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What's Up in the 8th

Sometimes I'll find a surprise when I read the 8th's opinions every week.  It may be a groaner, like the time two different panels of the court ruled different ways on the same issue on the same day.  Or it may be to see that a judge, despite having to write nine opinions a month -- and trust me, that's a lot -- has taken the time to write a particularly thoughtful one. 

And then there's the surprise, a thoroughly unsettling one, I got from reading the 8th District's opinion in State v. Jones:  I find out that  the Cuyahoga Metropolitan Housing Authority police has a SWAT team.

Be afraid.  Be very afraid.

There's little to be found in Jones beyond that sobering bit of news, other than that it provides one of those rare occasions when the 8th upholds a search.  The case features the Bullshit Traffic Stop of the Week™:  Jones' vehicle is pulled over for violating the city's noise ordinance prohibiting vehicles from playing music which can be heard more than one hundred feet away (the officer testified that it could "probably" be heard from that distance, which is good enough for government work).  Throw in the ubiquitous smell of marijuana and a patdown, and the cops discover two grams of heroin and $1,375 on Jones.  I'm guessing that a search conducted a bit earlier would have discovered a lot more heroin and a lot less money.

We learn something about affirmative defenses and sufficiency of the evidence in State v. DavisDavis is convicted of non-support, and claims on appeal that he "provided the support that was within the accused's ability and means," and the State failed to prove the contrary.  That's in the nature of an affirmative defense, though, and the proof regarding an affirmative defense isn't considered in weighing the sufficiency of the evidence; "proof supportive of an affirmative defense cannot detract from proof beyond a reasonable doubt that the accused had committed the requisite elements of the crime."  That evidence can be considered in a manifest weight challenge, but that argument founders on Davis' sloth:  according to him, how much time he spent working was inversely correlated to "how much drinking and drugging I did."

There aren't too many areas of law where the guiding precedent was handed down before I was born, but a motion for new trial on the basis of newly discovered evidence is one.  Back in 1947, the Supreme Court in State v. Petro laid down the requirements for a motion for new trial on the basis of newly-discovered evidence; the defendant must show that the evidence

(1) discloses a strong probability that it will change the result if a new trial is granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of due diligence have been discovered before the trial, (4) is material to the issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach or contradict the former evidence.

Enter Jubrell Mango, who was convicted of felonious assault for stabbing her daughter.  According to the daughter, she lived with Mango and Mango's sister at the time.  Mango filed a motion for new trial, attaching an affidavit from her sister, who said that she wasn't living in the house at the time of the incident.   In State v. Mango, the 8th affirms the denial of the motion, finding that the statement was merely cumulative to Mango's testimony, who'd testified that the sister did not live with Mango and her daughter.   "Thus, the affiant could not offer any information that differed from the evidence that had been presented at trial."  The court also concluded that the new evidence served only to impeach the daughter's credibility.

This is probably the correct result, but it's easy to read Petro too broadly here.  Obviously, any newly-discovered evidence is intended to "impeach or contradict" the evidence produced at trial; otherwise, there wouldn't be much point to it.  There's a nice 2nd District decision, State v. Lawrence, which explains that the "impeach or contradict" prong should be read in conjunction with the first requirement:  if the new evidence raises a strong probability of a different outcome, it shouldn't be discounted simply because it impeaches or contradicts the evidence at trial.

Finally, in State v. Bonds, the defendant complains that the trial judge abused his discretion in imposing the maximum eight-year sentence for a 2nd degree felony robbery, but "abuse of discretion" isn't how things work anymore; an appellate court can review a sentence only to determine whether it's contrary to law, or that the record "clearly and convincingly" does not support it.  What's really at play here is the "contrary to law" argument, which comes in two flavors:  the sentence is outside the statutory limits, or the judge didn't consider the purposes and principles of sentencing.  Good luck with that last one; as I've mentioned before, even if the judge says not a word about the sentencing statutes, the appellate court will presume that he considered him, and damned if I can figure out a way of overcoming that presumption barring the judge saying that the statutes are just so much chin music and he always gives out 8-year sentences on Thursdays.  Here, the judge not only mentioned the statutes, but was quite voluble in explaining why the crime was more serious and why Bonds was at a higher risk of recidivating.

To add insult to injury, Bonds had two more years left on post-release controls for a previous offense, and the judge tacked those on top of the eight years.  That's permitted under RC 2929.141:  if a person's on PRC at the time he commits a new felony, the judge can impose the greater of a year in prison or the time the person has left to go on PRC, and if he does, it has to run consecutive to the sentence for the new offense.  But keep in mind that under the statute the judge doesn't have to impose a prison sentence; he can terminate PRC and place the defendant on community control sanctions, along with CCS for the new offense.

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