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What's Up in the 8th

One could probably do a research paper on the relationship between alcohol and crime just by thumbing through the 8th District opinions. The key phrase from the court's opinion in State v. Amborski comes on page 2: after informing us that Amborski and the victim, Seegert, had a "long-standing feud," we learn that "on the night in question, both men consumed varying amounts of alcohol." A dispute over a barmaid led to a wrestling match, with Seegert pinning Amborski and punching him repeatedly. When he let him go, Amborski went to his car, retrieved a gun, and returned. He fired off several shots to no apparent effect, at least on Seegert, and that was enough to allow the jury to acquit him of felonious assault.

They convicted him, though, of the offense of discharging a firearm upon or over a public road or highway -- we can safely surmise that our state legislators consumed varying amounts of alcohol before coming up with that one -- and his major claim on appeal is that the three-year firearm specification shouldn't attach to a crime that involves the use of a firearm and, in fact, can't be committed without it. Alas, that issue was settled two years ago by the Supreme Court in State v. Ford, in which they held that a specification wasn't an element of the crime, but a sentencing enhancement. Since Amborski used a firearm in discharging a firearm over a public road or highway, he gets the three-year enhancement. On the other hand, had he not used a firearm in discharging a firearm over a public road or highway, he wouldn't have gotten the enhancement. Simple as that.

Alcohol also figures prominently in State v. Wild. After the loss of her father, Wild's cousin traveled from Florida to Cleveland to pick up his ashes, and that evening "hung out with Wild, drinking and reminiscing about 'old times.'" Wild apparently thought of some new times the two could have; she fell asleep, and awoke to Wild having sex with her. Because of her unwillingness to travel back to Cleveland to recount the details of Wild's ideas about grief counseling, Wild got the deal of his life: a count of rape and two of sexual battery bargained down to a single count of 4th degree felony gross sexual imposition. He argues that under HB 86, community control sanctions is mandatory for a 4th degree felony, but that doesn't apply to crimes of violence, and GSI is one.

The more interesting argument is that the judge incorrectly advised Wild of his reporting requirements for registration as a sex offender. From a strategic standpoint, it's not clear why this claim was made: the effect would be to nullify the guilty plea and restore the case to the status quo ante, with Wild again facing charges of rape and sexual battery, and the possibility that the victim will be sufficiently disgusted with him to be willing to come up here and tell a jury about his depredations. From a tactical standpoint, it's a decent argument, though: since the Supreme Court declared in State v. Williams (discussed here) that the Adam Walsh Act is punitive, that means that registration is no longer considered a collateral matter, but is "part of the penalty for the offense and must be addressed during a Crim.R. 11 colloquy." It does Wild no good; since it's an advisement regarding a non-constitutional right, Wild would have to show prejudice, that is, that he wouldn't have entered the plea if he'd been told of the registration period. And nobody believes that would have happened.

East Cleveland v. Brown seems at first glance to be an utterly minor case. Brown was convicted of disorderly conduct, and the court reverses because the trial judge failed to advise Brown of the effect of her no contest plea. At least, there's nothing to indicate that such advice was given; the recording system apparently broke down, and the transcript covers only half of what happened in court.

But the case provides an interesting lesson in framing appellate arguments. Had Brown's attorney alleged that the court failed to give the necessary advisement, she would have run into two problems: first, that the rules do not require the recording of proceedings involving petty offenses, and second the presumption of regularity of the proceedings below, which the appellant has to overcome. Instead, the attorney assigned as error that "the trial court insufficiently recorded the proceedings as against her" and thereby "infringed her appellate rights." The assignment effectively shifted the focus away from the rule and presumption, to how the inadequate record affected Brown's rights.

Of course, now that the case has been reversed, maybe we'll find out why Brown wanted to appeal it in the first place.

Another interesting argument, and more good appellate lawyering, comes in State v. Parker. Parker pleads guilty to aggravated robbery with a notice of prior conviction, that conviction being an adjudication of delinquency in juvenile court for felonious assault. The prior conviction makes the prison sentence for this offense mandatory, but Parker makes a complex Apprendi argument that the conviction can't be used in this fashion. Basically, Apprendi holds that a defendant's right to a jury trial means that the maximum sentence which can be imposed upon him is that allowed by facts found by the jury or admitted by the defendant. Apprendi contains an exception to that, for prior convictions; those can be found by the judge. But Parker argues that Apprendi only applies to prior convictions as an adult, since those would have resulted from either a conviction by a jury or a plea of guilty. A juvenile has no right to a jury trial, and so the use of a juvenile adjudication to elevate a sentence is barred by Apprendi.

An interesting argument, and one that's been used in Federal court with regard to the Armed Career Criminal Act, which imposes a minimum 15-year term of imprisonment for possession of a firearm by an individual with three prior serious drug or violent felony convictions. While the ACCA specifically includes juvenile delinquency adjudications as "convictions," several circuits have concluded that those adjudications don't fall within the Apprendi prior-conviction exception, and thus can't constitutionally be applied in ACCA cases. Unfortunately, several, including the 6th Circuit, have found to the contrary, and that's what the Parker court hangs its hat on. Still, it's an argument that should be made and preserved, because the split in the circuits indicates the likelihood of eventual Supreme Court review.

Parker does make one other argument, that his sentence was disproportionate to that received by his two co-defendants, but the panel makes short shrift of that, noting that Parker never raised the argument below. It would have been a neat trick if he had: a look at the docket reflects that his co-defendants were sentenced a month after he was.

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