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What's Up in the 8th

A couple of years back, I had a pretrial scheduled in a case, but there was a water main break downtown, and they shut down the Justice Center for the day.  Still, I wasn't surprised when I got a call the next day from my client, who'd checked the docket on the computer and seen that the pretrial had been "continued at defendant's request."

That's standard practice up here:  the first thing any bailiff learns is that any court date after the first pretrial is to be marked that way.  The reason, as the defendant in the 8th District's decision in State v. Hemingway found out last week, is that this keeps speedy trial time from ever running:  it's tolled for the period of any continuance requested by the defendant.

Hemingway complained that he did not in fact request any of those continuances, but the court told him he should've filed motions to correct the journal entries.  When my fantasies do not involve Scarlett Johansson, they revolve around my imagined conversations with a bailiff about this subject:

ME:  Remember when I was hear last week and the pretrial was continued because the prosecutor was out sick?  You put it down as continued at my request, and it really wasn't, so I'd like you to correct the journal entry to reflect that.

BAILIFF:  Sure, let me do that right now.

I've got a better chance with Scarlett.  That was actually a sidelight in Hemingway; the big issue was RC 2941.401, which is the speedy trial statute for inmates.  If you're in prison and you've got pending charges, you can send a letter to the prosecutor and the court telling them you want to be brought to trial, and if they don't do it within 180 days, the charges are dismissed.  The 8th holds that the statute only applies if you're in prison the whole time.  If they release you on the 179th day, the regular speedy trial clock takes over, and they have 270 days from your arrest or arraignment to try you.

One of the things that fascinates me about practicing criminal law is the responses you get when you ask your client if he's got any prior criminal convictions.  You learn a lot of things here.  One is that only felonies count:  if your client tells you he's never been convicted and you point out that he pled to domestic violence just six months ago, he'll look at you quizzically and tell you that it was only a misdemeanor.  What about the drug possession charge two years ago?  That doesn't count, either, it seems, because he got probation.  And some clients just can't seem to remember whether they've got prior convictions at all.  Yeah, sure, you and me, we stand in front of a guy in a black robe who tells us he's sending us to prison for ten months, that's a pretty big deal.  You and me, we'd remember that.  Clients?  Well, not so much.

Apparently, they don't remember much about the plea hearing, either, which was the problem with the defendant in State v. Burns, who'd pled guilty to second-degree felony robbery with a one-year firearm specification.  Oh, sure, he vividly remembers the part where the the judge told him he "has got mandatory time of at least a year.  You will get a basic two, so you will probably, will end with two plus one, that would be a minimum."  But then Burns zoned out, and didn't hear the four other times that the judge told him the maximum was eight years plus an additional one for the spec.

The more interesting aspect of Burns, which also provides this week's Handy Practice Tip, is what happened at sentencing when the victim's father got up and claimed that Burns was still harassing and threatening the family.  The defense lawyer denied this, and claimed he could produce a witness to show this wasn't true, but when the judge offered him the opportunity to do so, the lawyer chose not to.  Burns argues that the judge shouldn't have taken the father's statements into consideration, but the court notes that RC 2930.14, the victim impact statute, contains a provision holding that if the victim's statement "includes new material facts, the court shall not rely on the new material facts unless it continues the sentencing * * * or takes other appropriate action to allow the defendant * * * an adequate opportunity to respond to the new material facts."  The judge did what was required, so she could take the new information into account.  And did; Burns got seven years.  I'm guessing he'll remember that.

If you're looking for work, you might want to amble down to County Prosecutor Bill Mason's office and drop off a resume, because a couple of 8th District decisions last week indicate they might be hiring.  The defendant in State v. Maddox broke out a window in a store, then ransacked it, and wound up pleading guilty to vandalism and breaking and entering.  On appeal, Maddox argues these are allied offenses.  The court notes he didn't raise that issue below, so it's only reviewed for plain error.  This might not seem a big deal -- the Supreme Court has held that it is plain error to sentence a defendant on two convictions which should have merged -- but there's an argument to be made that the defendant bears some burden of presenting facts to show that the offenses were indeed allied, at least when the case goes up on a plea and the factual record is sparse.  Not in the 8th any more:  the court states that "in the event of a plea, the state must proffer sufficient evidence at the sentencing hearing of how the subject offenses occurred in order to determine whether they merge."

More work for prosecutors comes in State v. Phillips, where the defendant pled guilty to multiple counts and firearm specifications arising out of a driveby shooting, and wound up with a 92-year sentence.  Somebody apparently mastered the tables feature of whatever word processing software the 8th District uses, because Phillips contains some nifty charts showing the various offenses and specifications he was sentenced to.  The case goes back, because even the state conceded that a lot of the offenses and specs should have merged.  That's the trial judge's fault, right?  Nope; the court lays the blame on the prosecution, saying that "the state is duty bound to provide the trial court with a detailed sentencing memorandum when the state indicts on a defendant's same conduct, but on alternative theories, with many firearm specifications."  That's a detailed one, guys, preferably with all kinds of nifty charts.  Hope your word processing software is up to snuff.

Given that Phillips is going back for sentencing, the court finds it "premature" to address the assignment of error claiming that the sentence was excessive, but it gives a little hint of how it might view that; one of the reasons addressing the issue would be premature is that "this court cannot assume the trial court will fail to consider the purposes and principles of sentencing at Phillips's resentencing hearing."

There was another case involving the same judge and the same argument regarding an excessive sentence.  The court came to a decidedly different conclusion in that one, and we'll talk about that tomorrow.

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