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What's up in the 8th

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The 8th District seems to have wrestled its way to a conclusion on consecutive sentencing.  Our dog bites man story this week is that the State loses another search case.  Nothing extraordinary about that, except this one involved a warrant, and for the State to lose a search case with a warrant is no mean feat.  The law on allied offenses gets a workout, and the court takes another look at State v. Brunning after a remand from the Supreme Court.  Finally, a civil wrong is righted.

Here's the quiz for the day.  The police see Donnie Ballard taking stuff out of a closed-up school and putting it in a shopping cart he'd used to prop up the door.  When they inquire, he tells them that he heard a noise in the school and was investigating.  An examination of the contents of his cart indicates he was investigating whether the school had copper pipe.  He's charged with vandalism, breaking and entering, theft, and possession of criminal tools (a flashlight and wrench).

Which offenses, if any, are allied?  Ballard pled no contest to the indictment, apparently to preserve the issue of the motion to suppress, which wasn't in fact raised in the appeal.  The judge had given him concurrent sentences, stating that "I have no intention of sentencing him consecutively just to be obnoxious."  That's certainly to the good, but giving concurrent sentences doesn't solve the allied offense issue.  The Johnson test basically asks, were these offenses committed with just one act?  Although other courts have held that B&E and theft merge, the panel concludes that they don't:  the B&E was complete upon the break-in, and the theft occurred independently.  The other offenses, though, should've merged:  the vandalism was apparently premised on the damage that occurred either during the break-in or during the theft, and the tools were used in either or both.

Two points.  First, B&E prohibits a person from breaking into an unoccupied structure "with purpose to commit any theft offense."  If the person breaks in and then commits the theft offense, is that one act?  Just asking.  Secondly, this could not have mattered less to Ballard, who was given the unobnoxious sentence of eight months, and released from prison last December. 

A few months ago, I'd noted that most courts don't follow the Kalish model in handling consecutive sentences.  That test requires that the appellate court first determine whether the sentence is contrary to law, and then review it for abuse of discretion.  Since HB 86 re-instituted the requirement of findings for consecutive sentences, the vast majority of courts have determined whether the trial judge made the necessary findings, and if he did, stopped there.  In State v. Carter and State v. Jackson, the court proceeds to the second step as well.

Not that it does either of the defendants any good.  Carter was given maximum consecutive sentences on separate charges of aggravated assault and drug possession, which might seem rough for a fourth and fifth degree felony.  The problem is that the judge made the necessary findings, and the abuse of discretion review is covered by his explanation of why Carter deserved consecutive sentences:  Carter had both an extensive criminal record and a taste for PCP.  (Today's tip for criminals:  you will not impress a judge by doing PCP around your kids.  Tuck them into bed first.)  In Jackson, the trial court did not hew as closely to the language of the statute as he might have, but it was close enough.  As for the second step in the analysis, if you've got a 22-year-old defendant who's engaged in "the most extensive sexual acts" with an eight-year-old child, you don't have to break much of a sweat to justify maximum consecutive sentences of ten years on two sexual batteries.

The Euclid Police Department apparently utilizes the same instructor on 4th Amendment procedures as does the Cleveland Police Department.  That is, nobody.  State v. Williams relates the story of how the search of Williams' apartment gets tossed, along with his eight-year prison sentence.  Over three years ago I did a post about a case where Euclid police had gotten a tip that a defendant was selling drugs.  The court bounced the warrant, finding that the cops had substantial information that the defendant didn't live at that address, hadn't bothered doing any surveillance of the premises, and that the evidence they got in a trash pull wasn't exactly airtight -- they didn't observe who took it out, and it was in a public area where others had access to it.  As Santayana observed, those who cannot remember the past are doomed to get search warrants on the same flimsy evidence, and so it is here; the search in Williams has virtually the same problems.  What is somewhat odd here, though,  is that the State didn't even raise the Leon good faith exception to the warrant requirement.

The 8th had developed a body of case law that Megan's Law offenders couldn't be prosecuted for failure to register, report, or verify, because the Adam Walsh Act wasn't applicable to them, and Megan's Law had been repealed by the adoption of the AWA.  The Supreme Court put the kabosh on that in State v. Brunning (discussed here); the Megan's Law statutes on violations survived, and the defendant can be prosecuted under those.  That's not inconsequential to Brunning on the remand; it means the offense he faced was a third degree felony, not a second.  The 8th also deals with the issues it left undecided in the first go-around, and those are big, too.  At the plea, the judge court told Brunning that the State and defense agreed the offenses he was pleading to were allied and would merge, and thus the maximum sentence he was facing was eight years.  At sentencing, the State claimed they'd never agreed that offenses were allied, disputed that they were, and Brunning wound up getting maximum consecutive time of 21 years.  Yeah, there's something wrong with that, and the plea gets vacated.

Finally, a year ago I happened to have a pretrial in a courtroom where a friend of mine was trying a personal injury case.  We chatted, and he told me the trial had been a complete train wreck.  The judge -- who was defeated last November -- had made him bring his doctor in for live testimony, as opposed to testifying by way of deposition, had given each side fifteen minutes for closing argument, and then claimed that he'd used all fifteen in his opening close, and refused to allow him any time for rebuttal.  Train wreck it was, and in Green v. Myles, the court reverses and remands for a new trial.  The limitation on closing argument is a factor -- the court notes that the staff attorney was timing it, and told the judge that the plaintiff's attorney still had two minutes left -- but the bigger problem was the jury instructions.  Although both parties had seen and approved the written instructions, the judge went off the reservation when she charged the jury, telling them, "If somebody says something over and over again, that doesn't mean that it's got to be true," which just happened to be the exact same phrase the defense attorney had used repeatedly in his closing argument minutes before.  Just goes to show that a civil trial can be just as much a miscarriage of justice as a criminal one, except in the former, you just lose out on the chance to get money.


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