Skip to main content

SO Issues's Library tagged BlogOther   View Popular, Search in Google

28 Sep 13

The record reflects that plaintiff, S.D., and defendant, M.J.R., are citizens of Morocco and adherents to the Muslim faith. They were wed in Morocco in an arranged marriage on July 31, 2008, when plaintiff was seventeen years old.1 The parties did not know each other prior to the marriage. On August 29, 2008, they came to New Jersey as the result of defendant's employment in this country as an accountant. They settled in Bayonne, where they were joined one month later by defendant's mother.
As plaintiff described it at trial, the acts of domestic abuse that underlie this action commenced on November 1, 2008, after three months of marriage. On that day, defendant requested that plaintiff, who did not know how to cook, prepare three Moroccan dishes for six guests to eat on the following morning. Plaintiff testified that she got up at 5:00 a.m. on the day of the visit and attempted to make two of the dishes, but neither was successful. She did not attempt the third. At 8:00 a.m., defendant arrived at the couple's apartment with his guests. He went into the kitchen, but nothing had been prepared. Defendant, angry, said to plaintiff, "I'm going to show you later on, not now, I'm not going to talk to you right now until the visitors leave." Approximately two hours later, the visitors departed.

28 Sep 13

Harry Croft Bickel, Jr., appeals from the trial court order revoking his probation and ordering him to serve a five-year term of incarceration. After the trial court denied his motion for new trial, Bickel filed an application for discretionary appeal, which this Court granted. Bickel now argues that the trial court erred by ordering a five-year term of incarceration[1] upon revocation because his mental illness prevents him from complying with the probation conditions; and that the trial court erred by denying his motion for new trial before a different judge because Bickel previously had consulted the revocation judge, who therefore had extra-judicial knowledge of relevant facts. For the reasons that follow, we affirm.

The record shows that Bickel pleaded guilty to child molestation in 2002 and was sentenced to 20 years of probation. On March 14, 2012, Bickel was arrested on a probation warrant, and thereafter, on March 20, the State filed a petition for modification or revocation of probation. The petition alleged that Bickel violated the terms of probation by (1) possessing less than one ounce of marijuana; (2) failing to avoid vicious and injurious habits, including marijuana[2] and alcoholic intoxication; (3) consuming alcoholic beverages in violation of sex offender condition nineteen; (4) using mind altering drugs in violation of sex offender condition twenty-two; and (5) violating special conditions of probation imposed during a previous probation revocation based on the above-stated violations.

28 Sep 13

The defendant was charged by an indictment filed on June 11, 2009, with two counts of aggravated rape and two counts of aggravated kidnapping. He entered a not guilty plea on June 23, 2009, and on December 4, 2009, the district court denied the motions to suppress the evidence, statement, and identification. On May 23, 2011, the defendant's trial began; it resumed on May 25, 2011, and concluded on May 26, 2011. The jury found the defendant guilty of attempted aggravated rape (count 1), attempted aggravated kidnapping (count 2), attempted forcible rape (count 3), and aggravated kidnapping (count 4). He was sentenced on August 11, 2011. On counts one and two, the defendant was sentenced to serve forty years at hard labor; on count three, he was sentenced to serve fifteen years at hard labor, and on count four, he was sentenced to serve life imprisonment at hard labor. The sentences are to be served without benefit of probation, parole or suspension of sentence and were ordered to run concurrently with each other and with any other sentence that appellant may be serving. His motion for appeal was granted that same day.

