Case Law Update: 2011-2014 Cumulative Edition

Holding: La. law making it a felony for an alien to drive without documentation demonstrating lawful presence in the U.S. is preempted by federal law in the area of alien registration.
Com. v. Sylvain, 2013 WL 4849098 (Mass. 2013):

Holding: Massachusetts applies Padilla retroactively under state constitution.
Com. v. Clarke, 89 Crim. L. Rep. 589 (Mass. 6/17/11):

Holding: Padilla v. Kentucky’s holding that defense counsel has 6^th Amendment duty to advise noncitizens of immigration consequences is retroactive to cases on collateral review.
Com. v. Gautreaux, 88 Crim. L. Rep. 543 (Mass. 1/20/11):

Holding: Article 36 of the Vienna Convention on Consular Relations creates an individually enforceable right to consular notification, but to obtain a new trial for violation, Defendant must show a substantial risk of miscarriage of justice.
State v. Favela, 2013 WL 4499459 (N.M. App. 2013):

Holding: Even though the trial court warned Defendant about immigration consequences, this never cures the prejudice from counsel’s ineffectiveness in failure to warn under Padilla, because judges cannot know a defendant’s priorities or use information strategically in negotiating pleas; also, advice by a judge is not the same as advice by counsel who knows more specific information about the case.
People v. Peque, 94 Crim. L. Rep. 298, 2013 WL 6062172 (N.Y. 11/19/13):

Holding: Trial judges are required to warn defendants pleading guilty to felonies of likely immigration consequences.
People v. Ventura, 90 Crim. L. Rep. 160 (N.Y. 10/25/11):

Holding: Court should not dismiss an appeal because Defendant has been involuntarily deported since appeal was filed.
People v. Brignolle, 971 N.Y.S.2d 866 (Sup. 2013):

Holding: Exceptional circumstances existed for Defendant charged with drug possession to enter diversion program without a guilty plea, because Defendant was a noncitizen and a conviction would make him deportable.
People v. Kollie, 2013 WL 91980 (N.Y. County Ct. 2013):

Holding: Where alien-Defendant would be deported if he pleaded guilty to drug possession, this was an exceptional circumstance warranting placement in a pretrial diversion program without requiring a plea of guilty.
Ex parte Zantos-Cuebas, 2014 WL 715057 (Tex. App. 2014):

Holding: Where habeas petitioner who spoke only Spanish alleged he did not understand the written advisements as to immigration consequences of his plea, this stated a claim that was not frivolous on its face.
Ex parte Tankleskaya, 2011 WL 2132722 (Tex. App. 2011):

Holding: Plea counsel was ineffective in failing to inform permanent legal resident-Defendant that her guilty plea to misdemeanor drug possession would render her presumptively inadmissible upon re-entry to the U.S. if she left the country; this rendered her plea involuntary, especially when counsel knew that Defendant was planning an out-of-country trip.

Indictment & Information
State v. Mixon, No. SC92230 (Mo. banc 11/13/12):

Holding: Sec. 556.036.5 RSMo., which provides that a prosecution is commenced for a felony when a complaint is filed, does not violate Art. I, Sec. 17 Mo.Const. Thus, the applicable statute of limitations was tolled when the State filed a complaint against Defendant, even though there was not an information or indictment prior to expiration of the statute of limitations.
In the Interest of J.T., 2014 WL 5462402 (Mo. App. E.D. Oct. 28, 2014):

Holding: Where Juvenile was charged with second-degree assault, Sec. 565.060.1(2) for knowingly causing physical injury by means of a dangerous instrument, trial court plainly erred in convicting her of second –degree assault under Sec. 565.060.1(3) for recklessly causing serious physical injury, because this violated Juvenile’s rights to notice of the charged offense and to be convicted only of the charged offense, since second-degree assault under Sec. 565.060.1(3) is not a lesser-included offense second-degree assault under Sec. 565.060.1(2). This is because it is possible to cause mere “physical injury” without causing “serious physical injury.”
In the Interest of: T.P.B., 2014 WL 4411669 (Mo. App. E.D. Sept. 9, 2014) & In the Interest of J.L.T., 2014 WL 4411679 (Mo. App. E.D. Sept. 9, 2014):

