So now that I have a few down days to spare I went looking for some info on the goings on of the Deskins Case out of Stevens County.
Here is what I know so far:
My records request has been ignored but just to be smart asses they sent ONE record for a police call made to the property in Nov of last year, but NOTHING I actually asked for. The “Information Officer is Lloyd Nickels who is also a Stevens County prosecutor & I did speak to him, mostly he spoke to me, trying to justify everything that happened, further slandering Ms Deskins & defending all of their actions.
I will be contacting a few agencies here soon to get the records I requested or I will be getting the attorney who “handles” them up there (Another woman who won’t back down & talks back to them) so we can get the records, reports & so-called evidence they have.
There is a distinct pattern with these “Animal Abuse-Cruely-Neglect cases, it is the same in either or any cases. Unless you have enough money to hire someone like Adam Karp you are going to lose, you are going to lose everything.
Several things are going on, here. the most important thing is that Mr Rasmussen is up for re-election this year!!!! Which explains WHY they are stalling, & WHY the case, the briefs, or any of the information is not posted on line where it should be as it is a matter of public record. The case is in Division 3 of the Washington State Appellate court, I have REPEATEDLY asked them why it is not posted, I have called, I have emailed but nothing. So it seems like I will have to post it myself. Please keep in mind I had to retype it out myself so you don’t see the signatures on it. Since they won’t post the briefs on line, I’ll go find them & post them here as I find them. I also posted the docket down below so that you can see how much they are stalling everything…. Maybe we can get a calling email campaign so that they will post them on line as well. You HAVE to ask yourself why it isn’t posted, or rather why none of the briefs are posted. Makes you wonder why….
It should be noted that Stevens County SUSPENDED the enforcement of the animal codes they used to railroad Ms Deskins directly AFTER they convicted her!!! Title 20 I believe it was called.
CASEY’S BRIEF TO DIVISION 3
THE SENTENCING ORDER REQUIRING FORFEITURE OF ALL PETS AND LIVESTOCK IS OVERBROAD AND VOID DUE TO LACK OF STATUTORY AUTHORITY.
A court may impose only a sentence that is authorized by statute. State v. Paulson, 131 Wn. App. 579, 588, 128 P.3d (2006). “If the trial court exceeds its sentencing authority, its actiOns are void.” Paulson, 131 Wn. App. at 588.
As a condition of sentence, the district court ordered: “All pets or livestock, domestic or commercial at 5522 Wallbridge Rd. shall be forfeit to Stevens County Sheriff on 3/5/2010 except for proof of ownership by others.” App. B. at 3.
RCW 16.52.200(3) provides in relevant part:
“In addition to the penalties imposed by the court, the court shall order the forfeiture of all aniamls held by law enforcement or animal care and control authorities under the provisions of this chapter if any one of the animals involved dies as a result of the violation of this chapter or if the defendant has a prior conviction under this chapter. In other cases the court may enter an order requiring the owner to forfeit the animal if the court deems the animal’s treatment ot have been severe and likely to reoccur”.
When the meaning of a statute is clear on its face, the appellate court assumes the legislature means exactly what it says, giving criminal statutes literal and strict interpretation. State v. Delgado, 148 Wn.2d 723, 727, 63 P.3d 792 (2003). The plain terms of the statute limit forfeiture to “all animals by law enforcement or animal care and control authorities under the provisions of this chapter.” RCW 16.52.200(3).
Here, SpokAnimal initially held 39 dogs following their seizure from Deskins’ property in October 2008. 1RP 670, 715. Ms. Deskins had an animal rescue and sanctuary, and commercial ranch. Four dogs were returned to Deskins (and Mr. Benson) in November 2008. 1RP 725. 11 more dogs were returned in December 2008. 1RP 725.
Any forfeiture is limited to the dogs held by the animal care authorities. SpokAnimal never held Ms. Deskins’ livestock. Deskins owned horses, donkeys and llamas. 1RP 531-32, 689. Deskins has been in the commercial animal business since 1984, and her property is titled in agriculture. 1RP 825. The District Court lacked authority to order forfeiture of all livestock.
