Wednesday, July 09, 2014

Combining Murdock and Brooks could really help some federal defendants

In State v. Murdock, No. 104,533 (Kan. May 2, 2014), the Kansas Supreme Court recently held that when determining criminal history for a defendant in a Kansas state felony case, all prior convictions that predate the Kansas Sentencing Guidelines (effective July 1, 1993) should be scored as nonperson crimes.  As blogged about here, based on other Kansas Supreme Court case law, Kansas defendants who have already been sentenced should be able to obtain Murdock relief on their sentences by filing a motion to correct illegal sentence under K.S.A. 22-3504, which can be filed at any time. 

A few weeks after Murdock was decided, the Tenth Circuit decided United States v. Brooks, No. 13-3166 (10th Cir. June 2, 2014), a case that changed the way prior convictions from Kansas state courts are analyzed under federal criminal law.  As blogged about here, Brooks held that the applicable grid box a defendant is sentenced with using the Kansas Sentencing Guidelines grid can determine whether that prior Kansas state conviction is a "felony" for federal law.  Thus, for the prior Kansas conviction, if the top number in the grid box on the journal entry of judgment is 12 months or less, the prior conviction will not count as a felony under federal law.  This can affect a number of sentencing enhancements in federal cases, such as those in aggravated re-entry cases, Armed Career Criminal, some 851 enhancements, and a plethora of guideline factors.  Additionally, it can impact whether someone is legally allowed to possess a firearm or ammunition under 18 U.S.C. 922 and/or affect the sentencing enhancements in those cases.

As Kansas AFPD David Freund recently suggested to me, the impact of Brooks and that of Murdock could overlap in certain cases.  This is because Brooks advises that you need to look at the applicable grid-box used for sentencing in a Kansas state conviction to determine whether it is a felony for federal purposes.  And it follows that if you can use Murdock to go back and lower the grid-box for that prior case, then it could change whether the prior conviction is considered a felony for any number of enhancements in federal criminal law (as blogged about here, there are other fun ways to use state collateral attacks to stave off a federal sentencing enhancement).


Let's say you represent a defendant in federal court, and they are looking at an Armed Career Criminal Act enhancement based in part upon a prior Kansas conviction for a severity level 8 aggravated battery.  Let's also say that when the defendant was sentenced in that prior state aggravated battery case, he had one pre-1993 prior conviction that was scored as a person felony.  Thus, his prior "person" felony in the aggravated battery case landed him in the 8-D box of the Kansas Sentencing Guidelines for sentencing in that case.  With the 8-D grid-box carrying incarceration terms of 17-16-15 months, the crime seemingly qualifies as "a crime punishable by imprisonment for a term exceeding one year" (a felony as defined by federal law) and thus could be used to trigger the ACCA enhancement in the federal case.

But as held in Murdock, the pre-1993 prior conviction that was scored as a person felony in the aggravated battery case should have been scored as a nonperson felony in that case, making the sentencing box the 11-10-9 grid-box contained in 8-G of the Kansas sentencing grid.  Thus, the aggravated battery conviction, when the correct criminal history is applied in that case, is not "a crime punishable by imprisonment for a term exceeding one year" and should not be used as an ACCA predicate in the new federal prosecution.  See Brooks.

The solution to this hypothetical problem might be to file a motion to correct the illegal sentence in the old state case and ask that the prior journal entry of judgment list the correct grid-box as the law is set forth in Murdock.  Then, the journal entry of judgment for that Kansas state aggravated battery case would show that the conviction no longer qualifies as a felony under federal law and thus could not be used as an ACCA predicate in the federal case.

Monday, June 09, 2014

Tenth Circuit overrules U.S. v. Hill

Melody Evans won recently in United States v. Brooks, No. 13-3166 (10th Cir. June 2, 2014), reversing Mr. Brooks' sentence and enhancement as a "career offender."  The court held that Mr. Brooks' previous Kansas state conviction for eluding police is not a felony for purposes of U.S.S.G. § 4B1.1(a) because the top number in his Kansas guidelines grid box for the offense was not more than 12 months.  In doing so, the court overruled United States v. Hill, 539 F.3d 1213 (10th Cir. 2008), and issued a holding that has far reaching impacts for defendants in federal criminal cases in the Tenth Circuit.  As blogged about here, the Hill decision was ripe for overruling, based on the U.S. Supreme Court's decision in Carachuri–Rosendo v. Holder, 130 S. Ct. 2577 (2010).

