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What's Up in the 8th

It's well known that the population of Cuyahoga County has been declining since the 1950's; indeed, while Ohio's population increased by 1.6% in the last decade, the County's fell by 8.2%.  In fact, things have gotten so bad that apparently we can't find jurors:  of the seven criminal cases reported by the 8th District last week, three involved trials, and every one of the three was a bench trial.

Appealing a verdict on sufficiency and weight issues is usually a forlorn task, as is demonstrated by State v. HawthorneIt features a scenario customary in Cleveland, the gang fight, except in this one the combatants were female.  This resulted in less lethal weaponry ("sticks, knives, and glass," according to the opinion), and a concomitantly reduced body count.  Actually, zero in this case; had the fight been between males armed with their customary arsenal, the corpses would have been piled up like cordwood.  Shameka Hawthorne claims that her conviction of felonious assault should be set aside, contending that the judge should have believed her witnesses instead of those presented by the State.  The insufficiency argument goes nowhere, and the manifest weight argument winds up in the same place.  The latter does not permit an appellate court to "substitute its own judgment for that of the finder of fact," and, from my observations, the court is even more than customarily loathe to do so when that finder of fact also wears a robe.

But not always, we learn in State v. RobinsonThere, the victim, 60 years old, calls up Robinson and announces that he just got his disability check, from which he will repay Robinson the $70 he owes him.  Robinson shows up at the victim's apartment a few minutes later and the two engage in small talk; no sooner does the victim give Robinson the $70 than another man walks in, points a gun at the victim, and demands money.  The gunman completely ignores Robinson, who leaves the apartment, followed shortly thereafter by the gunman.  When Robinson is arrested next day, he claims he had nothing to do with it, but admits he never asked for help or called the police.

Now, one might conclude from all this that Robinson helped set up the robbery.  The judge thought so, convicting him of  aggravated burglary and aggravated robbery and sentencing him to 8 years.  The appellate panel, though, concludes that "the record is devoid of any evidence that would implicate Robinson in the commission of the robbery beyond his mere presence in the victim's apartment... the state presented absolutely no evidence that Robinson supported, assisted, encouraged, cooperated with, advised, or incited the gunman or shared in his criminal intent."  If you've got a "mere presence" case, Robinson should definitely be in your trial folder.

Not many stories with happy endings begin, "and then we went to the bar for 10-cent beer night," and the saga recounted in State v. Simmons is not one of them.  The ending in this one involves Simmons' five-year sentence after conviction -- in a bench trial, of course -- for felonious assault and abduction of his girlfriend.  The only notable point of the opinion --other than prompting wonder about the mind-set that can produce the thought, "hey, wouldn't it be a good idea to sell an intoxicating liquor at a dirt-cheap price?" -- is that domestic violence and felonious don't merge when they're based on separate incidents:  in this case, striking the victim, and then later hitting, choking, and dragging her.

Allied offenses are featured in two other cases, State v. Thomas, which we'll talk about tomorrow, and State v. Jackson.  Jackson is actually a bounce-back.  He was convicted of rape and unlawful sexual misconduct with a minor, both arising from a single incident.  He appealed, arguing that the offenses were allied.  This was under the Rance regime, which required an abstract comparison of the elements of the two offenses, and since one can commit rape without committing unlawful sexual conduct, and vice versa, Jackson's claim seemed doomed.  Not so, decided the 8th, presciently holding that Rance had been modified by State v. Cabrales, and an exact alignment of the elements was no longer required.  The State appealed, but in the interim State v. Johnson came down, holding that allied offense analysis focused on the conduct of the defendant.  The Supreme Court remanded Jackson for reconsideration in light of Johnson, but that's almost too easy; the court reaffirms what it did before.

The prosecution doesn't fare any better in State v. Faranda, maintaining its record of not having won a sex offender case since State v. Bodyke came down.  Faranda had been adjudicated delinquent for gross sexual imposition in 2004.  When the Adam Walsh Act took effect, he was reclassified as a Tier II offender, and then pled guilty in 2010 for failing to verify his address, and was sentenced to 18 months in prison.  After the Supreme Court declared the attorney general reclassification  provision unconsitutional in Bodyke, he moved to vacate his plea.  The trial court denied it, and the State argued on appeal that, unlike adults, reclassification for juveniles wasn't automatic under the AWA:  the juvenile court retained jurisdiction to reclassify offenders, and so there wasn't the separation of powers problem that troubled the Bodyke court.  Coulda, woulda, shoulda -- the fact is that it was the attorney general, not the juvenile court, which reclassified Faranda, and that was enough for the court to hold that Faranda's reclassification was illegal, and so was his resulting conviction for failure to verify.

While the State gets beaten like a red-headed stepchild in sex offender cases, its record on immigration cases has improved of late.  The 8th had regularly vacated pleas where the court had failed to advise a defendant of the possible immigration consequences, even in one case vacating a plea that had been entered 48 years previously.  Oddly, since the US Supreme Court held last year in Padilla v. Kentucky that misadvice by a lawyer of the immigration consequences of a plea could constitute ineffective assistance of counsel, the 8th has taken a harder stance.  The latest evidence of that comes in Cleveland v. Dobrowski.  Dobrowski had entered a plea to menacing back in 1987; since then, that has been made a deportable offense.  RC 2943.031, which requires judges to advise a defendant of those consequences, was passed the year after Dobrowski's plea.  That's fatal to his claim, the majority holds, noting that Dobrowski unsuccessfully sought to expunge his conviction 11 years previously, and "has therefore known of the impact of his plea and finding of guilt for quite some time." In the absence of a statutory mandate for advising the defendant, the majority applies the more demanding standard of post-sentence motions to vacate a plea -- that it is necessary to avoid a manifest injustice -- and concludes that the prejudice to the government of having to retry a 24-year-old case outweighs any injustice to Dobrowski.

The dissent doesn't think so, and I'm inclined to agree.  On the basis of a quarter-century old misdemeanor conviction, the government is apparently trying to deport Dobrowski, who's obviously lived in this country for at least that long.  Dobrowski didn't know that would happen at the time he entered the plea, and nobody else did, either.  Kicking him out of this country for that qualifies under my definition of manifest injustice.


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