What's Up in the 8th
You've worked out a good deal for your client, to say the least. You two charges of aggravated robbery, two of kidnapping, plus an aggravated murder and a felonious assault, and worked that down to one count of aggravated robbery and one of involuntary manslaughter. So what's the client do? A few days before sentencing, he tries to back out of the plea.
There's plenty of case law which says you don't have to file a motion to withdraw the plea if you don't think it would be in his best interest. (Why that's the law, I'm not quite sure; that seems to be the role of a guardian ad litem, not a defense attorney.) So you tell him that if he wants to file the motion, go ahead, but you're not going to help him.
Turns out he can't file the motion, either.
Well, he can, but it won't do him any good, according to the 8th District's decision last week in State v. Mongo. Mongo filed his motion, and complains on appeal that the trial court didn't hold a hearing on it. Doesn't have to, the panel says. There's also plenty of case which says that a trial court can ignore a defendant pro se motions while he's represented by counsel; that constitutes hybrid representation, which isn't permitted.
Here's the problem this creates. In this situation, I think the attorney has the obligation to advise his client of this, and tell the client that if he wishes to pursue the motion to withdraw, he has to ask the court to represent himself. Of course, to do that, the trial court has to conduct a Faretta hearing to determine whether he should be allowed to. It doesn't have to be a full-blown Faretta hearing, since you're not talking about the defendant's ability to handle a trial. Still, it seems the easiest course is just to have the damned hearing on the motion to withdraw the plea and let the defendant speak his piece. It's not like anybody's going to grant the motion.
I'd suggested last week that the latest compensation package for the 8th District likely ties pay to word production, and that theory seems borne out by State v. Davis, an eleven-page opinion when two would have sufficed. Davis appeals from the denial of his motion to suppress an identification, but there's a big problem: Davis pled guilty, instead of no contest, so he waived an appeal on any pre-plea motions. The court nonetheless plows ahead, and we learn several things. First, the statute on identification, RC 2933.83, only applies to photographic and live lineups, not to "cold stands." Second, you are never, ever going to win the argument that the cold stand was unduly suggestive when the victim you robbed recognizes you in a grocery store a month later, and calls the cops.
The defendant in State v. Turner complains that the judge never told her she could get consecutive time on two felony child endangering charges (maxed out at three apiece), but that's too bad, because the law is very clear that while a trial judge is required to tell a defendant what the maximum sentence is, she's not required to inform a defendant of the possibility of consecutive sentences. I'm kind of split on this. On the one hand, telling Turner that the maximum sentence was three years when it turned out to be six doesn't seem to be keeping with the entire idea of advising the defendant of the potential sentence so he can make an informed choice on whether to plead. On the other hand, if you as a lawyer haven't advised your client of the possibility of consecutive sentences, you haven't done your job.
As indicated by my post about last week's Supreme Court decision in State v. Ruff, the course of allied offense law in Ohio has not been a smooth one. One thing has always been certain, though: the crimes of theft and receiving stolen property are allied offenses, if it's the same property. You complete the theft when you steal the property, and you also receive the stolen property at the same time.
At least, that's the way it was until last week's decision in State v. Mitchell. Mitchell breaks into a house, steals some jewelry, and later that day sells it at a pawnshop. He argues that the offenses are allied, which the State concedes, but the panel comes to a contrary view: the theft was one crime, and the disposing of the items at the pawnshop was a separate one.
When I first read the decision, I thought it was a bad one, but there's some basis for it. The two offenses were charged in separate indictments -- why, I have no idea -- and the receiving statute does make it a crime to "receive, retain, or dispose of property." Still, the court's approach is troubling, because it would make a defendant guilty of two receiving crimes anytime he got rid of the stolen property: one for receiving it, and another for disposing of it. The touchstone of allied offense law is whether the legislature intended to impose separate punishments, and I have a tough time believing that that's how the General Assembly intended this to work.
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