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What's Up in the 8th

If you're a judge, sometimes it's hard figuring out what sentence to give a person.  Sometimes it's easy.  But just because it's easy doesn't mean you can do it, as we discover from a couple of 8th District cases last week.

Take John Moore, for example.  Please, as the old joke goes.  He threatened his attorney at a pretrial, he had an extensive record, and seems to have been an all-around pain in the ass, so when he was convicted of aggravated robbery and kidnapping back in 2001, the judge evinced no equivocation in giving him maximum consecutive sentences of 33 years.  A year later, the court of appeals affirmed the convictions, but remanded for resentencing to correct some technical errors.  The court conducted the resentencing by video and imposed the same 33 years, but that got reversed, too, the 8th holding that this violated Moore's right to be present.  The judge did another resentencing, gave Moore another 33-year sentence, but Moore then won a new trial through a habeas proceeding in Federal court.  He was convicted again, at which point the judge (a) threw up his hands and gave Moore time served, plus an apology, or (b) gave Moore 33 years in prison.  If you picked (a), you're the captain of the Dummy Team this week.

But all for naught; last week, in State v. Moore, two judges on the panel found that the sentence was an abuse of discretion and vacated it yet again.  The court's analysis of this doesn't extend much beyond noting that Moore's co-defendant, who was the person who actually had the gun during these offenses, got only nine years, and the inference that this might have had something to do with the fact that the co-defendant pled guilty, while Moore insisted upon a trial.  In any event, if Moore is ultimately to wind up with a 33-year sentence, it will have to be imposed by a different judge; the original judge is slated to become the county prosecutor next January.

A judge wants to give Tony Quinones five years for a rape and sexual battery he's convicted of in 2009, so imposes three years for the rape and two for the battery and runs them consecutively.  The two offenses should have merged, the 8th held a year later, and so remanded the case for a resentencing.  The judge announces that it was her intent to make sure Quinones did five years for the crime, and so imposes that for the rape.  Quinones appeals that, claiming vindictive sentencing, but in State v. Quinones the court concludes that the judge "adequately rebutted the presumption of vindictiveness by stating that the increased sentence for rape was intended to effect the court's original desire to sentence Quinones to five years in prison, regardless of what counts may have survived."

But wait!  Good news for Quinones.  In the Federal system, he would have been screwed; there, a trial judge is permitted to consider the sentence as part of an overall "package," i.e., to look at the defendant's offenses as a whole and fashion an appropriate sentence.  If one of the convictions is reversed on appeal, the trial court can still impose the sentence "that appears necessary in order to ensure that the punishment still fits both crime and criminal."  But that's not how it works in Ohio.  We don't follow the sentencing package doctrine; the sentence for each offense is separate, and so when Quinones' sentence for sexual battery went bye-bye, all that was left was the three years for the rape.  The court reverses and remands with instructions to impose that three-year sentence.

Finally, if you're a judge and you want to send someone to prison, be careful who you listen to.  The prosecutor in State v. Cruz tells the judge that Cruz is facing mandatory time on her convictions of deception to obtain drugs, so the judge obligingly gives Cruz a mandatory three-year prison sentence.  Turns out there's only a presumption of prison time for the offense.  The State defends the result with the ridiculous argument that "there is nothing in the record to suggest that the trial court's decision was unreasonable, arbitrary, or unconscionable" -- as though the sentence being wrong isn't enough -- but the court rightly notes that there's a difference between mandatory and nonmandatory sentences, especially with regard to judicial release, and remands.

I've mentioned before that one of the considerations in trying a case to the bench is that you give up certain appellate issues by waiving a jury, and that shows up in two cases.  One is State v. Goss, a appeal from burglary conviction in which the sole assignment of error is manifest weight of the evidence.  If Cervantes had written about appellate law, he would have had Don Quixote writing a brief on this subject rather than tilting at windmills, and it's beyond futile when the fact-finder was a judge, not a jury.  State v. Wilson presents a complicated and rather weird fact pattern regarding a conviction for attempted murder, and the application of the castle doctrine, which presumes that a defendant acted in self-defense if he's in his own home (or car) and shoots an intruder.  The facts weren't the best for the defense -- the defendant shot the victim twice, five minutes apart -- and the court rightly notes that this was simply an issue of credibility:  if the judge believed the defendant, the shooting was justified, if he believed the victim, then the presumption of self-defense was overcome.  But there are a number of good legal issues with the castle doctrine, especially with the jury instructions, and if there's no jury, you don't have those issues on appeal.  I'm not suggesting that either attorney was wrong to waive a jury; there are a lot of factors that go into that decision.  I'm just saying that one of them should be how the case might play out on appeal.

Speaking of appeals, State v. Grice serves as a reminder that just because the clerk's office tells you the whole record was filed on appeal doesn't mean that it was; it's a good idea to go over and check.  The first three assignments of error relate to a motion for new trial, which was based on several affidavits of co-defendants.  The affidavits were attached to the motion, and there's no question they existed; in fact, as the opinion notes, the transcript shows the judge reading from one of them during the hearing.  Alas, they weren't included in record, so that disposes of those assignments of error.  A similar fate befalls the assignment regarding the testimony of a police officer as to a claimed match between footprints found on a door and the treads on Grice's shoes.  The photographs of that comparison were admitted as trial exhibits, but the exhibits aren't contained in the record.  Finally, Grice argues that the judge's written jury instructions varied from the oral ones given the jury, but, you guessed it, the written instructions weren't included in the record, either.  Grice does hit paydirt with his 11th assignment of error, the panel holding that the trial court couldn't impose court costs in the journal entry if it didn't do so at the sentencing hearing, but his relief is limited to a new sentencing hearing, the only purpose of which is to allow Grice to try to talk the judge out of imposing costs.  At least he, unlike some of his brethren this week, doesn't have to worry about prison; the judge gave him community control sanctions.


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