December 18, 2017

Tenth Circuit: Mandatory Minimum Sentence Provision in Child Pornography Statute Unconstitutional

The Tenth Circuit Court of Appeals issued its opinion in United States v. Haymond on Thursday, August 31, 2017.

This appeal comes from the district court’s decision to revoke Andre Haymond’s supervised release based, in part, on a finding that Haymond knowingly possessed thirteen images of child pornography, which were found on his phone by his probation officer. On appeal, Haymond argued that the evidence was insufficient to support a finding by a preponderance of the evidence that he knowingly possessed child pornography, and he argued that the sentence imposed upon him is unconstitutional because it violates his right to due process. The Tenth Circuit Court of Appeals affirmed the district court’s revocation of Haymond’s supervised release, but holds that the sentencing was unconstitutional.

In regards to Haymond’s sufficiency of the evidence argument, the Tenth Circuit found that the district court abused its discretion by relying on a clearly erroneous finding of fact that Haymond knowingly took some act related to the images that resulted in the images being on his phone in a manner consistent with knowing possession, as testimony supports only a finding that the images were accessible on Haymond’s phone, not that Haymond necessarily saved, downloaded, or otherwise placed them there. Nonetheless, the court found that the remaining evidence in the record was sufficient to support a finding that Haymond knowingly possessed the child pornography. The information the court relied on was (1) Haymond had nearly exclusive use and possession of his password-protected phone; (2) at some point, thirteen images of child pornography were accessible somewhere on Haymond’s phone; and (3) the sexual acts depicted in the images are consistent with the images forming the basis of Haymond’s original conviction. The court found the evidence supported a finding that it is more likely than not that Haymond downloaded the images and knowingly possessed child pornography, in violation of his release.

The Circuit then moved on to the constitutional question. Haymond’s original conviction, a class C felony, included a supervised release statute that requires a mandatory term of supervised release of five years to life under 18 U.S.C. § 3583(k), which may be revoked if a court later finds that the defendant has violated the conditions of that release. If not for the mandatory sentence required by § 3583(k), the sentence Haymond would have received following revocation of his release would have been significantly lower — two years at the most. The Circuit concluded that § 3583(k) violates the Fifth and Sixth Amendments because (1) it strips the sentencing judge of discretion to impose punishment within the statutorily prescribed range; and (2) it imposes heightened punishment on sex offenders, expressly based not on their original crimes of conviction, but on new conduct for which they have not been convicted by a jury beyond a reasonable doubt and for which they may be separately charged, convicted, and punished. The Circuit found that § 3583(k) violates the Sixth Amendment because it punishes the defendant with reincarceration for conduct of which he or she has not been found guilty by a jury beyond a reasonable doubt, and it raises the possibility that a defendant would be charged and punished twice for the same conduct, in violation of the Fifth Amendment.

The Circuit noted that the court must refrain from invalidating more of the statute than is necessary. There are two sentences under § 3583(k) that the court found to violate the Constitution by increasing the term of imprisonment authorized by statute based on facts found by a judge, not by a jury beyond a reasonable doubt, and by tying the available punishment to subsequent conduct, rather than the original crime of conviction. The court concluded that without the unconstitutional provision, all violations of the conditions of supervised release would be governed by a different statute, which the court finds to be more appropriate. The sentences at issue under § 3583(k) are found to be unconstitutional and, therefore, unenforceable.

The Tenth Circuit Court of Appeals AFFIRMED the revocation of Haymond’s supervised release, VACATED his sentence following that revocation, and REMANDED for resentencing without consideration of § 3583(k)’s mandatory minimum sentence provision or its increased penalties for certain subsequent conduct.

Colorado Court of Appeals: Defendant Not Entitled to Bond in Probation Revocation Case

The Colorado Court of Appeals issued its opinion in People v. Johnson on Thursday, July 13, 2017.

