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What's up in the 8th

The Dykas case finally comes to an end, an appellate argument on sentencing comes a cropper, and we learn valuable lessons about no contest pleas.  All that, and a sidenote on the intricacies of insufficient evidence claims and affirmative defenses, represent the court's body of work for the week.

Omar Castellon made a serious error of judgment:  selling 180 unit doses of heroin to an undercover agent.  He had no prior criminal record, but the judge was unfazed with his trial lawyer's argument that Castellon had gotten in with "the wrong crowd," and gave Castellon six years, three-fourths of the eight-year maximum.

I talked to Brian McGraw, Castellon's appellate attorney, who had come up with a clever argument.  While it might be difficult to make distinctions of degree in many crimes -- should a defendant be punished more severely if his beating results in the victim sustaining a broken eye socket rather than a broken arm? -- drug crimes lend themselves to precisely that sort of quantification.  You can earn a second degree felony drug trafficking for heroin by selling between 100 and 500 unit doses.  Castellon's crime was much closer to 100 than 500, and therefore he should have been punished at the lower end of the sentencing spectrum.

In a well-reasoned and thoughtful opinion in State v. Castellon, the appellate panel carefully dissected McGraw's argument, pointing out its flaws before ultimately rejecting it.  Well, the "rejecting it" part occurred here; the rest happened in a parallel universe.  The court did not bother attempting to refute McGraw's arguments, it completely ignored them, finding it sufficient to recite the Kalish two-part test for deciding an appeal from a sentence:  is the sentence contrary to law, and is it an abuse of discretion?  (Pet Peeve #93:  I've never understood why every 8th District opinion on sentencing has to cite Kalish while taking pains to point out that it is of no binding force since it was only a plurality opinion, and then proceed as if Kalish had been handed down by God.)  You will be astonished to learn that the court found no abuse of discretion.

In fact, it's difficult to see how it ever could.  "Abuse of discretion" is of course an extremely deferential standard, but the problem here is that there is no court decision which even suggests criteria by which that issue can be evaluated.  A trial judge's decision on a motion to withdraw a plea, for example, is also reviewed for abuse of discretion, but, as this decision and numerous others from the 8th show, there are numerous factors which the appellate court considers in conducting that review:  whether the accused was given a full plea hearing, whether the accused was perhaps not guilty or had a complete defense to the charges, and the like. 

In sentencing, there's nothing.  Given that the legislature has mandated that trial courts in fashioning sentences must consider the purposes of sentencing under RC 2929.11 and the seriousness and recidivism factors under RC 2929.12, that might be a good place to start.  But the courts have consistently held that the trial court need only consider those statutes, rather than make any findings under those statutes, and has even held that where the trial court fails to make any mention of those statutes, it will presume that the trial court considered them, a "presumption" that, under the circumstances, is irrebuttable. 

Also troubling here is the trial court's failure to obtain a presentence report, which, as Judge Dyke's concurring opinion argues, "helps ensure that lawful and fair sentences are imposed."  Whatever discretion the trial judge exercised in imposing the sentence, it was enough to get the panel's stamp of approval.  It's hard to envision what wouldn't be any more.

Several other decisions are more helpful.  In State v. Fitzgerald, the court straightens out a no-contest plea gone awry.  The judge had gotten the defendant to sign a jury waiver, and told him that the purpose of the waiver in a no-contest plea is to allow the judge rather than a jury to make a determination of guilt, and that after the State gives the recitation of facts "the court then makes a finding as to whether you are guilty or not guilty."  Well, that's wrong; as the court explains, a no-contest admits the allegations of the state's cases, and the judge's options are limited to three:  find the defendant guilty, find him guilty of a lesser offense, or find that the indictment doesn't charge an offense and dismiss it.  Acquitting the defendant simply isn't an option, and the court sends the case back so Fitzgerald and the judge can have another go of it.

In State v. Dykas, appellate attorneys learn arguing insufficiency of the evidence in a case where you're claiming that your client should have been acquitted on self-defense grounds doesn't work.  Why?  Because insufficiency only goes to the State's case; it tests the State's evidence as to the elements of the crime, and doesn't include consideration of evidence regarding affirmative defenses.  You can make an argument on manifest weight grounds in such a case, and Dykas did, arguing that his conviction for involuntary manslaughter arising out of a bar fight should be reversed, to no avail.  The case was a particularly sad one; as recounted in this article, after trading insults with the victim, Matthew Hockey, inside the bar and outside of it, Dykas hit Hockey but a single time, but Hockey fractured his skull when he hit the pavement, and died in his sleep the next morning.  So now we have a dead 30-year-old and a 24-year-old whose three-year prison sentence will forever alter his life, if not ruin it, and all to prove that alcohol doesn't mix any better with testosterone than it does with gasoline.

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