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What's Up in the 8th

The bodies are stacking up like cordwood in Cleveland; the seven cases decided by the 8th District last week involved two shootings and an attempted strangling.  A Batson case gets fine-tuned, an interesting decision on expungement, and we take a behind-the-scenes look at how the judges on the court craft their opinions.

Okay, I lied about the last one.  Maybe they spin the Wheel of Justice and it comes up Affirmed, Reversed, Vacated, or whatever.  (My case is that "Affirmed" takes up 85% of the wheel.)  Maybe not.  I'll let you know when they tell me.

The three murder cases, two actual and one would-be, are of little consequence.  The court rejects the manifest weight challenge and the defendant's 18-to-life sentence in State v. Matthews, but the good news -- I'm not so sure Matthews will look at it that way -- is that he doesn't have to pay for the victim's funeral:  the panel decides that the mother's statement that her daughter arranged the funeral and that it cost $4,095 was not sufficient to show the victim's losses with "reasonable certainty" as required for restitution.  The court had taken a stronger stance against the flight instruction last year in State v. Johnson, holding that more than "mere departure from the scene" was required to warrant the instruction.  We learn in State v. Williams that mere departure might be enough, at least when nobody else in the crowd of about 50 people at the scene departs.  And the defendant in State v. Westfall finds it's a tough sell to claim that you didn't have the intent to kill because you stopped choking the victim when she lost consciousness.

Back in October, I wrote about the 8th's decision in State v. Strong, which represented the rare reversal for a Batson violation.  The prosecutor in that case had used a peremptory on a black juror, and when challenged, gave as his reason that the juror had "a thousand-yard stare" -- "I have concerns he will be able to pay attention."  Although the judge indicated she hadn't observed anything along those lines, and the prosecutor hadn't even questioned the juror, she excused him.  The 8th reversed. 

Last week's decision was on reconsideration.  Usually, when a court vacates a previous opinion and issues a new one on reconsideration, you have to do some digging to find out what changed.  Not here:  the State's motion was prompted by the fact that the juror at issue was an alternate, and the person who replaced him was never called to deliberate.  No matter, it turns out; even discrimination against an alternate so taints the process that it requires reversal.

State v. Davis involves a reversal and remand for resentencing because the judge didn't make the findings necessary to impose consecutive sentences.  The interesting aspect of the case is the partial dissent by Judge Stewart, which argues that when the judge fails to make the findings, the sentence automatically defaults to concurrent sentences, with no remand necessary.  She cites language in Bonnell which supports that view, although I'm not sure it's as ironclad as all that.  Still, if you're appealing a consecutive sentence, this is an issue you need to raise. 

It used to be that you couldn't have any other offenses to get a conviction expunged, but a few years ago, the legislature expanded expungement to include those who had one felony and one misdemeanor conviction, or two misdemeanor convictions, as long as they weren't for the same offense.  J.S. seeks to have his felony conviction expunged, but the State argues that he has three misdemeanors:  possession of marijuana, possession of drug paraphernalia (notice a theme emerging?), and disorderly conduct.  The marijuana charge was a minor misdemeanor, and that doesn't count, and neither would the disorderly conduct if he'd been convicted under the state ordinance.  But he was convicted under the Cleveland Heights ordinance, which makes it a fourth degree misdemeanor.

The ability of a city to elevate the degree of a misdemeanor in its local ordinances has been approved by the Supreme Court, so it looks like J.S. is out of luck, and sure enough, the court vacates the judge's grant of expungement.  But not for good.  J.S.'s attorney, my good buddy John Martin of the county PD's office, makes a clever argument:  it's a violation of equal protection, because it allows some people to have their record expunged, and others not, based solely upon whether they were convicted under the state ordinance or under a municipal ordinance with an increased penalty.  The panel remands it back to the trial judge for determination of whether there's a rational basis for that distinction.  Considering that the trial judge granted the motion, I don't think we've heard the last of J.S.

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