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What's Up in the 8th

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The 8th District starts off the new year two weeks into it by releasing a baker's dozen decisions, eight of them criminal matters. There's a reason for the delay:  two new judges were just elected, and so some things had to be shifted around.  One note on that point.  While the 8th District previously led the league in Gallaghers, with two, it now has a third; Eileen T. Gallagher has joined Sean and Eileen A.  I'd figure out the odds of them being on the same panel, but one of the reasons I went to law school is they promised there wouldn't be any math.

In any event, 2013 begins with the court tackling issues like probation hearings and consecutive sentencing and... spitting on an attorney?

Joseph Huber is the miscreant in the latter case.  The basis of the charge stems from Huber's disagreement with his attorney's assessment of the case, that disagreement manifested, the court's opinion informs us, by Huber's telling the attorney, "I ain't taking no f***ing 25 years from no judge," and then emphasizing the point by spitting in the attorney's face. 

Huber was indicted for "harassment with a bodily substance" -- eewwww -- and the central issue in State v. Huber is Huber's claim that his counsel denied him his right to testify.  There's some merit to the claim:  this was a bench trial, and the opinion recounts that after the judge took a short recess to mull over his decision, but before he announced it, defense counsel told the judge that Huber advised him during recess that he wanted to testify, but that it was counsel's trial strategy not to do that.  The court finds that "a decision regarding whether to call a defendant to testify on his own behalf during the course of trial is a matter of trial strategy," so that's that.

There's more to it than that, though.  As any attorney knows, whether to testify is a call that the client, not the attorney, gets to make.  (Whether to plead and whether to waive a jury are the other two.)  The cases cited by the court do reference trial strategy, but involve situations where there was nothing in the record to show that the defendant had manifested a desire to testify.  The court seems to suggest that Huber didn't claim he wanted to testify until after the close of the evidence and while the court was contemplating his verdict.  I don't know whether the record really supports that, or whether the judge could have let Huber testify.  Not that it matters; in the original case, Huber wound up getting 29½ f***king years.

The effects of a probation violation hearing can be as dramatic as those of a trial; in one case last year, a violation resulted in the imposition of an 11-year prison sentence.  Given that, it's surprising that the due process protections afforded in a probation violation hearing are as lax as State v. Fonte shows them to be.  Fonte was placed on probation, but the judge determined he was a violator and gave him a 14-month sentence, based on Fonte's having been convicted of disorderly conduct for trespassing in a park, and having charges pending for telephone harassment and menacing. 

Fonte's argues on appeal is that the arrests couldn't form the basis for revocation, but the court skirts around that issue by noting that he did have the one conviction.  More troublesome is the court's handling of the claim that the probation officer's unsworn testimony violated his confrontation rights.  The court pointed out that no request was made to cross-examine the officer, and could and should have stopped there.  Instead, the court tosses in this paragraph:

Fonte waived his preliminary hearing and admitted the violations. He, therefore, waived his right to an evidentiary hearing on the violations, and the hearing that was had was only to address the consequence, or punishment, for the violations.

It that's taken to mean that waiver of the preliminary hearing is an admission of the violations, it's completely wrong.  The purpose of the preliminary hearing is to determine whether there's probable cause to hold the defendant, and a waiver is no more an admission of a violation than a waiver of a preliminary hearing in a felony case is an admission of guilt.  And while Fonte may have admitted that he had the disorderly conduct conviction and the other two pending cases, he most certainly did not admit that those constituted a violation of his probation.

Sometimes cases deal with several issues which can be easily summarized, and so it is with State v. Boyd, which teaches us the following:

  • The judge asking, "Do you have anything to say, Mr. Boyd?" is sufficient to comply with the defendant's right of allocution. 
  • Maybe the judge is required to tell you at the plea hearing that she can pronounce sentence immediately, and maybe she isn't, but it doesn't matter when she doesn't sentence you immediately, and instead refers you for a pre-sentence report. 
  •  No, the judge doesn't have to explain the elements of the offense at the plea hearing. 
  • The judge's saying "he measures out to 13 on the risk assessment.  There's been numerous probations and numerous violations" does not come within the same area code of making the necessary findings under RC 2929.14(C)(4) to impose consecutive sentences.

One can't sit on his legal rights, the courts frequently tell us, but State v. Rodriguez and State v. Tarver tell us that sometimes that's true, and sometimes it's not.  It is for Rodriguez, who files a motion to reopen his appeal under 26(B).  That appeal was filed from his 2000 conviction, but was dismissed because the transcript wasn't filed.  Rodriguez shows up 12 years later claiming his appellate attorney "abandoned" him, and that might well be, but the time limit for a 26(B) is ninety days.  A court might fudge around the limit at the edges, but 11 years is way beyond the edges.

Tarver fares better, even though his case dates back to the Bush -- the father's -- administration.  Tarver and a co-defendant were charged with drug trafficking, with a violence specification attached to the co-defendant's charge.  (What's that, you ask?  Forget it; it was eliminated with the 1996 sentencing reforms.)  Tarver pled guilty three years later to what the journal entry indicated was "attempted drug trafficking with a violence specification," but now files a motion to correct the sentence, claiming that it was the co-defendant who should have gotten the violence spec, and that Tarver should have gotten a misdemeanor.  The motion isn't prompted by belated curiosity; Tarver's now in trouble in Federal court, and that conviction forms the basis for the claim that he's a career offender, which would give him an additional fifteen-year sentence.  The court notes that Court says he could've appealed it at the time, so it's res judicata, but then decides that since the state conceded at oral argument that Tarver shouldn't have had the violence spec, it affirms but remands the case back to the trial court to correct the "clerical mistake" under CrimR 36(A).  A questionable result from a purely legal standpoint, but correct from the moral standpoint, and the court and prosecutor get a shout-out for coming up with it.


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