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What's Up in the 8th

Burnes Lottie finds out that "the more the merrier" isn't the best philosophy for deciding whom to invite to your sentencing, and the 8th District's ouevre this week provides us with Reason #384 why I don't do divorce work.

Sentencing hearings are always tricky for defense attorneys.  My first clue that I needed to more carefully screen the people I called to vouch for the defendant occurred a couple decades ago, where I had to listen to my client's sister mumble some bizarre explanation for how her brother had come to kill another man, before beseeching the judge to "cut him some slack." 

The consequences  of that, though, pale in comparison to what happened to Burnes Lottie when he decided to bring his girlfriend and his mother to his sentencing for several counts of child importuning, which revolved around his tendency to follow young girls to school and, while masturbating, ask them for oral sex.  His attorney insisted that while "some of these girls were younger... he did not target underage females."  This was belied by the facts, the judge noted, and also observed that "your girlfriend looks pretty young in the back sitting next to your mom, as well."  Lottie appeals his six-year sentence, arguing that the trial court abused its discretion by considering facts outside the record, namely, that the judge "concluded that he was a pedophile and sentenced him accordingly simply because he had a young girlfriend."  The appellate court isn't buying this, and affirms in State v. Lottie.  The moral of this story is that there may be a time and place for your girlfriend to break out the Catholic schoolgirl outfit, but your sentencing for importuning isn't one of them.

Speaking of predators, Cleveland has been Ground Zero for much of the mortgage fraud in this country, and in State v. Stevens and State v. Ivy, the 8th affirms two convictions of two of those involved in one scheme.  Stevens makes a valiant effort to attack his convictions on insufficiency and manifest weight grounds.  The effort goes nowhere, because one cannot read the account of inflated prices, falsified income information, and bogus repair invoices without coming away with the firm and abiding conviction that if this isn't mortgage fraud, there ain't no such thing.  Ivy has a bit better argument; he, Stevens, and several others were tried together, and the appellate opinion notes that "the facts at trial had very little to do with [Ivy]."  One fact was quite enough, though; Ivy had submitted an invoice claiming that $25,581 of rehabilation work had been done on the property, and that was precissely $25,581 more than what had actually been done.

Natalie and Brian Halliday were married in August of 2001, and had a son in March of 2002, who soon after died of birth defects.  A year later, Natalie filed for divorce, and five months after that gave birth to the couple's second child.  In Halliday v. Halliday, the court addresses the lower court's decision to grant shared parenting to the father, which the mother had fiercely resisted.  How fiercely?  The trial on that issue took 37 days and consumed 6,800 pages of transcript.  Keep in mind this isn't a custody dispute; the only real fight here is whether the father will be allowed to participate in decisions concerning the child's life.  This is simply obscene.

State v. Wells presents a search issue.  Following a traffic stop, the officer saw the occupants pitch something into the backseat.  Shining his flashlight on that area, he saw three baggies of marijuana on the floorboard.  The officer had the occupants exit the car and handcuffed them, recovered the marijuana, then arrested Wells and his friend, and proceeded to do an inventory search of the vehicle.

The officer found $4,316 in the front center console; the court's opinion tells us that this "indicated to him that the occupants of the car were probably involved in drug sales," a deduction something less than Holmesian in its brilliance.  A check of the trunk revealed "several letters to Wells from various lawyers," and before we can digest what that might mean, we're told that the officer pulled the carpet away from the right rear well  and discovered three bags containing a substantial quantity of crack cocaine.

That was a bridge too far, the trial court concluded, and the 8th agrees:  "An inventory search conducted with an investigatory intent and not in the manner of an inventory search does not constitute an inventory search."  Most problematic is the officer's acknowledgment that he pulled the carpet away because he knew the wheel well was "a common area to hide contraband, weapons, drugs." 

A valid argument might have been made that the search fell within the automobile exception to the warrant requirement, and the state did in fact make that argument.  Not in the trial court, though, and the panel concludes that forecloses the state from arguing it on appeal. 

This is the 19th case out of the 8th involving a search and seizure issue this year, and the 11th time the state has lost.  That might not sound too bad, until you consider that the state won over 85% of the other appeals.


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