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What's Up in the 8th

Their time apparently occupied with exploring the various means by which turkey can be prepared, the 8th District's judges handed down only two decisions last week.  Both are worth a look, albeit the one barely.

That one is State v. Falkenstein, which represents the defendant's latest effort to get out from under his consecutive life sentences on the 41 counts of child rape he was convicted of back in 2003.  He lost his direct appeal, but in 2010, he filed a motion to "vacate void sentence," claiming that the judge had failed to advise him of the term of his post-release controls, and of the consequences for their violation. 

This reveals the idiocy of the law on PRC, on two levels.  First, the sentence is life with parole eligibility after twenty years; in the unlikely event that Falkenstein is released, he will be on parole.  Why are we even talking about post-release control?  Second, "unlikely"?  The next time you see the headline, "Child Rapist Paroled" will be the first.  I was talking to one of the guys over at the county PD's office, and he told me they had a client who was sentenced to 5 to 25 back in 1989.  That was under the old law, and the parole board decided how much time you did after the minimum.  He did every day of that 25 years.  He was 84 years old when he was released, and had been wearing a colostomy bag for the last 10.

That aside, Falkenstein's teaching is a simple one:  if the court improperly advises a defendant of post-release control or the consequences of a violation at the sentencing hearing, a new sentencing hearing has to be conducted (limited, of course, solely to proper imposition of PRC).  But if the judge just fails to include it in the journal entry, that can be corrected without a hearing by a simple nunc pro tunc entry.

State v. Michailides proves the more interesting case, for several reasons.  A neighbor called the police and reported that Michailides had fired a shot from his porch.  The police responded, searched the home, and found several guns which Michealides wasn't allowed to have because he had an aggravated robbery case 26 years earlier.  His appeal from his conviction of weapons under disability and 18-month prison sentence focused on the trial judge's summary denial of his motion to suppress.  The motion had been filed 25 days before trial, but 46 days after arraignment, 11 days after the 35-day limit provided by CrimR 12(D), so the judge proclaimed it out of rule.

Michailides tries to avail himself of the rule's "interest of justice" exception, but we're in Abuse of Discretion Land here, and that rarely goes well.  I'm not sure exactly what happened here.  The docket reflects that Michailides filed a motion to suppress on January 4, but then filed a "supplemental brief" in support of the motion on the day of trial; it may be that everybody regarded the initial filing as simply a pro forma effort, and it wasn't until the day of trial that they realized it was supposed to be taken seriously.  The panel also emphasizes that the defense did not seek leave of court before filing the motion out of rule.

This really shouldn't be a problem here in Cuyahoga County.  With open discovery provided electronically, usually within a few days of the request, you should know if you have a viable motion to suppress well before the 35 days after arraignment runs.  If you get discovery after that which raises a search issue, that's very likely going to extend the time.  A word of caution, though:  if you do file a motion to suppress after the 35 days, include a motion for leave to file it.

But there's still the issue of whether Michailides' attorney rendered ineffective assistance of counsel, which the panel tackles next.  Since the court's already concluded that the attorney screwed up by filing the motion out of time, the deficiency prong is satisfied.  So the court tackles the issue of prejudice, where the issue is whether the motion would likely to have been granted; if it was a loser, then there's no harm by the late filing.

Which, unsurprisingly, is exactly what the court decides.  The police claimed that Michailides had consented to the search of his home, and the court finds that his "self-serving proffered testimony that he declined consent to search his home is insufficient to create a reasonable probability that the motion to suppress would have been granted had the suppression hearing been held."

Maybe, but then there's this:  the first time he was asked to consent to the search, Michailides refused. The cops then went next door and spoke to the neighbor, and upon their return, they claim, Michailides consented.  But then there's a further nugget in the opinion's second paragraph:

According to one of the responding officers (the other did not testify), the officers either shouted from behind a parked car in the driveway for the occupant of the home, later identified as Michailides, to exit, or they immediately climbed the stairs to the front porch area and demanded that Michailides come to the door. The testifying officer gave the former account during his direct examination and the latter during the cross-examination.

Since this was a warrantless search, the State has the burden of proving that it fell within the consent exception.  Maybe it's just me, but I don't see Micheilides coming out second in a credibility fight with that officer.

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