Posts Tagged ‘Nuss opinion’

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. Richmond

August 10, 2009

July 24th. The Kansas Supreme Court has issued its decision in State v. Richmond (No. 100,074) a criminal appeal. In a unanimous opinion by Justice Lawton Nuss, the Court rejected Albert Richmond’s various claims to have his conviction for first-degree murder and 50 year (without parole) sentence vacated. Note: District Judge David King served on the Court for this case following the retirement of former Chief Justice Kay McFarland.

Albert Richmond, a drug dealer in Pittsburg, shot and killed Tyrone Owens (also a drug dealer in Pittsburg) in October 2006. The State believed that Richmond did so to discourage snitching, following an incident where a house he was in was raided for drugs. Richmond was accompanied by various henchmen who assisted in various parts of the crime, all of whom cut plea deals with the State. A jury convicted Richmond and he was sentenced to a life sentence without the possibility of parole for fifty years.

Richmond made several claims in his appeal:

That the Court erred by allowing a statement by Richmond to a police officer from several years before that in his own words he “robbed and killed people” into evidence. Rejected. The Court held that this statement (which stemmed from a 1995 Kansas City murder investigation) spoke to Richmond’s mental state and self-image and consequently could be admitted. Prosecutors had been warned to approach this very carefully, since Richmond’s prior convictions from that case were inadmissible.

That the Court erred by ruling that the State could introduce evidence about the 1995 convictions if Richmond introduced his own testimony which related to it. [Richmond chose not to testify]. Rejected. Richmond argued that by ruling this way he was prevented from introducing his own theory of defense but the Court held that having successfully blocked the 1995 matter from being referred to, Richmond could not have referred to those events without the State being able to fill in its side of the story.

That the Court erred by allowing into evidence proof of Richmond’s heavy involvement in drug culture, including prior convictions for drug related crimes. Rejected. The Court held that the evidence was probative and not unduly prejudicial since it showed that Richmond would have been aware of how much cash a dealer like his victim was likely to carry.

That the Prosecutor committed misconduct. Rejected. Richmond raised many claims of prosecutorial misconduct, all but one of which were rejected out of hand. The one which was not concerned the prosecutor repeatedly asking leading questions of a witness, after objections and being warned by the Judge about each instance. The Court held that this could have been reviewed for prosecutorial misconduct, but did not do so because it held that even if it found misconduct the error was harmless since there was little if any likelihood of these incidents altering the result of the trial.

That Cumulative Errors denied him a fair trial. Rejected, since a sole harmless error cannot lead to cumulative error.

Apprendi. Rejected. Richmond made a doomed, pro-forma Apprendi challenge [presumably to preserve the issue for a futile Federal review] which the Court rejected based on its past jurisprudence, upholding the Kansas Sentencing Guidelines.

Richmond therefore remains in prison.

Decision: State v. Houston

July 21, 2009

July 17th. The Kansas Supreme Court has issued its opinion in State v. Houston (No. 98,373), an appeal of a murder conviction. In a unanimous opinion, written by Justice Lawton Nuss, the Court upheld Michael Houston Sr’s conviction for the second-degree murder of Joshua Johnson.

The Houston and Johnson families who lived in KCK became involved in a long running feud following Houston’s having a sexual relationship with Johnson’s girlfriend. Over time many incidents took place between the two men, and Johnson attacked members of Houston’s family. One day, in 2003, Houston was driving his car and had to swerve out of the way of Johnson’s car door as it opened. The pair had nearly come to blows earlier that day, and Houston jumped out of his vehicle armed with a 12ga shotgun. Johnson was exiting his vehicle. Houston shot him dead. At trial (though not in his initial police statement) Houston maintained that Johnson had been reaching for what he believed to be a weapon and that he had shot him in self defense. Houston was convicted of second-degree intentional murder.

