What's Up in the 8th
The defendant in State
v. Dotson shows the downside of Woody Allen's observation that 90% of
life is just showing up. After going to
his ex-girlfriend's house and getting into an argument with her father, he
grabs a friend or two and returns to the scene, during which somebody throws a
brick through the window of the home. That
gets him a conviction for criminal damaging, but the 8th tosses it, finding
that 90% isn't enough: that other 10%
has to be proof that the defendant did something,
either committing the crime himself or assisting, inciting, or encouraging
someone else to do it, and there wasn't any of that here. There are plenty of cases on the "mere
presence" defense to a complicity charge, and here's one more. It
served as the only outright win for defendants this week, so I'll take it, but
it's still somewhat surprising; many courts would have drawn an inference of
complicity from Dotson's summoning his buddies to go back for what was
obviously going to be a confrontation.
And then we have this:
Both of y'all bitchez goin' down
smokin'. Watch wait 'til I get diz tool bitch
dat playin' with a nigga feelinz ova with y'all together y'all gone die together
so keep walkin' around with dat nigga like shit sweet y'all dead bitch on my
mama soul? Watch no promise. Bitch yo bezt bet iz too watch yo back cauze
I'm lookin fo a tool too buy an when I found 1 bitch u gettin pick up in a bag
one of y'all gone get caught slippen watch.
If you guessed it's a passage from Anna Karenina or one of Shakespeare's lesser-known works, you're
wrong; it's the text message the defendant
in State
v. Graves learns he's alleged to have sent to the victim when he
appears for his sentencing on charges of domestic violence and violating a
protection order. Still, despite the
near-incomprehensibility of the message, questions abound: Why does someone who writes "yo bezt bet is
too watch yo back" go to the trouble of capitalizing the words at the beginning
of his sentences? And put apostrophes in
place of the missing g's? And use "1" to
replace "one," but not use "2" to replace "to," and instead take the time to add
an extra "o" to the word? Graves claims
his 17-year-old sister sent the message.
When Graves' counsel is called upon to buttress this explanation, instead
of trying to divert the judge's attention to the linguistic and stylistic inconsistencies
in the message instead throws him, the attorney throws Graves under the bus,
telling the judge that "I, quite candidly, don't expect you to find [the claim]
any more plausible than I do." The panel
rejects the contention that this constitutes ineffective assistance of counsel,
finding a lack of prejudice, although acknowledging that the remark "was not
necessarily in the client's best interest."
Ya think? Graves nonetheless gets
a redo because the judge failed to make the necessary findings in imposing
consecutive sentences.
The imposition of consecutive sentences fares better in State
v. Williams and State
v. Roberts, both appeals stemming from the same case below. Roberts and Williams had pled guilty to
various drug trafficking charges in return for the dismissal of others, but the
State "reserved the right" to present information of the dismissed charges at
sentencing. That reservation may well
have been unnecessary; as I explained here, the
Federal courts have adopted the rule that even acquitted conduct can be
considered in sentencing, and while there's some Ohio law to the contrary, as I
explained here,
it's much less than definitive. And
there's little question that a court can consider the dismissed charges in
fashioning a sentence. As I wrote then, "the defendant gets the benefit of the
bargained offense, but he doesn't get the benefit of the assumption that the
bargained offense is actually the only thing he did."
The consecutive
sentences in both Williams and Roberts are upheld, and should have
been; the trial judge did an excellent job of explaining why he was imposing
the sentences, and while he might not have used the "talismanic" words, there's
no question he did make the necessary findings.
A disquieting note from Williams,
though; the court states that since there was no objection to consecutive
sentences at the sentencing hearing, the court will consider only "plain error." That's huge as far as consecutive
sentencing errors go, because that means failure to object to the judge's not
making the necessary findings will result in reversal only when there's a
"manifest miscarriage of justice," which is an almost impossible
standard to meet in the context of sentencing.
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