There were a number of questions left open by the US Supreme Court's decisions last year in Missouri v. Frye and Lafler v. Cooper, which extended the duty of effective assistance of counsel to plea bargaining. Both cases, along with the decision two years earlier in Padilla v. Kentucky, offered clear examples of affirmative misadvice or negligence, and in all three cases the State conceded the deficient performance prong of the Strickland test. That doesn't do much in the way of defining the lawyer's duty. Do I have an obligation, say, to advice my client, who is pleading to a child rape with a life sentence and parole eligibility of ten years, that the "ten years" is meaningless: he's going to do two to three times that, if he ever gets out. A judge doesn't have to tell a defendant in a plea colloquy of the possibility of consecutive sentences; does the lawyer have the obligation to tell his client of that? And if he doesn't, and the defendant gets consecutive sentences, can the plea be vacated for ineffective assistance?
Burt v. Titlow offered the potential to give some further definition of the lawyer's role. Titlow helped her aunt murder the aunt's husband, and her attorney negotiated a plea to voluntary manslaughter with a 7-15 year sentence, conditioned on her testifying against the aunt. A sheriff's deputy advised her not to plead guilty if she wasn't guilty, and this sage advice prompted her to retain a different attorney, who quickly withdrew her plea. Oops. The aunt went to trial and was acquitted, Titlow was tried and convicted of second-degree murder, and sentenced to 20 years.
Unfortunately, the simple question - can the lawyer's advice to withdraw the plea serve as a claim of ineffective assistance? - is beset with problems, as the oral argument last Tuesday demonstrated. The record's a mess; it's not even clear that the lawyer (who was subsequently disbarred, for this among other things) advised her to withdraw the plea. Plus, the case comes up on habeas review, with the attendant highly deferential standards for review by the federal courts. And even if Titlow was granted relief, it's not clear what that would be. In Lafler and Frye, the Court remanded for the trial court to determine whether the defendants there would have taken the plea deal. That's not an option here; the aunt died, and thus a key aspect of the bargain, Titlow's testimony against the aunt, can't be performed.
I'll write more about the case when the decision comes down, if that happens; a summary reversal could be in the works.
The Ohio Supreme Court had oral arguments, too, last week, with a case on wrongful imprisonment, double jeopardy, and the enticement statute. I'll have a rundown on those on Thursday. Thursday will also be my last day posting for two weeks; time for some R&R.
In the courts of appeals...
Reversals for prosecutorial misconduct in closing argument are rare; there are a lot of things a prosecutor can get away with. In State v. Hartman, the 9th District decides that repeatedly claiming that the defense witnesses, defendant, and defense lawyer were all lying is not one of them. Probably the key reason for reversal is that the judge overruled the defendant's objection to it. As the court noted, this meant that the jury was given the impression that such argument was permissible, and was allowed to consider it.
If you've got a case involving the interplay between hearsay and testimonial statements in, you can check out the 1st District's decision in State v. Goshade The court concluded that a domestic violence victim's statements to the police when they responded to her 911 call were excited utterances, and were made to receive assistance for an ongoing emergency, and the opinion does a nice job of laying out the law... Something to be aware of: if your client's been sentenced to prison in another case, and they bring him back to Cuyahoga County to sit in jail while they handle his new case here, he doesn't get jail time credit toward the new case, the 8th District says in State v. Smiley... Normally, as I mentioned above, a court doesn't have to tell the defendant that the sentences can be run consecutively. An exception to that is where the sentences have to be run consecutively. So the failure of the trial court to advise the defendant that any prison sentence for a repeat violent offender specification would have to be served consecutively to the underlying offenses wasn't substantial compliance with Rule 11, and the plea has to be vacated, the 12th District rules in State v. Whitaker...
Speaking of consecutive sentencing, there were about eight or ten cases on that subject just last week in the appellate districts. The unresolved question is just what the judge has to say in making the findings required by RC 2929.14(C)(4). The 2nd District aptly sums up the state of the law in State v. Wills,
Without engaging in an exegesis of Ohio sentencing laws, we note that some interpretations of the current version would affirm a sentence in which the court rotely verbalizes the statutorily-prescribed conclusory findings; other interpretations would accept factual explanations and infer the conclusory requirements; and still others would approve a silent record as compliance with certain statutory and constitutional mandates.
One of the things I've noted over the past several months, though, is the appellate courts becoming stricter in their enforcement of the required findings. Early on, there were numerous cases where the sentence would be affirmed if the appellate court could make the required findings, based on the record. There are still some decisions like that; just a few weeks ago, the 8th did this in State v. Barker, deciding that when the judge said that consecutive sentences "were the only appropriate sentence," this really translated into the required finding that consecutive sentences were not disproportionate to the offender's conduct and the danger he poses. But in Wills and in two cases from the 8th last week, which we'll talk about tomorrow, the courts seem to be saying, "if you can't even read the words out of the statute book, we're not going to bail you out."