Case Law Update: 2011-2014 Cumulative Edition

Holding: Even though an SVP court has statutory authority to impose special conditions on the conditional release of an SVP Defendant under Sec. 632.505.3, the court cannot impose special conditions on a Defendant’s commitment or treatment to the Department of Mental Health; thus, court could not order DMH to allow Defendant to have art supplies during the course of his treatment.
U.S. v. Antone, 2014 WL 407390 (4^th Cir. 2014):

Holding: Even though Defendant had antisocial personality disorder and polysubstance abuse, where he did not have any sexual misconduct during his extended incarceration, did not have disciplinary violations, successfully completed educational and treatment programs, and expressed remorse for his past acts, there was not clear and convincing evidence that Defendant was a sexually dangerous person subject to civil commitment as sexually violent predator.
U.S. v. Hall, 2012 WL 34481 (4^th Cir. 2012):

Holding: Psychologist’s testimony that offender would not have serious difficulty refraining from child molestation if released supported determination that offender was not a sexually dangerous person, making civil commitment unwarranted.
U.S. v. Turner, 2012 WL 3185954 (9^th Cir. 2012):

Holding: Rule of lenity required a finding that supervised release was not tolled during the time between expiration of a sentence and a decision regarding civil commitment under the Adam Walsh Act.
U.S. v. Timms, 2011 WL 2610566 (E.D. N.C. 2011):

Holding: Defendant’s due process rights were violated where Gov’t did not give a speedy hearing on effort to commit him as SVP under Adam Walsh Act; Gov’t had in its possession information that Defendant was sexually dangerous during his entire incarceration, but waited until he completed his sentence to try to commit him.
People v. Gonzales, 92 Crim. L. Rep. 787 (Cal. 3/18/13):

Holding: Even though Defendant was seeing a therapist as a condition of his parole, the statutory doctor-patient privilege applied and State could not obtain the therapy records to use in SVP proceeding against Defendant.
In re Lucas, 2012 WL 686713 (Cal. 2012):

Holding: A showing of “good cause” for the Board of Parole Hearings to issue a 45-day hold to extend the custody of a possible sexually violent predator means a showing that good cause justified a delay in filing the petition beyond the inmate’s schedule release date.
State v. Phillips, 2013 WL 1338042 (Fla. 2013):

Holding: Where a sex offender’s sentence on a sex offense had legally expired once a corrected award of gain time credit was applied, State could not file an SVP petition against him and court lacked jurisdiction to proceed with an SVP commitment proceeding against him.

In re Geltz, 94 Crim. L. Rep. 366 (Iowa 12/6/13):

Holding: A juvenile adjudication on a charge of sexual abuse does not qualify as a predicate “conviction” that can trigger civil commitment under Iowa’s SVP law.
In re Detention of Stenzel, 92 Crim. L. Rep. 734 (Iowa 3/1/13):

Holding: In SVP case, expert should not have been allowed to testify that a person has already been carefully screened for sex offender status before SVP proceedings are instituted because this is unduly prejudicial in that it may prompt jury to find SVP status due to knowledge of this screening.
In re Ontiberos, 2012 WL 3537845 (Kan. 2012):

Holding: Strickland test applies to claims of ineffective counsel in SVP proceedings.
In re Santos, 90 Crim. L. Rep. 791 (Mass. 2/22/12):

Holding: A Massachusetts law that provides for the admission of state experts’ reports in proceedings to re-evaluate an individual’s commitment as a sexually dangerous person must be construed to allow admission of reports from experts hired by the committed person as well.
Com. v. Suave, 89 Crim. L. Rep. 858, 2011 WL 4090464 (Mass. 9/16/11):

Holding: Even though Defendant repeatedly exposed himself to women, this was not a “menace” under the SVP statute because it would cause only a generalized fear or some other shock or alarm, not a reasonable fear of sexual contact.
In re Civil Commitment of Lonergan, 2012 WL 1192168 (Minn. 2012):

