August 2006 Archives
I had a case recently of a young lady swept up in a drug raid. She was an innocent bystander, for all intents and purposes, assuming that label can be applied to someone who sits in a room with a plateful of crack on the dresser. She was only charged with possession, though, and the prosecutor agreed to place her in the Early Intervention Progam. As most criminal lawyers know, if you enter the EIP, you have to plead guilty (which we did a couple weeks ago), but she's then placed on the equivalent of probation for a year, and if she completes it successfully, the charges are dropped; she winds up without a record.
Yesterday I got a call from the judge on her case. Seems the main defendant is on trial, and the state wants to call my client as a witness. She wanted to talk to me before she testified. The judge recessed the trial, and I went down this morning to talk to her. For a variety of reasons, she wanted to take the Fifth Amendment.
The first question is, can she do that? After all, she'd already pled guilty. Turns out that doesn't eliminate her Fifth Amendment rights; the US Supreme Court decided as much back in 1999, and the 8th District, in State v. Hobbs, cited the case and held the same way: "A defendant retains the right to invoke his Fifth Amendment privilege against compelled self-incrimination when he has pled guilty but sentence is yet to be imposed."
That's not all I learned, though. When I mentioned to the prosecutor that my client wanted to take the 5th, he told me that if she did, she could say goodbye to EIP. Seems that the program is run by the prosecutor's office, and they hold the keys: if they want to bounce someone for "failure to cooperate," they can.
There's an alternative to EIP which produces the same result -- no criminal record -- called treatment in lieu of conviction, under RC 2951.041. Check the statute: there's a few more hoops to go through, but it's not an arduous undertaking, and if you're facing a multiple-defendant case where your client may be called on to testify, it's something to keep in the back of your mind. One other thing: while EIP applies only to drug cases, the prosecutor's office also runs a diversion program for first-time offenders, which applies to a much broader range of offenses, excluding mostly only violent and sex offenses. In that program, though, the defendant has to fill out a 497-page questionnaire -- okay, that's an exaggeration, but only a slight one -- in which one of the things he does is agree to waive all his constitutional rights. This kind of situation isn't going to occur there.
This is going to be my last post for the week. The new web site is going up later this week, plus I have The Move to deal with. (I'll be without Internet service on Friday, which should be somewhat similar to heroin withdrawal.) One of the changes I'll be making in the site is what you see above: descriptive titles to the threads instead of just the date. The last five or six post titles will be linked in the sidebar, so if you stop in only a few times a week, you can click on something you find interesting without having to page down.
I'll be back next week, with some posts on whether proportionate sentencing survives Foster, why appointed defense lawyers in Cleveland are underpaid (like you need me to tell you that), and other stuff that strikes my fancy. See you then.
Short note today, since I'm packing boxes in preparation for the office move this weekend. The very first post I did here was about arbitration clauses in consumer contracts, and I followed up the subject with another one here. For the most part, the decisions out of our court have been quite favorable to consumers.
Not so much this time, in last week's case, Handler v. Southerland Custom Bldrs., where a homeowner had sued the builder, and the builder had asked to stay proceedings and submit the case to arbitration, as the contract specified. The court overruled the motion to stay without a hearing, but the court reversed, finding that there was no evidence in the record to support a finding of either substantive or procedural unconscionability, which the decisions I talked about before require.
It's hard to quibble with the decision; this wasn't a normal consumer contract, and there's reason to believe that the homeowners might have been able to modify it or even get rid of it if they'd asked. The biggest problem was that there was absolutely no record, other than the documents themselves, to argue from. A better course of action for plaintiff's counsel might have been to request a hearing in the trial court, at which point he could presented evidence supporting a finding of unconscionability. Then again, there might not have been much there.
And with that, back to the boxes.
Interesting. Last Wednesday, I wrote a post about a sentencing decision out of the 10th District, in which the court had affirmed a sentence where the defendant's only objection was that the court hadn't made the findings necessary for a more-than-minimum or maximum prison sentence, findings that were required under the old law but were declared unconstiutional in State v. Foster. I indicated that the 10th District's approach (also used by the 9th) made sense: there's no error in failing to make findings which are no longer required. I also pointed out that the 8th District hadn't adopted this approach yet, as evidenced by a decision just three weeks ago, when, faced with the exact arguments the defendant raised in the 10th District case, the 8th District vacated the sentence and remanded for resentencing.
Well, lo and behold, the very next day, the 8th District came out with its decision in State v. Murphy. Ms. Murphy had run afoul of the law, and her particular derelictions earned her a 5-year stretch in prison. She filed a delayed appeal, arguing that the judge had erred in giving her more than the minimum term, since she'd never done time before and the judge hadn't made any of the findings the statute required to do that.
Judge Corrigan, writing for a unanimous court (Judges Gallagher and Calbrese joining), began by noting that the appellant "appears benightedly unaware that she is asking this court to enforce a sentencing scheme that has been declared unconstitutional." That's perhaps an overly harsh assessment; the appellant's brief was filed 19 days before Foster was decided. That aside, Judge Corrigan correctly noted that there wasn't much point in remanding the case back for the findings required by the statute, given the statute's unconstitutionality; as he stated, "if the court did not make the required findings under the old sentencing regime, it would serve no purpose whatsoever to remand the case back to the court so that it could once again not make the findings." The court affirmed the sentence, and that was that.
Now, I'd really like to believe that Judge Corrigan read my post last Wednesday, said, "Wow! This guy's onto something!" and, in the ensuing 24 hours, changed the opinion to reflect what the 9th and 10th Districts were doing. Then again, I'd really like to believe that the wisest expenditure of my time would be figuring out what I'm going to do with all that money when I win the lottery this week.
Frankly, considering my experience the last time I had Judge Corrigan on the panel for an appeal, I think winning the lottery is more likely.
On the other hand, at least he didn't call me "benighted."
Quick trip around the courts the past week or so...
8th District finds sufficient corroborating evidence for conviction of sexual imposition; opinion shows how little evidence is required... Proving that premises are a residence isn't sufficient to prove "likely to be present" element in burglary, as mentioned here earlier this week, but it it is to prove element that premises are "occupied," as this decision from the 9th District shows... 1st District says that failure to advise defendant that he couldn't appeal denial of his suppression motion after guilty plea did not render plea involuntary... Trial judge can terminate post-release controls under RC 2929.141, but not parole, so 8th District vacates plea where judge told defendant she would "take care of" his parole violation...
1st District applies "attendant circumstances" rule to question of whether less than 2" deviation in sidewalk was substantial... Good case from the 2nd District on considerations to be used by courts in determining whether child support obligor is voluntarily underemployed... 2nd District holds that former auto salesman could testify as expert, under Rule 701, that dealership was doing shady stuff, but rejects argument that court could take judicial notice of same under Rule 201 (okay, I made that last part up)...
