Archive for the ‘Child abuse’ Category

Decision: State v. Case

August 20, 2009

August 7th. The Kansas Supreme Court has issued its decision in State v. Case (No. 98,077) a sex-offender sentencing appeal. In a unanimous opinion, written by Justice Lawton Nuss, the Court vacated Christopher Case’s sentence for aggravated endangering of a child, finding that under the conditions of his guilty plea certain facts relied upon by the Judge to sentence him to 60 months of postrelease supervision violated his rights under Apprendi v. New Jersey.

Christopher Case, a registered sex-offender, caused a nine-year old girl to be placed in a a situation where here life and health were endangered and where she was lewdly touched. Case also exposed himself to the victim. The details of the crime are not included in the opinion. Case pled guilty to charges related to this in return for more serious charges being dismissed, but utilised an Alford plea. An Alford plea (based on the United States Supreme Court’s 1970 decision in North Carolina v. Alford) is one where a defendant pleads guilty but maintains his innocence.

At sentencing Case was sentenced to the term which he and the prosecutor both agreed to recommend in the plea agreement, however the Judge imposed the maximum sentence of 60 months supervision post-release. The Judge did so on the grounds that the facts in the plea agreement showed the crime was sexually motivated, which allowed for this enhancement. The Court of Appeals agreed, and affirmed the District Court, noting language in the plea agreement talking about stipulating to the facts outlined in the charge, namely that Case had committed the crime to satisfy his sexual desires.

The Kansas Supreme Court vacated the sentence. It found that under an Alford plea (which despite the language about stipulating to the offenses contained in the charge this remained) the defendant has expressly not pled guilty to the facts as alleged. Therefore, the defendant could not have waived his Apprendi right not to have a judge take into account untried facts in enhancing a sentence. Since no jury made the fact-finding that the crime was sexually motivated, Case is not eligible for the enhanced sentence. Case’s case, will be returned to District Court for resentencing.

Decision: State v. Easterling

August 17, 2009

August 7th. The Kansas Supreme Court has issued its opinion in State v. Easterling (No. 100,454) a Jessica’s Law Sentencing Appeal. In a unanimous opinion, written by Justice Lee Johnson, the Court upheld David Easterling’s sentence to life without parole for 25 years, for the molestation of his granddaughter.

David Easterling sexually abused his 5 year old granddaughter. He was reported and arrested. During his interrogation (after waiving his Miranda rights), he admitted to having abused his daughter in the same way in the 1980s. His wife admitted that she had known about this. Easterling pled guilty to his crimes, in a plea arrangement under which the Shawnee County prosecutors agreed to request a departure sentence of just under 10 years instead of the presumptive Jessica’s Law sentence. The District Court noted the information about the 1980s abuse was contained in a sworn affidavit by a the interrogating police officer. The District Court refused the durational departure, sentencing Easterling to life without parole for 25 years.

Easterling appealed on two grounds. His first argument was that the inclusion of the evidence on the affidavit breached his Due Process rights to a fair trial. His second was that the Jessica’s Law sentence was a cruel and unusual punishment.

On the first argument the Court examined prior cases and determined that there was a Due Process question to be examined, making this the first Kansas case which explicitly states that Due Process must be afforded at sentencing. The Court found that, since the affidavit was signed under penalty of perjury, by a law enforcement officer and involved admissions by Easterling and his wife that a reasonable person would not make falsely, the evidence was considered to be reliable. It concluded that he had not been denied Due Process since the Court had notified him and his Counsel that it would be looking at the affidavit and he therefore in his argument for mitigation had had an opportunity to argue against it. Therefore the District Court did not deny Easterling his Due Process rights at trial.

On the challenge to the constitutionality of the Jessica’s Law sentencing regime, the Court found that since Easterling had not objected at trial on these grounds he could not raise the matter on appeal. It did consider whether the case’s procedural posture meant that it could consider the matter anyway, but decided otherwise.