28 Sep 13

On April 7, 1999, Lacey was charged with two counts of sexual intercourse without consent, violations of Mont. Code Ann. § 45-5-503 (1995), and an arrest warrant was issued. The conduct was alleged to have occurred in the spring of 1995 and the summer of 1996. It involved one victim, J.G., who was at least 16 years old, the age of consent in Montana, on both occasions.[1]

On November 8, 2007,[2] Lacey was arrested in Arizona. After his arrest, Lacey moved to dismiss the charges for violation of his right to a speedy trial. Following a hearing on August 25, 2008, the trial court denied the motion. Findings (doc. 12-3) at 1, 16. Lacey was convicted on both counts at trial. He appealed. The Montana Supreme Court affirmed the trial court's denial of the motion to dismiss but remanded the case for a new trial due to an error in the admission of other-acts evidence. State v. Lacey, 224 P.3d 1247, 1254 ¶ 26, 1255 ¶ 42 (Mont. 2010) ("Lacey I").

After Lacey was again convicted on both counts in the second trial, the trial court dismissed Count 1 because the State changed its theory at trial. It had charged Lacey with using force, but it did not introduce evidence showing force. The trial court affirmed the verdict on Count 2, in which the State had both alleged and introduced evidence that J.G. was asleep when Lacey penetrated him. Order re: New Trial (doc. 12-14) at 14 ¶ 2.

28 Sep 13

{¶ 1} Defendant-Appellant, Aaron Hoffman, appeals the judgment of the Court of Common Pleas of Seneca County convicting him of sexual battery and unlawful sexual conduct with a minor and sentencing him to a 60-month prison term. On appeal, Hoffman argues that his conviction was against the manifest weight of the evidence. For the reasons that follow, we affirm the trial court's judgment.

{¶ 2} On April 4, 2012, the Seneca County Grand Jury indicted Hoffman with sexual battery in violation of R.C. 2907.03(A)(5), (B), a felony of the third degree, and unlawful sexual conduct with a minor in violation of R.C. 2907.04(A), (B)(3), also a felony of the third degree. The indictment arose from Hoffman's purported sexual relationship with A.G. from 2009 until 2011, during which time she was between 15 and 17 years old. The alleged relationship occurred while Hoffman lived with A.G. and her mother, Abby Hartsel.

{¶ 3} A jury trial was held from September 24, 2012 to September 27, 2012. At trial, the following relevant evidence was adduced.

28 Sep 13

The petitioner, Chris Polizzi ("Polizzi"), is a convicted prisoner incarcerated in the Avoyelles Correctional Center in Cottonport, Louisiana.[2] On August 19, 2003, Polizzi was charged by Bill of Information in Jefferson Parish with one count of sexual intercourse using force of arms with a known juvenile without her consent and by use of force or threats of physical violence, and one count of oral sexual battery upon the known juvenile by touching her genitals with his mouth while the juvenile was less that 15 years old and at least three years younger than the defendant.[3] Polizzi entered a plea of not guilty to the charges on August 20, 2003.[4]

The record reflects that, in June of 2003, the victim, A.R., was 14 years old and lived at 769 Avenue C in Westwego, Louisiana.[5] On June 18, 2003, she spent the night at the house next door, 765 Avenue C, where Michelle Gisclair, Timmy Adams, and Melissa and David Trepagnier lived. Chris Polizzi, who was 59 years old at the time of trial, also had been staying in that house. The house was a shotgun-style house, with a living room, followed by a bedroom, followed by either a bathroom or another bedroom, with the kitchen in the very back. There was a doorway, with no door, separating the front bedroom from the living room.

28 Sep 13

{¶1} Defendant-appellant, Larry W. Waskelis, appeals from the October 30, 2012 Order and Journal Entry of the Portage County Court of Common Pleas, denying his postconviction Petition to Vacate and Set Aside Conviction and Sentence. The issues to be determined by this court are whether a defendant's postconviction petition can be denied, without a hearing, when the issue related to the ineffective assistance of counsel was not raised on appeal, and whether the trial court made proper factual findings and conclusions of law when it stated that the matter was barred by res judicata. For the following reasons, we affirm the decision of the trial court.

