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What's up in the 8th

I needed new gutters on my house, so a couple weeks back I had a guy come over, he takes measurements, draws up a contract, and I signed it.  Thought about it, did some checking, and decided I didn't want to spend that much, so the next day I sent a letter canceling the contract, because Ohio law allows me to change my mind and back out of a home solicitation contract within three days.

Good thing I hadn't pled guilty to a crime, because the current state of the law on withdrawing a plea doesn't allow me to change my mind about that.

That's how I started out an oral argument in an appeal a couple weeks ago in a case where the defendant had pled guilty to aggravated murder, then two hours changed his mind and tried to withdraw it.  I'm not too optimistic I'm going to be successful, and cases like the 8th District's decision last week in State v. Taylor are the reason why.

Taylor wasn't nearly as prompt in backing out of his plea as my client; he waited a full month, until his sentencing, to do so.  His basis was that "I felt I was, like, way pressured to it from listening to how much time I will get...  I just -- I just judged my decision wrong, and I want to take, refuse my plea and take it to trial."  That's not good enough:  the 8th follows its long lines of cases holding that "a mere change of heart is an insufficient basis to withdraw a guilty plea."

Well, why not?  The rule was obviously put there for a reason, and the case law says that motions to withdraw pleas before sentencing should be "liberally and freely granted."  (As opposed to motions made after sentencing, which can only be granted "to correct a manifest injustice.")  If it didn't contemplate a plea being vacated simply because a defendant had changed his mind, what did it contemplate?  That the defendant could only vacate the plea if somebody else came forward and confessed to the crime? 

To be sure, that doesn't mean the defendant should always be entitled to withdraw a plea.  If he pleads on the day of trial, for example, when the state has all its witnesses lined up and ready to go, then comes back a month later and asks to withdraw the plea, well, I've got a problem with that.  Ditto if he's got prior experience with the justice system, and knows how things work.  Maybe there should be a presumption that the plea should be vacated, with the state able to overcome it.  But if you're going to automatically rule out a "change of heart," what do you have left?  Taylor was an 18-year-old kid when he pled.  I made some decisions that I almost immediately regretted when I was 18, and none of them involved doing 15 years in prison.  New Rule:  it shouldn't be easier for me to get out of a thousand-dollar contract than it is for some kid to back out of a plea that puts bars on his windows until he's in his early 30's.

Here's another New Rule:  We start applying the harmless error concept to post-release controls.  Two more cases highlight the idiocy of the present law.  In State v. Alhajjeh, the defendant files an application to reopen his appeal on grounds that his appellate lawyer rendered ineffective assistance.  How so?  By not alleging as error the fact that the judge gave Alhajjeh five years of PRC, when he should have only gotten three.  The court agrees, grants the motion to reopen, vacates that part of opinion, and remands the case to trial court for proper imposition of PRC.  The result is that Alhajjeh will only have to do the three years, instead of five, when he gets done with his 20-to-life sentence for murder and tampering with evidence. Oh, wait, since it's murder, he'll be on parole anyway, not PRC.  And trees had to die for this. 

They also gave their lives for little result in State v. Evans, where the court remands the case back for correction of the sentence that imposed five years of PRC.  The problem was that Evans was convicted of murder, and you get parole, not PRC for that, and there's absolutely no possibility that the Adult Parole Authority, which administers both, would be able to figure out what to put Evans on unless a court told them what to do.

Speaking of people who don't get to change their mind, which we were doing a couple paragraphs back, add to their ranks David R. Dininny.  Back in 2001, he signed a dissolution agreement promising to "provide the full costs associated with the child attending and retaining a degree at a college or university of the child's choice, regardless of whether the particular institution is in-state or out-of-state, and/or a public or private institution."  Nine years later, he filed a motion to vacate, claiming that his agreement had been "procured through coercive and egregious tactics," a realization that apparently coincided with his receipt of the first tuition bill for his spawn.  In Hirschman v. Dininny, the court affirms the trial judge's denial of the motion to vacate, noting that "Dininny's affidavit provided absolutely no explanation for his nine-year delay in seeking relief; obviously, he simply had a 'change of heart' about funding his child's college education." 

Hmmm, seems we've heard that one before.

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