Criminal Law Updates

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

The following criminal cases of note were decided in the week of 10/01/10:

Washington State Law

Washington State Supreme Court

City of Aberdeen v. Regan: In this plurality opinion, Justice Fairhurst, writing for the majority and joined by Justices Madsen, Charles Johnson, Owens and Stephens upheld the revocation of Mr. Regan’s suspended sentence on another matter after he was accused of fourth degree assault and criminal trespass, despite the fact that he was acquitted of both crimes. The Court held that the probation condition requiring Mr. Regan to have no “criminal violations of law” did not require, as Mr. Regan argued, a conviction or proof of commission of a crime beyond a reasonable doubt for a violation to be found. Rather, the court concluded, “a probation condition that reads “[n]o criminal violations of law” unambiguously restricts a probationer from engaging in conduct that is proscribed by the criminal law.” Because the trial court was reasonably satisfied that a crime had occurred despite Mr. Regan’s acquittal at trial, the Court found that the trial court was authorized to revoke the suspension of Mr. Regan’s sentence. http://www.courts.wa.gov/opinions/pdf/824762.opn.pdf

In his concurrence, Justice Alexander, joined by Justices Chambers and James Johnson noted a “reluctant” concurrence in the result reached by the majority, saying he believed it was “somewhat unfair for a city to seek revocation of Francis Regan’s probation for noncompliance with a condition that he have “[n]o criminal violations of law” when Regan was acquitted in that same court of criminal charges that arose from facts identical to those that led to revocation of his probation.” However, because Standlee v. Smith supports the proposition that the city is not estopped from such action, Justice Alexander felt obliged to follow that decision. Justice Alexander then noted that, should the continued viability of Standlee be directly presented to the supreme court during her tenure, he would be included to advance Justice Utter’s position in his dissent in that case, where he argued, “Where the sole reason advocated for petitioner’s violation of his parole is the commission of criminal acts upon which he has been adjudged not guilty by application of the beyond a reasonable doubt standard in the superior court of this state, to subsequently remove petitioner’s freedom by the application of a lesser standard seems to me to completely ignore the unusually strong language used in [In re] Winship, [397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970)], asserting the importance of [the] fundamental right [to due process].” http://www.courts.wa.gov/opinions/pdf/824762.co1.pdf
In his dissent, Justice Sanders argued that the term “no criminal violations of law,” required that any law violation be an actual crime, and to be guilty of a crime, one must be convicted by production of evidence sufficient to demonstrate guilt beyond a reasonable doubt. The dissent argued that the majority’s conclusion that “criminal violations of law” does not refer to any specific burden of proof but only to whether Mr. Regan actually committed acts that, if proved by a preponderance, would violate criminal law, “ignores the very language of the condition,” and rendered its analysis inaccurate. The dissent posited that the majority’s analysis would be correct if the condition had read, “no violations of criminal law,” but could not apply to the condition as it appeared in Mr. Regan’s paperwork. The dissent further argued that the language is ambiguous at worst, as it could be interpreted to require a criminal conviction on proof beyond a reasonable doubt, or to exclude acquittal. Because of this ambiguity, the dissent argued that the rule of lenity should apply and the ambiguity resolved in Mr. Regan’s favor. http://www.courts.wa.gov/opinions/pdf/824762.no1.pdf

Division One Court of Appeals

State v. Green: The Court reversed and remanded for dismissal two convictions for first degree trespass that arose from violations of a notice of trespass issued to Ms. Green by her son’s school district. The Court held that the State had failed to present sufficient evidence to prove that the notice of trespass constituted a lawful condition to her presence at her son’s school, and that it had failed to do so. Further, the court concluded, Ms. Green was not afforded sufficient due process to support a finding that she waived the right to challenge the basis for the notice of trespass. http://www.courts.wa.gov/opinions/pdf/63001-6.pub.doc.pdf

Division Two Court of Appeals

In Re Price: The Court denied Mr. Price’s personal restraint petition, finding that the statutes in effect at the time that Mr. Price’s DOSA sentence was revoked allowed DOC to revoke that sentence for violations of the terms of that sentence, as happened here. The Court further found that the severity of the violations and the risk he poses to the community rebutted the rebuttable presumption that the DOC not revoke until the third hearing unless there was a failure to complete chemical dependency treatment or conviction of a felony. http://www.courts.wa.gov/opinions/pdf/37753-5.10.doc.pdf