Easterling’s sentence to life in prison without the possibility of parole for 25 years was therefore upheld.

Decision: State v. Morningstar

August 16, 2009

August 14th. The Kansas Supreme Court has issued its decision in State v. Morningstar (No. 99,788) an appeal arising from a child abuse prosecution. In a unanimous opinion, written by Justice Dan Biles, the Court upheld the conviction of Gary Morningstar for the rape of his six-month old daughter but vacated his Jessica’s Law sentence, in accordance with the recent precedent in State v. Bello.

The background to this case is revolting and covered in the Court’s opinion which is linked here and for this reason we see no reason to repeat it in this entry. Suffice to say that the abuse Morningstar inflicted on his daughter resulted in her hospitalization and was described by a nurse who had been involved in 188 previous sex abuse cases, as the worst trauma to a child she had ever seen.

Morningstar raised three issues. The first two concerned the State’s not having presented evidence to the jury that Morningstar was over 18 which the Court has held is a required element of the automatic life without parole for 25 years sentence under Jessica’s Law. Morningstar argued that because of this his conviction should be vacated. The Court rejected this argument, holding that the lack of evidence presented concerning his age did not mean that the crime had not happened, merely that a different sentencing regime must take effect. Therefore, Morningstar succeeded on his second point, that the Jessica’s Law sentence be vacated and he be remanded for resentencing under the Sentencing Guidelines.

Morningstar’s final argument was that the prosecutor engaged in misconduct with comments he made to the Jury about how Morningstar had left the baby lying in the bath after she had sustained her injuries while he made a telephone call to his wife. The Court rejected this argument finding that the prosecutor’s comments were acceptable and that even if they had not been they would still not have risen to the level of misconduct since they were supported by substantial evidence and therefore did not prejudice his defense.

Morningstar’s original sentence was vacated and the case remanded for resentencing. He will therefore receive a more lenient sentence under the Kansas Sentencing Guidelines.

Decision: State v. Gonzales

August 13, 2009

July 24th. The Kansas Supreme Court has issued its opinion in State v. Gonzales (No. 99,657) a child sex abuse case. In a unanimous opinion, written by Justice Marla Luckert the Court affirmed Gerald Gonzales’ convictions for aggravated indecent liberties with a child, rejecting his complaint of ineffective assistance of counsel. However, the Court vacated his Jessica’s Law sentence on the grounds that the jury was not asked to find that the state had proven beyond a reasonable doubt that Gonzales was over 18 at the time the crimes were committed.

Gerald Gonzales repeatedly forced his girlfriend’s daughters (aged 14 and below) into performing sex acts with him. He was arrested and convicted on multiple counts. During the trial he had disagreements with his lawyer and sought a retrial on the grounds of ineffective assistance of counsel. The Trial Court rejected that, finding that his attorney’s performance was acceptable. On appeal he re-argued this matter as well as seeking to have his life without parole for 25 years sentence vacated on the grounds that his age (a factor in sentencing) was not presented to the jury for a finding.

The Court upheld the District Court’s denial of Gonzales’ ineffective assistance claim, after reviewing the detail of what appeared to be a workaday dispute between a defendant and his lawyer. It also upheld Gonzales’ convictions, since his date of birth had appeared on the charging sheet.

However, citing its recent decision in State v. Bello, the Court vacated  Gonzales’ sentence. It found that under Apprendi, the fact that Gonzales was over 18 was an element of the crime and therefore a matter for the jury to determine. Therefore Gonzales’ case was remanded for re-sentencing where he will receive a lesser sentence.

