NGRI; sentencing

Williams v. Commonwealth, 2017 WL 3751532 (Va. August 31, 2017)

The Virginia Supreme Court finds that in a case where defendant was found guilty on a charge of felony assault for one act and was found NGRI on another charge of felony assault for an act committed a month later, the trial court’s decision to order defendant to serve his prison term on his conviction before being hospitalized to treat his mental illness under the NGRI verdict did not result in a “grave injustice.” A concurring opinion noted the need for clarification in statutory guidance. A strong dissent argued that existing statutory law requires a different result.

Found in DMHL Volume 36, Issue 3

Criminal sentencing of juveniles; right to new sentencing hearing

In re Kirchner, 393 P.3d 364 (Cal. 2017)

California Supreme Court rules that inmate sentenced 20 years ago as a juvenile to life imprisonment without parole under standards violating Miller v. Alabama was entitled to seek relief through a habeas corpus action and is entitled to re-sentencing under the Miller standards.

Found in DMHL Volume 36, Issue 2

Criminal Sentencing; Mitigating Factors Due to Mental Illness

Wampler v. State, 67 N.E.3d 633 (Ind. 2017)

While finding no error in the sentencing decision of the trial court, the Indiana Supreme Court, in a per curiam decision, reduces the sentence of an offender with a history of mental illness in recognition of the illness’s impact on the offender’s behavior.

Found in DMHL Volume 36, Issue 1

Ineffective Assistance, Rights Waiver

Iannarelli v. Young, 904 N.W.2d 82 (S.D. 2017)

The Supreme Court of South Dakota upheld a sentence because the defendant waived his Fifth Amendment right against self-incrimination and he did not receive ineffective counsel either by failure to warn the defendant of his Fifth Amendment right prior to a psychological evaluation or by failure to request a hearing to determine if institutionalization may be appropriate.

Found in DMHL Volume 37, Issue 1

Death Penalty, Ineffective Assistance, Intellectual Disability

State v. Morrison, 236 So.3d 204 (Fla. 2017)

The Supreme Court of Florida denied a new evidentiary hearing for intellectual disability, granted a new penalty phase where counsel was ineffective in its penalty phase investigation, and withheld a new guilt phase because counsel was not ineffective in its guilt phase investigation.

Found in DMHL Volume 37, Issue 1

Death Penalty, Ineffective Assistance

Ellerbee v. State, 232 So.3d 909 (Fla. 2017)

The Supreme Court of Florida vacated a death sentence and granted a new penalty phase to the defendant because his counsel did not provide effective assistance at trial and the non-unanimous jury verdict regarding the sentence may have violated the Sixth Amendment.

Found in DMHL Volume 37, Issue 1

Mental Health, Sentencing

United States v. Carlin, 712 F. App’x 365, (5th Cir. 2017); United States v. Stephens, 699 F. App'x 343 (5th Cir. 2017)
United States v. Wesberry, 709 F. App’x 895 (10th Cir. 2017)

The following three cases each involved defendant challenges to the imposition of mental health treatment as part of their sentencing. The cases are presented here in brief because of their relatively similar, short opinions that do not present notable fact patterns or developments in jurisprudence.

United States v. Carlin, 712 F. App’x 365, (5th Cir. 2017); United States v. Stephens, 699 F. App'x 343 (5th Cir. 2017).

Both Carlin and Stephens essentially concerned a misstatement of a condition of sentencing. In both cases, the court ordered that the defendant “participate in a mentalhealth program as deemed necessary and approved by the probation officer,” thus impermissibly delegating sentencing authority to the probation officer. In both cases, the Fifth Circuit affirmed a modified sentence that imposed mental health treatment, with details of the treatment to be supervised by the probation officer.

United States v. Wesberry, 709 F. App’x 895 (10th Cir. 2017).

In Wesberry, the defendant challenged the imposition of mental health treatment as part of his sentence under the U.S. Sentencing Guidelines, arguing that the condition was unreasonable because it bore no relation to the goals of the guidelines. The Tenth Circuit reviewed his claim for plain error because he had not challenged the condition in district court. The court found that there was no “well-settled” law supporting his challenge, thus there was no clear error to be found in the lower court’s sentencing decision. In addition, the court noted that the Guidelines’ policy statement recommends requiring participation in a mental health program if a court has reason, based on particularized findings, to believe the defendant is in need of psychological or psychiatric treatment; the court noted the district court’s reliance on presentence reports documenting Wesberry’s diagnoses and medications as meeting the requirement of particularized findings.