Holding: A blanket prohibition against defendants’ motions for relief from judgment of commitment by sexually dangerous person or sexually psychopathic personality was error.
Matter of State v. Enrique D., 94 Crim. L. Rep. 157 (N.Y. 10/22/13):
Holding: SVP Defendant, whom State was seeking to commit on grounds that he could to control his sexual behavior toward women, should have been allowed to call his girlfriend to testify that he can control his behavior; the pertinent issue was whether the witness – whether expert or lay – has material and relevant evidence to offer on the issues to be resolved.
State v. Miller, 2013 WL 3048635 (S.C. 2013):

Holding: Trial court lacked authority to toll Defendant’s probation for his criminal offenses until he was released from involuntary SVP commitment; tolling of probation must be based on a violation of a condition of probation or a statutory directive.
In re Commitment of Bohannan, 2012 WL 3800317 (Tex. 2012):

Holding: Even though proffered defense expert in SVP civil commitment case was not a psychologist or medical doctor, she should have been allowed to testify where she had a Ph.D. in family science and therapy, was a sex offender treatment provider, and the SVP statute did not require that an expert be limited to psychologists or medical doctors.
People v. Smith, 157 Cal. Rptr.3d 208 (Cal. App. 2013):

Holding: Defendant’s petition for SVP release should not have been dismissed without a hearing as frivolous, where Defendant alleged that his paraphilia diagnosis was currently in dispute and that the hospital’s plan to change to another treatment model would prevent him from completing a program that would lead to his release.
People v. Paniagua, 2012 WL 4127801 (Cal. App. 2012):

Holding: Admission in SVP civil commitment trial of (false) evidence of a Homeland Security document that Defendant had flown from Thailand on a flight that did not actually exist was prejudicial because Thailand is perceived as a place where pedophiles go to have sex with children.
People v. Shazier, 2012 WL 6734681 (Cal. App. 2012):

Holding: Prosecutor’s closing argument in SVP case asking jurors to imagine what their family, friends, co-workers or the community would think if they turned loose a dangerous predator and that they would have to “explain their verdict” to people denied Defendant due process.
State v. Calhoun, 2013 WL 1849064 (N.Y. App. 2013):

Holding: Even though Defendant (potential SVP candidate) was nearing the end of his state sentence, where he was then to be transferred to federal custody to serve a 20-year federal sex sentence, state court had no jurisdiction to commence SVP proceedings because by the time Defendant finishes his federal sentence, he might no longer present a danger of committing future sex crimes.

Statute of Limitations
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.
Dorris v. State, No. SC91652 (Mo. banc 1/17/12):

Where Movant files a 24.035 or 29.15 motion out of time (and an exception to the time limits does not apply), this is a complete waiver of postconviction relief, even if the State does not contest the time limits; the time limits cannot be waived in the motion court or on appeal.

Facts: Various 24.035 and 29.15 movants filed their pro se motions late.

Holding: Rules 24.035(b) and 29.15(b) provide that failure to file a motion within the time provided by the rules shall be a “complete waiver” of the right to proceed under the Rules and a “complete waiver” of any claim that could be raised in a motion filed under the Rules. A movant must allege facts establishing that his motion is timely filed in addition to proving his substantive claims. A movant can show his motion was timely filed by (1) having a file-stamp on his pro se motion which shows it was timely filed; (2) alleging and proving by a preponderance of the evidence in his motion that he falls within a recognized exception to the time limits; or (3) alleging and proving by a preponderance of the evidence that the court misfiled his motion. It is the court’s duty to enforce the time limits even if the State does not raise them. The State cannot waive a movant’s noncompliance with the time limits. The time limits of Rules 24.035 and 29.15 are not the same as statutes of limitations (which can be waived) because the postconvction rules are concerned with upholding the “finality” of judgments, not just ensuring speedy filing of claims.
State v. Hudson, No. ED96609-01 (Mo. App. E.D. 11/20/12):

Where after Defendant’s trial but while his appeal was pending the Supreme Court declared a portion of the harassment statute as unconstitutionally overbroad, Defendant’s conviction under that statute must be set aside because it is plain error to convict under an unconstitutional statute.

