Case Law Update: 2011-2014 Cumulative Edition

Holding: State prisoner who challenged a prison disciplinary action in habeas corpus (as opposed to relief from conviction) need not obtain a certificate of appealability to appeal denial of relief.
U.S. v. Tsosie, 2011 WL 1758785 (9^th Cir. 2011):

Holding: Where plea agreement to sex offense did not set forth any specific amount of restitution or an estimate as to amount, Defendant could challenge the restitution order on appeal even though he waived his appellate rights; he lacked sufficient notice of restitution to have a valid waiver.
U.S. v. Lightfoot, 88 Crim. L. Rep. 294 (9^th Cir. 11/30/10):

Holding: Defendant’s bargained-for waiver of appeal or postconviction rights does not preclude a motion to modify sentence under 18 USC 3582(c)(2) to reflect subsequent USSG revisions.
Mackey v. Hoffman, 2012 WL 2369301 (9^th Cir. 2012):

Holding: Where an attorney’s abandonment causes a notice of appeal not to be filed, district court may grant relief under the “catch-all” clause of the Federal Rules of Civil Procedure.
U.S. v. Tsosie, 2011 WL 1758785 (9^th Cir. 2011):

Holding: Where plea agreement to sex offense did not set forth any specific amount of restitution or an estimate as to amount, Defendant could challenge the restitution order on appeal even though he waived his appellate rights; he lacked sufficient notice of restitution to have a valid waiver.
U.S. v. Lightfoot, 88 Crim. L. Rep. 294 (9^th Cir. 11/30/10):

Holding: Defendant’s bargained-for waiver of appeal or postconviction rights does not preclude a motion to modify sentence under 18 USC 3582(c)(2) to reflect subsequent USSG revisions.
U.S. v. Luna-Acosta, 2013 WL 1848761 (10^th Cir. 2013):

Holding: Even though judge orally announced sentence at a first sentencing hearing, this was not final for purposes of appeal where judge also scheduled a later second sentencing hearing to “finalize” issues regarding the sentence, including allocution and supervised release issues.
U.S. v. Mendoza, 2012 WL 5419236 (10^th Cir. 2012):

Holding: A sealed entry of judgment is not “entered on the criminal docket” for purposes of filing a notice of appeal where such judgment is not publicly accessible; thus, a notice of appeal filed after sentencing but before entry of the sealed judgment was timely.
U.S. v. Meister, 94 Crim. L. Rep. 391 (11^th Cir. 12/17/13):

Holding: (1) Even though the Mandatory Detention Act, 18 USC 3145(c), provides that certain defendants cannot be released pending sentencing if their crimes are violent, there is an exception where a “Judicial Officer” determines that the defendant is neither a seafety threat nor a flight risk and that detention is inappropriate; (2) a judge qualifies as a “Judicial Officer” under the statute; therefore, a judge can release Defendant under the statute for medical reasons pending his sentence appeal.
U.S. v. Dillon, 94 Crim. L. Rep. 443 (D.C. Cir. 12/24/13):

Holding: Appellate review of a trial court’s order to involuntarily medicate a defendant for competency is reviewed de novo for legal issues but under “clear error” standard regarding findings of fact.
U.S. v. Godoy, 2013 WL 425334 (D.C. Cir. 2013):

Holding: Even though Defendant waived his appeal, where trial court told him he was waiving his appeal “except for something illegal, such as imposing a period of imprisonment longer than the statutory maximum,” then Defendant did not waive his right to appeal an illegal sentence; the judge’s oral pronouncement controls.
Obaydullah v. Obama, 2012 WL 3250940 (D.C. Cir. 2012):

Holding: The provision for tolling the appeal filing deadline is a claims processing rule, and thus a habeas petitioner’s late motion for reconsideration did not bar hearing of his appeal.
In re Sealed Case, 2012 WL 6632927 (D.C. Cir. 2012):

Holding: Even though Defendant waived right to appeal his “sentence,” this did not waive right to appeal restitution order.
U.S. v. Silva, 2011 WL 841050 (D. Mass. 2011):

Holding: Court’s grant of pro se motion to appoint counsel constituted excusable neglect for extension of time to file notice of appeal.
U.S. v. DiMattina, 2012 WL 3260216 (E.D. N.Y. 2012):

Holding: Exceptional circumstances justified releasing Defendant pending appeal so that he could pursue demonstrating his actual innocence.