Analysis: It is becoming clear that a significant number of Jessica’s Law sentences in Kansas are going to be vacated as a result of the State v. Bello decision (how many depends on whether DA’s have included the defendants ages in evidence presented to juries, something many will not have done since it is usually obvious that a given child molester is over 18). The whole Apprendi regime hangs by a thread, however, and some have suggested that newly confirmed Justice Sonia Sotomayor may side with those who would overturn it. The Jessica’s Law cases that bubble up in the coming months may well present a good vehicle for such a challenge in which an obviously over-18 criminal is let off lightly because their age was not presented as something for the Jury to rule on. This blog will monitor the United States Supreme Court docket for signs of a certiorari petition by the State of Kansas. The United States Supreme Court has twice reversed the Kansas Supreme Court in criminal cases in recent years.

Decision: State v. White

July 17, 2009

July 17th. The Kansas Supreme Court has issued its opinion in State v. White (No. 100,264), a motion to withdraw a plea. In a unanimous opinion, written by Justice Marla Luckert, the Court held that (contra the District Court’s ruling) Harry White had rebutted the presumption that he had received effective assistance from his lawyer. The Case was therefore remanded for further fact finding as to whether he would be able to withdraw his no-contest plea to aggravated indecent liberties with a child under the age of 14.

Harry White sexually abused three girls many times over a period of years spanning the introduction of Jessica’s Law. He was charged with 8 counts relating to that conduct, including one under Jessica’s Law. Prior to trial, White entered into a plea agreement that he would plead to the Jessica’s Law charge and the others would be dropped. White was 69 years old at the time he was charged.

White’s plea agreement incorrectly stated that the maximum sentence he could receive would be one of not less than 25 years in prison. In fact his maximum sentence would be life, without the possibility of parole for 25 years. Prior to sentencing, White appears to have figured out that he reaped no net benefit from having the other 7 charges dismissed and sought to withdraw his plea.

His argument was that the plea agreement was incorrect and therefore he received ineffective assistance of counsel and did not knowingly make the plea. The District Court rejected his motion, finding that the plea agreement was clear (in terms of the potential consequences for White, i.e. that he would die in prison) and stated that during the enactment of the plea agreement the Court had correctly reviewed it with White (which can correct an error in a written agreement).

The Kansas Supreme Court reversed the District Court on this point. It found that the plea agreement was not clear, and that the transcript of the proceeding reviewing the plea agreement included a potentially misleading statement by the Judge which White might have misinterpreted to mean he would be eligible for probation.

Therefore, the District Court’s ruling on the motion to withdraw the plea was reversed and the case remanded back to the District Court to consider the remaining parts of the test for ineffective assistance of counsel, and a determination whether White’s plea may be withdrawn.

Decision: State v. Bello

July 10, 2009

July 2nd. The Kansas Supreme Court has issued its decision in State v. Bello, an appeal against a conviction for child abuse. In a unanimous opinion, written by Justice Lee Johnson, the Court affirmed Juan Jose Bello’s conviction for aggravated criminal sodomy and aggravated indecent liberties with a child. However the Court vacated his ‘Jessica’s Law’ 25-years-without-parole sentence on the grounds that the State had not submitted the fact of his being over 18 years old to the jury for consideration. Bello will therefore be re-sentenced under the Kansas Sentencing Guidelines to a shorter sentence. No criminal history score information is included in the opinion to allow a calculation of how long Bello will likely serve.

Bello molested a seven year-old girl who was visiting his home with her parents. After Bello had twice gone to the room in which she and her brother were sleeping and molesting her, the girl told her parents. After a fight, police were called and Bello was arrested and charged.

At trial, Bello procured an expert witness who was to present a theory that the girl had been abused before and that she had mistakenly accused Bello. The “supporting evidence” for this abuse was an affidavit from Bello’s wife that she had seen the girl kiss her brother and that she had seen her climb into Bello’s lap. Bello filed a motion to allow this “evidence” to be introduced under the provisions of the Kansas Rape Shield Law which normally precludes evidence of past sexual activity by the victim unless the trial court allows it. The trial court denied the motion.

