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Once bitten, twice shy

Back in March, the 8th District decided State v. Casalicchio, which involved the question of whether a sentence imposed without advising a defendant of post-release controls was void, or merely voidable.  Nine months earlier, the Supreme Court had held in State v. Bezak that it made the sentence void.  A few months after that, though, the Supreme Court backed off its earlier pronouncement in State v. Foster that sentences handed down pursuant to the sentencing scheme found unconstitutional by Foster were void, and in State v. Payne declared that those sentences were merely voidable.

Got that so far?  The 8th District thought it did, deciding in Casalicchio that Payne implicitly overruled Bezak, and that PRC-less sentences were merely voidable.  The opinion in Casalicchio wasn't exactly politic, finding that "the reasoning in Bezak was flawed," something that court of appeals judges don't normally say about superior courts.  Sure enough, not a week later the Supreme Court handed down State v. Simpkins, in which they specifically upheld Bezak's finding about void sentences.  Suitably chastened, the 8th District reconsidered and issued a new decision in Casalicchio that was in accord with the Supreme Court's void/voidable distinction. 

Last week, the 8th District had another chance to "overrule" a Supreme Court decision.  They blinked.  They probably shouldn't have.

The facts of the case in State v. Chambliss were simply bizarre.  The three defendants were charged with major drug offenses, but the state was reluctant to disclose its informant, so it negotiated a deal in which the defendants would plead to lesser offenses, the state would recommend community control sanctions, and if the court wasn't agreeable, the state would consent to a withdrawal of the pleas.  The pleas were taken in front of a different judge, and when the regular judge returned for sentencing, he balked at the deal.  The pleas were withdrawn, and the case was set for trial on April 8, 2008, twelve days later.

On the day of trial, one of the attorneys pointed out that the search warrants and affidavits in the case had been sealed because of concerns over disclosing the informant's identity, and that if the affidavits weren't unsealed so that he could determine whether a motion to suppress was warranted, he couldn't serve effectively as counsel.  At which point, things went all to hell:  the judge removed the attorneys, all of whom had been retained, ordered the defendants to retain new attorneys within ten days, and remanded the defendants to jail. 

The appellate court vacated the remand three days later, and on expedited appeal had little trouble finding that the remand was improper, endorsing the 6th District's view that

Where the trial court setting the original bail has considered all the required factors in determining the amount of bail, and there is no showing of any changed circumstances of the accused or his surroundings, the bond as set must continue as a matter of right.

The only remaining issue was the removal of the defendants' attorneys, but the court punted on that issue, following the Ohio Supreme Court's 1994 decision in State ex rel. Keenan v. Calabrese, in which that court held that removal of counsel in a criminal case wasn't a final appealable order.

As the 8th District recognized, though, Keenan wasn't the last word on the issue.  In 2006, the US Supreme Court decided US v. Gonzalez-Lopez, in which the defendant's retained attorney had been refused pro hac vice status.  The court of appeals found the denial improper and reversed, and the government appealed, arguing that the defendant had to show that the denial of that particular counsel prejudiced him.  Not so, said the Supremes in an opinion by Scalia:  the right to counsel of one's choice was so fundamental that denial was a "structural error" mandating automatic reversal.

The Chambliss court was aware of Gonzalez-Lopez.  Indeed, it virtually taunted the state for its position that the order dismissing the attorneys wasn't final:

By asserting that this is not a "final appealable order," the State is left in a position where, should they obtain a conviction at trial, said  conviction would be subject to automatic reversal. Likewise, appellants could not possibly sustain a loss -- they either "win" the case, or it is reversed. We can conceive of no greater waste of court time and resources; not to mention the cost to appellants of having to pay two sets of retained attorneys for perhaps two trials.

Nonetheless, the court felt constrained to follow Keenan.

Which is too bad.  Keenan didn't make much sense at the time, especially in light of a decision ten years before that by the Ohio Supreme Court holding that the denial of counsel in a civil case -- where, as the Chambliss court noted, there's no 6th Amendment right involved -- was a final appealable order.  And whatever sense Keenan did make was eviscerated by Gonzalez-Lopez.

I guess the 8th District figured that reversing the Ohio Supreme Court once in a year was enough.


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