On appeal, Houston raised a number of issues. On most of these, the Kansas Supreme Court adopts the ruling in the case of the Court of Appeals, namely that:

  • Houston was not prevented from presenting his theory of self-defense by the exclusion of evidence about Johnson attacking his family members, since evidence of his having done that was introduced anyway by various witnesses and those facts did not speak to Houston’s state of mind when he shot Johnson. In contrast, Houston had been able to enter evidence about Johnson’s previously threatening him.
  • The Prosecutor did not commit misconduct during a chain of questions during which Houston mentioned he had been evaluated on his mental condition at Larned State Hospital.
  • Houston had sought to suppress evidence that Johnson knew Houston had a gun. His pre-trial motion was rejected. The Court held that the issue was not properly preserved for appeal since no objection was made at the time the evidence was actually introduced, which is required.
  • Houston’s Apprendi claim was rejected.

In addition to the above the Kansas Supreme Court also rejected Houston’s assertion that the jury should have been presented with the option of convicting him of the lesser-included offense of Involuntary Manslaughter. Houston’s theory for this was that he had acted lawfully in self defense but used excessive force, and had therefore not intended to kill Johnson. In its ruling, the Kansas Supreme Court adopted a different tack to the Court of Appeals finding that under the circumstances no rational jury could have convicted him of involuntary manslaughter since there was no possibility that in firing his gun at close quarters he had not formed an intent to kill Johnson. In making this ruling, the Kansas Supreme Court also made it clear that loose wording in some recent opinions did not reflect any move away from the standard that a lesser included instruction is not needed when a jury could not reasonably convict a defendant of the crime. That standard was reaffirmed in this case.

Decision: State v. Sharp

June 26, 2009

June 19th. The Kansas Supreme Court has issued its decision in State v. Sharp (No. 98,389). In a 6-1 decision, written by Justice Lawton Nuss, the Court rejected Kimberly Sharp’s contention that her confession to assisting in the murder of David Owen was coerced. Consequently her felony murder and kidnapping convictions were affirmed. Justice Lee Johnson dissented, arguing that certain statements of of the interviewing officer rose to the level at which a reward was implied in return for them, thus rendering the statement coerced.

The background to this case is the murder of David Owen in Topeka in 2006. The circumstances in that case are described in the write-up of State v. Baker (No. 98, 498). Baker and a man named Charles Hollingsworth hanged Owen. Sharp was tried for felony murder and kidnapping because she had assisted in detaining Owen and had provided the rope with which he was later murdered. In addition, she had burned some of his belongings afterwards.

The core of her appeal revolved around the fact that during a police interview the interviewing officer had said, when asked if Sharp was going to jail:

“No, no, no, no, no, no, no, no. You are [only] a witness to this thing as long as you do not do something dumb and jam yourself.”

and later,

“Just don’t tell me no if I ask you something.”

Sharp argued that this constituted a promise not to prosecute her for the murder and that she was then convicted because of evidence she gave up after these statements were made, which implicated her in providing the rope, telling her associates not to murder Owen “here” (as opposed to not at all) as well as her involvement in covering up the crime.

In addition, Sharp has two young children. When it emerged that the children were in another homeless camp, the detectives pressed Sharp for more information, promising to reunite her with them (which they did). Sharp argued that the statements she made at this point were therefore made in order to get to see her children.

The Kansas Supreme Court rejected both arguments. It found that the motivation of the officers surrounding the children was to speedily rescue them from where they were left (in the presence of a convicted sex offender no less) and that this was not an attempt t coerce information out of Sharp. It also found that the statements during the interview were not prejudicial – the police admitted that at the time they did not expect Sharp to be charged with murder. However, promises of immunity (even if these statements rose to that level, which the court found they did not), are not absolute. The Court noted that immunity has been rescinded in circumstances where it is discovered that the person offered immunity for testimony turns out to be the actual killer. Since Sharp’s statements directly implicated her in Felony Murder (and she had been Mirandized and had waived counsel) her convictions were sound. The Court examined the context of the second remark and found it to be a caution not to lie, rather than a demand that Sharp assent to whatever the police officer suggested.

Justice Johnson dissented. He would have found the statements prejudicial. He argued that the first statement of the detective constituted a promise which in conjunction with the admonition not to say ‘no’ deprived the statement of its nature as a product of Sharp’s free and independent will. He was also concerned with the matter of locating Sharp’s children. He argued that given a parent’s natural concern for their children the statements of police surrounding this issue would have been coersive or inducive upon Sharp’s testimony.

