Archive for the ‘Justice Charles Johnson – Signed Concurrence’ Category

Washington Supreme Court: Pot conviction upheld, but should have been able to present medical exception.

January 22, 2010

State v. Fry

The man took Fry’s weed! But see, he tried to tell them it was medical, man. But they weren’t diggin it, and got a warrant anyway. Fry’s doc said he suffered from, “severe anxiety, rage, & depression related to childhood.”

Fry tried to argue that the warrant doesn’t hold up because his note negated probable cause. Unfortunately for Fry, the compassionate use defense is just that, an affirmative defense. It doesn’t affect PC one bit. The statute says terminal or debilitating illness. Even as amended, his rage didn’t qualify.

Harshed his mellow, brah.

But, because this was a 4-4-1 split, we must look to the concurrence and see where the Venn diagram creates new law. Essentially, none is created as to the disqualification of the defense. In fact, there is a 5-4 majority that the defense should have been allowed. However, the concurrence also agrees with the result.

So we have 8-1 for the result of Fry being convicted. But we have 5-4 that Fry should have been allowed to present his defense.

Sanders in his dissent makes a very valid point. The lead opinion would have upheld the warrant on the basis that there were still valid reasons to search, such as determining that the amount of marijuana possessed was over two pounds. However, they only had PC that there was marijuana, not that it was over and above the possessible amount.

Posted in Chief Justice Barbara Madsen - Signed Lead Opinion, Criminal Law, Justice Charles Johnson - Signed Concurrence, Justice Debra Stephens - Signed Concurrence, Justice Gerry Alexander - Signed Lead Opinion, Justice Jim Johnson - Draft Lead Opinion, Justice Mary Fairhurst - Signed Lead Opinion, Justice Richard Sanders - Draft Dissent, Justice Sue Owens - Signed Concurrence, Justice Tom Chambers - Draft Concurrence, WA Supreme Court | Leave a Comment »

Blakely Strikes Again: Trial Courts Can Impanel Juries on Remand; RCW 9.94A.537 applies retroactively

December 18, 2009

State v. Powell

In a 4-2-3, split, the Washington Supreme Court held: 1) RCW 9.94A.537, the statute allowing a court to impanel a jury to decide aggravating factors, applies retroactively and 2) because it applies retroactively, the trial court on remand from a Blakely PRP, could impanel one here.

The wrinkle comes from the fact that the amendment provides for notice that the state will be seeking aggravating factors. The court held that the amendment for notice includes the word may, not shall.

Quick mental check. Would a prosecutor EVER give notice then if they didn’t have to? Seems you’re pragmatically castrating the statute by interpreting may in such a way. But that’s neither hear nor there, because, once it was realized that people who are on remand didn’t get notice, another fix was initiated:

In any case where an exceptional sentence above the standard range was imposed and where a new sentencing hearing is required, the superior court may impanel a jury to consider any alleged aggravating circumstances listed in RCW 9.94A.535(3), that were relied upon by the superior court in imposing the previous sentence, at the new sentencing hearing.

Essentially, the fact that you were convicted of them before is your notice. The lead opinion also held that there is no requirement to charge aggravating factors in the information.

Because this is a split decision, the limitations imposed by the concurrence make a huge difference:

     I concur in the result reached by the lead opinion because I believe RCW 9.94A.537(2) provides a constitutionally permissible means for a trial court to impanel a jury for purposes of resentencing. I write separately, however, because the lead opinion is mistaken in its interpretation of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). The lead opinion interprets Blakely to require that aggravating factors be proved to the jury but not that they be charged in the information. Lead Opinion at 11. I disagree. Any facts justifying a sentence above an offense’s standard sentencing range are functionally equivalent to elements of the crime. Blakely, 542 U.S. at 303; Apprendi v. New Jersey, 530 U.S. 466, 494 n.19, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Such facts must be found by a jury beyond reasonable doubt. Blakely, 542 U.S. at 301.

Well now we’re in a pickle. If JJ Stephens and C. Johnson are of the opinion they need to be in the information, the opinion of the dissenters, if concurring, could have an effect. The dissent was all piss and vinegar regarding the need to provide for the aggravating factors in the information. Justice Stephens notes that it is impossible to do so now, and the dissent’s route wouldn’t allow any resentencing procedure.

Essentially, from here on out, you must charge the aggravating factors in the information. But post-Blakely remands can still go forward with an impaneled jury.

