TRAINING UPDATE 11-11 via: Hon. Alan F. Pendleton, Anoka County District Court, Anoka, Mn 55303; 763-422-7309
QUESTION: What Are the Most Common Judicial Triggers for Appeals and Remands? Do you ever wonder what your colleagues around the state are doing (or not doing) that tend to statistically trigger appeals and remands? Regardless of merit, certain judicial actions carry a high probability of triggering an appeal, a remand, or both. For Example:
The Most Common Judicial Appeal Triggers Broken Down Into Two Categories: AFFIRMATIVE JUDICIAL ACTS: 2 PRIMARY TRIGGERS:
1) SUMMARY JUDGMENT: Making findings of fact on disputed material issues on Summary Judgment. This also includes resolving credibility questions, drawing inferences, and assessing the weight of the evidence. These are all matters for the trier of fact and should not be addressed by the Court on Summary Judgment. See M.R.Civ.P. 56;
2) PLEA NEGOTIATIONS: Excessive Involvement In Criminal Plea Negotiations. a) Appellate courts recognize that judges have a delicate role in plea negotiations and necessarily play a part in any negotiated guilty plea. However, there are two basic guidelines that control the extent of Court involvement: i) The Court’s role in plea negotiations is not to “usurp the responsibility of counsel or become excessively involved in plea negotiations.” Anytime the Court improperly injects itself into plea negotiations the guilty plea is per se invalid. ii) The Court may not offer or promise the defendant an anticipated sentence that is not part of an existing agreement between the defendant and the prosecutor. State v. Anyanwu, 681 N.W.2d 411 (Minn. App. 2004); State v. Melde, A09-1050, Minn.Ct.App. Feb 22, 201 MINNESOTA JUDICIAL TRAINING UPDATE APPEALS & REMANDS – 10 COMMON TRIGGERS June 9, 2011 TRAINING UPDATE 11-11 Hon. Alan F. Pendleton, Anoka County District Court, Anoka, Mn 55303; 763-422-7309 JUDICIAL OMISSIONS: 8 PRIMARY TRIGGERS:
3) MOTIONS AND ARGUMENTS: FAILURE TO ACKNOWLEDGE AND DECIDE ALL ISSUES RAISED IN MOTIONS AND ARGUMENTS. If you choose NOT to decide an issue you should, at a minimum, provide an explanation (even a brief one) as to why the matter is not being decided, or need not be decided (e.g., some other issue in the case is fully dispositive of the action). For example: a) State v. Jones, 772 N.W.2d 496, 508 (Minn. 2009) Noting that defendant’s application for counsel was denied, but there were neither findings nor any explanation on the record as to the “reasons for denying the application,” which made it “impossible to apply an abuse-of-discretion standard of review of the Court’s denial.” b) In re Estate of Eckley, 780 N.W.2d 407, 414-15 (Minn. App. 2010) Case remanded because Judge failed to consider specific arguments clearly made by the parties. c) State v. Stanke, 764 N.W.2d 824, 828 (Minn. 2009) Failure to address severe aggravating factors in sentencing ordinarily results in a remand to the District Court.
4) FAILURE TO MAKE SPECIFIC ESSENTIAL FINDINGS OF FACT: a) This problem recurs with the Austin factors in probation revocations, attorneys’ fees, juvenile and TPR cases, civil commitments, marriage dissolution and child custody matters.
5) FAILURE TO RESOLVE CREDIBILITY CONFLICTS IN EVIDENCE AFTER A TRIAL: a) Avoid “findings” that simply describe what the conflicting testimony was without resolving the conflict. b) The Court may make specific credibility findings (although these are not required), or it may simply indicate which version it found persuasive. No special wording is required as long as the Court can get beyond the descriptive and into the evaluative. June 9, 2011 TRAINING UPDATE 11-11 Hon. Alan F. Pendleton, Anoka County District Court, Anoka, Mn 55303; 763-422-7309
6) LOTHENBACH TRIALS AND STIPULATED CRIMINAL COURT TRIALS: Failure to obtain Defendant’s personal waiver of the right to a jury trial and all other trial rights under Minn. R. Crim. P. 26.01, subds. 3 and 4.
7) CRIMINAL TRIALS IN GENERAL: Failure to obtain Defendant’s personal waiver of jury trial (for court trials), the right to counsel (for pro-se defendants), and the right not to testify (for any trial where defendant decides to testify).
8) RULE 15 GUILTY-PLEA ADVISORY: Failure to follow the requirements of guiltyplea advisories under Rule 15.01 (felonies and gross misdemeanors) and Rule 15.02 (misdemeanors).