Moreover, the record shows Spokanimal returned 15 dogs to Deskins long before this case went to trial. 1RP 725 (14 months). Those dogs are not subject to forfeiture because their return to Deskins meant they did not continue to be held by the animal care authorities. Stevens County Prosecutors also had a Settlement Agreement on or about December 24, 2008 with Deskins to return her dogs to her. The Settlement Agreement was memorialized in writing between Lloyd Nickel of the Stevens County Prosecutors office, attorney Robert Caruso for Ms. Deskins and attorney Kim Kamel at Witherspoon Kelly for SpokAnimal(the parties). As a practical matter, the return of the dogs to Deskins by Stevens County and Spokanimal revealed that Ms. Deskins had adequately provided for the dogs in the first place that were impounded.
Even if the statute is ambiguous on this point, the rule of lenity applies in favor of Deskins. “Under the rule of lenity any ambiguity in the meaning of a criminal statute must be resolved in favor of the defendant”. In re Pers. Restraint of Hopkins, 137 Wn.2d 897, 901, 976 P.2d 616 (1999).
The superior court on appeal ruled “[t[he trial court’s forfeiture under RCW 16.52.200 was lawful as to all animals ‘held by law enforcement’ and as to any animal where ‘the animal’s treatment to have been serve [sic] and likely to reoccur.'” App. A at 6. The forfeiture order is not lawful as to any animal where the animal’s treatment is severe and likely to reoccur, because the district court entered no such Finding and did not justify the forfeiture order on this ground.
The superior court appeared to recognize forfeiture is otherwise limited to those animals held by SpokAnimal, but ruled “It is not clear from the record whether all animals seized came within RCW 16.52.200, this part of the sentence is remanded for clarification of the seizure.” App. A at 6.
The superior court erred in failing to outright reverse this illegal sentencing condition. The district court had no authority to order forfeiture of all livestock and of all pets that were not being held by animal control authorities. Contrary to the superior court’s ruling, the record is clear that those animals did not fall within the scope of RCW 16.52.200.
The breadth of the forfeiture order is without statutory authority and is void as a matter of law. Paulson, 131 Wn. App. at 588. Review is appropriate under RAP 2.3(d)(1), (d)(3) and (d)(4).
THE SENTENCING ORDER PROHIBITING OWNING, ACQUIRING OR LIVING WITH PETS AND LIVESTOCK DURING THE PROBATIONARY PERIOD (FOR TWO YEARS) IS OVERBROAD AND VOID DUE TO LACK OF STATUTORY AUTHORITY.
As a conditoin of the sentence, the district court ordered: “Do not own, acquire or live with pets or livestock during the probationary period” (for 2 yrs.). App. B. at 3. The trial court imposed this broad prohibition without statutory authority.
RCW 16.52.200(3) provides in relevant part “If forfeiture is ordered, the owner shall be prohibited from owning or caring for any similar animals for a period of time as follows: (a) Two years for a first conviction of animal cruelty in the second degree under RCW 16.52.207[.]” “Similar animal” means “an animal classified in the same genus.” RCW 16.52.011(2)(k).
The district court exceeded its statutory authority because the prohibition is limited to “similar animals” that were subject to forfeiture. As set forth in section E.3., supra, the only animals lawfully subject to forfeiture are the dogs held by Spokanimal (not the livestock). Dogs belong to the same genus “canis,” which includes wolve, jackals, and in older classifications, foxes. Webster’s Third New Int’l Dictionary 327 (1993). Livestock are not of the same genus and are thus not “similar” animals subject to prohibition under RCW 16.52.200(3). The district court’s order violates its mandate to give criminal statutes strict interpretation and not to enter an order that exceeds its statutory authority. Delgado, 148 Wn.2d at 727; Paulson, 131 Wn. App. at 588.
Furthermore, RCW 16.52.200(3) does not prohibit anyone convicted of Second Degree Animal cruelty from living with similar animals. IF FORFEITURE IS ORDERED, it only prohibits owning or caring for such animals under the statute. Deskins’ property encompasses approximately 4 farm acres. Another person lives on the property. 1RP 771. Deskins can live with similar animals on her property without owning or caring for them. The distict court exceeded its statutory authority in ordering otherwise. Any ambiguity on this point must be resolved in favor of Deskins under the rule of lenity. Hopkins, 137 Wn.2d at 901.
