Latest from The Spokesman-Review
Idaho’s Court of Appeals today overturned a lower-court ruling that blocked a driver’s license suspension for a former Kootenai County court official after a misdemeanor DUI arrest in 2010. The Idaho Transportation Department appealed the decision about the license suspension for Marina Kalani-Keegan, former Kootenai County juvenile drug court coordinator. A hearing officer had ruled that the administrative license suspension was invalid because the arresting officer’s original signature wasn’t on his sworn statement, but it was; ITD sought reconsideration with a statement from a notary that the signature was original, but the hearing officer declined to change the ruling, nor did a district court.
In a unanimous opinion written by Court of Appeals Judge John Melanson, the appellate court found that not only was the ruling about the original signature incorrect, an original signature from the officer wasn’t even legally required, and a copy would have sufficed. Wrote Melanson, “The district court erred in demanding something more than that which the law provides.” You can read my full story here at spokesman.com.
Idaho’s Court of Appeals today overturned a lower-court ruling that blocked a driver’s license suspension for a former Kootenai County court official after a misdemeanor DUI arrest in 2011. The Idaho Transportation Department appealed the decision about the license suspension for Marina Kalani-Keegan, former Kootenai County juvenile drug court coordinator. A hearing officer had ruled that the administrative license suspension was invalid because the arresting officer’s original signature wasn’t on his sworn statement, but it was; ITD sought reconsideration with a statement from a notary that the signature was original, but the hearing officer declined to change the ruling, nor did a district court/Betsy Russell, SR. More here.
Also: She left her juvenile court position in 2005; a subsequent public records lawsuit filed by The Spokesman-Review over flirtatious emails between her and county Prosecutor Bill Douglas led to a landmark Idaho Supreme Court ruling in 2007 that more than 1,000 emails between the two county officials were public records and not exempt from disclosure.
A unanimous Idaho Court of Appeals has upheld the conviction of Frank Tankovich for malicious harassment and conspiracy after a 2009 incident in which he and his two brothers, in a truck festooned with a swastika, harassed a man of Puerto Rican descent outside his Coeur d’Alene home. “We find ample evidence to support the jury’s finding that Tankovich was motivated by racial animus,” Appeals Court Judge Karen Lansing wrote in the decision, issued today. Frank Tankovich and his brother William were sentenced to probation and community service for the incident, while his brother Ira was convicted of conspiracy to disturb the peace and possession of a gun by a felon, and was sentenced to up to nine years in prison/Betsy Russell, Eye on Boise. More here. (Photo, from left: Ira Tankovich, William Tankovich and Frank Tankovich)
While criminal defendants in Idaho have a right to make a statement before being sentenced, it’s a procedural right, not a constitutional right, the Idaho Court of Appeals has ruled. Declining to overturn the sentencing of a North Idaho man on a statutory rape charge, the unanimous court held that the only time that the right of “allocution,” or making a statement, is a constitutional right guaranteed by due process is when the defendant requests to make a statement, and the district court “affirmatively denies” the request.
In the case of Scott Anthony Hansen, who was sentenced in 2011 to two to eight years in prison by 1st District Judge Steven Verby in Bonner County, the judge told Hansen at sentencing that he’d afford him an opportunity to make a statement. Hansen’s attorney said his client did have a statement, but first he had information for the court and three witnesses to call. The witnesses were called and arguments presented, and the defense asked for a maximum sentence of five years, while prosecutors asked for up to 10 years. The judge listened to the arguments and witness testimony, then directly questioned Hansen on several points, before imposing the sentence of up to eight years.
“Hansen … argues that the violation of his due process rights, by denying him allocution at sentencing, resulted in a greater punishment than the district court otherwise would have imposed,” Chief Judge Sergio Gutierrez wrote in the court’s unanimous opinion. But, he wrote, “From the record, we cannot conclude the district court’s failure to later invite a statement was an affirmative denial of the opportunity to allocute, and not simply an oversight.” He added, “A violation by the district court of a rule of procedure does not necessarily equate to a deprivation of a constitutional right.”
In the same ruling, the Court of Appeals rejected Hansen’s contention that he’d been given an excessive sentence. He was charged with one count of statutory rape and one of lewd conduct with a minor under the age of 16 for sexual relationships with two 13-year-old girls when he was 18; under a plea agreement, he pled guilty to the statutory rape charge and the other charge was dropped. The judge retained jurisdiction, which means Hansen had the opportunity to be released on probation after completing an intensive “rider” program at the North Idaho Correctional Institution at Cottonwood, but less than two months into the rider Hansen’s case manager at NICI recommended revocation of the rider due to numerous disciplinary issues. “Hansen grew more defiant and blatantly disregarded treatment requirements and recommendations,” the court found. So the judge relinquished jurisdiction, sending Hansen to prison for up to his full term; he remains there now.
