Case Law Update: 2011-2014 Cumulative Edition

Holding: Colorado law requires prison officials to construe multiple sentences as one continuous sentence in determining when inmate is eligible for parole; this is true even though Defendant had reached his parole eligibility date on a first sentence before receiving a second, consecutive sentence; the State sought to count the consecutive sentence separately, which would have resulted in Defendant serving a longer time before parole.
Marquez v. People, 2013 WL 5309235 (Colo. 2013):

Holding: Convictions for robbery and assault did not “arise out of the same incident,” (thus allowing consideration of concurrent sentences instead of consecutive sentences under mandatory sentencing scheme), because this phrase means “arising out of a single criminal episode”; here, the crimes involved two distinct acts separated by 12 hours, different means of commission and different victims.
People v. Padilla-Lopez, 2012 WL 2393078 (Colo. 2012):

Holding: Even though Department of Human Services incurred costs in investigating Defendant’s child abuse case, this did not make the Department a “victim” entitled to restitution.
Arnold v. State, 2012 WL 3090290 (Del. 2012):

Holding: Where Defendant received a pardon for an adult conviction, he was also automatically entitled to expungement of his juvenile record under a state statute providing for automatic expungement of juvenile records when a person receives a pardon for any crime.
Del Valle v. State, 2011 WL 6220783 (Fla. 2011):

Holding: Statute requiring probationer to prove inability to pay a monetary obligation, such as restitution, by clear and convincing evidence was unconstitutional.
Moore v. State, 94 Crim. L. Rep. 119, 2013 WL 5508540 (Ga. 10/7/13):

Holding: Even though under-age-18 Defendant agreed to a life without parole sentence to avoid the death penalty, he was entitled to sentencing relief because Roper v. Simmons, 543 U.S. 551 (2005), subsequently held that the 8^th Amendment bans the death penalty for all offenses committed before the 18^th birthday.



State v. Hudson, 94 Crim. L. Rep. 15, 2013 WL 5303244 (Ga. 9/23/13):

Holding: Test for determining whether a sentence imposed for multiple counts after a successful appeal was “vindictive” is to compare the total original sentence with the total new sentence (“aggregate approach” as opposed to “count-by-count approach”) to determine whether the new one is more severe.
Hedden v. State, 88 Crim. L. Rep. 816 (Ga. 3/18/11):

Holding: Mandatory sentence minimum for “physically restraining” victim did not apply to a defendant who possessed child pornography photos of restrained victims, because the victim was not restrained during commission of the offense of possession of the photos.
People v. Davis, 94 Crim. L. Rep. 769 (Ill. 3/20/14):

Holding: Miller’s ban on mandatory life without parole for juveniles is retroactive.
People v. Snyder, 2011 WL 5999261 (Ill. 2011):

Holding: Withdrawal of guilty pleas, and not vacatur of restitution, was appropriate remedy for failure to admonish defendant about possibility of restitution order before accepting guilty pleas.
People v. Hammond, 2011 WL 36387388 (Ill. 2011):

Holding: State’s attorney lacked authority to veto intermediate sanctions offered by probation officer in lieu of revocation.
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.

Abbott v. State, 2012 WL 560904 (Ind. 2012):

Holding: A 20 year sentence for possession of cocaine, enhanced because a police officer happened to pull over the car the defendant was riding in within 1000 feet of a school, was inappropriate.
State v. Ragland, 2013 WL 4309970 (Iowa 2013):

Holding: Even though Governor commuted Juvenile’s unconstitutional life without parole sentence to “life without parole for 60 years,” this was the functional equivalent of life without parole because Defendant would not be eligible for parole until age 78, and did not remove the 8^th Amendment prohibition on such sentences without individualized consideration of Defendant’s youth.
State v. Null and State v. Pearson, 93 Crim. L. Rep. 681 (Iowa 8/16/13):

Holding: Iowa Constitution goes beyond Miller and Graham, and recognizes “effective” juvenile life without parole, such as multiple consecutive sentences that are so long in total that a juvenile would never be released; Iowa Supreme Court adopts “special procedures” judges must follow, including on-the-record findings of principles set forth in Roper, Graham and Miller, before imposing a lengthy sentence; a lengthy sentence “is appropriate, if at all, only in rare and uncommon cases.”
Anderson v. State, 89 Crim. L. Rep. 749, 2011 WL 3209162 (Iowa 7/29/11):

Holding: Defendant whose probation was revoked is entitled to credit for time served on home electronic monitoring.



