August 2007 Archives
You're handling a criminal case, and you've filed for discovery. The prosecutor responds, and also makes a reciprocal request for discovery from you. We know that speedy trial time is tolled until the prosecutor responds to your request; is it also tolled until you respond to his?
I've run into several judges and defense lawyers recently who believe that the Ohio Supreme Court's decision in State v. Palmer earlier this year means that it does. That's not the case.
If you've been putting off that sex change operation only because Uncle Sam isn't willing to help pick up the tab, good news might await you: as this story relates, by the end of the year we should have a ruling on whether gender identity disorder is a medical condition, thus allowing the cost of a sex change -- typically around twenty-five large -- to be tax-deductible.
The government might have fared better in opposing this if it hadn't chosen for its expert Dr. Park Dietz. His 15 minutes of fame came during his appearance a few years back as an expert witness for the state in the Andrea Yates case,
"Don't be puffin' on a doobie in your ride" was the moral lesson applied in a pair of 8th District decisions last week. In State v. Thompson, the police stopped a car for going through a red light, and the officer noticed the strong odor of the Demon Weed when Thompson rolled down the window of his car. When Thompson exited the vehicle -- oops, sorry for that lapse into police jargon -- when Thompson got out of the car, the cop noticed a cellophane wrapper containing what appeared to be crack on the center console. The inevitable inventory search discovered more grass and crack, and the circle was pretty much closed at Thompson's booking, where he was relieved of $1,800 in cash and a cellphone. (As an aside, when are police and the courts going to stop regarding possession of a cellphone as evidence of drug trafficking? My 80-year-old mother carries a cellphone, for God's sake.)
You work out a great plea bargain for your client, but he refuses to take it. Has this happened to you?
Probably not for at least a day or two. It happened to the lawyer in State v. Simpson, so he decided to bail, and filed a motion to withdraw as counsel. The trial court denied the motion, and last week the 8th District agreed and closed the door on that tactic.
The actual issue on appeal was whether the trial court had to hold a hearing on the motion. Way back in 1969, in State v. Deal, the Supreme Court had ruled that a trial judge was required to hold a hearing if an indigent defendant raised specific objections to his appointed attorney. The court in Simpson emphasized that the objections had to be specific; a general "I don't like this guy" isn't going to cut it. In fact, the defendant hadn't registered any complaints about his attorney, but instead relied on appeal on the fact that the court hadn't held a hearing on the motion to withdraw. Since Simpson hadn't raised any objections himself, the court held, the trial judge wasn't obligated under Deal to hold a hearing.
Simpson's Plan B was to argue that the trial court should have granted the motion to withdraw anyway. That contention met a similar fate. The court noted that the conditions for mandatory withdrawal didn't exist, which left permissive withdrawal as a basis. The court agreed that the lawyer did allege a permissive reason for withdrawal, i.e., that "Simpson was making 'it unreasonably difficult for counsel to provide Defendant with effective assistance' because he was listening to the 'advice [of] a non-lawyer' to go to trial, rather than accept the plea." But that didn't make the cut, either; it was Simpson's right to take the plea bargain or not, and a disagreement on that score didn't create the type of conflict which would justify the attorney in withdrawing.
So what's a poor boy -- er, lawyer -- to do? The obvious lesson of Simpson is that if you're going to try to get off a case, your client has to be on board: you're going to have a tougher time selling the idea that there's a complete breakdown in the attorney-client relationship if your client is sitting on the sidelines of that dispute. And even then, there should be more than just a disagreement on a plea bargain. It's hard to fault the Simpson court on this: as I said at the outset, a client balking at a plea proposal isn't exactly unprecedented, and when you sign up for a case, you do so with the knowledge of that possibility occurring. Especially when you're retained, as the lawyer in Simpson was.
If you're looking for a sure-fire method of getting off a case, though, look no farther than State v. Williams, in which the Supreme Court reversed a trial judge's denial of an attorney's motion to withdraw, where the defendant had punched defense counsel -- in full view of the jury, no less -- just prior to the mitigation phase of a capital trial. There's probably been a case or two that everybody's had where they'd have been willing to take a beating to get off of it, so if you're willing to go that extra mile, there it is.
Summertime, and the blogging is easy... At least the Monday Case Update is, because there were only about 45 court of appeals decisions last week.
There were a couple of cases of note out of the Supreme Court. In State v. Clevenger, the Court held that a trial judge can't waive or suspend costs in a criminal case after sentencing. The other case, Snyder v. American Family Ins., involves the portion of the uninsured motorists statute which says that a tortfeasor who is immune from liability (in this case, because of sovereign immunity) is an "uninsured motorist." Notwithstanding that, the Court in Snyder says that an insurance company can validly exclude UMI coverage in those cases.
Now, call me crazy, but I don't think it makes a lot of sense to have the legislature define what constitutes an uninsured motorist, and then let the insurance companies write policies which exclude that definition. Then again, the reason for that becomes a little clearer after you read this story by Ohio Public Citizen on campaign contributions from insurance companies to Ohio Supreme Court candidates.
As for the courts of appeals, there's a good case out of the 1st District on transferred intent -- A shoots at B and hits C. In this case, though, A shot at B and hit C's car. The dissent does an excellent job of discussing the history and logic of transferred intent, and argues that it shouldn't apply to an attempt to commit a crime.
The only other notworthy decisions are in the domestic area. If you've got a civil protection order case that involves spanking, you'll want to take a look at this case, in which the 5th District affirms the denial of an order where the trial judge found the spanking "excessive," but not posing "a substantial danger of serious physical harm." The father had spanked his three-year-old daughter with his hand and a piece of wood trim, which, according to the doctor, had left "purple bruising, about five centimeters in width," and an abrasion on the girl's buttocks. Spare the wood trim, spoil the child, I suppose... Here's another case that's an interesting read, although its precedential value is limited to the unremarkable proposition that a court does not err in granting child custody to one parent where the other parent is batshit crazy. And mutilating yourself, taking pictures of it, and then claiming in court that your husband did it qualifies under any definition of batshit crazy, even Blackstone's, although I confess I didn't look it up.
Finally, from the Department of Don't Say You're Sorry Unless You Mean It comes State v. Prunty, a cautionary tale from the 8th District. Prunty had been indicted for two counts of rape and one of kidnapping a 15-year-old girl, and had pled guilty to the indictment. He wrote a detailed letter to the judge explaining why he'd committed the offense, then decided to withdraw his plea. The court let him and recused itself, and at the trial the state was allowed to introduce the letter. Prunty claimed this wasn't kosher, and in violation of Evidence Rule 410, which makes inadmissible evidence of "pleas, offers of pleas, and related statements." The appellate court, though, concluded that the letter came after the plea, and therefore wasn't related. Prunty will have plenty of time to mull over his decision-making in the case; he got convicted and was sentenced to life imprisonment.
For those of you who didn't get the memo, a new forfeiture law went into effect in July. It's got it's own special chapter, RC 2981. In fact, one of the major purposes of the law was to consolidate the varied provisions on forfeiture, and a number of the older provisions, like forfeiture for corrupt activity, gang activity, drugs, and Medicaid fraud have been repealed and folded into the new Chapter.
The changes aren't purely cosmetic or organizational, however. You can get a quick-and-dirty rundown of all the changes here.
The major thrust of the law appears to be making the forfeiture process more intelligible. "Contraband" used to be defined broadly, as including both substances which were illegal to possess, and "fruits" of crime. If, for example, you grew marijuana plants and sold them for money, both the money and the plants would be considered contraband. The new law makes a distinction between the two, defining the former as contraband and the latter as "proceeds."