Federal Law

United States Court of Appeals for the Ninth Circuit

United States v. George: Mr. George appealed a conviction for failure to register as a convicted sex offender under the Sex Offender Registration and Notification Act (SORNA), claiming his conviction was void as Washington State, the state where he was required to register, has not yet implemented SORNA. Mr. George also argued SORNA’s registration requirement is an invalid exercise of congressional power and violates the Ex Post Facto Clause of the Constitution. The Court appealed Mr. George’s conviction, finding nothing in the Act that conditions an individual’s obligation to register on the state’s implementation of SORNA. The Court further found that the registration requirement in the statute is not vague, and that Mr. George was required to register as a sex offender even before the enactment of SORNA. Finally, the court found that SORNA’s requirements are not outside of Congress’ commerce clause powers, and that the Act does not violate the Ex Post Facto Clause, noting with regard to the latter that Mr. George was under the continuing obligation to register, and that the conviction at issue here was for failing to register after a move to Washington, after enactment of SORNA. http://www.ca9.uscourts.gov/datastore/opinions/2010/09/29/08-30339.pdf

Brown v. Cate: The Court addressed whether the timing and manner of Mr. Brown’s execution was in violation of the Eighth Amendment bar on cruel and unusual punishment. The Court noted that the timing of Mr. Brown’s execution was dictated in part by the fact that the State’s existing inventory of sodium thiopental, to be used in Mr. Brown’s lethal injection, has an expiration date of October 1, 2010. Finding such timing improper, the Court also found improper the district court’s attempt to force Mr. Brown to choose between the single drug method of lethal injection or the previously used three drug method which had already been called into question as causing undue pain. The Court observed that there were no procedures currently in place for administration of the single drug protocol, and that protocol had not yet been properly reviewed and approved, nor could such review be conducted in the few days between the current order and Mr. Brown’s scheduled execution date of September 29, 2010. Thus, the court concluded, the three drug method was the only method available to Mr. Brown, and the Court remanded for further proceedings regarding whether Mr. Brown is entitled to a stay of execution as it would be conducted under the three-drug protocol currently in effect. http://www.ca9.uscourts.gov/datastore/opinions/2010/09/28/1099019ao.pdf

United States v. Briggs: The Court affirmed Mr. Briggs’ conviction upon a plea of guilty to several drug-related charges, but vacated his sentence and remanded for resentencing. The Court found that Mr. Briggs had the capacity to make a knowing and intelligent decision about his plea and understood the consequences he faced. The court concluded that Mr. Briggs’s true complaint was that did not understand the length of his confinement, which he believed would be 200 months, not the 324 months to which he was ultimately sentenced. The Court found that this was not a sufficient reason to allow him to withdraw the plea. The Court also found that Mr. Briggs was not a victim of sentence entrapment, as there was no evidence that the artificially high level of cash and drugs in the stash house run by the government had elevated the crime beyond Mr. Briggs’ capabilities. The Court did find, however, that the district court had erroneously calculated Mr. Briggs’ sentence when it applied a firearm-related enhancement to his offense level, holding that the district court made no findings of fact concerning whether or not Mr. Briggs actually possessed a dangerous weapon in connection with the crime. The Court thus remanded for further findings regarding the enhancement, and a correct sentencing calculation. http://www.ca9.uscourts.gov/datastore/opinions/2010/09/27/09-30108.pdf

Martinez v. Schriro: The Court denied Mr. Martinez’ federal habeas petition on the grounds that it was procedurally defaulted. The Court further found that Mr. Martinez’ claims of ineffective assistance of counsel did not excuse his procedural default, noting that there is no right to assistance of post-conviction counsel in connection with a petition for post-conviction relief, and therefore Mr. Martinez could not claim ineffective assistance of counsel in this proceeding. Finally, the Court noted that ineffective assistance of post-conviction counsel cannot provide cause to excuse procedural default. http://www.ca9.uscourts.gov/datastore/opinions/2010/09/27/09-15170.pdf

