Case Law Update, Week Ending 10-7-11

Courtesy of Law Offices of Dena Alo-Colbeck
“Writing and Research for Washington Attorneys”

The following criminal cases of note were decided this week:

Washington State Law

Washington State Supreme Court

State v. Robinson: The Court found that the trial court properly allowed Mr. Robinson to withdraw his guilty plea after learning that his juvenile convictions, which he had believe had washed out, would in fact count toward his offender score, significantly increasing his statutory sentencing range. The Court agreed with the trial court that the misunderstanding of the consequences of Washington sentencing law was reasonable, though erroneous, and that Mr. Robinson’s plea was not made knowingly, voluntarily, and intelligently. The Court overturned the Court of Appeals determination that the trial judge abused her discretion when she allowed Mr. Robinson to withdraw his plea, and found that the ruling was within the sound discretion of the trial court. The Court reasoned that due process requires that a defendant’s guilty plea be knowing, voluntary, and intelligent, and that a defendant may be permitted to withdraw his plea of guilty if it appears that the withdrawal is necessary to correct a manifest injustice. The Court determined that such a scenario existed here, noting that the prior juvenile offenses did not count against Mr. Robinson in a sentencing on a previous recent crime, and it was therefore reasonable for him to believe that they would not count in this case either.

In a dissent, Justice James Johnson argued that Mr. Robinson’s guilty plea agreement expressly provided “Criminal history includes prior convictions and juvenile adjudications or convictions.” Reviewed his plea agreement before signing it, and that he understood its contents. The dissent argued that Mr. Robinson knew of his juvenile convictions and should not be allowed to now withdraw his guilty plea because he did not disclose those convictions to the State prior to the entry of the plea. The dissent posited that the trial court’s action in allowing Mr. Robinson to withdraw his plea was an abuse of discretion and an error of law.

State v. McKague: The Court affirmed Mr. McKague’s conviction for second degree assault, holding that substantial evidence supported the conviction, but in doing so disapproved of the definition of “substantial bodily harm” applied by the Court of Appeals majority. As the Court noted, “Substantial” is not defined in the assault statute. The Court disagreed with the portion of the dictionary definition of “substantial” applied by the Court of Appeals, that of “‘something having substance or actual existence,’ ‘something having good substance or actual value,’ ‘something of moment,’ and ‘an important or material matter, thing, or part.'” The court argued that this definition would make practically any demonstrable impairment or disfigurement a “substantial” injury regardless of how minor. Thus, the definition would apparently render the term “substantial” meaningless, a result a court must avoid. The Court held instead that the term “substantial,” as used in RCW 9A.36.021(1)(a), signifies a degree of harm that is considerable and necessarily requires a showing greater than an injury merely having some existence. The court approved of the definition cited by the dissent to the Court of Appeals decision: “considerable in amount, value, or worth.” Applying that standard, the Court held that the evidence was sufficient to meet the definition of substantial bodily harm, as Mr. McKague was found to have punched his victim in the head several times and pushed him to the ground, causing his head to strike the pavement and resulting in
facial bruising and swelling lasting several days.

Division Two Court of Appeals State v. Sakellis: In this partially published opinion, the Court upheld Mr. Sakellis’ conviction for second degree assault, finding that the prosecutor’s use of a “fill-in-the-blank” argument that misstated the reasonable doubt standard, while improper, did not prejudice the verdict in this case. The Court reasoned that Mr. Sakellis could not demonstrate a substantial likelihood that the argument was so flagrant and ill-intentioned as to affect the jury’s guilty verdict, due to the strength of the evidence that Mr. Sakellis assaulted his victim with a deadly weapon.

State v. Olson: Mr. Olson was arrested on a warrant after failing to appear for community custody. He argued, and the trial court agreed, that the warrant was improperly issued as it was not issued by a neutral magistrate under oath or affirmation. The trial court therefore had suppressed evidence seized during the search incident to arrest, and the State appealed. In overturning the trial court’s ruling, the Court observed the trial court had relied upon outdated federal law in making its ruling, and that a more recent Ninth Circuit case held that under the Fourth Amendment, arrest warrants issued for parolees do not have to be issued by a neutral magistrate or under oath or affirmation. The Court found unpersuasive Mr. Olson’s argument that the words “reasonable cause” in the Washington statute governing such warrants should be interpreted to require a warrant to be issued under oath or affirmation and from a neutral magistrate. The Court found that this argument was unsupported by any authority and ignored established precedent affording lesser constitutional protections to probationers.

