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What's Up in the 8th

No 8th District summary last week, due to my bout with the scalpel.  Shows the importance of good health insurance, which mine, sadly, is not; my only in-network provider was Rob's Tire Store and Medical Center in Lodi.  They did an adequate job of it, fortunately, although it was somewhat disconcerting to have the nurse shout out "dead man walking!" as she escorted me to pre-op. 

We'll put that in the rearview, because we've got two weeks of decisions to wade through.  As usual, the court provides helpful advice to defendants, judges, and defense lawyers.

Advice to defendants comes by way of State v. Bryson.  If you decide to get a tattoo under your eye -- and who among us hasn't at least given that some thought? -- you might want to consider that that's likely to be the identifying feature the eyewitnesses use to finger you for a murder.  And that tattoo will still be there when you get out of prison 33 years later.

State v. Collins and State v. Morris provide lessons for judges.  In the latter, the issue of Morris' competency arises, and so the judge twice refers him to Northcoast Behavioral -- aka the Rubber Ramada -- for restoration to competency.  Eventually there's a plea, but what there isn't, despite a very good judge, prosecutor, and defense attorney, is any indication in the record that Morris was found competent.  The interesting thing here is what happens now.  The court vacates the plea and remands it for a hearing on competency.  But let's assume that he is found to be competent.  (I talked to the judge, who told me that a stipulation to the report finding Morris competent simply slipped through the cracks.)  Does that mean that Morris' plea goes back into effect, or does he have to enter a new one?  And what if he doesn't want to?  I'm sure there's an answer to that somewhere, and maybe -- perhaps during the recovery period from my next bout of invasive surgery -- I'll take the time to find out.

Collins is one of those cases which should come with a flow chart.  Collins is convicted of drug trafficking and possession in two cases (we'll call them A and B).  The possession and trafficking merged, and the state elected to proceed to sentencing on the trafficking charge.  The judge gave Collins two years on Case A and four years on Case B, and ran them consecutively, for a total of six years.

With me so far?  Well, in the first appeal the 8th found that the evidence was insufficient to prove trafficking, but was sufficient to show possession.  When it came back for resentencing on the possession counts, and the judge gave Morris three years on Case A and one year on Case B, for a total of four years.  The appeal from this focuses on the sentence in Case A, which was increased from two years to three.  While many believe that a judge can't give a greater sentence after a remand, that's not the case:  doing so only raises a presumption of vindictiveness, i.e., that the greater sentence was punishment for having the audacity to appeal.  (The basic law on this is summarized in this post I did six years ago.)  The panel's opinion takes us through the law on all this, and concludes that on the information presented here, the presumption of vindictiveness hasn't been overcome.  All this, while acknowledging in a footnote that what probably happened is that the judge just switched the cases, intending to give one year on Case A and three on Case B.

But, you ask, what's the harm?  The result of the first sentencing was six years, and that was cut to four in the second sentencing.  The answer is that Ohio does not follow the sentence packaging doctrine, in which the judge arrives at a total sentence based upon all of the offenses the defendant committed.  Here, each sentence stands individually, and has to be considered in isolation from the sentence for any other offense.

You've got an appeal where the defendant was pled to rape and kidnapping, and you think there's an allied offense issue.  What happens if that wasn't raised in the trial court?  Normally, that would allow review only for plain error, but a few years back in State v. Underwood the Supreme Court held that sentencing a defendant for offenses which should have merged as allied is plain error.  But how do you determine if there's any error, plain or otherwise, when the case comes up on a plea, and there's little to no information as to the underlying facts.

As I've mentioned before, that problem has bedeviled the 8th District, with two lines of cases emerging.  In one -- most cases -- the court either delves into the allied offense issue and makes a determination itself, or remands it back to the trial court for consideration of the issue.  But last year in State v. Lindsey, a panel held that the defense's failure to offer any evidence on the issue precluded a finding of plain error.  Several subsequent decisions have rejected Lindsey's result, but last week the 8th switches back in State v. RogersThe majority notes that Underwood does not stand for the proposition that the mere possibility that the offenses might be allied is sufficient to warrant a remand; in Underwood, the state had stipulated to the fact that the offenses should have merged.  In a thoughtful and well-reasoned opinion, the majority goes to the heart of the issue.  Plain error is not a finding, it's a standard of review, and it requires that the defendant show that an error did in fact occur.  The defendant doesn't do that simply by posing the possibility of error:  "there is no plausible interpretation of the plain error doctrine that would allow an appellate court to find error simply because there are no facts to show whether any error occurred."

So that's the advice from the court for defense attorneys:  if there's a plausible allied offense, you'd better raise it in the trial court, and not expect the appeals court to bail you out.


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