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What's Up in the 8th

SB 2 went into effect in July of 1996.  Megan's Law became effective in July of the following year.  The new open discovery rules took effect in July of 2010.  My birthday is in July.

Coincidence?  I think not.  And each of those dates is the subject of a decision by the 8th District last week.  Well, my birthday not so much.  But coincidence or not, it's the first time in several weeks we've had any defense wins.

The first win, State v. Bradford, comes by way of a pro se defendant, no less.  Post-release control was ushered in by SB 2, and thus has been a feature of Ohio law for two decades.  You'd think everybody has figured out how it works by now.  Sure, it's stupid but it's the law, so if you're a judge, you might as well figure out what's required. 

Which is that if you're the one wearing the robe at the sentencing hearing, you've got to tell the defendant three things:  whether PRC is mandatory or discretionary, whether it's for three years or five, and that if the defendant violates PRC, he can be sent back to prison for up to one-half of his original sentence.  And you've got to put that in the journal entry, too.

Bradford's journal entry says PRC is "up to the maximum period allowed by law," which doesn't cut it, and we don't know what the judge said at sentencing, because Bradford didn't order the transcript.  Normally, that would be bad thing for Bradford, because in the absence of the transcript the court will presume the regularity of the proceedings below -- that the judge said what she was supposed to -- and the JE can be fixed with a nunc pro tunc entry.  The problem:  Bradford has since been released from prison, and once that happens, you can't fix PRC.

The sexual predator classification was part of Megan's Law.  It's the functional equivalent of Tier III under the Adam Walsh Act -- lifetime registration every ninety days -- but the Supreme Court held in State v. Bodyke that the AWA couldn't be applied retroactively for crimes occurring before its passage in July of 2007 (it didn't become effective until six months later, but I'm milking this July meme for all it's worth).  So if the State wants the lifetime registration, the court has to conduct the sexual predator hearing, where the State has to provide "clear and convincing" evidence that the defendant is likely to reoffend.  And that's what State v. Malone is all about.

The offenses Malone committed were nasty ones indeed: three separate rapes at knifepoint.  The only thing Malone has going for him on the "reoffend" score is that he's 68 years old and has emphysema.  (That's assuming having to use an oxygen tank to breathe can be viewed as a positive.)  But the standard for review of the sexual predator classification uses the civil manifest weight standard, which is that the judge's decision is upheld so long as there is some competent, credible evidence to support it.  The fact that Malone committed a sexual offense in 2001, at age 55, and was arrested on a parole violation in connection with a gross sexual imposition charge at age 63 is enough to clear that hurdle.  It doesn't help that Malone also has convictions for murder, felonious assault, and armed robbery. 

The whole thing's pretty much academic, since Malone's sentenced to 10 to 25 years in prison for this.  Oddly enough, despite fact that the 8th District held six months ago that pre-SB 2 sentences can't be imposed where sentencing occurs after the effective date of HB 86, and has consistently held that in subsequent cases, that issue isn't raised on appeal.

We jump about fifteen years ahead in South Euclid v. Fayne, where the prosecution takes a minimalist view of the recently adopted rules of open discovery.  In response to a request from the defendant for relevant documents, names and addresses of witnesses, and any exculpatory evidence, four days before trial the prosecutor faxes over the police reports and essentially says, "You figure it out."  The trial judge deems that an insufficient response, and dismisses the case without prejudice.

Appellate courts love to develop lists of factors which trial judges are supposed to consider in making their rulings, and so it is here.  Once a party is determined to have violated discovery -- and the panel has no quibble with the trial court's determination that that happened here -- the question is what sanction to impose, and that's where the list of factors comes in:  (1) whether the violation was willful; (2) whether foreknowledge of the undisclosed material would have benefited the defendant in the preparation of a defense, and (3) whether the accused was prejudiced. (And yes, I'm having a tough time figuring out how you'd find (2) but not (3), or vice versa; they're basically the same thing.)

Everybody agrees that the violation wasn't willful, although I'm not sure why not; the defense requested a list of witnesses, it says right there in the rules that you're supposed to turn that over, and you didn't, so that's a willful violation in my book.  Still, the trial court determined that the failure did prejudice the defendant, and the court goes along with that.  Normally, the panel says -- and this is important -- the judge wouldn't abuse his discretion by dismissing the case without prejudice rather than granting a continuance here, but in this case there's a temporary protection order which would be dissolved by a dismissal, so the continuance would be the appropriate sanction.


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