What's Up in the 8th
There are weeks when the 8th District comes down with a decision, maybe even two or three, which address major issues of law. Other weeks, not so much. Last week was an other week. Still, the court's decisions usually provide a lesson, maybe even two or three.
State v. Forte, for example, raises the issue of what the State must do to prove venue. We've become accustomed to the prosecutor asking a key witness as a last question, "And these events, did they occur in Cuyahoga County, Ohio?" What if the question isn't asked? No big deal, says the panel, and we learn that the trial court can take judicial notice that a search executed at 2581 W. 5th St. in Cleveland was in Cuyahoga County. Forte learns that if he's found sitting at a table with a 24-gram rock of crack cocaine, a razor blade, two scales, a box of small plastic bags, and $474 in cash, it's going to be more than enough to convict him of trafficking. (One officer testified that he'd never arrested a user with that much cash.) And Forte's attorney learns that making a manifest weight argument, then simply incorporating the insufficiency of the evidence argument by reference, isn't going to cut it: there are different standards, and you need to make different arguments as to each of them.
Judges everywhere can learn something from State v. Dalton. Dalton was charged with rape and kidnapping, pled to abduction and sexual battery, and argues on appeal that the offenses were allied and should have merged. Too often, the issue of allied offenses isn't even addressed in the context of a plea, leaving the appellate court to sort it all out, but not here. Not only did the parties stipulate at the plea hearing that the sentences would not merge, but the judge elicited a basis for the stipulation: the parties explained that the evidence at trial would have shown two separate incidents. Notable here is that all this occurred at the plea hearing, not the sentencing. There's a decision from the 8th a couple of years ago which held that the failure to advise of allied offenses at the time of the plea was grounds for vacating it, but that's not correct: allied offenses is a sentencing issue, not a plea issue. Still, addressing the issue at the plea hearing, especially the way it was handled by the parties and the judge here, is the way to go.
A reminder of the change in the "mandatory probation" law comes in State v. Randall. Randall had stolen money from a church, and the judge gave him ten months on the 4th degree felony. As I'd explained on numerous occasions, HB 86 contained an ambiguity: the statute provided that a defendant had to be given probation if he met certain other conditions and "has not been convicted of or pleaded guilty to a felony offense or to an offense of violence that is a misdemeanor and that the offender committed within two years prior to the offense for which sentence is being imposed." Did the two years refer only to non-violent misdemeanors, or to any felony that was more than two years old? The 8th held that the ambiguity had to be resolved against the State, leaving the prospect that somebody like Randall, who had seven prior felony convictions, could get paper because none of them were within the past two years. The legislature saw the error of its ways, and on March 22, 2013, SB 160 took effect, making ineligible for mandatory probation a defendant who had any prior felony conviction. That was after Randall committed his crime and was sentenced, though, so he gets the benefit of the old law.
Yesterday, we talked about the Supreme Court's decision in State v. Holdcroft, which dealt with the question of what happens when the judge incorrectly imposes post-release controls on two sentences, and by the time anyone realizes it, the sentence on one has been served. The law has been that PRC can't be imposed if the defendant has served his sentence, and the court broadened that a bit by holding that it couldn't be imposed on an expired sentence, even if the defendant was in prison on the other convictions. Holdcroft had been sentenced to ten years for aggravated arson and five for arson, to be run consecutively, and the PRC error wasn't noticed until he'd served over ten years. The court found that PRC couldn't be imposed on the aggravated arson, since the sentence for that crime had expired; as I mentioned, though, there's nothing in the court's opinion which explains why they held that the sentence for the aggravated arson was served first.
The problem becomes more glaring in State v. Cvijetinovic. The defendant (think I'm going to spell that name again?) was sentenced to twelve years on one case and four on another, with the sentences to run consecutively. Over 12 years later, Mr. C was brought back for proper imposition of PRC. He argued that he'd finished serving the twelve year sentence, but the judge held that since the other case had a lower case number, it was served first, and Mr. C was now serving the 12-year sentence. The 8th District finds no basis in law for the "lower case number" theory. Since each journal entry specified that the sentence in that case was to be served consecutive to the other case, the panel finds that it's not clear which sentence was to be served first. What's the problem with that? Ah! Another ambiguity! And we know how those get resolved, don't we? The court vacates the sentence, holding that the 12-year sentence was served, and PRC can't be imposed for that.
Finally, State v. Clemons teaches two lessons. First, the distinction between speedy trial and pre-indictment delay. Clemons had been convicted of escape, and did a one-year prison term, only to be arrested upon his release and charged with a crime that had occurred twenty months earlier. The judge dismissed the case with prejudice, but Clemons can't claim a violation of his speedy trial rights: speedy trial runs from the date he was charged, and that wasn't until after his release on the other case. What he's really claiming is undue pre-indictment delay, which is a due process violation. Good luck with that; as the panel notes, that requires a showing of actual prejudice, not claims that the victim's memories "might" have faded, or that Clemons would have a tougher time defending the case. Clemons takes an interesting tack, arguing that if he'd been arrested when the case first arose, he might have worked out a deal with that one and with the escape case, so that he'd be doing concurrent time. Alas, the court informs him, pre-indictment delay goes to the ability to defend at trial, not the ability to work out a better deal.