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What's Up in the 8th

You wouldn't need to look at the Ohio Supreme Court's latest stats to know that around 97% of criminal cases are resolved by pleas.  Last week, of the eight criminal decisions the 8th handed down, only one involved a trial, and that was to the bench.

That came in State v. Gaines, where the defendant, who had some mental issues - he walked up to an 84-year-old man and punched him for no reason, putting him in a coma for two months - claims that the judge should have inquired whether he was taking his medication before accepting the jury waiver.  Unfortunately, while the judge has to conduct a colloquy with a defendant before taking a plea, a jury waiver requires only that the defendant sign the waiver in open court.  Worse for Gaines, the judge did conduct a colloquy.

In fact, colloquies seem to be the theme of last week's decisions.  The defendant in State v. Scott is 61 years old, and pleads out to aggravated murder with a recommended 20-to-life sentence.  That's what the judge imposes, but Scott experiences buyer's remorse.  He appeals, claiming that the judge should have told him that that he was agreeing to sentence which, in light of his age, was no less severe than what he would've gotten at trial, and that the plea was invalid because he received no benefit from it.

The first argument goes nowhere.  The judge did an extensive Rule 11 colloquy, and the law is that a judge doesn't have to advise a defendant of the consequences of rejecting a plea offer.  That's not exactly what we're talking about here, but it's close enough:  it's tough to make an argument that Rule 11 requires the judge to probe the defendant on the reasoning behind his plea. 

The second argument fares no better.  Even assuming that Scott doesn't make it to 81, or that the parole board shuts him out if he does, the panel notes that "there are a number of reasons a defendant may choose to enter a guilty plea rather than go to trial, besides a possible reduction in sentence," then waxes philosophical:  among those reasons are "the significant moral value a defendant may place on making peace with his maker, his family, the victim, the victim's family, and the community, which may be realized by entering a guilty plea."

According to the prosecutor, victim, and investigating detective, Donald Reeves will have his work cut out for him in making peace with his maker and the community.  Reeves, who has HIV, is accused of keeping a woman who was a heroin addict locked in his house, forcing her to have sex with him, and a host of other crimes, resulting in a 20-count indictment.  The State drops the rape, kidnapping, and most of the other charges, in return for a plea to felonious assault and three third-degree felonies.  The detective tells the judge at sentencing that "this is one of the worst crimes that I have seen against a human being," and the judge gives Reeves maximum consecutive sentences totaling 17 years.

Reeves contends on appeal that the judge considered the crimes he'd been charged with, not the crimes he pled to, but in State v. Reeves the panel concludes there's really nothing wrong with that.  Sure, there's some law to the effect that a judge can't impose a sentence based upon his belief that the defendant committed a more serious crime, but that's mostly applicable to the situation where the defendant is convicted after trial.  On a plea, the judge can consider the actual facts of what occurred, and the plea bargained offense "will simply set a ceiling on what the judge can impose."  The defendant gets the benefit of his bargain, but that doesn't mean the judge has to believe that the plea-bargained offenses are all the defendant actually did.

State v. Lawson, a case I handled, provided the only winner for the week, and the moral of this story is read the fine print.  Lawson pled guilty to various sex offenses in 2004, and was designated a sexual predator.  That led to this case, which charged him with failure to provide notice of change of address.  Lawson pleads to a 4th degree felony, but the judge decides, not without justification, that Lawson's a bad guy, and so maxes him out. 

It gets worse.  I mentioned last week that where the defendant commits a crime while out on post-release controls, RC 2929.141 allows the judge to terminate PRC, and either place the defendant on community control sanctions (good result) or sentence him to the greater of one year of whatever time he's got left on PRC, consecutive to the sentence imposed in the present case (bad result).  A very bad result in Lawson's case:  he's got almost four years left on PRC.

But I checked the journal entry on the 2004 case, and there's a problem:  although the judge told Scott of the consequences of violating PRC, she didn't include that in the journal entry.  The law in the 8th is that you have to put it in the journal entry.  So the imposition of PRC is invalid, it's too late to correct that because Lawson finished serving his prison sentence, so the imposition of the 1,404 days of PRC goes away. 

I had sent Lawson a copy of my brief, and he sent me a letter back saying that my "brief and table of authorities has been researched" by the boys in the law library and they had pronounced it "sound."

Mom was so proud.

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