Posts Tagged ‘Apprendi’

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.

Commentary: Has the Kansas Supreme Court quietly hobbled Jessica’s Law?

August 16, 2009

On July 2nd 2009, the Kansas Supreme Court handed down State v. Bello, in which it ruled that Juan Jose Bello’s life without parole for 25 years sentence under Jessica’s Law was invalid because his age had not been presented to the Jury to be proven beyond a reasonable doubt. The relevant part of Jessica’s Law applies to those aged over 18. On July 24th it applied the same precedent in State v. Gonzales. On August 14th, it applied the same precedent in State v. Morningstar. Bello’s actual age is not clear, but press reports indicate that Gonzales was 25 years old at the time of the offenses. Morningstar was 21 and the father of the victim. All three men will be resentenced to shorter spells in prison under the Sentencing Guidelines.

The pattern which is emerging is that a defendant’s age in these cases has not normally been presented to the Jury. Therefore it may be safe to assume that just about every life without parole for 25 years sentence handed down under Jessica’s Law between that law’s taking effect in 2006 and last month will be vacated (except where appeals have already been completed or procedurally defaulted).

So far this issue has received very little press coverage. Articles have dealt with the individual cases as the decisions were handed down but there does not seem to have been much comment as to the overall impact of the ruling, which by returning this batch of cases to the Sentencing Guidelines regime effectively nullifies the intent of the Legislature that these criminals not be released for a very long time.¬† To be clear, this is something which individual prosecutors and Judges are in a position to correct going forwards by asking Juries to determine that the defendant is in fact over 18. However with the limited coverage of the cases it is quite possible that this is still happening, dooming further Jessica’s Law sentences.

The legal rationale for these rulings is as follows. Under the Apprendi v. New Jersey line of cases from the United States Supreme Court facts which lead to sentencing enhancements must be presented to the Jury to be determined beyond a reasonable doubt. The Kansas Supreme Court held that since age determines whether a convicted child molester receives the life without parole for 25 years sentence, that it is a fact which must be submitted to the Jury. However, Apprendi is far from a settled or uncontroversial decision. The majority cut across traditional lines, consisting of Justices Stevens, Scalia, Souter, Thomas, and Ginsburg, with Justices O’Connor, Kennedy and Breyer in dissent along with then Chief Justice Rehnquist. That Court has seen three changes of membership since the decision was handed down.

It is a little disquieting then that on the Kansas Supreme Court there was not a single dissent on this issue. It seems absurd that age would be considered a fact that needed to be proven – it is fairly obvious when someone is over the age of 18. Nothing in the State v. Bello opinion gave an indication that Bello’s age and eligibility for this sentence was in any doubt, and it would surely be possible to craft an Apprendi exception around facts which are plainly true, as indeed the Kansas Supreme Court has when it has upheld parts of the Sentencing Guidelines relating to prior convictions. Sadly, the Justice system now seems intent on mimicking grocery stores which implement rules that demand that the middle aged and elderly produce IDs before they may purchase tobacco or liquor to save their clerks the the trouble of thought.

A final comment. There are undoubtedly other crimes defined by Kansas Law in which age is a factor. In the post-Roper world the Death Penalty seems a likely candidate, but there are probably others. In extending Apprendi‘s reach in this way the Justices of the Kansas Supreme Court may have given themselves a lot more work in the years ahead.

That also assumes that the juries in trials under this law that are proceeding at present have been informed that they need to make this finding. It is quite possible that this “error” is still happening, dooming further Jessica’s Law sentences.

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. 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’.