Case Law Update: 2011-2014 Cumulative Edition

* Peugh v. U.S., 93 Crim. L. Rep. 353, ___ U.S. ___ (U.S. 6/10/13):

Holding: Sentencing Defendant under new version of USSG that were promulgated after his crime was committed and which increased his punishment violated Ex Post Fatco Clause.
U.S. v. Wetherald, 89 Crim. L. Rep. 11 (11^th Cir. 3/28/11):
Holding: Even though USSG are only advisory, ex post facto clause still precludes court from applying a USSG that is more severe than the version in effect at the time of the offense.
Gonzalez v. State, 92 Crim. L. Rep. 467 (Ind. 1/10/13):

Holding: Retroactive application of lifetime sex offender registration to a person convicted of the lowest level sex offense violated ex post facto.
Martin v. Kansas Parole Bd., 2011 WL 2279059 (Kan. 2011):

Holding: Amendment that lengthened postrelease supervision was ex post facto.
Doe v. Dept. of Public Safety and Correctional Services, 92 Crim. L. Rep. 724 (Md. 3/4/13):

Holding: Sex offender registration law was ex post facto under state ex post facto provision as applied to person whose crime occurred years before registration law was enacted.
In re Bruce S., 2012 WL 6197528 (Ohio 2012):

Holding: New sex offender law could not be applied to offense committed after its enactment but before its effective date.
State v. Ordunez, 2012 WL 2947787 (N.M. 2012):

Holding: Retroactive application of a new law prohibiting credit for time served on probation was ex post facto.
Smith v. State, 2013 WL 2458721 (Ala. Crim. App. 2013):

Holding: In death penalty case, Defendant could not be convicted of an aggravator that did not exist at the time of his offense.
People v. Douglas M., 2013 WL 57661105 (Cal. App. 2013):

Holding: Statute imposing additional conditions on probation for sex offenders did not apply retroactively because this likely would violate ex post facto in that, among other things, the statute required probationers to make additional payments and waive privileges against self-incrimination and psychotherapist privilege.
People v. Wade, 2012 WL 1150847 (Cal. App. 2012):

Holding: An amendment of the grand theft statute increasing the monetary threshold for the offense applied retroactively because the amendment was motivated by a desire to save the state money by avoiding sending certain defendants to prison.
People v. Gray, 2011 WL 4060299 (Cal. App. 2011):

Holding: Ex post facto principles were violated by retroactive application of One Strike law.
Strong v. Superior Court, 2011 WL 3796354 (Cal. App. 2011):

Holding: Where homicide statute was amended to remove requirement that victim die within three years, it was ex post facto to apply this to defendants whose three year period regarding their victims had already expired at time of the amendment.
In re Vicks, 2011 WL 1778224 (Cal. App. 2011):

Holding: Victim’s Bill of Rights which increased interval between parole hearings was ex post facto when applied to prisoner sentenced before the law.
Ewell v. State, 2012 WL 5935988 (Ga. App. 2012):

Holding: Life sentence under new child molestation statute was ex post facto as applied to Defendant who committed his offense while the old statute was in effect.
Berlin v. Evans, 2011 WL 1466616 (N.Y. Sup. 2011):

Holding: Sex offender law which prohibited living within 1,000 feet of schools was ex post facto as applied to persons who committed crimes before the law.
Com. v. Rose, 2013 WL 6164348 (Pa. Super. 2013):

Holding: Where there was a several year delay between Defendant’s acts and the time that murder victim died, it violated ex post facto to apply the murder statute in effect at time of victim’s death since that statute increased the sentence; although the crime of murder was not consummated until victim actually died, all of Defendant’s acts occurred prior to passage of the harsher statute.
Com. v. Rose, 2012 WL 2362578 (Pa. Super. 2012):
Holding: Application of sentencing statute in effect at time of victim’s death was ex post facto; applicable statute was one in effect at time of the acts that gave rise to the death.
Phillips v. State, 2011 WL 2409307 (Tex. Crim. App. 2011):

Holding: Where the statute of limitations had already expired in sex case, it would be ex post facto to apply a new amendment extending the statute of limitations to the Defendant.

