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What's Up in the 8th

I found a new way to win appeals in the 8th District:  have an incompetent (ex) bailiff.  I "saved" the defendant in State v. Francys nine years off his prison sentence because the bailiff had written up the journal entry to impose a twelve-year sentence on a 4th degree felony, instead of the twelve months the judge had imposed at the sentencing hearing.

Unfortunately, that seems to be about the only way to win an appeal in the 8th any more.

Not that lawyers didn't try.   The defendant in State v. Koballa, according to the opinion, gets "highly intoxicated," which might be an understatement:  his sister calls 911 when he collapses in the hallway.  He regains semi-consciousness when the EMS squad comes, and punches a firefighter in the face as they're trying to put him in the "stair chair."  An appeal on the basis that he was too drunk to form the intent to commit the crime is foreclosed by RC 2901.21(C), which provides that voluntary intoxication doesn't negate the mens rea for the crime, so the attorney instead turns to actus reus:  the same statute provides that a defendant can't be convicted for involuntary acts, such as "reflexes, convulsions, body movements during unconsciousness or sleep, and body movements that are not otherwise a product of the actor's volition."  Sounds like me at the bar exam.  Unfortunately, there was evidence both ways on that issue, the jury was properly instructed, so that's as far as that goes.

So, you're appointed to handle an appeal of a guy who pled guilty to six counts of raping three children, and the judge gives him five years on each count, running them consecutive and making the statutory findings required to do that.  What do you argue?  The only thing left in State v. Norris is that the record "clearly and convincingly" doesn't support one of the findings, in this case that the harm was so great or unusual that a single sentence wouldn't adequately protect the public or punish the offender.  From the way the opinion reads, it sounds like the argument was that no testimony was presented as to any harm to the victims, but the court says just because victims and victims' representatives do that in a lot of cases doesn't mean they have to.

The appellate attorney in State v. Trotter is presented with the task of arguing the fourth appeal in the case.  Trotter was charged with rape and child pornography in 2009, but after six days of a bench trial, the judge granted a motion to suppress evidence.  The State appealed and won, and at the retrial, the judge convicts Trotter and sentences him to 60 years.  In Son of State v. Trotter, court reversed in part, finding that various offenses should have merged into two.  On the remand, the judge gives Trotter 20 years, but in Trotter III:  The Saga Continues, the appeals court reverses again, this time because the judge failed to make the necessary findings for consecutive sentences.  So the judge again imposes a 20-year sentence, and in Trotter IV:  You're Back Again?, the court finally brings the curtain down.  Trotter claims judicial vindictiveness this time around, mainly because the trial judge went ballistic when the defense lawyer at sentencing said they wouldn't appeal if the judge gave concurrent time.  But the judge gave him 20 years before, so it's hard to argue she's being vindictive by giving him 20 years again. 

Criminal case sequels seem to be the rule this week, and prove no better than their Hollywood counterparts.  State v. Cowan, State v. Davis, and State v. Williams all involve appeals from denials of post-conviction relief, and all meet with the anticipated result.  The latter is the only one which presents even a vaguely interesting issue.  Williams was charged with capital murder in 2009, and worked out a deal to involuntary manslaughter, kidnapping, and aggravated robbery, all with three-year gun specs.  The State also offered a 20-year agreed sentence, but Williams spurned that on advice of his attorneys, who told him the judge would probably go lower.  The judge didn't:  he imposed a 30-year sentence.  Williams filed a petition for post-conviction relief, and tries to get around the fact that it's untimely by arguing that the Supreme Court recognized a new constitutional right - the effective assistance of counsel in plea-bargaining - two years ago in Lafler v. Cooper.  Two problems:  every court that's considered the issue has held that Lafler didn't establish a new right, but just recognized an existing one, and this is the same issue Williams raised in his appeal, so it's res judicata.  Williams also argues that court was without subject matter jurisdiction to hear the case because he was unlawfully arrested and subjected to an illegal search, but that one doesn't even pass the giggle test. 

Finally, the 8th District is getting better about the flight instruction.  It used to be that the instruction could be given anytime the defendant didn't have the good grace to hang around until the police arrived at the scene, but there are several more recent cases which hold that for the instruction to be given "it must be clear that the defendant took affirmative steps to avoid detection and apprehension beyond simply not remaining at the scene of the crime."  The panel in State v. Jackson holds the same way, but decides that, as in the other cases, the error is harmless.  Jackson also argues that his sentence of life without parole for aggravated murder is error because judge didn't take into account his mental illness, but here we learn something:  RC 2953.08(D)(3) provides that a sentence (other than death) for aggravated murder is not subject to appellate review.


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