Found in DMHL Volume 37, Issue 1

Prison Sentences Issued for Illegally Selling Prescription Drugs Over the Internet

United States v. Gorman, No. 01-CR-1632 (S.D. Fla. sentencing Sept. 04, 2003); 12(37) BNA's Health Law Reporter 1418-19 (Sept. 18, 2003)

A South Florida woman and her son were sentenced to federal prison for selling prescription pain killers over the Internet without a physician's review or a prescription. The woman received a prison term of thirty­ seven months, while her son received a term of twenty-four months. Operating out of their home, the pair purportedly earned more than $1.2 million in gross revenues in slightly more than one year...

Found in DMHL Volume 23 Issue 1

Juvenile Adjudications Can Count as "Prior Conviction" and Enhance Sentencing Under Federal Law

United States v. Jones, 332 F.3d 688 (3d Cir. 2003); 72(1) U.S. Law Week 1003-04 (July 8, 2003)

The Third Circuit ruled a juvenile adjudication can count as a "prior conviction" for purposes of enhancing sentencing under federal law if the adjudication was based on a proceeding that included the privilege against self­ incrimination and rights to notice, counsel, confrontation, and proof beyond a reasonable doubt.  The court determined the absence of a right to a jury trial in the juvenile proceeding was not dispositive because a bench trial provided sufficient reliability to the outcome. In so ruling, the court agreed with the Eighth Circuit but disagreed with the Ninth...

Found in DMHL Volume 23 Issue 1

Ruling that Enhanced Sentence of Psychiatrist and Office Manager for Testifying Falsely at Fraud Trial, Without Jury Having Made This Factual Finding, Reversed, Remanded for Further Consideration

United States v. Mitrione, 357 F.3d 712 (7th Cir. 2004), vacated & remanded for further consideration in light of United States v. Booker (2005).  United States v. Booker, 125 S. Ct. 738 (2005)

Under the Federal Sentencing Guidelines, the sentence authorized by a jury verdict could be enhanced by.the presiding judge at the sentencing hearing if the judge found that additional facts delineated by the guidelines existed. In United States v. Booker (2005), the Supreme Court struck down these guidelines to the extent that they imposed binding requirements on sentencing judges but were based on facts that had not been determined by a jury...

Found in DMHL Volume 24 Issue 2

NM Permits Defendant to Assert at Pretrial Hearing That Mental Retardation Precludes Death Penalty; If Not Established at This Hearing, Defendant Can Introduce Related Evidence During Sentencing Phase

State v. Flores, 93 P.3d 1264 (2004)

State courts continue to wrestle with the implementation of the U.S. Supreme Court's ruling in Atkins v. Virginia, 536 U.S. 304 (2002), which established that a mentally retarded defendant cannot receive the death penalty under the Constitution....

Found in DMHL Volume 24 Issue 1

Downward Departure in Sentencing Under Federal Sentencing Guidelines for Defendant with Diminished Mental Capacity Prohibited When Possibility Exists That Defendant May Discontinue Medication

United States v. Riggs, 370 F.3d 382 (4th Cir. 2004)

Under the federal sentencing guidelines as they currently exist, a federal judge can reduce a sentence below the applicable guideline range "if the defendant committed the offense while suffering from a significantly reduced mental capacity."   However, this reduction may not occur if (1) the reduced mental capacity was caused by the voluntary use of drugs or other intoxicants, (2) "the facts and circumstances of the defendant's offense indicate a need to protect the public because the offense involved actual violence," or (3) the defendant's criminal history indicates a need to incarcerate the defendant to protect the public...

Found in DMHL Volume 24 Issue 1

Paraphiliac Pedophile's Acceptance of Responsibility for the Sexual Exploitation of Children Is Grounds for Sentence Reduction

United States v. Kise, 369 F.3d 766 (4th Cir. 2004 )

The future of the federal sentencing guidelines is somewhat in doubt following the U.S. Supreme Court's recent ruling in Blakely v. Washington, 124 S. Ct. 2531 (2004).  Under the guidelines as they currently exist, however, a trial judge in the federal system is to consider a number of factors in deciding whether to enhance or reduce a convicted defendant's sentence.  The Fourth Circuit Court of Appeals held that a defendant who admitted to and attempted to remedy his mental disorder should be granted a sentence reduction...

