8th District Roundup - Massacre on Lakeside
A summary of the criminal cases handed down by the Cuyahoga County Court of Appeals last week. (Trust me, OBAR's headnotes will not read the same way:
State v. Hamilton: Defendant files motion to vacate plea two years after sentencing, primarily because he finds out he’s being deported. Record shows that court told him about that possiblity, so hasta la vista, baby.
State v. Randall: Run-of-the-mill felonious assault case in Cleveland (a bunch of guys shoot at another bunch of guys) with run-of-the-mill claims of insufficiency and weight, leading to run-of-the-mill affirmance of conviction.
State v. Bell: Defendant and his buddies shoot up a car with a bunch of people in it – it’s déjà vu all over again, as Yogi Berra would say – and, after post-Foster resentencing, court upholds new sentence against ex post facto challenge and claim that court didn’t consider sentencing criteria. I'll have more on that last issue tomorrow.
State v. Laboy: Another Foster ex post facto claim, the result here distinguished only by the court’s mangling of the US Supreme Court's decision in Miller v. Florida.
State v. Glass: Defendant convicted in bench trial of breaking into warehouse, damaging industrial machine. Defendant argues that testimony of what machine sold for (which established damages) was hearsay because no indication that witness had personal knowledge of it. Court rejects this, holding that claim that it wasn’t based on personal knowledge is pure speculation. Also rejects claim that judge’s announcement of guilty verdict is conviction of lowest offense, under State v. Pelfrey, since announcement isn’t same as jury verdict, as long as judge puts degree of offense into JE.
Court also rejects ineffective assistance of counsel claim based on failure to object to hearsay evidence, since court had held it wasn’t hearsay evidence. Interesting question: what if IAC claim had been based on failure of counsel to explore on cross whether witnesses had personal knowledge of sale? (Given their position in company, it was likely that they didn’t.) We’ll never know.
State v. Craddock: In fourth appeal of sentencing, court upholds sentence against Foster ex post facto challenge, also holds that trial court was not obligated to rule on defendant’s successive motions to vacate plea because of res judicata (same issue litigated in first motion) and because remand merely for resentencing didn’t permit trial court to consider motion to vacate plea.
State v. Golly: Police see defendant walking down street, he sees them, hides a bottle in his coat. They suspect him of violating open container law, stop him, pat him down, find container, decide to arrest him “for his own safety” because he’s intoxicated. Court affirms trial judge’s grant of motion to suppress, says arrest for open container was invalid because that’s a minor misdemeanor and you can’t arrest for it, and claim that defendant was arrested to protect himself was just so much bullshit. Well, okay, they didn’t say it that way. But they could have.
State v. Johnson: Court says that trial judge’s question “do you understand you have a right to cross-examine witnesses” is sufficient to satisfy Rule 11(C) requirement re advise on right of confrontation. Defendant also claims that trial judge erred by not asking him whether plea was coerced (charges against his mother were dismissed in return for plea), court says that question re coercion only requires “substantial” compliance, meaning defendant has to show prejudice in that he wouldn’t have made the plea otherwise. Court says defendant can’t show prejudice here.
State v. Nance: Another shooting case, except defendant had a better aim in this one. Agg murder conviction upheld against claim of insufficient evidence of prior calculation and design (which essentially was: defendant in upstairs bedroom, got gun, walked downstairs and shot victim). Also holds that defendant in common area of apartment complex has duty to retreat re self-defense. Most mystifying part of opinion: Court quotes victim as saying, right before shooting, “F--- that hoe a ***n---. I can drink what I want to drink.” Hey, guys, go with the dashes, or go with the asterisks. One or the other.
State v. Willis: IAC claim for withdrawal of motion to suppress in CCW case. (Am I the only person in this county who doesn’t have a gun?) Police respond to call of shots fired, see vehicle go around block, return. Car pulled away, police chase it, it pulls over. Driver argumentative, very sweaty, very nervous. Court says that “totality of the circumstances” justify search of car, and finding of gun in glove compartment. One cop testified that one of the factors was defendant coming back around the block, because “criminals sometimes return to the scene of the crime.” I am not making this up.
State v. Montgomery: Aggravated murder conviction (guess how victim was killed? Hint: it wasn’t a knife) upheld on delayed appeal on the basis of violations of Blakely; court says that agreed sentence doesn’t implicate Blakely.
If you're keeping score at home, that's eleven decisions, ten for the state and one for the defense. In fairness to the court, that's pretty close to how it should have come down.