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What's Up in the 8th

Sometimes, my reading of the 8th District's decisions each week leads to bafflement.  Bafflement about how the court came to a particular decision, or why the State or the defendant made a particular argument on appeal, or even why a case arose.  This week I hit the trifecta.

Take State v. Clemm.  Clemm was convicted of fifth degree felony theft after a trial and given one year of community control sanctions.  He now claims on appeal that his lawyer was incompetent because he never told Clemm he could do an Alford plea.  (An Alford plea is one in which the defendant pleads guilty while still proclaiming that he is innocent.)  Huh?  This prosecutor's office will not allow an Alford plea to anything other than the indictment, so even if Clemm did one, he'd still have the felony conviction.  In fact, Clemm was offered to be allowed to plead to a misdemeanor or be placed in diversion, but chose to go to trial.  Actions have consequences.

Or In re J.C.C.  A 15-year-old girl we'll call Jill gets a call from another 15-year-old we'll call Sally, in which Sally tells Jill that she's coming to beat Jill up.  Sure enough, a few minutes later Sally shows up, having been driven there by her stepfather and aunt.  She commences fighting with Jill, the two wrestle, and then Jill gets up and says she doesn't want to fight anymore.  The stepfather and aunt taunt her, trying to get her to continue the fight, whereupon Sally falls dead of a heart attack.  The coroner ascribes this to an adrenaline rush, while the defense expert attributes it to obesity -- Sally was 5'3" and weighed 223 pounds.  Nonetheless, the stepfather and aunt are convicted for their role in instigating the fight.

Wait!  That's not what happened.  Jill is convicted of voluntary manslaughter.  I have no idea why she was even charged, let alone convicted of anything.  The panel shreds the State's case, vacating the conviction on insufficiency grounds, and proving once more that my decision ten years ago to avoid anything involving juvenile court was a good career move.

Or State v. Porter.  On March 18, 2013, State indicts Porter for a rape which allegedly occurred on March 19, 1993.  Ten days later, they reindict him and a co-defendant for the exact same crime.  The case proceeds to trial on the new indictment, and he and the co-defendant are convicted.

Do you see a problem here?  The prosecutor obviously didn't, but the panel does:  it vacates the conviction, because Porter can't be convicted on an indictment which was issued ten days after the statute of limitations had expired.  Why the prosecutor's office never realized this is beyond me.   The State argues that the statute was tolled because Porter moved from Cleveland to Akron, but the panel notes that the move occurred a month after the police closed their file on the case, two days after the incident, and thus "no prosecution existed for Porter to purposefully avoid."

The court contributes to my bemusement, too.  In State v. Eiserman, the defendant's 11 assignments of error in a gross sexual imposition case involving a child result in a 34-page opinion dispensing with all of them, most of no real controversy.  Except one:  Eiserman alleges that the trial judge erred in allowing testimony about the emotional consequences of the act to the victim.  The court relies on its earlier decision in State v. Halder, which in turn relied upon U.S. and Ohio Supreme Court cases on victim impact testimony, upholding its use.  But with the exception of Halder, all of those cases involved testimony during the guilt phase of a death penalty case.  To be sure, the Supreme Court in State v. Fautenberry concluded that "evidence which depicts both the circumstances surrounding the commission of the murder and also the impact of the murder on the victim's family, may be admissible during both the guilt and the sentencing phases," but that's in the conjunctive:  the testimony has to relate both to the facts surrounding the commission of the crime and the impact on the family.  Whether the testimony in Eiserman met that test we haven't a clue; the court's opinion never mentions what the victim impact testimony was.

Ever have a case where the judge tells you he's going to give your client probation, but then by the time sentencing rolls around he's forgotten about that?  It's happened to me on several occasions.  Several judges will make it a point to place any promises about probation on the record at the time of the plea, but a lot of judges don't want to do that. 

They might change their minds after State v. Ellington.  The judge gives Ellington a year in prison on a third-degree felony, but two days later vacates the plea and gives him community control because "prior to your plea there was an indication by the Court that we would afford you the terms and conditions of probation."  The immediate problem for Ellington on appeal is that once a sentence has been journalized, which this one was, a judge can't modify it.  Ellington tries to get around that by arguing that the judge wasn't modifying the sentence, he was simply remedying the breach of the plea bargain.  But just a few months ago, in State v. Gilbert, the Supreme Court held that the judge didn't have the power to vacate a plea just because the defendant had reneged on his agreement, as part of the plea, to testify against a co-defendant.   The panel pointedly notes that "this case highlights the inherent problems stemming from courts discussing or making agreements off-the-record," and cautions that "if promises are made by the court in order to secure a plea bargain, those promises should be acknowledged on the record."

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