Found in DMHL Volume 24 Issue 1

Prison Sentence Imposed on Parents Who Hosted Teen Beer Party Is Upheld

Robinson v. Commonwealth, 625 S.E.2d 651 (Va. Ct. App. 2006)

Underage drinking has been recognized as a significant public health concern. For example, the annual social cost of underage drinking in the United States has been estimated at $53 billion, including $19 billion from traffic crashes and $29 billion from violent crime. In a 2005 nationwide survey of high school seniors, 47% reported consuming alcohol in the past month. A number of law­ related efforts have been employed in an effort to curb this consumption, including imposing greater legal liability on parents who permit or promote this activity...

Found in DMHL Volume 25 Issue 2

Defendants Found Incompetent to Be Sentenced Also Entitled to Sell's Protections from Treatment over Objection; Ruling Not Disturbed

United States v. Baldovinos, 434 F.3d 233 (4th Cir. 2006), cert. denied, 126 S. Ct. 1407 (2006)

The United States Supreme Court, in Sell v. United States, 539 U.S. 166 (2003), held that governmental officials, under limited circumstances, can obtain a court order to administer over objection antipsychotic drugs to restore the competence of defendants found incompetent to stand trial, even though it had not been shown they were dangerous to themselves or others.  Because it believed that most cases can and should be resolved by first focusing on the defendant's dangerousness to self or others, an independent basis for forcible medication established in Washington v. Harper, 494 U.S. 210 (1990), the Court indicated that it thought few Sell orders would be needed and that the protections it mandated would limit the imposition of what was acknowledged to be a significant invasion of a defendant's constitutionally protected liberty interest in avoiding the involuntary administration of these drugs and their side effects...

Found in DMHL Volume 25 Issue 2

Tenth Circuit Holds Insanity Defense Precludes “Acceptance-ofResponsibility” Downward Adjustment to Sentencing Guidelines

United States v. Herriman, 739 F.3d 1250 (10th Cir. 2014)

The Tenth Circuit Court of Appeals upheld on January 14, 2014, the district court’s refusal to give a defendant a reduction from the sentencing guidelines based on his acceptance of responsibility for his criminal acts because he raised an affirmative insanity defense. In refusing to approve a sentencing reduction, the Court of Appeals distinguished the insanity defense which the defendant must raise and prove by clear and convincing evidence from a mens rea challenge, which is an element of the offense the prosecution must prove beyond a reasonable doubt, and for which a court in its discretion may accord a sentence reduction.

In August 2011, Daniel Herriman planted a bomb near a gas pipeline in Oklahoma. When he saw on the news that police had discovered the bomb, he called the police and told them he was responsible. When the police interviewed him, he provided details relating to the bomb, including what materials he used to make it and where they could be located in his house. After investigation and a search of his house, the government charged Herriman with attempting to destroy or damage property by means of an explosive and with illegally making a destructive device.

During pretrial proceedings, the district court became concerned about Herriman’s competency to stand trial and ordered a mental evaluation. A forensic psychologist with the Bureau of Prisons examined him and found him competent to stand trial, a finding which the court accepted. Herriman then gave notice that he would raise an insanity defense. At trial, he did not challenge the prosecution’s evidence that he had constructed and placed the explosive device. In support of his insanity defense, Herriman presented evidence that he had been diagnosed with manic depression, schizoaffective disorder, and post-traumatic stress disorder caused by sexual abuse he had experienced as a child. He had attempted suicide at age 13 and had been repeatedly hospitalized for psychotic episodes. Herriman had also been upset by the death of his mother by suicide and by the death of his sister, possibly by suicide. He also suffered from command hallucinations and was prescribed antipsychotic medications, which did not always work. At the time of the offenses charged, Herriman was taking antipsychotic medication and seeing a psychiatrist regularly. Herriman argued that his mental condition was aggravated at the time of the offenses due to the anniversary of his mother’s death. Voices identifying themselves as al Qaeda urged him to plant the bomb and told him he would be turned over to the individuals who had sexually abused him if he disobeyed.