And the captain of the Dummy Team this week is the defendant in this case, who argued that the judge unfairly terminated his community control sanctions. Part of the sanctions, imposed for a weapons disability conviction, was the requirement that the defendant attend the Victims of Violent Crime Impact Panel. The defendant did indeed report to the probation department when the program was scheduled. Unfortunately, he was intoxicated at the time.
Probably one of those guys who, when told that they've blown a .25 on the breathalyzer, respond with, "Wow, I'm only 25% drunk!"
Have a good weekend.
Bummer. You get your copy of OBAR this week, and instead of being crammed full of interesting cases -- like the recent one from the Supreme Court saying that if you buy a car from somebody who stole it, you don't get valid title (time out for this week's Moment of Duh) -- it's 191 eye-glazing pages of the Ohio Rules of Professional Conduct.
Yes, I know, you thought it was called the Code of Professional Responsibility, but it's not anymore. Or, at least, it won't be after February 1st of next year. As I told you three weeks ago, the Ohio Supreme Court has adopted a whole new code of disciplinary rules for lawyers, and the name change (from Code of Professional Responsibility to Rules of Professional Conduct) isn't the only one by far.
There are a lot of changes, and a seminar or two down the road is as good an idea as Britney Spears taking a baby-safety course. You could, of course, tackle your copy of OBAR, but that sounds as appetizing as taking Dostoevsky along for some light reading at the beach. (Dostoevsky has better characters than OBAR; on the plus side for OBAR, though, nobody dies at the end.) But I'll give you at least a flavor of the new rules.
One of the most important changes is on the financial end. Although the rules always required you to deposit a retainer for an hourly fee into an IOLTA or similar account (something other than your own), the rule was rarely enforced up until about five years ago. The new Rules continue the trend of stricter enforcement by requiring much more record-keeping of bank accounts, and especially escrow funds -- check out Rule 1.15. But that doesn't necessarily mean more pen-and-paper tracking; since the rules were first announced for public comment, they've been revised to provide that the record-keeping requirement can be met "through the use of common business accounting software." In other words, if you've got all your stuff on Quicken or Quickbooks, as long as you can pull off what you need through the reports feature, you should be fine. You may have to be more careful how you itemize the information going into the program, though.
Another change is to the concept of client confidentiality. The concept used to be limited to information received from the client, but its been expanded to include all "information relating to the representation of a client," including, presumably, information that is a matter of public record.
Finally, there's a big stress on communications. Most of these are normative rules ("the lawyer shall... keep the client reasonably informed about the status of the matter"). One of the problems with rules like this in the disciplinary context is that what is "reasonable" might differ greatly, depending upon the situation and who's doing the interpreting of the term. Given that about 80% of all disciplinary matters involve some aspect of a communication breakdown, I wouldn't be surprised to see this develop into something more than initially envisioned.
We're going to have a light day tomorrow; I'm going to be on the road, and what's more, we're in the process of moving our law offices. We're presently located at E. 12th and Euclid, which with the work on the Euclid Corridor Project has made the entire area take on all the trappings of a war zone. We'll be moving into the Standard Building, which is a lot closer to the courthouse. This will make it much easier to have days like yesterday, when I sat around for two hours until the prosecutors had concluded beyond a shadow of doubt that they indeed had no idea in the world where my client's file was; two weeks from now, I can tell them at 9:30 to give me a buzz when they find it, and then go back to my office and engage in more productive labor, which, given the nature of criminal pretrials any more, would include anything short of checking my hands for incipient signs of liver spots.
At any rate, assuming the responsibilities involved in moving an office of six lawyers tends to be a little like herding cats, so I'm not going to have as much time for blogging next week. The newly-designed site should be ready to go sometime next week, too, so after Labor Day we'll be back to a normal schedule, in new digs, both in real life and here on the 'Net.
The 10th District's recent decision in State v. Knopf is notable for a couple of reasons. The defendant was your standard-issue rummy who'd racked up three prior DWI's, and for this one the judge dropped the hammer, maxing him out at 30 months. He appealed, claiming that the judge erred in not giving him community control sanctions, since they were presumed penalty for 4th and 5th degree felonies, and for not making the findings necessary to give him more than the minimum prison term, and giving him the maximum.
The first argument has been a prevalent belief among attorneys for years, but it's not true; as the court noted, State v. Foster holds that while there's a preference for community control sanctions for lower level felonies, it's not a presumption in favor of them, and no judicial fact-finding is required in order to impose a prison sentence. As for the defendant's remaining arguments, the court decided to follow the 9th District's application of Foster: if the defendant argues that the sentencing scheme was unconstitutional under Blakely and Apprendi, the sentence will be vacated and the case remanded. But where the defendant only argues that the court failed to make the findings necessary to impose a particular sentence, the court will affirm the sentence.
The logic is unassailable: there's no error in failing to follow a statute which has subsequently been held unconsitutional. (I'd mentioned the 9th District ruling back here. It appears that the 8th District is still following its policy of reversing all sentences which implicate Foster, as they did in this case just a few weeks back, where the defendant made the identical argument to the ones in Knopf.) In fact, you can make the argument that sentences shouldn't be vacated at all. As I'd noted several months back, it doesn't make much sense to send a case back for resentencing because the judge didn't make the necessary findings to give a more-than-minimum or maximum sentence, when he now no longer has to make those findings at all. And it would certainly put some judicial resources to better use: Shepardizing Foster gives you 580 hits, 83 of them in this District.
The other notable thing about Knopf is that, despite the court's holding that the sentence didn't have to be justified by the statutory findings that Foster tossed, it could still be reviewed on an abuse-of-discretion standard. There's a tendency to think that with most of the sentencing law thrown out, a judge's sentence can't be overturned as long as it's within the boundaries the legislature provides. This isn't true, though; even pre-SB 2 law did enumerate various criteria judges were to take into consideration in sentencing, and Foster didn't nullify those criteria. A judge may have discretion to hand down any sentence within the limits set by the legislature, but his decision can still be reviewed for an abuse of that discretion.
Of course, "abuse of discretion" isn't exactly the most unforgiving standard, but keep in mind that SB 2 contained something new: a legislative determination that one of the purposes of the entire sentencing scheme is that any particular sentence is "consistent with sentences imposed for similar crimes committed by similar offenders." The 8th District has reversed cases bases on disproportionality, as this case shows, and in the next few weeks, I'll do another post or two on how to approach this in sentencing. For now, keep in mind that although Foster took away a lot, it didn't take away everything.
Couple of recent cases from the 8th District I wanted to talk about.
