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What's Up in the 8th

Christopher Dowen caught a break from the jury.  He'd gone over to Prentice Deitrich-Smith's house to resolve a dispute about a woman, and according to several witnesses, Dowen was last seen chasing Dietrich-Smith.  That was shortly before the latter was found lying in the street, stabbed in the stomach.  And shortly after that, Dowen gave a friend a pen-knife, and the friend hid it under the seat of Dowen's car.  Nonetheless, the jury acquitted him of the murder charge, convicting him only of reckless homicide and tampering with evidence.

The trial judge and the 8th District didn't show him nearly as much love.

The judge hit him with maximum three-year sentences on each offense, and ran them consecutively.  And last week the 8th District affirmed in a split decision.  The issue on appeal, of course, is the sentence, and the panel relies on the district's prior case law to uphold it.  The proportionality finding required for consecutive sentences "relates solely to the offender's conduct and not to the conduct of any others -- it does not require the court to compare the offender's conduct to that of others."

How does that work?  In determining whether a sentence is disproportionate, don't you have to compare it to someone else's sentence?  The court did just that two months ago in State v. Moore (discussed here), deciding that Moore's 27-year sentence for robbery was excessive given that the guy who came up with the plot and had the gun got only nine. 

The court's take on consistency of sentencing under RC 2929.11(B) is even shakier:  the opinion states that consistency "is not achieved from a case-by-case comparison, but rather, it is gained through the trial court's proper application of the statutory sentencing guidelines."  This isn't a novel view; in fact, it's been repeated in various 8th District decisions for years.  Considering that there is absolutely no appellate review of whether a trial court "properly" applied the sentencing guidelines, there's nothing to prevent one judge from routinely handing out minimum sentences for a particular crime while another routinely imposes maximum sentences, which is what the consistency requirement was designed to prevent.

Again, though, it's hard to get worked up about this.  It just serves as a reminder that, with rare exceptions like Moore, the appellate courts serve no purpose when it comes to sentencing.  I was going to rewrite that to also include consecutive sentencing as an exception, but any more the only purpose that serves is to prevent a trial court from imposing consecutive sentences without saying anything about the required findings, in which case the appeals court sends it back with a post-it note explaining just what the judge has to read out of the statute back next time around.

The court's analysis in State v. Fonseca has some problems, too.  Fonseca was granted intervention in lieu of conviction with a rather onerous set of requirements, but she failed to meet some of the less onerous ones, like just showing up for meetings with her probation officer.  The judge held a hearing, found that Fonseca had violated the terms of ILC, terminated her from that program, and found her guilty of drug possession.  (In order to go into the program, you need to enter a guilty plea to the charge.  The case is held in abeyance, and if you complete the program, the case is dismissed, but if you don't, the court accepts the guilty plea and you've now got a conviction.)

Fonseca claims that her due process rights were violated at the hearing, because the judge didn't have a preliminary hearing before the probation violation hearing, and the hearing itself didn't meet minimum due process standards.  The US Supreme Court has held that a person charged with a probation violation is entitled to due process at a hearing.  The cases require that the court actually hold two hearings:  a "preliminary" one to determine whether there's probable cause to believe a violation has occurred, and the violation hearing itself. 

Fonseca easily dispenses with the first argument about the preliminary hearing, justifiably relying on case law which holds that intervention in lieu is not like probation.  We never learn what due process violations the judge may have committed at the actual hearing, though, and that's the problem.  The panel relies on a simple syllogism:  the Supreme Court cases requires due process at a probation violation hearing, intervention in lieu is not the same as probation, therefore due process is not required at a violation hearing for intervention in lieu.  This is a logical fallacy:  Andy is a man, Andy is not Dennis, therefore Dennis is not a man.  The ILC statute requires a hearing for it to be revoked; why shouldn't due process apply to that hearing, especially considering that a violation results in a criminal conviction?

The only other noteworthy case last week was State v. Perry, where Perry tries to back out of his plea to murder.  His claims go nowhere, because they amount to little more than buyer's remorse, and the courts have consistently held that's not enough.  

But there's another issue in Perry.  Perry made an oral request to withdraw his plea at sentencing, and claims on appeal that his lawyers were ineffective for not filing a motion for him.  This should be an easy one, too; to win an ineffectiveness claim, Perry would have to show prejudice:  that the outcome would've been different if his attorney had filed a written motion.  Considering that the court's already ruled that the judge didn't abuse his discretion denying the motion to withdraw, there's no real likelihood that the judge's ruling would've been different if the lawyers filed a written motion.

The court goes farther, though, again relying on prior case law, holds that the lawyers weren't required to file a motion that they didn't feel was in their client's best interest.  I was a little uncomfortable with that; a guardian ad litem can express an opinion contrary to his client if he feels it's in the client's best interest, but a criminal defense attorney generally cannot.  But we're not talking about taking a contrary position, we're talking about taking no position.  A client has the right to go to hell, but that doesn't mean you have to pave the road for him.

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