Setting Bond—Persons Charged with Felonies Awaiting Trial—Persons Who Plead Guilty to Felonies and Are Awaiting Trial.

While Johnson was serving probation in a criminal impersonation case and deferred judgment in a menacing case, he was charged with, among other things, felony murder and robbery. Johnson was arrested, jailed, and held without bond in the latter case pending his combined preliminary hearing and bond hearing. After Johnson’s arrest in the murder case, the prosecution filed motions to revoke his deferred judgment in the menacing case and his probation in the criminal impersonation case based on the offenses charged in the murder case. The revocation court issued an arrest warrant in the menacing and criminal impersonation cases because of allegations that he had not complied with the terms of his probation. The trial court set bond in the murder case. Later the revocation court held a hearing to determine whether it would grant Johnson’s request for bond in the menacing and criminal impersonation cases. The revocation court denied these requests, drawing a distinction between these cases and the pending murder case based on the fact that the murder case was preconviction and the other cases were postconviction.

On appeal, Johnson asserted that the revocation court was “constitutionally required” to set bond in the menacing case and the criminal impersonation case and abused its discretion when it refused to set bond, with the result that Johnson is being unconstitutionally held without bond. He asserted that the motions to revoke in the menacing case and the criminal impersonation case are “new charges” for which he has a right to bond because he has not yet been “convicted” of them. The court of appeals considered whether the same set of rules governs a court’s decision to set bond in two categories of cases: cases in which bond is set for persons who have been charged with felonies and are awaiting trial, and cases in which defendants have pleaded guilty to felonies, courts have sentenced them to probation or placed them on deferred judgments, and the prosecution then files motions to revoke the probation or deferred judgments. The court decided that the same set of rules does not apply because (1) defendants in the first category are presumed to be innocent, but defendants in the second category have admitted their guilt and are not therefore entitled to many of the fundamental rights that those in the first category enjoy. In addition, probation revocation and revocation of deferred judgment proceedings are focused on whether the sentences that courts originally imposed are still appropriate; and (2) Colorado’s constitution and the pertinent bond statutes recognize the separation between the two categories. In the first, the law requires courts to set bond for defendants who await trial, subject only to a few clearly delineated exceptions. In the second, the law gives discretion to set bond.

Here, the court concluded that Johnson’s criminal impersonation and menacing cases fell into the second category; the revocation court therefore had discretion to deny his request for bond in those cases; and the court did not abuse its discretion when it denied his request for bond because the record supported its decision.

The appeal was dismissed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Plea of Guilty Constitutes Conviction for Purposes of Revocation Proceedings

The Colorado Court of Appeals issued its opinion in People v. Blackwell on Thursday, September 22, 2016.

Aaron Blackwell pleaded guilty to theft from an at-risk victim and received a deferred judgment with the condition that he could violate no federal, state, or local criminal law during the deferral period. He later pleaded guilty in an unrelated case to driving after revocation prohibited (DARP), a class 1 misdemeanor. The district court also deferred the judgment in the DARP case. The prosecution then filed a motion to revoke the deferred judgment in the theft case based on Blackwell’s guilty plea in the DARP case. The district court revoked the deferred judgment.

Blackwell appealed, contending his guilty plea in the DARP case was not sufficient to prove that he violated a state criminal law. The Colorado Court of Appeals evaluated whether a guilty plea constitutes a “conviction” for purposes of the revocation hearing statute. The court evaluated C.R.S. § 16-7-206(3), which provides that a court’s acceptance of a guilty plea acts as a conviction for the offense. The court of appeals concluded the district court did not abuse its discretion by revoking Blackwell’s deferred judgment. Blackwell argued that the Colorado Supreme Court’s decision in Kazadi v. People, 2012 CO 73, ruled that a guilty plea resulting in a deferred judgment is not a judgment of conviction, but the court of appeals disagreed, finding that the supreme court has distinguished between a “conviction” and a “judgment of conviction.”

The court of appeals affirmed the district court.