Thursday, December 26, 2013

Exoneration through persistence

Here is an article on a recent win by Michael Whalen.  Mr. Swenson was convicted of attempted second-degree murder in Sedgwick County in June 2000.  After a long, long procedural history, in February 2010, the Court of Appeals ordered a new trial and the district court discharged Mr. Swenson (blogged about here and here).  The state successfully appealed that dismissal, but as the article relates, in December 2013, the state dropped the charges!

Monday, December 16, 2013

Thank you, DOJ. May I have another?

The U.S. Department of Justice recently adopted the position that the recommended U.S.S.G. range for supervised release for a SORNA conviction (failure to register - 18 U.S.C. § 2250) is a flat term of five years.  In contrast, the statutory range of supervised release for a SORNA conviction is five years to life.  18 U.S.C. § 3583(k).  Thus, this DOJ position should help keep supervised release terms in SORNA cases on the low end of that statutory range.

The DOJ's concession on this issue came in United States v. Davis, No. 13-4112 (4th Cir. 2013).  In its motion to remand for resentencing, the government explained that it changed its position after receiving "the Department's guidance."  I have recently received a similar filing in a SORNA case in my district.  So the word is apparently out.  This DOJ position is obviously important for SORNA prosecutions, but it may also be important in a good number of federal drug prosecutions.
 
In Davis, the DOJ conceded the following: 1) that the failure to register as a sex offender is not a “sex offense,” under U.S.S.G. § 5D1.2(b)(2); and 2) the advisory guideline range for supervised release for such a conviction is a single point: 5 years.  In doing so, the DOJ apparently adopted the position of the Seventh Circuit in United States v. Goodwin, 717 F.3d 511 (7th Cir. 2013).


United States v. Goodwin & United States v. Gibbs

In Goodwin, 717 F.3d at 520, the court held that a life term of supervised release constituted plain error because a SORNA violation was not a “sex offense” under U.S.S.G. § 5D1.2(b)(2). Accordingly, the court held that the guidelines did not recommend lifetime supervised release.  But the court went on to hold that the advisory guidelines range for supervised release was a single point: five years.  Goodwin, 717 F.3d at 520. Citing U.S.S.G. § 5D1.2(c), the court stated, “[w]here, as here, the statutory minimum term of supervised release is greater than the top end of the Guidelines range of § 5D1.2(a)(2), the statutory minimum controls.”  Goodwin, 717 F.3d at 520.

The Goodwin decision cited to United States v. Gibbs, 578 F.3d 694, 695 (7th Cir. 2009), which explained a similar issue as follows:
In keeping with that idea, § 5D1.2(c) of the Guidelines provides that “[t]he term of supervised release imposed shall be not less than any statutorily required term of supervised release.” Thus, the statutory minimum term of supervised release defines either the bottom limit of the advisory Guideline range or the entire range (if it coincides with the top of the Guidelines range). For Gibbs, because the Guidelines suggested three to five years but the statute requires five years, the advisory Guideline range becomes five years, period.
The issue in Gibbs concerned the correct guidelines range of supervised release in a prosecution under 21 U.S.C. § 841(a)(1).


Application to Federal Drug Cases

Just as in SORNA prosecutions, certain defendants who are convicted of federal controlled substance offenses under 21 U.S.C. § 841(a) face a statutory minimum term of supervised release that is higher than the usual guidelines range.   See U.S.S.G. § 5D1.2(a)(1) (setting a term of supervised release of "[a]t least two years but not more than five years for a defendant convicted of a Class A or B felony").  Cf. 21 U.S.C. § 841(b)(1)(A) (five-year or ten-year statutory minimum term of supervised release); 21 U.S.C. § 841(b)(1)(B) (four-year or eight-year statutory minimum term of supervised release); 21 U.S.C. § 841(b)(1)(C) (three-year or six-year statutory minimum term of supervised release).

Thus, in many of these controlled substance cases, “the statutory minimum term of supervised release is greater than the top end of the Guidelines range of § 5D1.2(a)(2) . . . ."  And in this situation, U.S.S.G. § 5D1.2(c) dictates that "the statutory minimum controls.”  This is true regardless of whether the crime of conviction is failure to register as a sex offender under 18 U.S.C. § 2250 or a controlled substance offense under 21 U.S.C. § 841(a).  Thus, the government's concession of this issue in a SORNA case should impact drug prosecutions under  21 U.S.C. § 841(a).

The Tenth Circuit previously considered the application of U.S.S.G. § 5D1.2(c) to a supervised release term for a 21 U.S.C. § 841 conviction in United States v. Poe, 556 F.3d 1113, 1129 (10th Cir. 2009).   In Poe, the court considered the procedural reasonableness of a 10-year term of supervised release for a conviction of possession of methamphetamine with intent to distribute sentenced under 21 U.S.C. § 841(b)(1)(C), where the minimum statutory term of supervised release was six years.  The court summarized the defendant's argument:  "Poe contends that § 5D1.2(a) interacts with § 5D1.2(c) such that if a statutory mandatory minimum is higher than the term a defendant would otherwise receive under § 5D1.2(a), that statutory minimum is also the maximum of the applicable Guidelines range. Under this theory, the applicable Guidelines range in this case is six years, no more, no less."  Poe, 556 F.3d at 1129.  The Poe court did not reach the issue, concluding instead that Poe had not shown plain error.  Id.

