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What's Up in the 8th

The bad news for defendants in the 8th District last week is that the closest thing to a win was a reversal and remand for the trial judge to consider whether to impose a mandatory fine in a drug case.  The good news is that there were only four criminal cases out of the 8th last week, so the opportunity for damage was limited.   

State v. West was the "win," and you can file it under "quagmire, procedural."  There'll probably be a proposition on the ballot in Ohio this fall calling for the legalization of marijuana, but the West brothers were ahead of their time.  They chose to go into the marijuana growing business, with the apparent motto, "go big or go home":   when the cops raided a building the Wests owned in Cleveland, they found over a thousand marijuana plants.  In the Wests' first appeal, the panel affirmed the convictions but reversed the sentences and remanded, finding that several of the convictions should have merged.  The Wests then each filed applications for reopening, arguing that their attorneys were ineffective because they hadn't filed the affidavits of indigency necessary to avoid the mandatory fines.

Rather than reopen the appeals, the panel simply issued an opinion saying that the trial court could take the fines issue up at the resentencing. The judge apparently didn't get the memo:  at the resentencing, she held that the issue of the fines was outside the scope of the hearing.  So now it goes back for a third resentencing, limited to that issue. 

And if the Wests lose, expect another appeal.  One of the reasons for the abundance of inmate pro se filings is that being in prison substantially limits one's choice of activities, and the Wests apparently have decided to put as much fervor into their legal efforts as they once did into the production of demon weed.  The docket shows ten separate appellate case numbers for Timothy since his conviction, including one seeking a writ of prohibition to preclude the collection of costs because the bill wasn't itemized.

The sole issue on appeal in State v. Taylor is manifest weight of the evidence, and you need all three judges to win on that.  Taylor doesn't get any, but he gets the consolation of knowing that the panel finds this a "very close case."  And it is.  The victim, who we'll call Dina, was with her friend, "Tiffany," at a festival, and met Taylor and a friend of his.  The men took the women home, dropping off Tiffany first; Dina, who'd had six beers and was taking Zoloft at the time, fell asleep in the car, and awoke to find one of the men on top of her in the backseat, having sex with her.

That was in 2003.  The case languished for years because Dina was dealing with other problems, like her addiction to drugs (which she testified at trial resulted in "memory issues") and her conviction of various offenses, including robbery -- the detective acknowledged that she finally located Dina through the county probation department.  Tiffany, who despite seeing Dina on a regular basis didn't learn of her claim of having been raped until shortly before trial, couldn't identify anyone from a photo array, and Dina picked out the wrong person. 

The court states twice in its opinion that "DNA testing alone does not always resolve a case," quoting from a U.S. Supreme Court case.  That's an odd choice, because DNA testing certainly resolved this one:  Taylor's DNA was found in the rape kit that was taken at the hospital Dina went to on the night of the incident.  Without that, Taylor doesn't even get arrested.  The rest, all the contradictions in the testimony, is up to the jury to resolve, and Taylor's conviction for sexual battery is affirmed.

Taylor's case is unique in one respect:  it is the only decision this week that involved a first appeal.  More typical is State v. Williams.  Williams one of four people to beat an autistic man; he pleads to attempted murder and felonious assault, and is sentenced to seven years on each, run concurrently.  On appeal, the case is reversed and sent back for resentencing because the two offenses should have merged. 

On remand, the judge says that she's taking into consideration the evidence that was presented at the trial of one of Williams' co-defendants, including the victim's testimony.  On appeal this time, Williams claims this violates his right to counsel, because neither he nor his attorney was present at the co-defendant's trial. 

That presents an interesting question.  Normally, there's a presumption of vindictiveness if the judge gives a higher sentence after remand, but there are lots of cases holding that the presumption disappears if the original appeal was after a plea, the case gets retried on remand, and the judge learns new facts from the trial.  Learning new facts from the co-defendant's trial, though, is a different matter, and gives the court something to work with.  The court does note that the defendant's retrial "was a public proceeding open to all" and "Williams's counsel was free to attend."  True enough, although that hardly solves the confrontation problem; whatever his right to attend, it didn't include cross-examining the victim.

Here's the thing, though:  the judge gave Williams the same seven-year sentence on remand.  Being the lazy guy I am, if I'm writing the opinion, it's two pages long and says that since the same sentence was imposed on remand, there's no possibility of any prejudice, and I call it a day.


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