Instrumentalities of a crime -- items which are used to commit the crime -- are also subject to forfeiture, and are probably the area of forfeiture law most subject to abuse. For example, I have a case where my client is accused of stealing a debit card, and the prosecution has filed a petition asking forfeiture of my client's car. Why? Because he used the car to drive to the ATM to use the debit card.
The new law lays out a more concrete definition of the "instrumentality" test of forfeiture: under 2981.02(B), the finder of fact has to decide
- Whether the offense could not have been committed or attempted but for the presence of the instrumentality;
- Whether the primary purpose in using the instrumentality was to commit or attempt to commit the offense;
- The extent to which the instrumentality furthered the commission of, or attempt to commit, the offense.
That's still fairly elastic, although the "but for" test should provide some help. In my case, for example, I can argue that while driving to the ATM was the easiest method of getting there, it most certainly wasn't the exclusive one available.
There's some basic stuff about forfeiture that you have to know here, though. The "instrumentality" test is only general tests for determining whether an item in those circumstances should be forfeited. The other is the proportionality test, which essentially compares the value of the property sought to be forfeited with the gravity of the defendant's crime, and gauges whether forfeiture would run afoul of the 8th Amendment's proscription of excessive fines. (This case gives an excellent, if slightly dated -- it's a 1995 decision -- rundown of the differences in the theories, as well as a comparison of in rem versus in personam forfeiture.)
There are obviously circumstances where one test might be preferable to the other, and the nice thing with the new law is that you get to argue both. The definition of the instrumentality test is quite helpful, but if you look at 2981.01(A)(2), you'll see that one of the purposes of the new law is "to ensure that seizures and forfeitures of instrumentalities are proportionate to the offense committed." So pick your battles wisely.
The other day I was sitting over at the Justice Center, waiting for a prosecutor to show up for a pretrial, when I overheard two other lawyers talking about the birthdays they'd just had. One had turned 77 the week before. The other topped him; he was 78. I went in and told the bailiff that if she saw my sorry butt in these halls ten years from now, let alone twenty, she had my full consent to beat me to death with a tire iron. She smiled sweetly and said, "Do I have to wait the ten years?" Probably not... Frankly, at this point I'd rather spend my declining years saying "Welcome to Wal-Mart" than hustling appointed crack pipe cases at $400 a pop.
But thoughts of my impending mortality gave way to glee when I read this story:
Proceedings have been delayed in a California misdemeanor case in which the defense is claiming that police brutalized their client with a stun gun during his arrest at a shopping mall last year. That's because the defense team is now being criminally investigated for allegedly violating human experimentation laws by repeatedly using a stun gun on their client themselves during an evidence-gathering effort in a law office.
As the Daily Bulletin of Ontario, Calif., recounts the story, "The revelation came after a bizarre court hearing on Wednesday in which the attorney, Peter Schlueter, played a videotape showing his police tactics expert, Roger Clark, repeatedly zapping the client inside Schlueter's San Bernardino office." Clark also reportedly tasered Schlueter and his twin brother.
Although there are any number of clients I would've liked to Taser during my career, I don't think I would've been dumb enough to tape me doing it, and then show it in court.
Thoughts of that led me, naturally, to the contest over on PrawfsBlog to name your favorite bad legal argument. One of the best was an oral argument before the 7th Circuit a couple of years back, in which the defendant's counsel was contending that the police use of a drug-sniffing dog on the defendant's car during a traffic stop was an unreasonable search. This argument might have fared better had the Supreme Court not issued the decision in Illinois v. Caballes, rejecting that very contention, just a few months earlier. The hopelessness of the attorney's cause is demonstrated by this exchange:
Judge Sykes: Any way to distinguish [Caballes]? I mean I understand that you object to the premise.
Lawyer: I hope you can find one.
Judge Bauer: Well, what you want us to do is overrule the Supreme Court.
Lawyer: I want you to help me distinguish it, Judge. I am very disturbed.
Judge Bauer: You can be disturbed on your own free time. Why are you intruding on mine?
Here's a link to the actual oral argument; right-click on oral argument, choose "Save Target As," then download it and play it on your audio player. It's only about five minutes. After listening to it, you won't be so surprised to learn that the attorney was arrested for cocaine possession about six months later.
My nominee for bad legal argument, at least of the past week, would be the 10th District's decision in State v. Tillis. In reviewing the evisceration of appellate review of sentencing wrought by State v. Foster, the court said that appellate review was still available to correct an abuse of discretion, and gave this helpful example:
For instance, if a trial court gave disparate sentence based upon race, gender or some other suspect classification, review for abuse of discretion would be appropriate.
Yeah, I suppose if you were handling an appeal where the trial judge said that she was giving a harsher sentence to a defendant because he was black, you could argue abuse of discretion. You might also want to throw in the language of 2929.11(C), which specifically prohibits a court from basing a sentence on race or gender. And then there's that pesky Equal Protection Clause in the 14th Amendment of the US Constitution...
Probably the only thing I've whined about more frequently than the idiocy of the current sentencing laws and decisions is the idiocy of the current laws and decisions on sexual predator designations. Well, it turns out that beginning next year, I won't have as much to whine about.
Why? Because on January 1, 2008, Ohio's new sexual offender classification system takes effect. Instead of a risk-based system -- one which attempts to gauge the chances of recidivism of an offender -- it becomes an offense-based system: an offender's classification, and duty of registration, is based solely on the type of sexual crime committed. It basically sets up three classifications: "Tier I sex offender/child victim offender," "Tier II...," etc., with 15-year, 25-year, and lifetime registration requirements, respectively. Voyeurism will land you on Tier I, rape on Tier III. What's more, the new law scraps the recently established Juvenile Sex Offender Registry and Notification System; anyone 14 or over gets placed on one of the three tiers.
The motivation for this was money: it brought Ohio into compliance with the federal Adam Walsh Child Protection and Safety Act, and when Congress passed that act, it stipulated that any state which enacted the law by July 27 (Ohio's was signed by the governor on June 30) would get a 10% bonus in grants created by the Walsh Act.
Turns out that's 10% of nothing: Congress hasn't appropriated any money for the Act.
One would think that the logical starting point for a massive revision in sex offender registration would be some empirical research into how the current system is working. If one thought that, though, one would be wrong. What research has been done has not shown that sex offender registration laws have any effect whatsoever on the one thing they're supposed to affect: the incidence of sex crimes. In fact, as I mentioned several months ago, there's some basis for believing that they're actually counterproductive, in that they force sex offenders "underground," making them that much harder to track.
I'll have more on this as the new year gets closer. I'm looking forward to it every bit as much as you are.
There is probably no area of criminal law right now that makes less sense or is more confusing than sentencing. I wrote last week about the Ohio Supreme Court's determination that sentences imposed without adequately apprising the defendant of post-release controls are not merely voidable, but void -- a complete nullity. That in turn was prompted by the Supreme Court's decision a month ago in State v. Bezak, which held that a defendant who'd served his term of imprisonment couldn't be brought back before the trial court so that it could properly impose post-release controls.
But what about before the sentence is completed? RC 2929.191, which went into effect in July of last year, allows a judge to bring the defendant back to properly impose PRC. That has its own perils, as the 1st District noted last week in State v. Bond last week, in which it dealt with a defendant who'd been sentenced in 1999 to eight years in prison. The trial court hadn't properly imposed PRC in 1999, so it used the new statute to bring the defendant back, and imposed PRC at that point.
The problem? As the 1st District noted, the defendant has to be brought back for a new sentencing hearing: the judge must re-sentence the defendant completely, not just add the PRC language. The judge hadn't done a complete re-sentencing in this case, so the 1st District concluded that PRC had never been imposed, and since in the interim the defendant had completed its prison sentence, it couldn't be ever be imposed, as Bezak holds.