Experts
State v. Perea, 94 Crim. L. Rep. 273 (Utah 11/15/13):
Holding: Scientific evidence on false confessions has advanced to where expert should be permitted to testify about empirical research as to when people give false confessions, including sleep deprivation, presentation of false evidence, questioners’ “minimization” techniques, defendant’s age, defendant’s intelligence, and certain personality traits.

Expungement
Adum v. St. Louis Metropolitan Police Dept., 2014 WL 839961 (Mo. App. E.D. March 4, 2014):

Even though Petitioner presented an affidavit of alleged assault victim that she did not wish to prosecute, Petitioner was not eligible for expungement of his arrest record because he did not affirmatively prove that his arrest was based on false information, i.e., he did not show prove his actual innocence of the offense.

Facts: Petitioner was arrested for a domestic assault offense, which ultimately was not prosecuted. He sought to expunge his arrest record. As evidence, he submitted an affidavit from the alleged victim (his wife) that she did not wish to prosecute Petitioner. In opposition, the State presented two Officers who testified that they observed injuries on the victim’s body, and that she had said that Petitioner assaulted her. The trial court ordered expungement. The State appealed.

Holding: Sec. 610.122 allows for expungement of arrest records if certain conditions are met. Here, the only dispute is over conditions that “the arrest was based on false information” and that “[t]here is no probable cause, at the time of the action to expunge, to believe the individual committed the offense.” Petitioner has the burden under Sec. 610.122 to show by a preponderance of evidence his actual innocence of the offense for which he was arrested. Here, Petitioner has presented no evidence that his arrest was based on false information. Even though the trial court found his arrest was based on false information, this was against the weight of the evidence because the two Officers testified that they saw injuries on the alleged victim, and there is nothing to show that the Officers were not credible. But even assuming that the court found the Officers to be not credible, the only evidence submitted by Petitioner was the affidavit from victim that she did not wish to prosecute. That is not the same as establishing actual innocence of the offense. Order of expungement reversed.
In re D.J.B., 94 Crim. L Rep. 539, 2014 WL 260560 (N.J. 1/16/14):

Holding: New Jersey statute which allowed expungement of an “adult” conviction if Defendant has not been convicted of a prior or subsequent crime allowed for expungement, even though another statute provided that for purposes of expungement, any act which resulted in a juvenile being adjudged a delinquent shall be classified as if committed by an adult, and Defendant had a prior delinquency adjudication; the “adult” expungment statute was not affected by the juvenile statute, which applied only to expungement of juvenile convictions.


Extradition
U.S. v. Kashamu, 89 Crim. L. Rep. 798, 2011 WL 3849642 (7^th Cir. 9/1/11):

Holding: An English magistrate’s findings that were made prior to Defendant’s extradition to U.S. are not binding in U.S. underlying prosecution.
Skaftouros v. U.S., 2010 WL 5299871 (S.D. N.Y. 2010):

Holding: Extradition to Greece should not be granted where Greek arrest warrant was defective under Greek law.


Factual Basis
Douglas v. State, 410 S.W.3d 290 (Mo. App. E.D. 2013):

Factual basis was lacking for guilty plea to second degree murder where plea colloquy did not unequivocally show that Defendant, who was the driver of a car from which a passenger shot a person from the car, aided or encouraged shooter to shoot the victim or acted with the purpose of promoting the shooting.

Facts: Defendant pleaded guilty to second degree murder and associated charges. At the plea colloquy, Defendant said that Shooter came and picked him up, and asked him to drive. Defendant drove Shooter where Shooter said to go, and then Shooter pulled out a gun and shot victim from the car. Defendant and Shooter then fled. Defendant said he didn’t know Shooter was going to do this and didn’t know Shooter had a motive to kill victim. At another point in the plea colloquy, however, Defendant said he knew this was going to happen. Defendant subsequently filed a Rule 24.035 motion, alleging there was not a factual basis for the plea.

