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What's up in the 8th

It's become more common in appeals from guilty pleas to see an assignment of error that the judge failed to inform the defendant of the effect of pleading guilty, and so it is in State v. WilliamsI've always had a hard time following this if, as here, the claim is unaccompanied by any reference to the transcript where the defendant expressed some lack of comprehension.  I mean, you're pleading guilty.  What, you think it means you're going to win a toaster?  Williams nonetheless provides one of the two "wins" for defendants this week; the State concedes that Williams' offenses, attempted murder and felonious assault, should have merged.  Since the sentences were run concurrently anyway, it's unlikely that Williams will be breaking out the party hats.

The other "win" comes in State v. Kish, although how that will shake out is a bit fuzzy.  Back in May of 2003, Kish pled out to involuntary manslaughter in one case and aggravated robbery in another.  The judge gave him ten years on the manslaughter and five on the robbery, and ordered them run consecutively.  But the judge failed to properly impose post-release controls, so in April of 2013 the case comes back for that.  The judge found that Kish had already served the sentence for aggravated robbery, so it couldn't impose post-release controls on that one, but could and did impose the mandatory five years of PRC for the manslaughter.

The court tackled a similar issue three months ago in State v. Cvijetinovic.  Cvijetinovic had been sentenced to twelve years on one case and four on another, with the sentences to run consecutively.  PRC was screwed up there, too, but the State argued that he was still serving the twelve year sentence because the four-year sentence was in a lower-numbered case, and the sentence in the lower-numbered case was served first.  The court found the "lower-numbered case" argument was unbuttressed by any case or statute, and held that if there's an ambiguity in which sentence is to be served first, it's resolved in favor of the defendant; thus, Cvijetinovic's 12-year sentence had been served, and he couldn't be put on PRC for that.

In Kish, the court remands back to the trial court for a determination of which sentence was to be served first.  What I'm not clear on is why; the docket reflects that less than ten years elapsed between the sentence and the hearing on PRC, which means that under any circumstance, Kish's manslaughter sentence hadn't been completed, so PRC could properly be imposed for that, which is what the judge did.  Still, the opinion contains a clear admonition to judges: 

It is imperative that a trial court's sentencing journal entry is unambiguous and clearly sets forth the sequence in which consecutive sentences are to be served, especially when sentencing on multiple cases or counts. Merely stating that the cases or counts are to run consecutive to or with each other is insufficient because it does not indicate which sentence is to be served first.


The defendant in State v. Marquand tosses his hat into the ring for the title of Dumbest Sexual Predator Ever.  Marquand posted a message on Craigslist seeking "young girls without much experience . . . the younger the better" who might be interested in having Marquand teach them the wonders of oral sex.  He engages in a series of emails with the father of 12- and 14-year-old girls, then travels from Flint to Cleveland to have sex with girls, only to find that -- quelle surprise! -- there are no girls, and "dad" is a cop. 

In his appeal from his inevitable conviction for attempted rape and attempted unlawful sexual misconduct with a minor, Marquand first argues he was entrapped.  But entrapment requires the defendant to prove he was not predisposed to commit the offense, and when you drive three hours to have sex with a 12-year-old and a 14-year-old, and the cops find a computer with child porn and two thongs in your car, that's a hard sell. 

Plan B is the argument that the judge should have instructed the jury on importuning as a lesser offense.  But the third step of lesser-included-offense analysis is that the greater offense can't be committed without committing the lesser one.  Importuning requires a showing that you "solicited" sex - essentially, that you sought to influence a minor to have sex with you - and you can attempt to rape someone (e.g., forcibly) without doing that. 

Marquand's final claim is that the evidence of child pornography, and of Marquand's going on sites where the audience is 13-to-16-year-old girls, was improper 404(B) evidence.  But the panel says that's good, too:  it's relevant to the issue of whether Marquand was entrapped, and goes to prove motive and intent.  Though Marquand would disagree, the opinion's a good one, providing a thorough treatment of all three subjects:  entrapment, lesser included offenses, and 404(B) evidence.

Finally, in State v. Jackson, the defendant argues that the judge didn't tell him what the maximum sentence would be, and didn't adequately explain why he was imposing a maximum sentence, arguments which might have fared better had the transcript not clearly revealed that the judge did both.  But in rejecting the latter contention, the panel tells us once again that as long as the sentence is within the statutory limits, the judge is presumed to have considered the appropriate sentencing factors.  And once again we're left wondering how you'd ever overcome that presumption, short of the judge announcing that he considered the sentencing factors to be so much chin music, and when he rolled the dice back in chambers, it came up a hard eight, so that's what the defendant is going to do.


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