But as I pointed out last week, this creates all sorts of problems down the road: can a prosecution for having a weapon under disability be based upon a "void" drug conviction? That thought was raised in Judge Painter's concurrence in Bond:
So now we have perhaps hundreds of inmates serving void sentences. What might happen next?
Well, here's a thought: It could get worse. When the legislature passed 2929.191, it also amended the basic PRC statute, 2967.28, to provide that PRC is automatic: a judge no longer has to specify its imposition at the time of sentencing. As I explained last year when the bill was passed, though, there's a good chance that this is unconstitutional.
Why? Because PRC involves the executive branch -- the parole board -- imposing a punishment, a function normally reserved to the judicial branch. The Supreme Court has recognized that this creates a separation-of-powers problem. To get around it, it followed the fiction that it was really the courts which were imposing the punishment PRC provides -- or, more accurately, empowering the parole board to impose those punishments -- by specifying PRC in their sentences. The amended version of 2967.28 doesn't even recognize the separation of powers problem.
In another five years, you could wind up with a whole bunch more people who have had PRC unconstitutionally imposed, by virtue of the new 2967.28, and whose sentences are therefore void, and who cannot be resentenced.
Justice Lantzinger was one of the three dissenters in Bezak, and noted that she was "extremely troubled by the majority's application of the term 'void' to Bezak's case." I think her troubles are just beginning.
No decisions of note out of the Ohio Supreme Court, not even a nice disciplinary case or two to munch on, so let's get straight to the courts of appeals decisions:
On the civil side, The 6th District reverses the grant of a motion in limine and summary judgment in a malpractice case, holding that simply because the plaintiff's doctor was in a different specialty from the defendant did not allow exclusion of his expert testimony. The 1st District holds that the Juvenile Court could assess GAL fees against the parents in a custody fight, but couldn't hold them in criminal contempt for not paying them. The 8th District reverses a summary judgment and holds that a non-compete covenant for a physician is not automatically invalid as against public policy.
In criminal cases, the 9th District affirms a conviction for tampering with evidence where the defendant threw drug evidence away as he fled from the police. The 3rd District upholds a community control sentence in a conviction for gross sexual imposition against an appeal from the state that the presumption for imprisonment should have been invoked. The 9th District also holds that a court need not determine that the child is competent before admitting his statements made for purposes of medical treatment under 803(4); this issue is currently pending before the Ohio Supreme Court. The 4th District upholds the trial court's decision to shackle the defendant during trial; the decision's a little questionable (one judge dissented), but it has a decent review of the law on the subject.
I Think They Covered This in Criminal Procedure: One of the assignments of error in State v. Hall was that the defendant's conviction of attempted rape was against the manifest weight of the evidence.
The defendant had pled guilty.
This week, I'll take another look at what remains of judicial review of sentencing post-Foster, and do a quick-and-dirty review of the new forfeiture law. Catch you then.
Short note today. I'm taking the day off, since I'm getting a new desk for my office at home. The long-anticipated wait for the AT&T man is scheduled for today, too, to find out why I've been without phone and internet service there for the past week.
So just a couple of followups. First, there was another decision from the 8th District last week, State v. Day, that you might want to be aware of, especially if you're a judge. On a criminal plea, not only do you have to advise the defendant that he has the right to present witnesses in his defense, but you also have to advise him that if they're unwilling to appear, they can be compelled to do so by subpoena. This isn't actually a new result -- the first ruling like this was about a year ago -- but since compulsory process is a "substantial right," strict compliance with Rule 11 in this regard is required. Not doing it will get the case automatically bounced.
Second, here's something to munch on. A month ago, I discussed the Supreme Court's decision in State v. Bezak, in which the Court held that a failure of the trial judge to properly impose post-release controls at the time of the sentencing made the sentence invalid, and required resentencing.
What was interesting about the decision is its holding that if the judge failed to say the right words about PRC, the sentence wasn't merely voidable, it was void -- a nullity, as though it hadn't happened. (In fact, the opinion says "the trial court must resentence the offender as if there had been no original sentence." My emphasis.)
In Bezac's case, that wasn't possible, because he'd already served his time. But, as I mentioned last month, in Ohio a conviction doesn't become effective until sentence is imposed. Does this mean that Bezac wasn't ever convicted of a crime? I brought that up in a conversation with a couple of the boys over at the appellate division of the Prosecutor's office, and they're concerned about the validity of that argument.
And rightly so. Let's say you have a client charged with having a weapon under disability, based upon a 1998 drug conviction. You check the journal entry, and find that it says nothing about post-release controls. (Or it does, but you check the sentencing transcript and it's not mentioned there. Remember, a trial judge has to do both.) Under Bezac, that means the sentence was a nullity, but since your client served his time, he can't be resentenced, either. Since Bezac says the sentence was void, you've got an argument that the judgment of conviction is void, and if the conviction's void, you no longer have a weapon under disability charge.
Something to mull over. See you on Monday.
It's always interesting to see my clients coming to grips with some of life's lessons. Earlier this week, for example, one of them learned that when someone approaches you and says, "I need to go over to E. 152nd St. to buy some crack. Will you drive me there?," of the two possible answers, the wiser one is "no." And last week, another one of my clients learned that it's not a good idea to get arrested for a new drug case two days after you've pled guilty to one. When confronted with the fact that the judge's thoughts on disposition had changed radically, the client decided that he wanted to vacate the plea in his first case.
Helpfully, just the day before the 8th District had handed down a decision on vacating a plea, State v. Lowe. As most criminal lawyers know, with motions to vacate a plea, as in comedy, timing is everything: a motion to vacate after sentence is imposed should only be allowed in "to correct a manifest injustice," but should be "freely and liberally granted" if made before sentence.
Unfortunately, "freely and liberally" doesn't mean what it sounds like, because just about every week there's a decision or two from some appellate court in Ohio affirming a trial court's denial of a pre-sentence motion to vacate. That's what happened in Lowe, as a matter of fact: the defendant pled guilty to aggravated murder and some other charges, then changed his mind and asked that the plea be vacated. The judge denied it and sentenced him to life without parole, and the 8th District affirmed.
The opinion does give a non-exclusive set of criteria by which the trial courts are to consider such motions:
(1) whether the accused is represented by highly competent counsel; (2) whether the accused was given a full Crim.R. 11 hearing before entering the plea; (3) whether a full hearing was held on the motion; (4) whether the trial court gave full and fair consideration to the motion; (5) whether the motion was made within a reasonable time; (6) whether the motion sets out specific reasons for the withdrawal; (7) whether the accused understood the nature of the charges and possible penalties; and (8) whether the accused was perhaps not guilty of or had a complete defense to the charge or charges.
Some of these are obviously relevant, especially the latter. Introducing some evidence of a defense virtually guarantees that the plea will be vacated, as the 9th District held back in March in State v. Wheeland, where it reversed the denial of a motion to vacate in a shaken-baby case where the defense produced two witnesses who testified that the child's mother had confessed to them that she might have done it.
Actually, the Lowe criteria aren't as helpful as they might seem at first glance, because they appear to have been cobbled together from a number of other cases. (Wheeland contains a slightly different, and a bit more cogent, list.) It's not clear why any special weight should be given to whether counsel is "highly" competent, let alone what that means. The issue of "whether a full hearing was held on the motion" is mooted by the fact that the court has to conduct a hearing. Given the usually short lapse of time between the plea and the sentencing, what's a "reasonable time" for the filing of a motion? It's one thing to say that a motion to vacate is untimely because it was filed eight months after the defendant became aware of the judgment against him, but is a motion to vacate a plea untimely because it was filed three weeks after the plea instead of one or two?