On appeal, Bello argued that the Kansas Rape Shield Law did not apply to situations where the prior acts were victimization in a crime and not consensual activity. The Supreme Court opinion indicates that the Justices found this to be an interesting argument but rejected it because Bello had not objected to the Statute at trial and therefore could not bring it up on appeal. Indeed, Bello had filed a motion under the terms of the statute he now challenged. One might also say that the Legislature is on notice to ensure the Rape Shield Law can also be used to protect victims in these situations.

Bello’s appeal of his conviction was thus rejected. However he also appealed his 25 year sentence on the grounds that a different sentence is applied to this crime depending on whether the defendant is over 18 or not. The State had not specified  Bello’s age in the charge, and the Jury was not asked to find that Bello was indeed over 18. Therefore, following the Apprendi rule, the Kansas Supreme Court held that Bello cannot be sentenced to the harsher sentence which applies to those over 18. His case was therefore remanded to the trial court for sentencing under the Sentencing Guidelines and not ‘Jessica’s Law’.

Decision: State v. Horn

May 8, 2009

May 8th. The Kansas Supreme Court has issued its opinion in State v. Horn (No. 100,373). In a unanimous decision, written by Justice Johnson, the court threw out a Jessica’s Law 25 year sentence that had been imposed on Joshua Horn for attempted aggravated criminal sodomy on a child under 14. Horn will be resentenced using the non-drug Kansas Sentencing Guidelines grid.

Joshua Horn attempted to commit aggravated criminal sodomy on a child under 14. Justice Johnson’s opinion does not cover Horn’s crime in any detail, and a web search turns up nothing so we cannot provide any more information about what led to his being charged. Under Jessica’s Law he was sentenced to a life sentence without the possibility of parole for 25 years.

Horn appealed his sentence. He argued that there is a conflict in the statutes describing sentencing. The crime he was convicted of covers attempting to commit any off-grid felony, and prescribes a sentence on the non-drug grid for a level one felony. However, Jessica’s Law prescribes a hard-25 sentence for the crime. The Court sided with Horn.

While the State had argued that Jessica’s Law was the more specific statute and therefore should govern the conflict, the Court held that either statute could be read as the more specific one. It also noted that in the same session of the legislature where Jessica’s Law was passed, that the Court had amended the statute concerning attempted felonies to make its sentencing rule not apply to two terrorism related offenses, but had not done so for Jessica’s Law.

Therefore the Court applied the Rule of Lenity which meant that of the two conflicting sentencing options the one most favourable to the defendant should apply. The Court did not provide any information about Horn’s criminal history, so it is not clear what his sentence will be, but it is possible to determine the lower limit: if Horn has a clean record or only one misdemeanor he could be sentenced to as little as 12 years.

Commentary: Justice Johnson’s opinion is a very brief one, yet significant because it removes a category of crimes from the provisions of Jessica’s Law. We feel confident in predicting that a Bill to make clear that the Jessica’s Law sentence applies to such cases will quickly be passed in next year’s legislative session. The moral of this story for the Legislature: spend more time cross-checking the statutes and be more precise about how laws are to work.

Decision: State v. Spotts

May 1, 2009

May 1st. The Kansas Supreme Court has issued its opinion in State v. Spotts (No. 100,084), an appeal against a sentence for child rape. In a unanimous opinion, written by Justice Dan Biles, the Court rejected Walter Spotts attempt to have his consecutive life sentences ruled “cruel and unusual punishments” under Article 9 of the Kansas Bill of Rights. Note: This opinion is Justice Biles’ first, since being appointed to the Court earlier this year by now former Governor Kathleen Sebelius (D).

Convicted felon Walter Spotts had sex with a 12 year old on more than one occasion. When charged he pled no contest to two counts of rape and one of sexual intercourse with a child under the age of 14. At sentencing, he presented some evidence in mitigation and argued for a downward departure from his “minimum” sentence. The State argued against this, citing aggravating factors. Ultimately the Judge declined to grant a downward departure and sentenced Spotts to two consecutive life sentences, the first without the possibility of parole for 51 years, the second without the possibility of parole for 25 years.

