Case Law Update: 2011-2014 Cumulative Edition

Holding: Even though Defendant had previously been convicted of “attempted” sexual batter, this was not a qualifying felony under the Dangerous Sexual Offender Act because the Act clearly excludes prior “attempt” offenses.
Arrington v. State, 2012 WL 130276 (Fla. Ct. App. 2012):

Holding: Mandated life-without-parole sentence may be inappropriate in felony murder cases where juvenile defendant did not actually commit the murder; therefore trial court must have discretion to impose a lesser sentence.
State v. Chubbuck, 2012 WL 716136 (Fla. Dist. Ct. App. 4^th Dist. 2012):

Holding: Defendant was not required to prove needed treatment was not available in prison system to obtain downward durational departure.
DeLuise v. State, 2011 WL 4808267 (Fla. Ct. App. 2011):

Holding: Where a statute authorized downward departure of sentence for defendant who offered to pay restitution, a trial court violated defendant’s equal protection rights by offering to reduce his sentence if he paid restitution because in this case it equated to an imposition of a harsher sentence for not paying restitution, which violates equal protection by giving harsher punishment to those less able to pay.
Losh v. State, 2011 WL 13729 (Fla. Ct. App. 2011):

Holding: Where plea agreement was silent as to whether Defendant had to serve mandatory minimum term and this was discretionary with prosecutor, court violated double jeopardy by sentencing Defendant without a minimum term and then a few days later entering a new sentence pronouncing a minimum term.
Shingler v. State, 90 Crim. L. Rep. 300 (Fla. App. 11/16/11):

Holding: Florida recidivist statute cannot apply to juveniles to create life without parole for nonhomicide offenses because this violates Graham v. Florida, ___ U.S. ___ (U.S. 2010), and the statute on its face does not authorize a 40 year term of years either – only life sentences; thus, such juveniles can only be sentences under non-enhanced robbery statute.
Manuel v. State, 2010 WL 4260096 (Fla. Ct. App. 2010):

Holding: Life without parole sentence for juvenile for non-homicide offense violated 8^th Amendment.
Gibson v. State, 2013 WL 363427 (Ga. App. 2013):

Holding: A restitution hearing is a critical stage of proceedings at which Defendant is entitled to counsel.
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.
State v. Martinez, 2013 WL 1458703 (Idaho App. 2013):

Holding: The 1^st Amendment’s qualified right of access to sentencing proceedings prohibited court from sealing Defendant-Senator’s sentencing memorandum where this would not interfere with any on-going investigations since the persons and events named in the memo were already widely publicly known.
State v. Toyne, 2011 WL 5553716 (Idaho Ct. App. 2011):

Holding: Because the persistent violator statute did not contain language to the contrary, trial court was permitted to suspend defendant’s sentence.
People ex rel. City of Chicago v. Le Mirage, Inc., 2013 WL 6044361 (Ill. App. 2013):

Holding: Even though 21 people were killed while panicking and trying to flee a nightclub’s second floor, trial court could not consider as a sentencing factor in indirect criminal contempt proceeding that Defendant had violated a court order requiring closure of the second floor of the nightclub, because this was not the proximate cause of the panic/fleeing incident; the court order related to building code violations arising from unsafe construction of the second floor, not from issues of crowd control or security.
People v. Single Story House, 2012 WL 5205805 (Ill. App. 2012):

Holding: Term “thing of value” in forfeiture statute which listed items such as “books, records, tapes” etc., did not include real property, so house was not subject to forfeiture.
People v. Williams, 2012 WL 6028833 (Ill. App. 2012):

Holding: Miller decision banning automatic LWOP for juveniles is retroactive.
Burton v. State, 2012 WL 5451743 (Ind. App. 2012):
Holding: State ex post facto clause prohibited application of sex offender registration law to Defendant for a crime from another jurisdiction prior to enactment of registration requirements in either jurisdiction.
Myers v. Coats, 2012 WL 1059600 (Ind. Ct. App. 2012):

