What's up in the 8th
Party-goers in Cleveland will be shocked -- shocked -- to learn that such events often degenerate into gunfights, at least according to the 8th District's most recent spate of decisions. Rare reversals on evidence, one for insufficiency and the other for manifest weight, plus the lesson for judges that if you're going to screw up telling a defendant about post-release controls at a plea hearing, highball it rather than lowball it, are the features this week.
Edith Kupay-Zimmerman's German shepherd bit a 10-year-old kid who was sleeping over; instead of getting him medical care, she told the boy to lie to his mother about what happened. He didn't see a doctor until 20 hours later, by which time it was too late to suture the wounds, leaving scarring to his arms and back. I'm surprised that this particular judge didn't give her prison time; I probably would have. She appeals, complaining about the 15 days jail-time (to be served on weekends) that she did get, and also argues that her plea should be vacated because the judge told her that post-release controls would be mandatory if she went to prison, and if she violated PRC, she could be sentenced to an additional 4½ years. In State v. Kupay- Zimmerman, the court gives short shrift to her sentencing arguments, and provides the down-and-dirty on PRC's and pleas: if the judge doesn't say anything, or doesn't tell a defendant that PRC is mandatory, it's a do-over, but if the court simply gives inaccurate information, the defendant has to show a prejudicial effect. It's tough to believe that Kupay-Zimmerman would've changed her mind about pleading if she knew that PRC wasn't nearly as onerous as the judge told her, so there you go.
Other quick lessons: merger of allied offenses and merger of gun specs work differently, says the court in State v. Hamilton. If you shoot at a person and rob them, you can be convicted of both felonious assault and aggravated robbery; those crimes don't merge, but the firearms specifications for each of them do, since they're part of a single "transaction." In State v. Bowden, the defendant's conviction for stealing a car is reversed, the lesson being that if you take someone's car to buy drugs and promise to return it in 30 minutes, and you don't return it for two hours, that's just unauthorized use, the difference being that theft can't be based on exceeding the scope of consent unless "the purpose in exceeding that consent was to ultimately deprive the owner of the property in question." And in State v. Nicholson, the court reiterates that a judge is not required to advise the defendant of the elements of a crime at a plea hearing, and that a defendant needs to do more to get a plea vacated than simply profess a change of heart.
And finally, some lessons for lawyers, too. In State v. Carpenter, the defendant was convicted of felonious assault and abduction, and sentenced to six years in prison, based upon the testimony of the alleged victim, Teresa Ferguson, that Carpenter was her pimp, held her hostage for six months, and beat her with a metal mop handle. She managed to escape through a window, and got treatment at a hospital, where x-rays revealed that the beating had fractured her ribs.
The medical records had been introduced in evidence, and while the defense lawyer apparently never read them, the appellate panel did, and they revealed a starkly different story: Ferguson had gone to a different hospital from what she said, and there were no x-rays, or treatment for fractured ribs. In fact, the only complaints were for psychiatric problems and asthma; there was no indication, and no complaint, of any physical injury. The clincher was that Ferguson acknowledged that she suffered from paranoid schizophrenia and heard voices. The court concluded that
this case presents the unusual circumstance where the jury clearly lost its way and created a manifest miscarriage of justice such that the conviction must be reversed and a new trial ordered.
Finally, we have appeals from two misdemeanor convictions. Cleveland v. Smith is a pro se appeal from conviction for minor misdemeanor disorderly conduct, and if that doesn’t tell you everything you need to know, defendant’s third assignment of error that amending the charge from menacing to disorderly conduct “presents no outstanding congruence due to the obscure and nonspecific statement of plaintiff’s corresponding to case file record” should do the trick. East Cleveland v. Waters stands for the proposition that characterizing an incident as a "Baby Mama Drama" -- which occurs in Cleveland with the frequency of parties breaking out into gunfights -- is not prosecutorial misconduct.
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