That allusion to a civil motion to vacate isn't far-fetched, because the same competing interests are involved: finality versus the the interest in resolving cases on their merits. On the one hand, the finality concern is perhaps a little stronger in this context. After all, it's not like the defendant has defaulted through oversight, such as failing to file an answer; here, a defendant has walked into court and pled guilty to a crime. In many cases where a defendant later seeks to vacate the plea, there's been some indication of his uneasiness at the plea hearing, and if the judge has considered that and gone out of his way to make sure that the defendant knows what he's doing, that should count for something.
On the other hand, we're not talking about somebody getting a money judgment here, we're talking about somebody's liberty, so the counterbalancing interest in ensuring that cases are decided on their merits takes on much more weight. To be sure, an appellate court is somewhat limited in this, because a trial judge's decision can only be reviewed for abuse of discretion. Still, given that such relief should be "freely and liberally" given, a less deferential attitude might be in order.
Every week, the Ohio Supreme Court hands down anywhere from two to six published decisions: carefully crafted opinions brimming with reasoned prose, serving as precedential beacons to guide the lower courts.
At least, that's the way it's supposed to work.
Sometimes you also need to check the unpublished decisions, though. Those are the ones in which they either accept or reject cases for review, the latter outnumbering the former by about a 19-1 ratio. Last week, John Martin, who does a super job as the head of the appellate division for the Cuyahoga County Public Defender's office, tipped me off that the Court had rejected a bunch of appeals which raised the issue of whether the decision in State v. Foster could be applied retroactively to defendants who'd committed their crimes before Foster was decided, but were sentenced after it was handed down.
For those coming late to the party, imagine this scenario: Joe commits a robbery in 2005, is caught, and brought to trial in February of 2006. At that time, Ohio law provides that the sentence for robbery is between two and eight years, but that he can't be given more than a minimum sentence unless the judge finds that he caused serious harm to the victim. The day before he goes on trial, the legislature changes the law to eliminate the "serious harm" requirement. Joe is convicted, and the judge gives him the max.
Joe claims on appeal that applying the change in the law to him violated the Constitution's Ex Post Facto Clause: at the time he committed the crime, he was entitled to the minimum sentence unless the judge found that he caused serious harm, and that's the law that should have applied to him. Joe's got a real good argument; in fact, the US Supreme Court decided a roughly similar case like that back in 1984, in Miller v. Florida, holding that any change in the law which disadvantaged a defendant couldn't be applied to him retroactively.
Something similar happened with Foster. Before Foster, a first-time offender was entitled to a minimum sentence unless the judge made certain findings. Foster held that was judicial fact-finding, barred by Blakely v. Washington, and simply read that out of the statute; in other words, the judge no longer has to (or can) make any findings. The result is that a first-time offender can be given more than a minimum sentence. (The Court did the same with the presumptions against maximum and consecutive sentences.) Does this mean that Foster violates the Ex Post Facto Clause when it's applied to someone who committed their crime before the decision came down?
There are some differences, of course: Miller involved a statutory change, while Foster is of course a judicial opinion. There's also case law, though, holding that a judicial opinion which creates an "unforeseeable" change in the law cannot be applied retroactively, although that's more properly labeled a due process rather than ex post facto violation. The lower courts in Ohio, which have repeatedly rejected the ex post facto argument on Foster, have primarily hung their hats on that argument: Foster wasn't unforeseeable, because the US Supreme Court decisions in Apprendi v. New Jersey in 2000 and Blakely in 2004 "gave notice" that a change in the sentencing law was forthcoming.
There are all kinds of problems with that argument. Prior to Foster, every district except the First had rejected the contention that Blakely invalidated Ohio's sentencing scheme. As for Apprendi, Nostradamus himself couldn't have predicted that it would affect that scheme; the first time Apprendi was even mentioned by any Ohio court was a week after Blakely came down.
That's not to suggest that the argument that applying Foster to cases arising before it was handed down is airtight. Foster didn't simply change the law, as a legislature would, it held that the law was unconstitutional. While a defendant may have a right to have the law as it existed applied to him, he certainly doesn't have the right to have an unconstitutional law applied to him -- he can't claim that he's entitled to judicial fact-finding before a more-than-minimum sentence is imposed on him, if judicial fact-finding violates his Sixth Amendment rights. The net result of buying into the ex post facto argument here is that no first offender who committed his crimes before Foster could be given more than a minimum sentence, and that no one (again, pre-Foster) could be given maximum or consecutive sentences, because all of those required judicial fact-finding, which is no longer allowed. And that's going to be a tough sell.
The identity of the buyer is the next question. John advised me that the Ohio Public Defenders Office is deciding whether to seek certiorari in the US Supreme Court from the spate of rejections last week, or just go into habeas. I think that's a no-brainer. As Doug Berman over at Sentencing Law and Policy has pointed out, the US Supreme Court is the most pro-defendant sentencing court in the country. Maybe the only one, in fact.
One thing to keep in mind. If you're representing a defendant who committed his crimes before Foster was handed down, you've got to preserve the issue, which means raising it at trial as well as on appeal. If you need some language and law for it, you can check out the Memorandum in Support of Jurisdiction that was filed by the OPD in this case.
By the way, sorry this is getting up on the site relatively late for today. I'm now into my 6th day without home internet or phone service, as AT&T is surpassing standards of suckitude which even I had thought them incapable of achieving. I had this half-written last night when I left the office, but forgot to save it, and it was lost when Microsoft decided I needed an update to my office computer, and also decided it needed to reboot the computer after installing it.
I think the Luddites might have had a point.
A woman calls 911 and claims that her husband is beating her. The police come, arrest the husband, and take him away. The next day the woman tells the police that it didn't really happen, and she doesn't want to press charges.
Not an unusual situation by any stretch; it happens all the time. In fact, it's becoming increasingly common for police and prosecutors to apply pressure to the woman, and to threaten her with her own set of criminal charges if she should insist on recanting. That's exactly what happened in State v. Manzell: after the defendant was indicted for felony domestic violence, the alleged victim recanted. The prosecutor charged her with falsification, and she pled guilty, and was sentenced to thirty days in jail.
The prosecutor then went ahead with the case against the initial defendant, and got a conviction, using the testimony of the same witness his office had just successfully prosecuted for falsification.
The central argument of the defense on appeal was that the prosecutor had engaged in misconduct by relying on perjured testimony in order to obtain the conviction. This theory is based largely on the Supreme Court decision in State v. Iacona, which held that
The knowing use of false or perjured testimony constitutes a denial of due process if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury. . . Such a claim is in the nature of an allegation of prosecutorial misconduct, and the burden is on the defendant to show that (1) the statement was actually false; (2) the statement was material; and (3) the prosecution knew it was false.
The State countered that the victim had been convicted of falsification, rather than perjury, a distinction that's lost on me. To their credit, the appellate court didn't put much stock in it, either. The majority rejected the defense argument, though, noting that the defense strategy had been to use the falsification plea to destroy the victim's credibility; in essence, that the defense efforts in that regard made it unlikely that "the false testimony could have affected the judgment of the jury."
There's some merit to the majority's argument. Actually, this is a highly unusual case of the use of perjured testimony: unlike Iacona and every other case I've seen on this issue, here the defense was aware of the fact that the prosecution was using false testimony. And, of course, there's an argument that it wasn't false at all: we don't know whether the victim was telling the truth when she said the defendant had struck her, or when she pled guilty to a charge that she wasn't telling the truth when she said the defendant had struck her.
