarding the remedy, the court ordered the parties to meet and confer about an appropriate remedy to see whether the parties can resolve the issue, subject to the court’s approval.  It seems likely that the parties will agree to give Mr. Gilmore the benefit of one of two plea agreements that were originally offered.

Breaking the rules of engagement

Lydia Krebs won in State v. Swindler, No. 104,580 (Kan. Feb. 15, 2013), obtaining a new trial in a Sumner County rape prosecution.  The dispositive issue in the case revolved around law enforcement officers' persistent questioning of Mr. Swindler even after he asked to be released:
In this case, Swindler does not claim officers manufactured information or evidence in order to get him to confess, as was the case in Stone and Swanigan. But he argues that the investigators' bait and switch about his ability to terminate the interview and leave had the same coercive effect.
The video in the appellate record makes it very clear that Swindler wanted to exercise the power the investigators had initially guaranteed that he possessed. From the time that he said "I'm done. I want to go home. I'm done," it is obvious that Swindler wanted to terminate the interview and leave the KBI office. His girlfriend and two small children were waiting for him in the hallway, and he expressed his desire to go to work to provide for his children. He repeated that he was "done" and wanted to go home.
Swindler's first clearly inculpatory statement was not made until he had said that he was confessing "just to get this over with so I can go home." Instead of being allowed to leave, the investigators persisted in questioning him. In particular, we note that Attebury admitted he left the room to consult with Hawkins to avoid an expected invocation of Swindler's right to remain silent. Also, Hawkins met Swindler's repeated efforts to do what he had been told he was free to do with "Well, tell me what happened." The message of these investigators was unmistakable: If Swindler wanted to stop talking and leave, he needed to confess to raping L.C.
In short, the investigators set the rules of engagement and then did not hesitate to break them as soon as they thought Swindler might slip away without telling them what they wanted to hear. Under the totality of these circumstances, the State cannot carry its burden to show that Swindler's resulting oral confession, written confessions, and drawing were given voluntarily under the Fifth Amendment.
The KSC went on to hold that because there was no physical evidence implicating Mr. Swindler, the involuntary statements were "indescribably prejudicial."  As a result, the conviction was reversed and the matter remanded for new trial.

I think lay persons often can't imagine how someone can "confess" to a crime they didn't commit.  This case sets out a nice illustration of how police tactics can often do exactly that.

[Update: the state filed a petition for writ of certiorari on July 9, 2013.]

Monday, February 11, 2013

Acquitted conduct to be reviewed by SCOTUS?

In Stroud v. United States, No. 12-6877, a case from the 8th Circuit, the U.S. Supreme Court will soon decide whether to review the constitutionality of a sentencing court's use of acquitted conduct in federal sentencing.  Stroud is asking the Court to review United States v. Watts, 519 U.S. 148, 157 (1997), which held that "a jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence."

According to Stroud's petition for writ of certiorari, the issues presented in the case are as follows:
1. Does the use of conduct for which petitioner was acquitted by a jury in a prior state trial to enhance petitioner’s federal sentence violate petitioner’s right to trial by jury of the Sixth Amendment to the Constitution?
2. Does the use of conduct for which petitioner was acquitted by a jury in a prior state trial to enhance petitioner’s federal sentence violate the due process clause notice requirement of the Fifth Amendment to the Constitution?
The case was originally scheduled for the Court's conference of November 20, 2012.  But the Court requested that the Government file a response to Stroud's petition (which the Government filed on February 6, 2013).  The Court's request for a response might be a sign that the Court is interested in reconsidering the decision in Watts.

As blogged about here and here, in the Alleyne case, the Supreme Court may be in the process of expanding the Sixth Amendment jury-trial requirements of Apprendi to facts that enhance mandatory minimum sentences.  If this occurs, it is not a stretch to think that the next step might be to hold that the Sixth Amendment prohibits the use of acquitted conduct from enhancing a defendant's sentence in any way.  Needless to say, the use of acquitted conduct in sentencing should be objected to, and the issues preserved for appeal.  