Holding: Rule 24.02(e) requires a factual basis for a guilty plea. The dispositive issue here is whether the plea showed that Defendant (Movant) was aware of the nature of the charges necessary to prove that he aided or encouraged Shooter with the purpose of committing second degree murder or acted with the purpose of promoting or furthering Shooter’s actions. While Defendant admitted to most of the elements of second degree murder, the plea court failed to unequivocally establish that Movant was driving the car “for the purpose” of committing the offense. The record does not establish that Defendant unequivocally understood the nature of the charge against him (emphasis in original). Although the plea court established the Defendant was present during the crime and fled from it, the plea court’s questioning of Defendant failed to unequivocally establish that Defendant drove the car knowing that the purpose of the driving was for Shooter to commit the shooting.
Cafferty v. State, 2014 WL 5648639 (Mo. App. W.D. Nov. 4, 2014):
Even though guilty plea form stated that Movant understood the charge of child nonsupport, where Movant told judge during guilty plea that he didn’t pay his child support because he couldn’t find a job after being released from jail, Movant’s guilty plea (1) lacked a sufficient factual basis because he asserted “good cause” for not paying, and (2) was not knowing and voluntary because the record did not show that he understood the specific nature of the charge against him.

Facts: Movant pleaded guilty to criminal nonsupport. During the guilty plea hearing, the judge read the charge to Movant, asked if he had failed to pay child support as alleged, and asked “why was that?” Movant said, “Because I couldn’t find work. Ever since I got out of prison it has been hard to find work.” The Court accepted the plea.

Movant subsequently filed a Rule 24.035 motion.

Holding: Movant claims that no factual basis established that he failed to pay child support “without good cause.” At the time Movant pleaded guilty, Sec. 568.040 provided that a person commits the crime of nonsupport if he “knowingly fails to provide, without good cause, adequate support.” Given Movant’s explanation for why he failed to pay, he did not unequivocally state that he lacked good cause to provide support. Even though Movant signed a petition to enter a plea of guilty and stated that he fully understood the charges against him, a plea petition is not a substitute for a judge insuring that a defendant understands the charge. Movant’s answer as to why he didn’t pay required that the judge explore further to determine either that Movant had the ability to pay or purposely maintained his inability in order to avoid paying. Here, the record does not show that Movant understood the specific nature and elements of the charge. Conviction vacated and remanded.
Frantz v. State, 2014 WL 4547840 (Mo. App. W.D. Sept. 16, 2014):

(1) Even though Movant said at his guilty plea that counsel had explained the charge to him, that Movant understood it and that Movant was guilty, this does not negate a claim of no factual basis for the charge because a defendant’s counsel can misunderstand the elements and law of a charge in explaining them to Movant; and (2) even though Movant had $3,830 in cash that he said was from a drug sale, this did not constitute a factual basis for “money laundering” because there was no physical transfer of the money from one person to another with the purpose to conceal the nature, location, source, ownership or control of the money.

Facts: Movant was arrested with $3,830 in bundled money, and a small amount of marijuana. He admitted the money was from a drug sale. He pleaded guilty to “money laundering,” Sec. 574.105.2(2). At the plea colloquy, the court read the charge, asked Movant if counsel had explained the charge and whether he understood it, and whether he was pleading guilty because he was guilty. Later, Movant filed a 24.035 motion alleging there was no factual basis for the plea.