Nonetheless, it appears that the issue in Poe regarding the guidelines range of supervised release for a conviction under  21 U.S.C. § 841(a) is the same as the SORNA issue conceded by the DOJ in the Davis case.  Although the concession in Davis was cursory and did not cite to case law, it appears the DOJ adopted the holding of the Seventh Circuit in Goodwin.  And because of this similarity, attorneys in these cases should object to any PSR that sets a guidelines range of supervised release of "___ years to life."  Instead, it is very likely that Goodwin/Gibbs and U.S.S.G. § 5D1.2(c) control the guidelines range of supervised release for offenses sentenced under 21 U.S.C. § 841(b).  And as explained in Gibbs, "the statutory minimum term of supervised release defines either the bottom limit of the advisory Guideline range or the entire range (if it coincides with the top of the Guidelines range)."  See 578 F.3d at 695.
   

Friday, December 13, 2013

January 2014 KSC Docket

Here are the criminal cases on the KSC docket for January 27-31, 2014.  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 on any of these arguments.

January 27--Monday--a.m.

State v. Alehandro Betancourt, No. 106,318 (Sedgwick)
Direct appeal; First-degree murder
Michelle A. Davis
[Affirmed; Rosen; April 11, 2014]
  1. Improper aiding and abetting instruction
  2. Improper alternative means instruction
  3. Failure to give lesser included offense for voluntary intoxication
  4. Failure to grant mistrial after prejudicial information at voir dire
State v. Shawn Alderson, No. 106,471 (Sedgwick)
Re-sentencing appeal
Sean M.A. Hatfield, Carl F.A. Maughan
[Affirmed; Rosen; April 11, 2014]
  1. Denial of release of restitution order
State v. James Williams, No. 106,865 (Sedgwick)
Sentencing appeal
Ryan Eddinger (brief); Adam D. Stolte (argue)
  1. Improper classification of prior conviction

January 28--Tuesday--a.m.

State v. Willie Reed, No. 105,307 (Wyandotte)
Direct appeal; Agg indecent liberties
Ronald L. Jurgenson

  1. Insufficient evidence
  2. Whether Jessica's Law is Cruel and Unusual Punishment
  3. Improper admission of hearsay
  4. Improper admission of evidence that contains comment on credibility
  5. Prosecutorial misconduct (comment of right to remain silent)
State v. Loviss Todd, No. 106,021 (Wyandotte)
Direct appeal; Felony murder
Michelle A. Davis
[Affd/Vacd; Beier; April 25, 2014]
  1. Failure to give accomplice instruction
  2. Improper reasonable doubt instruction
  3. Failure to give lesser-included offense instruction for second degree murder
  4. Failure to give proper eyewitness ID instruction
  5. Prosecutorial misconduct
State v. Jose Santos-Vega, No. 104,485 (Wyandotte)
Direct appeal; Agg indecent liberties
Michael J. Bartee
[Rvd/rmd; Biles; March 21, 2014]
  1. Improper alternative means instruction
  2. Failure to give unanimity instruction
  3. Improper evidence of invocation of right to silence
  4. Disproportionate sentencing
State v. Anthony Waller, No. 106,102 (Reno)
Direct appeal; Felony murder
David E. (Rick) Roberts
  1. Failure to give lesser-included offense instructions
  2. Denial of mistrial after courtroom outburst
  3. Multiplicity

January 29--Wednesday--a.m.

State v. Scott Roeder, No. 104,520 (Sedgwick)
Direct appeal; First-degree murder
Rachel L. Pickering
  1. Failure to give lesser-included offense instructions
  2. Failure to change venue
  3. Prosecutorial misconduct
  4. Failure to allow necessity defense
  5. Failure to give instruction on defense of others
  6. Improper weighing of aggravating and mitigating factors for hard-50
  7. Hard-50 is unconstitutional under Alleyne
State v. Kelvin Gibson, No. 106,646 (Wyandotte)
Michael J. Nichols (brief); Jeffrey C. Leiker (argue)
Direct appeal; First-degree murder
[Affirmed; Biles; April 18, 2014]

  1. Denial of motion to suppress statements
  2. Failure to allow defendant to testify at suppression hearing
State v. Andrew Morris, No. 107,768 (Crawford)
Motion to withdraw plea
Meryl Carver-Allmond
[Affirmed; Beier; March 7, 2014]
  1. Denial of motion to withdraw plea
State v. Andrew Greene, No. 106,640 (Johnson)
Direct appeal; Rape
Rachel L. Pickering
  1. Improper classification as aggravated habitual sex offender
  2. Failure to suppress statements

January 30--Thursday--a.m.