Right to counsel in habeas appeal

Matthew Markovich won his pro se appeal in Markovich v. Green, No. 106,937 (Kan. App. Feb. 8, 2013), obtaining a remand for appointment of counsel to assist him in his appeal from denial of his habeas petition pursuant to K.S.A. 60-1501.  The question involved interpretation of K.S.A. 22-4506, which governs appointment of counsel for indigent persons in habeas cases:
(b) If the court finds that the petition or motion presents substantial questions of law or triable issues of fact and if the petitioner or movant has been or is thereafter determined to be an indigent person as provided by K.S.A. 22-4504 and amendments thereto, the court shall appoint counsel . . . to assist such person . . . . 
(c) If an appeal is taken in such action and if the trial court finds that the petitioner or movant is an indigent person, the trial court shall appoint counsel to conduct the appeal.
The district court had found that Mr. Markovich's 1501 petition did not present substantial questions of law or triable issues of fact, so he did not get an attorney at the district court level.  The state argued that an indigent habeas appellant should only be entitled to appointment of counsel if he or she met the test set forth in subsection (b).  The COA rejected this argument under the plain language of the statute:
There is no threshold requirement found in K.S.A. 22-4506(c) that a petition for writ of habeas corpus under K.S.A. 60-1501 must present substantial questions of law or triable issues of fact in order for an indigent petitioner to obtain appointed appellate counsel.
So, Mr. Markovich gets an attorney to help with his appeal.

We get quite a few of these appeals at the ADO.  The problem is that, if a habeas petitioner doesn't have the assistance of counsel at the trial level, they are rarely able to navigate the procedural requirements to even get into the courthouse doors on the merits.  Even though the rules indicate that the district court should have a hearing unless the records and files clearly show the movant isn't entitled to relief, in practical effect, the vast majority of these cases are disposed of without a hearing because the petitioner isn't able to frame and document the issues sufficiently.  So, by the time the case gets to an appeal, there is usually not much to do.  If the legislature really wanted to make sure that these cases were meaningfully presented and resolved, it should consider requiring appointment of counsel for at least one habeas proceeding after conviction and direct appeal.

[Update: the Department of Corrections filed a PR on March 8, 2013.]

[Further update: the KSC denied the Department's PR and the mandate issued on October 3, 2013].

Friday, February 08, 2013

Live up to your plea agreements!

A couple of KSC cases in cases where the proseuctors violated their  plea agreements today.  Christina M. Kerls won in State v. Peterson, No. 102,198 (Kan. Feb. 8, 2013) and Rachel L. Pickering won in State v. Urista, No. 103,089 (Kan. Feb. 8, 2012).

In Peterson, the state had agreed to not object to a dispositional departure motion and agreed to remain silent at sentencing unless there were misstatements of fact.  But at sentencing, the proseuctor extensively cross-examined a defense expert and then made negative comments about her perception of Mr. Peterson's dishonesty with the expert.  The judge ended up denying the departure motion and sent Mr. Peterson to prison.  The KSC held that the prosecutor's cross-examination, while coming close to the "fine line," were proper acts to correct incomplete and inaccurate statements by the expert.  But the KSC also held that the continuing comments by the prosecutor crossed the line:
Had the prosecutor been content with cross-examination, Peterson would leave this court empty-handed. But she was not. She polished off her closing comments to the court by saying Peterson's dishonesty to Barnett "should be considered by the court that he cannot or will not address his looking at child pornography or desire to look at child pornography." This went too far. The comment was aimed directly to Peterson's likelihood of recidivism, the main issue before a sentencing judge considering a dispositional departure to probation, and it violated the State's plea agreement promise to stand silent.
In Urista, the state recommended a 102-month sentence (as promised).  But in her sentencing recommendations, the prosecutor went on to state extensive personal and negative observations about Mr. Urista and the judge ended up imposing a 204-month sentence.  The KSA held that the comments undermined the plea agreement and were not in response to anything Mr. Urista did or said at sentencing:
But the comments at issue in this case do not constitute a mere factual description of the crimes or a summary of the victims' statements. Instead, the comments at issue here were an example of the prosecutor giving her personal opinion regarding Urista based upon her prior involvement with him, her review of the facts, and the victims' statements. In other words, the prosecutor not only engaged in providing a negative editorial, but a particularly grave summation regarding Urista based on these observations. Such comments can be viewed as effectively arguing against the parties' recommended sentence.
In each case, the KSC ordered specific performance and remanded for resentencing before a different judge where the state fulfils its agreement.