Deskins’ previous counsel did not challenge this aspect of the distict court’s sentence in superior court but erroneous sentences may be challenged for the first time on appeal. State v. Bahl, 164 Wn.2d 739, 744, 193 P.3d 678 (2008). When a sentence has been imposed for which there is no authority in law, appellate courts have the power and duty to correct the erroneous sentence upon its discovery. In re Pers. Restraint of Carle, 93 Wn.2d 31, 33-34, 604 P.2d 1293 (1980). Review is appropriate under RAP 2.3(d)(1), (d)(3) and (d)(4).
THE COURT LACKED STATUTORY AUTHORITY TO IMPOSE A $1,000 FINE UNDER COUNT 1.
Mr. Sjoegren is asking this court to sanction Ms. Deskins for an alleged probation violation by enforcing the fines imposed by the District Court. The district court imposed a $1,000 fine for count 1, suspended on the condition that Deskins comply with probation requirements. App. B at 1. RCW 16.52.165 unequivocally limits the fine for conviction under RCW 16.52.080 to $150.00. The error is obvious. Deskins’ previous counsel did not challenge this aspect of the district’s court sentence, but appellate courts have the duty to correct illegal sentences when they are discovered. Carle, 93 Wn.2d at 33-34. Review is appropriate under RAP 2.3(d)(1), (d)(3) and (d)(4) to correct this illegal sentencing condition.
OTHERS MAY OWN ANIMALS ON THE PROPERTY.
Although excessive and overbroad, the trial court’s 2/26/10 ruling indicated that others may possess animals while living on Deskins’ property. Although it is not proper that the trial court heard 3rd party claims regarding ownership of other animals on Ms. Deskins’ farm property in the context of a criminal proceeding, the court’s order is clear that the court was allowing ownership of animals by others who reside on Deskins’ property.
The district court order of 2/26/10, App. B at 2, ruled that, “Supervised probation to end upon completion of psychological counseling to treat mental health problems contributing to the violation Commission. Sub(7).
Ms. Deskins’ position is that she has completed a requirement of counseling. Probation Officer Mr. Robert Sjoegren has indicated that he doesn’t believe the counseling at Stevens County’s New Alliance Counseling met the probation requirement. Mr. Sjoegran apparently doesn’t approve of the New Alliance counseling staff counselors. It is not up to Mr. Sjoegren to pick and choose the mental health professionals Ms. Deskins chooses to see.
Finally, the state legislature has apparently just cut funding for supervised probation for certain types of lower level crimes. The misdemeanor counts against Ms. Deskins fall into this category. For this reason, and the above referenced, Ms. Deskins requests that this court enter an order that Ms. Deskins is no longer required to have any supervised probation and/or required to continually appear before this court. Colville is 70 miles from Ms. Deskins’ home. Ms. Deskins attended counseling sessions for some 8 months. Her medical insurance does not pay for court-ordered counseling and Ms. Deskins cannot afford further out of pocket expenses. Moreover, there has been no diagnosis of Ms. Deskins other than for depression. She has been compelled to attend hearings in Colville no less than three times to date for alleged violations of the terms of her probation. Ms. Deskins is recoverying from Open Heart Surgery and must now also have other surgeries.
There appears to be no legitimate reason to continue putting Ms. Deskins through hearings on probation violations, and particularly in view of the budgetary constraints imposed on Stevens County by the state.
