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What's Up in the 8th

It seems that one of the functions of the Cleveland Police Department any more is testing my literary skills in constructing metaphors describing their abysmal lack of understanding as to the most rudimentary tenets of the 4th Amendment.  This week provides another workout.

Six Cleveland vice squad detectives were riding in a convoy of three cars one October night, investigating complaints of drug activity.  They spotted Williams and two men "huddled" in an apartment building doorway.  When the detectives parked their cars and emerged, wearing vests emblazoned with the word "Police," Williams and the others started walking away.  Did they run?  Throw anything away?  Nope.  Yet that was enough to prompt the officers to approach Williams, direct him to a police car, and frisk him for weapons.  In State v. Williams, the court comes to the conclusion, unsurprising to anyone with as much as a nodding acquaintance of search and seizure law, that this doesn't pass muster.   To be sure, Williams benefited from having a trio of judges who were particularly attuned to 4th Amendment rights, but frankly, the State wouldn't have won this case if Josef Stalin had picked the appellate panel.

A more substantial question is presented in State v. LatimoreIt's not unusual for the State and defendant to jointly recommend a sentence, and it's not unusual for the trial judge to accept the plea, while informing the defendant that the judge isn't bound to accept the recommendation.  Latimore warns of the consequences of the judge's failure to follow the second part of that equation.  The court notes that the judge "is not bound by a plea agreement unless there has been active participation by the trial court in the agreement," and that's exactly what happened here:  the transcript clearly shows that the judge agreed to the 12-year sentence.  Sentencing was put off until the next day.

At that point, the victim showed up and told the judge that he didn't feel a 12-year sentence was sufficient.  Understandably so; he explained that "Latimore taunted him while attempting to kill him by shooting him six times with a shotgun," one of the blasts blowing off his arm.  The judge announced that twelve years was indeed insufficient, and gave Latimore the choice of going forward with trial or pleading to the indictment.  Latimore chose what was behind Door B, and wound up with 23 years.

Well, that's not the way things work.  A plea agreement is a contract, and part of that contract was the trial court's agreement to impose a 12-year sentence.  And the remedy for breach of a plea agreement is specific performance:  the court reverses and remands, giving Latimore the option of either enforcing the plea agreement and taking his twelve years, or being allowed to withdraw his plea.

Sometimes decisions are like novels.  Case in point:  State v. Hightower.  Although trodding the well-worn path of the baby mama drama genre, the opinion introduces an interesting cast of characters (Apache Hightower is the defendant), and those expecting gritty, true-to-life dialogue will not be disappointed.  (Victim's alleged statement to another woman:  "I be cuttin' bitches up all night.")  The plot develops nicely:  did Apache and her friends really beat up Jacqueline outside the bar, or did Jacqueline make the whole thing up to get even with Apache because the latter was dating Jacqueline's ex-boyfriend, who was also the father of one of Jacqueline's children?  Spoiler alert, in case you're waiting for it to come out on video:  the court rejects claims of insufficiency and manifest weight, and affirms the convictions.

Other cases provide simpler lessons, and less drama.  State v. Craig teaches that if you're going to complain about being maxed out on a rape count, it's probably better if you didn't rape a pregnant woman in front of her child, and then claim that the sex was consensual.  The concept of remorse is similarly lost on the defendant in State v. Almashni, who after being convicted of shooting a man for no reason, persisted at sentencing in blaming the victim, and then claimed that the judge had engaged in "vindictive sentencing" because he indicated, after listening to Almashni's "lovely tale of horse hockey," that he was giving Almashni more time than he'd originally intended.  A reminder that the right of allocution works similarly to the First Amendment:  just because you have the right to say something doesn't mean you are freed from all consequences of saying it, as Don Imus can attest.

Finally, State v. Brooks presents a sentencing argument, and while the court's rejection of it isn't troubling, it's manner of doing so raises some issues.  Brooks claimed that his trial lawyer was ineffective for not arguing at sentencing that the 5-year prison sentence Brooks received was disproportionate to his "young age."  The trial judge's unwillingness to accept that argument had far more to do with Brooks' nine prior juvenile adjudications than to any failings of Brooks' lawyer.  Not content to stop there, though, the opinion holds that the proportionality review required by RC 2929.11 can be accomplished merely by consideration of the seriousness and recidivism factors of RC 2929.12: 

When a trial court considers and applies necessary statutory provisions, a sentence must be deemed, as a matter of law, consistent and proportionate to those imposed for similar crimes.

This pretty much reads disproportionality analysis out of the statute, especially since the courts have held that a judge is "presumed" to have considered the factors even if he doesn't mention them.  Under earlier decisions in this area -- like Geddes or Moore -- the court was willing to take a look at how other similarly-situated defendants were sentenced.  No more.

Actually, "no more" isn't quite the case.  Geddes and Moore were four and three years ago, respectively, and it's almost impossible to find cases holding a sentence was disproportionate since then.  A more typical result is State v. Myrick (discussed here), where the defendant's 20-year sentence for stealing $750,000 from the government over a 14-year period was affirmed.  Given the difficulties here -- there's a difference between consistency in sentencing, which was the goal, and uniformity in sentencing, and there's no hard data on what sentences judges are handing down for what crimes -- it's understandable that appellate courts would be reluctant to look into this.  It seems anymore, though, that "reluctance" has been replaced with absolute unwillingness.

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