February 2017 Advance Sheet Summaries
WACDL Advance Sheet Summaries for February 2017
Prepared by Mark W. Muenster
SUPREME COURT CASES
State v. Clark, NO. 92021-4, Decided Feb 2, 2017
Prosecution for first degree murder. Defendant claimed accidental shooting, and wanted to offer psychological testimony that his intellectual functioning was very low. But he did not frame it as “diminished capacity”, so the trial court excluded it.
On appeal, he argues this deprived him of the ability to defend. The court holds that the exclusion was not error. Since he had not pleaded diminished capacity, the evidence was not relevant.
As a side note, the court observes that since trial counsel specifically declined to plead diminished capacity, it was not ineffective assistance because it was a strategic choice.
The dissent points out that the distinction the court draws between the expert testimony, and “observational” lay testimony about Clark’s mental capacity is illogical, and deprived him of what was perhaps the strongest evidence that he did not premeditate.
The decision is 5-4.
COURT OF APPEALS CASES
State v Manajares, No. 31271-2-III, decided February 2, 2017
Defendant was prosecuted for unlawful imprisonment in 2002. He entered a guilty plea that was also an Alford plea. Shortly after the plea, he was removed from the US by INS agents. Ten years later, he filed a motion to withdraw the plea based on Padilla v Kentucky. The trial court initially refused to hear the motion since Manajares was not personally present, but eventually denied the motion as being untimely under the one year time limit for collateral attacks on the judgment. The COA commissioner affirmed the trial court on that ground. Manajares appealed to the State Supreme Court, which remanded to the Court of Appeals in light of In re Tsai, 183 Wn.2d 91, 100-03, 351 P.3d 138 (2015) which held that for purposes of the time bar, Padilla applied retroactively.
The court proceeded to determine on the merits whether Manajares had received ineffective assistance of counsel regarding the immigration advice he received. The court examines whether unlawful imprisonment was categorically an aggravated felony and concludes it was not. The court then examines whether utilizing an Alford plea was ineffective, and concludes it was not clear at the time of the plea whether this was ineffective because it broadened the “record of conviction” for immigration purposes. The court also examines whether unlawful imprisonment constituted a crime of moral turpitude, and concluded that it was not. It concludes that Manajares did not prove that he had received ineffective assistance of counsel based on the law at the time of the plea, and denies relief.
A must read for all lawyers with non – citizen clients.
In re Orantes, 71082-6-I, decided Feb. 6, 2017
This case is another Padilla-based IAC claim on collateral review. The petitioner an immigrant refugee with temporary protected status (TPS) was convicted of two misdemeanors, the second of which was unlawful issuance of bank checks. This rendered him unable to renew his TPS status which made him deportable.
He moved to amend the 2008 judgment when he found out its immigration consequences. He and his counsel believed if the judgment were amended to less than 180 days, the problem would be solved. The trial court granted this relief. Orantes found out subsequently that this did not have the desired effect and moved again in 2011 to vacate the conviction based on a due process violation. He did not raise an IAC claim at that time. The trial court denied relief, and the COA affirmed.
Orantes filed a second motion for relief in the trial court, which transferred it to the COA as a personal restraint petition. This time he raised an IAC claim based on Padilla. The COA dismissed this as time barred. Orantes moved for discretionary review, and the Supreme Court remanded in light of Tsai.
The COA holds that the claim was not time barred and remands to the trial court for a reference hearing on the merits of the IAC claim. The court also rejects an argument by the state that the second PRP constitutes an abuse of the writ, since the claim was not raised in the first PRP. In its analysis, the court also rejects the state’s proposed distinction between cases of mis-advice and cases involving no advice by trial counsel.
This case is also a must read for lawyers with non-citizen clients.
State v. Froelich, No. 48026-3-II, Decided Feb. 14, 2017
Prosecution for possession with intent to deliver a controlled substance.
Froelich was involved in an accident, and her car ended up off the road, but a potential hazard to traffic. She eventually left the scene in an ambulance after talking with police at the scene. One trooper followed her to the hospital to do sobriety testing, and she was not arrested.
The trooper at the scene determined to impound her car, and searched her purse which had been left inside the car. He found methamphetamine inside.
Froelich’s motion to suppress for an illegal impound was granted. The panel, with one dissent, affirms, and does not reach whether the inventory search of the closed purse was itself illegal.
