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Prisoner Education Guide

Articles by Dale Chappell

Eleventh Circuit Holds Florida Drug Trafficking Statute Indivisible and Overbroad for Removal Under Immigration and Nationality Act

by Dale Chappell

In a major decision that may affect thousands with a prior Florida drug trafficking conviction, the U.S. Court of Appeals for the Eleventh Circuit held that Florida’s drug trafficking statute under Fla. Stat. § 893.135 is indivisible and overbroad, and therefore not a “match” with its federal counterpart under the Controlled Substance Act (“CSA”).

After Natalia Cintron, a native of Argentina, was convicted for “trafficking in illegal drugs” under Fla. Stat. § 893.135(1)(c), the U.S. Department of Homeland Security began proceedings to deport her. When an immigration judge ordered her deportation, finding that Cintron’s conviction under § 893.135(1)(c) was a “drug trafficking crime” under the Immigration and Nationality Act (“INA”), Cintron appealed to the Board of Immigrations Appeals (“BIA”). The BIA found that § 893.135(1)(c) was divisible and that Cintron’s conviction qualified as a drug trafficking crime, requiring her deportation. Cintron appealed to the Eleventh Circuit.

The INA requires deportation of an alien who is convicted of an “aggravated felony,” which includes a “drug trafficking crime,” defined under the federal CSA as manufacturing, distributing, or possessing with intent to do so. Mere possession ...

Washington Supreme Court: Nexus Between Property Searched and Probation Violation Required for Warrantless Search of Probationer’s Property

by Dale Chappell

Probationers have a limited, but constitutionally protected, privacy interest that does not permit community correction officers (“CCO”) to conduct open-ended property searches. Instead, the warrantless search must be connected to a suspected violation of a probation condition, the Supreme Court of Washington held, settling a circuit split within the state.

After Curtis Cornwell failed to report to his CCO, a warrant was issued for his arrest. Police stopped Cornwell’s vehicle based solely on the warrant, and a CCO was called to search his property. The CCO found drugs in a bag in the vehicle, and Cornwell was arrested on new charges for the drugs, as well as the probation violation.

Cornwell moved to suppress evidence obtained during the search of his car. The trial court denied his motion, stating that any subjective expectation of privacy was not “objectively reasonable” since he was on probation and thus entitled to a reduced expectation of privacy.

At the trial, the CCO testified that he searched the vehicle “to make sure there’s no further violations of his probation.” He further testified that “if there’s anything in the vehicle, whether it is in a suitcase, clothing, I’m going to go through ...

Missouri High Court Holds Checkbox-Style Search Warrant Constitutes an Unconstitutional General Warrant

by Dale Chappell

A search warrant with checkboxes generally describing the purpose of the warrant lacked particularity and probable cause and was an unconstitutional “general search warrant,” the Supreme Court of Missouri held. The Court affirmed the defendants’ motions to suppress all evidence seized in connection with the defective warrant.

After Jennifer Gauter and Phillip Douglass were accused of burglarizing a home, the Kansas City police applied for a search warrant to search their residence to check for the stolen items. The search warrant prepared by a detective had checkboxes that generally described the items to be seized and the reason for the warrant, including a checkbox authorizing officers to seize a “deceased human fetus or corpse, or part thereof.” The warrant also listed in detail some of the items that were allegedly stolen from the home. All of the boxes were checked, including the corpse box, and the judge approved the warrant.

Gauter and Douglass were charged with burglary in the second degree and felony stealing, after police recovered several of the items listed in the warrant, but not the corpse. The pair filed pretrial motions to suppress the evidence, arguing that the warrant was invalid because ...

Kansas Supreme Court: Judge’s ‘Thwarting’ of Defendant’s Right to Self-Representation was Structural Error Requiring Reversal of Convictions

by Dale Chappell

A defendant who “unequivocally” invoked his right to self-representation at trial and was denied that right when the judge ignored his requests got a new trial when the Supreme Court of Kansas held that it constituted a “structural error.”

Josiah Bunyard was “very active” in his defense. At a pretrial hearing before his trial was about to begin, he noticed his lawyer was overlooking something he believed to be crucial, so he spoke up. “You Honor, could I please be heard?” he interrupted. “Mr. Bunyard, you have appointed counsel ... so you’re either having [counsel] argue this case—or you are representing yourself? Which is it?” the judge responded. “I’ll represent myself, if that’s the choice,” Bunyard replied.

The court recessed to let Bunyard talk to his lawyer, and when the court reconvened, Bunyard stated, “I want it on the record I wish to represent myself unequivocally.” The judge refused to acknowledge Bunyard’s demand and told him he had to “file a proper motion” to be heard in court. Since it was Friday, Bunyard said, “there’s no mail going out for the weekend. There’s no way I can get it” to the court. The ...

Missouri Supreme Court Clarifies No Resisting Arrest Charge Once Arrest is Completed

by Dale Chappell

A defendant trying to break free of an officer’s grip while already under arrest and in handcuffs was not “resisting arrest” because the defendant was not trying to prevent his arrest, the Supreme Court of Missouri held.

Six officers surrounded Daniel Ajak and put him under arrest by placing him in handcuffs and making him sit in a chair in his kitchen after a domestic disturbance at his house. As Ajak continued to verbally protest that he was the victim, he was moved to a police car to be taken to jail. On the way out to the car, he tried to break free of the officer’s grip while still in handcuffs and spit on the officer. In addition to the domestic assault charges, police added a resisting arrest charge. A jury found Ajak guilty of only the resisting arrest charge, and he was sentenced to 280 days in jail. He appealed, and the Missouri Supreme Court granted transfer after the court of appeals affirmed.

