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What's Up in the 8th

I've mentioned before that 4th Amendment law is like a war, with each side adopting new arguments and tactics as decisions come down.  One of the tactics in current vogue is the inquiry/consent routine:  the officer will ask the defendant if he has anything on him or in his car, the defendant will say no, the officer will ask if he minds if he's patted down or if the car is searched.  The defendant wouldn't consent if he had something to hide, right?  Unfortunately, defendants usually assume the converse -- that the cops will think they're hiding something if they refuse consent -- and so submit to the search.  That's what Philip Dieckhoner did, even though he had a baggie of cocaine in his pocket.  Last week in State v. Dieckhoner the 8th District held that the cop's questioning went too far.

A cop pulled Dieckhoner over for a busted headlight, took him out of the car to show him the headlight, then told him to get it fixed and "told him he's all set, have a good night."  As Dieckhoner turned to walk back to the driver's door, the cop asked him "by the way, do you have anything illegal, guns, knives, bombs, anything?"  Dieckhoner said no, and the cop asked if it would be okay to "check his person."  By this time another cop had arrived on the scene, and was standing five feet away.  Deickhoner agreed to be patted down, and a small bag of cocaine was recovered from his pocket.

The opinion does an excellent job explaining the law in this area, relying mostly on the Supreme Court's 1997 decision in State v. Robinette, involving a similar situation.  The bottom line is this:  in the absence of any reason for a police officer to ask a person to submit to a search, if the person does submit it's very likely that this court find merely an acquiescence to a claim of lawful authority on the part of the defendant, rather than a voluntary consent.  Most interesting is that the trial judge held that the defendant had consented to the search, which normally would have been binding on the appellate court.  Not so here, the majority says:  the judge had found that the defendant had consented, but didn't address the question of whether the consent was voluntary, and so the court could review that de novo. 

A few weeks back, I mentioned that the rate of reversal in municipal court cases has to approach 70%, compared to the normal rate of 15% to 20% in common pleas cases.  Someone wrote to me to ask if that was really true, and, like any good lawyer, I said, "Sure!" even though it's only a wild guess.  It's probably a good one, though, and that percentage holds roughly true this week, with misdemeanor defendants chalking up a W in two out of three tries.

One of them came in Solon v. Bollin-Booth, where the court reverses the denial of a post-sentencing motion to vacate a plea in a 4th-degree misdemeanor domestic violence case.  Bollin-Booth argues that the trial court didn't advise her of his constitutional rights, which was true, but irrelevant; for a "petty offense" -- one punishable by less than six months incarceration -- a judge need only advise the defendant of the effect of the specific plea being entered, and may do so either orally or in writing.

That still proved problematic.  One of the reasons for defendants' success in these cases is the paucity of the record, especially since the proceedings often aren't recorded.  They weren't here, and the only paperwork is a "Plea Agreement Form" and a journal entry, neither of which mention anything about the judge explaining the effect of the plea.

Of special interest here is the court's treatment the city's argument that the appeal was moot because Bollin-Booth had paid the fine and served the probationary period.  Two years ago, in Cleveland Heights v. Lewis (discussed here), the 8th had handed down an en banc decision holding that Lewis' misdemeanor conviction hadn't been mooted by his payment of the fine, because it was involuntary (the trial court had denied a motion to stay).  Seven of the twelve went further and held that a misdemeanor conviction had sufficient collateral consequences that completion of the sentence didn't render it moot.  That went up to the Supreme Court (discussed here), which agreed that payment was involuntary and so did not address the latter issue, but the court in Bollin-Booth takes it up and squarely decides that the collateral consequences of a domestic violence conviction -- mainly, that a subsequent offense is a felony -- is sufficient to preclude it becoming moot.

Municipality success rates on appeal are so bad that even pro se defendants can win them, as happens in Oakwood Village v. Blum, where Blum's conviction for speeding is reversed.  Reading Blum's four assignments of error, which take up over half a page of the opinion, I first thought he might be a lawyer, until I got the claim that the trial court violated the Federal Rules of Evidence.  A little knowledge, etc...  The court reverses because the traffic sign wasn't seven feet high, or something like that, rendering unnecessary the reading of the remaining three assignments, to my happiness and, I presume, the court's.  The prosecutor took the coward's way out and didn't bother reading any of it; the opinion notes that no appellee's brief was filed.

The ACLU files an amicus brief on behalf of the defendant in State v. Harris, the issue being whether Harris can be imprisoned for failing to pay child support.  That wasn't the trial judge's first resort:  he put Harris on probation, imposing conditions including verifying five job applications per week until finding full time employment and making payments toward the $30,000 in support arrearages he'd accumulated.  Four months later, he found Harris to be a probation violator, and gave him a one-year jail sentence.  Harris' argument is that the court could not send him to prison for failure to pay restitution unless it first found that he had the ability to pay.

There's merit to this argument -- there's a US Supreme Court decision which holds that you can't imprison somebody because of their inability to pay a fine or restitution -- but Harris isn't the ideal candidate to push it.  As the opinion notes, he's 39, had three years of college, worked for several years as a paralegal at a top law firm, but paid a grand total of $30 during the four months he was on probation, and provided only four applications during the month preceding the revocation hearing.  Harris also argues that his plea was faulty because the judge didn't advise him that failure to pay was an affirmative defense, but the court rejects this, too, finding that "Harris could only have benefitted from this defense if he had made payments commensurate with his ability and means,"  and he hadn't.  The easier response would have been that a court is under no duty in a plea hearing to advise a defendant of any affirmative defenses he has.

The court also plunged into the thicket of allied offense law, handing down three decisions on the subject.  We'll take a look at those tomorrow.

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