Decision: State v. Garcia

May 26, 2009

May 22nd. The Kansas Supreme Court has issued its opinion in the case of State v. Garcia (No. 99,997) a sentencing appeal. In a unanimous decision, written by Justice Lawton Nuss, the Court affirmed Ray Garcia’s felony-murder sentence and the District Court’s finding that the crime was sexually motivated (thus placing him on the Sex Offenders Register).

In 1995 Garcia raped a 73 year old Wichita woman. The crime went unsolved for years. In 2001 the Kansas Legislature extended the Statute of Limitations for rape (which had previously been 5 years). Subsequently a “cold case” investigation identified Garcia as the culprit and he was tried and convicted of rape and felony murder. Garcia appealed and in 2007 the Kansas Supreme Court vacated his conviction for rape as violating the Ex Post Facto clause of the United States Constitution. [Since the Legislature extended the Statute of Limitations after it had expired in Garcia’s case]. The Court remanded the case to District Court for re-sentencing. At re-sentencing the District Court noted in response to questions by the Prosecutor that Garcia remained a Sex Offender since the felony-murder was found to be sexually motivated.

Garcia appealed this, arguing that this was a new finding on remand and that since the felony-murder conviction was untouched by the Kansas Supreme Court’s decision, it could not be reopened for further findings. Garcia sought to have the ‘sexually motivated’ component of that sentence (and thus the Sex Offenders register requirement) removed.

The Court rejected this argument. In examining the transcript of the original sentencing and the journal it found that the trial court had made the finding at the original trial that the felony-murder was sexually motivated. (Which stands to reason, since without the Statute of Limitations issue, Garcia would still have a rape conviction). It also informed him at the time of Sex Offender registration being required as a result of the felony-murder conviction. Therefore, on remand, the District Court was not reopening the felony-murder sentence, and thus it stands as before. Garcia did not object at the time or during his original appeal to this finding and therefore cannot raise a challenge now over the finding that the felony-murder was sexually motivated.

Garcia will be eligible for parole in 2020.

Decision: Stroda v. Joice Holdings

May 24, 2009

May 15th. The Kansas Supreme Court has issued its opinion in Stroda v. Joice Holdings (No. 100,733) a property dispute. In a unanimous opinion, written by Justice Nuss, the Court held that an implied easement that existed on the property in the case was not limited to agricultural purposes by its prior use and could be used for residential access. The Court also held that an easement for residential access can generally be used for providing utilities to a residence. Note: This case was argued after Chief Justice McFarland’s retirement and before her successor took up office. Her place was taken by District Judge Daniel Love.

In the 1950s Lawrence and Etta Stroda bought a parcel of Douglas County land which was not connected to a road. At this time they used a residence on the land. They accessed it via an easement across a neighbouring tract. Subsequently, they bought that tract and the easement was extinguished. By the 1980s no-one lived on the land though the old residence remained. The land was divided back into two the parcels by Etta Stroda’s will and both parties used the land agriculturally, an implied easement to the landlocked portion again existing. In 2006 the landlocked portion was owned by Ed Stroda and the other portion by Joice Holdings LLC. Stroda sought to sell his plot for use as a single residence. Joice Holdings sued, arguing that the the easement was limited to agricultural uses, and that even if it could allow residential access it could not be expanded to utilities. The District Court issued summary judgement to Stroda holding that the implied easement did confer residential access. After a bench trial the Court held that under the circumstances (that utilities could be supplied underground within the existing size of the easement) the easement could also be used to supply the house with utilities.

The Kansas Supreme Court affirmed the District Court on both arguments. An implied easement is one which does not exist because of any written agreement between parties but which arises because of the circumstances of the property – e.g. a landlocked parcel will have some form of right of access across a neighboring property. The Court noted that unlike an easement which is expressly agreed between two parties and written down an implied easement is more flexible and generally based upon what would have been assumed to be itsĀ  purpose at the time of creation. Joice Holdings argued that this limited it to agricultural use but the Court held that in this case it was clear that residential use was contemplated. The Court noted that the ruins of the old house remained on the landlocked parcel and also looked at precedent from other states which emphasized that implied easements are not as prescriptive of usage.