State v. Washington, 93 Crim. L. Rep. 359, 2013 WL 2450146 (Iowa 6/7/13):

Holding: Where judge imposed additional community service on Defendant after he refused to answer a question at sentencing about drug use, this violated Defendant’s 5^th Amendment privilege against self-incrimination.
State v. Fannon, 2011 WL 1900285 (Iowa 2011):

Holding: Prosecutor’s breach of plea agreement not to recommend consecutive sentences was not cured by the prosecutor’s withdrawal of his remarks, for purposes of determining if Defendant’s counsel was ineffective in failing to object to the breach or request appropriate relief.
State v. Bruce, 88 Crim. L. Rep. 776, 2011 WL 832249 (Iowa 3/11/11):

Holding: Prosecutor cannot amend information after guilty verdict to add sentencing enhancements.
State v. Hall, 94 Crim. L. Rep. 709 (Kan. 2/28/14):

Holding: Because restitution is part of Defendant’s sentence, Defendant has right to be present in open court when it is imposed, even if the amount is not calculated until a later time after the original sentence is imposed.


State v. Hall, 2013 WL 3242252 (Kan. 2013):

Holding: Judge’s use of retail value, rather than wholesale value, of stolen inventory was arbitrary in deciding on restitution amount.
State v. Galaviz, 2012 WL 6720627 (Kan. 2012):

Holding: Defendant has right to effective assistance of counsel in probation revocation proceedings as a matter of due process under 14^th Amendment.
State v. Guder, 2012 WL 246662 (Kan. 2012):

Holding: District court could not modify previously imposed sentence on one conviction following remand from appellate court for resentencing based on a different conviction.
State v. Snellings, 2012 WL 1144318 (Kan. 2012):

Holding: The elements of two drug-related offenses were identical, requiring sentencing for the less severe offense.
State v. Divine, 2011 Wl 262676 (Kan. 2011):

Holding: Expungement of sex offender’s conviction terminated his requirement to register as sex offender under Kansas statute.
Martin v. Kansas Parole Bd., 2011 WL 2279059 (Kan. 2011):

Holding: Amendment that lengthened postrelease supervision was ex post facto.
Webb v. Com., 2012 WL 5877963 (Ky. 2012):

Holding: In jury sentencing proceeding, trial court erred in admitting details of Defendant’s prior convictions that included names of prior victims of Defendant and identified them as police officers; this exceeded the scope of permissible relevant evidence at sentencing.
Jones v. Com., 2011 WL 6543010 (Ky. 2011):

Holding: Restitution based solely on unsworn statements by victim’s mother, who defendant was not given the opportunity to cross-examine, violated defendant’s due process rights.
Blackburn v. Com., 2011 WL 6543053 (Ky. 2011):

Holding: Statute providing that the period of confinement for a felony committed by a convicted felon while on parole, probation, shock probation, or conditional discharge is not to run concurrently with any other sentence does not allow a defendant to be sentenced so that the consecutive sentences exceed the allowable maximum aggregate duration.
Com. v. Marshall, 2011 WL 3760858 (Ky. 2011):

Holding: Before court can revoke probation for failure to pay child support, due process requires that court must consider whether Defendant is unable to pay through no fault of his own and if so, must consider alternatives to incarceration; this is true even if Defendant had agreed to pay support as condition of probation.
State v. Shaffer, 90 Crim. L. Rep. 330 (La. 11/23/11):

