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What's Up in the 8th

Some defendants are a bit too clever, as we learn in State v. Barnes and Figueroa v. Showtime Builders.  Perhaps the Supreme Court should be a bit more clever, the court complains in one of three cases involving defendants named Jones, all of whom wind up on the losing side.  But one defendant, despite spending the next three years in jail, is a winner. 

One of the unlucky Jones was Melvin, who'd pled guilty to involuntary manslaughter back in 2000, only to have his sentence vacated in 2010 because of improper imposition of post-release controls.  He appeals, claiming that he wasn't given a de novo sentencing hearing.  He was entitled to one under State v. Singleton (discussed here), since his first sentence was prior to July 1, 2006, but that was before State v. Fischer decided that resentencings for PRC aren't de novo.  Was Fischer retroactive?  The panel points out that Fisher doesn't say, and that the high court's "holdings continue to leave gaps in the analysis that create uncertainty for the lower courts," but apply Fisher retroactively without actually saying so.

The court leaves no uncertainty in one area of the law.  Last year, in State v. Bodyke, the Supreme Court held that the Adam Walsh Act's provision that the Attorney General was to reclassify sex offenders classified under previous SORN law violated the separation of powers doctrine, because it involved the executive changing an entry that had been made by a judge.  As I'd mentioned in a post last year, one of the lingering questions was what happened if the previous classification did not result from a judicial order, but from operation of law.  The 8th District has been probably the most AWA-hostile court in the state, and it burnishes that reputation in Hannah v. State and State v. Speight, unequivocally holding that any reclassification is impermissible, and the defendant's status reverts back to what it was before the AWA.

Nor is much uncertainty left in the area of joinder of offenses.  In State v. Shabazz, the defendant had committed three armed robberies, two of stores and one of an individual, within a 30-day period.  The court spends all of a paragraph rejecting his claim that they shouldn't have been joined for trial, and does it in a way that suggests that as long as the offenses are similar in type and proximate in time, a defendant is going to have to show some prejudice -- i.e., jury questions indicating confusion -- to warrant reversal for improper joinder.  At any rate, we don't have to worry about Shabazz committing a 4th robbery; his 81-year prison sentence is also upheld.

In State v. Barnes, the defendant tries his best to avoid a domestic violence conviction, a hard sell given that the police, responding to the call of  a disturbance, could hear the victim screaming "help me" and "get off me" from 150 feet away.  When they broke down the door, they saw the victim lying on the floor covered with blood, and Barnes standing over with closed fists and blood on his shirt.  The state's case was complicated by the victim's move to another state, obviously to avoid testifying.  Many of her statements were admitted nonetheless, and it might have made for a good Crawford issue, but it isn't raised.  Barnes did file a motion for new trial on the basis of newly discovered evidence -- an affidavit from the victim recanting her statements -- but that's a bit too clever, and the court brushes it off, noting that the defense attorney was informed of the recantation before trial, and thus it's not newly discovered.

The defendant in Figueroa v. Showtime Builders is also too clever by half.  Locked in a dispute with a customer over a home remodeling contract, the pressed for arbitration, and the court dismissed the case without prejudice in August of 2008 because "the parties have indicated they have recently chosen an arbitrator and will proceed with binding arbitration."  Apparently, an arbitrator hadn't been chosen, and over the next year Showtime ignored phone calls, emails, and letters from plaintiff's counsel attempting to select one.  They finally did, but Showtime then fired its attorney and retained a new one, who dragged things out for another year and then informed the plaintiffs that Showtime was no longer interested in arbitration.  And, oh, by the way, the statute of limitations had expired on the plaintiffs' claims.

The plaintiffs filed a motion to vacate the original entry, and the court granted it and ordered binding arbitration.  Showtime appealed, arguing that you can't vacate a dismissal without prejudice, because it's not a decision on the merits.  It's been my experience that when you engage in underhanded behavior, the courts are not going to bend over backwards to help you, and this is no exception.  The trial court's dismissal was conditioned upon the agreement to proceed with arbitration, the panel decides, and analogizes this to a trial court retaining jurisdiction to enforce a settlement; thus, the "dismissal was conditional on an event that did not occur.  The trial court could then grant appellees relief from that judgment in order to enforce the condition."

A bit more perplexing decision in Alexander v. Cleveland ClinicAlexander was employed as a policeman by the Clinic, and while directing traffic gestured to a car to stop as it approached the intersection.  It didn't, and Alexander yelled "Stop!" and hit her driver's side mirror, breaking it.  While this would be routine -- indeed, somewhat docile -- behavior by a Cleveland police officer, it violated the Clinic's gentler, kinder view of how its officers should act, and so when Alexander refused to acknowledge the error of his ways, he was fired.  Alexander sued, claiming that his firing violated public policy that  police officers are to enforce the laws of Ohio, and that dismissing a police officer would jeopardize that public policy.  The majority buys this, but the dissent makes a good case that Alexander was not fired for enforcing the law, but for violating the Clinic's policies with regard to how the law was to be enforced. 

Finally, in the Cuyahoga County Prosecutor's Office, they keep track of the win-loss record of each of the assistant prosecutors.  I'm not sure how they figured the result in State v. CalderwoodCalderwood, who'd been convicted of arson twice in Michigan, came to Cleveland and pilfered copper pipes and appliances from a house next door.  The prosecution claimed he also turned on the gas, which resulted in an explosion which destroyed that house and damaged fifty-some others in the neighborhood.  The State charged Calderwood with one count of burglary and 72 counts of arson, presenting 67 witnesses in a trial that lasted three weeks, and then the poor prosecutor had to sit there and listen while the judge, after announcing the conviction on the burglary count, tried to come up with different voice inflections for the 72 not-guilty verdicts on the arson counts.

I don't know how they do things in the Prosecutor's office, but if I'm the defense attorney, even though Calderwood got three years for the burglary, that one goes into the W column.

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