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What's Up in the 8th

Twenty years ago, in State v. Xie, the Ohio Supreme Court said "a pre-sentence motion to withdraw a guilty plea should be freely and liberally granted."  Hardly a week goes by without a decision affirming the denial of a pre-sentence motion to withdraw a guilty plea, and last week the 8th District, in State v. Westley, announces what anybody who followed the cases knew a long time ago:  Xie's admonition is just so much chin music.  In fact, the court in Xie held that the trial court properly denied the motion, and that "a defendant does not have an absolute right to withdraw a plea prior to sentencing."  (Indeed, the latter statement is the first paragraph of the syllabus.)  The result in Westley, as in most others, is driven by the rule that a "change of heart" is insufficient to allow a change of plea.  Westley tries to get around this by arguing that he was really innocent and that his family and attorneys coerced him into pleading, but his argument founders on a lack of specifics, and the court's determination that "to make this claim, a defendant must submit supporting material containing evidence that the guilty plea was induced by false promises."  That's a very high bar, and Westley will not be the last defendant who fails to clear it.

That too-cute allusion to the Olympics out of the way, let's check out what else the 8th did last week.  State v. Perry seems to settle an issue, but doesn't.  Perry was charged with felonious assault and kidnapping, but turns out to be the victim:  of overindictment, the jury returning a verdict finding him guilty of simple assault.  The court imposed costs of $1600 over his lawyer's protests, given that Perry's sole income was $563 a month in social security.  He contends on appeal that the judge abused his discretion in imposing the fine, but the panel concludes that the Supreme Court has answered that one in State v. White, where it held that the statute "does not prohibit a court from assessing costs against an indigent defendant; rather it requires a court to assess costs against all convicted defendants"; thus, "a defendant's financial status is irrelevant to the imposition of court costs."  But the court also said in White that the court has discretion to waive the costs, and if the defendant objects, the issue is preserved and the court of appeals reviews for abuse of discretion.  Rather than address that question, or even discuss how abuse of discretion should be evaluated in that context, the panel engages in circular logic:  since the statute doesn't prohibit imposing costs on an indigent defendant, the trial court couldn't have abused its discretion in doing so.  A more detailed analysis can be found in my forthcoming book, "Who Cares?", because, as the court notes, social security benefits can't be garnished.  I'm just sayin'...

The unsettled nature of allied offense law post-Johnson is demonstrated yet again, last week in State v. Sanders.  Sanders and a confederate decided to rob Jason Furcsik, who was sitting in his car; the accomplice approached the driver's side and put a gun to Furcsik's head as Sanders approached the passenger side and started to get in.  Furcsik shifted the car into drive instead, and was shot in the leg as he sped off.

This led to Sanders' conviction of two counts of aggravated robbery and two of felonious assault, plus one of discharging a firearm over a public roadway.  (Yes, that is a crime.  When will the madness stop?)  The counts of aggravated robbery included one for causing serious physical harm, and one for using a deadly weapon, and the felonious assault counts were paired in the same fashion.  The trial court merged the two aggravated robbery counts and the two felonious assault counts, but the appellate panel decides that the two aggravated robbery counts instead merged with the felonious assault counts. 

The journey it takes to arrive at that destination is an uneven one.  It holds that there were two "separate events":  the first when the gun was held to Furcsik's head, and the second when he was shot as he drove off.

I'm not sure we have two events here:  would there have been two discrete events if the accomplice had approached the car, shot Furcsik, and then robbed him?  What's more, assuming that there were two events, I think the trial court had the better of it:  it seems the act of shooting a person as he's driving away from an attempted mugging fits more easily into felonious assault than aggravated robbery.  What's hard to understand is why both the trial and appellate courts missed the obvious:  regardless of whether there was one event or two, the discharging the firearm count was surely committed with the same conduct, and should have merged into the other offenses.

The court considers a discovery issue in State v. Wilson, and also fires a warning shot across the State's bow.  Wilson was charged with aggravated burglary, the State alleging that he had served as the lookout for the two burglars.  The prosecutor provided a typed summary of an oral statement Wilson had made to the detective, then sought to play a tape of the interview at trial.  The defense objected, claiming that it had never been told of the existence of the tape, but the prosecutor responded by noting that the summary included a notation that the statement was "audiotyped" and "will be retained in [the detective's] personal file."  The State argued that this put the defense on notice of the existence of the audiotape, and they were obligated to inquire further about it.  The trial court agreed, but the appellate panel doesn't:  the fact that the audiotape is mentioned in the summary doesn't shift the burden to the defense to seek it out, especially when the State's discovery responses don't list it.  The State violated CrimR 16 by not listing in its discovery that it possessed and may intend to use the tape, and the trial court should have excluded it.  It's harmless error, though, in light of the "overwhelming" evidence of Wilson's guilt. 

And that's where things get interesting.  After the tape was played, the prosecutor asked the detective whether Wilson said in the interview that he'd been the lookout, and the detective agreed that he had.  The prosecutor argued this in closing as well.

One problem:  the panel listened to the tape as well, and Wilson said nothing of the sort; in fact, he repeatedly denied his involvement in the burglary.  The opinion notes that "this case is not the first case where the State mischaracterized the evidence and testimony and then used that mischaracterization in trial and appeal," and cautions that "this court not condone this tactic and its continued use is abhorrent to the judicial system itself and the public's confidence in the judicial system."  Unfortunately, the court notes, Wilson didn't raise prosecutorial misconduct, or any other error regarding the mischaracterization of the tape, on appeal, so the court can't consider it.

Well, on the off-chance that anyone over in the 8th reads my stuff, here's a tip:  you can.  A few years back, when I was still doing summaries of civil cases in my weekly update, I ran across this nice one from the 11th District, which points to a 1993 Supreme Court decision where the court of appeals had decided the case on a statute of limitations issue that neither party had raised, briefed, or argued.  No problem, held the court:  while the court of course doesn't have to consider an issue if it's not raised, "there is no general prohibition in App.R. 12(A) requiring that issues be treated as waived" if they're not raised.  In other words, there's nothing to keep an appellate court from deciding an issue sua sponte.  So the next time you think the State's played dirty, you can take care of that all by yourselves.

And guess what?  You can sua sponte reconsider a decision as well.


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