The first is pretty straightforward. A policeman, while standing at an apartment door on another matter, sees drugs in plain view inside. Can he enter the apartment without a warrant and seize the drugs?
The 8th District said no last week in State v. West. The cops had responded to a domestic violence call in an apartment building, and had seen an electric cord coming out of another apartment and plugged into a wall socket in the hallway. (Apparently, this is a common way of obtaining the services of Ready Kilowatt without having to pay for them.) They knocked on the door, and according to the police, a number of events then transpired, some of which may have actually happened, and others not so much. (The officer who was standing at the door testified that although he couldn't observe the bag of crack sitting on top of the TV set, somehow the cop behind him could.)
At any rate, the bag was spotted, the police went into the apartment and grabbed it, and the trial court tossed it. The appellate court agreed that merely spotting the drugs in "plain view" wasn't sufficient; the police had to have a justification for entering the apartment beyond just seeing the drugs in there. The state argued the "exigent circumstances" exception, which allows a warrantless search where the police have a reasonable belief that the destruction of evidence is imminent. The court wasn't buying, though, holding that there was no indication the occupants knew that the officers were aware of the drugs.
Judges Blackmon and Rocco were in the majority; Judge Corrigan dissented. You have a different panel, and you probably wind up with a different result, which is true of most 4th Amendment decisions.
The other case, State v. Grimes, is a little more puzzling. The case involved a charge of patient abuse -- an alleged assault on a nursing home patient by one of the staff -- and the defendant had requested a charge on attempted patient abuse. The trial court refused, and the court of appeals agreed, but here's the puzzling part:
The record indicates that although defendant requested an instruction on a lesser included offense, he did not object to the trial court's failure to give an instruction on a lesser included offense....The failure to object to a jury instruction constitutes a waiver and any claim of error relative thereto, unless, but for the error, the outcome of the trial clearly would have been otherwise.
I'm not sure what that means, because the court proceeds to analyze the question without ever again mentioning the plain error doctrine. If the court meant to suggest that under Rule 30, a defendant not only has to submit an instruction, but in order to preserve a claim of error has to object when the court fails to give it, that seems to run contrary to a number of Supreme Court decisions, such as State v. Wolons, 44 OSt3d 64, back in 1989. In fact, Wolons was an appeal out of this district. The defendant had requested an instruction on intoxication, but didn't object when the judge didn't give it. The court of appeals reversed on a plain error theory, and the Supreme Court reversed that, but held that the defendant did preserve the error by submitting the instruction and the law.
It's hard to quibble with that analysis. The purpose of requiring an objection is to allow the court to correct a potential error. When you've gone to the trouble of submitting a written jury instruction and the judge refuses to give it, it seems that you've done what's necessary to preserve the error; requiring a further objection seems to be the classic exaltation of form over substance.
Interesting question popped up today in the office: a client's charged with burglary for breaking into a home during the daytime. One of the elements is that the someone "was present or likely to be present." Does the fact that the homeowner was at work get the charge reduced from a second to a third degree felony?
It may, according to In re Meatchem, a case out of the 1st District a couple weeks ago.
The evolution of this issue is interesting. There's a 1977 Supreme Court case, State v. Kirby, 50 OSt2d 41, which essentially held that, since the house was a permanent habitation, it was "not reasonable" for the jury to conclude that no person was likely to be present. This was a bad decision: as the Court later noted six years later in State v. Fowler, 4 OSt3d 16, if you read Kirby as saying that anytime the state proves the burglarized premises were a temporary or permanent habitation, it's presumed that a person is likely to be present, you essentially have created a conclusive -- and unconstitutional -- presumption as to the existence of an element of the crime.
In Fowler, the Court held that evidence that the homeowners were "in and out" of the house on the day in question was sufficient to prove they were "likely to be present." Meatchem's at the other end of the scale: the family didn't live in the home during the summer, but only checked on it a couple of times a week.
The cases on this from our district are fairly decent, from a defense standpoint. A good one to start with is a case from 1999, State v. Cantin, 132 OApp3d 808. The facts aren't great -- the home was in disrepair, and no one was living in it -- but it contains an excellent summary of the case law on the issue. A better one is a decision from three years earlier, State v. Lockhart, 115 OApp3d 370, where the court found the "likely to be present" element hadn't been proved where the only evidence was that the homeowner was at work from 8:30 to 5:00 on the day in question.
Although they cases are fairly fact-dependent, there are some general points to keep in mind. First, as Meatchem indicates, "likely" means "probable." Second, the more rigid the homeowner's schedule, the better the chance that they'll be held not "likely to be present."
We'll end the week, as usual, with a check on some rulings around the state.
5th District affirms summary judgment in disability discrimination case, saying just because you're an alcoholic doesn't mean they can't fire you if you show up for work drunk... 8th District affirms $80,000 malpractice award in divorce case representation, holding that client's contacting new lawyer didn't terminate attorney-client relationship, and that settlement of divorce case didn't waive claim of malpractice... 3rd District holds that antenuptial agreement validly excluded appreciation in husband's pension from being considered as a marital asset... 8th District reverses class certification, finds that common questions don't predominate; good review of class action law...
12th District finds no Apprendi-Blakely violation in trial court's determination that stalking was sexually motivated, on grounds that determination of sexual motivation factor was remedial, not punitive... 8th District affirms trial court's refusal to grant substitution of counsel during trial, despite open conflict between defendant and his attorney, holding that "the right to counsel does not include a right to a peaceful and meaningful relationship between counsel and defendant"...
And this: the 6th District upholds a finding that homeowner's yard was a nuisance, over claim that tall grass and weeds were really "ornamental grass and herbs." Guess I'll be getting out the lawnmower this weekend after all....
See you on Monday.
Sometimes you've got to learn to quit when you're behind. Today's cautionary tale comes to us courtesy of Ronald and Sara Siemientkowski, who purchased a home in North Ridgeville a few years back. Shortly thereafter, they discovered that a leach bed encroached on their property. Claiming it made their home uninhabitable, the Siemientkowskis filed a 92-page pro se complaint alleging 28 separate causes of action (conspiracy, infliction of emotional distress, breach of contract, and just about everything short of a violation of the Mann Act) against thirty-some defendants. They filed it first in Federal court, where the judge promptly kicked it out, and the 6th Circuit just as promptly affirmed. The Siemientkowskis then filed in Common Pleas court.
One of the defendants was a company who had issued a bond for the lawn grading. Their attorney repeatedly pointed out that this simple act did not make the company liable, under any conceivable theory, for the Siemientkowski's woes, but they refused to dismiss the company. The company eventually was granted summary judgment, and the trial court awarded them $30,000 in sanctions. Needless to say, the plaintiffs appealed, and the court affirmed the award.
