By Andrew Delaney
This case is a little odd. Basically, defendant pled guilty to a charge of lewd and lascivious conduct with a child (defendant’s younger sister), there was a presentence investigation, a psychosexual evaluation, and a sentencing-hearing meeting between the judge and the victim (who was sixteen years old at the time of sentencing) without the State or the defense present.
At sentencing, the defense sought testimony from victim, and suggested the trial judge meet privately with her. The State objected to such a meeting, though it agreed “to allow the victim to express her preference [as to testifying] to the Court outside the presence of counsel.” The judge asked if anyone “would object to my meeting briefly with [the victim] to find out exactly what her comfort level is,” and the State said it had no objection.
A record was kept of the meeting, and the victim read a prepared statement saying she didn’t want her brother to go to jail, and that she wanted him to get long-term treatment and counseling. The judge and the victim discussed sentencing principles in general, and the judge offered victim a mixture of advice and sympathy.
Afterward, the trial judge sentenced defendant to a mostly suspended sentence. “In describing the basis for the sentence, the court recognized the concern and support that the victim had expressed for her brother.”
The State didn’t like that very much and filed a petition for extraordinary relief. No kidding. Last time I checked, a guilty plea goes in a prosecutor’s “W” column. But let’s go with it. First, the State argues that the court shouldn’t have met with victim in chambers; second, the state argues that the trial court doesn’t get to impose a suspended sentence when there are sentencing minimums.
The SCOV isn’t swayed by either argument. First, the SCOV looks at the meeting-in-chambers issue, noting that the State doesn’t have a right to direct appeal. This ain’t extraordinary opines the SCOV. Here the State complains, more or less, that the judge talked to the victim in a broader scope than the State agreed to. The SCOV places the scope of the conversation with the judge’s discretion, and reasons there was no abuse of that discretion. The SCOV reasons that “the record ‘is conspicuously unsupportive of an extraordinary remedy.’”
Next the SCOV deals with the suspended-sentence gripe. Here, the State argues that the sentence is illegal because it doesn’t include at least two years of jail and the statute says “imprisoned not less than two years.” The appropriate remedy for an illegal sentence is a petition for extraordinary relief.
The SCOV reasons that the mandatory minimum provision here doesn’t preclude suspension of part of the minimum. Another subsection of the statute—for second and third offenses—does in fact prohibit suspension of any part of the minimum sentence. And that means . . . .
That’s right! It’s time for fun-Latin-phrase lessons. Here, the SCOV follows the principle embodied in the time-honored phrase expressio unius est exclusio alterius. What does that mean? It means, more or less, the expression of one thing is the exclusion of another. And that’s the reasoning here: the legislature included a no-probation-no-suspension provision in for later offenses, and that means it intended to give sentencing courts discretion in first offenses. The SCOV notes, “The legislative decision to allow the trial judge discretion to suspend part or all of the mandatory minimum is consistent with common sense.”
Alas, if only all laws were “consistent with common sense” . . . . Well, then I’d probably be out of a job. But it’s a nice thought.