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What's Up in the 8th

Here in Cuyahoga County, the discovery procedure is pretty routine.  The defense files its request for discovery, and usually within a day or two, the responses -- reports, statements, the client's criminal record -- are uploaded to the Defense Portal, and an email sent to the attorney telling him that it's there.  He can then log in and download it.  There's also one other document on the Portal:  the State's demand for discovery.

What every defense attorney should do at that point is file a response to it.  Doesn't matter that you don't know who your witnesses are going to be, or what documents you're going to provide.  Doesn't matter that in all likelihood you won't be calling any witnesses or presenting any documents at trial.  Just file a simple pleading saying that you don't have any witnesses or documents you intend to introduce, and if that changes you'll supplement your response.

The reason for doing this is to keep speedy trial time from being tolled.  Five years ago, in State v. Palmer, the Ohio Supreme Court held that a defendant's failure to respond to the State's discovery request after a "reasonable time" tolled the speedy trial statute.  In that case, the court found that the reasonable time was 30 days, but it gets worse; there are 8th District cases out there which hold that the time is tolled from the point where the State files for discovery, under the dubious theory that the failure to respond to discovery is a "continuance."  (And yes, "dubious" is a charitable assessment of the theory.)

So the 8th District's decision last week in In re D.S., dismissing a juvenile conviction for murder and felonious assault on speedy trial grounds, was all the more surprising, since the defense had never responded to the discovery demand at all.

The case hinged largely on the intricacies of juvenile delinquency procedure.  The State filed the delinquency complaint against D.S., who was 16 at the time, in October 2009, and three months later filed a motion asking that he be bound over to the common pleas court.  That was denied, so in May 2010 the State sought and obtained an indictment of D.S. as a "serious youthful offender" (SYO), meaning he was also subject to an adult sentence.  D.S. was found delinquent of all charges and specifications after a bench trial in August.

D.S. struck gold with his first assignment of error, that his attorney was ineffective for not filing  a motion to dismiss for a speedy trial violation.  Such a claim here would normally be a non-starter, because the statutory speedy trial times don't apply to juvenile proceedings.  There's an exception, though:  the time does click in once a prosecutor files notice of his intent to seek an SYO sentence.

So how did D.S. get around Palmer?  The court gives a variety of reasons, some better than others.  (The argument that the cases can be distinguished because in Palmer the defendant responded tardily, while here D.S. didn't respond at all, falls in the "others" category.)  The court's on much more solid ground in its holding that whether the speedy trial time is tolled by an act of the defendant requires an analysis of whether the defendant's acts actually delayed the trial.  Here, they didn't; in fact, in four hearings from January through May, the State never mentioned that the defense's failure to respond to discovery was a problem.  That analysis is spot-on.  But don't be surprised if the Supreme Court takes a look at this and comes to the opposite conclusion.

Allied offenses pop up in a couple of cases.  In State v. Castro, the defendant claims some of his convictions for aggravated burglary, aggravated robbery, kidnapping, and felonious assault should have merged.  Some of them might, too.  Although the opinion doesn't mention the underlying facts, all of those offenses might be allied under the Supreme Court's holding in State v. Johnson, which requires an analysis of the defendant's conduct:  if all or any of those offenses could be committed with the same conduct, they're allied.  There's one problem, though:  the convictions, and Castro's 40-year sentence for them, date back to 2002, and he didn't raise that argument in his original appeal.  He did raise it at a hearing to impose post-release controls in 2010, but his appeal from the denial of that is doomed by res judicata.

But think about it for a minute.  State v. Johnson wasn't decided until 2010.  Back when Castro was convicted, allied offense analysis was governed by State v. Rance, which required a comparison of the elements of the crimes in the abstract, without consideration of the underlying facts.  Under Rance, burglary, robbery, and assault wouldn't have been allied; in fact, it wasn't until State v. Winn in 2009 that the Supreme Court held that aggravated robbery and kidnapping were allied, and then only by a 4-3 vote.  Should Castro be barred from raising the issue now because he didn't raise it when it would have been a dead-bang loser?

I thought there might be a problem with this, but there's not.  Back in 1993, in State v. Collins, the Supreme Court held that a minor misdemeanor traffic violation couldn't serve as the basis for an involuntary manslaughter conviction.  Two years earlier, Walter Szefcyk was convicted of involuntary manslaughter on the basis of a minor misdemeanor traffic violation.  He lost his appeal, and the Supreme Court denied jurisdiction.  After Collins came down, he filed for post-conviction relief.  The trial court denied it, the 9th District reversed, but the Supreme Court reversed that, holding that res judicata applied regardless of whether there'd been a change in the law.  Finality of judgment and all that.

That Castro would have had better luck under Johnson is emphasized by the 8th's decision last week in State v. PaganPagan had allegedly engaged someone to rob a bar, but that went south, because one of the things you shouldn't do when you've been drinking all day is try to pull off a robbery.  Pagan's accomplice had 20 drinks, by his own admission, and when Pagan pulled up in the getaway car, he observed his accomplice being beaten up by the would-be robbees.  Pagan did retrieve the gun he'd given the accomplice and hid it under the seat of his car, only to be stopped by the police a few blocks away.  The jury didn't believe the accomplice's testimony, and so Pagan was acquitted of the robbery charges, but convicted of obstructing justice and tampering with evidence.  The trial court found that there were two acts -- taking the gun from the scene, and then hiding it under the seat -- and so imposed separate sentences.  Not so, said the appellate panel:  taking the gun and then hiding it in his car "constituted a single course of action."  This points up the vagaries of allied-offense jurisprudence under Johnson:  whether Pagan's conduct comprised one act or two seems to be entirely in the eye of the beholder.

Of course, for Castro, this discussion is purely academic.

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