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What's Up in the 8th

A cardinal rule of appellate practice is that you always file a transcript of whatever proceedings occurred in the trial court.  Just a couple weeks back, I pointed to an appeal in a medical malpractice case, which was lost because the plaintiff's attorneys decided to present only portions of the transcript of trial, rather than the whole thing.  A corollary to that rule is, if you're going to order the transcript, it might be a good idea to read it.  In Slomovitz v. Slomovitz, the ex-wife appeals a protection order, claiming that the trial court lacked personal jurisdiction because she was never served with the motion.  The problem with that argument?  The ex-wife appeared at the hearing on the motion, and never raised an objection to jurisdiction.  From the opinion, it appears that the ex-wife's counsel first realized when it was pointed out to him at oral argument.  That must have been fun.

Fun was on the mind of Umar Clark, too.  Stopped for driving with too-heavily-tinted windows, Clark was arrested for having a suspended license.  When he got out of the car, a marijuana bag fell to the ground, and another on the way to the police cruiser; ten more bags were found in his waistband, for a total of 71 grams, a bit shy of three ounces, or just enough to make the entire Ohio General Assembly a much happier group of people, at least theoretically.  In State v. Clark, the 8th rejects Clark's claim that it was all for his personal use, finding it belied by his testimony at trial, in which he related that he was on his way to a party, where he was "bringing a 12-pack and some weed to puff-puff-pass" with his friends.  Note to stoners:  as I mentioned some months back, there is a provision in the Ohio Revised Code that a gift of 20 grams or less of marijuana is only a minor misdemeanor, so if you want to "puff-puff-pass," keep it to that amount, and you'll not only be inordinately popular, you won't have a felony record.

A felony record is the least of the defendant's problems in State v. Conner:  he's going to be spending the next 12 years in prison as a result of his plea to two counts of attempted murder.  He claims that the plea's invalid because he wasn't told that if he violated post-release controls, he could go back to prison for up to one-half of his original sentence.  The law on this is that if the court completely fails to mention PRC, the plea is invalid, but if it just screws it up or fails to mention some aspect of it, the defendant has to show that he was prejudiced, i.e., that he wouldn't have made the plea if he'd been given the correct information.

I've complained about this before; how do you figure out what the defendant would've done?  This is especially significant given this passage from the court's opinion:

As the State points out, Conner cannot show he was prejudiced by a potential six-year administrative extension of his 12-year sentence when he pled to the instant offenses knowing he faced a potential 30-year term of incarceration.

But that's not correct.  Conner had no idea at the plea that he'd wind up with 12 years; the "potential 30-year term of incarceration" Conner was facing at the plea didn't create a "potential six-year" extension, but a potential 15-year one.   If a judge told somebody that the potential penalty on a plea was 30 years in prison, when it was actually 45, I'd think that was prejudicial.  And it should have been here. 

It's not unusual for a defendant to "bifurcate" his trial:  try some aspect to the jury, and some to the judge.  This is commonplace when there are prior convictions which aggravate the penalty, such as repeat violent offender specs; the defendant will want the jury to decide guilt or innocence, free of the knowledge that he's been previously convicted.  This gets taken to an extreme in State v. Marzett, where the defendant is charged with two counts of attempted murder and one of felonious assault, and decides to try the first one to a jury and the latter two to the judge.  Why is difficult to fathom; his defense for all three is the same, self-defense.  The appellate panel comes close to declaring that bifurcation along these lines is simply impermissible:

The hybrid bench/jury trial on multiple counts (that did not implicate the prejudice of introducing an accused's criminal history) does not appear rooted in any legal authority, creates a potential for inconsistent verdicts, and is not one that is sanctioned by this court.

The jury returns with a not guilty verdict on the first count (as well as to all the lesser included offenses to that charge), and the judge finds the defendant guilty of the latter two counts.  But before he does so, and after the jury has rendered its verdict, he talks to the jurors outside of the parties' presence.  Despite the fact that he announced to the parties that he was going to do so, without objection by either, the court finds that in the context of the unusual bifurcation, this "irregularity in the deliberate process" creates a structural error that requires reversal.

State v. Hawks presents a sad case.  Hawks pled guilty to four counts of raping a twelve-year-old boy and was given a 28-year sentence, which the court has no trouble affirming, given that present sentencing law poses no real barrier to that.  But the dissent points out that the defendant was 19, with no prior record of any sort, was himself abused, and was the one who disclosed the abuse to the boy's mother, after which he made a full statement to the police, expressing remorse and offering no excuses for his behavior.  The dissent labels the sentence "draconian," a description with which reasonable people might disagree, but also notes that it is "in excess of one of four sentences available in a capital murder case," with which reasonable people can't.


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