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What's Up in the 8th

I gave a presentation on constitutional issues at the OACDL's death penalty seminar a couple weeks back, and my advice on how to win 4th Amendment issues was simple:  move to Cleveland.  Combining a police force which has no more than a nodding acquaintance with the rudiments of search and seizure law with an appellate district which is the most 4th Amendment-friendly in the country is a sure-fire recipe for success.  For doubters of the latter point, take a look at the 8th's decision last week in State v. Fontaine.

Fontaine was stopped for going 10 miles over the speed limit, and although he immediately provided the officer with his license, registration, and proof of insurance, the latter suspected criminal activity might be afoot.  Why?  Because Fontaine was "almost overly polite, and he was breathing heavily at times."  (Which fairly characterizes my dating style in college.)  The officer called for the drug-sniffing dog, which arrived within ten minutes of the stop.  The dog alerted, and the cops found a bag of marijuana and a gun in the glovebox.

The law on this is relatively simple:  the stop can't unduly prolonged to allow for the arrival of the drug dog.  Most courts figure it takes ten to fifteen minutes to make a stop, check the driver's record, and issue a ticket.  (The officer here testified it normally took him twelve.)  So how does the panel affirm the trial judge's tossing of the search?  By pretty much ignoring that: it concentrates instead on the lack of any reasonable suspicion of criminal activity.  There wasn't any, but you only get to that point if the stop's been unduly prolonged.

Things I learned this week:  the Fletchinger rule.  That comes into play when you work out a plea bargain like the one in State v. EnglishThe police were investigating English's boyfriend for drug trafficking, and obtained a warrant to search his home.  They found a set of keys belonging to English, and the resultant search of her home turned up 122 grams of crack and another 92 of heroin, along with assorted guns, scales, $20,000 in cash, and various other items used in the drug trade.  Someone along the way must have realized that a search of English's home, whether with or without a warrant, based solely on the discovery of her keys, might prove a risky venture (see Fontaine), and so English's five counts of drug trafficking and possession, with major drug offender specifications, were reduced to a single count of permitting drug abuse, a fifth degree felony.  She appeals, claiming that the plea was invalid because permitting drug abuse isn't a lesser included offense of possession or trafficking.

Hence, the Fletchinger rule:

The acceptance of a guilty plea violates due process where three conditions are met: (1) the defendant pleads to an offense which is not a lesser included offense of the charged crime; (2) there is a failure to explain the additional elements of the offense to which the defendant will plead; and (3) under the facts of the indictment, the defendant could not have committed nor been convicted of the offense.

All three conditions must be met in order to void the plea, and while English can satisfy the first one, she can't meet the other two, and so the plea stands.  Seems better than going to trial on five first degree felony charges with mandatory maximum 11-year prison terms, but then what do I know.

The defendant in State v. Jefferson gets a break, too.  His murder trial resulted in an acquittal on that count, but conviction of the inferior offense of voluntary manslaughter.  In his first appeal, the court held that the charge on voluntary manslaughter should never have been given - Jefferson argued self-defense, and there was no evidence of sudden rage or passion - and sent it back.  For what?  Jefferson couldn't be tried for murder, because the jury acquitted him of that, and he couldn't be tried for manslaughter, because the appeals court said he couldn't.  The judge obligingly dismissed the indictment, and the State appealed.  The court dismisses that, spending a lot of time talking about jurisdiction and when the State can file an appeal as of right versus seeking leave to appeal, but what's the point?  If anybody can come up with a scenario where Jefferson can be tried again, I'd love to hear it.

At least the judge in Jefferson listened to what the court had to say, which is more than the judge in Cleveland v. Crump did.  A police officer, suspecting that Crump was violating curfew, asked him for identification, and when Crump refused to provide it, charged him with obstruction of justice.  There's a long line of cases out of the 8th (and elsewhere) holding that obstruction of justice requires some affirmative act, more than just a refusal to identify oneself, and the attorney provided all that to the trial judge, to no avail.  The panel reverses the conviction, pronouncing itself "stunned" that the judge would ignore the 8th District's case law.  Me, not so much. 

The court also relies on prior case law in State v. Segines.  Segines was convicted of murder and aggravated robbery in 2007, and his four ensuing appeals all went into the loss column.  But whatever personal failings Segines had - and convictions for murder and aggravated robbery would indicate he had some - lack of persistence wasn't one of them.  So early this year he filed a "motion to correct a facially illegal sentence," arguing that under the Ohio Supreme Court's 2010 decision in State v. Johnson, the two offenses were allied and should have merged.  That's going nowhere; Johnson doesn't apply retroactively, but only to cases that were pending (for trial or on direct appeal) at the time it came down.  That should be the end of that, but the panel decides to answer the question as if it had been properly presented, and provides us with decisions holding that the offenses don't merge "where the force used to effectuate an aggravated robbery is far in excess of that required to complete the robbery."

And to show the kind of guy I am, this provoked the immediate thought:  wouldn't killing the victim be "force far in excess of that required to complete the robbery" in every case?


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