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What's Up in the 8th

I won an appeal last week, but there were things that were even more absurd in the 8th District's body of work.  For instance...

I've engaged in numerous screeds in the past about the absurdity of holding that sentences are void because a judge improperly imposes post-release controls.  Holding that a sentence is void, as opposed to merely voidable, creates all kinds of potential problems:  does a void conviction of a drug offense disable you from having a gun?  A court of appeals has jurisdiction only over final appealable orders, and a void sentence doesn't create one, so does that mean the original appeal was a nullity, and has no res judicata effect? 

That last issue is the exact one raised in State v. Fischer; I discussed the oral argument in that case in one of the aforementioned screeds, and predicted that Fischer could well lead to a reversal of the supreme court holdings that failure to properly impose PRC results in a void sentence. 

So what does the 8th District do last week?  In State v. Harris, it announces that the failure to impose the mandatory fine in a drug case also renders the sentence void.  Did you know that a fine is mandatory for any 1st, 2nd, or 3rd degree felony drug offense?  Did you know that the statute specifies that to avoid the fine, the defendant has to file an affidavit of indigency prior to the sentencing?  That's "file with the clerk's office," not "hand the affidavit to the judge."  Does this mean that if the defendant doesn't file the affidavit prior to the sentencing, the court has to impose the fine, and if it doesn't, the sentence is void?  A few months back, the 1st District, in State v. Fields, held that it did.  Oh, and to top it off, the court in Harris says that the failure to impose the mandatory license suspension in a drug case also renders the sentence void.

I'm as pro-defendant as the next guy, even if the next guy is William Kunstler, but I've got a hard time with this.  I've also got a hard time with State v. Smith, where the court affirms the dismissal of a case on speedy trial grounds.  The defendant had been imprisoned on other cases during the pendency of this one, and the court holds that "the State cannot simply allow a defendant to remain in prison in another jurisdiction for months or years on end when there are pending charges against the defendant and the State knows, or should know, where the defendant is located."  There's a basis for that argument when you're talking about the service of an indictment in the first place, but there are two procedures in which a defendant can assert a demand to be tried, and if he isn't within 180 days, the case is dismissed:  RC 2941.401, which covers defendants who are incarcerated in Ohio prisons, and RC 2963.30, which covers defendants who are incarcerated elsewhere.  Just last week, in State v. Barrett, the court held that a defendant need only substantially comply with the latter statute, which essentially means he need do nothing more than send a letter saying, "I'm here, come and get me."  There's no question that Smith was aware he had a pending case, and putting the onus on the state to retrieve him from prison and put him on trial renders the two statutes a nullity.

My pro-defendant sympathies are brought back to the fore by State v. Cantie, where the defendant, charged with weapons disability -- he was arrested while "enjoying his evening at the Gotcha Inn," and no, I didn't make that up -- decides to waive the jury, the waiver process consisting entirely of the following:

"Mr. Cantie, we've got you here in Case Number 534678, State of Ohio versus Mr. Cantie. And, Mr. Cantie, it's my understanding that you're going to waive a jury trial and try the case to me."  Appellant answered affirmatively, and the judge asked, "[and] you've signed this form here, sir?" Appellant answered, "[y]es sir."  The court then asked appellant's counsel to attest to that, which he did.

And that's enough, the courts have repeatedly held, and does so again here:  the waiver has to be in writing, and acknowledged in open court, but that's it.  Well, a waiver of counsel has to be in writing, too, and yet there the court has to engage in an extended colloquy to ensure that the defendant fully understands the ramifications of a waiver.  There are some serious ramifications with waiving a jury -- like the fact that the state has to convince twelve people of your guilt if you don't waive, but only one person if you do -- so it seems that more should be required to establish a "knowing, intelligent and voluntary" waiver of a jury trial than "You signed this paper, right?"  Oh, and from an appellate perspective, here's one more ramification of waiving a jury that you should consider if you're trial counsel:  you can pretty much kiss goodbye any chance of winning an appeal on trial error .

Last, we come to State v. Goode, in which the defendant is charged with felonious assault of two people.  The facts of the case are too stupid  to bear recounting  (it involves a woman, and "disrespect."  'Nuff said), but the basis for the charges is that Goode pointed a gun, which turned out to be unloaded, and said, "don't act tough, big boy."

Now, here's the case law on this.  Back in 1978, the Supreme Court in State v. Tate decided that pointing a gun at somebody, even an unloaded one, was felonious assault.  Why?  Because earlier that year they'd decided that an unloaded gun used in a robbery was a deadly weapon, so if it was a deadly weapon for purposes of robbery, it was a deadly weapon for purposes of felonious assault.  This, of course, makes no sense:  unlike robbery, felonious assault requires an attempt to cause physical harm, and, as the court notes in Goode, "how could a gun known by the defendant to be unloaded simply pointed at another 'cause or attempt to cause physical harm' to support assault?"

But it gets better:  in State v. Brooks in 1989, without ever mentioning Tate, the Supreme Court held that "the act of pointing a deadly weapon at another, without additional evidence regarding the actor's intention, is insufficient evidence to convict a defendant of the offense of 'felonious assault.'"  Goode's "don't act tough" statement is sufficient "additional evidence regarding the actor's intention" to warrant affirmance of the conviction on the one count.

So here's the deal:  in Ohio, if you point a loaded gun at somebody, it's not felonious assault unless you say something indicating you're going to hurt them.  But if you point an unloaded gun at somebody and indicate you're going to hurt them, even though you can't, you can be convicted of felonious assault.

Makes sense to me.

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