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What's Up in the 8th

Picture a bloated Marlon Brando wringing his hands while moaning, "the horror... the horror...," and you have just encapsulated the 8th District's body of work last week, at least if you work the defense side of the aisle.  Of the 16 criminal cases last week, only two tossed even a crumb in the direction of defendants.  A survey of the carnage:

One "win" for defendants came in State v. Rothrock, where the court reduced defedant's conviction of second-degree felony burglary to a third-degree felony, finding that the evidence was insufficient to sustain a conviction for the former, because it it showed that the victim worked from 7:30 AM to 5:00 PM, rarely came home during that time, therefore was not "likely to be present."  A truly Phyrric victory was the result in State v. Lipscomb, where the court agreed that, after Lipscomb's 2006 conviction for child rape was remanded for merger with the kidnapping counts, the trial court should have continued his status as a sexual predator, rather than finding him to be a Tier III offender under the Adam Walsh Act.  That means that instead of having to register for life as a Tier III offender, Lipscomb will only only have to register as a sexual predator.  That's for life, too, come to think of it.  And that won't kick in until he gets done serving his his two consecutive sentences of life imprisonment...

One thing I learned when I began doing appellate work in earnest was that prisoners have a lot of time on their hands, and lots of law books at their disposal, and the combination of those two factors can lead to unhappy results.  Exhibit A in that regard is Melvin Jones, who pled out to involuntary manslaughter back in 2001, and got a 13-year sentence.  He apparently stumbled across Jordan, Bezak and the other cases on how the failure to properly impose post-release controls results in a void sentence.  He file a motion to vacate his sentence, the judge denies it, but on appeal the State concedes the error and, in State v. Jones, the court agrees, and remands the case back to the trial court for proper imposition of PRC.  Of course, if Jones had simply kept his mouth shut, and the State hadn't picked it up, when his sentence expired he'd have had no PRC at all. 

I've written before the substantial difficulties entailed in getting a plea vacated, especially if the motion to vacate it occurs after sentencing, when it must meet the much higher standard of correcting a "manifest injustice."  To the seemingly inexhaustible list of arguments which do not meet that standard is the one urged by the defendant in State v. Alford:  that his plea was rendered involuntary because he was "harassed, abused, and made fun of by the Trial Judge at every step of the proceeding."  Well, boo-hoo.  What's next?  "The sun was in my eyes"?  Grow a pair, fella.  If you're going to try to kill people while wearing body armor, as Alford pled to doing, you can at least man up during a plea hearing.

Everything you always wanted to know about gunshot residue tests is provided by State v. Wheat, State v. Glover, and State v. Johnson.  Back in 1996, the trio were convicted of murder.  The current cases stem from their attempt to obtain a new trial on the grounds that the technology for gunshot residue tests is substantially advanced over what it was when that evidence was used to convict them in 1996.  While that may be true, says the court, it doesn't necessarily follow that the prior methodology was flawed or led to inaccurate results.  It doesn't appear to be here, and since there's no evidence left to test using the current method, nobody gets a new trial.

Tipped off that a major drug dealer was expecting a shipment of a ton of marijuana brought in by "some Mexicans," police did a controlled buy, busted the dealer, and in the search of his house found a receipt for a payment on a warehouse.  They set up surveillance of the warehouse, and sure enough, the next morning a semi-tractor trailer pulls around to the back.  Within minutes, a car driven by Higuera speeds around from the back, and is intercepted.  Higuera claims he just happened upon the scene, but, as William Burrough observed, "in the magical universe there are no coincidences and there are no accidents," the court agrees, and, in State v. Higuera, affirms the denial of the motion to suppress.  Higuera is but one of three search cases the State won last week; the last time it scored a 4th Amendment trifecta in the 8th, Jimmy Carter was waxing about the lust in his heart.

We're now entering year three of the public corruption investigation into various Cuyahoga County officials, including Commissioner Jimmy Dimora.  Among the allegations swirling around Dimora, yet to be indicted, is that he received a bribe in the form of an assignation with a $1,000 hooker while in Las Vegas.  Dimora claims that he only received a massage.  The price seems high for that service, but, as can be seen from Dimora's photo, not so much if the lady charged by the square foot.

While the central targets of the investigation, Dimora and County Auditor Frank Russo, remain uncharged, any number of their friends and cohorts have entered pleas to various episodes of wrongdoing.  One was Steve Pumper, manager of a construction company, who pled out to to doing some $100,000 worth of contracting work on Dimora's home in return for various political favors.  Pumper pled  less than a year after the finalization of his divorce, and that plea, with its likely 6-½ - 10-year sentence, formed the basis of his motion to vacate the divorce entry:  he claimed that his impending imprisonment, plus his losses in the stock market collapse, made it impossible to meet the financial obligations imposed on him by the separation agreement.  The court, in Pumper v. Pumper, has no pity:  one can certainly anticipate that the stock market will be volatile, and can negotiate that point in the agreement.  As for his impending jail sentence, well, he certainly wasn't unaware of his own criminal conduct, notes the court.  He might not have anticipated getting caught, but then again, they never do, do they?


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