Holding: An ex-offender was deprived of due process when there was no administrative opportunity for him to contest his erroneous sex offender registration.
Cottingham v. State, 2011 WL 2847417 (Ind. Ct. App. 2011):

Holding: Good time credit would apply to Defendant for time spent on home detention under doctrine of amelioration.
Coleman v. State, 2011 WL 3792830 (Ind. Ct. App. 2011):

Holding: Consecutive sentences for robbery conspiracy and firearm possession in single episode violated single episode of criminal conduct rule.
State v. Watson, 795 N.W.2d 94 (Iowa Ct. App. 2011):

Holding: Court cannot order Defendant to pay as “restitution” the cost of transporting him from Illinois to Iowa, since no statute expressly authorizes this as court costs to a defendant.
State v. Proctor, 2012 WL 2620525 (Kan. App. 2012):

Holding: A probationary sentence that potentially would trigger a life-without-parole sentence if Defendant were to commit any other felony in his lifetime and which would require lifetime supervision constituted cruel and unusual punishment for offense of indecent solicitation.
State v. Williams, 2012 WL 6176856 (La. App. 2012):

Holding: Juvenile offender who was sentenced to life was eligible for parole.
Walker v. State, 63 A.3d 575 (Md. App. 2013):

Holding: Where state statute was amended to increase the value of amount of property to constitute felony theft after Defendant’s crime but before his trial and sentencing, the more lenient penalty provisions of the new statute applied to him.

Doe v. Mass. Parole Bd., 2012 WL 6013993 (Mass. App. 2012):

Holding: Requiring GPS monitoring of re-paroled sex offender was arbitrary and violated due process where there was no evidence of changed circumstances from the first parole.
Riley v. New Jersey State Parole Bd., 32 A.3d 190 (N.J. Super. Ct. App. Div. 2011):

Holding: Retroactive application of Sex Offender Monitoring Act violated ex post facto.
State v. Trung Ho, 2014 WL 295238 (N.M. App. 2014):

Holding: Sex crime to which Defendant pleaded guilty did not require registration under state sex offender registration law at the time Defendant pleaded guilty; even though the statute arguably required registration, the fact that the Legislature later amended the statute to require registration for Defendant’s offense showed that at the time Defendant pleaded guilty, registration was not required.
State v. Alvarado, 2012 WL 8467506 (N.M. App. 2013):

Holding: Where Defendant was charged with three degrees of an offense and also with tampering, and the jury instructions on the tampering count failed to require a jury finding on which degree of offense the tampering count was related to, the instruction failed to require jury unanimity, and sentencing Defendant to the highest penalty violated Apprendi and its progeny.
People v. Brown, 2014 WL 306186 (N.Y. App. 2014):

Holding: A Defendant who is on parole is in state “custody” and, thus, can apply for resentencing.
People v. Everle, 2012 WL 4121162 (N.Y. App. 2012):

Holding: Even though court was allowed to impose a substantial fine and restitution order on Defendant, court could not enjoin Defendant from mortgaging or selling his real property as a penalty for failure to pay his fine or restitution, since this was not authorized under restitution or fine statutes.
People v. Marrero, 2012 WL 3079329 (N.Y. Sup. 2012):

Holding: In determining sex offender registration level for crime of possession of child pornography, courts are not to assess points for victims being strangers or multiple victims because such risk factors apply only to contact offenses.
People ex rel. Langone ex rel. Muniz v. New York State Dept. of Correctional Services, 2012 WL 899071 (N.Y. Sup. 2012):

Holding: A federal prisoner serving both state and federal sentences was entitled to a parole release hearing before the state parole board.
Miller v. New York State Dept. of Corrections and Community Supervision, 2011 WL 4346589 (N.Y. Sup 2011):

Holding: Even though petitioner’s parole was interrupted for sentence calculation purposes, it was still considered unrevoked.
People v. Fernandez, 2011 WL 2039732 (N.Y. App. 2011):

Holding: Sentence of 9 years for manslaughter was unduly harsh where Defendant had been terrorized by victim and Defendant did not intend to kill victim but approached him to ask for an apology to be treated with respect and dignity.
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.
State v. Hurt, 2010 WL 4608708 (N.C. Ct. App. 2010):