Still, to me it just doesn't pass the smell test to prosecute and convict someone of making a false statement, and then turn around and prosecute and convict someone else based on the premise that the statement was in fact true. This led to a number of absurdities, as the dissenting judge points out:
The prosecution of this matter put Deputy Flowers, the charging law enforcement officer, in a particularly untenable position. As a prosecution witness in the case against appellant, the deputy testified on direct examination that "[a]ll of our evidence said" that domestic violence had occurred. However, the deputy later affirmed during cross-examination that he "believe[d] Shela had, in fact, lied and made a false report of domestic violence."
What happened here might be technically legal, but it doesn't make sense, and it doesn't sound right. And those last two should count more than being technically legal.
This is going to be a little shorter than usual. I didn't have phone or Internet service to my home this weekend, for reasons that AT & T can't quite explain. They assure me they'll fix the problem -- by Friday. Last Thursday I spent over an hour with a guy from Westlaw trying to figure out why it won't do the same things that Lexis will, and on Saturday I went out to eat and ordered the tuna medium rare, whereupon I was told that the cook only prepares it rare. Not that there's a problem with service in this country or anything.
So let's get to it. Two decisions from the Supreme Court last week, the first holding that a speeding ticket need not allege that the speed was unreasonable for conditions, the second reversing an 8th District decision and holding that a defendant in a civil case who asserts that he wasn't served properly doesn't waive that defense by participating in the litigation. I'd reviewed the oral arguments in the Supreme Court a couple months ago, and I talked about the problems with the appellate court's decision when it first came out, so reversal wasn't a surprise. On to the courts of appeals...
Several criminal decisions of note: 6th District gives a good summary of case law regarding advising a defendant of PRC at a plea hearing, holds that court's statement that defendant may have up to 5 years of PRC, when PRC was mandatory, was sufficient when coupled with written plea agreement that correctly advised defendant of term... 2nd District reverses trial court's grant of motion to suppress, holds that exigent circumstances permitted police to pursue defendant into house in drug arrest... 8th District reverses because trial court permitted detective to give opinion testimony as to witness' truthfulness... When cop stops car for expired plate and finds out that driver isn't owner, further intrusion of asking for driver's ID is "minimal," says 9th District... A LEADS report qualifies under the business records exception to the hearsay rule, 12th District holds, also reviews other court decisions on that subject.
In the only civil decision of note, the 8th District reaffirms that employment-at-will doctrine not overridden by employee handbook, also rejects promissory estoppel argument in wrongful discharge claim.
And from the Department of Cases I Never Finished Reading: the opening line in last week's decision by the 8th District in Dinucci v. Lis:
The case at bar stems from a dispute between neighbors involving the capture and eventual safe release of a house cat.
In doing my Case Update, which appears here every Monday, I'll skim over all the personal injury, criminal, and civil procedural cases that have come out of the Ohio courts during the proceeding week. "Skim" is the operative word; I'll read the summary, maybe some of the headnotes. Most times, if I see that the major discussion in a criminal case is the insufficiency or weight of the evidence, I'll skip it, because getting a case reversed on that basis offers about the same odds as Britney Spears getting inducted into MENSA.
But lightning does strike, and last week it struck twice in the 8th District. The first case was State v. Harris, involving a DWI stop in which the police recovered a gun under the front passenger seat, resulting in the prosecution and conviction of Harris, the passenger, for CCW and having a gun while under disability.
It's quite common for everyone in a vehicle to be prosecuted if the police find dope or guns in it, and everybody usually concentrates on the concept of "constructive possession": basically, if you can reach it, you're deemed to have possessed it. As the court notes in Harris, there's another element, though: the state also has to prove that the defendant knew that the contraband was there. The court pointed to the total absence of any evidence indicating that Harris was aware that the gun was there: it was under the seat, and he didn't make any furtive movement or show any other signs, such as nervousness, indicating that knowledge.
Harris isn't a get-out-of-jail free card, to be sure. But if you've got a case involving this issue, it's a must-have, because it clearly shows that the police have to do more than than simply point to the fact that the defendant was in the car where the stuff was found.
The second case, State v. DeLuca, sounds like something out of Animal House. Greg and Michelle Roppell had gone to have their taxes prepared by Ralph DeLuca, their accountant of 20 years. Michelle gave DeLuca a "friendship hug" upon entering his office. Forty-five minutes into their work, Greg asked to use the restroom, and DeLuca got up and directed him upstairs. The court's opinion picks it up from there:
Michelle testified that as appellant was heading back to his desk he asked her for another hug, and she got up walked over to him and gave him a hug. As they were hugging, appellant slid his hands down her pants and underpants and squeezed her buttocks. Michelle testified that appellant then slid his hands up her sides, pulled up her shirt and bra, and sucked on her breasts for about 15 seconds. Michelle explained that the encounter ended when she pushed appellant away, and that appellant laughed and said that he had been waiting twenty years to do that.
DeLuca probably should've waited another twenty years; he wound up getting convicted of two counts of gross sexual imposition and being branded a sexual offender. The court vacated his conviction, though, noting that Michelle had specifically testified that
appellant did not use any force to put his hands down her pants, up her shirt, or to pull her bra up. None of her clothing was ripped. She testified that neither she nor appellant said anything during the encounter.
No force, no GSI. There was also an interesting twist to the issue of the lesser included offense, simple sexual imposition. That crime involves no element of force. It does, however, require some proof beyond the victim's testimony. The corroboration requirement, as the court notes, "is a threshold inquiry of legal sufficiency to be determined by the trial court and is not a question of proof for the factfinder." In other words, it's a legal question for the judge to decide, not a factual question for the jury. Since there wasn't any corroboration here, the court couldn't charge, and the jury couldn't convict, on sexual imposition.
I'm not sure that Deluca has much applicability, simply because the facts are so bizarre. If you've got a case like this, you've got a far more interesting client base than I do.
The police get a call saying that a guy in a red shirt and blue jeans is selling drugs from a green Oldsmobile at the corner of East 40th and St. Clair. They go to East 40th and St. Clair, and sure enough, there's a green Oldsmobile parked at the corner, and a guy in a red shirt and blue jeans sitting inside it.
Given that the vast majority of police activity depends upon information they receive from others, rather than the officers' own observations, it makes sense that the various sources of that information might control how the 4th Amendment is applied. Basically, as Melvin explains, people who provide information to the police fall into three broad categories: the anonymous informant, the known criminal informant, and the identified citizen informant. (The court cites the Ohio Supreme Court decision in Maumee v. Weisner, which gives a much more detailed analysis of this split.) The first two require some showing of reliability: generally, the police can't make a stop based on the tip unless they are able to corroborate some aspect of the tip pertaining to criminal activity. In the example of the guy in the red shirt and jeans in the green Oldsmobile, if the tip was anonymous, it wouldn't be sufficient to permit a stop unless the police also observed something indicating drug activity.
That makes sense; since the tipster is anonymous, there's no penalty to him for giving false information, and thus no reason for him to be reliable. The opposite is true for the identified citizen informant: if a person's going to identify themselves to the police, there's more likelihood that what they say is true, and so the police have a right to rely on it without further corroboration.
That's pretty much what happened in Melvin: a citizen informant had called and said he'd observed two males pull up to a house, go into the house and retrieve an "item," which they then put in the trunk and drove away. The informant had observed this on about a dozen prior occasions over the previous few weeeks, and the police testified this was consistent with drug activity. They responded to the call, saw the car, pulled it over, and found twelve grams of marijuana in a glass jar in the trunk. (I don't know about you, but I feel much safer just reading that.)
Melvin, one of the two people in the car, contested the stop. The court noted that the evaluation of a tip actually involves two considerations: the reliability of the tip, and its content. Here, the reliability aspect was met by the fact that the tip was from an identified citizen informant. Two members of the court found that the content was insufficient, though: observing someone putting an "item" in a trunk, without any further description of that "item," wasn't enough to believe that drug activity was taking place.
