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What's Up in the 8th

The Neighbor from Hell re-emerges, this time as a winner, motions to withdraw pleas get a workout, and allied offenses don't but should.  Let's take a look...

There is arguably no emptier phrase in the law than that motions to withdraw a plea should be "liberally granted."  A decision to grant such a motion is committed to the "sound discretion" of the trial judge, with the result that, as shown by a study I made up for this post, a trial judge's decision to deny the motion will be affirmed 89% of the time.  That percentage actually declined this week, as the court reversed one of the four denials. 

We'll talk about the reversal tomorrow.  Leading off the other side of the coin is State v. Pizarro, where the defendant claimed that the trial court hadn't held a hearing on his motion to withdraw his plea.  Normally, that would be a winner:  one of the few ways a judge can abuse his discretion here is by failing to hold a hearing.  The logical path which the court takes to avoid that result is somewhat convoluted.  Pizarro had himself filed the motion to withdraw the plea; it appears that his attorney was not even aware of it until the sentencing.  At this point, the opinion detours into a discussion of hybrid representation, which is prohibited under Ohio law:  a defendant can either represent himself, or be represented by counsel, but not both.  The attorney did not file the motion, nor join in it, which would have required a hearing, thus

Had the trial court entertained defendant's pro se motion while defendant was simultaneously being represented by appointed counsel, this would have effectively constituted hybrid representation in violation of the established law.  Accordingly, the trial court's denial of the motion was appropriate since it was not properly before the court.

The effect of the decision is that a trial court can safely ignore any pro se filings by a defendant who's represented by counsel.

The effect of that is seen in the opinion by a different panel in State v. BosbyBosby had pled out to second-degree felony burglary, with an agreement from the judge that he'd get no more than six years.  When Bosby appeared for sentencing the next week, he expressed second thoughts about his guilt.  That's normally not enough to get a plea vacated, and it isn't here, but what's interesting is the court's rejection of Bosby's claim that he was denied his right to counsel because his attorney refused to file a motion to withdraw the plea:

We cannot agree that his trial counsel's refusal to file a frivolous motion equates to a deprivation of counsel.  Indeed, defense counsel has an ethical duty not to file frivolous motions.

So let's see:  Your attorney has no duty to file a motion to withdraw the plea, but if you file one on your own, the judge can ignore it because you're represented by an attorney.

The third loss for defendants comes in State v. Irizarry.   He'd pled to various drug offenses, and at the plea hearing the prosecutor indicated that there were certain conditions Irizarry had agreed to that had been disclosed to the court, but were not included in the record.  Translation:  Irizarry had agreed to work as a snitch.  This wasn't made part of the record for obvious reasons, but when Irizarry skipped out on the sentencing and was caught eight months later, it gave him an argument:  the court didn't "revisit" the plea agreement at sentencing, and it wasn't disclosed on the record, so there was no way to tell that his plea had been "knowingly and voluntarily" entered.  Well, good luck with that; at neither the plea nor the sentencing had Irizarry expressed any uncertainty about what he was agreeing to do.  The court does caution that the "better practice" in such cases might be to have the agreement memorialized, and then placed under seal.

Allied offenses are not addressed in two other cases, but they probably should have been.  In State v. Waltzer, the defendant's convictions for felonious assault and domestic violence were affirmed, with the focus on whether the victim's statements to the police should have been admitted.  The court found them to be excited utterances, despite the fact they were made some three hours after the incident, and despite the officer's statement that he had to "calm the victim down" before he could take her statement.  Unaddressed is the question of whether the two offenses should have merged, as the 12th District held two weeks ago in a case I discussed on Friday.  The question of allied offenses is also ignored in State v. Hayes, where Hayes' decision to fire shots at three people sitting on a porch resulted in three separate convictions for felonious assault (three victims, remember), plus one for discharging a firearm into a habitation; a cogent argument could have been made that the latter merged into the former under the "single act" test of State v. Johnson. 

This isn't to fault either the court or the defendants' attorneys for failing to raise the issue:  Johnson obviously came down well after the briefs were filed.  But it may serve as a reminder to see if you've got a case coming up where this issue could be raised.  It's never too late to ask the court to file a supplemental brief.

Pamela Ghaster's feud with her Rocky River neighbors, as recounted in my posts here (bottom) and here, wends it was to the court of appeals for the fourth and fifth times.  In Rauser v. Ghaster, the court considers a protective order for Ghaster's beleaugered neighbors.  The court had earlier reversed the grant of a directed verdict to Ghaster, but on remand, the trial court issued the order without giving Ghaster an opportunity to present her case, so the case is again reversed, and Ghaster will get her hearing.  In Rocky River v. Ghaster, the court considers the same protective order.  Ghaster was charged with menacing by stalking for violating it, but was acquitted.  She'd been convicted of the same offense two years earlier, though, and one of the conditions of her probation in that case was that she abide by the protection order.  Despite her acquittal, the judge found her in violation of her probation.

The court acknowledges that there's case law holding that a defendant can be held to have violated his probation by picking up a new case, even though he's ultimately acquitted.  But that's not so if the acquittal removes "all factual support" for the probation violation.  It did so here.

Finally, we have State v. Stewart, involving a failure of a sex offender to notify of his change of address:  he'd been staying, off and on, at a homeless shelter, and the charge was based on one of the times -- about a month-long period -- when he was not there.  The court affirms the conviction, but offers the observation that "we question whether the legislature fully contemplated the viability of the registration process by the homeless offender."  This, of course, begs the question of what the legislature ever has fully contemplated.

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