“The district court noted that Hansen’s high risk for recidivism and unwillingness or inability to comply with the law supported an execution of the sentence originally imposed,” Gutierrez wrote. “The sentence was not excessive.” You can read the full ruling here.
It was an icy morning in 2009 when Richard W. Wright slid off a North Idaho road and hit a speed limit sign. But the retired Florida police officer and then-Kootenai County coffee shop owner didn’t expect to be charged with the misdemeanor crime of leaving the scene of an accident for proceeding on to work.
Wright, who represented himself in court, received a withheld judgment, paid a $200 fine, served two days on a county work program and had his license suspended for a year – all for an accident that only damaged a piece of plastic door molding on his own car and a roadside sign that cost about $200 to fix; Wright paid for that. Today, the Idaho Court of Appeals overturned Wright’s conviction, saying the leaving-the-scene crime applies to multi-car accidents, requiring drivers not to leave before exchanging information – not to a single car bumping into a sign.
Judge Karen Lansing, writing for a unanimous court, wrote, “In the case of a single-car accident, without injuries to a third party, there is no other person to whom the driver could provide information at the scene. A requirement that a driver stop and remain at the scene absent any person with whom to exchange information would be absurd.”
Wright’s attorney, Richard Kuck of Coeur d’Alene, said, “Given the way this all went down, I hope that means that people like Mr. Wright won’t be charged with this offense in single-vehicle collisions again. It’s good to have that cleaned up in Idaho.” You can read my full story here at spokesman.com.
Here's a news item from the Associated Press: BOISE, Idaho (AP) ― The Idaho Court of Appeals says a lower judge has the discretion to seal a convicted sex offender's case because the felon's criminal record is hurting his finances. But the appellate judges made clear in Thursday's ruling that they weren't recommending a Bonner County judge actually seal the case, only that he has the power to, if he chooses. The appeal was brought by a man calling himself John Doe, who was convicted in 1990 after pleading guilty to felony battery with intent to commit rape. After serving four years in prison, Doe was released on parole, and he's no longer required to register as a sex offender. Doe contended that his conviction is showing up on background checks and hurting job opportunities, and so should be sealed. Click below for a full report from AP reporter Rebecca Boone.
A Kootenai County man should get a chance to appeal his conviction on drug charges, the Idaho Court of Appeals held today, because he told his lawyer immediately after the jury verdict that he wanted to “appeal everything.” The lawyer told the man, Kirk Julliard Gosch, to schedule an appointment to discuss “exactly what he wanted to appeal,” but Gosch never did so, and didn't respond to several subsequent contacts from the lawyer. 1st District Judge Benjamin Simpson held that it was not the lawyer's inaction, but Gosch's that resulted in no appeal being filed; the appellate court disagreed.
“If counsel either neglects or refuses to file an appeal despite a criminal defendant's request to do so, counsel is deficient,” wrote appeals court Judge John Melanson in the unanimous decision. The ruling sends the case back to 1st District Court, where Gosch can now file a petition to appeal his conviction for manufacturing a controlled substance, possession of marijuana, and possession of marijuana with intent to deliver.
BOISE - A Kootenai County man has been cleared of three felony charges, after the Idaho Court of Appeals ruled a jury didn’t have sufficient evidence to conclude he had a gun when he angrily confronted friends of his ex-girlfriend in 2010 after vandalizing their home.
David Loren Curry was convicted of burglary, aggravated assault and unlawful possession of a firearm, with a sentence enhancement added for being a persistent violator; the burglary charge was based on the argument that he entered a garage with the intent of threatening the occupants with a deadly weapon.
A Kootenai County man has been cleared of three felony charges, after the Idaho Court of Appeals ruled a jury didn't have sufficient evidence to conclude he had a gun when he angrily confronted friends of his ex-girlfriend in 2010 after vandalizing their home. David Loren Curry was convicted of burglary, aggravated assault and unlawful possession of a firearm, with a sentence enhancement added for being a persistent violator; the burglary charge was based on the argument that he entered a garage with the intent of threatening the occupants with a deadly weapon.
The friends said Curry kept his hand in his pocket, and one said he saw him partly remove a black object that appeared to be the barrel of a gun. However, no proof was found that Curry actually had a gun, and he never threatened to shoot or said he was armed. Curry was separately convicted of malicious injury to property for the vandalism, which he admitted. He was represented in his appeal by the Boise law firm of Nevin, Benjamin, McKay & Bartlett. You can read my full story here at spokesman.com, and read the court's decision here.
