Wash. State Dep’t of Corrections v. Madsen

Madsen was convicted of his crime. He then committed two community custody violations. A statute was then passed (and later appealed) which provided that three community custody violations sent you back to prison for the rest of your term in total confinement. However, because it was passed after his conviction, it imposed a harsher sentence. That violates Ex Post Facto.

State v. Gordon

In case you haven’t noticed. I don’t usually do Division I cases. Those are left to my cohort, Kyle Olive. Unfortunately, Kyle is in trial, and I am here at 7 on a Friday night. This means I will simply post the opinion so if the headline lures you, you can get what you need I have a dog to get home to after all!

Weiss v. Lonnquist

A works for B under a fixed employment contract. The contract has terms X, Y, and Z. A’s contract ends, and she continues to work for B. However, B is only now adhering to terms X and Y, but not Z. No implied contract on the original terms, because the original terms aren’t completely renewed. Seems confusing, non? I mean, how then would you ever have an implied contract if the terms can be unilaterally changed?

Ah, but here’s the catch. A’s contract wasn’t ending because B kept her on after the contract ended naturally. It initially ended because B exercised a for cause termination clause, but instead of terminating A, let A stay on under new terms.

Got it. Anyhow…I’m tired of reading this one. A loses.

State v. League

League was convicted of First Degree Robbery and Unlawful Imprisonment. The court of appeals held they merged, but just merged them into one sentence without vacating the lesser conviction. Under Washington Double Jeopardy, you vacate the lesser included and remand for sentencing (if any is required). That is all.

State v. Harrington

Harrington was walking down the street when an officer pulled up to him based only on the fact that he was in a certain neighborhood at a certain time. Officers are allowed to engage in social contract contact without suspicion of a crime. In this case, the officer did just that:

Reiber asked Harrington where he was coming from. Harrington responded he was coming from his sister’s house. Asked where his sister lived, Harrington replied he did not know. Reiber considered that lack of knowledge “a little suspicious.” Id. at 14. Reiber testified Harrington was acting “quite nervous, pretty fidgety” throughout the encounter.

However, the arrival of a second officer who didn’t talk, the asking to remove hands from pockets, and the request to do a pat down amounted to converting this to a seizure. The court noted a similar fact pattern in Soto-Garcia:

     “The atmosphere created by Tate’s progressive intrusion into Soto-Garcia’s privacy was of such a nature that a reasonable person would not believe that he or she was free to end the encounter.” The court then inquired whether Soto-Garcia’s subsequent consent to search was valid in light of the prior illegal seizure, answering in the negative. “Soto-Garcia’s consent to the search was obtained through exploitation of his prior illegal seizure.” Accordingly the court found suppression of the cocaine proper.

     Similar to Soto-Garcia, Harrington endured a progressive intrusion at the hands of Reiber. Tate’s progressive intrusion included an inquiry about Soto-Garcia’s identification, warrant check, direct question about drug possession, and request to search — all of which, combined, formed a seizure. The independent elements of Harrington’s seizure are different, but the effect is the same. Before Reiber’s request to search, he did not ask for Harrington’s name or address, did not conduct a warrant check, and did not ask if Harrington carried drugs. Instead Reiber initiated contact with Harrington on a dark street. He asked questions about Harrington’s activities and travel that evening and found Harrington’s answers suspicious. A second officer arrived at the scene and stood nearby. Reiber asked Harrington to remove his hands from his pockets to control Harrington’s actions. Then Reiber asked to frisk, without any “’specific and articulable facts’” that would create an objectively reasonable belief that Harrington was “‘armed and presently dangerous.’” Collins, 121 Wn.2d at 173 (quoting Terry, 392 U.S. at 21, 24). The facts in both Soto-Garcia and this case create an atmosphere of police intrusion, culminating in a request to frisk.

Hard standard to apply? You betcha!

State v. Sebastian

Sebastian killed some people, wanted to appeal, and wanted to do it on his own without his attorney. The court of appeals denied his request. The Washington Supreme Court held, while the right isn’t absolute to represent yourself on appeal, there has to be something in the records to support that. The court imposed a good cause standard for allowing withdrawal of appointed counsel and allowing a party to proceed pro se. What that means, I don’t know. But I can assure you it will get messy.

State v. Boss

Really, there’s nothing more to it. Oh, there is. Whether the CPS Order giving custody was lawful is a matter for the trial court to decide as a matter of law, that doesn’t go to the jury.

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.

Ducote v. Dep’t of Soc. & Health Servs.

Ducote’s step-daughter alleged he peeked at her through the window, made her sit in his lap, touched her buttocks, walked in on her in the bathroom, and hit her little brother. She was placed in emergency care. During the 6-month investigation, the step-daughter was out of the house, and Ducote was booted from the house and barred from seeing any of his stepchildren. The allegations were returned as unfounded.

Ducote sued for Negligent Investigation. However, it is not an action that existed at common law. The statute itself doesn’t define who can sue, but case law under the Bennet test has decided the duty is owed to parents, custodians, guardians, and children. Though Zellmer did apply the same protections of parental immunity for step parents, the Court distinguished based on the fact that Zellmer involved a cause of action at common law, and this case did not.

Seems to me to be a distinction without a difference. The dissent things so as well.