Facts: Defendant was convicted of harassment under Sec. 565.090.1(5) for text messages, phone calls and name-calling to an ex-girlfriend. Sec. 565.090.1(5) provided that a person commits the crime of harassment if he knowingly makes repeated unwanted communication to another person. After Defendant’s trial but while his appeal was pending, the Supreme Court found in State v. Vaughn, 366 S.W.3d 513 (Mo. banc 2012), that Sec. 565.090.1(5) was overbroad under the First Amendment because it criminalized protected speech. Defendant contends that his conviction constitutes plain error.

Holding: Even though Defendant did not raise the constitutional issue in the trial court, plain error results if a person is convicted under an unconstitutional statute. Such a conviction is not merely erroneous, but is illegal and void. Where the law changes after a judgment but before the appellate court renders its decision, the change in law must be followed. Conviction vacated.
Wiley v. State, No. ED96782 (Mo. App. E.D. 3/20/12):

Where Movant gave his 24.035 motion to prison officials for mailing two months before due date and after due date the motion was returned in the mail for insufficient postage, this would constitute extraordinary circumstances beyond Movant’s control and allow a late-filing; Movant was entitled to hearing to prove these matters.

Facts: Movant filed a late Rule 24.035 pro se motion and counsel filed an amended motion thereafter. When the State pointed out that the initial pro se motion was late, Movant filed a motion alleging the pro se motion was late due to the actions of prison authorities in mailing it. The motion court dismissed the motion without a hearing.

Holding: An exception to the time limits of Rules 24.035 and 29.15 is when a late filing is “caused by circumstances beyond the control” of Movant. Howard v. State, 289 S.W.3d 651 (Mo. App. E.D. 2009), held that actions of prison officials in not properly mailing a Movant’s motion can constitute cause to excuse a late filing. Here, Movant’s case is similar. Movant alleged that he followed prison procedures in giving his motion to prison authorities to mail two months before its due date. However, after the due date, it was returned for insufficient postage. These facts, if true, would excuse the late filing and Movant should have been granted a hearing on them. The State also claims that Movant was required to raise these timeliness issues in his amended motion; however, the appellate court finds that raising them in the separate motion was sufficient here.
Peeples v. State, No. ED96864 (Mo. App. E.D. 2/14/12):

Where (1) appellate court on direct appeal affirmed some convictions but remanded others for resentencing; (2) Movant subsequently filed a late 29.15 motion regarding the affirmed convictions; and (3) it was unclear from the record when Movant was resentenced on the remanded convictions, the 29.15 motion could be timely regarding the remanded convictions, and further remand was required to determine when sentencing occurred on those counts.

Facts: On August 14, 2009, the appellate court affirmed multiple convictions of appellant/movant, but reversed two counts and ordered different convictions and resentencing on those. Under Rule 29.15(b), appellant/movant had 90 days after the direct appeal mandate to file a 29.15 motion regarding the affirmed counts. He filed the motion too late (in 2010). The motion court ultimately denied relief on the merits. Appellant/Movant appealed.

Holding: The appellate court determines timeliness sua sponte. The 29.15 motion is untimely regarding the convictions that were affirmed on direct appeal. However, it is unclear from the record when Movant was resentenced on the two counts that had been remanded. Appellant would have had 180 days after entry of a new judgment on the resentenced counts to bring a 29.15 motion. Since the appellate court is unable to determine when resentencing occurred, it cannot determine if the 29.15 motion is timely regarding the resentenced counts. Case remanded to determine date of resentencing.
Phelps v. State, No. WD73263 (Mo. App. W.D. 11/1/11):

Holding: For purposes of day-counting under Rule 24.035’s requirement that a pro se motion be filed within 180 days of delivery to the Department of Corrections, the day of the triggering event (i.e., the day Movant was delivered to the DOC) is not included in computing the 180 days per Rule 44.01(a), which provides that “in computing any period of time [under the rules] … the day of the act, event, or default after which the designated period of time begins to run is not to be included.”
State ex rel. Greufe v. Davis, 2013 WL 4805778 (Mo. App. W.D. 2013):

The statute of limitations for possession of child pornography is three years under the general statute of limitation, Sec. 556.036.2(1), not 30 years under the statute of limitations for sexual offenses, Sec. 556.037.