Holding: State cannot enforce statutes that require life without parole for juveniles convicted of nonhomicide offenses because this violates Graham v. Florida, ___ U.S. ___ (U.S. 2010).
Doe v. Dept. of Public Safety and Correctional Services, 92 Crim. L. Rep. 724, 2013 WL 7789337 (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.
Alston v. State, 2013 WL 3213307 (Md. 2013):

Holding: Where two statutes prescribed different penalties for illegal possession of firearm, rule of lenity required that Defendant be sentenced under the more lenient statute where the Legislature had not explained or reconciled the differing statutes.
Silver v. State, 2011 WL 24372286 (Md. 2011):

Holding: Court could not order restitution to pay for crime for which Defendant was not convicted.
Gardner v. State, 89 Crim. L. Rep. 381 (Md. 5/24/11):

Holding: Where original sentence was imposed by a 3-judge review panel and Defendant subsequently won a new trial, the new sentence is limited by the term imposed by the panel.
Com. v. Maker, 2011 WL 711566 (Mass. 2011):

Holding: State Sex Offender Registry Board lacked statutory authority to create new sex offender registration requirements.
Doe v. Sex Offender Registry Bd., 2014 WL 657958 (Mass. App. 2014):

Holding: At sex offender classification hearing, Defendant was entitled to funding to present expert testimony about how to interpret complex statistical and scientific studies demonstrating that age affected recidivism rates in sex cases.
Moe v. Sex Offender Registration Bd., 95 Crim. L. Rep. 15 (Mass. 3/26/14):

Holding: Sex offender amendment that retroactively imposed public notification requirements on persons whose records were previously not open to the public violates Mass. Constitution’s due process guarantee; these persons acted in reasonable reliance on prior law when they did not challenge their sex offender classification level.
Diatchenko v. District Attorney and Com. v. Brown, 94 Crim. L. Rep. 418, 2013 WL 6726856 (Mass. 12/24/13):
Holding: (1) Miller v. Alabama (U.S. 2013) ban against mandatory LWOP for juvenile offenders is retroactive, and (2) all prisoners who received LWOP before turning 18 must be afforded opportunity to apply for parole.
Doe v. Sex Offender Registry Board, 94 Crim. L. Rep. 366 (Mass. 12/11/13):

Holding: Under state sex offender law that requires individualized assessment of recidivism risk, female offender was entitled to new classification hearing where Board failed to consider different recidivism rates between male and female offenders.
Com. v. Bradley, 94 Crim. L. Rep. 283, 2013 WL 6085236 (Mass. 11/21/13):

Holding: Statutory amendment which reduced the “drug free zone” around schools applied to persons who committed their offenses before the amendment but who were not yet convicted; the rationale of the amendment was to reduce unfair racial disparities that occur in drug crimes which occur in urban areas where there are many schools nearby, and it would prolong the disparate impact not to apply the law retroactively; also, the rational was that the larger radius did not better protect school children from drug dealers.
Com. v. Galvin, 2013 WL 4464598 (Mass. 2013):

Holding: Law which reduced mandatory minimum sentences for drug offenders applied to persons who committed their offenses before the law’s effective date, but who were not convicted or sentenced until after law’s effective date; the primary purpose of the law was to significantly reduce mandatory minimum sentences; it would be “absurd” to conclude that the Legislature intended to provide reductions for everyone except the limited class of persons whose offenses were committed before the law’s effective date but who weren’t convicted and sentenced until afterwards.
Com. v. Rodriguez, 2012 WL 75660 (Mass. 2012):

Holding: Trial court had authority, on its own timely motion to revise or revoke defendant’s sentence, to reduce the sentence.
Com. v. Dean-Ganek, 2012 WL 75663 (Mass. 2012):

Holding: Commonwealth lacked authority to require trial judge to vacate defendant’s guilty plea to larceny from a person, where the trial court imposed a sentence less severe than that set forth in the plea agreement and the Commonwealth sought an increased sentence.
Doe v. Police Commissioner of Boston, 89 Crim. L. Rep. 751 (Mass. 8/5/11):

