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What's Up in the 8th

There's probably nothing more important at sentencing than an appropriate and heartfelt expression of remorse by the defendant, especially toward the victim.  The defendant in State v. Mathis chose a different course; after the judge sentenced him to prison for 18 months for domestic violence, he yelled at his wife, who was sitting in the courtroom, "Stinkin' bitch, I'm gonna' kill you when I get out.  I'm gonna kill your black ass.  I'm gonna' kill that bitch. My whole life is destroyed because of your dumb ass."    

As might be expected, this did not favorably impress the judge, who prompty doubled the sentence.  

Mathis then tried to withdraw his plea, and the only real issue on appeal was whether the motion made after sentence is pronounced but before it's journalized should be treated as a presentence of post-sentence motion to withdraw; while the former should be "liberally granted," the latter should be granted only to correct a manifest injustice.  That's an easy one; the obvious purpose of the distinction is to prevent the defendant from testing to see what sentence he gets, and then vacating his plea if he doesn't like it.  Besides, given how frequently appellate courts reverse denials of a presentence motion to withdraw, it's not like it matters.

Other than that, though, it was an excellent week for defendants, with four reversals, three of them of major consequence.

First up is State v. V.M.DReferred to throughout the opinion by his unfortunate initials, V.D. was 18 when he was charged with aggravated robbery, accused of stealing $242 while having a 9 mm pistol "on or about his person."  He pled to attempted robbery by force, the inclusion of the attempt statute making it a 4th-degree felony, and the State also dismissed the firearm specs, the prosecutor telling the court that "actually there is some possibility that it was not an operable weapon and also this defendant was not in possession of that weapon," and that "it's the State's understanding that it was not a real gun."  Well, yes, that would make a difference.  When V.D. applied for expungement, the judge reluctantly turned him down because robbery is a crime of violence, and you can't have that expunged.

The panel's path to reversal isn't a smooth one.  Thecourt begins by noting that "offense of violence" is not defined in the expungement statute, but in the general definitional section, RC 2901.01.  Relying on its decision two years ago in State v. J.K., the panel decides to "review the record to determine whether the facts 'clearly reveal' that the defendant committed a disqualifying 'offense of violence.'"  Then it pretty much ignores the record, deciding instead that V.D. is entitled to expungement because robbery itself includes attempt - the crime includes either "committing or attempting to commit a theft offense - and "when the underlying offense itself contemplates attempt, and the defendant was charged with an attempt of that offense, the element of violence is simply too removed for the defendant to be  automatically precluded from expungement." 

The State sought appeal to the Supreme Court in J.K., but was turned down.  I'm figuring they'll try again.  We'll see how this one goes. 

While they do the Memorandum in Support of Jurisdiction in V.D., they'll also probably work up one in State v. Klembus.

Under R.C. 4511.19(G)(1), if you're convicted of drunk driving and have five or more prior convictions of the offense within the past twenty years, it's a fourth degree felony and the judge has to give you a minimum of sixty days in jail or prison.  If the prosecutor includes a specification under RC 2941.143, though, it's also a fourth degree felony, but now the judge can give you a mandatory sentence of anywhere from one to five years.

So what does the specification in RC 2941.143 allege?  The same thing that's required for conviction under RC 4511.19(G)(1):  That you've had five or more prior convictions of the offense within the past twenty years.  In other words, you can spend two months in jail or sixty months in prison, depending solely upon whether the prosecutor decides to include the specification.  (And if you're a prosecutor reading this and you want to say, "But it's the grand jury that decides to include the specification," please don't, because we'll all start laughing really hard.) 

Kembus alleges that this violates the Equal Protection Clause, and that appears to be an uphill climb; normally, abuse of prosecutorial discretion in this respect requires a showing that the prosecutor used race, religion, or some other arbitrary classification to decide what to charge.  Relying on some prior cases, though, the court reverses:

The specification does not require proof of any additional element to increase the penalty for the same conduct. Thus, the repeat OVI offender specification allows the prosecutor to arbitrarily subject individual defendants, such as Klembus, to increased penalties that others are not subject to. In this way, Klembus is treated differently from other members of his class, who are not subject to the repeat OVI offender specification.

Finally, for the second time in two weeks, the court reverses a conviction for aggravated murder in State v. Walker, finding insufficient evidence to establish prior calculation and design.  The court notes the factors to be considered in determining that issue:

(1) Did the accused and victim know each other, and if so, was that relationship strained? (2) Did the accused give thought or preparation to choosing the murder weapon or murder site? and (3) Was the act drawn out or an almost spontaneous eruption of events?

It's not a hard call; the killing occurred after a fight in a nightclub, and notable is the absence of any evidence of any of the factors.

But the court's opinion in State v. Shabazz is the real highlight of the week.  Shabazz was convicted in the same killing, and the court not only vacates his conviction for aggravated murder, but for murder as well.  We'll talk about that one tomorrow.

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