Melvin's an excellent read on the subject of tips and police stops, but it's also interesting on another point. After the police found the marijuana, they told the two subjects that they were under arrest for "violation of state drug law," and asked if any of them had any other contraband, implying that if they 'fessed up now, rather than having it discovered at the jail, they wouldn't be charged with it. Melvin was dumb enough to believe this, and volunteered that he had two packets of cocaine in his shoe. (The cocaine was actually what he wound up being charged with.) The state argued that he thus consented to the search, but the court found that there was no basis for an arrest -- the amount of marijuana found was a minor misdemeanor, and the police can't arrest someone for a minor misdemeanor, except in narrow circumstances which weren't present here. Since Melvin couldn't have been arrested, Melvin's consent on the basis of his erroneous belief that he could be wasn't voluntary.
The state might could have argued the issue of arrest more strenuously. It's obvious that the police weren't arresting Melvin for simple possession of marijuana, but for trafficking in it, which is a felony and thus an arrestable offense. Whether he could have been convicted of it on such a small quantity is another question, but guilt isn't relevant; the only issue on the search is whether the police had probable cause to make an arrest.
That's a tricky question in itself. On the one hand, the identity of the "item" had been resolved: it was definitely drugs, and coupled with the police testimony that transporting it around in this fashion was consistent with drug activity, that might have been to establish probable cause for a trafficking arrest. On the other hand, that argument would be a much easier sell if the trunk contained a kilo of coke instead of a half-ounce of marijuana in a glass jar. Besides, all that still do the state any good: since the stop was ruled illegal, everything flowing from that is a fruit of the poisonous tree.
I didn't care for the opinions of Justice Rehnquist, God rest his soul, but he was right on the money with his observation that court decisions on warrantless searches are "something less than a seamless web."
I don't usually do disciplinary cases here, but there were a couple which caught my eye the past week or so.
The first case is Cleveland Bar Assn v. McMahon, which involved McMahon's representation of a client in an automobile accident case. The insurance company insisted that their driver, Jerri Marrs, wasn't at fault, although she'd been ticketed. In an effort to persuade them of the contrary McMahon sent the company a letter reciting the transcript of Marrs' appearance in the municipal court, in which she readily acknowledged she had been to blame for the accident.
There was only one problem: Marrs had never appeared in the municipal court. McMahon had fabricated the entire thing.
McMahon had been practicing for 32 years without any prior disciplinary record. No harm was done, because the insurance company checked the municipal court docket and found that Marrs hadn't even appeared, and so rejected McMahon's fictionalized version of what had transpired there. The opinion indicates that "[McMahon's] misdeeds. . . occurred during a particularly stressful period," but doesn't explain what that stress was. The board recommended a six months stayed suspension, the but the Court imposed an actual suspension for that time.
It may be that McMahon is intended as a warning shot across the bow, much as the Court did 12 years ago in the Fowerbaugh case, where it laid down a flat Syllabus rule that where misconduct involved "dishonesty, fraud, deceit, or misrepresentation. . . an attorney will be actually suspended from the practice of law for an appropriate period of time." The opinion in McMahon closes with the observation
Lawyers who choose to engage in fabrication of evidence, deceit, misrepresentation of facts, and distortion of truth do so at their peril. They are admonished that the practice of law is not a right, and our code of professional misconduct demands far more of those in our profession.
Of course, the Court's citation to numerous cases in McMahon where a lesser sanction has been imposed for those offenses is an implict acknowledgment that Fowerbaugh doesn't really mean what it says. Maybe it does now. Then again, the the myriad factors which come into play in disciplinary cases demonstrate the wisdom of Justice Resnick's dissenting view in Fowerbaugh that the Court's function is "to give guidance as to what conduct constitutes a violation of the Disciplinary Rules," and not "use syllabus law to mandate a particular sanction once a violation has been found."
The result in the second case is more questionable. Disciplinary Counsel v. Rafidi involved a Youngstown lawyer who was representing a Mr. and Mrs. Glenn in a bankruptcy. A cousin of Mr. Glenn, named Richard North, came to visit them. A couple of nights later, DEA agents showed up at the Glenn's house and told them that North had been arrested for drug trafficking, and asked to search the house. Glenn consented, and the next day went to the DEA office for an interview. Glenn got the impression the agents were accusing him of involvement in the drug scheme, so he terminated the interview and called Rafidi.
Rafidi quoted him a fee of $500 to talk with him, but accepted $250. During the conversation, Rafidi asked if North was represented by counsel. Without telling Glenn, Rafidi subsequently visited North in jail, and agreed to represent him for a $20,000 fee. He did not disclose the dual relationships to either client, and obviously didn't get a waiver of the potential conflict from them. Glenn was never contacted further by the DEA, and wasn't charged with anything relating to the crime. The Court's opinion notes that "respondent was able to negotiate a plea for reduced charges, and North received a prison term significantly reduced largely through respondent's efforts."
Again, the board recommended a six-month stayed suspension. Again, the Court rejected those recommendations, and instead imposed an actual suspension of six months.
Rafidi obviously violated the rules against soliciting clients and representing multiple clients with conflicting interests. On the other hand, there certainly was nothing particularly flagrant about Rafidi's misconduct. Although he'd only been practicing since 2000, he didn't have any prior disciplinary record, either. This is certainly not the first case involving solicitation or conflict of interest, but the Court's opinion doesn't contain any discussion of precedent as it pertains to the appropriate sanction, and in fact cites not a single prior decision on either of these issues. The entire explanation of why the Court felt harsher discipline was warranted is contained in two sentences:
Respondent committed multiple ethical violations when he failed to disclose conflicts in his representation of two clients and he took advantage of an incarcerated individual's vulnerability to further his own monetary self-interest. We find that these actions warrant a stricter sanction than the stayed suspension recommended by the board.
It seems to me that a sanction for a disciplinary case should primarily include a consideration of the harm done by the violation and the lawyer's record of misconduct. In both cases here, and especially in Rafidi's, the court does a poor job of explaining why those factors warranted the sanction that it imposed.
In Fowerbaugh and other cases, Justice Resnick had argued that substantial deference should be paid to the board's decisions as to the appropriate sanction. It's a closer call in McMahon's case than Rafidi's, but a legitimate argument could be made that the Court would have acted more appropriately had it exercised such deference in both cases.
Got another letter from my good friend Ryan Zempel. As I explained a while back, Ryan's puts out a newsletter for the Institute for Legal Reform, a lobbying group agitating for reform of the tort system. Perhaps in light of the recent escapades of Michael Vick, this is a poorly-chosen metaphor, but the ILR has a dog in this fight: they're an affiliate of the US Chamber of Commerce, which has been a champion of business interests for decades. My blog caught Ryan's attention when I posted a note about how personal injury law has substantially devalued the concept of personal responsibility, but apparently Ryan didn't read enough of the rest of my stuff to realize that I'm not exactly a toadie for big business, either.
At any rate, in his latest email Ryan breathlessly informed me that the Ohio Academy of Trial Lawyers -- which consists largely of members of the personal injury bar -- was changing its name to the "Ohio Association for Justice" in an attempt to conceal its "true agenda." Well, that might be, but in this case the accusation has a bit of the pot-kettle ring to it. If the truth in advertising laws were enforced here, OATL would be named the Ohio Association of Ambulance Chasers, and Ryan would be writing a newsletter for the Institute to Screw Consumers.