9) SPREIGL (Bad Acts) AND JONES (Impeachment) FACTORS – FINDINGS: Failure to make specific “findings” to support your ruling. Although there is no absolute requirement that specific “findings” be made on these issues, at least some disclosure that the court has considered and weighed the components of those issues would help obviate appeals. However, making specific “findings” is recommended as a Judicial Best Practice.
10) SENTENCING: Failure to be specific at sentencing and, in the judgment of conviction, as to the disposition of counts in which no sentence is imposed. NOTE: Paying particular attention to the 10 Judicial Triggers identified above could substantially reduce the risk of appeal or remand in your cases. Although avoiding these 10 Judicial Triggers are ultimately the responsibility of the trial judge, you are encouraged to enlist the aid of competent counsel in ensuring that “all bases are covered.” SOURCE: This update is based on and contains excerpts from an article written by Justice Gordon Shumaker, Minnesota Court of Appeals, entitled: “Appeal-Triggers and Remand Issues: A List
via: Hon. Alan F. Pendleton, Anoka County District Court, Anoka, Mn 55303; 763-422-7309
View PDF: https://blogpendleton.files.wordpress.com/2014/06/pendleton11-11-appeals_and_remands.pdf
million in funeral costs, filed by victims of a Detroit-area doctor who committed fraud by putting hundreds of patients through needless cancer treatments.
Reblogged this on .
If she is being charged with assault in the third degree, shouldn’t it be assault assault assault?
What the hell is assault assault?
None of the patients complained to the actual dentist of the pain and infections? None of the patients asked the actual dentist for a prescription for antibiotics or pain meds? This should have given him a clue as to what was going on. How many procedures, over how long of a period of time? Also, what’s with the charge of attempted grand larceny? I’m assuming that she was pocketing the money from these procedures, so shouldn’t that just be a charge of grand larceny, not attempted grand larceny? Maybe she was giving the patients time to pay and hadn’t yet received enough payments justifying a grand larceny charge, which might explain the attempted grand larceny. While the authorities are at it, they should throw in an attempted dye job; this one’s a disaster and criminal.🙂
Never have someone named Valbona perform a root canal. It’s never a good idea. 🙂
This was obviously a case of the office manager in collusion with the patients. Unless, of course, the dentist was in on it. If you go to a dentist and have work done, even if the person working on you is masquerading as a dentist, you need to be registered in the office books. There has to be a record of funds transferred. There has to be some sort of formality. Unless the dentist was in on it, the work was done off the books.
For the office manager to get away with this, without her boss’s knowledge, the patient was most likely offered a ‘deal’. Caveat Emptor.
During my career as an Architect I often ran across ‘bottom feeders’. These people wanted to pay ‘next to nothing’ for services and then go on into construction ‘stepping on’ all the contractors. First they got the plans approved and then had them bid. Then they took out a building loan. Then they took the lowest bid-sometimes unreasonably low. Then into the work after the loan had started and interest was ticking along, they got into a disagreement with the general contractor as he tried to make a square peg fit a round hole. The job stopped. The contractor sued. The interest kept ticking along. And everyone got screwed.
‘Bottom feeding’ is a crapshoot and all those involved get what they deserve. If one does get away with a Mercedes for the price of a Corolla then good for them. But if not, take your licks and use a real dentist the next time.
The woman should be charged with fraud but probably not for assault and civil penalties.
Of course the real dentist will be sued. He has insurance! Geez.
isaac
You make the giant leap that the patients were somehow aware that the person, dressed, presumably, in scrubs, was not a dentist herself. As a patient, I would have no idea that the person, standing over me, was not qualified to perform the procedures. When I go to have my teeth cleaned, for example, I just assume that the dental hygienist, or the person claiming to be that, is actually a dental hygienist and not a waitress from the restaurant down the street. I do not ask to see her diplomas or certificates as she lowers my chair and begins to clean my teeth. Do you? I am going to assume that no reasonable and sane person is going to allow an unqualified and unlicensed individual to perform invasive and dangerous oral surgery. Please, no examples of oddballs knowingly allowing medical work to be performed by unlicensed criminals, since those would be the exception, not the rule. Assuming that these patients had knowledge that she wasn’t, in fact, a dentist is not indicated by the few facts presented here. If the patients were paying, in cash, this woman could have given them a receipt and sent them on their way. Many people do not have dental insurance, so paying out of pocket is not unusual and sidesteps the involvement of any insurance companies. These patients weren’t going to some back alley to have dental work performed; they were going, to what they assumed, was a legitimate dental practice. Blaming the victims here, as you have, is surprising, even coming from you
bam bam – I am one of those who checks out the diplomas on the walls.
going to, what they assumed, was a dental. . .
