What's Up in the 8th
A couple of weeks ago, I suggested that the separate panels in State v. Fuller and State v. Latimore had obviously gotten together in the opinion-writing stage: in both decisions, released the same day, using much of the same language, the two panels held that while a court can't go beyond the indictment in ordering restitution of a child support arrearage, it can order payment of the entire amount due as a condition of community control sanctions.
The issue in both was how the trial judge's mandatory advisement to a non-citizen of the immigration consequences of a plea affected the defendant's later claim that his attorney had rendered ineffective assistance by failing to properly advise him of those consequences. Back in 2010, in State v. Bains, the court held that the advisement cured any prejudice caused by the attorney's failure.
That position isn't totally off the wall. The big case on ineffective assistance of counsel in advising a client about immigration consequences is Padilla v. Kentucky, and the Court pointedly noted that, unlike some states, Kentucky didn't require judges to give an advisement. (And pointed to Ohio as an example of a state that did.) Still, there are some problems with the Bains holding: the judge telling a defendant he may be deported doesn't cure the problem of the defense attorney incorrectly telling him he won't.
So last week in Ayesta the court recognized that, and stated, "we overrule the Bains progeny of cases to the extent that they seem to suggest that a trial court's proper advisement under R.C. 2943.031(A) 'cures' any prejudice." So this week in Yapp the panel says, "This court has repeatedly held that the trial court's R.C. 2943.031(A) advisement that the defendant may be deported as a result of his plea, is sufficient to overcome any prejudice caused by counsel's failure to properly advise the defendant," and cites Bains.
Maybe time for an en banc, gang.
While you're doing that, you might want to have a confab on allied offenses, too, because the jurisprudence on that is getting increasingly sketchy. Two weeks ago, in State v. Warren, the defendant had decided to beat his girlfriend with a pipe; the fracas started in the dining room and wended into the living room. That resulted in convictions for domestic violence and felonious assault, but the court refused to merge them, stating that there would be a contrary result "if the charges against Warren had only arisen due to him hitting Malone one time with the pipe." Really? I shoot a guy three times, and that's three separate charges? To be sure, courts have held that the two offenses don't merge if there's an escalation in violence, but here it's the same act: which strike of the pipe was the domestic violence and which was the felonious assault?
This week's decision in State v. Wainwright is troubling, too. Wainwright had been caught in the act of trying to break into a grocery store with a sledgehammer. He pled to breaking and entering and vandalism, but the judge refuses to merge the two, and the panel affirms in a split decision. The court holds that the two crimes don't merge because Wainwright pled to B&E under RC 2911.13(B), which only requires proof of trespass, not of force. But State v. Johnson specifically rejected that kind of analysis:
The question is whether it is possible to commit one offense and commit the other with the same conduct, not whether it is possible to commit one without committing the other.
As the dissent aptly points out, Wainwright committed the vandalism and the B&E with the exact same conduct, and the two offenses should have merged.
And, not atypically, there's one absolute puzzler in the bunch. The defendant in State v. Gonzalez argues that his plea to rape was invalid because the judge didn't advise him of consequences of violating post-release controls, and didn't fully explain his duties to register as a sex offender, and the consequences of a violation of those duties. All for naught; those are nonconstitutional rights, which means only substantial compliance is required, which means that the test is whether Gonzalez would have still entered the plea if he'd gotten the correct information. He doesn't even make an argument that he wouldn't have pled, and understandably so. He was charged with raping his seven-year-old granddaughter, and faced life without parole if convicted; the State agreed to drop it to straight rape. As for the sex offender stuff, the courts have consistently held that a trial judge need not advise the defendant at the time of the plea of all the ramifications of registration.
But here's the kicker: the opinion quotes part of the plea hearing transcript, and included is this:
THE COURT: It [rape] is a probational offense, but it does carry a presumption in favor of prison.
Well, that's wrong; under RC 2929.13(F)(2), a prison sentence for rape is mandatory. It's too bad nobody picked up on that, because there 's a boatload of cases which hold that telling a defendant a crime's probationable when it's not -- in fact, not telling him it isn't probationable -- requires the plea to be vacated.