As Melody has stated over at the Kansas Federal Public Defender Blog, "the Tenth Circuit decided [in Brooks] that any Kansas conviction that is not punishable by more than 12 months is, generally, not a felony for federal purposes -- not for felon-in-possession cases, aggravated re-entry cases, Armed Career Criminal, some 851 enhancements, and a plethora of guideline factors.  If 12 is the top number in the box, your client is probably good."  Melody's post also includes helpful Kansas sentencing grids, which explain how certain grid boxes are impacted by Brooks.   Here is additional coverage of the opinion by the Sentencing Law and Policy Blog.   

The holding in Brooks is almost identical to the Fourth Circuit holding in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011), which involved a similar holding concerning the North Carolina sentencing guidelines.  In fact, Brooks cited to Simmons in its analysis.  And as a preview of what may come to be in the Tenth Circuit, the impact of Simmons in the Fourth Circuit has been huge, affecting thousands of defendants.  The Fourth Circuit has even held in that this type of career offender challenge can be brought in a 28 U.S.C. § 2255 motion.  See Whiteside v. United States, 748 F.3d 541 (4th Cir. 2014).

But as stated above, it's not just about career offender challenges.  The Kansas FPD Blog has already followed up on the subject here (with a post by Daniel Hansmeier), stating that:
Predicate convictions for felony statutes, including the felon-in-possession statute, 18 U.S.C. § 922(g), and its Armed Career Criminal counterpart, 18 U.S.C. § 924(e), no longer include the many Kansas convictions with presumptive sentences of 12 months or less. The same holds true for the numerous recidivist enhancements in the Sentencing Guidelines (think 2K2.1, 4B1.1, and 2L1.2, to name a few). Moving forward, it is imperative that we scrutinize any Kansas conviction used to enhance a sentence in federal court.
This pretty much sums it up.  If a client has a Kansas state prior conviction in federal court, you need to get the journal entry of judgment for the prior offense to see if the top number in the sentencing grid box is 12 months or less.  If it is, it will not count as "a crime punishable by imprisonment for a term exceeding one year," as the phrase is used in so many aspects of federal criminal law.  But just as important is the impact this has for your former clients.  They will be on the clock to file any kind of Whiteside-like habeas relief based on Brooks.  Their deadline is June 2, 2015.

Saturday, May 17, 2014

Pre-guidelines prior convictions are all nonperson felonies

Ryan Eddinger and Patrick Dunn won in State v. Murdock, No. 104,533 (Kan. May 2, 2014), resulting in a new sentencing hearing in a Shawnee County robbery prosecution.  The court reversed Murdock's sentence and held that Murdock's pre-1993 out-of-state prior convictions should have been scored as nonperson crimes.  The court went on to state that all pre-guidelines prior convictions should be scored as nonperson crimes in scoring criminal history.  Thus, this opinion could end up having a big impact for a lot of defendants.

Generally, when determining whether out-of-state crimes are scored as person or nonperson offenses for assessing criminal history, the out-of-state offense is compared to an in-state offense.  In Murdock, the court applied the holding of State v. Williams, 291 Kan. 554, 244 P.3d 667 (2010), which held that a comparable offense from another jurisdiction (when determining whether the comparable Kansas offense is person or nonperson) is compared to a Kansas offense in effect on the date the prior crime was committed.  Of course, prior to July 1, 1993, the state of Kansas did not designate crimes as either person or nonperson crimes.  Thus, Murdock held that, under Williams, any out-of-state felonies committed before July 1, 1993 would be scored as nonperson felonies because Kansas did not have person felonies at the time.

The KSC applied K.S.A. 21-4710(d)(8), (which is now K.S.A. 21-6810[d][6]), which states: "Unless otherwise provided by law, unclassified felonies and misdemeanors, shall be considered and scored as nonperson crimes for the purpose of determining criminal history."  Because convictions prior to July 1, 1993 were not classified as either person or nonperson, the court held that absent legislative direction to the contrary, all such convictions must be classified as nonperson for the purposes of determining criminal history.  The KSC reversed both the COA and district court and remanded the case back with instructions to classify Murdock’s pre-1993 out-of- state convictions as nonperson crimes.

The Kansas Sentencing Commission has already weighed in on Murdock.  The Sentencing Commission stated that "The Supreme Court majority opinion holds that any convictions which were committed prior to the enactment of the Kansas Sentencing Guidelines Act (KSGA) on July 1, 1993, must be designated as nonperson offenses for criminal history purposes."  The notice went on to explain: "Absent any further remedial action by the legislature, convictions for all crimes committed prior to July 1, 1993, shall be treated as nonperson crimes per the holding in Murdock."