Holding: Law banning sex offenders from living in nursing homes is unconstitutional as applied to an infirm senior offender; court must make individualized determination of particular danger presented by offender, and consider the liberty interest in where offender can live vs. the need to protect the public.
Doe v. Sex Offender Registry Board, 89 Crim. L. Rep. 751 (Mass. 8/5/11):

Holding: Even though sex offender failed to appear at registration hearing without good cause, this cannot be deemed a waiver of the right to a hearing under the statute.
Tucker v. State, 2011 WL 2555635 (Minn. 2011):

Holding: Even though Defendant shot the victim and fled the scene, this did not justify an upward sentence from guidelines for felony murder since fleeing the scene and abandoning the victim are typical behavior for defendants convicted of felony murder.
Jones v. State, 2013 WL 3756564 (Miss. 2013):

Holding: Miller’s prohibition against mandatory juvenile LWOP applies retroactively to cases on collateral review.
Parker v. State, 93 Crim. L. Rep. 401 (Miss. 6/6/13):
Holding: Even though Juvenile’s sentence would allow him to be eligible for conditional release at age 65, this was tantamount to a life without parole sentence and violated Miller v. Alabama (U.S. 2012).
In re Hooker, 2012 WL 745062 (Miss. 2012):

Holding: Facially valid pardons issued by outgoing governor could not be set aside solely for noncompliance with publication requirement.
Keys v. State, 2011 WL 3505307 (Miss. 2011):

Holding: Where prisoner had been released on parole from a life sentence, and then received a consecutive 5 year sentence, he was not required to serve his entire life sentence before the 5 year sentence began to run; it began to run when the imprisonment on the life sentence ended upon parole.
State v. Macy, 94 Crim. L. Rep. 615 (Mont. 2/11/14):

Holding: Even though restitution statute allowed restitution for “apprehending” an escapee, where Defendant escaped to another State, the restitution was owed to the other State which actually “apprehended” him, not to Montana from which he escaped and which sought extradition of him; costs of extradition aren’t covered by the restitution statute because “extradition” is not the same as “apprehending” someone.
State v. Mantich, 94 Crim. L. Rep. 549 (Neb. 2/7/14):

Holding: Miller’s ban on automatic JLWOP sentences is retroactive.
State v. Rieger, 2013 WL 5872222 (Neb. 2013):

Holding: Condition of probation that Defendant not have contact with her husband except as part of therapy was not narrowly tailored and reasonably related to goals of probation.
State v. Landera, 2013 WL 645822 (Neb. 2013):

Holding: State breached plea agreement that required it to recommend probation where prosecutor made remarks at sentencing suggesting that the State did not want probation after having reviewed the presentence report.
State v. Shambley, 89 Crim. L. Rep. 97, 2011 WL 1327864 (Neb. 4/8/11):

Holding: Defendant facing termination from diversion program is entitled to same process due at a probation or parole revocation hearing; thus, Defendant has right to cross-examine witnesses at hearing.
Goudge v. State, 92 Crim. L. Rep. 162 (Nev. 10/25/12):

Holding: Once a court has determined that a defendant has fulfilled the requirements for release from lifetime sex offender supervision, the court has no discretion not to release defendant.
State v. Charest, 2012 WL 4874347 (N.H. 2012):

Holding: A firearm is not a “deadly weapon” per se, and so does not by itself rquire mandatory minimum sentence under deadly weapon statute.
State v. Willey, 2012 WL 1502901 (N.H. 2012):

Holding: A sentence of 8 to 20 years was improper to the extent that the trial court’s comments indicated that it found to be an aggravating factor defense counsel’s trial tactics to attack the credibility of the child victim.
State v. Laplaca, 89 Crim. L. Rep. 645, 2011 WL 2547352 (N.H. 6/28/11):

Holding: A prospective waiver of a probation hearing for future violations of probation violates New Hampshire Constitution’s due process provision, because the Defendant’s waiver of any future haring was akin to pleading guilty to any future allegations, and eliminated the State’s burden to prove the allegations and Defendant’s opportunity to contest them.
State v. Kay, 2011 WL 2975616 (N.H. 2011):

Holding: Appeals of probation revocations are determined under a de novo standard of review.

