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What's Up in the 8th

Ah, for those halcyon days when just about every week would bring news that I'd chalked up another W in an appeal.  True, those days existed largely in my fevered imagination, but not entirely.  Running a search for "COUNSEL(Bensing)" through my BFF Lexis, the modern equivalent of asking the mirror who's the fairest of them all, shows that through September, I'd been batting .500 in sixteen criminal appeals.  Not too shabby.

But that was then.  Two weeks ago I lost State v. Spence, a case on consecutive sentencing, because the 8th decided that the Supreme Court's decision in State v. Bonnell had ushered in a kinder, gentler - at least to trial judges - regimen for the findings requirement for consecutive sentences.  And last week comes State v. McDuffie, where I thought I had a winner because the trial judge had thoroughly mangled the instructions on defense of others, commingling it with self-defense and leaving half of it off.  True that, says the court - and I'm quoting from the opinion here - but decides that it doesn't matter because the defendant wasn't entitled to an instruction on the subject.

But it's not all about me; there wasn't much joy in Mudville generally, as the only win for defendants comes in State v. Kosson.  Kosson was sentenced in 2007 and given consecutive time, but the sentence was subsequently vacated because the judge hadn't told Kosson of his appellate rights.  That was corrected in a resentencing earlier this year, with the judge simply adopting the previous sentence.  But back in 2007, there was no requirement that judges make findings to impose consecutive sentences, so the judge didn't.  That requirement, though, was reinstated in 2011 with the passage of HB 86, and that applies to any sentencing - or resentencing - conducted after that.

And some of the losses are tough ones, such as In re A.G.  A.G., fifteen years old at the time, pulls a gun and tries to rob somebody, only to have his plan foiled by the victim running away, which suggests that A.G.'s "plan" wasn't quite fully formed.  He admits to aggravated robbery and kidnapping with a gun specification, and gets one year at DYS for each, run consecutively.  Hold it, you say:  certainly the aggravated robbery and the kidnapping would merge.  And they would, if A.G. was an adult.  But the case law in Ohio is that RC 2941.25, the allied offense statute, doesn't apply to juveniles. 

That case law dates back to a 1982 Franklin County case, which is redolent of the idea that juvenile court exists to protect and rehabilitate the juvenile, a notion that is so fifteen minutes ago.  The Supreme Court has never addressed the issue, but in the absence of a split in the lower courts, and the in light of the fact that the legislature has never amended the law to extend it to juveniles, a change seems unlikely.

That's not necessarily to bemoan A.G.'s fate.  Sure, if he'd been bound over as an adult, as the State wanted, the two offenses would have merged.  But then he would have been facing a minimum of six years in prison.

State v. Whitsett provides a bit of déjà vu.  Whitsett is convicted of trafficking in marijuana, based on the police finding 17 small bags of the demon weed on him, plus $43 in small bills.  He claims that's insufficient to prove trafficking, because he didn't have drug packaging materials, weapons, large sums of money, or a cell phone.  That might have been a winning argument had the 8th not affirmed a conviction of trafficking eight years ago in a case involving 17 small bags of marijuana and $32, and no drug packaging materials, weapons, large sums of money, or a cell phone.

Lawyers here are nothing if not creative.  In State v. Frazier, my buddy Jeff Gamso, whose blog is must reading, handles an appeal from a plea in which even he has to concede that trial judge gave "textbook adherence to the respective constitutional and nonconstitutional requirements of Crim.R. 11." What to do?  Argue that the plea is invalid because the judge didn't adequately explain the risks and benefits of pleading guilty versus trying the case.  He also has to concede that there's not a single case in Ohio saying that the judge has to engage in a "cost-benefit" analysis with a defendant before accepting a plea.  There still isn't; the court affirms.  And, with all due credit to Jeff, rightly so.  The decision to take a plea or go to trial is undoubtedly the most important one a criminal defendant makes, and he should certainly be made aware of all the risks and rewards of that decision.  But that's the lawyer's job, not the judge's.

Speaking of judges, we also learn from State v. Scott that the judges here can dispense with stuffy legal language when necessary.  The only real issue in the case is whether the judge should have referred Scott for a competency evaluation, but that issue wasn't raised until the day of trial, and there seems to have been some basis for the judge's conclusion that Scott's problem wasn't mental, it was attitudinal.  The opinion quotes extensively from the colloquy between the judge and the defendant, where we find the judge telling Scott this:  "And I'm just saying, hey, Clinton, look, you seem very adamant and steadfast in your innocence, and I'm cool with that."  And so Scott went to trial, and presumably was down with the resultant ten-year prison sentence.


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