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What's Up in the 8th

Lonnie McCoy is the biggest beneficiary of last week's batch of decisions from the 8th:  the court vacates his conviction for burglarizing an 88-year-old woman's house, finding the evidence insufficient.  A somewhat surprising result, given that a neighbor saw McCoy coming out of the house; the absence of any stolen items could easily be explained, as the dissenting judge surmises, by McCoy having abandoned his plan once he saw the neighbor approaching.  Still, the most interesting aspect of the case, for me, was that the purported victim was mowing her lawn at the time.  Gotta show this case to my wife. 

Not a week goes by without some decision on ineffective assistance of counsel; the appellate bar appears to spend a fair amount of time complaining what a sorry lot the trial bar is.  Without much success, which is the case last week.  In State v. Jarrell, the judge sustained the State's motion in limine precluding expert testimony by the defense on the breathalyzer.  As we all know, a ruling on a motion in limine is preliminary, and the defense would have had to proffer the expert's testimony at trial to preserve the error, which it didn't do, despite the judge's invitation.  The court chalks this up to trial strategy, but it's clear that the decision was economic, and probably the client's decision at that:  the lawyer alluded at trial to the substantial cost in bringing the expert up from Columbus for trial.

Here is what the judge said in imposing consecutive sentences on Ronald Wells for committing a home invasion on one day and an aggravated robbery the next, all while awaiting trial on a pending drug case and being on post-release control for two earlier robberies:

This Court is of the opinion that consecutive sentences are necessary to protect the public from future crime or to punish you. You had just served time for two robberies. While you were on post-release control and bond here, you went out and committed two more serious robberies with a firearm.

The Court finds that this sentence is not disproportionate to the seriousness of your conduct and to the danger that you posed to the public. In one instance, your codefendant beat a person and sent him to the hospital, somebody you knew, and in another instance, they beat again -- you call him your uncle and caused him to have injuries for which he did not seek medical treatment. You frightened people that were robbed as they came out of the casino after their winnings.

The Court finds that you committed the two robberies, the two separate days, August 18th and August 19th, while you were awaiting trial on your drug case and while you were under a sanction of post-release control for a prior offense which was robbery. They were part of a course of conduct in order to satisfy your desire for drugs to have money for them as you were robbing people. Your history of criminal conduct since you were a juvenile is all violence: felonious assault, robberies, antisocial behavior by selling drugs and such. So I feel that consecutive sentences are necessary to protect the public from future crime by you.

I take the time to quote the entire thing because it is as good an explanation of why a judge imposed consecutive sentences as I've seen:   not only are the necessary findings made, but the judge supports those findings with reasons.   It is quite obvious that the judge gave serious thought to all aspects of sentencing, including the imposition of consecutive terms, which is exactly what a judge is supposed to do.  And in State v. Wells, the court agrees that "this text-book approach made appellate review of the issues and the case simple."

So why don't more judges do this sort of thing?  Because they don't have to; as the opinion notes, "the trial court supported its separate and distinct findings with facts from the record, although it was not obligated to do so."  That's my emphasis, and it summarizes the problem with allied review of consecutive sentencing:   under the current state of the law, a judge need do no more than give a rote reading of the statutory findings.  Pre-Foster, a judge had to give reasons in support of his findings, but HB 86, which revived the findings, eliminated the requirement for reasons.  I've discussed the problems with that before -- it reads too much into the repeal of the reasons requirement, and ignores CrimR 32(A)(4), which does require a judge to give reasons - but somehow the courts have persisted in ignoring my trenchant analysis, and I don't see that changing soon.  So we'll just have to be thankful when a judge does his job and gives a thoughtful exposition on why he has chosen to impose a particular sentence, and hope that others will follow suit, although, as the court reminds us, they are not obligated to do so.

In Parma v. Fonte, the defendant claims he should have been given a new lawyer because the public defender assigned to represent him didn't like him.  This contention certainly didn't fail for lack of evidence:  the record contains the public defender's assertion to the judge, ""I don't like [Fonte].  Your Honor I don't like him. Mr. Fonte has been in prison and I don't like him."  The state of the law on the right to counsel, however, is that that while you have the right to an attorney, that guarantee doesn't include you having the warm and fuzzies for him, or him for you.  Hopefully, the decision won't result in defense attorneys becoming even more candid in their denunciations of their own clients; confessing your loathing for the man you're representing will probably not go far in instilling his confidence in the zealousness of your representation. 

But Fonte is significant for another reason:  it raises some serious issues regarding the 1st Amendment implications of the menacing statute.  We'll take a look at that tomorrow.


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