Division Three Court of Appeals

City of Walla Walla v. Ibarra-Raya: The Court upheld the trial court’s verdict ordering forfeiture of $401,333.44 in cash discovered in a 2006 search by Walla Walla police officers to the City, finding that Mr. Ibarra-Raya, who claims to be its owner, had not put forth sufficient evidence proving he was in fact the rightful owner of the cash and was not entitled to its return. The Court concluded the findings and conclusions entered by the trial court were insufficient for appellate review on the element of probable cause for statutory forfeiture, but nevertheless did not remand for further findings on probable cause because substantial untainted evidence supported the trial court’s conclusion that Mr. Ibarra Raya was not entitled to the return of the cash. The Court found that the City had made a substantial showing that the cash did not belong to Mr. Ibarra-Raya, and he had failed to carry his burden of proving otherwise.

Federal Law

United States Court of Appeals for the Ninth Circuit

Carrera v. Ayers: The Court affirmed the district court’s denial of Mr. Carrera’s habeas petition based on ineffective assistance of counsel, finding that defense counsel’s failure to object in Mr. Carrera’s initial trial to the prosecutor’s use of peremptory challenges to strike six Hispanic venirepersons, leaving just two Hispanics on the jury did not constitute ineffective assistance of counsel. The Court held that Mr. Carrera failed to present evidence sufficient to overcome the strong presumption that counsel’s performance was reasonable, as set out in Strickland v. Washington. The Court reasoned that Strickland requires that the panel “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Thus, the Court concluded, the presence of some reasons for not bringing challenges to the peremptory challenges and the dearth of evidence to overcome the strong presumption in favor of defense counsel’s reasonableness combined to mandate denial of Mr. Carrera’s petition.

In his dissent, Judge Tashima argued that defense counsel’s failure to object to the prosecutor’s peremptory challenges that excused 75 percent of Hispanic venire persons who were called ignored and obvious prima facie case that the prosecutor was using his peremptory challenges disproportionately to strike Hispanic jurors in violation of established law. The dissent argued that counsel’s deficient performance resulted in a structural error, and prejudice must be presumed, and therefore habeas relief should have been granted.

United States v. Gilchrist: The Court affirmed Mr. Gilchrist’s 25 month sentence and five years of supervised release following a guilty plea to ten counts of embezzlement and eight counts of bank fraud related to two schemes to defraud Wells Fargo Bank. The court found meritless Mr. Gilchrist’s contention that because he did not know he was the subject of a pending criminal investigation at the time he committed perjury in a civil suit concerning the very same conduct later charged in the criminal Indictment, the district court erred in applying U.S.S.G. § 3C1.1 to enhance his sentence for willfully obstructing justice. In so holding the Court agreed with other jurisdictions in finding that “willful” means only that the defendant have engaged in intentional or deliberate acts designed to obstruct any potential investigation, at the time an investigation was in fact pending; it does not mean the defendant had to know for certain that the investigation
was pending.

United States v. King: The Court affirmed Mr. King’s conviction of four counts of injecting fluids into deep wells without a permit after it was found he was injecting wastewater into wells in violation of the Safe Drinking Water Act. The court also affirmed Mr. King’s conviction for making a “materially false” statement in a “matter within the jurisdiction” of the United States. The Court found that the government proved that Mr. King willfully injected water into wells despite not having a permit from the State of Idaho under its Underground Injection Control (“UIC”) program, and found that in order to establish a violation the government need not establish that the injection “implicated” or “pertain[ed] to” an underground source of drinking water (“USDW”). Rather, the Court concluded, the burden was on Mr. King to show that his proposed injection would not adversely affect an USDW. The Court further found that Idaho’s UIC program falls entirely within the scope of the SDWA by specific incorporation from the federal government. Further, the Court found that the criminal conviction in this case did not exceed Congress’ authority under the Commerce Clause. While the SDWA clearly affects interstate commerce, the Court reasoned, forbidding injections into the USDW is a valid exercise of Congress’ authority and did not exceed such authority under the Commerce Clause. Next, the Court found that the false statement made by Mr. King to John Klimes, an Idaho agricultural inspector, was nevertheless made in a “matter within the jurisdiction of the United States.” The Court held that the statute at issue was intended to cover “those deceptive practices which might result in the frustration of authorized government functions.” That category applied in this case, the Court reasoned. Finally, the Court denied Mr. King’s motion for a new trial, finding that references made to “waste” in violation of a pretrial order were cured by a limiting instruction and subsequent stipulation, and that testimony of one of the witnesses that did not relate what Mr. King had actually said was made pursuant to a protective order that Mr. King had insisted upon and was in any case harmless.

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