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.