In the second part of its ruling, the Kansas Supreme Court held that a right of residential access under an implied easement could also apply to utilities. In a ruling which will gladden the hearts of property developers (but which perhaps does not take note of technologies offering more self-sufficient sources heat and light), the Court found that providing utilities passed the necessity test needed to establish an easement.

“In our view, a lack of utilities to a new house in Kansas goes beyond mere inconvenience and begins to approach the unlivable. A house generally is not considered to be a residence without water, electricity, and similar utilities, e.g., the ability to be heated and cooled, lit in the dark, and equipped for communication with the outside world.”

The second part of the test is whether such access would be reasonable. Based on the findings of the District Court that the utilities could be provided with limited impact on Joice Holdings’ property, the Court held that the easement could be used to provide the utilities.

Decision: State v. Pennington

April 24, 2009

April 17th. The Kansas Supreme Court has issued its opinion in State v. Pennington (No. 100,261) a motion to correct an illegal sentence. In a unanimous decision, written by Justice Nuss, the Court rejected Reginald Pennington’s claim that his life sentence for second-degree murder was an illegal sentence. Note: Former Chief Justice Kay McFarland was still a member of the Court at the time this case was argued but took no part in the decision. Her place was taken by Court of Appeals Judge Christel Marquardt.

In 1997 Pennington was charged with second-degree murder over the strangulation death of Caresa Akins in Wyandotte County. He was arraigned for the lesser included offense of voluntary manslaughter. Prior to trial, the State filed an amended information, again charging Pennington with second-degree murder and the District Court filed a memorandum opinion concluding that there was sufficient probable cause to support charging him. Pennington was convicted by a jury and sentenced to life imprisonment with parole eligibility after 10 years. Pennington’s direct appeal was rejected by the Kansas Supreme Court in 2000.

Pennington filed this case to correct an illegal sentence, arguing that there were defects in his trial including prosecutorial misconduct in his being charged with second-degree murder twice, without the first charge being dismissed. He argued that he was not properly charged with second-degree murder and therefore could not have been convicted of it. The District Court summarily rejected Pennington’s claim without holding a hearing, leading to this appeal.

Pennington argued two things. Firstly that he should have been granted a hearing on his claim, secondly that he should prevail on it. The Kansas Supreme Court rejected both positions in a brief opinion. It first notes that the right to a hearing in illegal sentence correction motions is not automatic. The person claiming that their sentence is illegal must show that there is some chance of success. Here the District Court correctly determined that there was none. Kansas Law allows prosecutors some flexibility in amending information pretrial and does not require a new arraignment for each amended filing. The procedures surrounding preliminary proceedings are statutory. For Pennington to have been able to get anywhere with his case he would have had to object at trial to the lack of a new preliminary hearing and failure to dismiss the original charge. Since he did not, his right to appeal against them was deemed as waived.

Decision: U.S.D. 232 vs CWD Investments

April 22, 2009

Note: An earlier version of this article erroneously referred to the school district as “Shawnee Mission School District”. In fact USD 232 is the DeSoto school district, which also encompasses some of the outer parts of Shawnee and Lenexa. The article has been corrected.

April 17th. The Kansas Supreme Court has issued its opinion in Unified School District No. 232 vs. CWD Investments, an eminent domain valuation appeal. In a unanimous decision, written by Justice Nuss, the Court determined that the District Court had not abused its discretion in summarily ruling against some of a Johnson County property developer’s damage claims, and had not abused its discretion in barring the developer from raising some others at trial. The case arose over the condemnation of 17 acres of a subdivision in western Shawnee for the purpose of building an Elementary School. The property developer argued that this cost them around two million dollars in total losses compared to the Unified School District’s valuation of $700,000. A jury awarded the developer $8000 more than the school district appraisal.

CWD Investments and Duggan Homes planned to develop a residential subdivision near 55th Street and K-7. The property was intended to be developed into 307 lots. Prior to any ground being broken, the Unified School District condemned 17 acres to build a school. The developers say this led to the loss of 57 fewer units. The land was appraised, but the developers brought an appeal of the condemnation to the Johnson County District Court. During the discovery phase of the trial, John Duggan (President of Duggan Homes and one of the owners of CWD Investments) was deposed as an expert witness to testify about the claims he was making about the true losses his companies were experiencing as a result of the condemnation.