Facts: In 2008, various images of child pornography were found on Defendant’s computer. Three years and two months later, the State charged Defendant with possession of child pornography under Sec. 573.037. Defendant sought a writ of prohibition, contending that the 3-year statute of limitations had expired. The State argued that the 30-year statute of limitations for sexual offenses applied.

Holding: Sec. 556.036.2(1), the general statute of limitations, limits commencement of felony prosecutions to three years. Sec. 556.037, however, provides for a 30-year statute of limitations for “sexual offenses involving a person 18 years of age or under.” The State argues that since it is known that the child depicted in the pornography here was under 18, the longer statute applies. However, under the State’s argument, a person who possesses child pornography that contains a computer-generated image (non-real child) or a child who cannot be identified would be subject only to the three-year statute – yet the conduct of possessing the images is the same. Further, it is the age of the child at the time the image was created, not the age at the time of possession that is important to the offense. Under Respondent’s reasoning, once a child in an image reached 48 years of age, no one possessing the image could be prosecuted for possession. This absurd result could not have been intended by the Legislature. Other cases have held that even though there may be some sexual component to conduct, the offense is not necessarily a “sexual offense” “by its own terms” under Sec. 556.037. Here, the act of possession itself does not involve any sexual conduct on the part of a defendant. The State argues that the offense is “sexual” because it requires Sex Offender Registration, but there are other non-sexual offenses (such as child kidnapping) that also require registration. Writ of prohibition granted with directions to dismiss case.
* McQuiggin v. Perkins, 93 Crim. L. Rep. 265 (U.S. 5/28/13):

Holding: Habeas petitioners who miss 1-year deadline under AEDPA may still have their petition heard if they can demonstrate that no reasonable juror would have convicted them after hearing new evidence of “actual innocence” raised in petition.
* Wood v. Milyard, ___ U.S. ___, 91 Crim. L. Rep. 125 (U.S. 4/24/12):

Holding: Federal appellate courts reviewing federal habeas claims have authority to raise the federal statute of limitations against a petitioner’s petition even though it was not raised by the State, but it is an abuse of discretion for the court to do so where the State affirmatively waived the statute of limitations.
* Maples v. Thomas, ___ U.S. ___, 90 Crim. L. Rep. 539 (U.S. 1/18/12):
Holding: Where petitioner’s state postconviction counsel abandoned him without telling him and thus petitioner missed a state postconviction filing deadline, this constituted “cause” to excuse the procedural default for federal habeas purposes.
* Gonzalez v. Thaler, ___ U.S. ___, 90 Crim. L. Rep. 441 (U.S. 1/10/12):

Holding: (1) For federal habeas time limit purposes, “for a state prisoner who does not seek review in a State’s highest court, the judgment becomes ‘final’ on the date that the time for seeking such review expires,” and (2) habeas statute’s requirement that a certificate of appealability identify the constitutional issue worthy of consideration is not jurisdictional.