On appeal, Spotts made two arguments. The first was that the sentences were a Cruel and Unusual Punishment under the Kansas Bill of Rights. The second was that the District Court should have granted a downward departure based on Spotts’ mitigating evidence. The Kansas Supreme Court rejected both arguments.

The Cruel and Unusual Punishment argument was rejected on the grounds that it was not raised before the District Court. As a general rule, new arguments cannot be added to a case in the appellate stage and therefore this claim was foreclosed.

The second argument was rejected on the grounds that the District Court acted within its discretion in sentencing. The statute governing these crimes required a life sentence without the possibility of parole for at least 25 years “unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure”. The Kansas Supreme Court has held that the standard by which the decision of the District Court is to be reviewed in these circumstances is one where the court is presumed to not to have abused its discretion if a reasonable person could agree with the Court’s pronounced sentence. Since reasonable people could agree, the sentence was affirmed.

Governor signs new ‘prior bad acts’ law

April 23, 2009

Kansas Governor Kathleen Sebelius (D) has signed Senate Bill 44 into law. While this act was primarily devoted to enacting a false claims statute for Kansas, it was amended by the House and Senate conference committee to include a section which rewrites part of Kansas law regarding the admissibility of evidence of prior bad acts.

This legislation was spurred by the decision in January by the Kansas Supreme Court in the case of State v. Prine. In an opinion written by Justice Carol Beier the court vacated the conviction of John Prine for the rape of a six year old girl on the grounds that evidence of his having committed similar acts in the past was wrongly admitted as it was not similar enough to the case at hand. Chief Justice Kay McFarland (who has since retired) dissented, arguing that the Court had misread its precedents and created the standard it applied unnecessarily.

SB44 was signed into law on April 20th. It takes effect on the date of its publication in the Kansas Register.

Update on State v. Prine / HB 2250

April 11, 2009

Previously we covered the action in the State Legislature to overturn the Kansas Supreme Court decision in State v. Prine, where a new trial was ordered for a child molester on the grounds that evidence of his past criminal  activities was improperly admitted. (The court held that the actions he had committed before were not similar enough to the ones charged in the case at hand. Then Chief Justice Kay McFarland dissented, arguing that the evidence was admissible and that the Court was misreading its own precedents to create an overly strict test of similarity for no reason).

In February, the House passed HB2250 (proposed by Rep Lance Kinzer(R)) to explicitly allow the admission of this sort of evidence. The Senate Juciciary Committee passed an amendedment to modify the language in the Bill which was then passed by the whole Senate, unanimously. HB2250 has since been taken over as a vehicle for a different piece of legislation, but its original content, dealing with the admissibility of prior offenses has been added to SB44 (which creates criminal penalties for false claims against the state government). SB44’s conference report passed the Senate unanimously (with David Wysong(R) not voting) on April 2nd and passed the House unanimously on April 1st (with Joe Seiwert(R) not voting). The bill is therefore on its way to the Governor.

The Conference Committee version of the bill includes the Senate amendments, which narrow the scope of the original measure a little.  For non-sexual offences, evidence relating to proving that a defendant followed a particular method is allowed to be admitted only if it is so similar that it would be reasonable to conclude that the same individual committed both crimes. The test articulated by the Court was that it be “so strikingly similar in pattern or so distinct in method of operation to the current allegations as to be a signature”. In sex offence cases the evidence would always be admissible, so long as it was relevant and probative.

The Conference Committee also added a severability clause, in case the new law is struck down. In her written opinion in this case Justice Beier had stated that it was up to the legislature to remedy the law surrounding admissability of this evidence, but challenged them to do so in a way that did not do “unconstitutional violence” to the defendant’s rights. If the Governor signs SB44 Justice Beier will probably get an opportunity to decide if the new law measures up to her standard.

The full text of the new measure is here. (Page 15)

The full text of the Conference Committee Brief is here.


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