The case basically follows State v. Tyler, 177 Wn.2d 690, 700-01, 302 P.3d 165 (2013). The state may lawfully impound a vehicle for three reasons: (1) as evidence of a crime, (2) under the community caretaking function, or (3) when the driver has committed a “traffic offense for which the legislature has expressly authorized impoundment.” Id.
But even if one of these reasons exists, an officer may impound a vehicle only if there are no reasonable alternatives. Id. at 698-99. “[I]f . . . a reasonable alternative to impoundment exists, then it is unreasonable to impound a citizen’s vehicle.” Id. at 698.
The panel finds there was a statutory basis for impound ( a variation on reason 3), but upholds the trial court finding the trooper did not consider reasonable alternatives to impound, such as asking Froelich what she wanted done with the car, and whether there was someone available to take charge of it and arrange a private tow, since it was apparently undriveable.
State v. Bacon, NO. 74233-7-I, decided February 12, 2017
Juvenile court prosecution for robbery in the second degree. The trial court imposed a manifest injustice disposition of 65 weeks, then suspended it. The state appeals, contending that the imposition of a manifest injustice sentence does not allow the suspension of that sentence unless the juvenile qualifies for a suspended sentence on some other statutory basis.
The panel agrees and remands for resentencing. Noting the existence of contrary authority in Division III, (State v. Crabtree), the panel follows a Division I decision which restricts suspended sentences under a manifest injustice finding , absent some other source of statutory authority for suspending a sentence, such as an Option B sentence. That was not an available option here for a second degree robbery. The court gives a hint in how to do it in its footnote 5:
Nothing in this opinion should be construed to limit the juvenile court’s discretion to impose local sanctions when it has declared a manifest injustice. See ROW 13.40.160(2); ROW 13.40.020(18).
State v. Menard, NO. 33944-1-III Decided Feb. 23, 2017
Prosecution for maintaining a drug dwelling under RCW 69.50.402. Menard filed a Knapstad motion, which the trial court granted. The State appeals. The panel reverses and remands for further proceedings.
The statute prohibits use of a dwelling by persons other than the owner to use drugs. The statute does not look at the owner’s primary purpose in owning the house. Since on a Knapstad motion, the court is supposed to view the fact provided by the state as true, there was evidence here than many people visited or come to the house to use drugs, and when the police raided there were lots of people and lots of drugs present.
PRP of Schley, NO. 73872-1-I, decided Feb. 21, 2017
Revocation of DOSA (prison based). Schley got in to a fight with another inmate in his treatment program, which got him terminated from treatment. The infraction was decided by the “some evidence” standard. Then DOC used the fact that he was administratively terminated from treatment of revoke his DOSA sentence. That in turn meant he would not serve 50% of his sentence in th community.
The court grants the petition, and holds that due process requires that the underlying finding of “fighting” had to be proven by a preponderance of the evidence, not by the lower “some evidence” standard. The Department also concedes that it should have offered Schley the opportunity to have counsel at this hearing.
State v. Jussila, No. 32684-5-III, Decided Feb. 28, 2017
Prosecution for theft of firearms, unlawful possession of firearms, first degree burglary and second degree theft.
The state included the serial numbers of the various firearms stolen in this burglary, and also did the same thing in the unlawful possession of firearm counts in the elements instructions. They presented insufficient evidence of the identity of the firearms. The state also presented insufficient evidence of the value of the property, other than the firearms, to support the second degree theft charge.
The state argued that the added information in the elements instructions was not material and did not impose the obligation to prove the identity of the guns by serial number and type. The defense argued that the “law of the case” doctrine controlled, and that by inserting that information into the “to convict” instructions, the state assumed the burden of proving those facts, which they did not do.
The panel rejects the state’s invitation to overrule or distinguish State v. Hickman, 135 Wn.2d 97, 954 P.2d 900 (1998) , and declines to follow a Division One decision, State v Tyler, 195 Wn. App. 385, 382 P.3d 699 (2016) , which holds that the “law of the case” doctrine no longer requires proof of inserted extra elements as a matter of due process of law after the US Supreme Court decision in Musacchio v. United States, 577 U.S._, 136 S. Ct. 709, 193 L. Ed. 2d 639 (2016).
The panel points out that only the State Supreme Court could overrule Hickman, and that the law of the case doctrine is not necessarily grounded in due process, but on about a century of common law decisions. They reverse all of the convictions for the firearm related counts, and affirm the burglary count. The theft count is also reversed because there was only evidence of about $350 worth of property, not the $750 threshold for a felony.