Stone v. State, 89 Crim. L. Rep. 167, 2011 WL 1519382 (Alaska 4/22/11):

Holding: Where state law permitted a sentence review of guilty plea, Defendant had right to counsel for the appeal since Halbert v. Michigan, 545 U.S. 605 (2005) held that 14^th Amendment requires states to provide counsel to guilty-pleading indigent defendants for first-tier appellate review.
Hagos v. People, 92 Crim. L. Rep. 189 (Colo. 11/5/12):

Holding: The “plain error” standard on direct appeal is not the same as the showing of prejudice required under Strickland, which is a lower “reasonable probability of a different outcome” standard; thus, while a jury instruction may not have been “plain error” on direct appeal, counsel can be ineffective for failing to object to the erroneous instruction.
Nazario v. State, 2013 WL 3475330 (Ga. 2013):

Holding: Even though Defendant pleaded guilty to 17 counts, this did not waive claim that some of the counts had legally “merged.”
Leitch v. Fleming, 732 S.E.2d 401 (Ga. 2012):

Holding: State could not bring declaratory judgment action to challenge court’s evidentiary ruling at a preliminary hearing, because since there is no right to appeal the court’s ruling, State should not be able to do indirectly what it can’t do directly.
State v. Davis, 94 Crim. L. Rep. 710 (Haw. 2/26/14):

Holding: Hawaii Constitution requires appellate court to consider a sufficiency of evidence claim before vacating a conviction and remanding for a new trial on other issues.
State v. Lee, 94 Crim. L. Rep. 586 (Idaho 2/10/14):
Holding: Where appellate court had previously ordered case remanded to enter a judgment of acquittal for Defendant, trial court should not have then entered a judgment acquitting Defendant but declaring him a “serious pedophile” who should be “closely watched;” while there were not specific rules prohibiting the judge from entering such an order, appellate courts have struck unnecessary verbiage from civil orders, and does so here.
State v. Breeden, 2013 WL 2712181 (Kan. 2013):

Holding: In sex case, trial court was required to provide limiting instruction regarding prior bad act evidence that Defendant had punched and threatened to kill victim before the charged sex act, and Defendant did not waive appeal of this issue even though Defendant failed to object to the evidence at trial because the issue was not admissibility of the evidence.
Hallum v. Com., 2011 WL 1620593 (Ky. 2011):

Holding: Where state enacted a “mailbox rule” statute for filing postconviction motions, statute would apply retroactively to cases pending on appeal when the statute was enacted.
Hollon v. Com., 88 Crim. L. Rep. 244 (Ky. 11/18/10):

Holding: Even though appellate counsel raised some claims on appeal, Defendant may still claim ineffective appellate counsel where counsel failed to raise other possibly winning claims.
Cure v. State, 89 Crim. L. Rep. 771 (Md. 8/16/11):

Holding: Even though Defendant preemptively acknowledged a prior conviction in his direct examination testimony, this did not waive the right to appeal the trial court’s overruling of a motion in limine to exclude the prior conviction.
Seney v. Morhy, 2014 WL 278358 (Mass. 2014):

Holding: Appeal of order of protection was not rendered moot by order’s expiration because Defendant still had stake in the appeal in that she would suffer stigma and collateral consequences as a result of order.
State v. Burrell, 94 Crim. L. Rep. 94, 2013 WL 54690887 (Minn. 10/2/13):
Holding: Where Defendant dies during pendency of direct appeal, his conviction and any restitution order abate, because the prosecution is deemed void ab initio. (The minority view among 14 states, but not the federal courts, is that the conviction and restitution order remain and a successor appellant can be appointed to proceed with appellant’s appeal.)
State v. Sahr, 2012 WL 1414306 (Minn. 2012):