The Siemientkowskis were undeterred: they turned around and made a claim against their homeowners policy for the $30,000 and, when it was turned down, they sued the insurance company, claiming that an award of sanctions was similar to a judgment for malicious prosecution, liable, or slander, for which the insurance company would've been on the hook. The trial court granted summary judgment on that claim as well, and last week our court of appeals again affirmed, taking a whole paragraph to dispense of the plaintiff's argument.
But the court didn't stop there: it decided that sanctions should be awarded against the Siemientkowskis for pursuing an appeal, and instructed defense counsel to file a statement of reasonable attorneys fees and costs.
Now, it's hard to muster much sympathy for the Siemientkowskis. Frankly, I'm of the view that anyone who files a 92-page complaint, lawyer or not, should be taken out back of the Justice Center and shot, as a warning to others. On the other hand, the defendants hadn't sought sanctions on the appeal. In fact, they hadn't even sought sanctions in the lower court. What's more, in the first appeal -- where the claim was arguably even more meritless, because the trial court had awarded sanctions -- the court of appeals found there were "reasonable grounds" for the appeal.
Still, that makes more sense than a decision handed down by the 10th District a few weeks ago. The plaintiff there had been chagrined about a custody decision, and so she decided to file a lawsuit against -- who else? -- the guardian ad litem, alleging malpractice, fraud, obstruction of justice, RICO violations, and "various unspecified crimes and other illegality." (This was another pro se plaintiff. Oh, you guessed.) You don't get any more bogus than that, and the trial court granted $6,000 in sanctions. The plaintiff appealed, and the appellate court spent several pages explaining why this was probably the single stupidest lawsuit in Anglo-American law since the days of William of Orange, but then turned around and denied appellate sanctions. Why? Because the issue of the amount of sanctions awarded by the trial court was a reasonable ground for appeal.
If you think that through, though, it means that the appellate court could never award its own sanctions in an appeal from a lower court's award of sanctions, because the amount of the award would also be subject to reasonable question. A better approach would be to award fees on those aspects of the appeal which were clearly meritless, as the very same court did three years earlier.
At any rate, all this serves as an explanation why the phrase "pro se litigant" instills as much fear in the courtroom as "incoming!" does on the battlefield.
I spent the afternoon yesterday watching the oral argument in the Ohio Supreme Court in the disciplinary case involving Richard Agopian. I actually saw a tape; the argument was last week, and a decision will be coming down soon.
Agopian is a well-known criminal defense attorney in Cuyahoga County, and like most criminal defense attorneys, he handles a lot of assigned criminal cases. He got into trouble because an audit of the fee bills showed the numbers didn't compute: if you added up the time he'd submitted on various cases, it showed that he was claiming he'd worked as much as 28 hours a day. On a Saturday, no less. And he did some things that, shall we say, might raise some eyebrows. (As if putting in 28 hours on a Saturday wouldn't.) In one case, he was appointed on October 11. According to his fee bill, he spent an hour opening the file, and another 9.6 preparing and filing motions. He attended a pretrial two weeks later, and logged an hour for that, at which time he found out that his client had retained private counsel. He submitted a bill for the $400 maximum. The chances that he actually spent 9.6 hours preparing motions are about the same as the chances of Pauly Shore making a good movie.
But go back to that phrase, "$400 maximum." Watching the oral argument was interesting. Justice O'Connor had a hard time accepting the notion that a lawyer would be paid a maximum of $400 for a criminal case. That somebody would have a hard time accepting that is not unusual; Judge Nancy Russo, who was a member of the Task Force on Pro Se and Indigent Litigants, told me that Richard Boddicker, another member and the head of the Ohio Public Defenders Commission, refused to believe her when she told him what the maximum fees in Cuyahoga County were, finally relenting only when she had a copy of the fee schedule faxed to her to show him. I've had cases where I spent three days in trial to get that $400. I know attorneys who've spent a week in a kiddy-rape trial, and gotten the maximum fee for a first-degree felony -- $900. The old saw that for every hour in trial you spend three in preparation is especially valid for that kind of case: it's hard to get motivated when you're being paid a pittance for a simple cocaine possession, but money takes a second seat to the realization that your client's freedom for the rest of his life is riding on you.
And I'll bet you that Richard Agopian had more than a few cases like that.
I'm sure there are some cases where Agopian made more than he should have. Check that: made more than the fee schedule allowed. Because there's a big difference between what he should have made and what was allowed. Agopian isn't exactly some rube fresh out of law school; he's been doing criminal defense work for more than twenty years.
This county is required, like every other in the United States, to provide counsel for indigent defendants. It has chosen to do so at levels that are frankly obscene. Even assuming that Agopian charged for ten hours when he should have charged for five, does anybody believe that $400 that he did get is an adequate fee for representation of a criminal defendant in a felony case, let alone the $200 that he should've gotten?
Whatever Richard Agopian got out of the system, the system got a lot more out of him.
You learn something new every day. At least, I did on Saturday morning. I was skimming through some recent cases, looking for ideas for the blog -- and that I was spending Saturday morning reading cases should indicate to you that the Excite-o-Meter in my life is trending substantially below that of Paris Hilton, or indeed of most vertebrates -- when I came across this case, Allstate v. Dolman. The fact pattern -- husband fools around with teen-aged baby sitter -- is mildly interesting, if not exactly uncommon.
At which point the plot line veers from Lifetime Movie Network into LA Law: baby sitter's parents sue husband, and also husband's wife; their theory against the latter was that she knew her husband was a skank -- he'd been charged with fondling his niece's breasts in the state they'd lived in before moving to Ohio -- and had failed to warn anyone or monitor his conduct. This is where it picks up some interest from the legal standpoint: while the Ohio Supreme Court has held that sexual molestation is not covered by homeowner's insurance, it has held that allowing coverage for the non-molester, under a failure to supervise or failure to warn theory, is permissible.
The Dolman case even has some interest from a procedural angle: The trial court, in granting summary judgment, relied on a provision of the policy that Allstate hadn't argued, or even cited. Despite Allstate's claim that the appellate court could consider that provision because, by attaching the whole policy to its motion, Allstate had implicitly argued it, the Court wasn't buying. Citing case law which says that a movant must "specifically delineate" its basis for summary judgment in order to give the other side a "meaningful opportunity to respond," the Court reversed.
So this is where it gets weird. I'm getting to the end of the opinion, slightly diverted by a pleasant reverie about the picture of Christie Brinkley that appears in the link at the end of the first paragraph, when I come to this line: "In their second assignment of error, the Does argue that if this case is remanded, Allstate is precluded from raising the Joint Obligations Clause issue in accordance with the 'mend the hold' doctrine."