Holding: Missouri case law suggests that the inquiry into whether a sufficient factual basis exists is satisfied by a defendant’s assertion that counsel explained the charge and that Movant understood it. The problem, however, is that counsel might misunderstand the elements or law, and convey this misunderstanding to Movant. Thus, a Movant can honestly answer such questions affirmatively and believe himself to be guilty, but he may not, in fact, be guilty under a correct interpretation of law. The purpose of a factual basis inquiry is to protect a defendant from pleading guilty when his conduct does not actually fall within the charge. Sec. 574.105.2(2) requires proof of two transactions: (1) the underlying criminal activity that produces money, and (2) a subsequent transaction involving the physical transfer of the money from one person to another with the purpose to conceal the nature, location, source, ownership or control of the money. Here, there was nothing stated at the guilty plea that showed the second element. Simply reading the charging document which merely quotes the statute is not sufficient to establish a factual basis. The better practice is for the plea court to ascertain facts on the record regarding a defendant’s specific conduct that the State believes supports the elements of the offense charged. The record must reflect the defendant’s actual, factually specific conduct leading to the charge. Conviction vacated.
U.S. v. Culbertson, 2012 WL 335765 (2d Cir. 2012):

Holding: Defendant’s guilty plea to conspiracy to import five kilograms or more of cocaine was not supported by a factual basis, in that the defendant insisted he knew of and agreed to a conspiracy to transport only three kilograms.
U.S. v. Szymanski, 88 Crim. L. Rep. 350294 (6^th Cir. 2011):

Holding: Where in child pornography plea the court failed to inform Defendant that the Gov’t had to prove he knew that the material he had featured underage persons, this warranted allowing withdrawal of plea because Defendant in his PSI denied any knowledge that the material he had constituted child pornography.
State v. Daughtry, 89 Crim. L. Rep. 180 (Md. 4/25/11):

Holding: Where a plea record reflects only that Defendant was represented by counsel and that Defendant was pleading guilty, court will not presume that counsel explained to Defendant the nature of the charges against him; plea is not voluntary on such a sparse record.
People v. Worden, 2013 WL 6096113 (N.Y. 2013):

Holding: There was no factual basis for guilty plea for rape where prosecutor, defense counsel and judge all misunderstood definition of “lack of consent’ under statute governing date-rape.
Findings of Fact, Conclusions of Law (Rules 24.035 and 29.15)
Burgess v. State, No. SC91571 (Mo. banc 7/19/11):

Holding: Where motion court dismissed postconviction motion without findings of fact and conclusions of law, case is remanded for entry of findings.

Editor’s Note: This case is noteworthy not because of the holding, but because the case posed the question of whether a movant can waive his postconviction rights as part of a plea bargain. The Supreme Court did not decide this issue because of the remand. However, in a footnote, the Supreme Court discussed Formal Opinion 126 (which states that it is not being permissible for defense counsel to advise a client regarding waiver of ineffective assistance of counsel by defense counsel): “The binding effect of a formal opinion is limited to disciplinary proceedings that occur after the formal opinion is issued and, even then, is subject to review by this Court when petitioned by any member of the bar who is substantially and individually aggrieved by the opinion. Formal Opinion 126 expressly stated that analysis of whether a waiver of postconviction rights would violate the Constitution or other laws was beyond the scope of the opinion.” There is currently pending another case at the Supreme Court which also raises the issue of the validity of waiver of postconviction rights as part of a plea bargain, so the Supreme Court will likely rule on the merits of that issue later.
Henningfeld v. State, No. ED100922 (Mo. App. E.D. Dec. 23, 2014):

Holding: Where motion court failed to enter Findings on Movant’s claim that counsel was ineffective in failing to object to alleged instructional error, case is remanded pursuant to Rule 29.15(j) for entry of Findings on this issue.
Sneed v. State, 2013 WL 5807392 (Mo. App. E.D. Oct. 29, 2013):

Holding: Where motion court denied Rule 29.15 motion without issuing Findings, this violated Rule 29.15(j) requiring Findings and warranted remand for them.
Henley v. State, No. ED97123 (Mo. App. E.D. 10/30/12):

Holding: Where the motion court failed to issue any Findings on one of Defendant’s claims (that counsel was ineffective in waiving closing argument at trial), the motion court failed to comply with Rule 29.15(j) that requires Findings on all claims to allow for meaningful appellate review.
Gray v. State, No. ED97667 (Mo. App. E.D. 9/11/12):