U.S. v. Grimm, 94 Crim. L. Rep. 331 (2d Cir. 12/9/13):

Holding: Even though payments were made pursuant to a contract that was obtained by a bid-rigging conspiracy, the payments within the prescribed limitations period were not enough to bring the scheme within the limitations period; there is a distinction between regular payments that were made under the influence of a conspiracy, and a course of regular payments that are free from the corrupt intervention of the conspirators.
U.S. v. Praddy, 2013 WL 3884712 (2d Cir. 2013):

Holding: Even though Defendant had a gun more than five years earlier as part of a drug conspiracy, his possession of the gun was not a continuing offense so as to make the 5-year statute of limitations inapplicable; and even though Defendant continued to sell drugs, the notion that his possession of the a gun must be deemed to have continued was a fiction since the gun had in fact been seized by law enforcement and there was no evidence that Defendant had a gun after that.
Rivas v. Fischer, 2012 WL 2686117 (2d Cir. 2012):

Holding: Petitioner qualified for “actual innocence” exception to statute of limitations for federal habeas corpus where he presented a pathologist who testified that time victim was killed would been consistent with Defendant’s alibi, which contradicted the State’s trial pathologist, who had been the subject of numerous investigations for official misconduct.
U.S. v. Thomas, 93 Crim. L. Rep. 61, 2013 WL 1442489 (3d Cir. 4/10/13):

Holding: Federal prisoners seeking habeas relief under 28 USC 2255 can receive requests to extend the limitations period for relief even before they have filed their substantive claims, unlike state prisoners seeking relief under 28 USC 2254 (2d Circuit has disagrees with this).
Ross v. Varano, 2013 WL 1363525 (3d Cir. 2013):

Holding: Petitioner was entitled to equitable tolling of time to file habeas where his direct appeal appellate attorney misled him as to the status of his appeal, the appellate court’s refusal to replace his attorney, and neglect by his attorney including refusal to accept petitioner’s calls and misstatements of law.
U.S. v. Carter, 90 Crim. L. Rep. 603 (4^th Cir. 1/23/12):

Holding: In a Second Amendment challenge to a statute that makes it a crime for anyone who is a user of or addicted to a controlled substance to possess a firearm, the court remanded the case and demanded the government provide a connection between the law and the governmental interest in protecting the public from gun violence.
Jefferson v. U.S., 2013 WL 4838793 (6^th Cir. 2013):

Holding: AEDPA’s one-year statute of limitations for claims that could have been discovered through “due diligence,” does not require a petitioner to repeatedly seek out evidence that the Gov’t had a constitutional duty to disclose; this is particularly so where Gov’t assured petitioner that it had fulfilled its disclosure obligations.
Cleveland v. Bradshaw, 2012 WL 3890945 (6^th Cir. 2012):

Holding: Petitioner was entitled to equitable tolling of the statute of limitations for his federal habeas petition where he alleged a credible actual innocence claim based on witness recantation, an expert which shortened the time period when the murder could have occurred, and evidence that Defendant could not have returned from another city to the place of the murder in time.
Estremera v. U.S., 93 Crim. L. Rep. 647, 2013 WL 38890210 (7^th Cir. 7/30/13):

Holding: Federal time limit for filing federal habeas petition was tolled during time that petitioner was in ad-seg and had no access to law library, because Sec. 2255(f)(2) provides that prisoners who fail to timely file a petition due to a government-initiated “impediment” must be given one-year from time impediment was lifted to file.
U.S. v. Hagler, 92 Crim. L. Rep. 233 (7^th Cir. 11/21/12):

Holding: 18 USC 3297, which resets the limitations period for a federal crime “in a case in which DNA testing implicates an identified person,” does not restart the limitations clock where the DNA testing produced a partial profile that implicated dozens of people.
U.S. v. Turner, 2012 WL 3185954 (9^th Cir. 2012):

Holding: Rule of lenity required a finding that supervised release was not tolled during the time between expiration of a sentence and a decision regarding civil commitment under the Adam Walsh Act.
U.S. v. Rojas, 93 Crim. L. Rep. 511 (11^th Cir. 6/20/13):

Holding: Statute of limitations for federal marriage fraud starts on day of Defendant’s wedding, not the date immigration authorities first become aware of the fraud.
U.S. v. Coutentos, 2011 WL 3477190 (8^th Cir. 2011):