What's Up in the 8th
Sometimes in doing appellate work you have to stretch for an
argument, while trying mightily to stay just this side of the Giggle Test --
being able to present the argument without dissolving into gales of
laughter. So it was last week; it appears
that Robert Browning's exhortation that "a man's grasp should exceed his reach"
was the driving force behind several appellate arguments presented in the batch
of 8th District decisions.
In State
v. Jarrett, for example, the attorney was presented with the quandary
of how to argue that the judge erred in giving Jarrett consecutive
sentences. The judge had made all the
necessary findings required by the statute, and if anyone deserved consecutive
sentences, Jarrett seemed an appropriate candidate: having committed 16 prior felonies, he'd pled
guilty to a 17th, then didn't show up for sentencing and committed seven more
before he was apprehended. The best the
attorney could come up with was the claim that Jarrett's ill-gotten gains
obtained from his latest spree, $22,590, was "not so great or unusual to
justify consecutive sentences." That
meets with the reception you might anticipate.
A policeman in State
v. Knox inadvertently prompts a reflection about law enforcement
priorities, testifying that he can detect the odor of burning marijuana because
he's made "thousands" of arrests for demon weed in the 14 years he's been on
the force. Really? The crime situation in Cleveland has improved
to the point that you have nothing better to do but go around arresting hundreds
of people a year for smoking marijuana?
In any event, one of the things we learn from the case is the wisdom of
smoking at home, rather than in one's ride:
under the city ordinances, possession of marijuana under 100 grams is a
minor misdemeanor, and non-arrestable, but if you're caught with it in a car,
it's a first degree misdemeanor and you can be arrested. Knox contends that this is an equal
protection violation, certainly a novel argument, but the panel decides that novelty
is its sole redeeming feature.
The stretch in State
v. Turner comes via a claim of ineffective assistance, in this case,
that the trial attorney erred by electing to try the weapons under disability count
to the bench, while allowing the jury to determine the aggravated robbery
charge. It's a common tactic of defense
attorneys to bifurcate a trial in this manner, and a better claim for
ineffective assistance would've been if the attorney failed to do so; that would have allowed the jury, which acquitted
Turner of the aggravated robbery charge, to learn that Turner had a prior
conviction for -- you guessed it -- aggravated robbery.
Not to be left out, the court comes up with a novel
conclusion, too, in State
v. Grier, another case on consecutive sentencing. The 8th District has been very good so far in
requiring judges to explicitly make the necessary findings for imposition of
consecutive sentences: (1) they're necessary to protect the public from
future crime or to punish the offender; (2) they aren't disproportionate to the
seriousness of the offender's conduct and to the danger to the public, and (3)
either that (a) the offenses were committed while the defendant was on
probation, bond, or post-release control,(b) the harm was so great that single
prison term doesn't t adequately reflect seriousness of offender's conduct, or
(c) the defendant has extensive criminal history. Here, the judge failed to make the finding
about proportionality, but the court decides that's not a problem: "the trial court addressed proportionality
when it found that the harm was so great or unusual that a single term would
not adequately reflect the seriousness of the crime." But proportionality and great or unusual harm
are two separate findings. Couldn't you
also say that if the judge found the harm was so great or unusual, that he also
"addressed" the question of whether consecutive sentences are necessary to
protect the public and punish the offender?
If you're going to say that a finding on one can substituted as a finding
on another, pretty soon you're left with nothing but mush.
One decision, State
v. Jabbaar, didn't present any novelty, and that's probably too
bad. I'd discussed the case after
oral argument. The short version is
that the judge had held a hearing four days before trial where he invited the
prosecutor to recount the evidence against Jabbaar, commented on the strength
of that evidence ("you want to go to
trial without any explanation for your DNA being there?"), told Jabbaar that "I
certainly think you should consider pleading," and finally promised him a
sentence of 13 to 15 years if he pled, as opposed to the 33 years he was facing
on conviction.
In my earlier
post, I voiced the opinion that it was clear that the judge had crossed the
line, but that observation proved too optimistic; Jabbaar's conviction and
sentence is affirmed, with one judge concurring only in judgment and one
dissenting. The main thrust of the
plurality opinion is that what the trial judge did here was "qualitatively
different" from what the trial judge did in State
v. Byrd, a 1980 Supreme Court decision where the court reversed Byrd's plea
because of the participation of trial judge in plea negotiations. But that's setting the bar incredibly
low: after meeting in private with Byrd's
mother and sister to encourage them to pressure Byrd into pleading guilty, the
judge brought Byrd into chambers, along with a sheriff's deputy, a probation
officer, and an assistant prosecutor (the discerning reader will note that Byrd's
attorney was not among those present), where the judge negotiated a plea
bargain with the prosecutor and urged Byrd to take it. Do we really want to say that any sort of
judicial participation in plea bargaining short of Byrd is permissible?
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