The question before the Supreme Court was whether Ajak actually resisted arrest when he tried to break free, after having been put in handcuffs and forced by the officers to sit in ...

FBI Data Reveal ‘War on Cops’ is Nonexistent

by Dale Chappell

Where is the “war on cops” claimed by the country’s leaders? According to the Federal Bureau of Investigation’s annual report on law enforcement officers killed in the line of duty across the country, 93 cops died in the line of duty in 2017, and 118 were killed in 2016. However, more than half were killed in accidents, and half of those were not wearing seatbelts. The data were compiled from local, state, federal, tribal, and campus police agencies.

Being a cop is not even in the top 10 most dangerous jobs in the United States. While some officers unfortunately die while on duty, the data clearly show that there is no “war on cops” as some falsely claim. In fact, being a federal law enforcement officer was one of the safest jobs in the country the past two years: None were killed in the line of duty in 2017, and only one was killed in 2016.

Yet, Congress still wants to make the killing of a cop a “hate crime.” The facts do not support this push. More cops were killed in previous years than the last two years. Clearly, line of duty deaths for cops ...

South Carolina Supreme Court Clarifies When Court Can Deny Right to Self-Representation; Orders New Trial

by Dale Chappell

“One who is his own lawyer has a fool for a client,” U.S. Supreme Court Justice Blackmun once opined.

Nevertheless, a circuit judge may deny a defendant’s request to be his own lawyer but only if the court finds he has not knowingly, intelligently, and voluntarily waived his right to counsel, the Supreme Court of South Carolina held, clarifying when a court may deny such a request.

According to the circuit court, there was no question that Lamont Samuel was “bright enough, educated enough” to waive his right to counsel and represent himself at his murder trial. However, the court denied Samuel’s motion to represent himself, after the lawyer Samuel claimed was helping him told the court that he was not doing so. Concluding that Samuel had lied, the court determined that he had violated the Rules of Professional Conduct and was trying to manipulate the system. The court denied his motion to proceed pro se. He was convicted and sentenced to 50 years in prison. Samuel appealed, arguing the circuit judge erred in denying his right to self-representation.

The court of appeals affirmed. The South Carolina Supreme Court granted certiorari and reversed the court ...

Pennsylvania Supreme Court Announces New Rule to Allow IAC Claims for Fine-Only Sentences

by Dale Chappell

The Supreme Court of Pennsylvania announced a new rule allowing post-sentencing motions raising ineffective assistance of counsel (“IAC”) claims where only a fine but no prison or probationary time is imposed.

After being convicted by a jury and sentenced to pay restitution and a fine, Edward Delgros filed a post-sentencing motion raising IAC claims. The trial court, however, ruled that Delgros was not entitled to relief because his IAC claims could only be raised under the Post Conviction Review Act (“PCRA”), despite not being able to use the PCRA since he was not sentenced to time in custody. Delgros appealed.

Delgros pointed out to the superior court on appeal that he had no avenue to raise his IAC claims, but the Pennsylvania Supreme Court, in Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), left open an option for review where “good cause” is shown. The court, though, disagreed and ruled that the Holmes exception applied only to petitioners eligible to file under the PCRA, which requires that a petitioner is “currently serving a sentence of imprisonment, probation, or parole.” 42 Pa.C.S. § 9543(a). The Pennsylvania Supreme Court granted allocatur to address whether ...

Delaware Supreme Court Reverses Criminally Negligent Homicide Because Conduct was ‘Too Remote’ from Cause of Death

by Dale Chappell

Conduct that was “too remote” from the cause of death could not support criminally negligent homicide, the Delaware Supreme Court held, reversing a juvenile’s adjudication.

Tracy Cannon and Alcee Franklin-Johnson (pseudonyms), two 16-year olds, took their argument into a school bathroom where things turned physical. In less than one minute, it was over, and two hours later, Alcee was dead. However, the death was not from any injury sustained during her altercation with Tracy. Instead, she died from a very rare heart condition that even she didn’t know she had.

Nevertheless, Tracy was charged with criminally negligent homicide and was adjudicated delinquent in family court after a five-day bench trial. The judge, as the fact-finder, pinned blame on Tracy because her attack on Alcee was carried out “in the close confines of the school bathroom stall, which posed [a] risk of potential catastrophic physical harm including death by virtue of the tile floor, walls and fixtures.” The court also said Tracy was aware that her attack on Alcee would result in “physical and emotional trauma” that could result in her death and ruled that the evidence established beyond a reasonable doubt that Tracy had caused Alcee’s ...

Ninth Circuit Rules Weekends in Jail Count as Time ‘In Prison’

by Dale Chappell

Weekends in jail count as time “in prison,” the U.S. Court of Appeals for the Ninth Circuit held, granting immediate release for a prisoner serving a supervised release revocation term in prison.

When Wallace Shimabukuro violated his federal supervised release for the third and final time, the district court sentenced him to 17 months in prison and ended his supervised release. The court credited Shimabukuro with the 18 months he served for his first violation and the one month he did for the second, but the judge refused to count the 50 consecutive weekends he served as part of that second violation. Shimabukuro appealed, arguing that counting the weekends he spent in jail counted, and the most he could have received on his third violation was 12 months in prison. The Court of Appeals agreed and ordered his release.

Under 18 U.S.C. § 3583(e) that was in effect at the time of Shimabukuro’s original criminal offense, there was a cap on the amount of prison time the court could have given Shimabukuro for his supervised release violations. That version required the court to aggregate all of the prison time for his collective ...


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