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What's up in the 8th

Eric "Big Willie" Wilson reacted the way one might expect a drug dealer who's just been robbed to react:  he got out of his car and chased James Yhonquea, the guy who'd robbed him, down the street.  The two exchanged gunfire before Wilson caught up with Yongquea, shot him in the back, and retrieved his drugs.  Yongquea lived; unfortunately, a 12-year-old who'd been caught in the crossfire did not, and last week the 8th affirmed Wilson's conviction for involuntary manslaughter, despite the fact that it was Yongquea's shot which took the girl's life.

I'd commented last week that the 8th District seems willing of late to give parties in civil actions a second bite of the apple, if dismissed out on procedural grounds.  That continues this week in Weber v. Castelli, although this time it's legit.  Weber filed a motion for "binding arbitration," the court referred the case for "non-binding arbitration," and the arbitrators gave an award for plaintiffs of $4,500, noting that neither the defendants nor their attorney appeared at the hearing.  Instead of simply filing an appeal from the award, which would have made the arbitration a nullity, the defendants' attorney, for reasons known only to himself and his god, filed a motion to vacate the award.  The judge denied it, but the appellate court puts the defendants back in the game, holding that the judge should have treated the motion to vacate as an appeal from the arbitration.

Several other decisions are a bit shakier.  In State v. Plachco, a homeowner had inadvertently left his garage door open at night.  Plachko went into the garage, rooted around a bit, then left without taking anything.  Someone saw him, though, and he was arrested shortly afterwards.  He argued that his conviction for burglary should be overturned for insufficient evidence, given that the crime requires proof that he entered a structure for the purpose of committing a criminal offense, and he hadn't taken anything or committed any other crime while in the garage.  Doesn't matter, says the 8th, relying on several cases which hold that an intent to commit a criminal offense can be inferred in those circumstances.  That's a bit of a stretch; the cases the court relies on for that conclusion generally involve (a) a defendant forcibly entering a premises, rather than simply walking through an open garage door, and (b) being caught while on the premises, i.e., arguably before he had an opportunity to commit a crime.  One would think that in the calculus of whether Plachko intended to commit a criminal offense, the fact that he left without doing so would be entitled to some weight.

State v. Terry is not as crisp as it could be, either.  An informant by the name of Mankins tipped the cops off that Terry was selling drugs, so the cops had Mankins set up a buy with Terry.  Terry came to Mankins' house, entered the latter's car, made the drug exchange, then returned to his own car.  At that point, Mankins flashed his brakelights, the pre-arranged signal, and the cops swarmed Terry.  The defense appeals the denial of the motion to suppress, but that bust is valid in the other 49 states, and it's legal in Ohio, too, says the 8th, but not without interchangeably using the terms stop and arrest, and reasonable suspicion and probable cause, in various places in the opinion.

The court's work in State v. Holly is haphazard, too.  Holly copped a plea to trafficking in marijuana, but when asked about his understanding of the charge at his plea, denied he was trafficking but was simply there "to buy some weed," while acknowledging that what he did was "wrong."  Three weeks later, he came back for sentencing, and got nine months.  The court holds that a defendant seeking to withdraw a plea after sentencing must show that the trial court has abused its discretion in denying the motion, and that a manifest injustice has occurred, and that Holly can show neither.

The problem is that no such motion was ever filed.  I handled the appeal; I simply argued that where a defendant denies guilt of the crime with which he's charged, the court can't accept the plea in the absence of a factual basis for it.  There's some good law to support this; in fact, up until North Carolina v. Alford, the law was that a court could not accept a guilty plea where the defendant simultaneously denied guilt.  Alford changed that by holding that a defendant could rationally decide to plead guilty in order to avoid, say, a more serious sentence (Alford did it to avoid the death penalty), but the decision requires that a factual basis for the plea be set forth in the record.  There's some basis for the panel's conclusion in Holly that his denial of guilt was less than complete, but the result would have been more supportable if the court had not completely misstated the entire basis of the appeal.

"Bitter, party of one..."


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