Holding: Defendant’s 6^th Amendment confrontation rights apply in non-capital sentencing hearing.
State v. Venes, 2013 WL 1932857 (Ohio App. 2013):

Holding: Statute which allowed consecutive sentences required trial court to make detailed findings as to the purposes and goals of the consecutive sentence.
State v. Moore, 2012 WL 1567386 (Ohio App. 2012):

Holding: Trial court’s imposition of maximum consecutive sentences on Defendant (33 years) was likely the result of his decision to proceed to trial given the disparity between Defendant’s sentence and a co-defendant who had pleaded guilty (9 years), even though co-defendant was the major actor in the crime.
State v. White, 2013 WL 139578 (Ohio App. 2013):

Holding: Statute that enhances sentence where a firearm was used was unconstitutional as applied to police officer-Defendant who was being prosecuted for shooting a suspect who he believed had a weapon, since applying it to police officer bore no reasonable relationship to the purpose for which the statute was enacted.
State v. Strunk, 2012 WL 4761906 (Ohio App. 2012):

Holding: Statute that permitted judicial release for those sentenced to more than 5 years but not to those sentenced to exactly 5 years violated Equal Protection.
Harney v. State, 2011 WL 666319 (Okla. Crim. App. 2011):

Holding: Admission of driving record in DWI case that contained other crimes and bad acts was erroneous as to jury’s determination of sentence.
State v. Kuehner, 2012 WL 5285380 (Or. App. 2012):

Holding: Overtime pay for police officers who guarded Defendant was not recoverable as “costs” from Defendant because salaries of gov’t employees involved in the prosecution of a defendant are exempt from recovery; salary payments to officers are not directly attributable to Defendant’s conduct since the salaries are necessary to maintain a police department.

State v. Earls, 90 Crim. L. Rep. 299 (Or. Ct. App. 11/16/11):

Holding: Military court martial conviction is not a “federal conviction” for purposes of Oregon recidivist statute.
Com. v. Melvin, 2013 WL 6096222 (Penn. Super. 2013):

Holding: Sentencing condition requiring Defendant to write apology letters while his case was pending on appeal violated right against self-incrimination.
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.
Ex parte Maxwell, 94 Crim. L. Rep. 745 (Tex. App. 3/12/14):

Holding: Miller v. Alabama’s ban on mandatory life without parole for juveniles is retroactive.
Plummer v. State, 94 Crim. L. Rep. 120, 2013 WL 553883 (Tex. App. 10/9/13):
Holding: Provision that enhances sentence when a defendant exhibits a weapon while committing a felony requires proof that the “exhibition” somehow facilitated the felony; here, Defendant (a security guard) wore a bulletproof vest and carried a gun, even though he had a prior felony conviction which made it illegal for him to possess both the vest and gun; the State claimed that wearing the vest with the gun triggered the sentence enhancement; however, the appellate court holds that the holstered gun had no relationship to the illegal possession of the vest; to hold otherwise would create absurd results whereby bankers who displayed antique guns in their offices could have sentences enhanced if they embezzled funds.
Anderson v. State, 2013 WL 1222745 (Tex. App. 2013):

Holding: Defendant’s prior North Carolina offense of indecent liberties with a child was not substantially similar to those offenses listed in Texas habitual felony sentencing statute to trigger an automatic life sentence for new Texas offense.
Leonard v. State, 92 Crim. L. Rep. 271 (Tex. Crim. App. 11/21/12):

Holding: Even though sex-offender-Defendant’s probation terms required that he submit to polygraphs as part of his sex therapy, polygraph evidence is so unreliable that it cannot be used to revoke Defendant’s probation.


