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What's Up in the 8th

In State v. Fulford, the judge gives the defendant consecutive sentences, but the State concedes on appeal that the judge didn't make the finding that consecutive sentences weren't disproportionate, and so it goes back to see whether the judge can do that.  Fulford was sentenced on four separate cases, and a glance at the online docket reveals he has about twenty priors dating back to 1983, so the smart money is on the judge figuring out a way to make that finding.  After all, all he has to do is read it off a card.

Maybe not.  

RC 2953.08(G)(2) allows an appellate court to reverse or modify consecutive sentences in only two instances:  if the judge fails to make the requiring findings (thus making the sentence "contrary to law"), of if the defendant can "clearly and convincingly" show that consecutive sentences aren't supported by the record.  A couple weeks ago in State v. Moore (discussed here) the court reversed consecutive sentences on the second basis.  (Actually, it didn't reverse; it modified the sentences to concurrent time.)  That was the first case I've seen doing that.

State v. Spencer is the second.  Spencer had been given three consecutive one-year sentences for failure to pay child support.  That sounds outlandish to begin with, and there was ample evidence in the record that the judge's findings did lack support.  For example, the judge noted that Spencer violated probation "every time" a court had previously imposed that sanction, but "every time" turned out to be "once."  (Spencer's two felony convictions were almost a quarter-century old.)  The court also finds fault with the judge's finding that consecutive sentences weren't disproportionate, noting the use of the conjunctive in the requirement that the judge must find that "consecutive sentences are not disproportionate to the seriousness of his conduct and the danger the offender poses to the public."  The judge found only the first part, and the panel concludes that's not enough, and for this crime, might never be:  "There are sound policy reasons for the criminal nonsupport statute, but protecting the public from danger is not one of them."

Spencer's necessarily very fact-specific, and the facts (and the crime) could make Spencer of limited precedential value.  But it does show that the judge can't just read the findings off a card.  (That's possibly what the judge did here; the case had been reversed once before because the judge didn't make the required findings at all.)  The court's willingness to go beyond that, for the second time in just a few weeks, is significant.

Paul Robinson finds himself at the wrong point in the time continuum.  Back in 2006, he pled no contest to attempted murder, felonious assault, kidnapping, and domestic violence.  He appealed the denial of his motion to withdraw the plea, but lost.  Then in April of 2014, he filed a motion for "resentencing on multiple punishments," claiming that the offenses were allied.  The trial judge denies the motion, and in State v. Robinson the panel affirms, finding that his claim was barred by res judicata, because they weren't raised in his appeal. 

Of course, back in 2006 State v. Rance was the controlling law on allied offenses, and the offenses wouldn't have merged.  Four years after that, in State v. Johnson, the Supreme Court changed the test to focus on the defendant's conduct, and although the court's opinion doesn't give the facts, it's fairly apparent that several, if not all, of the offenses would be deemed allied.  Barring Robinson's argument on res judicata grounds is probably wrong, because Robinson couldn't have that raised that issue back then, at least not with any measurable possibility of success.  But the court's decision is the correct one:  the courts have consistently (and with good reason) held that Johnson can't be applied retroactively.

Riddle me this, Batman.  Charles Steele is charged with a rape he supposedly committed on March 5, 1993.  At that time, the statute of limitations for rape is six years.  It got raised to twenty years on March 9, 1999, but the new limit didn't apply if the old limit had expired.  Steele is indicted for rape on March 6, 2013, a day after the statute of limitations would have expired even if the change applied to Steele.  So he's home free, right?

Wrong:  the statute of limitations is tolled during "any time when the accused purposely avoids prosecution."  Cuyahoga County issued a warrant for Steele's arrest on September 29, 1994, and Steele was arrested in Hamilton County 22 days later.  Those 22 days makes the difference, the panel decides, on both the extension of the limitation period and the indictment date. 

But that begs the question, what does a person have to do to "purposely" avoid prosecution?  A review of the case law (and the caveat that this is a blog, not a law review article, applies here) indicates it involves more than just not getting arrested when there's a warrant out for you.  First, you have to know that there's a warrant out for you, and second, you have to do something to evade detection.  (Changing your name, or moving to another state or a country that doesn't have an extradition treaty with the US, seem to be favorites.)  There's no discussion of this in the court's opinion; it simply concludes that the delay in Steele's apprehension falls within the "purposeful" rubric.

Steele has other axes to grind, though:  he was also tried at the same time for two other rapes, and he claims his attorneys were ineffective for not asking that the other charges be severed.  A big problem, though:  Steele demanded at virtually outset of the case that he be allowed to represent himself, and was allowed to do so.  (And with predictable results:  he was convicted on all counts.)  But self-representation precludes a claim of ineffective assistance of counsel, and Steele learns to his sorrow not only that one who represents himself has a fool for a lawyer, but he can't claim on appeal that his lawyer was a fool.

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