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What's Up in the 8th

I'm constantly amazed by how many of my client's friends, relatives, or fellow inmates possess law degrees.  I'll work out a plea bargain, only to find on the day of sentencing that my client's cousin or one of the guys in his pod has told him that it's a crappy deal and he'd be better off going to trial, and the client wants to withdraw the plea.  Such was the case with the defendant in State v. Barrett.  Barrett's first claim is ineffective assistance of counsel; his attorney, he says, failed to properly advise him that the State's case against him was based on a theory of complicity.  But that goes nowhere.  Hint to judges:  it helps to make a record, and here the judge did exactly that at the plea hearing, making extensive inquiries of the State and having them explain the factual basis for the plea.  As for the second claim, that the judge should have allowed him to withdraw his plea, the court finds that this "seems to be predicated upon a change of heart based on the fact that he received advice from non-lawyer acquaintances."

Barrett's loss is not unusual; in the thirty decisions in criminal cases in the 8th over the past two weeks, defendants batted .033.  The solitary win came in State v. Williams, where for the second time this year, the court held that a trial judge had improperly denied a defendant's request to represent himself.

Williams had an IQ of 56.

The main subject of the opinion is the Supreme Court's 2008 decision in Indiana v. Edwards.  Edwards was schizophrenic, and the judge refused to allow him to act pro se.  The Indiana courts reversed, finding that since Edwards had been declared competent to stand trial, this meant he was also competent to act as his own attorney.  The Supreme Court rejected that contention, finding that the two standards were different, and that a trial court can "take realistic account of the particular defendant's mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so." 

The State hitches its wagon to Edwards, but the court refuses to extend Edwards to cases involving mental retardation, as opposed to mental illness.  The opinion is a well-researched and thoughtful one, and admits that the case raises "troubling questions."  Still, some of the language is problematic; the opinion closes by holding that "it is not within the province of the state to tell a defendant, intelligent enough to stand trial, that he is not intelligent enough to represent himself," which I think steers too close to the idea rejected by Edwards:  that competence to stand trial is synonymous with competency to act as one's own attorney.  As the Court stated in Edwards, "No trial can be fair that leaves the defense to a man who is insane, unaided by counsel, and who by reason of his mental condition stands hopeless and alone before the court."  That would seem to apply to someone with an IQ of 56.

My legions of regular readers can always count on the weekly post on the 8th District decisions to serve as a platform for more of my whining about consecutive sentencing, but not this week.  The only real case on it is State v. Finney, where Finney argues that the facts don't support imposition of consecutive sentences.  The panel finds it unnecessary to reach that issue, since, as the State concedes, the trial court didn't make any of the required findings.  The defendant in State v. Adkins gets consecutive sentences for breaking and entering and theft, but raises only the argument that the two are allied and should have merged.  Not so; the first offense is complete upon entry, and the second is therefore committed with separate conduct.  Adkins' forbearance of a consecutive sentence argument was perhaps dictated by the fact that his rap sheet showed 122 cycles, and he'd been to prison 14 times.

State v. Parker raises another sentencing issue.  One of the modifications in sentencing law wrought by HB 86 was to require the judge to impose the minimum sanctions the judge determines will accomplish the purposes of sentencing "without imposing an unnecessary burden on state or local government resources."  But what's "unnecessary"?  As the court notes, "although resource burdens are a relevant sentencing consideration under R.C. 2929.11(A), a sentencing court is not required to elevate resource conservation above seriousness and recidivism factors."   Especially where the guy's got fourteen prior alcohol-related offenses in addition to drug possession, drug trafficking, and burglary convictions.

Finally, something else for attorneys to worry about.  We all regard getting a client into diversion as a win:  if he pays off the restitution and stays clean, the charges are dismissed.  Sure, he has to sign a statement admitting his guilt, but that will only come into play if he screws up in diversion.

Or, it turns out, if he's not a citizen.  The defendant in State v. Kona was charged with aggravated shoplifting - after stealing something in a store, he pushed a security guard trying to apprehend him - but his attorney got him into diversion, which Kona successfully completed.  A year later, he applied to be naturalized, and was told that not only would his admission of guilt statement bar his naturalization, it would require his deportation.  (Yes, the immigration authorities can look at everything involved in the crime, not just the offense of conviction.)  He argues that the court should vacate his plea, because he wasn't advised of the immigration consequences, as required by RC 2943.031.  But what's to vacate?  He didn't enter a plea, and the panel doesn't buy his argument that the admission of guilt statement constituted a guilty plea, and that the trial judge was required to advise him of anything. 

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