What's Up in the 8th
"The horror... the horror..." Marlon Brando (pictured at right) in Apocalypse Now? No, me (pictured at 
right) after reviewing this week's batch of decisions from the 8th District, in which criminal defendants come out on the losing end in each and every one. That doesn't mean they were bad decisions, although it appears that the court was single-mindedly intent upon disabusing me of the notion that the 8th District is the most 4th-Amendment friendly court in the state. In fact, the 8th affirms the denial of a suppression motion in not one, but two separate cases, the first time that's probably happened since the Carter administration.
No quibble with the result in State v. Banks. Banks decided on a family outing with the kids, but instead of going to Cedar Point, he chose to sell drugs from his van. He developed car trouble, and while he was fixing it two police officers approached. One talked to Banks, and the other looked in the passenger window, where he saw a woman holding a baby, two other small children, and a scale and some drugs sitting on top of a diaper bag. Banks' argument that the police didn't have reasonable suspicion that he was engaged in criminal activity flounders on the fact that they don't need any: a policeman approaching a parked vehicle is a consensual encounter, not a stop. He fares no better with the argument that one of the child endangering convictions should have been thrown out for insufficient evidence, because one of the kids wasn't his. Oh, yeah, that makes it better.
State v. Hunter is another story. The cops got an anonymous tip that somebody in a burgundy hooded sweatshirt was selling drugs at a streetcorner, but didn't see anybody when they get to that corner. A few blocks away, they saw two men, one in a red jacket, standing on the sidewalk. They got out of the car and ordered the two to show their hands, then approached and began asking them questions. Hunter appeared "confused, sluggish, and made grunting noises in response to questions," and police detected the odor of PCP. Hunter admitted he'd used PCP earlier, the police patted him down, and found a small vial on him which emitted a "very strong odor of PCP." The panel affirms the denial of the motion to suppress.
I think this is the wrong result, and here's why. Let's go back to where the police get out of the car and order the pair to show their hands, which is before there's any odor of PCP or any other indication of criminal activity. An order to show hands is an assertion of legal authority, and constitutes a stop. What's the basis of the stop at that point? It can't be the anonymous tip, because an anonymous tip can't form the basis for reasonable suspicion unless the police see corroborating evidence of the unlawful activity, and here you never even get to that point, because the tip didn't provide anything: it was wrong about the address, and wrong about the clothing. No basis for the stop, and everything that follows gets tossed, too.
The court's handling of two other cases is somewhat problematic, too. State v. Creed presents this week's dog-bites-man story, an appeal of the denial of a motion to withdraw a plea in a rape case. Creed's main argument is a variation of "my lawyer made me do it," and receives the expected, and deserved, response. But Creed also argues that the plea was invalid because the judge failed to notify him that, as a sex offender, he would be unable to live within 1,000 feet of a school, day-care center, etc. The panel shrugs this off, noting a 1999 case which held that RC Chapter 2950, which contains the sex-offender restrictions, is "remedial in nature and cannot be considered as punishment," and that the judge had no duty to advise a defendant of collateral consequences.
But that was then, this is now. Last year in State v. Williams the Ohio Supreme Court said that the sex offender requirements and restrictions presently contained in Chapter 2950 -- the ones Creed was sentenced under -- were punitive, not remedial. And two years ago in Padilla v. Kentucky, the US Supreme Court held that failure to properly advise the defendant of the collateral consequences of the conviction on his immigration status could void a plea. The Court in Padilla relied on the fact that the immigration consequences were oftentimes more severe than the direct criminal consequences. That may be true as well for sex offender laws and restrictions. Something to think about.
Finally, we have State v. Craig. Craig was convicted of two counts of aggravated burglary, four of felonious assault, four of aggravated robbery, five of kidnapping, one of weapons under disability, and a partridge in a pear tree. This earned him a 33-year sentence, but that was reversed and remanded because under State v. Johnson, which had come down in the interim, some of the offenses should have merged. One other thing had happened in the interim: the judge who'd sentenced Craig was herself caught up in the county corruption scandal, and wound up not only losing her seat but going off to Federal prison.
When a case is sent back because of error in the allied offense analysis, the defendant gets a de novo resentencing. De novo means just that: the judge can give the defendant less time, the same time, or more time. (That latter might raise a presumption of vindictiveness in other circumstances, but not here: the presumption disappears if it's a different judge doing the sentencing.) The trial judge in this case noted that he wasn't the original judge, but was going "to defer to the wisdom of the trial judge" and "basically maintain the same sentence [the previous trial court judge] gave out."
Craig argues that this means the court didn't in fact conduct a de novo sentencing as required. The panel concedes that the statements "viewed in isolation" could be interpreted in that manner, but points to the fact that the court allowed the defendant his right of allocution, made findings of fact -- that there was an actual threat of physical harm, for example -- and merged and clarified appellant's sentence, and thus "clearly conducted a de novo sentencing hearing, exercised its discretion and carefully considered the applicable felony sentencing statutes."
Well, I'm sorry, but when the judge starts out the hearing by saying that he's going to give out the same sentence the other judge did, and concludes the hearing by giving out the same sentence the other judge did, I think you have to take his word and assume he imposed the sentence because that's what the other judge did. And that's not a de novo sentencing.
But Craig's not giving up. He filed a motion for new trial last August, attaching affidavits from family members saying he hadn't even been in the State on the date of the crime. This was well beyond the 120 day period for filing such a motion, and that requires the defendant to show he was "unavoidably prevented" from discovering the evidence within that time. The trial judge denied the motion, noting that "it strains credibility to the breaking point to believe that the defendant was unavoidably prevented from discovering that he was not only not present at the scene of the crime, but was not even in the State of Ohio" on the day the crime was committed. The 8th affirmed the denial of that motion last month. Stay tuned.
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