Here is coverage of the Peterson case in the Lawrence Journal-World.

Sunday, February 03, 2013

March 2013 KSC Docket

Here are the criminal cases on the KSC docket for March 4-8, 2013.  These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details. Don't forget, arguments are streamed live over the internet at the appellate court website (here) if you would like to listen in to any of these arguments.

March 4--Monday--a.m.

State v. Jessica Cummings, No. 102,527 (Sedgwick)
Direct appeal (petition for review); Misdemeanor manslaughter
Lydia Krebs
[Rvd/Rmd; Johnson; June 28, 2013]
  1. Insufficient endangerment instruction
  2. Failure to give requested intent instruction
  3. Failure to instruct the jury regarding "reasonable probability"
State v. Eric Hurd, No. 104,198/104,765 (Seward)
Direct appeal (petition for review); Failure to register
Christina M. Kerls
[Rev/Rmd; Moritz; Dec. 27, 2013]
  1. Failure to grant arrest of judgment
  2. Improper amendment of complaint
  3. Insufficient evidence of criminal threat
  4. Improper consolidation
  5. Improper trial date setting
  6. Biased judge
  7. Failure to consider recusing prosecutor
Damon Vontress v. State, No. 102,904 (Sedgwick)
K.S.A. 60-1507 appeal (petition for review)
Michael P. Whalen
[Affirmed; Nuss; May 30, 2014]
  1. Improper summary dismissal under time limit

March 5--Tuesday--a.m.

State v. Samuel Llamas, No. 104,827 (Lyon)
Direct appeal; First-degree felony murder
Ryan Eddinger
[Affirmed; Luckert; Oct. 25, 2013]
  1. Insufficient evidence of aiding and abetting
  2. Improper restriction of accomplice testimony instruction
  3. Failure to provide aiding and abetting instruction clarification
State v. Richard Jones, No. 103,400 (Johnson)
Sentencing appeal (petition for review)
Gerald E. Wells
[Petition dismissed as improvidently granted March 12, 2013]
  1. Failure to correct illegal sentence
State v. Pamela Hall, No. 102,297/102,663 (Johnson)
Sentencing appeal (petition for review)
Ryan Eddinger
[Vac/Rmd; Beier; June 28, 2013]
  1. Improper calculation of restitution
State v. Adam Hand, No. 103,677 (Sedgwick)
Sentencing appeal (petition for review)
Joanna Labastida
[Affirmed; Beier; June 28, 2013]
  1. Improper calculation of restitution

March 6--Wednesday--a.m.

State v. Cody Breeden, No. 104,475 (Wyandotte)
Direct appeal; Agg criminal sodomy
Matthew J. Edge
[Affd/Vac; Luckert; June 14, 2013]
  1. Failure to instruct on attempt as lesser
  2. Failure to give limiting instruction on bad act evidence
  3. Failure to obtain waiver of right to testify on record
  4. Cruel and unusual punishment
State v. Israel Mirales, No. 104,474 (Butler)
Direct appeal; Capital murder
Debra J. Wilson
[Affirmed; Rosen; May 10, 2013]
  1. Gruesome photographs
  2. Failure to give lesser of felony murder
  3. Prosecutorial misconduct

March 7--Thursday--a.m.

State v. Myoun Sawyer, No. 101,624 (Wyandotte)
Direct appeal (petition for review); Criminal threat
Reid T. Nelson
[Rvd/Rmd; Beier; July 26, 2013]
  1. Improper burden of proof instruction
  2. Failure of judge to recuse
  3. Failure to give requested full readback
State v. Dean Boleyn, No. 105,483 (Reno)
Direct appeal; Agg indecent liberties
Ryan Eddinger (brief)
[Affirmed; Rosen; June 14, 2013]
  1. Improper admission of prejudicial photographs
  2. Life sentence is cruel and unusual punishment
State v. Michael Randolph, No. 103,918 (Wyandotte)
Direct appeal; Rape
Rebecca E. Woodman (brief); Sarah Ellen Johnson (argue)
[Affd/Vac; Luckert; May 10, 2013]
  1. Insufficient evidence of alternative means
  2. Improper admission of incriminating statement
  3. Improper admission of evidence
  4. Incorrect standard for considering departure

March 8--Friday--a.m.

