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What's Up in the 8th

Labor Day has special significance in Cleveland, signaling that, in a month or so, gray skies and cold winds will wrap themselves around the city, and not release their embrace for about six months.  Possibly rendered morose by the prospect, the 8th District judges stir themselves only enough to issue a paltry nine decisions, about a third of its normal output.  No good news for defendants, or for a lawyer seeking to get the balance of his fees.

The lawyer in question sued his client in Parma Municipal Court, for reasons that are not readily apparent:  his office was in Cleveland, the defendant lived in Stow, and the work involved a divorce case in Summit County.  The client appealed the award of default judgment, at which point the question of subject matter jurisdiction arose.  A couple of years back, in Cheap Escape Co. v. Haddox, the Supreme Court held that a municipal court's jurisdiction was limited to actions which had a territorial connection to the court.  The lawyer tried to get around that by claiming that he lived in Parma and worked out of his house, but the court isn't buying, and in Gusley & Assoc. v. Pulskamp reverses and remands back to Parma municipal court with instructions to dismiss.

The State might have run afoul of some prior case law, too, in State v. Flagg, but the court bails them out.  Flagg, at the tender age of 15, had robbed two stores at gunpoint, killing the owner in the first, and after being bound over from juvenile court, pled guilty and was sentenced to a total of 46 years in prison.  He appeals, claiming that his plea should be vacated because he wasn't advised of the applicable fines for the charge of aggravated murder. 

The law on this is brutal -- failure to advise of a non-constitutional right requires the defendant to show prejudice:  he has the burden of showing that, had he been given the full information, he wouldn't have entered the plea.  It strains credulity to believe that Flagg would agree to plead to offenses which would put him in prison for almost a half-century, but would have balked if he'd known that the offenses carried fines of tens of thousands of dollars, which he couldn't pay and which the court never imposed.

Fortunately, Flagg had precedent in his favor:  just last year, in State v. Johnson, the 8th vacated a plea on that very basis.  In that case, though, the State had conceded the error, for reasons which are simply unfathomable.  The Flagg court distinguishes Johnson on that basis, and two others:  in Johnson, the defendant's decision to "plead guilty to a single count of rape bore much more relevance to whether he made a knowing, intelligent, and voluntary plea," and the trial court in this case didn't impose a fine.  Well, the trial court in Johnson didn't impose a fine, either, and the "single count of rape" which Johnson pled to resulted in a hardly inconsequential sentence of 10 years to life.  Flagg apparently stands for the proposition that if precedent is created because the State foolishly concedes an error, the 8th won't hold them to it.

Flagg provides some other instruction on the statutory factors to be considered by a juvenile court judge in determining whether to make a bindover to common pleas court:  as per a 1985 Ohio Supreme Court decision, the judge needn't address each factor specifically; it is enough if credible evidence on each of the factors exists in the record. 

Precedent plays a role in State v. Mallory.  Someone had robbed a grocery store at gunpoint and sped off on a bike.  Mallory was arrested short time later on bike, holding a bag of money, and promptly blurted out, "I'm homeless.  What am I supposed to do?  I can't find a job."  After being Mirandized, Mallory proved similarly cooperative, showing the officers the route he took to the store, and for his escape, and where he'd thrown his gun.  It wasn't recovered, but Mallory admitted it was a .380, and a video of the robbery showed the gun was the exact size and style of a .380.

Mallory's story at trial was different:  yes, he'd told the officers all that, but claimed he only admitted to the crime because jail would provide him with shelter and food.  The detective testified that Mallory had refused to make a written statement, and the prosecutor cross-examined Mallory vigorously on that point, which provided Mallory the basis for his appeal:  that this comment on his failure to make a written statement violated Doyle v. Ohio, which forbids commenting on a defendant's post-arrest silence.

This is pretty much of a muddle, for a number of reasons.  Mallory's attorney didn't object at trial, so it was reviewed for plain error.  Since Mallory didn't dispute what he orally told the cops, it's hard to understand the significance of his refusal to make a written statement.  It's also not clear how this is really a comment on his post-arrest silence.  Finally, the two cases relied upon by the court come to opposite conclusions:  in State v. Ervin, the 8th had held that an "isolated occurrence" of a Doyle violation didn't require reversal, but four years later in State v. Person found an isolated comment, in addition to other improper actions by the prosecutor, to warrant reversal.  The court reconciles this by deciding that it all matters on whether the evidence is overwhelming, here it was, and so The End.

Last, the philosophical musings of the defendant are the feature of State v. Boyntonafter picking up a young girl and taking her back to his place for sex, she discloses her age, to which he responds, "age ain't nothing but a number."  True that, but when that number's 13 and you're 30, the mathematical result is the 10 years Boynton gets for two counts of unlawful sexual misconduct with a minor.


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