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What's Up in the 8th

On the day of trial, your client gets cold feet:  he wants to take the deal the state's offered him.  You talk to the prosecutor, the deal's still available, and it offers a reasonable resolution of the matter, without necessitating the expenditure of scarce judicial resources, like, say, spending a week in trial.  Only one problem:  this particular judge has a rule that he won't accept a plea on the day of trial.  You try to explain the situation, but he doesn't relent, so off to trial you go.

Not anymore, after the 8th's opinion last week in State v. Switzer.

There's nothing that requires a judge to accept a plea, so that's reviewed under an abuse of discretion standard.  The court examines cases where judges have been reversed for blanket policies refusing to accept Alford pleas, or no contest pleas, the problem being that the abuse of discretion standard implies that discretion was exercised; as one court noted,

Although the trial court has the discretion to refuse to accept a no-contest plea, it must exercise its discretion based on the facts and circumstances before it, not on a blanket policy that affects all defendants regardless of their circumstances.

This judge's policy (which is also employed by several others, although honored by them mainly in the breach) is almost universally disliked, because it makes our job harder.  But I have some sympathy with Judge Gallagher's dissent, which notes that the policy wasn't one of not accepting pleas, but merely specifying when they had to be made, so as not to keep jurors waiting, and other trials backed up, while lawyers went about trying to accomplish what they could have done before.  We often do things at the last minute because we can, not because we have to, and sometimes it's important to remember that a judge's primary job isn't to make ours easier.

As usual, the court dispenses advice for judges and lawyers.  For judges:  make sure those journal entries get filed quickly.  In State v. Jones, the judge gave Jones three years of community control sanctions (later extended to five) and ordered him to pay restitution.  On the day before the sanctions were to terminate, the judge had a violation hearing, found that restitution wasn't paid, and ordered the prison sentence of six months into execution.  He didn't journalize the entry until two days later, though, or one day after sanctions had terminated.  Too late, the court says; the date of journalization controls, and thus at the time the court found a violation, the sanctions had already terminated, and the court no longer had jurisdiction over Jones.  The concurring judge would have gone further, and found that the entry extending the sanctions was invalid as well, for the same reason:  the judge didn't get around to journalizing that entry until after the sanctions had terminated as well.

State v. Payne contains the lesson for attorneys this week.  Payne was convicted of aggravated robbery with a gun, which it seems was a BB gun.  He claimed on appeal that the state failed to show that the BB gun was capable of firing like a gun or causing deadly harm.  Actually, he'd raised a bunch of issues in his Rule 29 motion for acquittal before the trial court.  The issue regarding the BB gun, alas, was not one of them, and the court follows law that says if you don't raise a particular issue in your Rule 29 motion, you waive it for appeal.

Finally we come to George Weakley, who apparently has several character flaws.  One is impatience.  He and a confederate decided to rob someone, during the course of which Weakley ordered the victim to take off his earrings.  When the victim moved too slowly to satisfy Weakley, he told his accomplice, "He's taking all day.  Shoot him."  The accomplice complied, and shot the victim in the ankle.  All of this was recounted at trial by the victim, his testimony aided by the videotape from a local store, which had captured the entire encounter.  Weakley saw the handwriting on the wall, and the next day changed his plea to guilty.  This led to a display of Weakley's other character flaw:  indecisiveness.  Shortly before sentencing, Weakley filed a motion to withdraw his plea.

I've blogged before about the difficulties in trying to plea vacated, despite the law that motions to vacate pleas should be "liberally granted" when filed before sentencing.   The appellate courts have set forth numerous tests for resolving this issue, many of which don't make sense, but one does:  prejudice to the state.  And it's difficult to imagine a much more prejudicial situation to the state than allowing the defendant to get a preview of the state's case, enter his plea, then change it and force the state to do it all over again.  Oddly, in State v. Weakley, the court affirms the denial of the motion to vacate without mentioning that, but I would have.


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