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What's Up in the 8th

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There are a number of homeless shelters in Cleveland.  There's a big one on Lakeside, there's St. Herman's, there's the City Mission, there's the Cleveland Public Library...  The latter isn't designated as one, but as the victim in State v. Beckwith was advised when she was hired there, "people come up here because some of them crazy, some of them creepy."  Beckwith, she believed, fell in the latter category:  he'd follow her around as she shelved books, making grunting noises every time she walked by.  Beckwith was charged with menacing by stalking, convicted after a bench trial, and sentenced to seventeen months in prison, one shy of the maximum.  That becomes one of the two reversals last week.  The 8th reversed a menacing by stalking conviction six months ago in State v. Hersh, finding that the victim's seeing the defendant in a grocery store for a couple of minutes wasn't sufficient, and the same fate befalls the prosecution in Beckwith.  There were actually only three specific incidents:  his asking her to locate a specific book for him, asking her to download a song onto his cellphone, and her believing that he was recording her on his cellphone as she walked through the library.  Given the limited nature of Beckwith's conduct, plus the fact that a coworker testified that she never saw Beckwith following victim around, and that the victim's supervisor testified he only observed Beckwith in vicinity of victim on two occasions, neither of which involved any interaction between the two.  One is left to wonder how the judge convicted anyone of a crime for this, let alone sentenced them to seventeen months in prison.

The other reversal comes, unsurprisingly, in a search case.  The cops in State v. Rodriguez were searching for a Federal fugitive, and the US Marshals Service had helpfully issued a "memorandum" giving them authority to look for the guy, which I guess is sorta kinda like an arrest warrant.  The cops got a tip that the guy "was possibly at" a particular residence, which I guess is sorta kinda like probable cause would be, if this was 1978 and we were in East Germany.  The police went to the house, and claim they got consent to enter from the homeowner, no mean feat, considering that she spoke only Spanish, which none of the cops did.  After the police entered the home, those remaining outside saw a bag of drugs thrown out a window.  They arrested Rodriguez, and one officer testified that after being given his Miranda rights, Rodriguez confessed that the drugs were his, although for some reason, that admission didn't find its way into the officer's police report.  This is wrong on so many levels, and the court doesn't break a sweat in reversing the denial of the motion to suppress. 

Cuyahoga County has a mental health docket, which as you might guess is supposed to better deal with defendants with mental health problems.  One prosecutor acknowledged to me that being placed on that docket doesn't mean that the defendant is viewed more beneficently by his office; oftentimes it's the reverse.  The reason why is provided by State v. Saunders, where Saunders complains about being given maximum consecutive sentences for robbery, assault on a peace officer, and escape.  This was before HB 86, though, so Saunders is left only with disproportionality as a legal contention, and his mental state -- he's psychotic and suffers from "antisocial personality disorder" -- as a factual one.  Not liking people and wanting to hurt them isn't a real good argument for allowing you to remain on the streets so you can.

The defendant in State v. Jones is given consecutive sentences totaling 32 years for three particularly nasty home invasion robberies, but this was after HB 86, and it's coming back.  The 8th has been fairly good at requiring judges to make the actual findings required by the statute for imposing consecutive sentences.  (Other districts have not; there's a 5th District case which found that the judge's mention of the defendant's "atrocious record, when coupled with the court's acknowledgment that it had read and considered the PSI" was sufficient, and a 9th District case which holds that a judge is only required to "consider the record and other pertinent information before imposing a sentence and to include in its sentencing entry whether the sentences are to be served concurrently or consecutively.")  The opinion cites at length the victims' statements at sentencing and finds that they "may well warrant consecutive sentences," but what the judge said didn't come close to satisfying the findings requirement.  The concurring opinion suggests judges should use a worksheet for this purpose, which might be helpful, but then cites a 1st District case which held that attaching the completed worksheet to the journal entry is sufficient.  I can't imagine a more meaningless form of appellate review of consecutive sentencing than seeing whether the judge checked off the right boxes on a worksheet. 

I'd mentioned a while back that although the 8th had been very good about vacating pleas for non-citizens who subsequently encountered immigration difficulties, they've reversed course in recent years, that reversal, oddly enough, coinciding with the Supreme Court's decision in Padilla v. Kentucky.  That pattern continues in State v. Khrinyuk.  RC 2943.031 requires that a judge warn a non-citizen defendant that a plea "may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization," and Khrinyuk argued that the judge's admonishment in this case - "Do you understand that your plea could result in your deportation, exclusion, or denial of naturalization" -- wasn't sufficient.  The court finds that a verbatim recital isn't necessary, and affirms the denial of the motion to vacate the plea, but the significance of the opinion lurks in a footnote.  Past decisions have found that the judge's advisement of the immigration consequences is sufficient, but as I've pointed out, that's only one issue; the other is ineffective assistance of counsel under Padilla.  The judge's advising the defendant that there may be immigration consequences doesn't help if the attorney has told the client that there won't be any.  The opinion notes that Khrinyuk doesn't raise an IAC claim.  Probably because he couldn't; the opinion also indicates that "defense counsel advised the court that, with the use of an interpreter, he had discussed with appellant the plea, explained his rights, and reviewed the possible immigration ramifications of the plea."  Still, the recognition by the court that the statutory advisement is only one factor to consider in this type of cases is a helpful development.

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