My egregious faux pas last week - in which I goofed on the effects of a no-contest plea - is still a hot topic; even our soon-to-be Supreme Leader chimed in with a 4:00 AM tweet, "@russbensing screws up again. Sad! @realDonaldTrump will make #thebriefcase great again!" Let's hope he saves me further embarrassment by not mentioning this in his inaugural speech, instead continuing to lambaste Rep. John Lewis, the civil rights icon whose participation in the March on Selma resulted in a skull fracture from a police beating, as "all talk and no action."
What's dumber? Leaving open the door of the warehouse where you've got a marijuana grow operation, or dealing drugs from the house across from a police station? In this week's version of Stupid Criminal Tricks, the contestants are the defendants in State v. Lunder and State v. Ledbetter, respectively. We also learn what trial court and appellate courts can't do, and what attorneys should do.
So here's the deal. I'm in Fire Drill Mode. I've got a reply brief due in the 5th District yesterday. "Yesterday, Russ? You mean you've got to not only finish the brief, but drive it down to Canton, Mansfield, or wherever to file it?"
Let me feed you, baby birds. If you're doing an out-of-district appeal, know the following provision of App.R. 13(A), and know it in your soul:
Documents required or permitted to be filed in a court of appeals shall be filed with the clerk. Filing may be accomplished by mail addressed to the clerk, but filing shall not be timely unless the documents are received by the clerk within the time fixed for filing, except that briefs shall be deemed filed on the day of mailing.
So all I have to do is make sure it gets in the mail by the end of the day. That's still a somewhat daunting task, considering that I have the brief only half-written, in keeping with the guiding principle of my life: "If it weren't for the last minute, I wouldn't get anything done."
So do I devote every moment to the completion of the brief? No; I instead decide to complete the blog post I'd mostly done the night before (when I also could have been working on the brief), on the tactical and strategic questions raised by the recent Supreme Court case of State v. Gonzalez. That case requires the state to present evidence of the purity of cocaine in order to convict someone of more than a fifth degree felony trafficking or possession charge for cocaine.
And in which I wrote the following:
So what are your strategic options? One is to plead no contest, and if the State doesn't come up with a weight, your client walks away with a 5th degree felony. And keep in mind that guilt is determined at the time of the plea, not the time of the sentencing; if the State doesn't have proof of weight by the time of the plea, you're home free.
The first sign of trouble emerged just after noon yesterday, with a terse email from one of my numberless horde of loyal readers:
Did you just whiff on the effect of a NC plea?
Long story short, oh, yes, I did. Majorly. A no contest plea admits the allegations of the indictment. If the indictment alleges that you possessed more than 100 grams of cocaine, the State doesn't have to prove weight, it doesn't have to prove purity, it doesn't have to prove squat. You've just admitted that you possessed more than 100 grams of cocaine.
I'm tempted to blame it on the drugs I'd taken and the noise in the strip club when I wrote the post, but that would require you, faithful reader, to wholly suspend belief and imagine that I lead a far more exciting life than the facts of my baneful existence would support. I did attend a party for a friend last night, and my parting words were, "I have to go home and feed my cats, and yes, I know that sounds like a cry for help."
So anyway, I made a mistake, and a biggie. On the plus side, it's the only mistake I've made. I thought I did one other time, but I was wrong.
As a result of the blog and some other stuff, I've pretty much become the Answer Grape for criminal lawyers up here. It's rare that I'll go over to the Justice Center and not have somebody ask me a question like, "I had a client plead out to an MDO for cocaine a couple years back. Does Gonzalez affect that?" or "We're up for a sentencing on a mandatory bindover. Does Aalim mean we have to go back to juvy right away, or can we do the sentencing and then just send it back for the amenability hearing?" or "Does Creech mean I can keep out my client's prior DV?" or "Gee, Russ, didn't they have a suit in your size?" It's cool being regarded as an actual authority. At least, people now know that I'm not just another pretty face.
The Ohio Supreme Court came down with some major decisions at the end of last month. Although I wrote about each of them, I want to take a more extensive look. We'll start with State v. Gonzalez.
For those of you who bought "Garland's My Guy" t-shirts as a way of showing support for beleaguered Supreme Court nominee Merrick Garland, you can put them away. Garland's nomination expired last Tuesday, the final day of the 114th Congress. Attention has now turned to the possible picks by Twitterer-in-Chief Donald Trump, with William Pryor, currently a judge on the 11th Circuit, gaining most prominent mention. During Clarence Thomas' confirmation hearings, he professed never to have even discussed Roe v. Wade, which, if true, made him the only person in the country who hadn't done so. Pryor will not be able to so deftly avoid that question: he's labeled Roe "the worst abomination in the history of constitutional law," and said the he "will never forget January 22, 1973, the day seven members of our highest court ripped up the Constitution."
Perhaps in recovery mode from witnessing the debacle of Ohio State's performance in the Fiesta Bowl or the debacle Mariah Carey's performance on New Year's Eve, the 8th can muster the energy to produce only four criminal decisions last week. Three of them involve sentencing issues. Not surprising; when 95% of cases are resolved by pleas, you're stuck with either plea or sentencing issues, usually the latter.
First up is State v. Kibble. Here's a helpful hint when reading appellate decisions. When the first paragraph tells you that the only relief granted the defendant is a remand "for a nunc pro tunc entry reflecting that Count 65 merged at sentencing with Count 64," it's a good bet that the major damage was inflicted in Counts 1 through 63.
Two weeks ago, in State v. Walker, which I discussed yesterday, the Supreme Court clarified what proof was necessary to establish prior calculation and design in an aggravated murder case. If you're representing someone charged with aggravated murder under the prior calc theory, you'll definitely want to look at that for possible Rule 29 arguments, or modifications to your jury instructions. And if you're handling the appeal of someone who was convicted of aggravated murder on a prior calc theory, you'll want to incorporate Walker into your argument.
But let's say you're a defendant who was convicted of aggravated murder in 2012, and you look at Walker and say, "That's virtually the same fact pattern as happened in my case!" What can you do about it?
Nothing. For the most part, decisions of the Supreme Court (or of a court of appeals in that court's jurisdiction), apply only to cases pending for trial or on direct appeal.
Another might have been provided by last summer's decision in State v. Thomas.
In the past couple years, the 8th District has reversed six aggravated murder convictions, reducing them to murder the evidence of prior calculation and design was insufficient.
The prosecutors' office here went nuts. They took every single case to the Supreme Court, the Memorandums in Support of Jurisdiction becoming increasingly strident as they cast the 8th District as having gone rogue.
Not that the State's caterwauling was without merit. One of the six cases was mine. My explanation for my victory is this: There are 221 possible combinations of judges for a panel in the 8th. I lose that case in 185.
Things finally came to a head: the Supreme Court accepted two cases, Shabazz and Walker.
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