What's Up in the 8th
You might not be able to tell what's coming, but you do know what you've left behind. And you should know what's real and what's not. Those, and other moral lessons, in a week in which a reversal for a Colon error provides the sole solace for criminal defendants...
Well, that's not quite accurate; in addition to the Colon reversal on an aggravated robbery conviction, there was a partial reversal in State v. Hill. Hill and his compatriot sold drugs, albeit bogus ones, to an undercover agent. The court tosses Hill's conviction for selling counterfeit drugs, finding there was no evidence that Hill knew the drugs were fake. His conviction for drug trafficking stands, though: you can be convicted of offering to sell drugs even if the drugs aren't real, and even if you have no drugs, real or not, to sell: it's the offer, not the product, that's significant. Whether this did indeed provide any solace to Hill is doubtful, given that the judge had given him concurrent time for the two charges, and run that consecutive to the one year he'd gotten in another drug trafficking case. Presumably, the latter were the real thing.
State v. Cooper was another drug case; imagine, two in one week. There, the defendant had been quite forthcoming, telling the booking officers that he'd just gotten out of jail and was trying to make a little money selling crack. The prosecutor shared this vignette with the jury in opening statement. When he tried to get it in through the police officer's testimony, though, defense counsel objected on the grounds that its probative value was outweighed by its prejudicial impact, and, mirabile dictu, the trial judge sustained it . Cooper was convicted anyway, and the 8th affirms, rejecting the claim of prosecutorial misconduct, saying that the prosecutor had no reason to anticipate the judge's ruling, especially since this marked the first time in recorded history that a trial judge has excluded evidence on that basis. Well, they didn't say that last part, but they might as well have.
In State v. Murray, we're looking back, not forward. Murray had been arrested for driving a stolen car, but claimed that he didn't know it was stolen; he'd simply purchased the car for crack from someone he knew only by his first name, and he couldn't remember that. (Understandable; I rarely give my full name whenever I sell a car for crack.) Whatever plausibility Murray's story had was destroyed by a cop's testimony that he had arrested Murray on a prior occasion, and Murray had given him the exact same story. That "prior occasion" had occurred way back in 1990. No matter; the court holds that while the gap in time would normally have rendered such evidence admissible, it doesn't here.
State v. Triplett is a headscratcher. Triplett argued that he should have been allowed to vacate his plea to a first and second degree felony because the judge had advised him of only the maximum sentence of the former. As the court acknowledges, there's abundant Ohio law holding that a trial court is required to advise the defendant of the maximum penalty for an offense, and that failure to do so will almost invariably require vacating the plea. The panel, though, holds that the rule "does not require the court to discuss the possibility of consecutive sentences," and that Triplett can't show prejudice, either, since he was given concurrent time.
That's arguably wrong on both counts. First, yes, a trial court doesn't have to advise a defendant of the possibility of consecutive sentences. If the judge here had advised Triplett of the penalties for the two offenses without explaining that he could run them consecutively, and then done that, Triplett would have no room for complaint. But that's not what happened here: Triplett was given no information as to the penalties for the second offense. If you don't need to tell a defendant about the possibility of consecutive sentences, shouldn't you give him sufficient information that he can figure out those possibilities for himself? And the standard for determining whether a plea should be vacated is not whether the defendant was prejudiced but, as the court acknowledged, whether he would have entered the plea had he been given fully correct information.
The latter is a difficult standard to meet anyway, and it's probable that the result was driven by the court's belief that the defendant got a good deal: facing 75 years in prison, he'd wound up with seven. Still, hardly a week goes by without some appeal of a plea. In this case, the trial judge had not only failed to advise Triplett of the penalties for one of the offenses, but hadn't told him that he could proceed directly to sentencing, which he did. The court did feel constrained to "once again urge trial courts to strictly comply with the mandates of Crim.R. 11." My guess is that a few reversals would go far in making further such admonitions unnecessary.
Finally, we can guess how the trial judge in State v. McCord is going to vote on the by-now annual referendum on bringing casino gambling to Ohio. He placed McCord on probation for drug trafficking, and it was a whole five days before McCord was picked up again for -- wait for it -- drug trafficking. Although the details appeared incriminatory -- McCord was in a car with three other people, his pockets stuffed with $5,300 and a bag of crack sitting next to him -- at the violation hearing he claimed that the drugs weren't his, and that he intended to use the money to buy recording equipment so he could become a disc jockey. Where'd he get the money? the judge asked. Some savings, and some of it he won in a card game, McCord tells him. Aha, says the judge, gambling's a crime, and that's a violation of your probation, so off you go. And the 8th District affirms. McCord's music career is on hold for a while; he got convicted of the new drug case, and got 18 months for that on top of the 12 for the old one.
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