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What's Up in the 8th

Not a good week for common pleas judges up here by the Lakeside.  Just shy of a dozen decisions handed down by the 8th, and just shy of half of them go back to the trial court, with no fewer than eight outright reversals.  That includes civil cases, and I'm guessing you haven't been lying awake nights wondering whether the court was going to uphold Royal Property Investment Group's right to have the trial court enforce its settlement against Bangs Hair Salon.  (Spoiler alert:  it did.)  But if you practice criminal law, there are a number of decisions last week you will want to know about, starting with State v. Jackson.

Good news.  You've come to the right place.

I've written before that with the surge of all the "cold case" rapes, there's a question of what sentence should be imposed on someone who's convicted of a crime he committed before 1996.  That was the year the big sentencing reforms were passed, going from indeterminate to determinate sentences.  Back then, someone convicted of a first degree felony got sentenced to a minimum term of, say, six years, and a maximum term of 25 years.  In 1996, the Ohio legislature SB 2, making sentences determinate:  someone convicted of rape now got a fixed sentence of between three and ten years. 

The law contained a provision stating that the new sentences didn't apply to someone who committed the crime before the effective date of the law.  In 2011, though, HB 86 was passed, with the proviso that the sentencing provisions did apply to crimes committed before the effective date.  In State v. Jackson, the court holds that HB 86 trumps SB 2:  for a crime committed in, say, 1993, instead of 6 to 25, a defendant gets a flat sentence between 3 and 11 years.  Given that the parole board has pretty much stopped paroling people -- 10 to 25 means you'd do 25 -- that's huge.

In re D.H. is a juvenile case, but might have application beyond that.  D.H., then 15 years old, pled to involuntary manslaughter and aggravated robbery with a gun, and got a "blended sentence":  incarceration up to age 21 in a youth services camp, and an adult sentence of six years, stayed on the condition that he successfully complete the juvenile portion of the sentence.  On the day before D.H.'s 21st birthday, the State filed a motion to invoke the adult portion, and the trial court heard it on the same day, despite the protestation of D.H.'s attorney that this didn't give her time to prepare.  The court sloughed that aside, took evidence, and invoked the adult portion, but the court reverses, holding that the short time before the appointment of a lawyer for D.H. and the hearing deprived him of his right to effective assistance of counsel. 

The interesting thing about D.H. is the court's holding that this was a per se deprivation:

The likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.

What about a lawyer who's pulled into a probation violation five minutes before it starts?  Or a resentencing?  Even if the lawyer doesn't object, that poses some possibilities for an aggrieved defendant.

In State v. Thomas, the panel finds the record doesn't support Thomas' claim that the judge told him he was only facing five years on the three counts of sexual imposition he'd just pled to.  That's iffy.  True, the judge did indicate during the plea colloquy that "each of these offenses" is punishable by one to five years, but then we come to this:

Thomas: The sentencing guidelines for this right now, for taking this plea, it's a chance to get the max?

Court: Is there a chance that you could get the maximum?

Thomas: Yes.

Court: What do you mean by that, five years?

Thomas: Five years. Five years.

Court: Certainly that is a potential penalty, because the incarceration, period of incarceration, the potential penalties are one to five years. So certainly, anything from one up to five years you can get.

There's plenty of case law holding that a judge doesn't have to inform a defendant of the possibility of consecutive sentences, and you have to wonder why:  as Thomas shows, the maximum time a defendant is facing is the single most important factor in his calculation of whether to plead.  And in Thomas' case, when a judge tells you "anything from one up to five years you can get," I don't think it's unreasonable for Thomas to have believed that five years was the most he could get.

Cleveland v. Amoroso comes to a questionable result, too.  Amoroso claims his conviction for domestic violence should be reversed because the police officer was allowed to testify what the victim told him at the scene, but the court finds this was permissible because it was a prior consistent statement "offered to rebut an express or implied charge of recent fabrication, improper influence, or motive against the declarant."  But to be admissible on that basis, the statement must have been made before the claimed motive for fabrication arose.  For example, if a defendant claims the victim made up the abuse story to help her in child custody claim, a prior statement of the victim made before the custody issue arose is admissible.  Here, the victim had a motive to lie at the outset. 

But the big case is State v. Moore, where the judges take another look at a decision they handed down eight months ago, and come up with a completely different result.  We'll talk about that one tomorrow.

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