State v. John Horton, No. 101,054 (Johnson)
Appeal after remand
Lydia Krebs
  1. Failure to allow re-opening of case to allow defense evidence
State v. Christian Reese, No. 106,703 (Johnson)
Direct appeal (petition for review); DUI
Jay Norton
  1. Whether amendments to DUI statute apply retroactively
State v. Johnathan McCune, No. 102,883 (Johnson)
Direct appeal; Rape
Michael J. Bartee
  1. Improper admission of prior bad act evidence
  2. Denial of right to confront witnesses
  3. Improper denial of psychological examination of witnesses
  4. Jessica's Law is vague
  5. Jessica's Law is Cruel and Unusual Punishment
State v. Chris King, No. 105,995 (Leavenworth)
Direct appeal; Rape
Reid T. Nelson
  1. Improper admission of prior acquitted conduct
  2. Failure give unanimity instruction
  3. Improper exclusion of defense evidence of prior sexual abuse
  4. Improper denial of challenges for cause of eight potential jurors
  5. Life sentences disproportionate
  6. District court improperly believed it could not depart downward

January 31--Friday--a.m.

State v. Roger Hollister, No. 106,317 (Atchison)
Direct appeal; Capital murder
Sarah Ellen Johnson
  1. Failure to give lesser-included offense instruction for second-degree murder
  2. Improper capital murder instruction
  3. Insufficient evidence
  4. Prosecutorial misconduct
State v. Rasmus Eddy, No. 106,132 (Saline)
Direct appeal; Rape
Meryl Carver-Allmond
[Affirmed; Johnson; March 21, 2014]
  1. Insufficient evidence of alternative means of rape
  2. Failure to require psychological exam of witnesses

Saturday, December 07, 2013

Conflicts result in ineffective assistance of counsel

Gerald Wells won in State v. Stovall, No. 100,704 (Kan. Nov. 22, 2013) obtaining a new trial in a Shawnee County rape prosecution.  The district court had denied three motions to withdraw. The KSC described the district court's action on the motions:
The district court did not hear the withdrawal motion until the sentencing hearing. Stovall's attorney told the court that her communication with Stovall had deteriorated to the point that, except for 5 minutes before the hearing, the two had not spoken since the jury's verdict 2 months prior. The attorney advised the court that Stovall had asked her to file an ineffective assistance of counsel claim on herself, which she would not do. She asked to withdraw so that the court could appoint Stovall new counsel who could effectively address his new trial and sentencing concerns, i.e., who could mount a legitimate challenge to the effectiveness of trial counsel.

Despite that articulation of a patently obvious reason for the defendant to have conflict-free counsel at that stage of the proceedings, the district court voiced a query as to how trial counsel's withdrawal at such a late stage in the process would serve Stovall's interests. Further, the court recited the non sequitur that it had denied the two prior motions to withdraw because the court did not believe the attorney had shown the conflict "arose [sic] to the level that was so material that it would cause a conflict." Inscrutably, the court also declared that the attorney should have known about and raised her issues much sooner, notwithstanding that the third motion, based on a total breakdown in communication, was filed within a month of the last attorney/client communication.
The KSC held that the district court abused its discretion by failing to consider the merits of the motions:
We have no hesitation in specifically stating that the trial court's failure to appropriately deal with defense counsel's declared conflicts of interest was an abuse of discretion. Moreover, the district court's actions in this case were an abuse of discretion for reasons other than its failure to conduct an in-depth inquiry.

As noted above, an abuse of discretion can occur when the district court is guided by an erroneous legal conclusion. The district court's reliance on KRPC 1.16(c) as a basis for denying defense counsel's motion to withdraw was legally misguided.
The KSC went on to consider whether the case fell into a category of cases that require reversal without a further showing of prejudice:
Here, defense counsel tried to explain the constraints imposed upon her by the conflicts, such as when she told the district court: "I think any time you have to point the finger at another client saying this client didn't do it, this other client did[, there is a conflict]." That dilemma is not difficult to grasp and one has to wonder whether another attorney, who owed no attorney-client duty to Pascha, would have developed a trial defense strategy implicating Pascha. Pointedly, the conflicted attorney did not do so after being forced to try the case.

Defense counsel also advised the court about the problem that was actually caused by the State when it subpoenaed her to essentially testify against Stovall in the Fulton case. As related above, the Court of Appeals described the corrosive effect that circumstance had on the attorney-client relationship. At the hearing on the third motion to withdraw, the district court opined that the subpoena conflict had not materialized, because the defense attorney had not actually testified in the Fulton case. But that observation misses the point. The attorney-client privilege is designed to secure a client's confidence in the secrecy of the communications with his or her attorney during the representation. If a client believes that the State can force his or her attorney to testify against the client, the damage to the free exchange of information between attorney and client has already been done. Moreover, it is no wonder that Stovall suspended all communication with his attorney after the trial, given that his attorney repeatedly stated in open court that she could not advocate solely for him because of duties she owed to others.

As a consequence of the adverse effect on representation created by defense counsel's conflicts of interest, Stovall was effectively denied his Sixth Amendment right to effective assistance of counsel at trial.  
The KSC went on to note that it would have reversed on independent conflicts grounds stemming from a third motion to withdraw as well.