What's Up in the 8th
If I were industrious, I'd do a year-in-review post on the 8th District's body of work, and if I were smart, I'd do a what-to-expect post, giving my prognostications of how the law might develop in the coming year. I'm neither, at least not this morning, so we'll stick with highlights from the 8th's decisions over the past fortnight, one which was not particularly good for defendants. Or, for that matter, for the court.
The 8th's reputation as the most 4th-Amendent friendly in the state takes a hit in State v. Wagner. On the basis of an anonymous call that someone inside a house is holding somebody else at gunpoint, the cops enter the home, and eventually find Wagner with a gun.
While there's an issue of whether the police had consent to enter the home, that can easily be disposed of on appeal: the trial court found the owner consented, and that's pretty much her call. Instead, the panel decides that the entry was justified under the emergency aid exception to the warrant requirement.
To be sure, there is an emergency aid exception, and the court cites numerous cases to that effect, but even a glance at the cases shows the facts far different from those in Wagner: the police heard screaming when they arrived, they saw a body through a window, and the like. The opinion cites the Supreme Court's decision last year in Navarette v. California for the proposition that whether an anonymous tip can furnish the basis for a search is determined from the totality of the circumstances, neglecting to note that Navarette involved a traffic stop, not a warrantless entry into the home, and providing not a clue as to what other circumstances might have provided a basis for entry: when the police arrived, they did a search of the perimeter of the home, and saw and heard nothing. And so we have an opinion from the largest appellate district of the state saying that if your neighbor gets pissed at you and phones in an anonymous call that you're doing something bad in your house, the police have the right to break down your door and enter your home.
Another questionable result, though fortunately far less sweeping, comes in State v. Girts. A trip to Habeas Land gets Girts at a trial for an aggravated murder way back in 1993, but he decides to cut his losses and takes a plea to involuntary manslaughter with an agreed 5 to 25-year sentence. A few months later, however, the 8th ruled that defendants sentenced after HB 86 took effect in 2011 had to be sentenced under that statute, even for crimes committed before the 1996 sentencing reforms.
So Girts has his sentence vacated, and gets resentenced to flat time of 3 to 11 years, right? Wrong; the panel decides that the plea has to be vacated because of the party's "mutual mistake of fact" as to the sentence he'd get. There's some validity to that; the State may very well have not agreed to the deal if they knew Girts would only face a maximum of 11 years in prison. Whether that's a "mistake of fact" justifying vacating the plea is another story. As the court notes, a mutual mistake of law is not grounds for rescission of the plea agreement, and a mistake of law occurs "when a person is truly acquainted with the existence or nonexistence of facts but is ignorant of or comes to an erroneous conclusion as to their legal effect." Knowing that a guy's killed someone, but coming to an erroneous legal conclusion as to what his sentence would be, seems to fit that bill. Instead, the plea is vacated and the case goes back to the trial court for trial on the original count of aggravated murder.
Mauricio Ceron continues his bid for the title of Unluckiest Man in Ohio. Last year, the court affirmed his conviction and 25-to-life sentence for child rape, despite finding that the trial judge had impermissibly allowed 404(B) evidence. As I noted in my discussion of the case, this was the first time I'd ever seen a court hold that improper admission of 404(B) evidence was harmless error.
Ceron took a shot at post-conviction relief on a claim of ineffective assistance of counsel, but the court rejected that last week, chalking up counsel's alleged deficiencies to "trial strategy and tactics." That certainly applies to some of the arguments Ceron raises, but not all. The most damaging evidence against Ceron, and the "substantial other evidence" that allowed the previous panel to find the admission of the 404(B) evidence harmless, was testimony that Ceron's DNA had been found in the 5-year-old girl's panties. Ceron attaches an affidavit from another DNA expert contending that the State's witness gave misleading testimony, and Ceron argues that his attorney should have sought that expert assistance so he could have effectively cross-examined the State's witness.
The panel concludes that the problems with the State's witness' testimony "could have been brought out on cross-examination, and should have been raised on appeal." But the fact that the attorney could have brought out these problems, but didn't, is the very basis for the claim of ineffective assistance of counsel. The reference to appeal is bewildering; the defense affidavit attacking the State's witness' testimony wasn't in the record for the appeal.
It gets worse for Ceron. In the original decision affirming his conviction, the panel applied the non-constitutional standard for harmless error. A year later, the Supreme Court held that an error in admission of 404(B) evidence had to be reviewed under the constitutional standard.
While Ceron was unlucky, the defendant in State v. Fowler is simply stupid. His conviction and sentence on four counts of importuning was upheld a couple weeks ago, the panel concluding his internet solicitations of someone he believed was an underage girl weren't allied because they were committed on four separate occasions. "He believed" is the key phrase in the preceding sentence; it was, of course, a detective. The same detective, it turned out, whom Fowler had chatted up in his earlier conviction for importuning. If that doesn't put Fowler on the list of Ten Dumbest Criminals, his including on his Facebook page that one of his interests was "having sex with teen girls" certainly does.