Ex parte Doan, 2012 WL 2327914 (Tex. Crim. App. 2012):

Holding: Where prosecutor in County X sought to revoke Defendant’s probation based on a theft in County Y but the evidence was found to be insufficient, res judicata barred County Y from instituting theft charges against Defendant.
Blackshear v. State, 2011 WL 1991424 (Tex. App. 2011):

Holding: Trial court erred in second trial in not granting a continuance to allow Defendant to obtain a transcript from the first trial; defense should have been able to use the transcript to cross-examine witnesses from first trial, even though second trial was for punishment only.
Ex parte Evans, 2011 WL 1662384 (Tex. Crim. App. 2011):

Holding: Parolee not convicted of a sex offense was entitled to a hearing before imposition of sex-offender parole conditions.
Ex parte Thiles, 2011 WL 833347 (Tex. Crim. App. 2011):

Holding: Defendant, who was legitimately released on appeal bond and who (through no fault of his own) never knew that his conviction had been affirmed, was entitled to 22 years of credit against this sentence for the 22 years he had spent on bond after his affirmance.
Texas Dept. of Public Safety v. Garcia, 2010 WL 5019418 (Tex. App. 2010):

Holding: Oregon conviction for contributing to delinquency of minor did not contain elements substantially similar to Texas statute of sexual assault, and thus Defendant’s Oregon conviction did not require sex offender registration under Texas registration law.
Ex parte Dangelo, 2010 WL 5118650 (Tex. App. 2010):

Holding: Defendant on probation had 5^th Amendment right against self-incrimination not to answer questions on polygraph about whether he had sex with minor and other similar questions about criminal activity while on probation.
Dean v. Com., 2012 WL 6004214 (Va. App. 2012):

Holding: Robbery with a deadly weapon was not substantially similar to robbery in Virginia to count under Virginia’s three-strikes law.
State v. Saenz, 2012 WL 3601846 (Wash. 2012):

Holding: Where State failed to show that Defendant’s transfer of a prior juvenile case to adult court was proper, the prior conviction as a juvenile could not be used as a “strike” for a later adult charge.
State v. Hunley, 2011 WL 1856074 (Wash. Ct. App. 2011):

Holding: Sentencing reform statute which provided that Defendant’s silence in the face of State’s presentation of a written summary was an acknowledgement of Defendant’s criminal history violated due process.

State v. Siers, 2010 WL 4813737 (Wash. Ct. App. 2010):

Holding: State’s failure to allege “Good Samaritan” sentencing aggravator in information, which aggravator was then presented to jury in trial on second degree assault, vitiated the assault conviction as well as the sentence.
State v. Boyden, 2012 WL 280356 (Wis. Ct. App. 2012):

Holding: When the fruits of a defendant’s substantial presentence assistance to law enforcement authorities are not known until after sentencing, those fruits can constitute a new factor for purposes of a post-conviction motion for sentence modification.

Sexual Predator
State v. Kerns, No. SD31616 (Mo. App. S.D. 12/21/12):

Holding: Where the written sentence and judgment stated that Defendant had “pleaded guilty” but he actually had been convicted at a trial, this is a clerical error that can be corrected under Rule 29.12.
State ex rel. Whitaker v. Satterfield, No. SD31856 (Mo. App. S.D. 11/30/12):

The 1985 version of the Class C felony of sexual assault in the first degree is not a “sexually violent offense” as defined in the SVP law to allow for commitment as an SVP.

Facts: As relevant here, the State sought to commit Defendant as an SVP based on a 1985 conviction for sexual assault in the first degree. Defendant sought a writ of prohibition and claimed that this was not a qualifying offense under the SVP law.

Holding: The SVP law allows for civil commitment of persons who, as relevant here, have committed a prior “sexually violent offense.” Sec. 632.480(4) defines sexually violent offense as “the felonies of forcible rape, rape, statutory rape in the first degree … [other listed felonies and] sexual assault….” Defendant was convicted of the Class C felony of sexual assault in the first degree as defined in Sec. 566.040 RSMo. 1985, which is not specifically listed in Sec. 632.480(4). The listed offenses are specific and precise and use the nomenclature of Missouri’s criminal statutes. If the State were correct that Sec. 632.480(4) uses generic terms to define categories, the inclusion of broad terms like “rape” would make much of the rest of the litany in Sec. 632.480(4) redundant and unnecessary. Further, as the sexual assault statute existed in 1985, it did not require proof of lack of consent by the victim. In 1995, the offense of “sexual assault” was changed to require proof of lack of consent. The 1995 offense is substantively different from the 1985 offense of which Defendant was convicted. The SVP law was enacted in 1998. The 1985 offense is not a qualifying offense.
In re Care and Treatment of Bradley, 2014 WL 2723014 (Mo. App. W.D. June 17, 2014):