The prosecution strongly challenged Herrimans’s evidence eliciting testimony from his psychiatrist that he never mentioned auditory hallucinations to him during the time surrounding the events charged, nor did the psychiatrist notice any behavior indicating he was hearing voices. Testimony from his ex-wife and son indicated that his behavior at the time was cogent and lucid. The government also argued that Herriman clearly had the mental capacity to assemble a bomb. The jury rejected Herriman’s insanity defense and found him guilty of both charges. At sentencing Herriman argued that the court should apply an acceptance-of-responsibility adjustment to the sentencing guidelines. The district court refused to do so and sentenced him to sixty-three months in prison on each count to be served concurrently, followed by three years of supervised release.

Under the sentencing guidelines, district courts are required to decrease the offense level of the crime by two levels if the defendant clearly demonstrates acceptance of responsibility for his offense. The Court of Appeals emphasized that Note 2 to the guidelines clarifies that an adjustment is not intended for a defendant who puts the government to the burden of proof at trial by denying the essential factual elements of guilt, is convicted and then admits guilt and expresses remorse. Such an adjustment to the guidelines is available only in rare circumstances when the defendant insists upon a trial only in order to preserve a legal defense to the charge.

In upholding the district court’s refusal to grant a downward adjustment, the Court of Appeals applied a clearly erroneous standard to the court’s decision. It then distinguished this case from United States v. Gauvin, 173 F.3d 798 (10th Cir. 1999), the only case in which the Court indicated it had ever approved a downward adjustment based upon acceptance of responsibility when the defendant required the prosecution to prove its case at trial. The defendant in Gauvin committed an assault while intoxicated. He acknowledged the conduct with which he was charged, but denied due to his voluntary intoxication that he was guilty of the crime charged. He denied he met the mens rea or the intent to harm or cause apprehension, which was a legal element of the crime. Although Herriman in this case acknowledged he committed the acts charged, he factually challenged whether he was criminally liable due to his insanity at the time of the offense, a fact which the government vigorously challenged.

The Court of Appeals acknowledged that the same evidence would be relevant both to challenge the mens rea element of an offense and to assert an insanity defense. But the Court stated that the process for raising the defenses is completely different. The mens rea is the mental element of the crime charged, which the government must prove beyond a reasonable doubt. By contrast, insanity is an affirmative defense which a defendant must raise and prove by clear and convincing evidence. In Gauvin, the defendant admitted he committed the acts in question, but was legally not guilty of all the elements of the crime charged. Here, Herriman acknowledged he committed the acts, but could not be held criminally liable due to his mental state, a fact the prosecution strongly contested. The Court of Appeals therefore upheld the district court’s refusal to grant a downward adjustment to the sentencing guidelines because, unlike Gauvin who only forced the government to proceed to trial to preserve a legal issue unrelated to his factual guilt, Herriman required the government to rebut the factual evidence of his insanity at trial.

Found in DMHL Volume 33 Issue 1

Competency to Stand Trial/Restoration of Competency

Sell criteria for involuntary treatment to restore competency apply to sentencing phase

United States v. Cruz, 757 F.3d 372 (3d Cir. 2014) cert. denied, No. 14-7512, 2015 WL 133477 (U.S. Jan. 12, 2015)

Cruz was arrested and convicted on two counts of threatening a federal law enforcement officer. After the court received the pre-sentence investigation report, the prosecution successfully moved for a determination of competency. A Federal Bureau of Prisons forensic psychologist concluded that Cruz was mentally incompetent and suffered from schizophrenic disorder, bipolar type. After a hearing, the court concluded that Cruz was incompetent and found that he could not proceed with sentencing.

A second report concurred with the diagnosis, noted Cruz’s ongoing refusal to take antipsychotic medication recommended by BOP personnel, concluded that without medication Cruz would remain incompetent, and stated that “there is a substantial probability that [his] competency can be restored with a period of forced medication.” The prosecution obtained an order authorizing the BOP to medicate Cruz against his will.

On appeal, the issue was whether “the Government, pursuant to the Supreme Court's decision in Sell v. United States, 539 U.S. 166, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003), can have a sufficiently important interest in forcibly medicating a defendant to restore his mental competency and render him fit to proceed with sentencing.” In affirming the decision of the federal district court, the Third Circuit held that the government could have a sufficiently important interest in sentencing a defendant for serious crimes to justify involuntary medication. Relying on the stated concern in Sell that “memories may fade or evidence may be lost,” the Third Circuit held the same concern applies with equal force in the sentencing context (the guilt phase was at issue in Sell) because it means that it may be “difficult or impossible to sentence a defendant who regains competence after years of commitment.” Additionally, while it may be cognizable that some crimes are not “serious” enough to justify forcible medication at the sentencing stage, Cruz’s offense was certainly “serious” enough.