State v. Robert Weber, No. 104,658 (Sedgwick)
Direct appeal; Rape
Rachel L. Pickering
[Affd/Rvd/Rmd; Johnson; July 5, 2013]
  1. Multiplicity of rape and attempted rape
  2. Improper sentencing as habitual sex offender
  3. Insufficient evidence of alternative means
  4. Overbroad jury instruction
  5. Improper enhanced sentence without proof to jury
State v. Rex Reiss, No. 102,071 (Butler)
Direct appeal (petition for review); DUI
Matthew J. Edge
[Rev/Rmd; Nuss; May 2, 2014]
  1. Fourth Amendment violation

Friday, February 01, 2013

Hunch does not equal reasonable suspicion

Michelle A. Davis won in State v. Martinez, No. 99,595 (Kan. Feb. 1, 2013), obtaining reversal of a Johnson County possession conviction.  Law enforcement officers had seized Mr. Martinez suspecting that he knew the whereabouts of a person they were trying to serve with a warrant.  The parties agreed that the officers had conducted an investigatory stop, so the KSC focused on whether that type of stop was justified.  A majority of the COA panel had held that officers had reasonable suspicion to believe the target of the warrant was in Mr. Martinez' car.  The KSC indicated that the circumstances presented added up to nothing more than a hunch:
Officers may conduct such stops only when there is reasonable suspicion the person "is committing, has committed or is about to commit a crime." K.S.A. 22-2402(1). Here there was no reasonable basis to believe Martinez was committing the crime of aiding a felon or obstructing legal process by helping Aguirre escape.
There is no indication, for example, that the officers witnessed a contemporaneous sighting of both suspects together at the apartment complex on this occasion. The officers never testified that they saw Aguirre in the car prior to the stop, and there was no evidence the officers believed Aguirre might be concealed in the car. Additionally, there was no reasonable basis upon which officers could believe Martinez was in possession of cocaine.
Rather than relying on Finley, which can be distinguished because it involved exigent circumstances concerning a just-reported violent crime at or near the scene, we believe this case is more analogous to another Court of Appeals decision, State v. Young, No. 102,497 (Kan. App. 2010) (unpublished opinion), in which the panel held officers were not permitted to stop a woman whom they suspected of carrying a fugitive around in a car trunk. In that case, the court characterized the officer's suspicion that the fugitive was in the trunk as "purely speculative."
Reduced to its essence, the district court here found experienced officers with a hunch rises to reasonable suspicion. And although the officers' hunch in this case was correct—that Martinez was traveling with Aguirre—a hunch has never been the benchmark of a proper police seizure.
Because the officers lacked reasonable suspicision, the KSC held that the distridct court should have suppressed the evidence found during the investigatory detention.

Incorrect advice about ability to refuse PBT requires suppression

Joanna Labastida won in State v. Edgar, No. 103,028 (Kan. Feb. 1, 2013), obtaining reversal of a Cowley County DUI conviction.  The conviction stemmed from a stop at a license check lane.  During investigation of suspected DUI, the officer told Mr. Bruno that he "didn't have a right to refuse [the PBT]" which was incorrect under the statute.  The KSC held that a person can withdraw the implied consent given to a PBT under the statute.  The KSC also held that the error in this case rendered the notice substantially out of compliance with the statute:
But as the district court noted, the statute concerns the failure to give notice—not failing to provide the correct notice. Edgar also points out that the Court of Appeals inserted the word "proper" in the statute when it read the statute as "clearly and unambiguously" providing that "a law enforcement officer's failure to giver proper notice shall not be an issue or defense in any action." (Emphasis added.) Edgar, 45 Kan. App. 2d at 351. Edgar argues that in doing so the Court of Appeals misinterpreted the PBT implied consent statute to say that providing incorrect notice is the same as providing no notice at all. Edgar is correct. The Court of Appeals misstated the statute and then premised its holding based upon that misstatement.
Because the officer told Mr. Edgar that he could not refuse consent, the KSC held that the consent was not voluntary and the evidence obtained from the PBT illegal.