Tuesday, June 26, 2018

Missouri judge's sentencing shenanigans block Carol's right to appeal, but they might carry unintended consequences for "His Honor," Mr. Harmison

Severe bruising shows on Carol Shuler's left arm,
just moments before X-rays revealed a comminuted
fracture that was caused by police brutality in Missouri.

If Missouri judge Jerry Harmison Jr. believed my wife, Carol, actually had assaulted a law-enforcement officer, wouldn't he have imposed a sentence that amounted to more than a $10 fine? Of course. Wouldn't Harmison have handled Carol's sentencing in a way that imposed a final judgment on her? Naturally.

Harmison did neither, and that suggests -- at least to my eyes -- that he is a nincompoop, he is a raging incompetent, or he is playing games, for some reason. If he is playing games, it probably has to do with an underhanded effort to keep Carol from appealing her case. If deceit is at the heart of Harmison's ruling on sentencing, our research indicates it could blow up in his face.

It might be as simple as this: Considering the voluminous number of errors Harmison made in Carol's case, he simply might not want an appellate court to review his handiwork. He even seemed to buy the state's cop-witnesses' preposterous story that Carol broke her own arm by flailing about in the back seat of a patrol car, even though she was seat-belted and handcuffed. (Motion regarding trial errors is embedded at the end of this post.)

So, where does Carol stand because of Harmison's quirkiness? She has been found guilty of assault on a law enforcement officer, but there is no final judgment to support that finding. As humorist Dave Barry used to say, "I'm not making this up."

The case against Carol has been shaky from the outset -- with no named accuser and no corroboration or verification (meaning there was no probable cause for arrest, much less prosecution), and with a "victim" (Officer Jeremy Lynn) who admitted in writing and on the witness stand that Carol did not commit the alleged offense, as described in Missouri statutory and case law.

But the state's "case" really turned zany last week when Carol was sentenced to a suspended imposition of sentence (SIS), with two years of unsupervised probation, and a $10 payment to a crime victim's fund.

What does a suspended imposition of sentence (SIS) mean in Missouri? Here is one definition:

Suspended imposition of sentence or SIS is a sentencing option available to the trial court. In SIS, usually the defendant is placed on probation. If the defendant violates probation and faces revocation, the Judge may order any sentence within the full range of punishment for the crime convicted. If the defendant successfully completes probation, no sentence is actually ordered. Therefore normally an SIS is not considered a ‘conviction’ for anything other than law enforcement purposes.

For example, Suspended Imposition of Sentence (SIS) probation is generally available for Class B Misdemeanor DWI / BAC offenses in many counties in Missouri. This means that if the defendant pleads guilty, s/he will be given a sentence that is "suspended," and will be placed on probation for two years by law. If the probationary period, is completed successfully the conviction will not show on the permanent record. However, it will be recorded in the courts internal records and therefore in case of similar violation in the future the courts will treat it as a prior offense.

As a case styled State v. Lynch, 679 S.W.2d 858 (1984) spells out, an SIS adds a significant level of complication to a court case. Here is the question for us: Is Harmison ignorant of the implications that come with an SIS, or is he intentionally using an inappropriate sentencing scheme to suit his own purposes? Here is background on the Lynch case:

In a court tried case, defendant was convicted of second degree burglary, a violation of § 569.170, RSMo 1978. Imposition of sentence was suspended by the trial judge, and defendant was placed on probation for one year. Defendant sought to appeal his conviction, but on the state's motion defendant's appeal was dismissed by the Court of Appeals for the reason that there was no final judgment. Thus, the controversy centers on whether a suspended imposition of sentence is a final judgment. It is not. This seems simple enough, but the facts of this case and the dilemma in which defendant finds himself give cause to ponder the controlling legal rubric.

Three things jump out at us here:

(1) The defendant in Lynch was convicted of second-degree burglary and received one year of probation. In Carol's case, the "victim" admitted Carol did not commit the offense, as defined by Missouri statutory and case law, yet she wound up with two years' probation. That seems a tad excessive, when compared to Lynch.

(2) Lynch was not able to appeal his case because the SIS meant there was no final judgment in his case;

(3) An SIS is not a final judgment. And you know any issue must be perplexing when a judge breaks out a word like "rubric."

The Lynch justices go on to essentially say their finding makes no sense, but they are powerless to change it because the Missouri General Assembly (a fancy term for a legislature) is, well . . . grossly incompetent. The opinion was written in 1984, and it appears nothing has changed much in the Show-Me State since then. From Lynch:

The next basic premise is that judgment in a criminal case does not become final for purposes of appeal until sentence is entered. Imposition of sentence must occur before the appellate process can begin. State v. Murphy, 626 S.W.2d 649, 650 (Mo.App.1981).

State ex rel. Wagner v. Ruddy, 582 S.W.2d 692 (Mo. banc 1979) states that "[t]he very term `sentence' has been defined to mean `judgment or final judgment,' and a criminal case is not ripe for appeal if no sentence has been pronounced." Id. at 694. This statement is congruent with the following holding of State v. Harris, 486 S.W.2d 227 (Mo.1972):

For purposes of this provision [§ 547.070], final judgment requires the imposition of sentence. State v. Jaeger, Mo. Sup., 394 S.W.2d 347, 352[7]; State v. Kelley, 206 Mo. 685, 105 S.W. 606, 608. When a defendant has been found guilty by a jury verdict which assesses the punishment, an appeal by the defendant prior to the pronouncement of sentence and entry of judgment is premature.

Does this seem head-scratching? It should because it's goofy, by any definition. The downside, for Carol, is that she cannot appeal the guilty verdict against her -- at least (it appears) until her probation is over in two years. The upside is that there is no final judgment -- and virtually no punishment -- against her.

Whether Harmison knows it or not, there are several other upsides for Carol, which have the promise of turning the finding against her into a virtual nullity.

(To be continued)

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