Paul C
Since the diplomas have no photos, do you know, with any degree of certainty, to whom they were actually issued? They may be hanging on the walls of the dental office, but I have no idea to whom they belong. It’s not like seeing a diploma and bar license on the wall behind your attorney: you know his name and his identity. I couldn’t tell you the names of the multiple people in these dental offices. Most of us just rely on blind trust that the people in these offices are what they say they are. We do that, I suppose, based upon our trust in the dentist, figuring that he/she would not allow an unqualified person to perform any unauthorized tasks. The same applies to hospital settings. Do you know, with any degree of certainty, that the people marching in and out of your hospital room have the proper credentials? Of course not. You depend upon the hospital and its integrity to hire properly trained employees.
bam bam – you are absolutely correct. I had a friend who had a beautiful ASU Ph.D. diploma on his wall. It was fake. 🙂
Bam bam
First, read more carefully. The conditions of the dentist’s involvement or negligence brings the dentist into the picture. If the dentist is unaware of the scam and one goes to a dentist’s office and pays in cash, gets no receipt/ie no office record, has the person who greets them do the work, and cannot tell the difference between an office manager and a dentist/doctor, then maybe, just maybe, the patient’s radar was turned off at the invitation to ‘save some money’.
If the dentist is out of the picture, the office manager had to set up a scenario to keep this stuff under the radar. Perhaps it all went on with the total innocence of the patients, perhaps not. There is not enough info here to ascertain.
I have never been in a dentist’s office, even a clinic, where I could not tell the difference between the ‘dentist’ and the rest of the people who work there.
My observation brought in human nature. Regardless of assumptions, good old human nature is often involved. Of course the office manager will take the hit unless the dentist can be proven involved. The insurance company is typically not liable when fraud and/or negligence is involved. That is to say, if it can be proven that you burned down your own house, you probably won’t get any money to rebuild from the insurance company.
isaac
The first line of your comment was that obviously the patients and this woman were in collusion. Do you recall writing that? Trust me, I have no trouble reading or comprehending. There is no obvious collusion here, given the facts that were presented. I don’t immediately assume that victims of a crime and the perpetrator of the harm are in collusion. My first instinct would be to view them as victims, especially seeing the charges that are leveled against the woman. Again, more facts will surface. Blaming the victims, by stating that they should take their licks and go to a real dentist next time, as you stated (do you remember?) is unfair. These people did go to a real dentist, and this woman, working there, held herself out to be a real dentist. It is also relevant, in my opinion, to note that this occurred in the Bronx. It’s significant because this location would, probably, attract local residents, many of whom are poor and/or immigrants. They may not notice the same red flags that others, who are far more educated or sophisticated, would in this situation. I don’t believe that members of that community would think about asking to see credentials first. Not a slam, just a thought. I could also see them paying in cash as normal behavior, so the transactions would again not trigger a red flag to the patients. You do know that cash receipt books may be purchased from your local office supply, don’t you? Stating that they basically got was coming to them is, as I stated, blaming the victims. For shame.
issac
By the way, if the dentist, himself, had personal knowledge, he should be charged, as well. He still has liability, in my opinion, even if he didn’t know, since the work was performed in his office. It’s the difference between criminal and civil liability.
Hmmm. Well, at least she deserves an Irish Poem for being nervy!
Valbona Dentata???
An Irish Poem by Squeeky Fromm
To all of the fears in our crania,
Add the “unlicensed quack from Albania”
‘Cause this Dental Plan- – –
Shades of Marathon Man!
Is enough to induce a new mania!
Squeeky Fromm
Girl Reporter
Note 1: Marathon Man was a movie about oral hygiene and stuff:
Note 2: The title is a word play on vagina dentata, a well described phobia, with some basis in reality. As wiki notes:
(PS: I just bet that no other legal blog is having a discussion today about this fascinating topic!)
Squeaky
You are always so funny and clever!
[…] http://jonathanturley.org/2015/04/17/new-york-police-arrest-office-manager-who-allegedly-pretends-to…; […]
I have no opinion…I pretty much hate all dentists…except for the oral surgeons who helped put my head back together in an Army Evac hospital long ago.
That is really funny Squeaky. I can’t imagine what kind of psycho would go in and beat on someone’s mouth but an oral sadist? Wat do you think Paul and Pogo? Oral Sadism anyone? 😉
@bam bam and happypappies
Thank you!!! I am glad you enjoyed it! Here is a really good link I discovered on the topic.
Squeeky Fromm
Girl Reporter
Valbona may not have been as funny, but this is a great scene from the Carol Burnett show.