Where Defendant-Juvenile was charged with second degree assault for “knowingly causing physical injury to another person by means of a dangerous instrument,” Sec. 565.060.1(2), but trial court found Defendant guilty of second degree assault for “recklessly causing serious physical injury to another person,” Sec. 565.060.1(3), this violated Defendant’s rights to notice of the charged offense and to prepare a defense, since recklessly causing serious physical injury is not a lesser-included offense of knowingly causing physical injury by means of a dangerous instrument.

Facts: Defendant-Juveniles were charged with second degree assault for knowingly causing physical injury by means of a dangerous instrument, Sec. 565.060.1(2). The trial court found Defendants guilty of recklessly causing serious physical injury to another person, Sec. 565.060.1(3).

Holding: An uncharged offense is a “nested” lesser-included offense if it is impossible to commit the charged offense without necessarily committing the uncharged offense. To commit the uncharged offense, Defendants must have committed “serious physical injury.” But to commit the charged offense, Defendants need only have caused an ordinary “physical injury.” Because it is possible to commit an ordinary physical injury without causing serious physical injury, it is possible for Defendants to have committed the charged offense without committing the uncharged one. Thus, Sec. 565.060.1(3) is not a lesser-included offense of Sec. 565.060.1(2). The trial court violated due process by convicting of an uncharged offense. Defendants discharged.
State v. Diaz-Rey, 2013 WL 1314968 (Mo. App. E.D. April 2, 2013):

Holding: Charging alien-Defendant in Missouri state court with forgery, Sec. 570.090, for using a false Social Security number on a job application was not preempted by federal law involving employment of aliens.
State v. Beam, No. ED94457 (Mo. App. E.D. 3/8/11):

(1) Even though defense counsel announced in Defendant’s presence that they were having a bench trial, where nothing in the record indicated that Defendant knew of her right to jury trial and voluntarily waived it, proceeding to bench trial was plain error; and (2) information was insufficient to charge making improper right turn under Sec. 304.015 because that statute only prohibits improper left turns or U-turns.

Facts: Defendant was charged with felony leaving the scene of an accident, misdemeanor making an improper right turn and other misdemeanors. At a pretrial hearing, defense counsel said “we’re here to discuss an OR bond and set the case for a bench trial.” The court then set the case for a “nonjury trial.” At the later trial, defense counsel said in opening statement, “we’re trying this case to the bench today because the case revolves around sufficiency of evidence.” After being found guilty, Defendant appealed.

Holding: (1) The trial court plainly erred when it conducted the bench trial without obtaining a waiver of jury trial for the felony case from Defendant in open court and on the record as required by Rule 27.01(b). A waiver by the defendant of a jury trial in a felony case must appear from the record with unmistakable clarity. In misdemeanor cases, however, a defendant must demand a jury trial. Here, the record does not show that Defendant made a voluntary waiver of her right to a jury trial in her felony case. She was never questioned personally about her understanding of the right. The fact that her attorney requested a bench trial in her presence does not demonstrate that Defendant personally voluntarily waived the right. Thus, she is granted a new trial on her felony conviction, but not on other misdemeanors because she didn’t demand a jury trial on those. (2) The information charged Defendant with making an improper right turn not at an intersection under Sec. 304.015. However, Sec. 304.015 does not prohibit this; it only prohibits “any left turn or semicircular or U-turn.” Defendant correctly claims the information was insufficient to charge a violation of Sec. 304.015. This is an issue that can properly be raised for the first time on appeal. Defendant’s conviction under 304.015 is reversed and case remanded to allow State to amend the information.
State v. Muhammad, No. ED94232 (Mo. App. E.D. 3/1/11):

(1) Even though Defendant was charged with false imprisonment, where court erroneously instructed on felonious restraint but then entered judgment for false imprisonment, this was not plain error since false imprisonment was a lesser-included offense of felonious restraint; but (2) where court sentenced Defendant to range for a Class D felony, this was plain error because false imprisonment, as found, was a Class A misdemeanor.