A question that will surely come up is whether persons previously sentenced (even as far back as 1993) will be able to seek relief under Murdock.   In 2011, the KSC held that a sentence that is based on incorrect criminal history is illegal and therefore properly raised by motion to correct an illegal sentence even after completion of a direct appeal.  See State v. Neal, 292 Kan. 625, 631, 258 P.3d 365 (2011) (a sentence that is based on incorrect criminal history qualifies as an illegal sentence).  In combination, Murdock and Neal would seem to plainly answer the question.

Friday, April 11, 2014

Hard-50 statute ruled unconstitutional under Alleyne

In State v. Soto, No. 106,306 (Kan. 2014), the KSC today ruled that Kansas' statutory procedure for imposing a hard-50 sentence as provided in K.S.A. 21-4635 violates the Sixth Amendment to the U.S. Constitution as described in Alleyne v. United States, 133 S. Ct. 2151 (2013).  The court held that because the statute permits an increase in the mandatory minimum life sentence from 25 to 50 years based on a judge's finding a of aggravating factors by a preponderance of the evidence, the statute violates the constitutional right to a jury trial.  Kevin Zolotor and Charles A. O'Hara represented Mr. Soto in the appeal.

As blogged about here, here, here, and most recently - here, this is an issue that has been litigated by Kansas defenders for many years.  The Soto court explained some of the history of the issue and described what it called the "[t]he changed landscape after Alleyne v. United States."  Ultimately, the court held that "under the combined force of Ring and Alleyne, the statutory procedure for imposing a hard 50 sentence violates the Sixth Amendment because it permits a judge to find by a preponderance of the evidence the existence of one or more aggravating factors necessary to impose an increased mandatory minimum sentence, rather than requiring a jury to find the existence of the aggravating factors beyond a reasonable doubt."

The court also held that "we need not decide here whether a harmlessness analysis applies to a hard 50/Alleyne error, because even assuming the application of Reyna's modified harmless error analysis, the error here does not come close to meeting that test."  The court further stated that, "because Kansas' hard 50 scheme requires the sentencing court to not only find aggravating and mitigating circumstances, but to weigh any mitigating circumstances against aggravating circumstances, only in a rare instance could a hard 50/Alleyne error be harmless."  (But it should be noted that the application of a harmlessness test to Apprendi error is another issue that may be reversed by SCOTUS in the future.  After all, it does not make much sense that a trial judge's factual findings would violate a defendant's right to a jury trial under Apprendi, but an appellate court's factual findings of harmlessness would not similarly violate that right.) 

The Soto decision, of course, overturned a now-repealed statute, K.S.A. 21-4635.  But it will undoubtedly affect the version of the hard-50 statute (K.S.A. 2011 Supp. 21-6620) that was in effect until September 6, 2013 (when the Legislature attempted to "fix" the hard-50 statute after Alleyne).

In the end, the Soto opinion also refused to address the remedy on remand.  The State argued that the newest version of K.S.A. 21-6620 (which retroactively requires jury findings for any non-final hard-50 sentence) should apply to any remand proceedings.  Mr. Soto argued that such a remedy would violation the Ex Post Facto Clause of the U.S. Constitution.  The court refused to address the issue, noting that it does not issue advisory opinions.  So in other words, stay tuned. 

Saturday, February 22, 2014

A view from the trenches

After handling criminal defense appeals for the last several years, I recently transferred to a public defender office.  This move will involve being at the courthouse on a daily basis.  Naturally, that change in positions has brought a new perspective when reading and analyzing recent federal and state decisions. 

With this different viewpoint,  my blog posts will aim to discuss the possible impact that cases may have on those practicing in the courtroom.  In other words, a review of recent appellate decisions from the trial lawyer's point of view.

The posts will range from simple courtroom practices to substantial changes in criminal law.  Along the way, I hope these posts will include trial practice discussions regarding pre-trial motions, jury instructions, closing arguments.  If nothing else, I write to educate myself and those who are along side me in the trenches.   

Monday, January 20, 2014

March 2014 KSC Docket

Here are the criminal cases on the KSC docket for March 3-6, 2014.  These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details. Don't forget, arguments are streamed live over the internet at the appellate court website (here) if you would like to listen in on any of these arguments.

March 3--Monday--a.m.

