What's up in the 8th
One of the things you learn by doing criminal appeals is that people in prison have an awful lot of time on their hands, and often decide to spend it by writing copious letters to their attorneys explaining their views of the appropriate appellate strategy. Or, if they don't have attorneys, by repeatedly filing pleadings attacking the reason they have an awful lot of time on their hands. Pro se pleadings featured prominently in the 8th's work this past week.
For example, there's State v. Sevayega, a pro se appeal from the denial of the third post-conviction relief petition Seveyega has filed since he was convicted of rape during Bill Clinton's first year in office. He's also lost his four previous appeals. Ooops, make that five. The defendant in State v. Cheris also goes the pro se route, and succeeds only in establishing the unremarkable proposition that if you're appealing the failure of the judge to give you jail-time credit, it's going to be moot if you're done serving your sentence by the time the appeals court gets around to hearing your case.
The defendant in State v. Nicholson isn't going it alone, but, like Sevayega, is no stranger to the appellate process. As with Super Bowls and bad movie sequels, Nicholson's cases are demarcated by Roman numerals. In Nicholson IV, he asserts that his motion to withdraw his 2002 guilty plea should have been vacated, but as best everybody can sort out, that issue was resolved, adversely to him, back in Nicholson I.
Cleveland v. English is another pro se appeal, but by a lawyer. English had been pulled over on the Interstate, on his way out to a municipal court for a hearing. He was charged with speeding and talking on his cell phone. Well, actually, Cleveland doesn't have a cell phone ordinance, but a few years ago the City Council, in apparent observation of Vagueness Day, passed an ordinance prohibiting "operating a motor vehicle without giving full time and attention to such operation," so that's the charge they tried to hang on English. That one stuck, but the judge tossed the speeding ticket because of lack of evidence as to the reliability of the laser unit. The 8th had earlier concluded that the "attention" offense "requires proof that offender's driving behavior was erratic or posed danger to persons or property," and here rejects English's contention that the evidence wasn't sufficient to establish that. What evidence did the court find to support the charge? Why, the speeding.
The week wouldn't be complete without the usual spate of decisions involving judges who failed to properly impose post-release controls, but the court gives those cases an interesting twist. In State v. Jackson, the defendant was brought back for resentencing a week before he was to get out of prison. Counsel was appointed for him for the hearing, but Jackson, no fool, objected, claiming, "I really don't understand what's going on right now. I might need more counseling or something." Counseling which would presumably take, oh, about eight days; under State v. Bezak, of course, once a defendant has completed his prison term, PRC can't be imposed. The court notes that counsel might normally be of substantial benefit in such a situation, since a resentencing offers the possibility of a lesser sentence than originally imposed. (John Martin, head of the Cuyahoga County PD's office, and pictured here preparing for his oral argument last week in State v. Williams, tells me that his office has been successful in reducing sentence lengths at resentencing about 25% of the time.) In this case, though, even the love child of Clarence Darrow and F. Lee Bailey isn't going to be able to shave any time off of Jackson's remaining sentence, so there's not much point in fussing about an attorney.
I've mentioned before that judges might better avail themselves of the cheat sheets provided by the rules and statutes in performing certain repetitive tasks, like informing a defendant of post-release controls. The judge in State v. Walls failed to heed that admonition, neglecting to tell the defendant, as RC 2929.19(B)(3) commands him to do, that failure to abide by the strictures of PRC can land Walls back in the slammer for up to one-half of his original sentence. In prior cases, the 8th has reversed for any deviation from the prescribed warning. But that was then, this is now, the court tells us, the difference being that the legislature has since enacted RC 2967.28 to provide that failure to properly advise a defendant of PRC doesn't prohibit the Parole Board from imposing it. In arriving at that conclusion, the court ignores the entire "voidness" construct that the Supreme Court has employed in these cases, and also completely glides over the distinct possibility that RC 2967.28 will be held to be unconstitutional, for reasons I explained here.
Finally, somewhat of an oddity. In State v. Ortiz, the court affirms the defendant's conviction for felonious assault and attempted murder merge, the precise issue involved in State v. Williams, mentioned above, and presently being considered by the Supreme Court. What is odd about the case is not the dissent's argument, a fairly good one, that Ortiz acted with separate animus in stabbing the victim the first time, and then following him and stabbing him again, but the fact that, apparently, Ortiz is about the only person in Cleveland without ready access to a gun when mayhem crosses his mind.