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What's Up in the 8th

Oh, the days of yore in criminal discovery...  I'd file a request, three weeks later I'd get a form response giving me the names of witnesses and any statement my client had made, and then I'd trundle off to the pretrial, where the prosecutor would read me the police report, or at least those portions of it he deemed relevant.

But that's so five minutes ago.  Now I file the request electronically, and a couple of days later the discovery will be posted on the defense portal, police reports and all.  There'll also be another form, the State's request for discovery from me, but since I don't have anything, I'll ignore it.

Not after the 8th's decision last week in State v. Geraci.  

Geraci filed a motion to withdraw his guilty plea to involuntary manslaughter, submitting an affidavit stating that he pled only because his attorney told him that he didn't have a viable claim of a speedy trial violation.  The trial judge denied it without a hearing, and the panel finds no problem with that:  a post-sentence motion to withdraw a plea can only be granted to correct a manifest injustice, and "a self-serving affidavit by the moving party is generally insufficient to demonstrate manifest injustice."

Well, yes, but whether an affidavit - self-serving or not - is true is supposed to be the point of an evidentiary hearing.  What other evidence on this point could Geraci submit besides his own affidavit?

The court also decides that Geraci didn't have a viable speedy-trial issue, and that's where the concern develops.  Geraci hadn't responded to the State's discovery request.  Previous panels in the 8th had decided that if the defendant didn't respond, the speedy trial time was tolled for a "reasonable period" - usually thirty days - after the defendant received the request, and then started running again.  Geraci flips that:  the speedy trial time runs for a reasonable period (the thirty days), but then is tolled after that.  In other words, if the State files for discovery six months before trial and you never respond, under the previous decisions, five months would count toward the speedy trial time.  This way, only one month counts.

The practical effects are somewhat limited, given the Supreme Court's interpretation of the statute and the fact that bailiffs here are taught to write down any continuance "at defendant's request."  Still, file a response to discovery, if only to say that you don't have anything.

One of the changes wrought by SB 2, the 1996 criminal reforms, was the elimination of parole in favor of determinate sentences.  If you were convicted of rape in 1995, you faced a sentence with a minimum anywhere between 5 and 10 years, and a maximum of 25 years.  If you were convicted of rape in 1997, you were looking at anywhere between 3 and 10 years.  What happened if you were convicted in 1997 of a rape you committed in 1995?  SB 2 answered that:  you were sentenced according to the law in effect at the time.

Fast forward to 2011 and HB 86, which provided that if you were sentenced after the law took effect for a crime you committed before its passage, you got the benefit of any reduction in sentence.  One of the reasons I went to law school is because they promised there wouldn't be any math, but even I know that eleven years (HB 86 raised the maximum penalty for 1st degree felonies by one years) is less than twenty-five.  But does HB 86 trump SB 2?

The 8th has consistently held that it does, and does so again last week in State v. Irby, but a couple of months back in State v. Bryan Judge Keough wrote an opinion making a decent case that HB 86 doesn't apply to pre-SB 2 sentences.  The State's appealed several decisions on this point to the Ohio Supreme Court, but the Columbus Seven have declined jurisdiction in two of them; more are pending.  It may be that the court's waiting for a conflict to develop; I've yet to see a decision on this subject from another district, let alone a contrary one.  (And note that just because I haven't seen one doesn't mean there haven't been any.  Once again, I'm writing a blog, not a law review article.)  Or it may be that they're figuring the problem will go away; after all, there are only so many crimes from before 1996 that are going to be solved any more, and that's the only time the issue's going to be presented.

In State v. Green, the court affirms 35 years of consecutive sentences for Green, who pled guilty to raping seven women over a period of a decade or more.  The trial court at sentencing talked about Green's record - he had convictions dating back to 1966 - and the letter he got from one of the rape victims saying that the crime had ruined her life, but makes no finding that consecutive sentences were necessary to protect the public or punish the offender, or that they weren't disproportionate.  No matter, says the panel, implicitly suggesting that if the judge talks long enough at sentencing, the appellate panel will sift through the goat entrails and find something that sounds like a required finding.

The panel also affirms Green's designation as a sexual predator (all the crimes were committed before the AWA took effect).  I don't mean to be critical - well, on second thought, yes I do - but is was simply absurd for the State to pursue that.  As might be guessed about someone who has a criminal record dating back to the Johnson administration, Green is 67.  On top of that, he has chronic obstructive pulmonary disease and kidney problems, not suggestive of someone who's going to survive a 35-year prison sentence. 

If he does get out at 102, at least the neighborhood will know that they've got a sexual predator in their midst.  

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