What's Up in the 8th
Not a good week for women in Cuyahoga County; the five criminal cases on appeal involved two domestic violence convictions, and one where the defendant had killed a rape victim. Not a good week for defendants, either; after last week's shutout -- criminal defendants went 0 for 8 -- we finally get a reversal in a criminal case, but it turns out to be a reversal of a grant of a motion to suppress.
In State v. Raines, the cops had seen what they believed was a drug transaction, and stopped the car. They asked the driver "whether he had anything that would hurt the officers, any kind of weapons, or anything illegal on his person," and he obligingly answered that he had a rock of cocaine in his pocket.
The trial court held that Raines' statement had to be suppressed because he wasn't advised of his Miranda rights, finding that he was "in custody" at the point he made the statements, because he wasn't "free to leave." However much I might like that result, it's wrong, at least under current Fourth Amendment jurisprudence. (The majority cites a number of Supreme Court decisions which essentially establish a "Terry stop" exception to Miranda.) In the absence of a prolonged detention, the police can do what they did here.
A more questionable result occurs in State v. Antenori, where the defendant pled guilty to involuntary manslaughter and felonious assault, then complained on appeal that the court should have merged the offenses since they were of similar import. The court never reaches the question, holding that the defendant waived the issue by pleading guilty.
There's some law to back this up; there's a couple cases, here and here, out of the 7th District to the same effect, and so has the 10th. On the other hand, there are a number of other districts, like the 1st, which have come to a contrary conclusion. In fact, just a few weeks back, in State v. Alford, another panel in the 8th held that a robbery and a kidnapping for sexual motivation merged, despite it being a plea.
The court's opinion rests first on the contention that the defendant waives any non-jurisdictional defects by pleading guilty. That's hard to buy, since the allied-offenses analysis would have to come after the plea, just as it would have to come after a jury verdict. (The statute provides that the defendant may be charged with more than one allied offense, but convicted of only one.) How does someone waive something which hasn't happened yet?
The second argument is that it's not fair for the defendant to benefit by having charges reduced in a plea bargain, and then have them further reduced by a merger. This seems to miss the point in two aspects. First, it assumes that the defendant has obtained a benefit from the plea; what if he pleads guilty to the indictment? Second, the State is just as aware of the facts, and the potential for merger, as the defendant is; it can hardly claim surprise.
Still, if you're a defense attorney entering a plea to what might be allied offenses, keep in mind that you're not going to be able to raise that issue in the 8th. At least not this week.
In the civil arena, this week's lesson is that if you're going to sue a client for fees, in order to get summary judgment you're going to have to submit some evidence that the fees are reasonable, in addition to the proof of the fee agreement and the hours expended. That's what the court concludes in Summers & Vargas Co. v. Abboud, and while the court relies almost exclusively on divorce cases involving an award of fees, which presents a slightly different question, the result is probably right, and easily remedied: the court remands the case solely for a hearing on the reasonableness of the fees.
One other oddity about Abboud: the firm was representing Abboud in a federal criminal prosecution, and Abboud then hired another attorney to be lead counsel, who said "not worry about anything because the sentencing would be favorable to Abboud because the attorney was instrumental in getting the sentencing judge appointed to the federal bench." Bill Summers, who I know personally and who's about as straight up a guy as you're going to find, promptly requested a hearing before the judge to discuss the improper representation. For his troubles, Abboud counterclaimed against Summers and the firm, arguing that they'd been guilty of malpractice. Good ending to that, though; the court of appeals affirms the trial court's tossing that claim.