State v. Rogelio Soto, No. 106,306 (Sedgwick)
Direct appeal; First-degree murder
Charles A. O'Hara (brief), Kevin J. Zolotor (argue)
[Affd/Rvd/Rmd; Moritz; April 11, 2014]
  1. Insufficient alternative means of aiding and abetting
  2. Failure to give unanimity instruction
  3. Improper instructions
  4. Improper imposition of hard-50 sentence
  5. Gruesome photographs
State v. Derrick Richard, No. 107,962 (Sedgwick)
Direct appeal; Felony murder
Ryan Eddinger (brief), Joanna Labastida (argue)
  1. Improper admission of prior bad act evidence 
  2. Denial of motion to suppress statements
  3. Denial of motion to suppress evidence
State v. Edward Laurel, No. 107,096 (Sedgwick)
Direct appeal; First-degree murder
Mark T. Schoenhofer
  1. Improper denial of new trial upon newly discovered evidence of perjured testimony
  2. Improper sentencing to hard-25 without unanimous finding
Santiago Sola-Morales v. State, No. 104,388 (Sedgwick)
K.S.A. 60-1507 appeal (petition for review)
Michael P. Whalen
  1. Improper ineffective assistance of counsel finding

March 4--Tuesday--a.m.

City of Wichita v. William Molitor, No. 104,940 (Sedgwick)
Direct appeal (petition for review); DUI
E. Jay Greeno
  1. Testimony regarding the HGN test is inadmissible, absent compliance with Frye
State v. James Andrew, No. 104,666 (Johnson)
Direct appeal (petition for review); Agg assault
Meryl Carver-Allmond
  1. Improper self-defense instruction
  2. Failure to instruct on voluntary intoxication
State v. Joaquin Deanda, No. 107,477 (Finney)
Sentencing appeal
Shawn E. Minihan (brief); Korey A. Kaul (argue)
  1. Improper imposition of hard-50 sentence
  2. Hard-50 sentence violates Alleyne
  3. Improper admission of autopsy report without confrontation
State v. Terry Hayes, No. 106,456 (Johnson)
Direct appeal; First-degree murder
Lydia Krebs
  1. Failure to give lesser-included offense for voluntary manslaughter
  2. Improper imposition of hard-50 sentence

March 5--Wednesday--a.m.

State v. Aaron Clay, No. 107,038 (Wyandotte)
Direct appeal; Felony murder
Carol Longenecker-Schmidt
  1. Failure to give lesser-included offense instructions
  2. Improper eyewitness ID instruction
State v. Terry Bowen, No. 107,904 (Marion)
Direct appeal; Rape
Joanna Labastida
  1. Improper admission of prior bad act evidence
  2. Insufficient evidence of alternative means of rape
  3. Improper response to jury question violating right to be present and public trial
  4. Failure to provide conflict-free counsel for preliminary hearing
State v. Dominic Verser, No. 107,906 (Wyandotte)
Direct appeal; First-degree murder
Rick Kittel
  1. Failure to grant mistrial after witness misconduct
  2. Improper admission of prior bad act evidence
  3. Failure to give limiting instruction re: bad act evidence
  4. Improper reasonable doubt instruction
  5. Improper response to jury question violating right to be present and public trial
State v. Patricio Briseno, No. 107,351 (Wyandotte)
Direct appeal; First-degree murder
Matthew J. Edge (brief); Michelle A. Davis (argue)
  1. Improper eyewitness ID instruction
  2. Failure to give limiting instruction re: gang evidence

March 6--Thursday--a.m.

State v. Justin Neighbors, No. 105,588 (Lyon)
State appeal (petition for review)
Stephen J. Atherton
[Affirmed; Biles; April 25, 2014]
  1. Validity of consent obtained during warrantless welfare check
State v. Ronnell Burnett, No. 107,571 (Wyandotte)
Direct appeal; Felony murder
Michelle A. Davis
  1. Improper exclusion of defense evidence
  2. Improper denial of motion to continuance
  3. Insufficient evidence of alternative means
  4. Improper admission of jailhouse letters
  5. Failure to give limiting instruction re: bad act evidence
  6. Failure to investigate request for substitute counsel
  7. Ineffective assistance of counsel
State v. Dominguez, No. 106,288 (Lyon)
Direct appeal; First-degree murder
Michelle A. Davis
  1. Improper first-degree murder instruction
  2. Failure to give accomplice instruction
  3. Failure to give voluntary intoxication instruction
  4. Hard-50 sentence violates Alleyne

Thursday, December 26, 2013

Exoneration through persistence

Here is an article on a recent win by Michael Whalen.  Mr. Swenson was convicted of attempted second-degree murder in Sedgwick County in June 2000.  After a long, long procedural history, in February 2010, the Court of Appeals ordered a new trial and the district court discharged Mr. Swenson (blogged about here and here).  The state successfully appealed that dismissal, but as the article relates, in December 2013, the state dropped the charges!