Posts Tagged ‘Jessica’s Law’

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.

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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. 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.