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What's Up in the 8th

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The most interesting case out of the 8th District last week was Johns v. Hopkins.  Well, it wasn't the most interesting case -- it had something to do with when somebody might be considered an uninsured motorist, a matter I find approximately as interesting as Amanda Bynes' downward career trajectory --but it had the most interesting case name.  Who knows, next week's docket might bring us Notre v. Dame

As for criminal cases, there were only a handful, three to be exact.  They strode down well-trodden paths:  when does an attorney render ineffective assistance, when does a trial court abuse its discretion in denying a motion to withdraw a guilty plea, the two occasionally intertwined.  The answer to the former is "rarely," to the latter, well...  the discussion seems to have moved from the realm of the empirical to that of the purely theoretical, calling to mind Alan Dershowitz's reply to whether he believed in plea bargaining:  "Believe in it?  My God, man, I've seen it!"  Except Alan hasn't seen a court reverse the denial of a motion to withdraw a plea, and neither has anyone else.

Have you ever heard the term, "juvy life"?  Joshua Mhoon has.  According to him, he took a $6,000 bribe to say that he was the one who shot into a house, striking the 13-year-old victim in the head.  He was 17 at the time and, according to him, decided to wear the jacket for the crime because the real culprit gave him the aforementioned six large and assured him that, as a juvenile, Mhoon would be released when he turned 21.  Mhoon was instead bound over for trial as an adult and entered a guilty plea, then ten weeks later, just prior to sentencing, filed a motion to withdraw the plea, offering the bribery story and claiming that he was elsewhere when the crime was committed.  On appeal from the denial of the motion, he complains that his attorney was ineffective for failing to present evidence of the alibi, and of the bribery.  Of the latter there was none, and counsel informed the court that he did not file a notice of alibi with the plea withdrawal motion because Mhoon had provided him only the first name of the friend he was allegedly staying with the shooting occurred.

Attorney competence also figures in to the overall scheme of plea withdrawal, because the court has apparently settled on four criteria to determine whether a judge has abused his discretion in denying the motion to withdraw; it doesn't

(1) where the accused is represented by highly competent counsel, (2) where the accused was afforded a full hearing, pursuant to Crim.R. 11, before he entered the plea, (3) when, after the motion to withdraw is filed, the accused is given a complete and impartial hearing on the motion, and (4) where the record reveals that the court gave full and fair consideration to the plea withdrawal request.

From an analytical standpoint, these aren't particularly helpful.  The third and fourth are basically the same.  The second is meaningless:  if the judge did screw up the Rule 11 hearing, the plea gets tossed, without even considering the other three factors.  The court's discussion of the first issue reveals how low the bar is for determining whether counsel is "highly competent":  the opinion notes that "Mhoon was represented by experienced, competent counsel who has handled 'hundreds of pleas.'"  We all have, but that's not exactly the encomium that "highly competent counsel" would prefer to have inscribed on his tombstone.   As expected, though, it's enough, and in State v. Mhoon the court affirms Mhoon's conviction and sends him off to do the sixteen years he claims someone else should be doing.  In the unlikely event that Mhoon was telling the truth, the briber got his money's worth; that works out to little under $400 a year.

Attorney competence figures into Cleveland v. Graham, too.  Graham was convicted of resisting arrest arising out of a spat between security guards, and argues on appeal that the trial judge should've granted his motion to continue the trial so that he could secure the appearance of three witnesses.  Whether to grant a continuance is reviewed even more deferentially than the abuse of discretion standard normally allows for, and the panel finds ample reason for the denial:  the witnesses had been subpoenaed only two days before the trial began.

But, Graham argues, if the judge didn't abuse his discretion by denying the motion to continue, his attorney surely rendered ineffective assistance by waiting until the eve of trial to file the subpoenas.  Here the court makes an interesting distinction.  Normally, the issue of what witnesses to call falls under the rubric of "trial strategy and tactics."  Here, the attorney had decided to call the witnesses, but simply failed to do so in a timely manner; as the court notes, "once defense counsel chose to subpoena the witnesses, his failure to do so in a timely manner cannot constitute a sound trial strategy."  The twist to this, though, is that it results in rewarding a higher degree of sloth.  If I don't get around to subpoenaing the witnesses until a day or two before trial, that will constitute deficient performance on my part.  But if Ineglect to do it at all, the court will chalk that up to my wisdom as a trial tactician.  Anyway, it does Graham no good, because there's nothing in the record to indicate how the witnesses might have helped him.  

A claim of ineffective counsel is also raised in State v. Relf, and rightly found to have no basis.  The other argument, that Relf should have been allowed to withdraw his plea, fares no better, despite the fact that after the plea was entered, Relf was referred, at his new attorney's urging, for a competency evaluation because of his "cognitive deficiencies."  Another low bar:  competency in this sense basically demands no more than that the defendant be able to distinguish the judge from a rutabaga.  He is, and the judge sends him off to do ten years, telling him that she didn't impose consecutive sentences because "I do believe you do have a lower cognitive functioning than the average person."  Not quite low enough, unfortunately.

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