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What's Up in the 8th

The prosecutor gets up at the sentencing hearing and derides the defendant, claiming that he "tells stories" and won't accept responsibility for his actions.  Did I say "prosecutor"?   No, it was the defense attorney who did that, and that forms the primary basis of the ineffective assistance of counsel claim in State v. Weems.  (The other basis was the failure to use a prior inconsistent statement of the victim, but all the record shows is that when the lawyer tried to cross-examine the victim with it, the State objected, an off-the-record sidebar ensued, and the subject wasn't mentioned again.  Gotta preserve that record.) 

The defense attorney was apparently cheesed off because he had presented a theory to the jury that Weems was in his home at the time he supposed assaulted a woman, only to have Weems take the stand and testify that he was in Akron at the time.  The attorney-client relationship seems to have gone into full melt-down somewhere along the way, with the lawyer telling the judge at sentencing that he expected Weems to file a bar grievance against him.  This prompted the concurring opinion to comment that counsel's statements at sentencing "did not serve any mitigating purpose," and "appeared intended to circumvent any subsequent actions filed against him."  "Self-preserving statements during a client's sentencing are not appropriate."

An interesting situation arises in State v. WicksWicks had pled to rape and child endangering, and had been given ten years on the former and seven on the latter, to run consecutively.  One problem:  the judge had failed to tell Wicks what the maximum sentence was on the endangering count.  Being informed of the maximum sentence is a non-constitutional right.  Ordinarily, the judge need only substantially comply with that requirement, and if he does the defendant has to show that the failure to advise him of it was prejudicial, i.e., he wouldn't have pled if he'd known it.  But not telling a defendant about the potential sentence isn't even substantial compliance, so it has to come back.

What has to come back?  The dissent argues that since the judge failed to inform the defendant only about the sentence on the child endangering count, that's the only plea that should be vacated, and the rape conviction should stand.  I think the majority has the better argument here.  They note that since the ten years for the rape was the only specific sentence mentioned by the judge, Wicks might have believed that that was the only sentence he could get.  The dissent's basic contention is that the court shouldn't treat this as a "plea package," apparently borrowing the concept from the "sentencing package" doctrine, which provides that the sentence for each offense must be treated separately by the courts.  But when a defendant is entering a plea, it is a package:  he's concerned with his total exposure, and failure to tell him what the potential sentence is for one of his offenses doesn't convey the necessary information to him.

Two cases from last week seem intent on putting the lie to my claim that the 8th District is the most 4th-Amendment friendly in Ohio.   In State v. Robinson, the police get call about a shooting, with the perpetrator described as a Hispanic male, 6', with "thinner build," wearing black clothing.  Thirty minutes later they get a call from another person saying that he overheard a black male wearing blue jeans and a red sweatshirt saying into his cellphone, "hurry up and pick me up because the cops are looking for me."  A police officer sees Robinson, who's six feet tall, has a medium build, and is wearing a red shirt and jeans, walk through a yard and get into a Chevy Impala that was parked on the apron of a driveway, "raising officer's suspicions" because of way it was parked.   The officer follows it and, despite observing no traffic violations, pulls it over.  No gun or anything else linking Robinson to the shooting is discovered, but the four pounds of marijuana he's holding is.  There's enough "reasonable suspicion" for this panel to uphold the search; another panel might well have concluded differently.

Somewhat more troublesome is the decision in State v. Boiani.  The police get a call from Molly McGhee's, a local watering hole, that someone who was obviously intoxicated had just left the bar.  The police go to the scene, interview the caller, and get a description of the vehicle and a license number.  They spot the car a short time later, and again, despite observing no traffic violations, they pull it over.  Boaini, who's driving, is quite obviously drunk, and his conviction for felony DUI subsequently ensues.

In its 1999 decision in Miami v. Weisner, the Ohio Supreme Court explained the different levels of "informants," and the extent to which the police could rely on their information.  At the low end of the totem pole was anonymous tipsters; information obtained from them couldn't provide the basis for a stop unless the incriminating aspects of the tip were corroborated by police observation.  The next rung on the evolutionary ladder is occupied by the snitch, someone who's known to the police but is part of the "criminal milieu"; there, the police need to show some basis for crediting the snitch's information, such as that he has supplied accurate information in the past.  At the top is perched the "citizen informant," someone who identifies himself to the police; his information is presumed reliable, at least if the citizen relates the basis of his knowledge.  The informant here falls into the latter category, case closed.

Except that the informant here was drunk, too.  We learn that in the majority opinion, but the details are fleshed out in the dissent.  The caller was known to the police department as someone who frequently phoned in tips from that very bar about other drunk drivers.  (The officer who testified to this acknowledged that he was unaware of how many of these tips, if any, resulted in people being stopped.)  Remember the old joke about "good thing I drove because there's no way I could walk home in this condition"?  Well, that was the situation with the tipster:  he was disheveled when the officers arrived, and so intoxicated that they drove him home because they did not believe he was able to walk there.   The dissent makes a cogent argument that, notwithstanding the various categories of informants, the baseline still is whether the totality of the circumstances gives rise to a reasonable suspicion, and where the informant is so drunk he can barely stand up, that's just not reliable enough to warrant a stop.

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