Holding: Where a trial court’s dismissal of a complaint charging first-degree criminal sexual conduct constituted an acquittal on the merits after jeopardy had attached, double jeopardy protections precluded the reviewing court from considering the merits of the State’s claim that the defendant had a duty to bring a pretrial motion to dismiss the complaint.
Jones v. City of Ridgeland, 88 Crim. L Rep. 255 (Miss. 11/18/10):

Holding: State which limits appeals to state Supreme Court violates separation of powers.
Bass v. State, 2013 WL 3864450 (Nev. 2013):

Holding: Where Defendant/Appellant died while direct appeal was pending, the appeal could continue only if a personal representative was substituted for Appellant within 90 days of “suggestions of death.”
State v. Kay, 2011 WL 2975616 (N.H. 2011):

Holding: Appeals of probation revocations are determined under a de novo standard of review.
People v. Kordish, 2013 WL 5637741 (N.Y. 2013):

Holding: Appellate court erroneously failed to appoint counsel for indigent defendant/appellant before dismissing the appeal for failure to perfect appeal.
People v. Cantave, 2013 WL 3185171 (N.Y. 2013):

Holding: Prosecutor violated Defendant’s right against self-incrimination where he cross-examined Defendant at trial about a prior, unrelated conviction that was pending on direct appeal and thus Defendant remained at risk of self-incrimination.
People v. Griffin, 93 Crim. L. Rep. 71, 2013 WL 1294579 (N.Y. 4/2/13):

Holding: Even though there is usually not a right to appeal a guilty plea, Defendant can appeal on grounds that the plea court improperly disqualified his original defense counsel since this claim goes to the fundamental fairness of court system.
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.
State v. Hampton, 92 Crim. L. Rep. 304 (Ohio 12/2/12):

Holding: Where trial judge acquitted Defendant on the basis of the State’s failure to establish venue, State could not appeal.
Cleveland Hts. v. Lewis, 2011 WL 2275817 (Ohio 2011):

Holding: Completion of a sentence will not render an appeal moot where Defendant did not acquiesce in the sentence or abandon the right to appeal.
State v. Vanornum, 2013 WL 6842788 (Or. 2013):

Holding: Even though a state statute made a rule of civil procedure (which allowed appellate review only for preserved instructional error) applicable to criminal cases, this did not affect the appellate court’s ability to review for plain error.
In re L.J., 94 Crim. L. Rep. 177 (Pa. 10/30/13):

Holding: Appellate courts reviewing a denial of a motion to suppress should not consider any evidence other than that adduced at the suppression hearing; this will protect defendants’ due process concerns where they may be unable to cross-examine certain witnesses at trial about suppression matters, or could be forced to testify at trial about suppression matters.
Com. v. Harris, 90 Crim. L. Rep. 324 (Pa. 11/23/11):

Holding: Under Penn. law, orders requiring disclosure of privileged information are immediately appealable despite contrary decision in Mowhawk Industries v. Carpenter, ___ U.S. ___ (U.S. 2009).
Com. v. Foster, 2011 WL 1124597 (Pa. 2011):

Holding: Defendant’s challenge to mandatory minimum sentence is a legal question and is not waivable.
State v. Hepburn, 94 Crim. L. Rep. 359 (S.C. 12/11/13):

Holding: Even though South Carolina follows the rule that a defendant waives her motion for directed verdict at close of the State’s evidence if the defendant presents evidence, where Defendant and co-defendant were tried jointly and co-defendant testified in the defense part of the case that Defendant did the crime, and subsequently Defendant testified to rebut co-Defendant, the Defendant did not waive for appeal her motion for directed verdict at close of State’s case; “where a defendant’s evidence does not serve to fill gaps in the state’s evidence, her testimony does not operate to waive consideration of the evidence as it stood at the close of the State’s case” on appeal; if Defendant were deemed to have waived the right to test the sufficiency of evidence of the State’s case by rebutting the testimony of co-defendant, the State will in effect have been able to use the coercive power of the codefendant’s testimony as part of its case-in-chief, even though the State was prohibited from calling the co-defendant to testify for the prosecution; under this test, the State’s evidence was insufficient to convict, and the motion for directed verdict at close of State’s evidence should have been granted.
Com. v. Amos, 2014 WL 782828 (Va. 2014):