The Idaho Court of Appeals has rejected an appeal from a Kootenai County man who said a state law removing his commercial driver's license for life after his second, off-the-job DUI constituted double jeopardy and excessive, cruel and unusual punishment. Steven Leslie Williams sued the Idaho Transportation Department, but 1st District Judge Lansing Haynes rejected his challenge of his lifetime suspension; a unanimous Court of Appeals upheld Haynes' decision.
Chief Judge David Gratton, writing for the court, found that the punishment wasn't excessive and it was related to legitimate legislative goals. “The reason for the deprivation is public safety, one of the legislature's highest priorities,” Gratton wrote. “Removing a problem driver from the roadways in order to protect public safety is rationally related to a lifetime CDL disqualification for driving offenses occurring while driving a non-commercial vehicle.”
Noted Gratton, “Williams chose to drive while impaired, endangering the public on two separate occasions. If Williams wanted to retain his CDL, he could have abided by the conditions placed on his CDL.” The court also noted in a footnote that state regulations allow the Idaho Transportation Department to reinstate a lifetime suspension after 10 years, if the driver has successfully completed a state-approved rehabilitation program. You can read the court decision here.
A recalcitrant drunken driver must pay $68 to replace pants that a Boise police officer ripped during a foot chase, the AP reports, but the Idaho Court of Appeals ruled the man doesn't have to fork over another $1,089 for damage to a patrol car that hit and killed his dog during the 2010 incident, for which he pleaded guilty and was sent to prison for up to 15 years. Click below for a full report from AP reporter John Miller; you can read the Court of Appeals decision here.
A Boise man has failed to convince Idaho's Court of Appeals that he can't be prosecuted for marijuana possession because he used the weed as a religious sacrament after Idaho lawmakers in 2000 voted to elevate religious rights over all other rights in the state's “Free Exercise of Religion” act. That law, pushed by then-Idaho pastor Bryan Fischer, an outspoken Christian conservative who a year later was named chaplain of the Idaho Senate, and passed over the objections of nearly all the state's mainstream churches, promised attorney fees and costs to anyone who wins a case under it claiming the government violated their religious rights.
Cary William White was arrested for marijuana possession and drug paraphernalia after a traffic stop in 2007, and he appealed his case to the state Court of Appeals, saying his religion, including a mix of Christianity, Rastafarianism, and various other beliefs, was behind his marijuana use. “The sacrament of Marijuana is a gift from my creator and I enter into the experience of Marijuana with the intent to bless it,” White said in court documents.
He said he had been smoking marijuana for seven years after trying it as a natural pain reliever after a fall from a ladder, and he found it to be a “spiritual experience” that “drew me into a whole different mode of prayer.” He also told a lower court that marijuana calmed his mind and that he used it as an exercise of his belief that he should have the freedom to engage in such actions.
Idaho's Court of Appeals judges, in a unanimous decision authored by Judge Sergio Gutierrez, tossed out White's appeal. “While White may have testified in a manner to link his marijuana use to legitimate religious beliefs and practices, this was more of an instance where he has utilized parts of various recognized religions 'to meld into a justification for his use of marijuana' and did not … establish a link between any recognized religious beliefs he may have and his marijuana use,” the court wrote. The judges also pointed to a 1995 federal court case that warned that religious freedom laws could become “the first refuge of scoundrels if defendants could justify illegal conduct simply by crying 'religion.'”
The Idaho Court of Appeals has upheld a 2009 warrantless search of an 18-year-old high school student's car in a school parking area, which turned up a marijuana pipe and brass knuckles and led to misdemeanor drug and weapon charges, because the student, Joseph Voss, was at school smelling of cigarette smoke and tobacco products are banned on school grounds. The court rejected an appeal arguing that because Voss was legally of age to buy tobacco products, the search was flawed.
“There is no question that the assistant principal had reasonable suspicion that Voss was violating the school policy,” wrote appeals court Judge Sergio Gutierrez for a unanimous court. “Voss was on school grounds, smelled of cigarettes, and had driven his car to school that morning. As Voss did not have cigarettes on his person, an obvious and customary place to also look was Voss’s vehicle.” You can read the decision here; click below for a full report from AP reporter Rebecca Boone.
Idaho’s Court of Appeals has rejected an appeal from an Ada County man, William Howard Locke, who challenged his felony prosecution for a third DUI because his third offense actually occurred after the one for which he was hit with the enhanced penalty. But it was his third conviction - he was first convicted of his first DUI, then convicted of the third offense, then convicted of the second. “Idaho Code … makes a third DUI conviction within ten years a felony, regardless of the sequence of arrests,” Judge David Gratton wrote for a unanimous court.