{¶2} On April 15, 2011, following a jury trial, Waskelis was found guilty of six counts of Rape, felonies of the first degree, in violation of R.C. 2907.02(A)(1)(b). On four counts of Rape (counts three through six of the indictment), the jury made additional findings that the victim was "less than ten [years old]" at the time of the offense. Waskelis was also found guilty of three counts of Gross Sexual Imposition, felonies of the third degree, in violation of R.C. 2907.05(A)(4).

{¶3} The charges against Waskelis were related to his sexual contact with his girlfriend's minor daughter, A.B. A.B. testified that she was being sexually abused by Waskelis. Nurse Carlin Johnson, a pediatric sexual assault nurse at the Portage County Children's Advocacy Center, testified regarding A.B.'s allegations against Waskelis and described the physical exam she performed. Dr. Paul McPherson explained that, based on his review of the exam performed by Johnson and the statements of A.B., "[w]ithin a reasonable degree of medical certainty, her evaluation is consistent with child sexual abuse." The evidence presented at trial is further described in State v. Waskelis, 11th Dist. Portage No. 2011-P-0035, 2012-Ohio-3030, ¶ 4-19.

28 Sep 13

Appellant James Pesci, a civil detainee at the Florida Civil Commitment Center (FCCC), is involuntarily committed pursuant to Fla. Stat. § 394.910 et seq., the "Involuntary Civil Commitment of Sexually Violent Predators Act," commonly referred to as the "Jimmy Ryce Act." The Act provides for involuntary civil commitment of a sex offender who is determined to be a sexually violent predator for the purposes of safeguarding the general public and rehabilitating the detainee. Pesci and some 600 other residents of the FCCC are not prisoners; rather they are civil detainees who have already served their terms of incarceration.

For some years, Pesci has published a newsletter called "Duck Soup" at the FCCC that is highly critical of the center, its policies, and its personnel. In April 2009, Timothy Budz, the facility director at the center, promulgated a policy barring all residents from copying Duck Soup in order to limit its circulation, on the rationale that Duck Soup had disrupted order and discipline at the FCCC as well as had a powerful adverse effect on the facility's capacity to rehabilitate its civil detainees. Pro se, Pesci filed a § 1983 civil rights action against Budz in the United States District Court for the Middle District of Florida. He claimed the policy violated his expressive freedoms under the First and Fourteenth Amendments and therefore sought both monetary and injunctive relief. In November 2010, after the litigation had begun but notably before the district court entered summary judgment for Budz, the facility director adopted a new, different, and stricter policy treating the newsletter as "contraband" and banning outright its possession or distribution. In February 2012, the district court granted final summary judgment in favor of the facility director, but only considered Pesci's First Amendment claim as to the April 2009 policy, offering no view about the replacement policy banning Duck Soup. Pesci timely appealed, initially pro se, but now with the assistance of appointed counsel.

28 Sep 13

Mother has given birth to a total of eight children. Three—A.H., A.W., and S.A.—have been "adopted out" after reunification failed. Two others live with relatives, one being Mother's sister, who Mother describes as a methamphetamine smoker who will "never stop." The other child lives with the paternal grandmother. The current proceedings involve Mother's three youngest children, D.S., R.H., and F.H. (The minors.)[2]

The minors came to the attention of the Children and Family Services department (CFS) after both Mother and D.S. tested positive for methamphetamine after his birth. Mother planned to live with her sister after the birth; after D.S. was detained, F.H. was located with Mother in a motel with her sister and a registered male sex offender.

The jurisdictional/dispositional report recommended that Mother not be provided with reunification services. Mother had admitted to the social worker that she had a long-standing addiction to methamphetamine and that she had used methamphetamine the day of D.H.'s birth. Although Mother had been ordered to submit to drug testing at the detention hearing on May 29, 2013, she had not done so, claiming a "misunderstanding." She also told the social worker that, had she tested at that time, she would "only" have tested positive for marijuana. Mother admitted that she had used methamphetamine only a few days before speaking with the social worker, attributing it to "lack of familial support and the stress of having the children . . . removed . . . ."

