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What's Up in the 8th

In State v. Pizarro, the defendant moves to vacate the guilty plea he entered to a kidnapping charge two years earlier, claiming that police reports and witness statements he'd subsequently obtained show he's innocent.  The 8th District concludes that doesn't matter, because he pled guilty.

As Yossarian might say, "That's some catch, that Catch-22."

Actually, the court's position isn't quite as illogical as it might look at first blush.  The 8th District has held the same in several other cases (here and here), largely based on a 1987 Ohio Supreme Court case, State v. Stumpf, which used the same reasoning:  a plea of guilty admits guilt, thus removing the question of whether the defendant is actually innocent; the only question is whether the plea was voluntarily, knowingly, and intelligently made. 

There are a couple of problems with that argument, though.   First, is a plea made in ignorance of available exculpatory evidence really "knowing"?  More importantly, numerous cases like this one have established that whether the defendant has a valid defense to the charge -- whether he's actually innocent -- is a factor to be considered in determining a pre-sentence motion to withdraw a plea.  (In fact, just last week in State v. Irizarry the 8th reiterated that one of the factors in determining whether a trial court had abused its discretion in overruling a pre-sentence motion to withdraw a plea was "whether the accused was perhaps not guilty or had a complete defense."  If there's a reason to distinguish between pre-sentence and post-sentence motions in this regard, the reason escapes me.

To be sure, post-sentence motions should only be granted "to correct a manifest injustice,"  so it's logical to require that subsequently-discovered evidence must have much higher evidentiary value in showing innocence than would be required for a pre-sentence motion.   (Keep in mind that such evidence can't be the basis for a new trial motion, since there wasn't a trial.)  And it may very well be that whatever Pizarro had to present was pure bullshit.  But it seems that the evidence has to be examined, rather than dismissed out of hand because the defendant pleaded guilty.  If somebody's really in prison for something he didn't do, that should suffice for anyone's definition of "manifest injustice."

One of the tonier shopping areas in this area is the Beachwood Mall.  My last trip there was a long time ago, when I went to buy jeans for my daughter, and even she agreed that, at a price of $240, the cashier should have had a mask and gun when she rang up the sale.  So when I read in State v. Jacobs that the defendant was given a lifetime ban from the Mall, my first thought was that this wasn't exactly cruel and unusual punishment.

But it was simply one of the many facets of punishment that the trial judge meted out.  He sentenced Jacobs to 17 months in prison, to be followed by five years of community control sanctions; the judge also imposed a $5,000 fine and the aforementioned lifetime banishment. 

Problems abound.  First, you can sentence a defendant to prison, or you can put him on community control sanctions, but you can't do both.  And since the maximum period of sanctions is five years, you can't impose a banishment for more than that.  Finally, while you don't have to hold a hearing to determine an offender's ability to pay a fine, even if he's indigent, you do have to "consider the offender's present and future ability to pay" it, and there was nothing in the record to indicate the judge had done that.

Some decisions merit mention because they contain good discussions of the applicable law in important areas.  In State v. Reddy, the court reduces the defendant's conviction from aggravated murder to murder, and presents a fairly good roundup on the case law about what's necessary to show "prior calculation and design" in the former offense.  In the civil arena, Ruggerio v. Kavlich begins as an attempt by a doctor to collect his bill for treating a personal injury client (a jury awarded the latter $500 for his property damage, and zero for his medical claims, but we've all seen that movie, haven't we?) leads to several lawsuits, the last of them an abuse of process claim.  The opinion delves into the elements of this claim. The (very) long and (not nearly) short (enough) of it is that the claim is not, as you might think, based on the defendant's having earler filed a frivolous lawsuit against the plaintiff.  On the contrary, the plaintiff must show that the initial proceeding "was properly initiated and supported by probable cause," but was then perverted to achieve an ulterior purpose.  I'm sorry, but with all due respect to the people who came up with this, it's stupid.  Also, probably unnecessary; I'm sure if I spent some time on it, I could think of something you can get in an abuse of process action that you can't get with a motion for sanctions for filing a frivolous action, but right now I'm drawing a blank.

Last, there's preserving the record and, as the attorney in State v. Miller demonstrates, there's preserving the record.  Miller is charged with a variety of offenses for trying to feel up his neighbor's wife, and his counsel promises in opening statement to present various witnesses.  Miller appeals his conviction, claiming that his attorney was ineffective because she'd failed to call the aforementioned witnesses.  That was going to be a tough sell in any event, since that falls under "trial strategy and tactics" and thus is normally immune from claims of ineffective assistance.  But it became an impossible sell because the record included this dissertation by defense counsel, near the end of the State's case:

I had three witnesses that were going to testify that we've agreed not to put on the stand.  Now, I've been in situations before where, in the event there would ever be a conviction here, you know, the first thing you hear is, you know, you didn't put the witnesses on the stand.  But I want the record to be very clear, all the witnesses are here, and with the family and my client's approval, we decided not to put the witnesses on.

And that, as they say, is that.

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