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What's up in the 8th

If you're a family member of an 8th District judge and didn't get much for Christmas, don't buy the excuse "but I was too busy working to shop"; the court handed down a paltry five decisions in the past two weeks.  It might have been simple exhaustion, however; the 8th handed down 1,043 opinions last year.  That compares to 613 from Franklin County and 121 from Hamilton County.  In fact, the 8th produced almost 30% of the total appellate district opinions for the past year.

So let's raise a glass of eggnog and take a look at the closing cases of the decade.

Back in March of 2007, Cleveland Cargile  was arrested on a robbery charge, and before taking him to jail, the cop asked him if he had any contraband.  Cargile said no, but during the booking process officers found three small bags of marijuana.  Instead of being charged with minor misdemeanor marijuana possession, he was convicted of the third degree felony of conveying contraband into a detention facility.  The 8th vacated his conviction the next year on the grounds that Cargile's involuntary transportation wouldn't support the charge, but the Supreme Court reversed that (discussion here) and remanded the case for consideration of Cargile's other two assignments of error.  Last month the 8th closed the circle, rejecting Cargile's claim of prosecutorial misconduct, and determining that he wasn't entitled to a charge on the lesser offense of drug possession, because it doesn't meet the test for charging on a lesser, since possession contains an element -- the amount of the drugs -- that is not included in the transportation offense. 

Edward Christley fares better.  He was convicted of trademark counterfeiting for selling t-shirts emblazoned with the inscription "IT'S TRIBE TIME NOW" in October 2007, about two weeks before the Indians conclusively proved it wasn't by blowing the AL championship series to the Boston Red Sox after leading 3 games to 1.  The slogan had been registered by the Indians and Major League Baseball just a day before Christley's arrest, and had been sold for only 17 days before that.  The statute doesn't require proof that Christley knew the trademark was registered, but does require proof that he knew the t-shirts he sold were counterfeit, and given the short times involved, the court concludes in State v. Christley that the evidence was insufficient.  The trial judge had sentenced Christley to 12 months of community control; if he had ordered him to attend Indians' games, it would have raised an interesting issue of whether that was cruel and unusual punishment.

Some quickies.  In State v. Linnean, the court holds that there's no final appealable order where the trial court hasn't ruled on a timely motion for new trial.  The defendant learns in State v. Ogletree that, no, the State doesn't need to introduce a copy of his marriage license or certificate to convict him of domestic violence; his wife's testimony that they're married is sufficient.  State v. Soltis stands for the proposition that the trial court's complete failure to mention post-release controls at a plea hearing will result in the plea being invalid, but some mention of it, even if insufficient, triggers the "substantial compliance" test, and the plea will be vacated only where defendant can show prejudice, i.e., that he would not have entered plea if he'd been fully informed about PRC.  Good luck with that. 

In State v. Morris, the court tackles the question of the merger of firearms specifications.  Morris shot three people, and the court concludes that the specs don't merge, citing case law stating that "when each charge specifies a different victim, a separate animus exists for each of the charged offenses."  The cited case, though, involves the question of whether two offenses merge, in that case, murder.  The test for merger of firearms specifications is different:  the statute, RC 2929.14(D)(1)(b), says that the specifications are to merge if they are committed in a "single transaction."  Given that the offenses occurred at two different addresses, the court's probably at least two-thirds right. 

More troubling is State v. Acoff, in which the majority rejects the defendant's argument that the trial court's participation in plea negotiations rendered his plea involuntary.  The test here is whether "the judge's active conduct could lead a defendant to believe he could not get a fair trial because the judge thinks that a trial is a futile exercise, or that the judge would be biased against him at trial."  The lead opinion (the other judge concurred only in judgment)  finds that "the record does not support appellant's argument," and from its extensive quotation of the transcript, the conclusion that "the [trial] court did nothing to indicate that Acoff would not get a fair trial if he withdrew his plea" seems eminently reasonable.  In fact, we are left to wonder what Acoff was complaining about.

We find out in the dissent.  Acoff had been indicted for 13 counts of rape involving a 12-year-old boy, and the plea offer was to one count, with the maximum penalty of ten years.  The deal was worked out on the day of trial, and the trial judge expressed near-contempt for the offer, stating in open court that the defendant "had destroyed this kid's life," that "maybe 30" years was more appropriate, that she was "only agreeing to it because this is a respectable prosecutor and he must have his reasons for doing what he's doing, but it doesn't set well with me," and announcing that "I have always sentenced people in these kinds of cases to like 150." 

The dissent's conclusion that "this statement left appellant with no meaningful choice but to forego his right to trial and accept the state's offer of ten years" is perhaps arguable, although the author does a good job of summarizing the applicable case law, including State v. Gaston, which I discussed back here.  Whatever one's belief about the outcome, one can't help but feel that the case would have been much better served had the lead opinion fairly presented, let alone addressed, the substance of Acoff's argument.


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