Huh? "'Mend the hold' doctrine"? I'd never heard of it, and apparently neither have a lot of other people: according to my buddy Lexis, the words "mend" and "hold" appear in the same sentence exactly twice in the entire history of Ohio case law, and one of them is the Dolman case; the other is a 1936 case out of Ottawa County about a mechanics lien.
Well, I did some more checking (our motto here at The Briefcase: We Google so you don't have to), and it turns out there is such a doctrine, apparently well-established in insurance law. There's a good discussion of it, along with the doctrines of waiver and estoppel as applied in insurance contract situations, on this blog, but the short version is that if the insurance company denies coverage for Reason A, they can't go in and argue Reason B once litigation begins.
So maybe you learned something today, too. About insurance law, or summary judgment procedure, or insurance coverage for sexual molesters. Or, if nothing else, about what Idiot Level you'd have to reach to fool around if you were married to Christie Brinkley.
I've done a couple of previous posts -- here and here -- about uncounseled misdemeanor convictions used as enhancement for subsequent crimes. I've also mentioned that the relevancy of whether they were uncounseled depends upon whether a jail sentence was imposed; under Supreme Court decisions, there's no problem in using an uncounseled prior conviction, even if there wasn't a valid waiver of counsel, if no "loss of liberty" ensues.
That leaves a couple of questions unanswered, though. What if the court imposes a jail sentence, but suspends it? And in DWI cases, there's a 3-day mandatory jail sentence for a first offense, but the courts almost invariably allow the defendant the option of an alternative "alcohol education program," in which the defendant holes up with a bunch of other rummies in a Holiday Inn for a weekend listening to people tell him that what he did wasn't a good thing. Does that count as jail time?
The 8th District answers both questions in Parma v. Romain. The defendant was convicted of DWI in Parma, and sentenced as a third-time offender because of two prior convictions; he hadn't been represented in either. The court found a clear waiver in the second one, but no record of waiver in the first, a mayor's court. He'd been given a sentence of 10 days in jail there, with seven suspended, and he could spend the other 3 either in jail or in a 3-day alcohol program.
The court looked first at the suspended sentence. The case law from a prior US Supreme Court decision is that "a suspended sentence that may end up in actual deprivation of a person's liberty may not be imposed unless the defendant was accorded the guiding hand of counsel." (That's a great way of putting it. Just the other day, I guided my client to a six-month stretch at Grafton.) In this case, the court noted that "the seven days of jail time were unconditionally suspended with no evidence of any reservation of the right to reinstate them in the future, and appellant was not placed on any probation or community control sanction that could subject him to incarceration in the future as punishment." The short version: it didn't count as a jail sentence which would require counsel or a valid waiver before it could be used to enhance a subsquent offense.
Not so with the three-day stay for the alcohol treatment program. While that's "served in a hotel setting rather than a jail, and the focus is on education and treatment, not punishment, participants are not free to leave and must comply with the program format." Probably not a finding that's going to make it's way into Holiday Inn's next advertising campaign ("It's as good as jail!")....
While on the subject of uncounseled prior convictions, an object lesson on how to handle them is provided in the 1989 case of State v. Brandon, 45 Ohio St. 3d 85. The defendant had argued that his previous conviction, a petty theft, had been uncounseled, but the court noted that he testified he'd served six months in jail on the charge. To the court, this was proof that he'd had counsel: the trial court couldn't constitutionally give him jail time if he hadn't had an attorney, he got jail time, therefore he must have had an attorney. The Helleresque nature of that logic notwithstanding, the court's opinion carries a warning for attorneys handling these situations: you don't have to do a lot, but you have to do something. As the court notes,
The presumption we entertain is not irrebuttable. Appellee simply failed in his burden of presenting sufficient evidence to establish a prima-facie showing that his prior convictions were uncounseled. Indeed, appellee's burden in this regard was hardly difficult. Had appellee's counsel simply asked appellee during testimony whether his prior convictions were counseled, a negative response would have established a prima-facie showing of constitutional infirmity. This one question and answer would have then placed on the state the burden of proving that appellee's prior convictions were counseled.
We haven't done a weekly roundup for a while, and there's some new stuff out there.
Good discussion in this 6th District case about factors to be considered in deciding whether to allow a defendant to withdraw a plea.... 8th district says that in a remand solely for resentencing, trial court has no authority to entertain motion to vacate plea... 5th District holds that restitution has to be determined by the trial court at a hearing, not left for later determination... 9th District holds that officer violated defendant's Miranda rights prior to searching car based on odor of marijuana, but evidence comes in anyway under "inevitable discovery" rule...
Filing the transcript of a magistrate's hearing in the court of appeals isn't enough, the 5th District finds; it has to be filed in the trial court with the objections to the magistrate's decision... Burger King employee submits to sexual importuning by assistant manager (no "Home of the Whopper" jokes, please), judge grants summary judgment because he doesn't buy her story, 9th District reverses, says it's not his job to weigh credibility on motion... If you've got a slip and fall in a grocery store, this 10th District case affirming summary judgment on a slip on grapes is a good place to start...
I got a comment about Wednesday's post on voluntary dismissals, pointing out that under Rule 41(D) the court can assess costs against a dismissing plaintiff who refiles, staying the refiled action until the costs are paid. (The court where the action was dismissed can't assess the costs, as this case indicates.) Those costs do not include attorney fees, however, but only those costs allowed by statute. Under the Federal rule, the court can assess attorney fees as a condition of granting a dismissal.
And to close things off, somedays, it's just not your day. For the plaintiff in Knipschield v. Cleveland Inst. of Art, a Cuyahoga County case from 1994, that day was October 13, 1989, the events of which are recounted in a case from last week:
In the Knipschield case, the defendant ran over the plaintiff, as he was backing out of a parking space, while she was bent over tying her shoe. After the defendant felt his truck raise up and back down, he stopped and noticed a bystander waiving his arms. Plaintiff thought the bystander was directing him to pull forward, which he did, thereby running over the plaintiff a second time... On appeal, the Eighth District Court of Appeals found a material issue of fact existed with respect to whether the defendant exercised reasonable care in driving over plaintiff a second time.
Apparently, the court concluded that defendant did exercise reasonable care in driving over plaintiff the first time.
Have a good weekend, and see you on Monday.
If you're like me -- and about 90% of other lawyers -- getting hit with a stack of interrogatories or document requests doesn't exactly elicit the reaction, "Jeez, I've got to drop everything and get the responses out on these!" Timely responses to discovery are about as common as Jessica Simpson winning at Scrabble. With one exception: requests for admissions under Rule 36. As more than a few lawyers have learned the hard way, requests come with a self-enforcing time limit: the other side can ask you nasty questions like, "Admit that you were negligent," and if you don't respond within the 28 days allowed by the rule, the request is deemed admitted.