(1) The 72-hour period for holding a probable cause hearing under SVP law, Sec. 632.489.1, is not jurisdictional, but can be waived by counsel and does not require waiver by Defendant personally; and (2) Probate court erred in SVP trial in holding that the multidisciplinary team assessment report (which found that Defendant was not an SVP) was inadmissible under the SVP law, Sec. 632.483.5.

Holding: (1) Sec. 632.489.1 provides a 72-hour period during which a Defendant is entitled to a hearing to determine if there is probable cause to believe he is an SVP. There is no language in the statute, however, that a case must be dismissed if such hearing is not held within 72 hours. Failure to comply with the statute is not “jurisdictional,” but mere error, which can be waived. Here, Defendant’s counsel consented to holding a hearing outside the 72-hour period. Even though Defendant contends on appeal that only Defendant personally could waive the time limit, this is a scheduling matter that counsel can waive. (2) At trial, Defendant sought to introduce the multidisciplinary team report (MDT) which found that Defendant was not an SVP. The State claimed the report was not admissible under Sec. 632.483.5. That section, however, concerns that the prosecutor review committee, and states that that committee’s determination is not admissible. That section does not foreclose the admission of the MDT committee report. The State argues on appeal that the MDT report was hearsay. This argument was not raised below, however, so the appellate court does not address it. “We do not mean to express any opinion on the report’s admissibility, other than to hold that is was not inadmissible by virtue of Sec. 632.483.5.” Defendant was prejudiced by exclusion of the report because Defendant’s expert was a “paid expert” and the MDT members “were not paid to represent any particular position.” Also, even though another expert for Defendant was not paid, it is not clear that this expert did the same type of evaluation as the MDT members. New trial ordered.
In re: Matter of Robertson v. State, No. WD74623 (Mo. App. W.D. 10/30/12):

The offense of deviate sexual assault in the first degree under Sec. 566.070 RSMo. 1986 is not a qualifying offense to allow for SVP commitment.

Facts: The State sought to have Defendant committed as an SVP because of a 1995 conviction for deviate sexual assault in the first degree. The State argued this was a “sexually violent offense” under Sec. 632.480(4). The probate court found that this offense was not a qualifying offense and dismissed the commitment case. The State appealed.

Holding: Sec. 632.480(4) defines “sexually violent offense” as various listed offenses and “deviate sexual assault.” Sec. 632.480(4) was enacted in 1998 and effective in 1999. Defendant pleaded guilty in 1995 to sexual assault in the first degree which was defined under the 1986 statute as “deviate sexual intercourse with another person to whom he is not married and who is … 14 or 15 years old.” Prior to enactment of the SVP law, the Legislature changed the definition of deviate sexual assault to be when a person “has deviate sexual intercourse with another person knowing that he does so without that person’s consent.” This was the definition in 1998. The offense for which Defendant was convicted in 1995 did not have an element of lack of consent, and is not the same offense that was in effect when the SVP law was passed in 1998. That State argues that because “deviate sexual assault” is a listed offense in Sec. 632.480(4), it covers Defendant’s offense. However, the SVP statute does not use generic classifications, but instead specifically and precisely defines the eligible offenses. “Deviate sexual assault in the first degree” is not one of the listed offenses. If the State were correct that the SVP law uses generic categories of offenses, then much of the specific offenses listed would be redundant and unnecessary. The Legislature was aware of the technical definitions of the offenses when it wrote the SVP law in 1998. The court must follow the statute.
In the Matter of the Care and Treatment of Fogle v. Koster, No. WD73815 (Mo. App. W.D. 8/28/12):