Appellate Court Case Summary
Case Number: 295320
Filing Date: 11-12-2010
Coa, Division Iii
|Event Date||Event Description||Action|
|11-12-10||Notice of Discretionary Review||Filed|
|11-15-10||Affidavit of Service||Filed|
|12-02-10||Case Received and Pending||Status Changed|
|12-06-10||Letter||Sent by Court|
|12-07-10||Telephone Call||Received by Court|
|12-08-10||Notice of Cross Review||Filed|
|12-09-10||Order of Indigency in Superior Court||Filed|
|12-13-10||Letter||Sent by Court|
|12-16-10||Motion for Stay||Filed|
|12-21-10||Motion to Extend Time to File||Filed|
|12-22-10||Letter||Sent by Court|
|12-22-10||Ruling on Motions||Filed|
|12-29-10||Indigent Defense Counsel Assigned||Information – not filed|
|01-05-11||Telephone Call||Received by Court|
|01-21-11||Motion to Extend Time to File||Filed|
|01-24-11||Ruling on Motions||Filed|
|01-25-11||Letter||Sent by Court|
|01-26-11||Motion for Withdrawal of Counsel||Filed|
|02-02-11||Letter||Received by Court|
|02-10-11||Ruling on Motions||Filed|
|02-14-11||Motion for Withdrawal of Counsel||Filed|
|02-14-11||Letter||Sent by Court|
|02-18-11||Motion to Extend Time to File||Filed|
|02-22-11||Letter||Sent by Court|
|02-22-11||Ruling on Motions||Filed|
|02-25-11||Ruling on Motions||Filed|
|03-01-11||Letter||Sent by Court|
|03-01-11||Indigent Defense Counsel Assigned||Information – not filed|
|03-21-11||D/r Supr Decision on Rvw Frm Crt Lim Jrd||Filed|
|03-22-11||Letter||Sent by Court|
|04-07-11||Statement of Arrangements||Filed|
|04-07-11||Motion to Extend Time to File||Filed|
|04-07-11||Ruling on Motions||Filed|
|04-12-11||Letter||Sent by Court|
|05-05-11||Report of Proceedings||Filed|
|05-05-11||Letter||Received by Court|
|05-06-11||Motion to Extend Time to File||Filed|
|05-09-11||Ruling on Motions||Filed|
|05-10-11||Letter||Sent by Court|
|05-16-11||D/r Supr Decision on Rvw Frm Crt Lim Jrd||Filed|
|05-16-11||Motion for Waiver of Page Limitation||Filed|
|05-16-11||Set for Motion Calendar||Status Changed|
|05-16-11||Oral Argument Setting Letter||Sent by Court|
|05-16-11||Report of Proceedings||Received by Court|
|05-18-11||Letter||Sent by Court|
|05-18-11||Ruling on Motions||Filed|
|06-08-11||Response to Motion for Discretionary Review||Not filed|
|06-09-11||Response to Motion for Discretionary Review||Filed|
|06-15-11||Motion Heard||Status Changed|
|06-15-11||Motion Heard||Status Changed|
|07-08-11||Case Received and Pending||Status Changed|
|07-08-11||Ruling on Motions||Filed|
|07-08-11||Perfection Letter||Sent by Court|
|08-08-11||Designation of Clerks Papers||Filed|
|08-08-11||Statement of Arrangements||Filed|
|08-15-11||Motion for Accelerated Review (adult)||Filed|
|08-17-11||Letter||Sent by Court|
|08-26-11||Response to motion||Filed|
|08-29-11||Set for Motion Calendar||Status Changed|
|08-29-11||Report of Proceedings||Filed|
|08-29-11||Oral Argument Setting Letter||Sent by Court|
|08-29-11||Filing of VRP by Crt Reporter||Filed|
|09-08-11||Report of Proceedings||Received by Court|
|09-21-11||Record Ready||Status Changed|
|09-21-11||Affidavit – Other||Received by Court|
|09-22-11||Letter||Sent by Court|
|09-22-11||Ruling on Motions||Filed|
|10-24-11||Motion to Modify Ruling||Filed|
|11-04-11||Letter||Sent by Court|
|11-14-11||Answer to motion||Filed|
|11-16-11||Motion to Extend Time to File||Filed|
|11-16-11||Ruling on Motions||Filed|
|11-17-11||Letter||Sent by Court|
|11-22-11||Reply to Response||Filed|
|12-01-11||Order on Motions||Filed|
|12-01-11||Letter||Sent by Court|
|12-20-11||Motion to Extend Time to File||Filed|
|12-21-11||Ruling on Motions||Filed|
|12-22-11||Letter||Sent by Court|
|01-12-12||Clerk’s Notice to Crim App Re Statement||Sent by Court|
|01-12-12||Telephone Call||Sent by Court|
|02-13-12||Statement of Additional Grounds for Review||Due|