Maybe. I recently had to do a brief for a lawyer who'd been tardy in filing his responses, and it turns out the law is a bit more forgiving. Under Rule 36(B), the court can permit withdrawal or amendment of a response (and "amendment" equals a late filing) "when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice the party in maintaining his action or defense on the merits."
That allows a lot of discretion, and the courts -- especially at the Federal level -- have been quite willing to use it to allow filings out of rule. I found cases where the responses were allowed after summary judgment had been filed, and in one case where they were allowed after the trial started. In one, the defendant hadn't gotten around to answering requests that had been filed two years earlier, and the court simply gave him a date to respond to them. (If you start with the forfeiture case reported at 863 F.Supp. 442, it'll lead you to the others.)
The Ohio courts haven't been quite as willing to absolve untimeliness in responding, especially where the conduct is egregious -- like filing the responses six months after they were due and nine days before trial, as happened in one 1998 case. The best case here is this one from the 9th District, which held that the trial court's refusal to permit a late filing was an abuse of discretion because of the "basic tenet of Ohio jurisprudence that cases should be decided on their merits."
Love those basic tenets. They'll get you off the hook eight times out of ten.
An attorney I know has a robbery case, one of those shoplifting cases gone bad, where the defendant has a tussle with security officer at Home Depot over a pair of wirecutters and winds up with a first degree felony charge instead of a petty theft. That's based on him supposedly swatting the guard with a 14-inch pipe wrench, a sequence of events which, at least according to the videos, happened in a dimension of time and space other than the one we're currently occupying. That still leaves the defense with a problem: does the tussle with the security guard establish the element of force, which is sufficient for a robbery, albeit one that's a third degree felony?
There's a great case out of our district on this, State v. Eskridge, which holds that it might not be. The defendant had gone to Angela's Family Restaurant and ordered a cup of coffee. Apparently dissatisfied with the quality of the brew, when the cashier opened the register, he reached over the counter, grabbed a fistful of dollars, and dashed out the door. The cashier claimed that he pushed her when he grabbed the money, and although the defendant denied it and the video evidence was inconclusive, that was sufficient for the jury to convict him of robbery.
The court of appeals, though, reversed the conviction, finding that even if there was a slight push, that wasn't sufficient to elevate the crime from a simple theft to a robbery. The court looked at prior case law, and the committee comments to the robbery section, and concluded that the force element wasn't satisfied if the force used wasn't enough to pose a danger of physical harming the victim, or causing the victim fear.
It's not quite time to put on the party hats, though; there are plenty of cases out there which hold that the defendant scuffling to get away, even if he isn't intending to cause harm and does nothing more than swing his arms around, is enough to get him convicted of the lesser offense of robbery. That's what happened in State v. Sumlin, where the defendant grabbed a steak, stuffed it in his pants [your joke here], and tried to run out of the store, only to be tackled by the security guard. The court held that the defendant's attempt to break away from the guard was sufficient force to constitute a 3rd degree felony robbery, and cited a bunch of cases holding the same way.
If you look at the robbery section closely, though, you find an interesting anomaly. Under 2911.02(A)(2), the prosecution has to prove that the defendant "inflicted, attempted to inflict, or threatened to inflict physical harm on another." Under 2911.02(A)(3), the state has to prove the defendant "used or threatened the immediate use of force against another." if, as Eckridge holds, the force element requires sufficient force to pose a danger of physical harm, what's the difference between (A)(2) and (A)(3)?
What happened here is the changes made to the criminal code in 1996. Up to that point, aggravated robbery was robbery with a gun or where serious physical harm occurred, and simple robbery was where force was involved. In that context, it was perfectly understandable to define force in terms of the potential for physical harm. In light of the change in the statute, that's not so clear-cut: if the force required is sufficient to pose the risk of harm, the state can make the argument that you've now got a felony under (A)(2) instead of (A)(3).
Yeah, bet you'll be spending the rest of the week pondering that one, huh? See you tomorrow.
Here's an interesting chain of events: the defendants file motions for summary judgment, the court issues an order granting them, faxing the order to all the parties. The next day, the plaintiff voluntarily dismisses the action; a few hours later, the court's order granting the summary judgment is journalized. What happens?
Well, according to our court's decision last week in Witt v. Lamson, the summary judgment is no more. Actually, this was pretty much of a no-brainer; as Judge Gallagher points out in his opinion, Rule 41(A) and the case law gives the plaintiff an unfettered right to dismiss the case any time prior to trial or judgment. The opinion notes the plaintiffs' actions "violate a sense of fair play," and that the rule is "open to unfair and abusive use," citing Justice Stratton's dissent in an Ohio Supreme Court case earlier this year that I discussed here.
It may be that the concerns the court cites are unfounded. After all, if the plaintiffs refile, under our court's rules, the case will be reassigned to the same judge who granted summary judgment. Unless the plaintiffs use the intervening time to come up with something they didn't have before, the result is going to be the same the next time around. Short of an unusual situation, for example, if the judge who granted the motion was going to be retiring, or had been defeated for re-election, it's hard to see how the plaintiff is going to benefit from this tactic.
Still, the contention that allowing the plaintiff to dismiss at any time up to the day of trial creates a potential for abuse is hardly a novel one; other courts have made the same point, and the Supreme Court in the recent case mentioned above referred the question of revising the rule to its Commission on the Rules of Practice and Procedure.
I think within the next few years you're going to see a modification of the rule, more in line with Federal practice. There, the plaintiff can dismiss unilaterally only prior to an answer or motion for summary judgment being filed. After that, the plaintiff needs either a stipulation by the parties, or an order of court "upon such terms and conditions as the court deems proper." Those "terms and conditions," of course, can include payment of the defendants' attorney fees.
It's going to happen. You heard it here first.
The crew down on Lakeside has been churning out some decisions, so I thought I'd play catch-up and check some of them out.
If you've been thinking of making an argument on appeal that the failure to advise a defendant that he was going to be classified as a sexually-oriented offender made his plea involuntary, don't bother. The court rejected that argument in State v. Tackett, holding that since that raised a non-constitutional issue, only substantial compliance with the statute was required, and the plea satisfied that test despite the court not informing him that designation as a sexual offender was mandatory.
Another stop-and-frisk ruling in a drug case appropriately named State v. Scales, where the court reversed a denial of a motion to suppress. The police approached the defendant after they spotted him waving down a car, and a frisk revealed marijuana and cocaine. The court said that the defendant's waving down a car wasn't sufficient to warrant the stop. The problem with search cases, though, is that they're so fact-dependent the outcome hinges almost entirely on what panel you wind up with, and this one's no different. Then again, that's the general problem with Fourth Amendment law. The former is so complex and multivariate that it's virtually impossible to draw any definitive bright lines. And as far as what panel you wind up with is concerned, the same thing applies in the lower court; any good defense lawyer can predict the outcome of a search motion in the trial court with 90% confidence as soon as he hears what judge is assigned to the case out of the arraignment room. Anyway, if you're a defense attorney, Scales is definitely a keeper.
