What's up in the 8th
Slim pickings -- only a dozen or so cases. A lesson (actually two) for appellate lawyers in the necessity of reading the journal entry you're appealing from, the fact that the old line "just when you think you're out, they pull you back in" applies to prison, too, and a reminder that the "plain feel" doctrine describes more than my college dating philosphy are on tap this week.
It's not over 'til it's over is the sad lesson learned by Colleen Kempf. She'd gained notoriety by using her position as bookkeeper at a private Catholic school for girls to steal about a half million dollars, and was sentenced to four years in prison by Judge Joseph Russo in 2007. When she got there, she was notified she was eligible for the Intensive Program Prison, a 90-day boot camp. She completed the program, was released from prison, and placed on PRC. Someone got wind of this, the prosecutor's office raised a fuss, and Judge Russo said he never would have authorized her participation in the program.
That's key, because the judge's consent is required for participation. The Department was supposed to send the letter to the judge asking for his consent by certified mail, but used regular mail because of "budget constraints." Plus, they addressed the letter only to "Judge Russo," and there are five different Russo's on the Common Pleas bench here.
The court notes some basic equitable principles cutting in Kempf's favor, among them the Department's "knowing disregard" of the requirements. Still, the failure to obtain the judge's consent makes her participation in the program void ab initio, and back to prison she goes.
Last year in State v. Baker the Ohio Supreme Court spelled out the requirements for what a sentencing entry had to contain to be a final appealable order:
(1) the guilty plea, the jury verdict, or the finding of the court upon which the conviction is based; (2) the sentence; (3) the signature of the judge; and (4) entry on the journal by the clerk of court.
The lesson of State v. Byrd and State v. Crawford is that the entry also has to dispose of everything before the court. In Byrd the court dismisses the appeal because the JE failed to address the forfeiture specifications: "it does not describe the forfeited property, and it does not order the specific property to be forfeited." In Crawford, the same problem arose, but there the court issued a limited remand so that the trial court could get things right. The judge corrected the forfeiture stuff, and the JE imposed the sentences for counts 1, 2, and 3. Unfortunately, the defendant had pled guilty to 4 counts, so that appeal gets dismissed, too.
So, memo to appellate lawyers: first thing you do is examine the JE. While we're discussing what appellate lawyers should do, another is to take a look at State v. Terry, which teaches the simple moral that if you're going to argue on appeal that the judge should have given an instruction on entrapment, it doesn't help that the defendant never raised that argument or requested that instruction at trial, instead claiming he didn't know anything about any drug deal and was innocent.
Another defendant charged with dealing drugs fares better in State v. Henderson. The police were patrolling one of the innumerable drug marts in Cleveland, and saw Henderson, on a bicycle, standing next to the driver's window of a car having a conversation with the driver. The car pulled off, and Henderson continued on his way, too. The officers drove toward him, and "he seemed to recognize that they were police officers," and "tried to pedal away." The cops stopped, got out of the car, grabbed Henderson, and patted him down for weapons.
What comes next sounds like plot line for a music video by the Village People: the officer stated that he felt a "large hard -- the only way I can describe it, is a lumpy lump, a rough-textured lump in his pants pocket." The court focuses on the officer's statement, "I just thought maybe it was some drugs, particularly crack cocaine," says this doesn't meet the requirement of the "plain feel" doctrine that the fact that the item was contraband was "immediately apparent," and affirms the suppression of the evidence.
What this case really does is confirm my view that police officers are no longer given any training in search and seizure, particularly on how to testify in suppression hearings. The key case on plain feel is Minnesota v. Dickerson, where the officer testified that he felt a small lump in the defendant's jacket, but had to manipulate it before identifying as crack. The Court held that once the officer had determined the item wasn't a weapon, he wasn't permitted to explore further. That's where the "immediately apparent" requirement comes from. But contrast the officer's statement in Henderson with that of the officer in another case just two years ago, State v. Harrell, where the 8th affirmed a search under plain view. The difference? The officer in Harrell "stated that, based upon his years of experience as a vice officer, when he felt the lumpy substance inside the paper wrapper he immediately thought it was crack cocaine."
That's my emphasis, of course, and one of the problems with 4th Amendment law is that the case can hinge on whether the police officer has been coached to use the right terminology. To be sure, some of those latter efforts can be comical. One lawyer recently told me a story about a suppression hearing where the officer testified that the defendants had made "furtive movements." His first question to the officer: "What does 'furtive' mean?" The cop hemmed and hawed, finally blurting out, "Well, they used it in a case!"
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