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What's Up in the 8th

Woody Allen famously observed that 90% of life is just showing up.  When what you're supposed to show up for is your sentencing hearing, you can probably ratchet that percentage up to 100, as Larry Poole can tell you.  After pleading guilty to three counts of aggravated robbery with an agreed seven-year sentence, Poole begged for time to "get my affairs in order," as opposed to proceeding immediately to sentencing, as the State wanted.  The judge gave in, but cautioned Poole that if he didn't show up on the set date, the seven years would be off the table, and the judge would give whatever sentence he deemed appropriate.

Now, if you've practice criminal law for more than, say, six weeks, you're not sitting there thinking, "Gosh, I wonder if he showed up."  Of course he didn't, and when The Man finally caught up to him, the "appropriate sentence" turned out to be 15 years.  That was back in 2002, and Poole's delayed appeal in 2004 went nowhere.  In his latest adventure in the criminal justice system, he appeals from the denial of a motion to withdraw his plea, but in State v. Poole our old friend Ray Judicata disposes of that.

David Letterman's show features stupid pet tricks; here in Ohio, we have stupid post-release control tricks.  The latest features Steve Cottrell, who also stepped out of the Wayback Machine from his 2002 conviction to argue that the judge failed to impose post-release controls for his aggravated murder conviction.  True that, says the court in State v. Cottrell; the judge told him that there was "the possibility or post-release control... for a period of five years."  (Emphasis decidedly mine.)  And just two years ago in State ex rel. Carnail v. McCormick, the Supreme Court held that post-release control must be imposed for any first-degree felony, even one which involves an indefinite sentence of life with parole eligibility.

There's a slight flub here:  the offense in McCormick was child rape, which is a first degree felony punishable by life parole, while aggravated murder is an unclassified felony; in fact, McCormick specifically held that PRC was inapplicable to unclassified felonies.  I don't fault the panel for this oversight; they were probably numbstruck at the idea of having a defendant serve post-release control while also being on parole, a stupefaction I share.  And, of course, the whole thing results in the case being sent back to the trial judge so he can change the entry to make it clear that will definitely have to do the five years of PRC; no "possibilities" allowed.

More substantive stuff in several cases.  In State v. Griffith, defense counsel had told the jury in voir dire that there were two sides to the story about how Griffith came to be charged with felonious assault for trying to drive his truck over the victim.  Alas, the jury only heard one side; Griffith didn't testify.  Not ineffective assistance of counsel, the court finds, since whether to have the client testify is a matter of trial strategy, and here it appears Griffith was the one who made the decision.  Note to appellate lawyers:  Griffith continues the court's recent policy of holding that where a defendant alleges both manifest weight and insufficiency of the evidence, merely incorporating the arguments about one into the other won't suffice; under AppR 16(A)(7), each has to be separately argued and supported.  Griffith also adds to the body of case law holding that intent can be inferred from words and actions, and the defendant's words -- calling the victim a "dumb spic bitch" -- do not help him on this score.

In State v. McMullen, the court tackles the issue of how sex offender laws apply to people convicted in other jurisdictions.  McMullen had been convicted of attempted rape in Maryland in 1998, which required ten years of registration.  The law was subsequently amended to require lifetime registration for that offense, and the change retroactively applied to him.  When he moved to Ohio ten years later, he was automatically reclassified as a Tier III offender under the Adam Walsh Act.  Can't do that; AWA can't be applied to offenders who committed their offense before the act went into effect.  The State argues that because of the lifetime registration requirement, McMullen should be classified as a sexual predator under Megan's Law, but under that statute, McMullen would have had the right to a hearing to show that he is unlikely to commit a sex offense in the future, so the court sends it back for that hearing.  One more example of the difficulties of applying two sets of sex offender laws, one of which has been repealed, depending on the date the offense was committed.

Somewhat of an odd result in State v. Bell.  The first of seven counts of Bell's indictment for drug offense contained a school specification and ten forfeiture specifications.  The problem here is that the burden of proof for the forfeiture specifications is only preponderance of the evidence.  The trial judge erred by placing that burden on the defendant, then compounded the problem by also using that quantum for the school spec, where it should be reasonable doubt.  That affected only the first count.  The court then rejects assignments regarding the instruction on accomplice testimony, ineffective assistance of counsel, and sufficiency.  The trial judge had admitted evidence that Bell hadn't filed tax returns in the past five years, acceding to the State's argument that this permitted the inference that his income came from selling drugs, rather than from legal pursuits.  The court finds this to be error, too, but deems it harmless in light of the "substantial" evidence of guilt.  The court nonetheless comes to the conclusion that all this -- error on one of seven counts, no error on three assignments, and harmless error on another -- rises to the level of cumulative error, and reverses.  It's the only real win for defendants this week, so we'll take it.

One disconcerting aspect of Bell.  The ineffective assistance claim was based on trial counsel's failure to elicit from the co-defendants, who testified for the State, just how much prison time they'd saved by rolling over on Bell.  The court quotes language from a previous decision that while a plea bargain may provide evidence of a motive to lie, "the specific extent of the benefit the plea bargain provided to the witness is not relevant to this purpose."  In other words, you can get out the fact that the witness got out from under a first degree felony for a fourth degree felony, but you can't bring out that he was looking at ten years in prison and is now facing only 18 months.  I'd argue that "the specific extent of the benefit of the plea bargain" is decidedly relevant in those circumstances, but I argue lots of things that the courts don't agree with, so make this one more.


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