A key point of law regarding eminent domain in Kansas is that it is well established that future profits cannot be a factor in the damages awarded to those losing their property. The Kansas Supreme Court held this in the 1970s. The District Court did however make an evidentiary ruling that information about the way this aspect of the development might affect the fair market value of the land was admissible.

Duggan Homes (the builder for the project) and CWD Investments (the property developer) sought losses for a range of things over and above the appraiser’s value of the land. These included the cost of an extension to Clear Creek Parkway, the impact of having to spread development costs for the subdivision across fewer units on the competitiveness of the homes on the market, the costs of redesigning some of the subdivision, the impact on home values of the school and sewer costs. John Duggan described these and other damages in his deposition.

During the trial phase the District Court ruled that only the items discussed by Duggan in his deposition could be brought up. Yet, Duggan’s counsel took a broader view of that ruling and introduced evidence about items which Duggan had mentioned but not quantified. This ultimately resulted in a mistrial.

Prior to the next trial, the School District sought a summary judgment to rule against some of the developer’s claims since these constituted lost profits disguised as other items. The District Court granted the summary judgment, finding that the developer had failed to establish that it had any facts to support its argument that these costs did impact fair market value. The developer on appeal argued that the ruling was premature since the evidence it intended to present at trial would show the link. The Kansas Supreme Court rejected this argument, finding that the onus was on the developer to have shown this evidence during the summary judgment motion and that since it did not the District Court acted properly in granting summary judgment to the School District.

After this, but before the new trial, the developer altered their argument and included some costs which had not been detailed in the original depositions, such as the costs of the intersection of Clear Creek Parkway and K-7. This represented approximately 1.5 million dollars of additional damages. The School District sought to have evidence supporting this argument barred since it had not been included in the depositions and thus breached the District Court’s evidentiary ruling before the mistrial. The District Court agreed with the School District and barred evidence from being presented on these matters. The Kansas Supreme Court ruled that the District Court did not abuse its discretion in doing so, citing the latitude granted District Courts to determine admissibility of evidence and the fact that Duggan, who is also a lawyer, had signed a statement that his depositions were a complete account of the damages being sought. Just because the developer now had a new theory of its case did not entitle it to alter the evidence it was to present right before a trial.

As a result, the jury’s award of $718,100 damages was affirmed.

Decision: Harsch v. Miller

February 13, 2009

February 13th. The Kansas Supreme Court has issued its opinion in Harsch v. Miller (No. 100,149) a procedural appeal arising out of an eminent domain proceeding. In a unanimous opinion, written by Justice Nuss, the Court affirmed a Coffey County District Court ruling, dismissing Doyle Harsch’s appeal against theĀ  appraiser’s valuation of his land on the grounds that Harsch and his attorney did not appear on the date set for the civil trial. A ruling of the District Court sanctioning Harsch’s attorney and imposing costs upon him based on a finding of contempt of court in the case was overturned. Note: The “Miller” of the case title is Debra Miller, Kansas Secretary of Transportation. Note: this case was argued while Chief Justice McFarland was still a member of the court. She was recused from the case and her place taken by Judge Stephen Hill of the Court of Appeals.

In 2007, KDOT instituted eminent domain proceedings to acquire part of Doyle and Lea Harsch’s land. The Harsches began several legal proceedings to fight this. They appealed the appraiser’s valuation to District Court, began a constitutional claim in District Court and filed another constitutional claim in Federal District Court. They withdrew the State constitutional case. In the midst of this, they filed a motion with the District Court hearing their valuation appeal to stay the case, pending the outcome of their constitutional appeals. The District Court denied their motion. As the date of the jury trial on their appraisal appeal approached the Harsches filed an appeal of the denial of stay with the Court of Appeals. While the Court of Appeals asked them to show why the appeal should not be dismissed as interlocutory (i.e. filed before the lower Court had concluded the case, something there are specific procedures to follow if desired and which is rarely granted), it set a date on which it would rule on their appeal after the date on which the jury trial was to take place.