28 Sep 13

On February 28, 2007, [Appellant] was charged with failure to comply with the registration of sexual offender requirements under 18 Pa.C.S.A. § 4915(a)(1), a felony of the third degree.1 As a result of these new charges, [Appellant] was charged with a probation violation on Information No. 2149-2005.
1 [Appellant] had previously been convicted of indecent assault . . . and was required by statute to register his address with the Pennsylvania State Police Megan's Law Unit prior to the maximum incarceration expiration date for his conviction, pursuant to 42 Pa.C.S.A. § 9795.2(a)(4)(i). [Appellant's] maximum incarceration expiration/release date was February 28, 2007. The Lancaster County Prison attempted on two occasions prior to February 28, 2007, to obtain [Appellant's] registration information by he refused to provide it as required by statute.

28 Sep 13

This court summarized some of the procedural background of Sanchez's case in Langhorne v. Superior Court (2009) 179 Cal.App.4th 225, as follows: "Sanchez was convicted of one count of lewd act on a child in both 1979 and 1982. He was initially committed as a sexually violent predator in 2000. Thereafter, Sanchez was recommitted for additional two-year terms, with the most recent two-year commitment term extending to January 19, 2008. [Citation.] [¶] On June 8, 2007, before the expiration of the most recent two-year commitment period, the People filed a `motion to retroactively apply an indeterminate term to respondent' under the 2006 amendments to the SVPA.[2] The trial court granted the motion on July 19, 2007, and ordered that Sanchez be committed to the custody of the State Department of Mental Health[3] for an indeterminate term. Sanchez appealed, and this court reversed the order imposing an indeterminate term of commitment in an opinion filed on July 10, 2008. [Citation.]" (Id. at pp. 230-231; see People v. Sanchez (July 10, 2008, H031856) [nonpub. opn.].)

On June 4, 2008, while Sanchez's appeal in case No. H031856 was pending, the People filed a petition to extend his commitment from the date his prior two-year term expired to "the term prescribed by law." The petition was supported by evaluations from Steven R. Jenkins, Ph.D. and C. Mark Patterson, Ph.D.; the evaluations had been performed in March and April of 2008.

28 Sep 13

{¶ 1} Defendant-appellant, Rickey Alan Johnson ("Johnson") appeals the March 20, 2013 judgments of the Wyandot County Court of Common Pleas designating him as a "Sexual Predator" under Megan's Law.[1]

{¶ 2} On April 22, 2011, Johnson pleaded guilty to three counts of sexual battery. The charges stemmed from an ongoing sexual relationship spanning several years that Johnson maintained with his minor step-daughter.

{¶ 3} On June 16, 2011, the trial court sentenced Johnson to serve an aggregate prison term of fifteen years and designated him as a "Tier III" sexual offender under the Adam Walsh Act ("AWA"), which was enacted on January 1, 2008. However, the record indicates that the sexual conduct underlying the offenses occurred between 1996 and 1998, when Megan's Law was in effect.

{¶ 4} Johnson subsequently appealed his designation as a "Tier III" sexual offender to this Court and argued that the trial court was required to classify him under the statutory scheme in effect at the time he committed his offenses. See State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374. Notably, the prosecution conceded this to be error.

28 Sep 13

Moorehead pleaded guilty to the crime of first degree child molestation in 2005. The presentence investigation report and a psychologist, Dr. Kevin McGovern, recommended that Moorehead be allowed to complete a special sex offender sentencing alternative (SSOSA) outpatient treatment program. In July 2005, the court imposed a 68-month sentence, with 180 days to serve in confinement and the remainder suspended under a SSOSA. The SSOSA required that Moorehead undergo and successfully complete an outpatient sex offender treatment program. After his confinement, Moorehead began a treatment program with Sunset Psychological & Counseling Services.

