What's Up in the 8th
For the first time in a month, we have several reversals in the 8th District.
One of them was an affirmance.
And yes, I know that doesn't make any sense.
Precisely what a judge needs to do in order to validly impose post-release controls remains somewhat of a mystery, and the 8th addresses it in a couple of decisions. First up is State v. Pyne, where the State appeals from the trial court's dismissal of Pyne's indictment for escape, which alleged he'd failed to show up for meetings with his parole office after he got out of prison. Of course, if PRC wasn't properly imposed in the underlying case, PRC wasn't valid, and Pyne couldn't be prosecuted for violating it.
That's what he argued, and the panel agrees. One of the requirements for validly imposing PRC is that the court notify the defendant of the consequences of a violation. The journal entry didn't include that, but the State argued that it didn't matter, because the judge orally advised him of the consequences. It does matter, says Pyne: the judge has to give the notification in both.
The reversal masquerading as an affirmance comes in State v. Mace. After Mace finished serving his ten year sentence for some sex offenses, he filed a motion to terminate post-release control. At issue was the language in the journal entry, "Post release control is part of this prison sentence for the maximum period allowed for the above felony(s) under R.C. 2967.28." There have been cases where the 8th has found this language sufficient. There have been cases where the 8th has found that it's not, and that the judge has to specify the length of the PRC period, and whether it's mandatory or discretionary. Mace comes down on the "not" side, but somehow concludes, "the trial court's judgment is affirmed, but the case is remanded so that the trial court can put forth an entry stating that Mace is not subject to postrelease control." If it's me, and I'm appealing the denial of a motion to terminate PRC, and the panel sends it back with an instruction telling the judge to terminate PRC, you can call it a reversal, you can call it an affirmance, you can call it Zelda for all I care, that one's going in the W column.
One that went into the L column for me was State v. Smith. With the increasing number of "cold cases," pre-indictment delay has become a key issue, and it was for Smith, defending against a 13-year-old rape case. The victim claimed at trial that Smith raped her on a porch while two men held her down, but hadn't mentioned the two men to police who made report, or the nurse who examined her at the hospital, where her mother had taken her.
To establish pre-indictment delay, the defendant has to show "actual prejudice." "I might have found witnesses" and "I don't remember what happened back then" doesn't cut it. I pointed to three things: the cop who took the original report, the mother, and the two men were all gone. That doesn't cut it, either, it turns out.
I don't have much quibble with the result. The court does a good job pointing out that the discrepancy with the "two men" version had been amply mined by defense counsel at trial. DNA connected Smith to the woman, so the only defense was consent, and the idea that the mother would have come in and testified, "you know, now that you mention it, she didn't look that raped to me," much less that the two men would have put themselves in the middle of this, is a stretch. Still, Smith and other decisions on this issue seem to be moving toward the view that "actual prejudice" means the defendant has to provide unequivocal exculpatory evidence which would have exonerated him, and that's going to be a very difficult mountain to climb.
One of the changes wrought by HB 86 was to add new language to RC 2929.11(A), which sets forth the "overriding purposes of felony sentencing:
The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources.
The emphasized portion used to be in 2929.13, where it was pretty much a dead letter, and it hasn't fared any better since the move. State v. Wells pounds another nail into the coffin.
Wells got the maximum sentence after his rape conviction, and the judge ran it consecutive to a one-year sentence on another case. The panel dismisses Wells' claim that a sentence of this length "places an unnecessary drain on state or government resources," responding tartly, "Appellant does not offer any evidence that the state cannot bear the cost of housing appellant for 12 years as opposed to 10 or some lesser sentence." I guess that means the only way you win that argument is if you can show that the State will run out of money by year eight or whatever.
The case still goes back because trial court missed one of the requirements for consecutive sentences: "While it is clear to this panel that the harm caused to the victim in this case is great and would be demeaned by a lesser sentence, the trial court needs to find this." I'm guessing the trial court will do just that on the remand.