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What's Up in the 8th

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The Supreme Court's decision in Lafler v. Cooper a couple years ago opened up new ground for ineffective assistance of counsel claims.  Cooper was charged with attempted murder, and his lawyer advised him to reject the state's plea offer and go to trial, telling Cooper the state couldn't prove intent to kill because all of his bullets had hit the victim below the waist.  (Yes, I know; that's like something we'd expect to hear from our clients:  "They can't convict me of attempted murder, I only shot him in th ass!")  When Cooper was convicted and sentenced to three times what he would have had on the plea, he blamed it on his attorney's bone-headed advice, and the courts agreed. 

The defendant in the 8th District's decision last week in State v. Hills tries to climb aboard the Lafler train; he claims his attorney was ineffective for not advising him take a plea which would have deleted the firearms specifications in the indictment.

Actually, his argument is that the judge didn't warn him of the consequences of going to trial.  Not in the job description, the panel says:   the judge has an obligation under Rule 11 to advise the defendant of the consequences of a plea, but not of the consequences of not taking a plea.  As for the lawyer, the record amply demonstrates that Hills and his attorney discussed the plea offer at length, and Hills told the court it was his decision to go trial.

That's helpful in deciding a Lafler claims, because the record can be murky.  In Missouri v. Frye, decided the same day as Lafler, the Court held that an attorney rendered ineffective assistance by not informing his client of a plea offer.  It was easy to protect against that; courts now routinely conduct "Frye hearings," where the plea offer is placed on the record.  But you can't put on the record what advice the attorney gave to the defendant; that's privileged.  And this is really a variation of a Lafler claim:  the argument isn't that the lawyer told Hall to reject the plea offer, it's that he didn't talk him into taking it.

And here's something else to think about.  There's a flip side to Lafler:  what happens if the lawyer wrongfully advises his client to take a plea instead of going to trial?  I don't think that argument has a lot of legs; unless you run into the same kind of obvious mistake in evaluating the case that the lawyer made in Lafler, just about anything else is going to be chalked up to trial strategy and tactics.

The double jeopardy clause gets a workout in State v. Hall.  Hall was charged under alternate theories with two counts each of aggravated murder, aggravated robbery, and kidnapping.  He was acquitted of the two aggravated murder counts, and one each of the aggravated robbery (brandishing a weapon) and kidnapping (terrorizing or inflicting serious physical harm) counts.  The jury hung on the remaining count of aggravated robbery (inflicting serious physical harm) and kidnapping (for the purposes of committing a felony).  He was convicted of those counts at a second trial, and complains on appeal that double jeopardy barred the retrial, relying on a 1983 Supreme Court case, State v. Liberatore.

But there's a key difference.  Liberatore had been tried for aggravated murder and aggravated arson for blowing up a fellow Mafioso.  The jury had hung on the aggravated murder charge, but acquitted on the aggravated arson charge.  The former, though, was based on the commission of the latter; Liberatore was charged with aggravated murder through the commission of aggravated arson.   He couldn't be retried for aggravated murder because he'd been acquitted of the underlying predicate offense.  That wasn't Hall's situation:  he'd been acquitted of the main offense, not the predicate offense, and there was no problem with retrying him for the underlying offenses. 

Last week, we talked about gun specifications and the requirement that they be run consecutively to each other in certain situations, something that I and a lot of other lawyers didn't know.  This week the 8th District fills in another gap in my knowledge base; in State v. Parker, they inform me that there's a 7-year add-on for shooting at a cop.  That works like the other specifications:  they have to be run consecutively to each other if they're both tacked on to a charge of felonious assault, or just about any first degree felony besides aggravated burglary and kidnapping (aggravated robbery, murder, attempted murder, and the like.)  If you're keeping score at home, the list of specifications, which can be found at RC 2929.14(B)(1), are

  • Possessing a firearm  -- 1 year
  • Brandishing -- 3 years 
  • Wearing body armor -- 2 years 
  • Using an automatic weapon or a silencer -- 6 years
  • Shooting at a police officer -- 7 years
  • Shooting out of a motor vehicle -- 5 years

That last one is different from the others; it has to be run consecutively to any other specifications, regardless of the degree of the offense.  If Larry the Cable Guy is one of your heroes, you can draw comfort from the fact that a motor vehicle doesn't include a trailer.

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