Facts: Defendant was charged with false imprisonment. At trial, however, the court without objection instructed the jury on the offense of felonious restraint. The court then entered judgment for false imprisonment as a Class D felony and sentenced Defendant to four years.

Holding: (1) A trial court cannot instruct on an offense not charged unless it is a lesser-included offense. Felonious restraint is not a lesser-included offense of false imprisonment; rather the opposite is true – false imprisonment is a lesser offense of felonious restraint. However, the variance between the charge and instructions is not fatal here. By finding the greater offense of felonious restraint, the jury necessarily found the lesser of false imprisonment. Moreover, the trial court entered judgment for false imprisonment. (2) However, the four year sentence is plain error. This is because false imprisonment is a Class A misdemeanor unless the defendant took the victim from the state, which is not the case here, Sec. 565.130.2. The sentence should not have exceeded one year. Sentence vacated and remanded for resentencing.
U.S. v. Steffens, 2010 WL 4670504 (E.D. Mo. 2010):

Holding: Indictment for back fraud was insufficient where it failed to allege that Defendant made any misrepresentation or that his silence violated a duty of disclosure.
State v. Shepherd, 2013 WL 2190152 (Mo. App. S.D. May 21, 2013):

Where Defendant was charged with first degree child molestation, Sec. 566.067.1, for allegedly touching Child’s genitals, trial court abused its discretion in allowing State after close of evidence to submit an alternative charge of sexual misconduct, Sec. 566.083.1(3), for inducing Child to expose his genitals, since this was not a lesser-included offense of the original charge and violated due process by failing to give notice of the charged offense.

Facts: Defendant was charged with first degree child molestation, Sec. 566.067.1 RSMo. Cum. Supp. 2006, for allegedly touching Child’s genitals. The case proceeded to trial on this charge. At the close of all the evidence, the trial court allowed the State to amend the information to submit, over defense objection, an alternative charge of sexual misconduct for knowingly inducing the Child to expose his genitals. Defendant was acquitted of first degree child molestation, but convicted of sexual misconduct.

Holding: Due process requires that a criminal defendant have fair notice of the charged crime. Sexual misconduct is not a lesser-included offense of first degree child molestation since it is not established by proof of the same or less than all the facts required to establish first degree child molestation. The amendment of the information to charge this at the close of all the evidence added a second offense to the case for which Defendant was not tried and did not receive fair notice or a meaningful opportunity to defend. Hence, the conviction must be vacated. Case is remanded with directions to dismiss the second amended information as an impermissible pleading, and to enter a new judgment acquitting Defendant of first degree child molestation as charged in the original information.
State v. Wright, 2014 WL 1592530 (Mo. App. W.D. April 22, 2014), and State v. Lovett, 2014 WL 1592299 (Mo. App. W.D. April 22, 2014):

Even though trial court purported to dismiss an information against Defendants, where the trial court’s order was unclear as to whether it was a dismissal and additional counts were apparently still pending, the appellate court was unable to discern what the trial court did and the judgment was not final, so there was no jurisdiction for the State to appeal.

Facts: Defendants were charged, in relevant part, with delivering or possessing an imitation controlled substance, Sec. 195.242, and other drug charges. Defendants were possessing or selling “Sedation Incense,” claiming it had an effect “similar” to marijuana. They did not claim it was marijuana. Defendants filed motions to dismiss. Among their claims was that Sec. 195.010(21)(the definition of imitation controlled substance) was void for vagueness because it failed to give fair notice of what conduct was illegal, and alternatively, the information was insufficient for failure to charge a crime because the Defendants never represented their substance to be marijuana. In accordance with an agreement with the parties, the trial court entered Findings of Fact, Conclusions of Law. The trial court found that there were no appellate cases addressing the sufficiency of evidence in situations where a defendant is alleged to have possessed or have sold an item knowing that it was not a controlled substance, but claiming it was “similar” to a controlled substance. The trial court found that appellate cases under the statute all involved imitations which the defendants represented to be illegal drugs. The trial court concluded that “[i]t is hoped that an appellate decision will help clear up this area of law. So Ordered.” The State appealed.

