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What's Up in the 8th

Let's say you're a probation officer, and you've just finished your first meeting with a fairly attractive defendant who's been assigned to you.  As she's walking to the parking lot, you text her, "you look really sexy in that dress."

What are the chances of that ending well?

Not good, as Michael Maresh learned.  As State v. Maresh relates, the relationship followed the modern-day courtship ritual:  Maresh began with suggestive texts, then upped the ante by sending her pictures of his genitalia, apparently subscribing to the notion that not every poem is written with the pen.

But RC 2907.03 was.  It defines the crime of sexual battery, which in some cases is a lesser included of offense of rape, but in others prohibits various sexual relationships:  stepparents and stepchildren, teachers with students, clerics with minor parishioners, mental health professionals with their patients.  The provision Maresh ran afoul of was the one making it illegal to "engage in sexual conduct with another when the other person is in custody of law and the offender has supervisory or disciplinary authority over the other person." 

Maresh argues that since the statute doesn't define a mens rea, it defaults to recklessness, and the judge should have instructed the jury on that.  Sexual battery, though, at least in this context and those based on the relationship between the parties, is a strict liability offense.  There's evidence that the victim wasn't exactly an unwilling participant in the liaisons; she "accidentally" deleted her text messages to Maresh.  But it doesn't matter.

Sticking to the poetry motif, if Elizabeth Barrett Browning had written the opinion in State v. Gibson, it would have begun, "How can the speedy trial time be tolled/let me count the ways."  It took a whopping 478 days to bring Gibson to trial, every minute of which he spent in jail.  Again, it doesn't matter; according to the panel's calculations, this still left him 27 days short of the expiration of the speedy trial time.

Somewhat curious is the panel's conclusion that Gibson's pro se motion to dismiss for speedy trial can't be considered because he was represented by counsel, and thus the filing was a nullity, while the pro se motions he filed to disqualify his counsel and to get copies of his discovery can be considered, and toll the time.  This highlights the absurdity of the law on speedy trial.  As I pointed out in one of my earliest posts on this blog, the law provides that time is tolled for "any period of delay necessitated" by a motion or action of the defendant, but the Supreme Court has read "necessitated" out of the statute; basically, any motion by the defense is deemed to delay the trial until the judge rules on it. 

That's nonsense, of course; Gibson's motion for bond reduction didn't delay the trial a day.  His motion to disqualify counsel certainly didn't delay the trial; the judge never even ruled on it.  That's not to fault the panel; that's the law.  But it goes a long way in explaining why of the 81,247 criminal cases terminated in 2012, the last year for which figures are available, a total of 53 were dismissed for speedy trial violations.

State v. Lovano presents another attempt to vacate a plea because of the failure to advise a non-citizen of the consequences of the plea on his immigration status.  Lovano, a Canadian citizen, pled guilty to theft in 1993, and then was convicted of aggravated assault in 2012.  Two convictions of a crime of moral turpitude get you deported, so Lovano seeks to vacate the 1993 plea.  There's no transcript of the plea hearing, but that puts Lovano in the driver's seat:  the statute specifies that the absence of a record creates a presumption that the judge didn't give the advisement on immigration consequences, and that mandates that the plea be vacated.

Well, not quite; in State v. Francis, the Supreme Court held that timeliness of the motion could be considered.  The panel seizes on the fact that Lovano received notice a month after his 1993 plea that he might be deported, and finds his failure to do anything about that for 19 years to be fatal to his claim.

The problem with that argument is that Lovano was granted a waiver shortly after he was notified of possible deportation in 1993.  (The ability of an administrative judge to grant a waiver was eliminated in 1996.)  The panel finds that just because Lovano "thought the deportation waiver eliminated the case for immigration purposes is not a valid excuse for the 19-year delay," but it's not clear why it shouldn't be:  the deportation waiver did eliminate the possibility for deportation, and any impetus for Lovano to seek to have the plea vacated.

That's not to say the decision is wrong; there was abundant prejudice to the state in having to relitigate a 20-year-old theft case.  Lovano, though, along with its decision earlier this year in State v. Huang (discussed here), gives clear indication that the 8th District is taking a tougher stance on immigration cases.

It's not taking a tougher stance on ineffective assistance of counsel claims, as Cleveland v. Graham indicates.  Graham was represented by the public defender's office; one showed up at his pretrial, another at his trial, the latter indicating that he didn't know the case had been set for trial.  Too bad, so sad, the judge refuses a continuance, and the case gets tried.  

Graham claims ineffective assistance of counsel for lack of preparation, and the failure to subpoena witnesses.  The panel decides the lawyer seemed to do an effective job, and it can't determine merits of the argument about subpoenaing the witnesses because there was no proffer of what they would've said.  The discerning reader might suggest that the failure to make a proffer could be deemed ineffective assistance as well, but no matter, Graham gets run over by the Overwhelming Evidence bus.


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