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What's Up in the 8th

Inventive police work, a new legal avenue for women seeking child support arrearages, a Byzantine PRC case, and how far a trial court has to go in explaining a defendant's rights at a plea... All that and more from the 8th, despite a week which saw only 12 decisions, about half the normal output.

A long time ago, in a land far away -- Ashtabula County -- I watched a plea hearing while awaiting an arraignment.  The judge painstakingly explained every nuance of the defendant's constitutional rights, taking took fifteen or twenty minutes in the process; I don't think the defendant could have had a better understanding of them if he'd taken a law school course in criminal procedure.  Last week, in State v. Ortiz, the defense argues that something similar is required in every plea hearing.  The court's mere recitation of the names of rights ("right to trial, right to confront and examine witnesses, right to subpoena witnesses on your behalf") doesn't go far enough:  the average person wouldn't understand what "reasonable doubt" means, or what a court can do to enforce a subpoena, or what "no one will comment on that silence" means in the context of 5th Amendment rights.

That's all well and good if you're in Ashtabula County, but if you're handling the caseload of a judge here by the lakefront, which is so onerous that a number of them resort to explaining rights to defendants in a group process I described a few months ago, that's another thing entirely.  The court in Ortiz decides that novelty is the argument's sole redeeming feature, helped toward that conclusion by the fact that defense counsel at the plea volunteered that he had explained his client's rights to him "in great detail."

In Dinu v. Dinu, the court opens the door to a new method of collecting back child support.  The plaintiff sued various parties for an arrearage she was owed, arguing that her ex-husband had transferred properties to them without consideration, and that the transfers should be set aside as fraudulent conveyances.  The trial court dismissed it, holding that she wasn't a "creditor" within the meaning of the Fraudulent Conveyance statute, and besides, since it involved child support, only the domestic relations court has jurisdiction.  Wrong on both counts, says the court, reversing.  That poses the possibility of a sharp lawyer not only going after conveyances, but using a creditors bill to go after any debts owing to the ex-spouse.

In State v. McAlpine, the police are confronted with a problem:  they've shown a robbery victim two photo arrays in an effort to get her to identify her assailants, but she indicates she's not sure she can do that, since the two assailants were wearing doo-rags on their heads.  No problem; the detective "took a piece of paper and covered up the foreheads of the men in the two photo arrays," promptly eliciting a firm identification, and possibly a plot line for the next episode of Law and Order or one of its seemingly innumerable spawn.  The court affirms the convictions, rejecting the claim that the array was rendered "unduly suggestive." 

Finally, we come to State v. Dresser, and you might want to take notes as we go along.  Dresser pled guilty in 2000 to rape and pandering counts, and received sentences of life on the former and five years on the latter, to be run consecutively.  In 2007, the judge was notified that he hadn't imposed post-release controls on the pandering charge, so he brought Dresser back.  Instead of holding a new sentencing hearing, as the law requires, the judge simply advised Dresser that it was adding five years of PRC to the pandering sentence.

With me so far?  Dresser then appealed, arguing that the judge shouldn't have imposed PRC at all because he'd already finished the 5-year sentence on the pandering charge.  Not so, said the court; Dresser hadn't filed the sentencing transcript, and there was no way to tell from the record which sentence was to be served first;  the lack of record meant that the rape sentence was presumed to be served first.  Still, since a new sentencing hearing hadn't been held, as the law requires, the court  remanded the case with instructions for the judge to impose PRC on the pandering counts.

When it gets back to the trial judge, though, he enters an order stating that the sentence on the pandering count is to be served first, hence no PRC because that sentence is over.  The State appeals, arguing that the judge was obligated by the law of the case doctrine to impose PRC on the pandering charge, because that's what the appellate court had told him to do.  Not so, says the court:  since the sentence was void, the trial court could do anything it wanted, including changing the order in which the sentences were to be served.

Can you imagine trying to explain the law on post-release controls to a layman?


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