Holding: The appellate court cannot conduct appellate review on this record, because the appellate court cannot determine what the trial court did, or whether its action is a final judgment. The trial court’s Findings fail to state what relief, if any, the trial court is actually granting. The Findings simply say, “So Ordered.” Although the parties seem to believe that the trial court dismissed the information, the Findings never state that. Even assuming that this was a dismissal, there are other counts on other charges that apparently are still pending. Judgments resulting in dismissal of all counts charged are final judgments from which the State can appeal. Missouri law is “unclear” as to whether the dismissal of some, but not all, counts in a multi-count information constitutes a final judgment for purposes of appeal, and Western District declines to address that issue here, because it doesn’t want to speculate on the meaning of the Findings. Lastly, the trial court appears to have wanted to enter something akin to “summary judgment” in favor of Defendants, but there is no procedure for summary judgment in a criminal case in Missouri. In passing, however, the Western District notes in Wright in footnote 12 that Rule 24.04(b)(1), which provides that “[a]ny defense or objection which is capable of determination without trial of the general issue may be raised before trial by motion,” could arguably create a procedure for dismissal of informations or indictments for insufficient evidence under an analogous federal case.
State v. Jackson, No. WD73323 (Mo. App. W.D. 6/5/12):

Even though the State originally charged Defendant as a prior offender and he was found by the court to be such, where the State filed a later information that failed to charge prior offender status, the later information controls and Defendant was entitled to jury sentencing.

Facts: In December 2006, Defendant was indicted for various offenses. On the day of trial, the State filed an information in lieu of indictment charging Defendant as a prior offender. The trial court found him to be a prior offender based on a prior felony conviction. However, before final instructions were read to the jury, the State filed an amended information which omitted any reference to being a prior offender. The issue of punishment was not submitted to the jury. After conviction, Defendant appealed and claimed he was entitled to jury sentencing.

Holding: The State’s last-filed amended information superseded all prior informations under Sec. 545.110. Sec. 558.021 requires that prior offender status be pleaded and proven prior to the case being submitted to the jury. Since the last-filed information contained no prior offender allegation, it wasn’t before the court, and the State cannot try to plead this after the jury’s verdict. Thus, the court’s finding of prior offender status based on the prior information was a nullity. Case remanded for jury sentencing.
In re Grand Jury Proceedings, 94 Crim. L. Rep. 668, 2014 WL 702193 (1^st Cir. 2/20/14):

Holding: Prosecutors who empanel a new grand jury cannot enforce by civil contempt a subpoena duces tecum issued by an earlier, now-defunct grand jury.
U.S. v. Whitefield, 2012 WL 3591038 (4^th Cir. 2012):

Holding: Forced accompaniment for a bank robbery that results in death is an additional offense element, not just a sentencing factor, so instructing the jury on this offense when a different offense was charged violates the Fifth Amendment Grand Jury Clause.
U.S. v. LaDeau, 94 Crim. L. Rep. 198, 2013 WL 5878214 (6^th Cir. 11/4/13):
Holding: Where court had suppressed evidence that made prosecution for possession of child pornography impossible, and Gov’t then charged conspiracy to receive child pornography (which carried a greater sentence), a judge may presume prosecutorial vindictiveness violative of due process if Defendant establishes that the Gov’t has some “significant stake” in deterring Defendant’s exercise of his rights and the Gov’t’s conduct was “somehow unreasonable;” here, Defendant met that test, warranting dismissal of new charge, because while it would have been reasonable to charge conspiracy to possess child pornography (which would have been possible), it was unreasonable to charge conspiracy to receive, since “receipt” carries a higher mandatory minimum sentence than conspiracy to possess.
U.S. v. Steffen, 687 F.3d 1104 (8^th Cir. 2012):

