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What's Up in the 8th

Most lawyers would appreciate the line from Bob Dylan's Stuck Inside of Mobile with the Memphis Blues Again:

An' here I sit so patiently
Waiting to find out what price
You have to pay to get out of
Going through all these things twice.

So, probably, would the defendant in State v. Allen.  He gets his consecutive sentences vacated because the panel concludes that the judge failed to make two of the three required findings, but what he had to do to get there!  He filed a pro se appeal, but that was dismissed as untimely.  His lawyer also filed one, but that was dismissed for lack of a final appealable order:  the judge hadn't disposed of all the counts in the judgment entry (one count had been nollied).  The judge entered a nunc pro tunc entry correcting that, and Allen appealed again, only to have that one dismissed for the same reason:  the entry improperly deferred determination of restitution to a later date.  Fourth time was the charm.

If you want proof that the result in Allen was based more on the composition of the panel than the law, you need look no further than State v. Gum.  The judge made one finding required for consecutive sentences -- that the defendant committed the offense while on probation -- but that left two others:  that consecutive sentences were necessary to punish the offender and protect the public, and that they weren't disproportionate to the defendant's conduct or the danger he posed.  Here's what the opinion indicates the judge said:

The court voiced its concern over "a certain pattern here in your criminal history," detailing Gum's criminal history and finding that "the fact that you have not been satisfactorily rehabilitated in the past after sanctions imposed indicates a likelihood of reoffending * * *."  The court also considered the seriousness of Gum's conduct, noting that he led the police on a high-speed chase, caused financial harm to the victim, and "pose[d] a direct threat to the safety of our streets."

The panel concludes these findings were "sufficient," but what I'm seeing is nothing more than a recitation of the seriousness and recidivism factors in RC 2929.12. 

The court did clear up one issue that's resulting in different panels coming up with different results.  Padilla v. Kentucky established that an attorney's failure to properly advise a non-citizen client of the possible effects on his immigrant status could constitute ineffective assistance, but the 8th handed down several decisions holding that any problem was cured by the judge's giving the advisement on that required by RC 2943.031.  It's been moving away from that, but the problem was highlighted in a post I did a couple months ago:  in State v. Ayesta, the panel had concluded that the statutory advisement wasn't sufficient, but a week later in State v. Yapp a different panel concluded that it was.

But that's so five minutes ago.  Last week, the panel reconsidered Yapp and reversed, aligning itself with Ayesta and similar cases.

Defending child sex abuse cases has always been hard -- not that it shouldn't be -- but it got harder with the 8th's decision two weeks ago in State v. Czech, a case involving a grandfather molesting his grandchildren.  Czech raised an issue concerning the specificity of the indictment, but that went nowhere:  there was no objection to the indictment, so it's reviewed for plain error, and that's not going to be found where the defendant doesn't assert an alibi defense or otherwise show he was away from the home for an extended period of time. 

The better argument seems to be the sufficiency of the force element.  That's a hard sell where the perpetrator is a family member:  the courts will infer coercion from the authority inherent in that relationship.  But here, neither of the witnesses alleged any coercion, and one acknowledged that she did it because otherwise she would've felt guilty about not making her grandfather happy.  That's sufficient to show a "subtle, psychological form of coercion," the panel decides.

A misdemeanor domestic violence case results in a reversal and a 40-page tome on the subject in Cleveland Heights v. CohenFirst up was the child endangering charge, which the court tosses for insufficient evidence:  the basis of the charge was that the scuffle was done in front of the children, but that's not enough to establish a "substantial risk of harm" to them. 

The larger argument centered around whether disorderly conduct (recklessly causing inconvenience, annoyance or alarm by engaging in fighting), which is what the judge convicted Cohen of, is a lesser included offense of domestic violence.  It used to be that in determining whether one offense was a lesser of another, the court compared the elements in the abstract, without consideration of the facts:  could the greater offense ever be committed without also committing the lesser?

The Supreme Court modified that six years ago in State v. Evans (discussed here), by removing the word "ever," and it's a good thing.  The Cohen panel debates the various hypotheticals of how one might conceivably commit domestic violence without also committing disorderly conduct.  There's the one where the perpetrator throws an object at the victim, who isn't looking:  in that case, the perpetrator attempted to cause harm, but since the victim was unaware of it, she didn't suffer inconvenience, annoyance, or alarm.  That's called the "throw-from-behind-that-misses-its-target," aka the "unware victim" scenario.  Another is where the perpetrator threatens harm, but the spouse doesn't take it seriously; that's the "did-not-take-the-threat-seriously" hypothetical.

And no, I'm not making any of this up.

There's actually a split among the districts on the issue, which doesn't help, but after devoting eight pages to the subject, the panel finally concludes that these are the kind of "strained hypotheticals" which Evans sought to avoid.

So yes, Virginia, disorderly conduct is a lesser included offense of domestic violence.


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