What's Up in the 8th
Only five criminal decisions out of the 8th District this week, two of them on misdemeanors. One, Cleveland v. Rini, demonstrates that some Cleveland Municipal Court prosecutors and judges haven't gotten the memo on Crawford; why anyone would think that having as the only witness at trial the cop who wrote the ticket, based not on his own observations but on what another cop told him, would pass constitutional muster remains a mystery.
And you'd think after the raft of baby-left-in-car stories this summer, figuring out whether that constitutes child endangering - assuming that baby makes it out alive - would be a simple matter. Turns out it's not, as the 8th District's decision in Cuyahoga Heights v. Majors shows. The decision discusses four cases in which children were left in cars, and by a 2-1 vote decides that the Majors' act of leaving their 10-month-old baby sitting in an unlocked car on the street in front of their house falls tips the Convict-O-Meter into the red. It probably didn't help that it took the Majors several minutes to answer the door when the cops showed up, and that they were apparently using their "alone time" for drug-related activities.
State v. Dunne presents an interesting double jeopardy issue. Dunne pled guilty to escape for not showing up for meetings with his parole officer. The judge announced his intention to give Dunne probation, but Dunne once again spurned Woody Allen's admonition and didn't show up for sentencing. So instead, the judge gave him twelve months on the escape charge.
And a little more. When a defendant has committed a felony while on post-release controls, RC 2929.141 gives the judge the power to terminate PRC, and do one of two things: impose a community control sanction, or give the defendant an additional consecutive prison term equal to the time he had remaining on PRC, or a year if he had less than that remaining. The judge did exactly that, and instead of probation, Dunne wound up with 12 months on the escape charge and another 18 for the PRC violation.
Dunne claims that giving him two sentences for essentially the same crime violates the Double Jeopardy Clause, but the court rejects that, relying on the Supreme Court's decision in State v. Martello. Martello, though, involved a sanction imposed by the Adult Parole Authority for the violation, and relied largely on the idea that such a sanction was a "civil penalty" which didn't trigger a Double Jeopardy analysis. That seems questionable, and that rationale seems even harder to swallow when you have a judge imposing an 18-month prison sentence for the violation. Still, there's ample case law from the Federal courts holding that a penalty for violation of supervised release is a penalty for the original crime, not the new one, and it's hard to argue that having the judge impose that penalty is any different from having the APA impose it.
I was a little concerned when I read the court's summary of State v. Hale, which involves the prosecution's failure to disclose exculpatory evidence. That harkened back to a couple of decades ago, when the Cuyahoga County Prosecutor's Office became notorious for doing just that. The good news is that it wasn't the prosecutor's fault; the coroner's office lost a trace evidence report, which wasn't discovered by the prosecution until the day of trial, and was promptly disclosed to the defense.
The better news is that this results in Hale getting his guilty plea vacated. He'd been charged with murder, and pled out to involuntary manslaughter. The trace evidence report showed that the victim's hands tested positive for gunshot residue, bolstering Hale's claim of self-defense. It wasn't disclosed, though, until the trial of Hale's co-defendant, by which time Hale had pled. The co-defendant was acquitted.
Hale filed a motion to vacate his plea, arguing that his defense attorney urged him to plead guilty because of the lack of evidence supporting the self-defense claim. The judge granted it, and the State appeals, making numerous arguments, some better than others. But the granting of a motion to vacate, just like the denial the motion, is reviewed for abuse of discretion, and the State finds out that's a two-way street, and if you're the one appealing, you can get flattened going in either direction.