Moorehead violated the conditions of his SSOSA, resulting in one out-of-court agreement and two violation hearings. On four occasions between October 2005 and February 2007, Moorehead violated his travel restrictions. For the last of these violations, Moorehead was confined for 30 days. In March 2006, Moorehead possessed pornography in violation of the SSOSA and his treatment program. Moorehead was also found to have provided false information to corrections officers after he incorrectly stated there was not pornography on his computer. He received 60 days' confinement for these two violations.

28 Sep 13

In 1992, defendant was convicted of two counts of lewd and lascivious acts with a child pursuant to section 288, subdivision (a). Defendant was ordered to register as a sex offender under section 290. He was released in 1995 on parole from state prison.

Defendant was arrested in 2002 for failing to register as a sex offender. Defendant was convicted of failing to register as a sex offender in Twenty-Nine Palms, in violation of section 290, subdivision (g)(2). In a bifurcated trial, the jury also found true allegations that defendant had two prior convictions for lewd and lascivious acts upon a child, which qualified as serious or violent felonies under sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d). The jury also found he had served two prior prison terms and failed to remain free of prison custody for five years within the meaning of section 667.5, subdivision (b). The trial court sentenced defendant to a total term of 27 years to life in state prison.

On November 6, 2012, the electorate passed Proposition 36. This ballot measure enacted section 1170.126, which permits persons currently serving an indeterminate life term under the three strikes law to file a petition in the sentencing court, seeking to be resentenced to a determinate term as a second-striker. (§ 1170.126, subd. (f).) If the trial court determines that the defendant meets the criteria of section 1170.126, subdivision (e), the court may resentence the defendant. (§ 1170.126, subd. (f).)

28 Sep 13

This appeal challenges the constitutionality of certain key provisions of the Sex Offender Registration and Notification Act (SORNA). Pub. L. 109-248, §§ 101-55, 120 Stat. 587, 590-611 (codified in scattered sections of U.S.C. (2006)). Defendant Mark Steven Elk Shoulder was prosecuted under 18 U.S.C. § 2250(a) for failing to comply with the sex offender registration requirements set forth in 42 U.S.C. § 16913. He now argues that his conviction was invalid, because SORNA violates the Ex Post Facto Clause and the Due Process Clause, and because Congress lacked the constitutional authority to enact SORNA. We reject these constitutional challenges and affirm the judgment of the district court.

28 Sep 13

Pursuant to a plea agreement, defendant Douglas Gonsalez Garcia pleaded no contest to one count of sexual penetration of a person under 18 by a foreign object (Pen. Code, § 289, subd. (h)),[1] one count of oral copulation of a person under 18 (§ 288a, subd. (b)(1)) and one misdemeanor count of dissuading a witness (§ 136.1, subd. (b)(1)). In exchange, Garcia was to receive a top sentence of felony probation with the court to determine at sentencing whether the admitted sexual offenses would remain felonies or be reduced to misdemeanors. The court was also to determine in its discretion under section 290.006 whether or not to require Garcia to register as a sex offender.

Garcia was sentenced to three years' felony probation and ordered to register as a sex offender. On appeal, he contends the trial court abused its discretion in requiring him to register as a sex offender and denied him the benefit of his plea agreement by failing to specify whether the offenses to which he pleaded no contest remained felonies or were reduced to misdemeanors.

Garcia also filed a separate petition for writ of habeas corpus in which he contends his trial counsel was ineffective for failing to obtain an expert psychological opinion on his propensity to commit forcible sex crimes in the future.

28 Sep 13

Harry Croft Bickel, Jr., appeals from the trial court order revoking his probation and ordering him to serve a five-year term of incarceration. After the trial court denied his motion for new trial, Bickel filed an application for discretionary appeal, which this Court granted. Bickel now argues that the trial court erred by ordering a five-year term of incarceration[1] upon revocation because his mental illness prevents him from complying with the probation conditions; and that the trial court erred by denying his motion for new trial before a different judge because Bickel previously had consulted the revocation judge, who therefore had extra-judicial knowledge of relevant facts. For the reasons that follow, we affirm.