Holding: (1) Claim of ineffective assistance of trial counsel for failure to preserve an issue for appeal is not cognizable in a 29.15 case, but the claim can be properly pleaded as ineffective assistance of trial counsel for failing to object to admission of the evidence at trial, which likely would have led to the evidence being excluded and an acquittal; and (2) where motion court failed to issue Findings on all issues, case is remanded for Findings on omitted issues because 29.15(j) requires Findings on all issues.
Jackson v. State, No. ED97122 (Mo. App. E.D. 5/29/12):

Holding: Where (1) Movant alleged in a pro se Rule 24.035 claim that his counsel had told him he would receive a shorter sentence but not to tell this to the plea court; (2) the plea court did not ask Movant if he had been told to withhold information; and (3) counsel pursuant to Reynolds v. State, 994 S.W.2d 944 (Mo. banc 1999), physically attached Movant’s pro se claim to the amended 24.035 motion filed by counsel, the motion court was required to issue Findings on the pro se claim pursuant to Rule 24.035(j), which requires sufficient Findings to permit meaningful appellate review.
Smith v. State, No. ED95666 (Mo. App. E.D. 6/21/11):

Holding: Where trial court issued docket entry “Denied” to conclude Rule 24.035 case, this did not satisfy Rule 24.035(j)’s requirement to issue findings which allow meaningful appellate review.
Burnett v. State, 2014 WL 6781291 (Mo. App. W.D. Dec. 2, 2014):

Holding: Where Judge said at sentencing that he “did not believe in concurrent time” and sentenced Movant to consecutive sentences, this stated a claim that court failed to consider the full range of punishment and warranted specific Findings on the issue to allow for appellate review; case remanded for Rule 24.035 Findings.

Discussion: The motion court denied Movant’s claim on general grounds that Movant failed to meet his burden of proof. Movant then filed an appropriate Rule 78.07(c) motion seeking specific Findings on the court’s unwillingness to consider the full range of punishment. The motion court’s Findings are inadequate to engage in appellate review. Case remanded for specific Findings in compliance with Rule 24.035(j).
State v. Triplett, No. WD73486 (Mo. App. W.D. 12/20/11):

Holding: (1) Where (a) Defendant filed a motion which appeared to be a hybrid motion to suppress and motion to dismiss, (b) the trial court sustained the motion by dismissing the charge without prejudice, and (c) the State attempted to appeal only the motion to dismiss, the appeal must be dismissed because the State is not appealing the motion to suppress, and the appeal does not meet the requirements for the State to be able to appeal under Sec. 547.200. There is no final judgment because the dismissal was without prejudice. The State can just refile the charge in the trial court. (2) Although civil rule 73.01 gives parties the right to request Findings of Fact and Conclusions of Law before introduction of evidence, there is no similar rule in the criminal rules that requires a trial court to issue Findings in connection with a motion to suppress or other motions. A party (or appellate court) may request them, however, and the trial court may choose to do them, but they aren’t mandatory.
Smith v. State, No. WD72074 (Mo. App. W.D. 7/19/11):

Holding: Where (1) motion court denied postconviction claims summarily by finding that “Movant failed to allege specific facts” and that counsel made “trial strategy” decisions regarding the claims; and (2) Movant filed a motion to amend the judgment pursuant to Rule 78.07(c) asking the court for additional findings (which was denied), the findings are not sufficient under Rule 29.15(j) for meaningful appellate review; reversed and remanded for detailed findings.
Gerlt v. State, No. WD72225 (Mo. App. W.D. 4/12/11):

(1) State cannot raise untimeliness of 24.035 motion for first time on appeal because issue is waived if not raised as an affirmative defense in motion court; and (2) claim that motion court’s Findings were inadequate is not preserved for appeal unless Movant files a motion to amend judgment pursuant to Rule 78.07(c).

Facts: Movant filed a pro se Rule 24.035 motion late. This was not recognized in the motion court, and the motion court denied relief on the merits. Movant appealed, claiming that the motion court’s Findings were inadequate. The State claimed the appeal should be dismissed because the pro se motion was untimely.