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What's Up in the 8th

Last week's spate of criminal decisions from the 8th provide support for my theory that some people make very bad decisions in life, and criminal defendants comprise a grossly disproportionate segment of that subset of the population.  We also learn that while every other person in Cleveland seems to have a gun, to the great fortune of the community they're not skilled at using it:  of the six cases, four involve shootouts, and there's not a homicide in the bunch.

Captain of the Dummy Team this week is the defendant in State v. Smith, who's convinced that his trial skills are superior to that of his attorney.  The judge's decision to allow him to represent himself is the sole focus of the inevitable appeal.  I've always found it interesting that while the procedure for determining the validity of a jury waiver is perfunctory -- basically, the judge asking the defendant if that's his signature on the waiver form -- the procedure for waiving counsel and representing oneself is not:  the judge must not only advise the defendant of his right to an attorney, but inform him of the charges, the penalties, the possible defenses he may have, his understanding of the procedural and evidentiary rules...  Which is what the judge did here:  the panel concludes that "it would be difficult under these circumstances to imagine a court taking more time or greater precaution to ensure that Smith's decision to represent himself was made knowingly, voluntarily, and intelligently."  Well, knowingly and voluntarily, anyway.

If you're unfortunate enough to wind up in jail -- hey, it's happened to all of us -- and want to make a phone call, you'll hear a message at the beginning that all calls are recorded.  State v. Pruitt and State v. Shepherd serve the dual purposes of reminding us that this isn't a bluff, and of the minimal requirements for authentication of them under EvidR 901(B).  Must the proponent of the evidence prove the identity of a caller beyond a reasonable doubt?  By a preponderance?  No; "the evidence required to establish authenticity need only be sufficient to afford a rational basis for a jury to decide that the evidence is what its proponent claims it to be."  And context matters, too, in proving identification; Pruitt was involved in a shootout at a scrapyard, and the phone call was between him and a woman, the latter explaining how she'd gone to the scrapyard and unsuccessfully tried to bribe one of the victims.  Shepherd, who got into a gunfight in a bar, wasted his jail credits calling his victim.

Shepherd's other bad choice was turning down a plea deal to aggravated assault with a 1-year gun spec, which would have resulted in a maximum 2½-year sentence, instead winding up with convictions for felonious assault and weapons under disability, a 3-year gun spec, and 13 years in the joint.  The judge made no effort to justify the consecutive sentencing under the new sentencing statutes, so the case gets sent back for him to do that.  More interesting is that the judge tells Shepherd that he's only going to give him three years for the weapons under disability, instead of the maximum five.  Of course, that charge is now a "soft" third degree felony under HB 86, with a maximum sentence of three years instead of five.  The panel nonetheless concludes that since three years is still a permissible sentence, it's not contrary to law, and so can stand.  The only issue on remand, the court holds, will be whether the sentences are to run concurrently or consecutively.

This brings up two questions.  First, if the judge didn't intend to give Shepherd the maximum sentence for the weapons offense, might he have given Shepherd less than three years if he knew that was the maximum sentence?  The length of a sentence is within a judge's discretion, but has he properly exercised that discretion if he's laboring under a misapprehension of what the sentencing parameters are?

The second question is why the scope of the resentencing hearing should be limited.  Last year in State v. Wilson, the Supreme Court held that if the trial court erred in failing to merge allied offenses, a defendant was entitled to a de novo resentencing; the court rejected the State's argument that the hearing was limited to allowing the State to elect which conviction it wishes the defendant to be sentenced on.  The basis for the requirement of a de novo resentencing was that an allied offense error made the sentence contrary to law.  A sentence imposed in violation of the new requirements for imposition of consecutive sentences is also contrary to law, and there doesn't seem to be much of a basis for distinguishing Wilson.  The Shepherd panel doesn't discuss the de novo issue, and I haven't found any other case law which does, so this is something that needs to be addressed in the future.  And if you're defense counsel on a remand for consecutive sentences -- which is occurring with some frequency right now -- you need to preserve the argument.

Finally, we come to State v. Melton, where the defendant got into an argument at a store, ran out onto the road, and shot two people.  Did you know that shooting over a road - "discharging a firearm on or over prohibited premises" - is a first degree felony if it results in serious physical harm?  Melton does now; for his conviction of that and two counts of felonious assault, plus the three-year firearm specification, the judge gave him maximum consecutive sentences of twenty-nine years.

But there's a problem:  the discharging a firearm offense is only a 1st degree misdemeanor if it doesn't result in serious physical harm, and the verdict form didn't allege that it did.  Five years ago in State v. Pelfrey the Supreme Court held that the verdict form must include either the degree of the offense or the aggravated element, otherwise it serves as a conviction of only the least degree of the offense.   But earlier this year, in State v. Eafford, the Supreme Court upheld a conviction for possession of cocaine where the verdict form specified only that defendant was convicted of possessing drugs.

Pelfrey and Eafford are not irreconcilable.  Pelfrey involved a conviction of tampering with records, which becomes a third-degree felony if they're government records.  RC 2945.75 requires the verdict form to state "either the degree of the offense or that such additional element or elements are present," and the verdict form's failure in Pelfrey to specify that the records were government records made it a first degree misdemeanor.  In Eafford, though, the court decided that possession of cocaine was a "separate offense" from possession of drugs, and so you never got into an issue of degree or additional elements.  There's more than a little sleight of hand there, but it's clear that Eafford did not intend to overrule Pelfrey; the latter decision is barely mentioned.  The Melton court does conclude that Eafford would allow Melton's conviction for a first-degree felony to stand -- the wrong conclusion, in my opinion -- but then engages in its own sleight of hand to come up with the right result:  since Melton was convicted before Eafford was decided, Pelfrey applied.  In this case, two wrongs do make a right.

The court also decides that the discharge offense is allied with the felonious assaults; no big deal, since the former is a first degree misdemeanor.   That means that Melton gets a new sentencing hearing, though, and he really lucks out there, because it's going to be in front of a different judge.  The court finds that the statements made by the judge at his sentencing -- that Melton was "the worst form of young person" and "one of the worst examples of a young man that is produced in our community" were two of the judge's gentler observations -- demonstrated a "hostile feeling or spirit of ill will" toward Melton, and because of the "court's bias against him," the court remands with instructions to the administrative judge to reassign for resentencing.

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