United States v. Mayweather: The Court affirmed Mr. Mayweather’s guilty plea to possession of a firearm in furtherance of a drug trafficking crime. The Court found that Mr. Mayweather’s decision not to bring to the court’s attention at the time of his plea proceeding his instruction to his counsel to challenge the validity of the search of his apartment, and counsel’s subsequent failure to do so, precludes him from now establishing a fair and just reason to withdraw his plea, as a defendant is barred from withdrawing a plea for reasons that were known to him at the time the plea was entered. The Court further found that the record on appeal was insufficient for the court to determine whether Mr. Mayweather did in fact receive ineffective assistance of counsel and that claim could not be reviewed on appeal. http://www.ca9.uscourts.gov/datastore/opinions/2010/09/27/08-50449.pdf

United States v. Weyhrauch: In light of the Supreme Court’s recent decision in Skilling v. United States, the Court affirmed the district court’s denial of the government’s motion in limine in this case, noting that under Skilling, nondisclosure of a conflict of interest is no longer a basis for prosecution under 18 U.S.C. § 1346. Therefore, the Court held, the government is precluded from offering evidence to prove a violation of § 1346 based on such nondisclosure. http://www.ca9.uscourts.gov/datastore/opinions/2010/09/27/07-30339.pdf

Ward v. Ryan: Mr. Ward brought a takings claim against the Arizona State Department of Corrections, seeking immediate access to $50 in inmate earnings withheld by the Department of Corrections and held in a separate fund to be given to him as “gate money” upon his release, noting that his 197 year sentence made it unlikely he would be released from jail prior to his death. The Court upheld the district court’s denial of Mr. Ward’s claim, finding that precedent supported the DOC’s limitation to an inmate’s access to funds without offending protected property interests, and that the DOC in this matter had followed applicable statutes in limiting Mr. Ward’s access to his funds. Further, the court found that Mr. Ward had not been permanently deprived of his funds, and thus he had not been permanently deprived of any property interest in the money. http://www.ca9.uscourts.gov/datastore/opinions/2010/09/27/07-17156.pdf

United States v. Webster: The Court affirmed Mr. Webster’s convictions for possession with intent to deliver, money laundering, and conspiracy to commit possession with intent and money laundering. The Court found that sufficient evidence supported the convictions. The Court further found that testimony regarding a proposed exhibit was proper when the exhibit itself was not entered into evidence and the discussion was aimed at educating the jury on the different types of methamphetamines, not connecting the methamphetamines with Mr. Webster. Additionally, the court found that admission into evidence of a wire transfer naming Mr. Webster as the recipient was proper, finding that the admission of Mr. Webster’s name on the transfer was admissible as an admission by a party-opponent. Finally, the Court found that jury instructions which failed to define proceeds as profits was not error where, as here, the facts supported a definition of proceeds as all receipts from a criminal enterprise. http://www.ca9.uscourts.gov/datastore/opinions/2010/09/30/09-30173.pdf

Sapp v. Kimbrell: Mr. Sapp brought this section 1983 claim for medical treatment of an eye condition before properly exhausting all administrative remedies as required by the Prison Litigation Reform Act. The Court found that the improper screening of administrative appeals by a prison official may excuse a failure to exhaust under the PLRA. However, the facts here do not show that prison officials improperly screened out Mr. Sapp’s administrative grievances. Therefore, the Court affirmed dismissal of the suit. http://www.ca9.uscourts.gov/datastore/opinions/2010/09/27/05-15745.pdf

United States Supreme Court

Recordings of Oral Argument: On September 28, 2010, the United States Supreme Court announced that it will make available to the general public tape recordings of all oral arguments before the court at the end of each argument week. The recordings will be posted on the Court’s website, www.supremecourt.gov, Friday afternoons. http://sblog.s3.amazonaws.com/wp-content/uploads/2010/09/audiotape-release-9-28-10.pdf

The Law Offices of Dena Alo-Colbeck focuses on research, brief writing, and trial preparation for criminal defense litigators. If you know of anyone who you think would like to receive these updates, please feel free to either forward this message or ask us to add his or her name to our email list. If you have any questions regarding the foregoing decisions or if we may be of assistance on any other matter, please do not hesitate to contact us.

Dena Alo-Colbeck
Attorney at Law
253-318-1758
[email protected]

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