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What's Up in the 8th

There's a valid argument to be made that the present law on post-release controls couldn't be more stupid if it had actually been designed to work the way it does.  What would have happened if the Ohio Supreme Court had ruled differently in Woods v. Telb, the 2000 decision in which they upheld the constitutionality of PRC?

Well, for one thing, at least one judge on the 8th District would have lower blood pressure.

State v. Harris is one of the three decisions last week to deal with PRC.  Harris was sentenced in 2004 to six years in prison.  In 2010, somebody realized that PRC hadn't properly been imposed, so the judge ordered him back in March, only to find he'd been released from prison.  Two months later, the judge put on a nunc pro tunc entry imposing PRC, and the court holds that such an entry is a valid method of correcting a previous entry which hadn't properly imposed PRC.  But wait, says the defense:  PRC can't be imposed after the defendant is released from prison.  But wait, says the State:  he was on transitional control, and that counts as prison.  But wait, says the defense:  the judge's entry didn't include an advisement of the consequences of violating PRC.  The court agrees that this failure requires sending the case back, which is too much for Judge Gallagher, who argues that there's no question Harris has finished his sentence, and begins his dissent by noting that "this case is the 'poster child' for all that is wrong with the tattered remnants of Senate Bill 2 and its costly history."

Not so fast there, judge.  Christ Steimle can vye for that honor; State v. Steimle represents his fifth appeal from his 1999 conviction, all of them dealing with sentencing or PRC issues.  In this case, it's the fact that the last effort in that regard had him appearing by video, and he didn't expressly waive his right to be physically present, as Crim R 43 requires.  No matter, says the court; he didn't object, and so it's reviewed for plain error, and since he didn't show prejudice, that's that.  Also in the running for poster child is the defendant in State v. Adams; he gets a resentencing because the judge imposed the 5-year mandatory period of PRC on only one of his two aggravated robberies, and should have imposed it on both -- even though, of course, they're both served at the same time, so it matters not a whit -- so back it goes.  Oddly, Gallagher was the author of the opinion in Adams, probably having written it after they talked him in off the ledge.

State v. Dowdell doesn't involve PRC, but it's going back, too.  Dowdell pled to two counts of second-degree felony robbery, and this was the court's advisement regarding the possible sentence:

Mr. Dowdell, you're going to plead guilty to two counts of robbery. And these are felonies of the second degree under Section 2912 [sic] of the Revised Code. You will go to prison on this I think, but Mr. Drucker [defense counsel], they'll take a good look at all the underlying facts here and you could receive either 2 or 3 or 4 or 5 or 6 or 7 or 8 years in a state penal institution and a fine not to exceed $15,000. Do you understand that?

When Dowdell appeared for sentencing, the judge gave him a maximum consecutive sentence of sixteen years.  The court notes that while a judge need not advise the defendant that sentences can be imposed consecutively, here the judge

told Dowdell that he could "go to prison" for the "felonies" up to a maximum term of eight years, not that each felony was punishable with a prison term of up to eight years.  This gave Dowdell the understandable impression that the court would impose a prison term of no more than eight years for the combined "felonies."  The court's statement was akin to promising beforehand what sentence would be imposed and then reneging on it.  Any statement that objectively misleads a defendant as to the maximum sentence that the court will impose is an inducement that binds the court.

The court finds that because the judge "reneged on a sentence that induced the guilty plea," the plea was involuntary, vacated it, and remanded the case. 

But here's where it gets interesting.  Last year in State v. Latimore the 8th District noted that a plea bargain is a contract, to which the defendant is entitled to specific performance.  If the judge's language really was a promise of no more than an eight-year sentence, Dowdell is entitled to either have the plea vacated, or demand specific performance of the eight-year sentence.

State v. McWhorter doesn't go back; the court affirms the suppression of the evidence.  I handled the case both at trial and appeal, and the short version is that my client was pulled over for a cracked front windshield, and drugs were found.  The cop relied primarily on a Cleveland ordinance that prohibited driving with view obstructed, but as when I researched the ordinance I discovered that the ordinance prohibited driving with the view obstructed by "load or other persons."  I.e., if you tie a mattress to the hood of your car -- or you tie Aunt Martha to the hood of your car -- you're likely to be pulled over.  The cop had also relied on the general "unsafe vehicle" prohibition, but the judge found that the officer's testimony wasn't sufficient to show that the crack created any danger. 

That was critical.  On appeal, the state cited a bunch of cases which, they argued, held that a cracked windshield was a per se violation which justified a stop.  I cited a bunch of cases holding that it wasn't, and pointing out that in each of the cases cited by the State, the lower court had found that the crack was substantial.  The law is that the appellate court has to defer to trial court findings as long as they're based on competent, credible evidence.

The other lesson here is that there's no substitute for preparation.  It was immeasurably helpful to begin my cross-examination of the cop by pointing out that the ordinance he based the stop on didn't provide any basis for one.

Of course, as I acknowledged when I blogged about the hearing, so as to immortalize my exploits for the benefit of future generations, I didn't get around to actually "researching the ordinance" until midway through the cop's testimony.

Hey, I didn't say when you had to prepare.

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