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8th District Roundup

Well, my worries proved unfounded.  A couple of weeks back, I recounted my latest foray into the 8th District, involving a claim of ineffective assistance of counsel because of a failure to file a motion to suppress the defendant's un-Mirandized statements.  A week after my oral argument, one of the judges on my panel wrote an opinion affirming a conviction in a similar case, holding that the attorney probably decided not to file a motion to suppress since he knew that police always advise defendants of their Miranda rights.  I mean, they always do that, don't they?

Apparently, the same judge decided they didn't in my case, and in State v. Carter wrote the opinion unanimously reversing the defendant's conviction. 

That was about it for good news for criminal defendants in the 8th during the past fortnight.  A more typical outcome came in State v. Smith, where the court rejected an IAC claim that the defense counsel should have "more closely questioned state and defense witnesses."  Frankly, this is the kind of second-guessing of trial counsel I don't like to see; in the context of the full trial transcript, it's easy to go back and nitpick about questions an attorney might have asked.  What's more, this "coulda woulda shoulda" argument is almost invariably doomed to failure, falling under the rubric of "trial strategy" and thus being immunized from review.  It didn't help the argument that the attorney for Smith, who was charged with nine counts of rape, attempted rape, gross sexual imposition, and kidnapping for fooling around with the 12-year-old sister of his girlfriend, had gotten him acquitted of seven of the nine counts.

State v. Zimmer resulted in another affirmance.  Zimmer had filed a motion to withdraw his 2001 guilty plea to murder on the basis of newly-discovered evidence which, he claimed, showed that he was actually innocent.  There were a lot of good reasons for denying the motion, but one of them probably isn't one that the court cited:   Zimmer couldn't claim innocence, because "a counseled plea of guilty to a charge removes the issue of factual guilt from the case."  I wouldn't bank on that one too much.  The case law cited by the court doesn't support the contention, and courts in deciding a  pre-sentence motion to withdraw a plea have consistently considered claims of actual innocence. 

Another affirmance came in State v. Davy, which featured the BTSOTW (Bullshit Traffic Stop of the Week):  Davy was a passenger in a car stopped for a broken headlight, and when the cops ordered everyone to show their hands, Davy didn't, fumbled with something, then threw in on the floor of the car.  The police, of course, ordered Davy out and searched the car, and "something" turned out to be a vial containing enough Ecstasy for a very nice, and fairly large, party.  Davy's motion to suppress the search is an exercise in futility:  the court says that the broken headlight was sufficient basis for the stop, and Davy as a passenger had no standing to object to the search of the car.

The only other reversal for defendants over the holidays was State v. Kinkopf, where the court vacated a plea because the trial judge incorrectly advised Kinkopf that he was subject to three years of post-release control, without telling him whether it was mandatory or not, when in fact he was subject to five years of mandatory PRC.  The panel takes a rather circuitous route to its result, though.  They start by noting that Kinkopf never objected to the trial court's failure at the plea hearing, and thus waived all but "plain error."  Not a problem, it turns out; "the trial court's error was plain and not harmless because the trial court failed to inform Kinkopf of the maximum length of postrelease control."

It's not clear the excursion into "plain error" was necessary.  Back in State v. Sarkozy, the Supreme Court's key decision last year on failure to advise a defendant of PRC during the plea (discussed here), the court specifically rejected the state's contention that the defendant had waived the argument by not raising it earlier (albeit, in that case, in a motion to withdraw the plea, rather than at the plea hearing).

This got me to thinking.  It's become de rigeur in Cuyahoga County for a trial judge to conclude the plea hearing by asking the prosecutor and defense counsel, "Are you satisfied that the court has complied with Rule 11?"  I've always responded by saying, "They're paying you the big bucks to figure that out, Sparky."  To myself, anyway.  I did a little bit of checking, though, and such an inquiry has about as much effectiveness as asking whether the court has complied with Hammurabai's Code:  there are a number of decisions out there saying that the failure of the trial court to abide by Rule 11's requirements renders the plea invalid, regardless of whether the defendant objects at the time.

Here's the brain teaser for next week:  if you're the defense counsel and you notice that the trial court forgot to properly advise the defendant of PRC or his right to confrontation or anything else required by Rule 11, do you have a duty to your client to keep your mouth shut?

 Figuring that out is why they pay us the big bucks, right?


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