SENTENCING: Counsel’s failure to point out ASA and case law allowing for departure from mandatory minimum for PFO was ineffective assistance that precluded possibility of deferred or reduced sentence for 1st-time drug Defendant. . . prison sentence reversed. . . Knisely reversed. [Read more…]
Incest, “sexual contact” “humiliate, harass, or degrade”
INCEST: Challenge of “humiliate, harass, or degrade” in “sexual contact” statute and instruction as unconstitutionally vague waived by failure to raise until day after trial when juror expressed concern about being misled. . . statutory 100 years with no parole for 25 years for incest with minor proper based on finding that “the ultimate protection of the victim and society” exception not applicable. . . judgment improperly imposed 2 consecutive sentences by default when pronouncement imposed concurrent. . . Cybulski affirmed, reversed. [Read more…]
Deliberate homicide, interview videos, jail clothes
DELIBERATE HOMICIDE conviction affirmed over challenge to interview videos with Defendant in jail clothes and restraints shown to jury, State’s failure to disclose witness’s change in story when it learned of the change the morning of trial. . . Manley affirmed (IOR I-3(c)). [Read more…]
Sentencing, extra year for alcohol treatment
SENTENCING: 1 year properly added to plea agreement to allow additional time for alcohol treatment because of delay caused by continuances requested by Defendant. . . remanded for consideration of ability to pay defender fees. . . technology fee improperly imposed per count. . . Larson affirmed, reversed. [Read more…]
Assault with weapon, joinder following mistrial
ASSAULT WITH WEAPON/PFMA: Cases properly joined based on feedback from mistrial of 1st case and despite State’s initial waiver. . . jail letters to fiancée properly admitted. . . mistrial properly denied after Deputy revealed fiancée’s fear based on prior violence. . . convictions affirmed. . . Langton affirmed. [Read more…]
Child rape/sex assault, jury trial for not admitting
CHILD RAPE/SEXUAL ASSAULT: Continuance due to late disclosure properly denied… mistrial properly denied as to Prosecutor’s comments about necessity of jury trial… Defense Counsel rapped for suggesting that male jurors would appreciate how impossible it is to undress a woman who is resisting… Newman affirmed. [Read more…]
Right to be present, pre-trial conference
RIGHT TO BE PRESENT: Defendant not prejudiced by absence from emergency procedural conference… Oldenburg affirmed. [Read more…]
Robbery, pretrial punishment, “criminal purpose”
ROBBERY: Plain error review declined for claims of pretrial punishment by being held in solitary & restraints for 5 months prior to sentencing, allegedly sanctioned by Judge at transport hearing while Defendant was at MSH for fitness evaluation… “criminal purpose” of robbery not completed when shoplifted goods were abandoned outside store after being confronted, ripened into felony robbery when he injured or threatened to injure pursuers… Defendant required to testify to lay foundation for justifiable force… Deschamps affirmed. [Read more…]
Speedy trial, repeated failure to appear
SPEEDY TRIAL: Repeated unexplained failures to appear constituted good cause for postponing misdemeanor trial beyond 6 months, judge properly elected not to try in absentia… Defendant at large for 3 years obviously did not want timely trial… Ulbricht/Allison affirmed. [Read more…]
Youth, robbery sentencing
YOUTH: Pronouncement failed to specify that robbery sentence would be for less than 40 years… adult sentence should not exceed 5-year DOC commitment recommended by State at disposition which Judge apparently intended to adopt… McLean reversed (IOR I-3(d)). [Read more…]
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