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Old Chief and waivers at sentencing

Your client's on trial for having  a weapon under disability.  No, that doesn't mean he carries a Glock, but gets to park in the handicapped spots, it means that he's been convicted of crimes involving drugs or violence, making it illegal for him to have a gun.  The big problem in defending a case like that is the jury gets to hear about those prior convictions.  Sure, the judge tells the jury that they can consider the priors only for purposes of determining whether the defendant was prohibited from owning a gun, not in determining whether he's guilty of the offense he's charged with, but simply reading that sentence should put to rest any hopes of the efficacy of such an instruction.

Jermaine Baker was in just such a situation, so he decided to play the Old Chief card.

Baker's situation isn't novel.  There are a number of offenses which require proof of prior convictions;   felony domestic violence, for example, requires proof that you were convicted of domestic violence before.  The Ohio courts have steadfastly held that when something is a crime because of a prior offense (like weapons disability), or is elevated in degree (a first DV is a misdemeanor, a second is a felony), that's an element of the crime, and the prosecutor gets to present it to a jury.

Then back in 1997 came Old Chief v. United StatesOld Chief was charged with the Federal equivalent of weapons under disability, and offered to stipulate that he had been convicted of an offense which prohibited him from owning a gun, arguing that telling a jury any more than that would be be inadmissible under Evid.R. 403 because its "probative value was substantially outweighed by the danger of unfair prejudice."  The government refused the stipulation, presented the evidence to the jury, and Old Chief was convicted.  The Supreme Court reversed, and there's some wonderful language in the opinion about how unfair it was to have a defendant placed in the situation Old Chief was.

So last week, Jermaine Baker's lawyer argued to the Ohio Supreme Court that the Old Chief should have been applied to his case.  That's a pretty tough sell; as Chief Justice Moyer immediately pointed out, Old Chief was not decided on constitutional law principles, but as a matter of the Federal evidentiary rules; whatever persuasive authority Old Chief might have, it has no precedential weight.  Other than a couple of 11th District decisions, here and here, no Ohio court has bought into Old Chief.  What's worse, Baker's case presents just about the worst possible vehicle for addressing the issue.  As Justice O'Donnell pointed out, Baker didn't offer to enter into the same stipulation that Old Chief did, nor did his attorneys object at trial, so the court has to examine the issue on a plain error basis.  And the evidence against Baker was so overwhelming that, even if he had objected, it's doubtful that the argument would survive a harmless error analysis.  I think it's a pretty safe bet that after the Supreme Court gets done with this one, Old Chief won't be coming to a court near you.

The Baker case actually presents another issue which might be of more significance.  He's also alleging that the trial court erred in not merging his four convictions for aggravated robbery, and the accompanying gun specifications.  His attorney didn't object to that, either, and the 9th District stood by its previous holdings that a defendant has to object at sentencing to preserve all but plain error, and plain error doesn't exist when the sentences are run concurrently.  There was some talk during oral argument that a defendant might actually have to object at the time of sentencing to preserve errors about merger, but I don't think that's going anywhere, except possibly in the case of concurrent sentences. 

As I mentioned on Monday, the US Supremes came down with a decision last week in Puckett v. US, which enunciated the standards for determining plain error:  the defendant must not have intentionally waived the error, it has to be clear and obvious, and it has to affect the defendant's substantial rights.  Even with all that, the appellate court should exercise discretion to remedy the error only if it "seriously affects the fairness, integrity or public reputation of the judicial proceedings."  So let's say a defendant is convicted of two counts of aggravated robbery, one under deadly weapon and one for causing serious physical harm, and the judge sentences him on both and runs them consecutively.  How is anybody going to argue that having a guy spend six years in prison that he shouldn't be spending doesn't affect his substantial rights?

*   *   *   *   *

Errata.  A couple of weeks ago, I mentioned an oral argument that I'd recently seen, where the issue had come up of whether the police could conduct a search after getting a warrant, without waiting for the warrant to arrive on the scene.  I'd said that nobody had the answer to the question, which I found odd, since that was the major issue in the case.  It turns out that was unfair to the lawyers.  I ran into a friend of mine from the prosecutor's appellate division, who'd argued the case for the State, and he told me that the reason he didn't bother to look it up was because it only came up at the hearing; the defendant had filed a pro se brief which argued only a consent issue.  My implicit criticism was unfair, and I apologize for it.

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