The United States Supreme Court denied certiorari in January 2015.

Found in DMHL Volume 34 Issue 1

Mental Condition as Mitigating Evidence in Criminal Sentencing

Voluntary intoxication instruction upheld

Sprouse v. Stephens, 748 F.3d 609 (5th Cir.) cert. denied, 135 S. Ct. 477, 190 L. Ed. 2d 362 (2014)

After being convicted of capital murder of a police officer, petitioner Sprouse was sentenced to death. On state habeas review, Sprouse challenged jury instructions that “effectively precluded the jury from considering voluntary intoxication as mitigating evidence.” Raising the issue again on federal habeas review, Sprouse contended that the state court “unreasonably applied” Penry v. Lynaugh (“Penry I ”), 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990), and Penry v. Johnson (“Penry II ”), 532 U.S. 782, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001). The Fifth Circuit affirmed the federal district court’s denial of Sprouse’s habeas petition.

At the close of the punishment phase of the trial, the jury received three general instructions regarding the proper treatment of mitigating evidence. First, what constituted mitigating evidence, second that “neither intoxication nor temporary insanity of mind caused by intoxication constitute [sic ] a defense to the commission of a crime,” and a final instruction on temporary insanity. On appeal to the Fifth Circuit, Sprouse argued that the voluntary-intoxication instruction (instruction two) “unconstitutionally limited the jury's ability to consider mitigating evidence.” The Fifth Circuit affirmed the district court’s denial of Sprouse’s federal habeas petition, holding that neither the state court nor the federal district court were unreasonable in their application of Supreme Court precedent. Further, the Fifth Circuit stated that “the fact that Sprouse perceives a negative inference in one sentence of his jury charge does not demonstrate that his jury was confused about, and precluded from following, the comprehensive and catch-all affirmative command to the jury to consider mitigation circumstances.”

In November 2014, the United States Supreme Court denied certiorari.

Found in DMHL Volume 34 Issue 1

Sexually Dangerous Offenders

Period in confinement pending civil commitment determination not applicable as “credit” toward time served for criminal sentence

United States v. Hass, 575 Fed. Appx. 139 (4th Cir. 2014) (unpublished per curiam opinion)

In appealing the district court’s judgment revoking his supervised release and sentencing him to eighteen months in prison followed by an additional thirty months of supervised release, defendant Johnny Hass argued that the district court erred in fashioning his sentence by refusing to factor in time he spent in Bureau of Prisons (“BOP”) custody awaiting civil commitment proceedings. After the Government certified that Hass qualified as a sexually dangerous person under the Adam Walsh Child Protection and Child Safety Act of 2006, the court stayed his release pending the outcome of a hearing to determine whether Hass was sexually dangerous. After his supervised release was revoked and a new prison sentence imposed by the district court, Hass argued on appeal to the Fourth Circuit that he should have been granted credit for time served equal to the time he spent in BOP custody awaiting his civil commitment hearing.

Given the deference due to the district court, the Fourth Circuit stated it would only reverse if the sentence imposed was “plainly unreasonable.” A sentence can be either procedurally or substantively unreasonable. Procedural reasonability is determined by examining the district court’s consideration of “applicable 18 U.S.C. § 3553(a) (2012) factors and the policy statements contained in Chapter Seven of the Guidelines.” Substantive reasonability is determined by examining whether the district court stated a “proper basis for concluding that the defendant should receive the sentence imposed.”

The Fourth Circuit rejected Hass’ claim that failing to give him credit for his prior time spent in BOP custody was a basis for plain error, stating that “it is unthinkable to lend support to any judicial decision which permits the establishment of a line of credit for future crimes.” Because Hass “was being sentenced for violating the terms of his supervised release” and cited “no precedent to support his claim that over-service of a prior sentence is even a proper consideration for a court when imposing a revocation sentence,” the Fourth Circuit affirmed the sentence imposed by the district court.

Found in DMHL Volume 34 Issue 1