Holding: Where trial court prevented Defendant’s attorney from making a contemporaneous objection, this was preserved for appeal under an exception to the contemporaneous objection rule.
People v. Wortham, 2013 WL 5755193 (Cal. App. 2013):

Holding: Trial court’s denial of inmate’s petition to recall his sentence under the Three Strikes Reform Act was appealable, because it affects substantial rights and the trial court’s action foreclosed possibility of reduced sentence.
People v. Cornett, 2010 WL 4925421 (Cal. App. 2010):

Holding: Rule of strict construction of penal statutes (rule of lenity) has a constitutional dimension because it is associated with the “vagueness doctrine” and also is a means of avoiding constitutional issues regarding due process concerns, and thus cannot be abrogated by a legislative statute which purported to abolish the rule.
People v. Ruch, 2013 WL 3480249 (Colo. App. 2013):

Holding: Revocation of Defendant’s probation for his refusal to admit the offense during court-ordered treatment (which was a probation condition) while his direct appeal was pending violated his 5^th Amendment right against self-incrimination.
State v. Thompson, 2011 WL 836748 (Kan. Ct. App. 2011):

Holding: Even though a district judge heard guilt portion of trial, where sentencing was done by magistrate judge, Defendant could appeal for a trial de novo before district court.
Causion v. State, 2013 WL 254669 (Md. Ct. Spec. App. 2013):

Holding: Order denying Defendant’s request for records of grand jury was final and appealable.
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.
Johnson v. State, 2014 WL 714736 (Tex. App. 2014):

Holding: A bill for court costs did not have to be brought to the trial court’s attention for Defendant to be able to challenge it on appeal.
Thomas v. State, 2013 WL 5336800 (Tex. App. 2013):

Holding: Defendant did not waive his suppression motion for appeal even though defense counsel said “no objection” admission of certain evidence, where trial judge told defendant of his right to appeal and said that the suppression issue would be the main issue on appeal.
Landers v. State, 2013 WL 3329332 (Tex. App. 2013):

Holding: Defendant could appeal trial court’s imposing prosecutor fees as court costs even though he failed to object, because he wasn’t given an opportunity to object and was not required to file a new trial motion about this issue.
Jacobson v. State, 2013 WL 440069 (Tex. Crim. App. 2013):

Holding: Even though Defendant testified at sentencing stage and admitted guilt, this does not forfeit the right to appeal errors from guilt phase.

Armed Criminal Action
State v. Evans, 2014 WL 4832217 (Mo. App. E.D. Sept. 30, 2014):

(1) A hand or a fist is not a “dangerous instrument” for purposes of the ACA statute, so cannot support a conviction for ACA; and (2) trial court abused discretion in admitting a Facebook photo of Defendant apparently making a gang symbol with his hand, where Defendant’s identity was not an issue in case.

Facts: Defendant, using his fists, beat up victim outside a bar, causing serious injuries. Defendant was convicted of first degree assault and ACA. At trial, a Witness to the fight testified that he learned Defendant’s name after the fight by seeing Defendant on Facebook. The State then admitted the Facebook photo, which showed Defendant apparently making a gang symbol with his hand.

