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Never too late?

A couple weeks ago, in State v. Thomas, the 1st District granted Marlin Thomas' motion to reopen his appeal.  They'd earlier held that his two convictions for felonious assault, one under the deadly weapon section and the other under the serious physical harm section, weren't allied offenses.  They changed their mind and decided they were, and ordered Thomas' convictions merged.

Thomas had been convicted back in 2001.  The decision that the 1st District reopened last week had been handed down seven years ago.

The court was unquestionably right in its conclusion.  After the Supreme Court's decision last year in State v. Brown (discussed here), it's pretty clear that any set of offenses based on subsections of the same statute are going to be deemed allied offenses.  If you kill someone while driving drunk, you can't be convicted of aggravated vehicular homicide under both the intoxication and the driving recklessly subsections.  Ditto, aggravated robbery, felonious assault, or aggravated assault under the deadly weapon and physical harm subsections.

But using a motion to reopen an appeal under AppR 26(A) in this fashion is, as far as I can determine, unprecedented.  Not in the 1st District; they did the same thing last year in State v. Palmer, granting a motion to reconsider an appeal they decided in 2002, and vacating the finding that the offenses (in that case, aggravated robbery and robbery) were not allied.  But I can't find any other court which has reconsidered a case that it decided years earlier, solely because the law changed since the time of its original decision.   That's not to say that the 1st District has gone completely off the reservation.  Appellate Rule 14(B) says a court can enlarge the time to file a 26(A) motion upon "a showing of extraordinary circumstances," which was the basis for the court's determination to do just that in Palmer and Thomas. 

The court's treatment of 26(A) raises the possibility of an end run around the usual rules as to retroactivity of decisions.  Back in 1986,  I handled an appeal for a guy who got convicted of child rape, based largely on the testimony of an expert that the child was telling the truth.  The court of appeals rejected my argument that this wasn't permissible.  Two years later the Supreme Court held in State v. Boston that an expert couldn't testify as to the child's credibility.  Too bad for my client; in almost all cases, new rules of law are applied only to cases presently pending, in either trial courts or on direct appeal.

There's an element of unfairness to that, to be sure; my client's next parole hearing is in July of 2010.  There are probably lots of people sitting in prison because evidence was introduced against them that might have been prohibited by the Supreme Court's 2004 decision in Crawford v. Washington, which radically changed Confrontation Clause jurisprudence.  The countervailing interest is finality:  at some point, litigation has to come to an end, and if there are some people left on the other side of the rope line because the decision that would have helped them came out a decade or a year or a month or a day too late, well, that's the way things work.

The interests of finality aren't as great in Thomas and Palmer, and other cases involving allied offenses.  Only the sentence is being changed.  It's one thing to say that a guy has to do an additional eight years in prison because the alternative is to reverse his conviction and force the state to dig up its witnesses from six years and try the case again.  It's another to say that a guy has to do an additional eight years in prison because the alternative is... well... to say that he doesn't.

On the other hand, as a reading of the Thomas and Palmer decisions make clear, when you reconsider a case, you reconsider the whole thing:  the court goes through each of the original assignments of error, and there's theoretically nothing to stop them from deciding that the prosecutor's closing argument was misconduct, or the judge should have instructed the jury on a lesser offense, or something else that requires not just changing the sentence, but reversing the conviction.

Although this is certainly a pro-defense decision, I've got mixed feelings about it.  It's going to be interesting to see how this plays out; there are probably some lawyers down in Hamilton County going over their dead files to see if one of their former clients would benefit from Thomas and Palmer, and it's a pretty safe bet that those decisions are being circulated through Ohio prisons.  We'll hear more about this, especially after the Supreme Court's decision on allied offenses yesterday.  We'll talk more about that tomorrow.


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