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PRC and the right to counsel

Amjad Dayem had been doing his time on the agg robb case he caught back in 1997, carefully marking each day of his ten-year sentence until his release date, which was August 31, 2007.  Nine days before that, he got served with papers telling him he had to have a resentencing hearing because the judge in his case forgot to tell him about post-release controls, and if those aren't properly imposed he doesn't have to face the prospect of spending the next five years kowtowing to the whims of his parole officer.  That re-sentencing hearing, by the way, was to be conducted on August 30, 2007, the day before he was to get out.  What's the smart move for Amjad to make?

Well, at least according to the 8th District's decision in State v. Dayem, it's the wisest move in the criminal defendant's playbook:  tell 'em you want a lawyer.

This 11th-hour notification and resentencing isn't unusual.  It wasn't until 2004 that the Supreme Court held in State v. Jordan that advising a defendant of post-release controls was mandatory, and reaffirmed it in Hernandez v. Kelly.  This prompted the legislature to pass a law, RC 2919.191, permitting courts to go back and resentence defendants so as to include PRC.  The timing of the resentencing wasn't a factor, so long as it occurred before the defendant's release; back in March, in State v. Simpkins, the Supreme Court affirmed a resentencing which took place a mere five days before the defendant was released from prison.

That pretty much put the kibosh on Dayem's argument that imposing PRC after he'd served almost his entire sentence was unfair; if five days wasn't going to cut it in Simpkins, one wasn't going to do the trick here.  The appellate court gave short shrift to four of his other arguments, too.

But Dayem struck gold with the last one.  At the hearing, he'd been represented by the Cuyahoga Public Defender's office, and had asked for time to retain a private attorney.  The Court denied the request, and proceeded to resentence him.

And that's what the 8th District hung its hat on in vacating the resentencing.  It noted that the US Supreme Court, in US v. Gonzelez-Lopez (discussed here), had held that improper denial of retained counsel was "structural error," mandating reversal.  As for the state's argument that this would have resulted in a delay beyond Dayem's release date, the court pointed out that, well, that wasn't exactly Dayem's fault, was it?

What's interesting is that just a couple weeks before that, in State v. Hunter, the 8th District, in an opinion written by the very same judge, had held that the defendant in another last-minute resentencing hadn't been prejudiced by the fact that his attorney had been appointed to represent him only an hour earlier.  In that case, though, the attorney raised no claim that he wasn't prepared to go forward, and Hunter made no demand for private counsel.

What's also interesting about Dayem is its treatment of another issue, specifically, the continuing effect of Jordan and Hernandez.  Those cases had held that the trial judge had to notify the defendant at the time of sentencing, both orally and in the journal entry, of post-release controls.  After Hernandez, the legislature amended RC 2967.28 to provide that the failure of the sentencing court to do either (or both) of those things doesn't negate the imposition of PRC; in other words, it's automatically imposed for certain crimes.  The Dayem court notes, albeit in dicta, that the amendment superceded Hernandez.

But that may not be true.  As I explained a couple of years back, I think the amendment is unconstitutional.  The problem in Hernandez and the other cases was not simply that the statute required that the judge inform the defendant of PRC at the time of sentencing.  The problem was that PRC constituted a punishment, which only the courts are empowered to do.  The Supreme Court had earlier, in Wood v. Telb, solved this by creating the fiction that the courts were really the ones imposing PRC, by decreeing it at the time of the sentencing.  (Thereby "empowering" the Adult Parole Authority to implement it.)  The amendment doesn't even address, much less resolve, the separation of powers problem.

Nobody's raised that yet.  But someone eventually will.

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