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What's Up in the 8th

It was the best of times, it was the worst of times:  I won a case in the 8th District Thursday, and I lost a case in the 8th District Thursday.  Those two decisions constituted only 10% of the 8th's work in criminal cases for the week.  We also had a good search case, and more confusion on appellate review of sentencing.

According to the victim in State v. Tatum, he was sitting in his car, waiting for a friend, when Tatum came up, pulled a gun, and divested him of money and a cell phone.  At trial, though, another story emerged:  the victim admitted he was waiting for his drug dealer to buy marijuana.  The defense attorney elicited some more admissions on cross-examination:  that Tatum had offered to sell the victim what he wanted.  In closing argument, the attorney contended that this was really a drug deal gone bad:  Tatum had sold the victim some bogus weed, and the angered victim had thus claimed he'd been robbed at gunpoint.

Actually, the attorney tried to advance that contention:  the prosecutor objected, and the judge shut him off, finding that he was arguing facts not in evidence.  I made what I thought was a clever argument, devoting the first several pages of the brief to the importance of closing argument, and of it being the chance for the attorney to argue his theory of the case, and that denial of this opportunity would be a denial of the right to counsel.  I found some good cases on the difference between arguing a theory and asserting facts not in evidence, and sure enough, the 8th District agreed that the judge had erred in shutting down the argument.  That nifty little argument about it being a denial of Tatum's right to counsel was an attempt to get into constitutional error, but it turned out not to matter:  the court held that even under the non-constitutional standard, it was error.  So much for clever, huh?

Back in 2004, Bennie Herring was arrested in Coffee County, Alabama, on an outstanding arrest warrant, and a search of Herring revealed he was carrying drugs.  It turned out the warrant had been recalled five months earlier.  Herring argued that made the search invalid, but when the case finally made its way to the Supreme Court five years later, the Court held that mere negligent errors in the maintenance of warrants wasn't enough to trigger the application of the exclusionary rule. 

In State v. Scott, the State seeks refuge in Herring:  Scott too had been stopped on a warrant that turned out to be bad.  But there was a huge difference.  Scott had been stopped on the same warrant a month earlier, and the cops had learned that the warrant was actually for another person who'd been using Scott's name.  Indeed, the very day after the first stop, Scott went to the police station and made a report about the fraudulent use of his name.  Nonetheless, he was stopped on the same warrant a month later, and when the cops patted him down, they found two small bags of drugs.

The trial judge upheld the search on the basis of Herring, but Herring left an opening:  the exclusionary rule still applied where the retention of the invalid warrant was "reckless, or grossly negligent conduct, or recurring or systematic negligence."  A shoutout to both Scott's trial and appellate attorneys:  trial counsel called four witnesses, and built a very good record on the police failure to remedy the false warrant.

I had an oral argument in the 8th several months ago, where one of the judges pointed out that a prior case from the district seemed to run contrary to my position.  "That's the wonderful thing about this District," I replied, "You can find a case to support just about anything."  Flippant, but true:  with 220 possible combinations of judges for any particular panel, the chances of moderately conflicting decisions increase exponentially.

And so it is with appellate review of sentencing, especially consecutive sentences.  Previous decisions of the court have held that the court will review the issue to determine whether the record "clearly and convincingly" shows that consecutive sentences are not supported," but just two weeks ago, in State v. Thompson (discussed here), the court seemed to hold that its review of consecutive sentencing was limited to determining whether the trial court made the required statutory findings.  Forget "seemed":  the court doubled down on that position last week, holding in State v. Jones that "we may only review the legal question of whether the court complied with its statutory obligation to make certain findings before ordering a defendant to serve sentences consecutively."  That also seemed to be the position of the panel in State v. Moon, which upheld a 60-to-life sentence, finding that the judge made the required findings, and calling it a day.

This is an unfortunate development.  Whether to run sentences consecutively is the single most important decision that a judge can make in the sentencing process (other than deciding whether to send a defendant to prison at all).  A judge should have wide discretion in making that determination, but the purpose of appellate review is to moderate the excesses of that discretion.  The 8th District has read itself out of that equation; its only function now is to check to see whether the judge made the necessary findings.  One of the more troubling aspectsof Jones is that it seems to encourage trial judges to make the rote findings, and discourages them from putting any thought into whether consecutive sentences are appropriate:

We stress yet again that R.C. 2929.14(C)(4) does not require the court to support its findings with reasons.  All the court need do is make the separate and distinct findings required by the statute.

This is not the way it should work.   The statute on appellate review clearly allows the court to determine whether the record supports imposition of consecutive sentences, under an extremely deferential standard of review.  There's no reason the court shouldn't take the opportunity to do that.


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