Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


What's Up in the 8th

One judge has a simple policy:  no pleas on the day of trial.  Sure, it's often counterproductive.  Some defendants simply won't plead until they see there's no alternative:  they think the witnesses aren't going to show up, or some other deus ex machina is going to rescue them from their inexorable fate.  So instead of working out a last minute deal, the case is forced into trial, with judicial resources wasted on something that could have been avoided.  On the other hand, if everybody knows this is the way things work, then they're more likely to do it, and you don't waste resources by having witnesses, jurors, and a judge sitting around the whole morning while the parties try to hammer out a last minute deal. 

Another judge has an equally simple policy:  if you violate the terms of your probation, you go to prison.  Sure, this can sometimes result in people going to prison who shouldn't be; maybe the taxpayers wind up paying tens of thousands of dollars to put some away just because he smoked some weed at a party.  But again, everybody knows this is the way things work:  the defendant will be less likely to smoke that weed if he knows, absolutely and without question, that the judge isn't going to give him any slack.

Are those policies similar?  Is there anything wrong with them?  The answer, according to the 8th District, is "yes" to both.

The first policy was rejected by the court two years ago in State v. Switzer.  The majority acknowledged that a judge had discretion to refuse to accept a plea, but relied on other cases holding that where a judge adopts a blanket policy - not accepting Alford pleas or no contest pleas, for example - the judge has abused his discretion by refusing to exercise any.  As the dissent in Switzer pointed out, though, those cases were distinguishable:  they involved situations in which the judge refused to accept a plea at all.  Here, the judge was simply regulating the timing of the plea, and it was fully within his discretion to do so.  No matter; a few months later, in State v. Fitzgerald, the 8th District again reversed the very same judge for the very same policy, this time unanimously.

Those cases set the stage for Eugene Groce catching a huge break last week.  He didn't catch one in the arraignment room, drawing one of the toughest sentencers on the bench.  And he was treading water anyway:  the clerk's website shows him with twenty-five case numbers, including the three he was sentenced on here.  He got a pretty good deal - a plea to two counts of burglary and one of obstructing official business, with a  few misdemeanors thrown in for good measure.  As his attorney noted, even conviction of one count, with the repeat violent offender specs, could have resulted in an 18-year sentence.  The pitch was that Groce had actually committed the offenses several years before - he got nailed by a CODIS hit on his DNA - but that he now had a job and was a changed man.  And Groce caught another break when the court bought it, placing him on community control sanctions.  But not before letting him know the consequences of noncompliance with the conditions:

Now, Mr. Groce, I send all probation violators to prison. If you decide to commit an act that causes you to be found in violation of your probation, and you've been found in violation before and you had some really nice judges who didn't violate you, send you to prison, well, in this court the story's changed.  You violate, you're going to prison, okay?  I got 11 years over your head that I will run wild if you come back here as a probation violator.  No, I got more than that.  12 years, 11 months.  You come back as a probation violator, I'm going to run it wild. You're going to do every day.

 And that's exactly what happened:  eleven months later, Groce tested positive for cocaine.  The judge found him to be a violator and imposed a 12-year, 11-month sentence.  And in State v. Groce, the court reverses.

A probation violation hearing isn't tantamount to a trial - hearsay evidence, for example, is admissible - but there are still some due process requirements.  Two of them are that the hearing must be conducted by a "neutral and detached hearing body," and there must be "an explanation by the hearing body of the evidence relied on and the reasons for revoking probation."  The panel concludes that both were violated:  the judge wasn't "neutral and detached" because she relied on her policy, and didn't "adequately explain the reasoning for her decision to revoke Groce's community control."

There seems to be some results-oriented decision-making at the root of this; it's only a guess, but I think the decision might have turned out differently if Groce had wound up with a six-month sentence for falling off the wagon, rather than one for thirteen years.  Citing to the US Supreme Court's decision in Gagnon v. Scarpelli, the court highlights the considerations a judge would normally make in determining the appropriate penalty for violating probation:

the overall social readjustment of the offender in the community, including consideration of such variables as the offender's relationship toward his family, his attitude toward the fulfillment of financial obligations, the extent of his cooperation with the probation officer assigned to his case, his personal associations, and -- of course -- whether there have been specific and significant violations of the conditions of the probation.

The court's decision to emphasize "significant" gives the game away; the quote is from a footnote in the opinion, and is pure dicta:  the case involved whether a defendant was entitled to assigned counsel in a probation violation hearing.

That's not to fault the result in Groce.  If someone really deserves 13 years in prison, it's hard to see why he should've been placed on probation in the first place.  Again, one comes away from Groce with the suspicion that the court wasn't troubled so much by the imposition of a prison sentence, but by its Draconian nature. 

The effect of Groce might not be as sweeping as it appears; basically, a judge can follow that policy (and believe me, numerous judges have), as long as they're not as explicit in proclaiming it.  Oddly enough, in that regard, Groce might prove counterproductive.  As I said at the top, one of the benefits of such a policy is that it lets the defendant know, in no uncertain terms, that full compliance is required.  Muddling that message could easily result in more violations than might otherwise occur.  And more prison sentences, if of a milder length.


Recent Entries

  • May 22, 2017
    Case Update
    Is SCOTUS looking for a forfeiture case? Plus, appellate decisions on expungement and restitution, plain error, and what a judge has to tell a defendant about sex registration
  • May 19, 2017
    What's Up in the 8th - Part II
    Decisions on lineups and prior calculation and design, and two out of eight (eight!) pro se defendants come up winners,
  • May 17, 2017
    What's Up in the 8th - Part I
    Taking a first look at some of the 8th District's decisions over the past two weeks
  • May 16, 2017
    Case Update
    Stock tips, Federal sentencing reform goes dormant, schoolbag searches, and the retroactivity of State v. Hand
  • May 8, 2017
    Case Update
    Death in Arkansas, a worrisome disciplinary decision, and appellate cases on speedy trial, arson registration, use of prior testimony, and the futility of post-conviction relief
  • May 2, 2017
    What's Up in the 8th
    Nothing but sex
  • May 1, 2017
    Case Update
    SCOTUS closes out oral argument for the Term, the Ohio Supreme Court has seven of them this week, and we report on a decision where you'll probably want to play Paul Simon's "Still Crazy After All These Years" in the background while you read about it
  • April 26, 2017
    Like Mark Twain, rumors of my demise have been greatly exaggerated. Except I am pretty sure he's actually dead, while I am not, and for that matter, nobody's spreading rumors that I am. Great lead, huh? The nice thing about...
  • April 20, 2017
    The Supreme Court takes a look at the trial tax
    And you thought this was the week you only had to worry about income taxes
  • April 18, 2017
    What's Up in the 8th
    Remembering Warren Zevon, and the Fourth Amendment lives