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What's up in the 8th

Last week the 8th handed down a paltry five decisions in criminal cases.  This week, it's a baker's dozen, plus one.  (Butcher's dozen, maybe?)  But, with a handful of exceptions, no love for defendants.

One of the exceptions is Mahomoud Abouelhana, who pled guilty in 1995 to three counts of possession of criminal tools.  Despite being told that Abouelhana was not a citizen, the only advisement the court gave him of the consequences of his plea was the statement, "And you are aware that the finding of guilty could affect your right to remain in America?"  Abouelhana became aware precisely of how that could affect him in November of 2008, when he attempted to renew his Permanent Residence card and was instead told he was going to be deported.  He filed a motion to vacate his plea, the court granted it, and the State appealed, arguing the motion was untimely.  In State v. Abouelhana, the court rejects the contention, noting that the State presented no evidence that witnesses were no longer available or that it would be otherwise prejudiced by having to try the case.

Here's the bottom line, at least in the 8th:  unless the judge strictly complies with RC 2943.031, the statute regarding immigration consequences - which means reading it verbatim - the plea is very likely going to be vacated.  There have been five decisions on this here in the last two years, including State v. Kiss, where the motion to vacate was filed 47 years after the plea, and the State has yet to win one. 

The State fares much better in its newest initiative.  In recent years, trial judges here have tried to get out from under the deluge of low-level felony cases by cutting corners, specifically, giving a defendant "time served" -- even if it's only a couple of days in jail -- and sending him on his way, usually without benefit of a pre-sentence investigation report.  The prosecutors' office has decided to put a stop to this, and in State v. Johnson and State v. Peck, the court reverses and remands because of the failure to get a PSI, as it did last month in State v. Eppinger

As the court notes in those cases, a jail sentence can be part of community control sanctions.  Peck and Eppinger, though, make clear that supervision is the sine qua non of community control sanctions, and that poses the question:  what happens if the trial court, at the same time it imposes the "time served," also places the defendant on a period of supervision, but immediately (or, say, a few days later) terminates it?  In each of those cases, the State also argued that the trial judge erred by not imposing a sufficient period of supervision, but the court never reached it.  That time will probably come soon.

The judge in State v. Johnson learns the perils of listening to lawyers, even prosecutors.  During Johnson's plea to a rape case,the judge told him the crime was non-probationable, but defense counsel interjected that "there's a presumption," and the prosecutor chimed in that "it is within the discretion of the trial court to give community control."  So the judge told Johnson, "okay, so there's a presumption of incarceration but it's not a mandatory sentence."  When Johnson comes back to do his plea again, he'll find out that it is.

I have a pet theory that evolution applies to strategies:  whether in war, law, politics, or sports, strategies that prove to be successful are adopted, and strategies that aren't are discarded.  The reason people don't bunt in baseball is not because they no longer know how, but because playing for one run is a failed strategy in an era where the three-run homer is commonplace.

Well, here's a tip for criminals:  robbing people at gunpoint is a failed strategy.  People stopped carrying large sums of cash years ago, and that goes for pizza delivery guys.  The defendant in State v. Jarmon enlists the aid of two confederates to rob one, netting $30 and a six-year prison sentence upon his inevitable capture and conviction.  That works out to a return on investment of a paltry $5 a year.  The case is otherwise notable for a bit of an oddity:  Jarmon and one of his accomplices were shown to the victim in a cold stand shortly after their arrest, and the victim testified he could identify Jarmon but not the other guy; the police say it was the other way around.  Jarmon claims on appeal that the trial court erred by allowing the victim to testify that he identified the defendant in the cold stand, but the court brushes that off by saying he didn't, crediting the officers' testimony and discounting the victim's own.

Strategy is also critical in Konarzewski v. Ganley, specifically, Ganley's strategy of selling a customer a car, only to call him a few days later and inform him that the financing didn't go through, and the interest rate has to be hiked, or the customer has to pony up an additional sum towards the down payment -- a cool seven grand in Konarzewski's case.  That this little bait and switch operation was not either accidental nor incidental to Ganley's business was confirmed by its finance manager, who testified in deposition, "if I didn't deliver the vehicles before the financing is approved, I'd probably lose three-fourths of my business." 

This resulted in a class action against Ganley, and last week the 8th reversed the trial court's denial of class certification.  I'm not normally a big fan of class actions; too many of them wind up like the class action involving the videogame Grand Theft Auto, recounted here; update here.  But they sure are an effective way of getting someone's attention, and from the looks of it, car dealers needed to have their attention gotten on this.  Actually, Konarzewski was probably lucky.  A couple of weeks ago, KeyAnn Gladden testified before Congress that when she refused to come in and redo the sales contract for a higher interest rate, the car dealership showed up at her job with a tow truck, several policemen, and a warrant for her arrest on auto theft charges.


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