Holding: (1) Sec. 571.015.1 provides that a person is guilty of ACA when that person commits another felony through use of a “dangerous instrument.” “Dangerous instrument” is defined in Sec. 566.061(9) as any instrument which under the circumstances is readily capable of causing death or serious physical injury. The issue here is whether a body part can be a “dangerous instrument.” A common-sense definition and reading of “instrument” indicates an external object or item, rather than part of a person’s body. The dictionary defines “instrument” as a “tool or implement.” Body parts are not normally called “tools or implements.” This interpretation is consistent with the pre-1979 version of ACA, which required the use of actual weapons. The Legislature intended to impose additional punishment on people who felonies with an item or weapon, rather than those who just use their hands. Interpreting “dangerous instrument” to include body parts would unduly expand the reach of the ACA statute, and result in a significant departure from the historical intent of enhanced punishment. ACA conviction vacated. (2) Regarding the Facebook photo, it should not have been admitted because Defendant’s identity was not contested at trial. The defense was self-defense. The photo was irrelevant, and more prejudicial than probative because of its apparent gang affiliation, which was not an issue at trial. However, the photo was harmless due to overwhelming evidence of guilt.
State v. Murphy, 2014 WL 4832262 (Mo. App. E.D. Sept. 30, 2014):

A hand or a fist is not a “dangerous instrument” for purposes of the ACA statute, so cannot support a conviction for ACA.

Facts: Defendant hit elderly Victim with his fists as part of a “knockout game.” Victim died. Defendant was convicted of second degree murder, first degree assault, and two counts of ACA.

Holding: For the reasons stated in State v. Evans, 2014 WL 4832217 (Mo. App. E.D. Sept. 30, 2014), a hand or fist is not a “dangerous instrument” for purposes of the ACA statute. The plain meaning of the word “instrument” does not include a body part. Such an interpretation is consistent with the historical intent and use of the ACA statute. ACA convictions vacated.
State v. Donelson, No. ED95132 (Mo. App. E.D. 7/5/11):

Where in 2009, Defendant was charged with two counts of murder and two counts of armed criminal action, for offenses which occurred in 2000 and 2005 respectively, the ACA charges were barred by the three-year statute of limitations for ACA.

Holding: Under Sec. 556.036 RSMo Cum. Supp. 2009, the prosecution of the felony of ACA is limited to three years because armed criminal action is an unclassified code felony and cannot be designated an A felony, which has no statute of limitations. Convictions for ACA vacated.
State v. Summers, 2014 WL 7171572 (Mo. App. W.D. Dec. 16, 2014):

Armed criminal action statute, Sec. 571.015.1, does not mandate consecutive sentences.

Facts: Defendant was convicted of second degree murder, first degree robbery and armed criminal action. At sentencing, the trial court said “I think the armed criminal action has to run consecutive” and imposed a consecutive sentence for it.

Holding: Sec. 571.015.1 provides that the punishment imposed for armed criminal action shall be “in addition to any punishment” provided by law for the crime with a deadly weapon. However, this statute does not mandate that the punishment be consecutive to the other crime. The trial court misunderstood the statute, and this resulted in plain error. Remanded for resentencing where court may consider concurrent sentencing.

Bail – Pretrial Release Issues
State v. Jackson, No. SC92532 (Mo. banc 10/30/12):

Holding: “Cash-only” bonds do not violate the Missouri Constitution, because third parties who are not “commercial sureties” may still post the “cash-only” bonds, and such bonds cannot be “excessive.” Courts must consider a variety of factors in setting bonds set out in Rule 33.01(e).

Discussion: Art. I, Sec. 20 of the Missouri Constitution states that “all persons shall be bailable by sufficient sureties, except for capital offenses.” But this does not mean that “cash-only” bonds are prohibited. Such bonds are permissible because they can be posted by third-party sureties such as family members. But “10% bonds” posted by commercial sureties are not mandated by this provision. Cash-only bonds should not be used to keep a defendant in jail unnecessarily pending trial, however. Art I, Sec. 32(c) of the Missouri Constitution provides that bail may be denied or special conditions imposed only when a defendant poses a danger to the victim, the community or another person. A judge must consider the factors in Rule 33.01(e) in setting bond. If bail is set higher than necessary to secure the defendant’s appearance or to protect the public, it constitutes an impermissible punishment contrary to the presumption of innocence and may be challenged under Article I, Sec. 21 which prohibits “excessive bail.”
U.S. v. Meister, 94 Crim. L. Rep. 391 (11^th Cir. 12/17/13):