As you may have gathered, this is one of those days when instead of telling you in mind-numbing detail about some recent case, I'm going to just surf the net and inform you of some of the legal-related stuff floating around out there. Well, actually, I will tell you about some recent case, although not in mind-numbing detail. It's the 12th District's decision last week in Jordan v. Civil Rights Comm., in which a dentist appealed the commission's finding that he'd engaged in sexual harassment of a dental assistant, which was summed up as follows:
Smith testified that appellant constantly followed her around the office and, on the second day, grabbed her from behind and pulled her against him. Appellant stated to Smith that his wife was going on vacation and suggested that Smith should meet him at a restaurant called The Dock in Chillicothe. Smith also testified that appellant frequently invited her over to his home to show her his horses and described to her in detail the horses' breeding habits. According to Smith, appellant repeatedly suggested that she "needed a sugar daddy" and that he had several friends that would "drop money" on her if she had sex with them.
Additionally, Smith testified that appellant talked to her about taking Viagra and that the "prostitutes in Vegas hated when men took Viagra because it wore them out." She claimed appellant stated, "he couldn't tell anything about my body type because he hadn't seen me undressed." Smith testified that appellant wanted to show her nude photos from the internet and told patients that she used to work in a strip club.
The dentist didn't deny doing any of this, he simply argued that it wasn't sufficient to establish the "severe and pervasive" element under the hostile environment theory. You know you're in trouble when your defense in a sexual harassment case is not that you were crude and offensive, but that you weren't crude and offensive enough.
But let's take a break from the the law, and go back to roaming the Internet, where we find things like this story, which tells about the Connecticut chapter of the NAACP raising a stink because the state's Commissioner of Public Safety has a coffee cup with a Confederate flag on it.
Well, that's overstating it a bit: the mug is a souvenir cup purchased by the Commissioners sons during a trip to Gettysburg, and features a painting of Pickett's charge, in which the Confederate soldiers, for some reason, are carrying a Confederate flag; the flag in question is about the size of a postage stamp. Now, I'm not a fan of the Confederate flag by any stretch; I scratched a visit to South Carolina simply because they still fly the flag there near the state building. On the other hand, if anyone in the NAACP believes that, in light of the problems facing the black community in this country, this whole coffee cup thing was worth the expenditure of more than about eight nanoseconds of thought, you have an organization which desperately needs to reorder its priorities.
And on the brighter side, last week's bird cage matting had a story about Joshua Albers, who got into an altercation with the local police here on his way home from his wedding reception. His defense attorney did an excellent job marshalling the medical evidence to show that the actions of Alber, who was a diabetic, were actually due to his plummeting blood sugar levels, and the prosecution dropped 11 felony counts down to 3 misdemeanor charges. I thought the attorney had done a really good job until I read this story from -- where else? -- Los Angeles:
A diabetic attorney who claimed his judgment was impaired by a hypoglycemic attack was acquitted of smuggling heroin and methamphetamine to his jailed client.
John Kolfschoten, 62, had been charged with one count of conspiracy to commit a crime, one count of bringing drugs into a jail facility and two counts of transportation of a controlled substance.
During the weeklong trial, Kolfschoten testified he thought he was delivering family photographs to the jailed murder defendant. His dangerously low blood-sugar level at the time let the idea of inspecting the package slip his mind, the lawyer testified.
I guess we've moved from the "Twinkie Defense" to the "I Need a Twinkie" defense.
Got two weeks of stuff to plow through, so let's get to it... Last week's dog-bites-man story out of the Ohio Supreme Court was the decision nullifying Gov. Strickland's veto of the bill passed in a twilight session of the legislature last year essentially gutting a large portion of Ohio's consumer protections. The Court also upheld Toledo's pit bull ordinance against constitutional attack, in Vick v. Toledo. And yes, I did make that name up; the case is actually Toledo v. Tellings.
In the courts of appeals, a judge in a legal malpractice lawsuit arising out of a divorce case had issued an order compelling the production of the plaintiff's successor attorney's file; the 1st District reversed it on the grounds that the judge should have conducted a hearing first, and the opinion contains an excellent discussion of attorney-client privilege and work product in that context. And while you're standing in line for the elevators at the Justice Center here in Cleveland, you might want to check out these 8th District decisions on when a court can dismiss a case or grant a default judgment for failure of the other side to appear at a pretrial.
The 8th District rejects a disproportionality argument on a 29-year sentence for aggravated burglary, attempted murder, kidnapping, and escape. The 5th District holds that defendant's arrest for a post-release control violation didn't automatically terminate PRC, and police could still conduct a warrantless search of his house, because granting consent to such a search was a condition of PRC. The 11th District vacates a plea because the trial court didn't make an inquiry of defendant's reasons for requesting new counsel on the day of trial. The 10th District reverses a community-control sentence on a second-degree felony, holding that the trial court failed to make the findings necessary to overcome the presumption for a prison sentence. The 12th District upholds an arson conviction where a student tossed a "bottle rocket" into a trashcan, saying that the explosion, which only melted part of the liner of the can and produced some smoke, was still sufficient to warrant conviction under the statute.
And in the Somebody Didn't Get the Memo Department: the trial court in State v. Grimes imposed a ten-year consecutive sentence on two robbery counts, stating that "a minimum sentence would demean the seriousness of the offenses" and "would not adequately protect the public," and that "consecutive sentences are necessary to protect the public" and "to adequately punish the defendant." All those judicial findings, of course, were eliminated by State v. Foster. Which had been decided six weeks earlier...
The defendant's on trial for felonious assault with a gun. A gun isn't found, and there's no evidence that the defendant used one, other than the testimony of the victim and his girlfriend: no gunshot residue test, no shell casings, no medical evidence consistent with a gunshot wound. The defendant's son has been indicted in a separate case for tampering with evidence, under the theory that he was the one who hid the gun. In the defendant's case, the prosecution wants to call the son as a witness. The son's lawyer informs everybody that the son will take the 5th; the prosecutor calls him nonetheless. Problem?
Yesterday, the 8th District ruled there was, in State v. Oldham, and reversed the defendant's conviction. The case presented the question of whether the state can call a witness, knowing that he's going to invoke his 5th Amendment privilege.
The answer to that question isn't quite as clear as it probably should be. I handled the appeal, and when I first researched the issue I was surprised to find that the two leading Ohio Supreme Court cases on it both dealt with whether the defendant could call a witness who was going to take the 5th. There's dicta in several cases about a prosecutor not being allowed to do it, but nothing definitive in Ohio law.
The court does an excellent job going beyond Ohio law, summarizing the US Supreme Court rulings on it. To be sure, they're not hard-and-fast rules, either; the court sums up the main test articulated in a 1963 USSC decision this way:
First, the Court stated that error may be based upon prosecutorial misconduct when the government makes a conscious and flagrant attempt to build its case out of inferences arising from the use of the testimonial privilege. Second, error may arise when, in the circumstances of a given case, inferences from a witness' refusal to answer added critical weight to the prosecution's case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant.
What really sold that point in my case was the prosecutor himself; in closing argument, he'd addressed the issue of the son's invocation of the 5th Amendment as follows:
Gun. The big thing here is the gun is not recovered. Where is the gun? I think we know where the gun is. Mr. Reese [the defendant's son] had the gun. He told you he was - he told the defense he's under indictment for hiding the gun. It's called obstruction of justice. Okay. He tells you he was there, and he kind of told you his version of it, but then he decided to acknowledge his Fifth Amendment rights. You can make of that what you want.
He was a stand-up guy about it, though: he readily acknowledged in oral argument that it wasn't his finest hour.
A tip of the hat to the court: as far as Ohio cases go, Oldham is probably the most lucid exposition on the subject. This type of situation is uncommon, but it does come up from time to time, so it's a good decision to keep handy. The nice thing about it, too, is that it's pretty clear-cut, and it's unanimous. It's been my experience that if a judge is presented with a legal question in the middle of a trial, he's going to be guided by two considerations: First, he doesn't want to get reversed, and second, he doesn't want to spend a lot of time wading through a bunch of opinions to decide the question. If you've got a situation where the state wants to put a witness who's going to take the 5th on the stand, and you can hand the judge a copy of Oldham and say, "Well, judge, that's the same thing the prosecutor did here, and the court of appeals reversed," that's probably all you're going to need to do.
