Cruel and Unusual Punishment Challenge...

Cruel and Unusual Punishment

Earlier this month, the Kansas Court of Appeals considered whether a mandatory minimum sentence of 25 years constituted cruel and unusual punishment and a violation of the Constitution’s Eighth Amendment.  State v. Frost, 106,375, 2012 WL 5489396, at *2 (Kan. Ct. App. Nov. 9, 2012).   Ultimately, the court affirmed the Sedgwick District Court, refusing to overturn the defendant’s conviction of aggravated indecent liberties with a child and sentence to life imprisonment with a mandatory minimum term of 25 years.  Id.

After pleading guilty to aggravated indecent liberties with a child, the trail court sentenced defendant Kevin Frost to a “hard 25,” life imprisonment with a mandatory minimum term of 25 years. Id.  On appeal, Frost argued that “his sentence constitut[ed] cruel and unusual punishment under the United States Constitution.”  Id.  Specifically, Frost’s challenged the statutory requirement, leading to his sentence, “where the court implements the proportionality standard by certain categorical restrictions.”  Id.  The court reasoned that the sentence is not unconstitutional and is justified “because the accepted penological goals of retribution, deterrence, incapacitation, and rehabilitation are met.”  Id. at 8. 

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Bench Trial Objection

Bench Trial Objection

At a bench trial defendant Michael Kelly was convicted of possession of cocaine and marijuana.  State v. Kelly, 285 P.3d 1026, 1027 (Kan. 2012).  Before his bench trial, an evidentiary hearing was held where the judge denied a motion to suppress drug evidence.  Id.  Kelly, wishing to appeal the earlier denial of his motion to suppress argued that he did not need to object during his bench trial to keep his appeal for the evidentiary hearing.  Id. 

The Supreme Court of Kansas held that defendant Kelly “timely interposed an object to the admission of evidence by filing a pretrial motion to suppress illegally obtained evidence.”  Id. at 1030. Thus, the court remanded the case back to the appellate court to determine whether the district judged erred when denying Kelly’s motion to suppress. Id.

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Procedural Sentence Challenge

Procedural Sentence Challenge

Defendant Jarrod Duran was convicted in district court for possession of a firearm by a convicted felon, after he plead guilty.  United States v. Duran, 11-1308, 2012 WL 4947031, at *1 (10th Cir. 2012).  The district court found that Duran’s previously convicted crime of aggravated assault in Texas was a crime of violence and sentenced him to 41 months.  Id.  Duran, on appeal, challenges his sentence, arguing that his assault conviction was not a crime of violence.  Id.

The Court of Appeals for the 10th Circuit agreed with Duran.  Id.  The court reasoned that only crimes with a mens rea of intent or purpose may qualify as crimes of violence.  Id.  at *3.  Under Texas law, “[T]he elements of aggravated assault are 1) the defendant 2) intentionally, knowingly or recklessly 3) caused bodily injury to another and 4) used a deadly weapon.”  Id. at *4.  Thus, the court determined that “aggravated assault under Texas law could be committed with a reckless state of mind.”  Id. at *5.  Therefore, the court remanded Duran’s sentencing because the crime of aggravated assault under Texas law is not a categorical crime of violence.  Id.


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Probation & Jail Time Credit

Probation & Jail Time Credit

Heather Hopkins was convicted and sentenced in two different cases.  State v. Hopkins, 285 P.3d 1021, 1022 (Kan. 2012).  For aggravated burglary and obstruction of legal process Hopkins was sentenced to 36 months of probation, with an underlying sentence of 41 months.  Id.  For possession of cocaine Hopkins received 18 months of probation, with an underlying sentence of 11 months.  Id.  As part of her possession conviction Hopkins was also ordered to complete mandatory drug abuse treatment.  Id.

After serving a short period in a drug abuse inpatient treatment, Hopkins violated her probation and left the facility.  Id.  At her revocation hearing, Hopkins argued that while she did violate her probation, she should be credited the time she spent in the facility for her robbery sentence.  Id.  The district court did not hold for Hopkins argument, and instead revoked her probation in both cases and ordered her to serve the two sentences consecutively.  Id.  The Kansas Court of Appeals affirmed that decision.  Id.       

As the Kansas Supreme Court noted, “K.S.A. 21-4614a(a) broadly grants a probationer jail time credit in “any criminal action in which probation … is revoked,’ for the time ‘spent in a residential facility while on probation.”  Id. at 1024.  Thus, the court held that Hopkins should have been awarded jail time in her robbery sentence for the time she spent in the drug abuse treatment facility because treatment was not a condition of her burglary case.  Id. at 1025. 

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Proposition 36 Promises An End To California's Punitive 3 Strikes Law

 http://www.commondreams.org/view/2012/10/19-1

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Erickson Scherff, LLC
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Overland Park, KS 66210
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Allen Instruction - Tampering With A Jury

Allen Instruction

In April of 2009, a jury found defendant Corey Cornelius guilty of conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (“RICO”), conspiracy to distribute crack cocaine, and conspiracy to distribute marijuana.  United States v. Cornelius, 10-3125, 2012 WL 4075877, at *3 (10th Cir. Sept. 18, 2012).  On appeal, one of Cornelius’s many arguments was that “the district court erred by giving the jury an Allen instruction after the jury advised the court it was deadlocked on certain counts.”  Id. at *1.

During the jury deliberation in Cornelius’s trial, the jury came to a deadlock on eighteen of the thirty-four counts brought against him.  Id. at *8.  Thus, the judge issued an Allen instruction, which instructs jurors to “try again.”  Id.  In other words, the Allen instruction is a supplemental instruction given to a jury that is divided in order to ecourage the jury to agree on a verdict as to avoid a mistrial.  Cornelius argues on appeal that the Allen instruction was improperly coercive and violated his right to a fair, impartial jury.  Id.

The Tenth Circuit found that the length of the post-instruction deliberation, six days, supports that the further deliberation negates an inference of improper coercion.  Id. at 10.

For more information regarding Allen instructions contact Dionne or Lindsey at 913.948.9490.

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A Look Into Crime & Why Things Are The Way They Are...

  A Little Clarity Of How Things Really Work In America...

http://publicampaign.org/sites/default/files/PICO_Report_Private_Prisons_Final.pdf




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Erickson Scherff, LLC
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Overland Park, KS 66210
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Crime Pays - Its Time To Understand the Blueprint Behind Why America Nurtures Crime For Profit

Read This & Forever Be Changed...

http://www.justicepolicy.org/uploads/justicepolicy/documents/gaming_the_system.pdf

 

For More Information Please Contact:

Erickson Scherff, LLC
Attorneys at law
10990 Quivira  Suite 200
Overland Park, KS 66210
Tel (913) 948-9490
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The Prison Industry Is Now Sadly Affecting Our Elderly...

SADLY THIS IS NOT A JOKE.

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