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What's Up in the 8th

Two defendants figure they're better off without a lawyer, and for one that proves to be true, at least for now.  Somebody doesn't read the fine print, and the court decides to lighten its work load, but it remains to be seen how that will turn out.  The court makes the right decision on a Padilla issue -- finally.  By the time we get to the decision about Anders briefs, we're too tuckered out, so we'll kick that to tomorrow.

Everybody in Beachwood v. Chatmon agrees that the judge screwed up in imposing consecutive six-month jail sentences for Chatmon's conviction of two misdemeanor thefts; she didn't make any findings at the sentencing hearing, and the only thing in the journal entry is that consecutive sentences were imposed "due to continuing criminal activity."  The prosecutor concedes that this does not meet the findings requirements of RC 2929.14(C)(4), so back it goes.

Except that RC 2929.14(C)(4) only applies to consecutive prison sentences for felonies; there's no provision requiring findings for consecutive misdemeanor sentences.  Whether they can be imposed is governed by RC 2929.41, and there's an ambiguity in that statute, which is before the Supreme Court in State v. Polus.

Justice delayed is justice denied for some, but for Terrelle Price the axiom seems to be justice delayed is justice avoided.  He retains a lawyer for his drug trafficking trial, but fires him on the day of trial.  The court appoints the public defender, and on the day of the next trial, a new lawyer appears and says he's been retained by Price, but needs a continuance.  The judge refuses, so Price decides to be his own lawyer, with the anticipated result:  guilty, and an 11-year prison sentence.  On appeal, that's affirmed, the court holding that Price retained the new lawyer solely for purposes of delay, and the judge didn't abuse his discretion in denying the continuance.  The gotcha moment comes with the panel's upholding the mandatory fine, noting that if Price could come up with a $5,000 retainer for the new lawyer, he could pay the fine.

Marlon Ricks decides to act as his own lawyer, too, but in State v. Ricks the court decides he shouldn't have been allowed to.  For the waiver of counsel hearing, the judge gave Ricks 5-page "boilerplate" form which only mentioned the aggravated murder charge -- Ricks had also been charged with murder, felonious assault, kidnapping, and escape -- didn't explain the "nature of the charge" (which the court holds requires at least a recitation of the elements), and didn't discuss any aspect of trial procedure, such as jury selection or examination of witnesses. 

The curious aspect of Ricks is that it comes up on appeal from a plea, not a trial; four days after the judge held that Ricks could represent himself, he pled no contest and was sentenced to life without parole.  Ricks didn't need to know anything about trial procedure to enter a plea, and the judge obviously told him of all the charges he was pleading guilty to (the courts have consistently held that the judge in a plea hearing need not inform the defendant of the elements of the crime.)  I'm not sure of the validity of the argument that a knowing, voluntary, and intelligent plea remedies a defective waiver of counsel -- Ricks still had standby counsel, and could have discussed the plea with them -- but it's an argument that the State doesn't make. 

The State does rely on an argument it's made before in State v. Bozhukov.  Bozhukov, a non-citizen, was charged with trafficking less than 200 grams of marijuana, and the judge granted him intervention in lieu.  The motivation was obvious:  Federal law requires the deportation of anyone convicted of a drug offense involving more than 30 grams of marijuana, but since ILC doesn't result in a conviction, Bozhukov's lawyer told him, he could avoid any immigration consequences.  BZZZT!  Wrong answer:  there doesn't need to be a conviction under immigration law, only an admission of a crime, and the plea required to get into ILC qualifies.

The judge grants a motion to vacate the plea, but the State contends that any problem in the plea was solved by the judge's giving the statutory advisement, under RC 2943.031, of the consequences of a plea.  As I've noted before, the problem with that argument is that it confuses the judge's duties with the attorney's; the judge's advising the defendant that there may be deportation consequences doesn't solve the problem of the attorney's advising him that it won't, which is what happened here.  Still, the court's stuck with the prior cases where it's accepted the State's argument, but extricates itself from that precedent by noting that in those cases, it found that the judge didn't abuse his discretion in denying the motion to withdraw the plea on an abuse of discretion standard, and here it's merely finding that the judge didn't abuse his discretion in granting the motion to withdraw the plea on an abuse.  Ooookay.

The defendant in State v. Hostacky is appealing from the denial of his motion for post-conviction relief. The statute provides that when a judge denies the motion without a hearing, as happened here, the judge has to make findings of fact and conclusions of law.  The judge here didn't, so the case gets remanded back for that purpose, and once the judge does, the appeal can proceed.

Well, no; the court instead dismisses the appeal, deciding that since no findings and conclusions were made, the entry isn't a final appealable order. 

The court does have a point in saying that the failure to make the findings and conclusions hinders appellate review, and "would also serve to increase the workload of the already over-burdened and overcrowded courts of appeal."  But what's Hostacky supposed to do?  Bug the judge for the findings and conclusions?  File a writ of mandamus in the court of appeals to force the judge to issue them?  Then start the whole appeal process over again?

That's won't overburden anybody, I guess.

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