Posted in Blakely, Chief Justice Barbara Madsen - Signed Lead Opinion, Criminal Law, Justice Charles Johnson - Signed Concurrence, Justice Debra Stephens - Draft Concurrence, Justice Gerry Alexander - Draft Lead Opinion, Justice Jim Johnson - Signed Lead Opinion, Justice Mary Fairhurst - Signed Lead Opinion, Justice Richard Sanders - Concur in Dissent, Justice Sue Owens - Draft Dissent, Justice Tom Chambers - Concur in Dissent, WA Supreme Court | Leave a Comment »

WA Legal Roundup – Washington State Supreme Court

October 29, 2009

City of Seattle v. Winebrenner

The statute that requires prior convictions be considered for sentencing doesn’t define prior. Prior to what? Prior to the conviction date? Prior to the date the alleged offence was committed?

It is now clear: prior to the date of the offense committed under the rule of leniency in statutory interpretation.

Posted in Chief Justice Barbara Madsen - Draft Concurrence, Criminal Law, Justice Charles Johnson - Signed Concurrence, Justice Debra Stephens - Concur in Majority, Justice Gerry Alexander - Concur in Majority, Justice Jim Johnson - Concur in Majority, Justice Mary Fairhurst - Signed Concurrence, Justice Richard Sanders - Concur in Majority, Justice Sue Owens - Concur in Majority, Justice Tom Chambers - Draft Majority, Sentencing, WA Supreme Court | Leave a Comment »

WA Legal Roundup – Washington State Supreme Court

October 29, 2009

Wow, the Dean has been slacking here. Well, not so much. Due to an arbitration that took priority over blogging, eating, sleeping, taking the dog out. If anyone wants some carpet, there’s some slightly “used” carpet in the craigslist free section. It’s really only worth it if your place is already decorated in brown and yellow.

In re Det. of Fair

Fair was 22 and liked to diddle kids. Fair committed other crimes when on community supervision and, while incarcerated for 15 years for those crimes, admitted to diddling more kids during sex offender treatment. He also admitted there that he didn’t think there was anything wrong with having sex with kids.

The issue before the court was “[w]hether the State must plead and prove a recent overt act where the offender has been confined continuously since  being incarcerated for  a predicate sexual conviction.” The prior version of the law didn’t have a section specifically dealing with the lack of access to children during incarceration. However, when you don’t have a recent overt act, you must still satisfy due process. The hitch here is that Fair was released into the community under community custody just prior to his long incarceration for other crimes, and Fair argued that a recent overt act during that time period would have to be proven.

So here’s where it gets sticky, another case in which there was a community confinement required a recent overt act: “Our holding in Albrecht applied only to a recent release from confinement — not a  prior  release into the community before a lengthy incarceration.

Does that logic seem iffy at best to you? Shouldn’t the release having been further in the past require a stronger showing that he’s a current threat than Albrecht?

The court instead turned to Hendrickson:

We held that when, “on the day a sexually violent predator petition is filed, an individual is incarcerated for a sexually violent offense, RCW 71.09.020(6), or for an act that would itself qualify as a recent overt act, RCW 71.09.020(5), due process does not require the State to prove a further overt act occurred between arrest and release from incarceration.”

The court relied on the fact that he was incarcerated most recently under his special sentencing alternative revocation. However, that was the crime for which he was in community custody. The incarceration was essentially due to the robbery. While I don’t agree that Fair is a candidate for anything other than a padded cell at this point, this seems to be skirting around the intent of the legislature in enacting 71.09.020(5).

Fairhurst’s concurrence agrees with the result, but hangs her hat on RCW 71.09.030 (which, in my humble view, seems more appropriate):

(1)  A person who at any time previously has been convicted of a sexually violent offense is about to be released from total confinement;

. . .; or

(5) a person who at any time previously has been convicted of a sexually violent offense and has since been released from total confinement and has committed a recent overt act.

Fair seems to fit the bill under subsection 1.

Is this an overruling of Albrecht? While not an express refutation, it certainly seems so. The dissent points out a quote which seems startlingly on point:

We are asked to determine whether the State must allege a recent overt act in order to commit an offender as a sexually violent predator when the offender has been released from total confinement into the community and then returned to total confinement. We conclude that after a person has been released into the community, due process would be subverted by failing to require proof of a recent overt act.

Under the majority and concurrence, the logic seems to fail that quote. While there is no clear refutation, the 5 in favor of the result seem to break away from the language in Albrecht.

Posted in WA Supreme Court, Chief Justice Barbara Madsen - Concur in Majority, Justice Debra Stephens - Did Not Participate, Justice Richard Sanders - Draft Dissent, Sexually Violent Predator Law, Justice Jim Johnson - Draft Lead Opinion, Justice Gerry Alexander - Concur in Dissent, Justice Mary Fairhurst - Draft Concurrence, Justice Sue Owens - Signed Lead Opinion, Chief Justice Barbara Madsen - Signed Lead Opinion, Justice Charles Johnson - Signed Concurrence, Justice Tom Chambers - Concur in Dissent (result only) | Leave a Comment »

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