I've talked about arbitration cases in the past -- here and here -- and this court's welcome trend of subjecting them to exacting scrutiny. The court goes in an opposite direction, though, in Bell v. Hollywood Entertainment, upholding an arbitration agreement which compelled an employee to arbitrate any employment disputes, including discrimination complaints. What's dismaying is that the court didn't go beyond the fact that the employee signed the agreement -- actually, signing it was a condition of her employment -- never even considering questions of substantive or procedural unconscionability, as it had in the previous cases involving consumer arbitration clauses. There doesn't seem to be much reason for this: yes, a prospective employee can choose to go to work instead for another company which doesn't have such a clause, but a consumer can choose to do business with a company which doesn't, too, and that hasn't prevented the courts in the latter cases for making a more thorough analysis.
I'm going to be to taking the weekend off from blogging. I'm giving some serious thought to making that permanent decision: seven days a week on law stuff is probably more than I need to do, and probably than you need to read. Or care to read, for that matter.
After all, there are other things in life. I'm going to spend the weekend enjoying them. You do, too, and I'll see you on Monday.
A quick side trip into techie stuff, and if you're reading this, chances are you're somewhat computer literate, and at least slightly interested in techie stuff. Internet Explorer has a new beta version which you can check out and download here. The tab feature is especially helpful. I'm one of those people who winds up with 17 different Explorer windows open, and having the ability to tab from one to another is nice. So is the ability to print only a portion of a web page, instead of the whole thing.
One more note on techie stuff: in a few weeks, this site will be getting a major upgrade. Some of the changes will just be cosmetic, but others will be functional: you'll have the ability to print out or email individual posts. I'll explain more when it goes up.
Powered by dreams of the future, on to the law:
I mentioned the other day that you can get sidetracked doing research, chasing down cases that have nothing to do with what you're looking for but sound interesting. The opposite situation is where you find a bunch of cases that are related, but not in ways that you would have thought; sort of a "six degrees of separation" effect.
For example, yesterday I talked about the 8th District's recent decision in State v. Bullitt, which held that scientific testimony was necessary to establish that a controlled substance was crack cocaine. The state had presented only a police officer's testimony identifying the drug, but defense counsel didn't make that the basis of his Rule 29 motion, arguing instead only that there wasn't sufficience that his client was the one who made the transaction. The court still threw out the conviction, on a plain error analysis.
As I mentioned, Bullitt was based on a 1975 Ohio Supreme Court decision, State v. Maupin, but failed to consider the much more recent decision of State v. McKee, which held that lay opinion evidence on drug identification was permissible if a proper foundation had been laid. The Court in McKee faced the same problem that the Bullitt court did -- defense counsel didn't object to the opinion evidence -- and resolved it in the same way. Justice Cook, though, wrote a dissenting opinion which argued that plain error wasn't applicable: since the various courts of appeals were split on the issue of whether expert testimony was necessary, the error in allowing it wasn't "plain." I'm not sure I buy into that analysis, but his opinion is a good place to start for an appellate lawyer with a plain error issue.
One of the other cases that Bullitt relied on was our district's decision in State v. Titsworth, where the court threw out a conviction for trafficking because the state had failed to present any laboratory evidence that the substance was heroin. The court acknowledged Maupin's conclusion that police testimony about marijuana was permissible, but held that heroin was horse of a different color. The more interesting aspect of Titsworth was Judge Corrigan's dissent, in which he argued that by failing to seek an independent test of the drugs, as he was entitled to under RC 2925.51(A), the defendant "waived his right to an independent laboratory analysis and any argument that the state failed to prove, through testing, that the alleged substance was heroin."
Now, Judge Corrigan has developed an annoying habit of writing logical opinions which I wind up agreeing with even when I don't want to, but I think he's off-base with this one. I doubt if the county commissioners would be pleased if every lawyer in a narcotics case demanded an independent drug test (which is paid for by the state, and can cost as much as an appointed lawyer does), on the grounds that if they failed to do so, the state was relieved of its obligation to prove an element of its case.
But RC 2925.51 also figured into the 3rd District's decision in State v. Bates, which involved the same issue as Bullit and Titsworth: can a police officer testify as to the identity of a controlled substance? Actually, the court didn't rule on that issue specifically. In Bates, the police officer read the lab report into evidence, as permitted under RC 2925.51(B). The defense argued that the report was inadmissible because it didn't comply with the statute's requirement that when the report was given to defendant prior to trial, it had to contain a provision notifying him that he could demand "live" testimony of the preparer by serving that request upon the prosecutor within seven days of the receipt of the report. The trial court let the report in, ruling that 2925.51 was a discovery provision and required only substantial compliance, but the appellate court reversed, deciding that the section was an evidentiary provision -- in essence, an exception to the hearsay rule -- and that strict compliance was necessary. The court noted in passing that since there had been no testimony by the officer as to the nature of the drugs, the lab report was the only evidence of that, when it went so did the case.
And the discerning reader will note that that raises the question of whether 2925.51 survives Crawford v. Washington, as we discussed last week. Probably so; since the defendant does have the option of demanding the testimony of the person performing the test, that would seem to satisfy Crawford's requirement that the defendant need only be afforded an opportunity to cross-examine.
At least, that's what Judge Kevin Bacon would probably rule.
The Ohio Supreme Court announced yesterday that the Code of Professional Responsibility will be replaced, effective February 1st of next year, with the Code of Professional Conduct. You can find a copy of it here, and a summary of the changes it represents from the old Code here. Of course, you might want to wait until it's out on video...
I gave it a quick glance-over, and in the coming months I'll look over it in more detail and probably do some posts about the changes. Rest assured that if you're a regular reader here, by February 1st you will be ready to go forth into a new day and age with the certainty that your record of ethical probity will remain unblemished.
The 8th District dealt a blow a few months back to the movement to get rid of the traffic cameras in Cleveland, but it was only a glancing one. The Court denied a writ of prohibition stopping the program, largely on the basis that it wasn't clear whether the city had authority to do it; considering that a "clear entitlement to relief" is one of the requirements for prohibition, that pretty much took care of that. (The opinion also noted that since anyone getting a ticket can appeal to the common pleas court, there was also an "adequate remedy at law.")
This isn't the final word, of course. Courts in Trumbull County and Jefferson County have ruled against the schemes, and the Ohio House has passed a bill requiring a police officer to be on duty to write tickets for all the cameras, which will pretty much put the kibosh to the whole thing. As one whose wallet was lightened (by a heavy foot) just recently, if those things go, I will not be the one mourning their passing.