The record shows that Bickel pleaded guilty to child molestation in 2002 and was sentenced to 20 years of probation. On March 14, 2012, Bickel was arrested on a probation warrant, and thereafter, on March 20, the State filed a petition for modification or revocation of probation. The petition alleged that Bickel violated the terms of probation by (1) possessing less than one ounce of marijuana; (2) failing to avoid vicious and injurious habits, including marijuana[2] and alcoholic intoxication; (3) consuming alcoholic beverages in violation of sex offender condition nineteen; (4) using mind altering drugs in violation of sex offender condition twenty-two; and (5) violating special conditions of probation imposed during a previous probation revocation based on the above-stated violations.

28 Sep 13

In mandamus proceedings before the trial court, the court relieved Richard Hall of the mandatory lifetime sex offender registration requirement arising from his sex offense conviction, but imposed the discretionary lifetime registration requirement. On appeal, Hall argues the trial court's decision to impose the discretionary registration requirement violates Apprendi[1] and ex post facto principles because the registration requirement now incorporates a punitive residency restriction. He requests that we reverse the order imposing the discretionary registration requirement, or alternatively, that we direct the trial court to issue an order declaring he is not subject to the statutory residency restriction applicable to sex offender registrants.

On appeal, the People maintain that the statutory residency restriction does not apply to Hall because he is a probationer, not a parolee. On this record, we accept the People's concession and do not decide the underlying issues presented in this appeal. Accordingly, we construe the judgment as not imposing the statutory residency restriction and affirm.

28 Sep 13

Defendant stipulated he was convicted, on December 19, 1984, of a felony sex offense and the conviction gave rise to an obligation he register as a sex offender for the rest of his life. Registration documents state that the registrant must register annually within five days of his or her birthday. Within five days of moving to a new city or county, a registrant must re-register their new address. He or she also must re-register within five days of changing addresses in the same city.

Defendant complied with his annual registration obligations from July 8, 1999 through July 15, 2003, registering his address as 628 South San Julian Street, Los Angeles, a transitional living facility called Volunteers of America (VOA). On August 20, 2003, defendant, having moved, registered his address as 1940 West 79th Street in Los Angeles, his mother's house. He again registered that address in 2004, 2005, and 2006.

From July 12, 2007 to June 30, 2010, defendant annually registered his address as 6058 Hazelhurst Place, Apartment 10, in North Hollywood. When defendant registered on June 30, registering Officer Robert Greenbaum of the Los Angeles Police Department had defendant read the registration requirements. Defendant affixed his initials to the document indicating he understood the requirements. After June 30, 2010, defendant did not register as a transient at the VOA address; at 8118 Western Avenue in Los Angeles (his girlfriend's house); or at 1940 West 79th Street in Los Angeles (his mother's house). He registered an address change to 77th Street on January 28, 2011. On June 29, 2011, he registered the same address for his annual registration.

28 Sep 13

In 1988 or 1989, John was convicted in federal court of two counts of sexual assault occurring within the reservation. In 2010, he was arrested by the Coconino County Sheriff outside the Navajo Nation boundaries and charged with failure to register as a sex offender pursuant to A.R.S. § 13-3821. He pled guilty to that offense, acknowledging at the plea colloquy that he had lived in Tuba City since 2008 but had not registered with the county sheriff within ten days of moving there.[1] The trial court suspended the imposition of sentence and placed John on a ten-year term of probation. He immediately sought post-conviction relief, arguing the state lacked subject-matter jurisdiction to charge him with failure to register as a sex offender because he is a member of the Navajo Nation living on tribal lands, and has not worked, resided, or attended school outside the reservation boundaries.[2] The court summarily denied relief.

1 - 20 of 289 Next › Last »
20 items/page