State ex rel. K.O., 94 Crim. L. Rep. 709 (N.J. 2/24/14):

Holding: Where juvenile recidivist statute called for higher sentence when a juvenile has been adjudged delinquent on two separate occasions, this required two separate prior adjudications, and does not count the current offense; the rule of lenity should apply in interpreting the statute given the rehabilitative goal of the juvenile system.
State v. Schubert, 2012 WL 5190213 (N.J. 2012):

Holding: Even though statute required that Defendant be sentenced to lifetime supervision, where court failed to do this and did not discover this error until Defendant’s probation had expired, it violated Double Jeopardy to later amend the judgment to require this; Defendant had a legitimate expectation of finality of his sentence once his probation had expired.
State v. Randolph, 2012 WL 2225477 (N.J. 2012):

Holding: Sentencing court was required to consider Defendant’s rehabilitative efforts between time of original sentencing and re-sentencing.
State v. McDonald, 2012 WL 931105 (N.J. 2012):

Holding: Defendant could not be given separate extended-term sentence for offense that was committed prior to sentencing for another offense.
State v. Hess, 89 Crim. L. Rep. 719 (N.J. 7/21/11):

Holding: (1) Counsel was ineffective for believing that plea agreement prohibited counsel from presenting mitigating evidence and argument at sentencing, and such a plea agreement would violate public policy because it undermines the adversarial process by denying the sentencing court information it needs; and (2) counsel was ineffective in failing to object to unduly prejudicial victim impact video entitled “A Tribute To [name of victim],” which included childhood photos, music, a segment about the victim’s funeral, and a photo of their tombstone – these elements were not admissible evidence of the victim’s life as related to family and friends.
People v. Santiago, 2013 WL 5610128 (N.Y. 2013):
Holding: Even though Defendant was convicted of third-degree murder in Pennsylvania at age 15, this offense could not be counted under New York’s recidivist statute because under New York law, Defendant was a juvenile and could not have been prosecuted for a similar offense in New York.
People v. Sosa, 90 Crim. L. Rep. 663 (N.Y. 2/14/12):

Holding: Repeat drug offenders who were originally sentenced under New York’s tough so-called “Rockefeller drug laws” are entitled to credit toward the running of a 10-year “look-back period” for the time they avoided being convicted of drug offenses while incarcerated.
People v. Paulin, 89 Crim. L. Rep. 627 (N.Y. 6/28/11):

Holding: New York statute that reduces prison time for persons serving drug sentences also applies to people incarcerated for violation of parole.
State v. Boykin, 2013 WL 5746116 (Ohio 2013):

Holding: Even though Defendant received a pardon from the Governor, this does not automatically create a legal right for Defendant to have her criminal records sealed.
State v. Swidas, 2012 WL 4820814 (Ohio 2012):

Holding: Statute which provided enhanced sentence for discharging a firearm from a vehicle did not apply where Defendant got out of car and fired gun while he had both feet on ground and no substantial connection to the car.
In re C.P., 91 Crim. L. Rep. 62, 2012 WL 1138035 (Ohio 4/3/12):

Holding: Imposing lifetime registration requirement on juvenile sex offenders violates 8^th Amendment.
State v. Palmer, 90 Crim. L. Rep. 761 (Ohio. 2/21/12):

Holding: The Ohio Supreme Court’s recent decision to strike down the state sex offender registration law’s classification scheme does not prevent offenders from challenging their classifications.
State v. Williams, 89 Crim. L. Rep. 664, 2011 WL 2732261 (Ohio 7/13/11):