A couple of months back in State v. Bullitt the 8th District vacated a conviction for drug possession because the only evidence concerning the nature of the drugs was testimony by the police officer. The court held that this wasn't sufficient, and that scientific testimony was necessary. It's a nice decision. But it's probably wrong.
The court relied on a 1975 Ohio Supreme Court decision, State v. Maupin, 42 OStd 473, which permitted a police officer to testify that a substance was marijuana. The drug in Bullitt was crack cocaine, though, and the court held Maupin appeared to be limited to the identification of the Demon Weed. It cited two other cases from the district which had come to the same conclusion: in State v. Titsworth, the court vacated conviction for heroin based on police testimony, and in State v. Adkisson it tossed out a conviction where cocaine had been ID'd through a field test.
You can make an argument that the earlier two cases are distinguishable; in Titsworth, the officer's testimony was hardly dispositive ("this is a spoon, and it has, you'll see it has white residue on it. That will be more than likely heroin"), and in Adkisson, the court noted that the officer himself didn't testify, but only relied upon the field tests, and there was no testimony or other showing that they were valid methods. The bigger problem, though, is that all of these cases ignore the subsequent Supreme Court decision five years ago in State v. McKee.
In McKee, the court was again presented with a case involving marijuana -- more precisely, the defendant was charged with corrupting a juvenile with drugs, and the identification of the pot had come from the two teenage girls he was fervently trying to corrupt. The defendant relied on Maupin, arguing that identification of the drug required expert testimony -- either lab tests or a qualified police officer -- and that whatever assets the young ladies possessed, the history of drug use required to readily distinguish controlled substances wasn't among them. The Court noted that Maupin was decided back before the Rules of Evidence were adopted, and that courts since then have held that even laymen could testify as "expert" witnesses under Rule 701 and 702, as long as a foundation had been laid that they had the requisite knowledge. The two young ladies did not, alas, so the reversal of the defendant's conviction was affirmed, but the syllabus of McKee is pretty clear: "The experience and knowledge of a drug user lay witness can establish his or her competence to express an opinion on the identity of a controlled substance if a foundation for this testimony is first established."
McKee dealt with the testimony of laymen, but it's hard to see why the same rule wouldn't apply to a police officer, so long as his experience and ability were established. And since McKee, several other courts have indeed held that a police officer's testimony is sufficient to establish the identity of the controlled substance. The 3rd District did that in dicta a couple of years back, and the 2nd District in State v. Ross, while noting that there was no Ohio law regarding police testimony about cocaine, reviewed a number of Federal court cases upholding such testimony, and concluded that it is admissible "because crack cocaine usually has a distinctive appearance and form that makes it easily recognizable to a person who is experienced with the drug."
Of course, the 2nd and 3rd Districts aren't the 8th, and Bullitt, Titsworth, and Adkisson are still the law here, so enjoy it while it lasts. Every now and then, you'll wind up with a case where the prosecutor hasn't got the guy from SIU lined up to testify, and instead might decide to rely on the officers' testimony. Having one of these cases handy could get you a Rule 29.
I had another post planned for today, but I decided to bump it to follow up on the post from yesterday, about the new section of the Code which allows judges to go back and resentence defendants whom they failed to inform of post-release controls. One of my faithful readers (their number is legion) posted a comment asking if there were any time limits for that. (The law just took effect on July 11, and apparently hasn't made Anderson's on-line yet.) The short answer is no; it can be done at any time. The longer answer, though, is that the legislature may have screwed up post-release controls.
Here's how. I went back and checked the new section, 29291.191, to answer the question about time limits. While doing that, I noticed something odd: the statute consistently referred to sentences handed down "prior to" its effective date. Why wouldn't they provide a procedure to correct a sentence handed down afterwards?
Maybe because they didn't have to. Sure enough, I went back and checked 2929.19, the statute which spells out procedures at the sentencing hearing, and that's been amended, too. This is the way it plays out now:
- If the defendant is sentenced to a term where PRC is mandatory -- and felony sex offenses have been added to that list, along with 1st and 2nd degree felonies, and 3rd felonies where harm was caused or threatened -- the court's failure to notify the defendant of PRC, in either the hearing or the JE, doesn't negate the ability of the Adult Parole Authority to impose it. That latter provision only applies to sentences handed down from here on out, but the new 2929.191 allows the court to clean up a sentence handed down before which didn't do that.
- If the defendant is sentenced to a term where PRC is discretionary, there's no change; presumably, the court must still notify the defendant of that in both the hearing and the JE. The new 2919.191 supposedly allows the court to correct that, but there's a problem, as we'll see in a minute.
- In either case, the judge must notify the defendant that if he screws up on PRC, the APA can send him back to prison for up to one-half the original term. If he forgets to tell the defendant that, though, the APA can still do it, as long as they notify him that they can before the expiration of his original sentence.
I think there's a good argument to be made that the legislature stepped in it big-time here. They apparently proceeded in the belief that the power of the APA to impose PRC is statutory; that is, because the sentencing statute required the judge to notify the defendant of PRC, if the judge didn't, the APA didn't have the power to impose it.
But as Hernandez v. Kelly points out, there's a constitutional problem -- separation of powers -- in having the APA essentially impose criminal punishments. The Court recognized that in the first case dealing with the issue, Wood v. Telb, and resolved the problem by holding that it was really the courts which were imposing PRC.
So now what? The legislature assumes that the amendments get it around the Hernandez problem -- PRC being voided because the judge forgot to put it in the sentencing entry or say it at the hearing. In fact, it may have made the problem worse, because it's probably more likely that judges won't do it now; they'll assume that they don't have to worry about it because of the amendments. (And if you can figure out the reason that the legislature made a distinction between mandatory and discretionary PRC -- stating that the failure of the judge to tell the defendant about the former doesn't negate it, but apparently still requiring him to do both with the latter -- you're a better man than I.) What's more, if the Supreme Court does eventually decide that, based on Woods and its progeny, the new amendments are unconstitutional, the new section 2929.191 doesn't provide a method to go back and correct those sentencing errors, because it only applies to sentences handed down before its effective date.
Helluva way to run a railroad.
Mr. McGraw, the aforementioned commenter, makes some good points: if the judge screws up at the sentencing and doesn't inform your client about PRC, tell him (the client, not the judge) about that before he trudges off to LCI (again, the client, not the judge). If you get an escape case, make sure you check the transcript of the sentencing hearing, as well as the sentencing. And if you're handling an appeal, don't raise the PRC issue: the only thing that's going to happen there is a remand for proper sentencing, which doesn't do your client any good.
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