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What's Up in the 8th

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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. 

So what's a defense attorney to do?  "Objection, your honor.  I don't believe you made the finding that consecutive sentences are not disproportionate to the seriousness of the defendant's conduct, or the danger he poses to the public."  "Why, thank you, counsel.  I find that consecutive sentences are not disproportionate to the seriousness of the defendant's conduct, or the danger he poses to the public.  Anything else?"  This is particularly problematic, given the appellate court's unwillingness to find that the trial judge need do anything more than make the findings, such as support them with some reasons.  A generalized objection to the imposition of consecutive sentences might work.  We'll see where this goes.

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