I was going to go on vacation for the rest of the month in a show of solidarity with the Iraqi Parliament, but instead yesterday found myself skimming through some recent 8th District opinions, and came across last week's decision in State v. Shie.
Actually, it was the second time that Shie had been before the appellate court. He'd been charged with multiple counts of rape involving a 14-year-old girl (he was 31), and had pled out to four counts of sexual battery, after which the trial court sentenced him to four years -- one less than the maximum -- on each count, and ordered them served consecutively. He appealed the sentence, and it was remanded because of Foster. The judge gave him the same sentence, and he appealed again.
What caught my eye was the court's disposition of his argument that the offenses to which he pled were allied offenses, and thus should have merged at sentencing. The court affirmed its decision in the earlier appeal "that, by pleading guilty, appellant had waived his argument that the offenses of which he was convicted were allied offenses of similar import."
That didn't sound right, and it may well not be. I won't get into the whole history here, but the short version is that there's another case from the 8th District in 2000, State v. Stansell, which says the exact opposite:
Where a defendant pleads to multiple offenses of similar import, and the trial court accepts the plea, the court must conduct a hearing and make a determination, before entering judgment, as to whether the offenses were of similar or dissimilar import and whether or not there was a separate animus with regard to each crime committed.
Shie is based on the idea that a guilty plea waives all claims of error leading up to it, and that's pretty much true: that's what happens to a speedy trial argument, or a suppression issue. However, a guilty plea doesn't result in a conviction; the conviction doesn't take effect until sentence is actually imposed, and part of determining what crimes you should be convicted of is the allied offenses analysis. I think the Stansell court is correct in holding that that analysis, since it must necessarily come after the guilty plea, isn't waived by the plea.
A couple of caveats here. First, as Stansell also recognizes, if you don't object to the trial court's failure to consider whether the offenses were allied, you waive the right to assert that on appeal. That means it can only be analyzed under either a plain error standard, or an argument that trial counsel was ineffective for not objecting. That's not quite as bad as it sounds; obviously, if the judge has sentenced you to consecutive terms for crimes which should have merged, you have a pretty good argument that the outcome would have been different but for the error, which is the standard you have to meet. On a guilty plea, though, the facts aren't very well developed, and that makes it much harder for you to show to an appellate court that the charges should have merged.
Second, there is an element of unfairness here, which I think is what also motivated the court's ruling in Shie. The defendant was initially charged with 20 counts, including three of rape, and all the counts had sexually violent predator and repeat violent offender specs. Shie obviously received a substantial bargain in getting all that dropped to four third-degree felonies. To allow him to turn around and argue that those four charges should really be merged into one was obviously more than the court was willing to buy. And there's nothing to indicate that they should've merged into one; these incidents took place over a period of time, and it's quite likely that the four charges represented four separate incidents, which of course wouldn't have merged anyway.
Still, it's something that you might want to look at. Given that Foster eliminated the barrier to imposition of consecutive sentences, arguing that the offenses merged is a good way of preventing that from happening.
Yesterday I discussed the recent 8th District decision in State v. Quinones, and what ramifications it might have on search and seizure law. At the end, I mentioned in passing that the case is also helpful in that it holds that court costs can't be imposed on each charge, but only on a single case. Silly me and my mixed-up priorities. As this morning's fish wrap makes clear, the significance of the case does not lie in such trivialities as the 4th Amendment to the United States Constitution, but with the impact that last point about court costs might have on municipal finances. According to the news accounts, various and sundry city officials described the decision as "devastating" and having a "huge impact" on their revenues. Boo hoo. It's no secret that many communities around here look at traffic enforcement the same way the Girl Scouts look at cookie sales. It shouldn't have taken three appellate judges to figure out that there was something wrong with a system that could, as in Quinones' case, impose more in court costs than in fines.
I had an oral argument in the 8th District here last week, and I hadn't gotten more than a sentence into my spiel before the panel began bombarding me with questions. We went back and forth the entire time on the range of issues presented in the appeal, with their forth usually getting the better of my back. I enjoy that sort of thing. So yesterday I have an oral argument before the 9th District up in Summit County, and none of the three judges said a peep the entire time. A little bit unnerving.
The case that I had last week, which I briefly discussed here, involved a sentencing issue. I also filed a brief in the Ohio Supreme Court last week on that issue in another case. (Helpful Hint: the brief was due on Thursday. The last pick-up at the Kinko's/Fed Ex on East 9th St. is 9:00 PM. We got it there at 8:45 PM on Wednesday. Plenty of time to to spare.) Which got me to thinking about sentencing. As just about everybody realizes, it's a mess.
Any sentencing scheme involves tradeoffs between judicial discretion and uniformity. You don't want judges handing out wildly disparate sentences for the same crimes, but you don't want every judge to hand out the same sentence for the same crimes, either; a judge should be able to take into consideration the specific facts regarding the defendant's history and the harm caused by the crime.
The passage of the SB 2 sentencing reforms in 1995 was supposed to solve that problem. It still allowed a sentencing range, but it defined the criteria judges were supposed to use in fashioning a sentence. What's more, it achieved some consistency in sentencing by virtue of the various presumptions it created. That one defendant would get probation for a serious crime while another would be imprisoned became less likely because there was a presumption of imprisonment for 1st and 2nd degree felonies. Yes, one judge might still give out prison sentences to a first offender where other judges wouldn't, but the sentence was more likely to be a minimum one, because there was a presumption of a minimum sentence for offenders who hadn't been to prison before. Yes, some judges might sentence toward the upper range while other judges would sentence toward the lower range, but because of the findings that had to be made to impose maximum or consecutive sentences, those sentences were rare, and terms of imprisonment tended to be bunched toward the middle.
Of course, all that went out the window with the Ohio Supreme Court's determination in Foster that those presumptions were unconstitutional because they were "judicial fact-finding," contrary to the US Supreme Court decisions in Blakely and Apprendi. Now, a judge doesn't have to make any findings before giving a defendant more than minimum time, or maximum time, or consecutive time. (Interestingly, the presumption in favor of imprisonment for 1st and 2nd degree felonies was not affected by Foster.)
This is a classic example of the Arab curse, "may your wishes come true." Following Blakely, defendants argued that Ohio's sentencing scheme violated that decision because it allowed judges to find facts that only juries were allowed to. So the Ohio Supreme Court comes along and says, "Yeah, you're right, so we'll just take out the portion of the law that requires those findings to be made," and the net result is that a defendant's Sixth Amendment jury trial right is protected, at the cost of making it easier for judges to hand out maximum or consecutive sentences.
Or, really, any sentence at all; as one of the judges on my panel last week noted, the major effect of Foster might have been to abolish judicial review of sentences. That may be overstating it, but not by much; we've pretty much returned to the pre-1995 era, when sentences were only reviewed for abuse of discretion.
And maybe, just maybe, that's all you're ever going to get. We've conducted a grand experiment in this country with sentencing over the last twenty-five years, and the results have not been particularly edifying. The Federal Sentencing Guidelines were supposed to establish some consistency, but that was achieved at the cost of imposing sentences in many cases in which even the judge who imposed it did not believe it was fair or appropriate. The Ohio sentencing scheme was supposed to introduce consistency while still allowing some discretion, and now lies in tatters. I don't know how you repair it. I don't know if you can. And, given the results to date, I'm not sure you should.
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