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What's Up in the 8th

I had an oral argument last week where my only assignment of error was manifest weight of the evidence, and I had an epiphany.  Manifest weight is to an appellate lawyer what the Holy Grail is to King Arthur:  you're sure it exists, but you have to take that on faith, because you've never really seen it.  I've been doing this blog for over six years now, and I've read God knows how many appellate decisions, and off-hand I can't think of one where the conviction was reversed on a manifest weight argument.

We almost got there this week, though...

The near-miss comes in State v. Williams, one of only two reversals in the bakers dozen of criminal cases handed down last week.  (The State confessed error in the other.)  Williams was arrested when the cops busted an after-hours party in a warehouse Williams lived at.  A frisk of the hundred-some people in the place produced nothing, but the cops found bullets in Williams' bedroom on the first floor, and some drugs and two guns in various places on the second floor.  Good case prep:  there was never any testimony that the bullets were compatible with either of the guns.  A jury acquitted Williams of the drug charges, but the judge convicted him of the weapons under disability count.  Besides an ineffective assistance claim, the only assignment of error was manifest weight, and the court discusses the law on that and the evidence before deciding that "none of the evidence presented conclusively established that Williams constructively possessed either of the guns" and that therefore his "conviction was against the manifest weight of the evidence."  Sounds good, but the opinion reads like a review for sufficiency of the evidence, and the kicker is that Williams' conviction is vacated and he's discharged, which is the remedy for insufficiency; manifest weight simply results in a retrial.

Several other decisions aren't as tight as they could be.  In State v. Roundtree, the trial judge imposed a two-year sentence for a third-degree felony, and it's obvious that the judge -- and perhaps everyone else at the sentencing hearing -- didn't realize that this was a "lesser" third degree felony under HB 86:  instead of being punishable by 1 to 5 years in prison in monthly increments, it was punishable by 9 to 36 months, in 6-month increments.  The appellate panel decides this is irrelevant, since the 2 years was still within the range of punishments allowed.  But it's clear from the sentencing transcript that the judge chose two years because she didn't think the minimum sentence was warranted.  Under the old law, two (or more) years in prison was the only alternative to a minimum sentence, but under the new law, the judge would have had the option of a 12- or 18-month sentence as an alternative; the fact that she wasn't aware of that isn't irrelevant.

The court also experiences problems with HB 86 in State v. Lyles.  Lyles had been convicted of a 5th degree felony drug trafficking charge for selling crack to a confidential informant, and the judge determined that this was "organized criminal activity" and sentenced him to a residential sanction of ninety days in jail.  There's a 12th District case which holds that "organized criminal activity is an inherent part of drug trafficking," but the panel distinguishes that on the facts, finding that Lyle's act was "isolated and random."

That's good, but then come problems.  What's the impact of the finding?  The court holds that RC 2929.13(B)(1) now requires community control sanctions if certain factors apply, but prison can still be imposed "if the court determines that one of the nine factors" under 2929.13(B)(2) apply.   One of those factors is organized criminal activity, which, as mentioned, the court found wasn't appropriate, but it finds another:  Lyle committed the offense while on post-release control, and that's one of the factors, so a prison sentence could be imposed.

There are a number of problems with this.  First, the findings under (B)(2) don't have anything to do with the "mandatory" probation of (B)(1); unless the defendant is exempted out under (B)(1) -- he carried a gun, inflicted harm, and some others -- you don't even get to (B)(2).  Second, being on post-release control isn't a factor under (B)(2); the provision the court's referring to covers the offender committing the crime "while under a community control sanction, while on probation, or while released from custody on a bond or personal recognizance."  Third, at the time Lyle was sentenced, sentencing for felony drug offenses fell under 2929.13(C), not (B).  (It's since been amended to allow 5th degree felony drug offenses be covered under 2929.13(B).)  Finally, a ninety-day jail term isn't a prison sentence:  a "residential sanction" such as local jail time is a community control sanction.

The court's decision in Strongsville v. Kane is also troublesome.  Kane was charged with damaging a neighbor's fence, and pled no contest to criminal mischief.  Although the complaint alleged only a single date on which a board in the fence had been broken, at sentencing the victim claimed restitution for over 130 boards that she asserted Kane had damaged over a 5-month period, and the judge gave her $1,808.  The court upholds this, although noting that it would have been better practice for the complaint to have alleged the range of dates, or at least for the prosecutor to have asked at the plea hearing that the complaint be amended to conform to those dates.  I think it's more than a question of "better practice," though; there's potentially a notice problem here.  I don't know what information was given to Kane's attorney in discovery, but he may very well have based his advice to Kane on the belief that there was only a single event, with minimal damage.  Allowing the victim to be awarded restitution because she comes in after the plea and testifies as to far more damage than the complaint alleged seems fundamentally unfair.

To top it off, the State wins a suppression motion in State v. Shabazz, although the opinion leaves unclear whether that should've happened.  The cops had set up a controlled buy of four firearms from a man named Walker through a confidential informant.  At the appointed time, Walker pulled up to the buy site in a car driven by Shabazz, entered the building where the informant was waiting, and told him that the owner of the guns was nervous about getting paid, that the guns were in another location, but that Walker could get them and bring them there in five minutes.  When Walker exited the building and walked back to the car, the take-down units came rushing in.  They removed Shabazz, patted down both him and Walker, but found no weapons on either.  A search of the vehicle, though, turned up a gun under the driver's seat.

What exactly transpired between the frisk and the search of the car isn't clear, and it's critical.  Walker had an arrest warrant out for him (for murder, no less), and so the opinion discusses search incident to arrest, reasonable suspicion for an investigative stop, and probable cause to search the car, without really settling on any one.  The opinion makes reference to Arizona v. Gant, so it's possible that the defendants were placed in a police cruiser before the search was made; that would take it out of search incident to arrest.  The other two exceptions to the warrant requirement are also problematic:  the police are claiming probable cause (or reasonable suspicion) to search the car for guns, when the only evidence they have is Walker saying he has to go elsewhere to get them.

It's doubtful that the Supreme Court would hear the case, and more doubtful that they'd reverse, but if they did, Shabazz would stand to get some money for the year he'll spend in prison on this.  That's because in another decision last week, the court held that a defendant who's incarcerated because the trial court erroneously denies a motion to suppress is entitled to collect damages for wrongful imprisonment.  We'll talk about that one tomorrow.

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