The District Court proceeded towards the jury trial, while the Harsches and their attorney argued that it could not do this while the Court of Appeals was considering their appeal of the denial of stay. The District Court ruled that it retained jurisdiction in the case, and the Harsches and their attorney announced they would not attend the trial since they argued that the District Court did not and the trial would therefore be a nullity. They carried out their threat, and on the day of the trial the District Court dismissed their appeal and confirmed the appraiser’s valuation. It also sanctioned their attorney, Mark Rockwell, for several thousand dollars in costs of the abandoned trial. A few days later the Court of Appeals dismissed the Harsch’s appeal of the denial of stay. Their Federal case is scheduled for trial in June of this year.

In their appeal the Harsches repeat their argument that the District Court lacked jurisdiction at the scheduled time of the jury trial to hear the case. Some background on rules of appeal in civil cases is necessary to the Supreme Court’s rejection of their argument. Appeals are governed by statute. In civil cases, such as this one, they may only be brought at the conclusion of a lower court proceeding, or as an interlocutory appeal through a particular procedural process. Interlocutory appeals are rarely granted and those that are not filed through the defined process are always dismissed. One exception to this rule is a narrow group of appeals under the collateral order doctrine, which allows interlocutory appeals of District Court rulings that have a degree of finality to them, cover significant legal issues and which would not be possible to preserve for the regular appeals process if the appellant waited. The Harsch’s argued that their appeal fell into this category. The Court rejected this argument, and emphasizing the Legislature’s goal that cases not be tried piecemeal and be concluded as speedily as possible noted several alternative approaches the Harsch’s had opted not to use (such as following the procedure for filing an interlocutory appeal in the prescribed manner). The Court found no grounds that the filing of the Harsch’s appeal of the denial of stay would have removed the District Court’s jurisdiction (in effect getting them the stay they had been denied by simply filing a motion in the higher court), and therefore found that the District Court acted within its discretion in proceeding with the jury trial.

The Kansas Supreme Court overturned the finding that the Harsches and their attorney were in contempt of court by not showing up for trial. It did so on a technicality. Under the Statute cited by the District Court in its contempt ruling, the Court journal is required to include a statement of why they were found in contempt, the sanctions applied and a description of the defendants reason or excuse for the behavior found in contempt. Despite Rockwell’s having made his jurisdictional argument to the District Court when he said the Harsches would not be attending the trial, this information was not included in the journal. Therefore the contempt citation is invalid and was vacated by the Supreme Court along with the fees Rockwell had been ordered to pay.

Decision: State v. Howard

December 21, 2008

December 19th. The Kansas Supreme Court has issued its decision in State v. Howard (No. 98,976). In a unanimous opinion, written by Justice Nuss, the Court affirmed a District Court’s summary dismissal of Carl Howard’s motion to correct an illegal sentence on the grounds of sentence ambiguity.

Howard was convicted of aggravated kidnapping, two counts of rape, and six counts of aggravated criminal sodomy in 1987. At sentencing the Judge misstated the sentence he intended to impose due to the mixture of consecutive and concurrent sentences being handed down. He clarified it with both counsel at the same time he pronounced it. The next day, he reconvened the court to restate the sentence to make sure all understood the previous day’s ruling, and again misstated the sentence. Again, by the end of proceedings he had clarified it and his clarification matched that of the day before and what was entered in the journal. Howard’s sentence was 35 years to life, but based on excerpts from the judge’s misstatements Howard argued the actual sentence imposed was 15 years to life. Howard’s motion to correct the sentence was dismissed by the District Court.

The Court reviewed the summary dismissal on a de novo standard. It adopted this approach because a similar statute to the illegal sentencing one uses a de novo standard when reviewing summary judgements. This in turn is because no new facts have entered the record at the time of a Summary Judgement so the appellate court and District Court are in the same position.

Having reviewed the original sentencing journal and transcripts and reiterating the rule that the sentence announced is the sentence, irrespective of what is in the journal, the Court agreed with the District Court that Howard’s motion was without merit. If a Judge trips over his words and says the wrong thing, even if he does it twice, it does not make the ensuing sentence ambiguous since in this case the Trial Judge ensured that having misspoken everyone understood the sentence to be 35 to life, by the end of both day’s hearings.