Holding: Defendant’s indictment failed to sufficiently allege a scheme to defraud where it failed to set forth sufficient facts of this.
U.S. v. Pietrantonio, 2011 WL 869477 (8^th Cir. 2011):

Holding: Venue for violation of SORNA was not proper in Minnesota for a trip from Minnesota to Nevada, or for a second trip from Nevada to Massachusetts; although Minnesota had a connection to the first trip, it had no connection to the second trip, and the indictment was duplicitous, such that the appellate court could not vacate the conviction concerning the second trip without violating Defendant’s right to a unanimous jury verdict.
U.S. v. Lang, 94 Crim. L. Rep. 40 (11^th Cir. 10/3/13):

Holding: Multi-count indictment which alleged multiple transactions under $10,000 failed to adequately charge violation of 31 USC 5324(a)(3) because the unit of prosecution is each structuring of an amount over $10,000, not each transaction involving a lesser amount.
U.S. v. Madden, 93 Crim. L. Rep. 694 (11^th Cir. 8/16/13):

Holding: District court’s unobjected to constructive amendment of an indictment is subject to plain error review.
U.S. v. Schmitz, 2011 WL 754148 (11^th Cir. 2011):

Holding: Indictment alleging theft of federal program funds was insufficient without a statement of the facts and circumstances of the offense sufficient to inform Defendant of the specific offense.
U.S. v. Rainey, 2013 WL 2181285 (E.D. La. 2013):

Holding: An indictment charging obstruction of a congressional inquiry or investigation violated the 5^th Amendment Grand Jury Clause where it failed to allege that Defendant knew of the inquiry or investigation, which was an essential element of the offense.
U.S. v. Coiscou, 2011 WL 2518764 (S.D. N.Y. 2011):

Holding: Magistrate judge had authority to dismiss complaint for lack of probable cause at initial appearance, even though preliminary hearing had not yet been held.
U.S. v. Jackson, 2013 WL 782602 (E.D. N.C. 2013):

Holding: As employees of licensed firearms dealers, Defendants could not be charged with felony offense of making false statements with respect to information required to be kept in the records of a licensed firearms dealer; rather, they had to be charged under the misdemeanor provision covering any licensed dealer who made false statements about the records.
U.S. v. Lien, 2013 WL 5530537 (E.D. Wash. 2013):

Holding: Even though Defendant presented a check for $68,000 to a car dealership to buy a truck and Defendant knew he didn’t have enough money in his checking account to cover this, that did not sufficient allege bank fraud in the indictment since there was no allegation that the account was fraudulent or that the check was altered, forged or not genuine.
Com. v. Hamilton, 2013 WL 5763180 (Ky. 2013):

Holding: Trial court had jurisdiction to hear Defendant’s claim the Health Department had violated laws of Kentucky in how it changed certain drug from Schedule V to Schedule III controlled substance.
Com. v. Humberto H., 94 Crim. L. Rep. 338 (Mass. 11/26/13):

Holding: Even though Defendant had five baggies of marijuana, that did not establish probable cause to charge intent to distribute, because there was no information about the weight or value of the marijuana.
Com. v. Clarke, 89 Crim. L. Rep. 589 (Mass. 6/17/11):

Holding: Padilla v. Kentucky’s holding that defense counsel has 6^th Amendment duty to advise noncitizens of immigration consequences is retroactive to cases on collateral review.
State v. Buckhalter, 2013 WL 4027101 (Miss. 2013):

Holding: Indictment for manslaughter which alleged Defendant “willfully” caused death of her stillborn child was fatally flawed and provided inadequate notice, where it did not allege how Defendant “willfully” caused the death by culpable negligence.
Clay v. Eighth Judicial Dist. Ct., 2013 WL 3480306 (Nev. 2013):

Holding: Because the term “physical injury” as used in abuse and neglect statute would not be understood by lay people without a definition, prosecutor was required to instruct on that element in grand jury proceeding.
Rugamas v. Eighth Judicial Dist. Ct. ex rel. County of Clark, 2013 WL 336674 (Nev. 2013):