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What's Up in the 8th

This probably should be a question on the analogy section of the LSATs:

9th Circuit:SCOTUS::_______:Ohio Supreme Court

Anybody vaguely acquainted with appellate decisions over the past few years, especially in criminal cases, would easily recognize the answer as being, "8th District"; for a number of years now, the high court has been treating the 8th as a red-headed stepchild.  So if you're going to cite an 8th District case, as the lawyer did in State v. Santiago, you might want to check to make sure the Olentangy Seven haven't overruled it.

The issue in Santiago was what happens when the defendant claims on appeal that certain convictions should have merged, but he didn't raise it in the trial court.  That's obviously reviewed for plain error, and in State v. Rogers, the 8th held that if there wasn't anything to show that the offenses were allied, the error wasn't plain.  That got reversed by an en banc decision holding that plain error was established if the offenses could have been found to be allied; it was up to the judge to inquire about that.  The Supreme Court reversed that, deciding that if the defendant hadn't raised the issue below, he bore the burden of demonstrating at least a reasonable probability that the offenses should have merged.  Santiago concedes that "the record lacks sufficient facts to demonstrate that his rape and gross sexual imposition offenses were allied," so that's that. 

Santiago does get one break:  the court finds that the judge failed to make the disproportionality finding for consecutive sentences.  That leads to an interesting dissent by Judge Sean Gallagher, who notes that the judge did make the third finding, that the crimes were "so great or unusual that a single term would not adequately reflect the seriousness of the offender's conduct."  According to Gallagher, "If no single term adequately reflects the seriousness of the offender's conduct, then, logically, the consecutive service of prison sentences is not disproportionate to the offender's conduct."  The problem with Gallagher's argument is that he fails to demonstrate at least a reasonable probability that logic has anything to do with Ohio's sentencing scheme.

Gallagher also provides the dissent in another consecutive sentencing case, State v. Green.  The judge had imposed two three-year consecutive sentences on Green, based on a finding that her "history of criminal conduct demonstrated that consecutive sentences were necessary to protect the public from future crime," despite the fact she had no prior convictions or juvenile delinquency adjudications.  Gallagher buys the State's argument that criminal conduct doesn't require criminal convictions, but the rest of the panel disagrees:  an arrest is not sufficient.

And we're still not done with consecutive sentences.  State v. Matthews proves that the third time's the charm.  The judge gave Matthews seven years of consecutive sentences, but that was reversed because the judge didn't make the necessary findings.  The judge gave Matthews seven years of consecutive sentences again, but that was reversed because the judge didn't make the necessary findings.  With Crosby, Stills, Nash & Young's album "Déjà Vu" playing in the background, the judge conducts a third sentencing hearing, and this time gets it right. 

An important note here:  when a case is reversed because the judge failed to make the findings for consecutive sentences, the hearing on remand is limited to doing that; the sentences for the individual offenses, and issues like merger, restitution, or costs are not revisited.  And when the judge make fails to make a particular finding, only that finding is at issue on remand.

And we're still not done with consecutive sentences, though we might as well be.  The judge in State v. Balbi does make the findings, leaving Balbi's lawyer to argue on appeal that the findings "clearly and convincingly" weren't supported by the record.  Well, if the record shows you've got 83 images and 274 videos of child porn on your computer, that's just not happening.

Oddly enough, the court handled other issues besides consecutive sentencing.  In State v. Sutton, the defendant argues her lawyer was ineffective for failing to ask for severance in her trials for separate offenses of aggravated robbery and theft of a car.  The law on severance is dismal for defendants; the State can rebut any claim of prejudicial joinder by showing that the evidence of both crimes is simple and direct (the "joinder test") or by showing that evidence of both offenses could be introduced at trial of either as 404(B) evidence ("other acts" test).  Here, the State relies on the former, and you're never going to win an argument on that if the jury acquits your client on some of the charges, as Sutton's jury did; that shows the jurors could sift through the details.

Finally, State v. Anglen provides several key pointers.  The first is that while the judge is required to explain the effect of a guilty or no contest plea at the plea hearing, that's a non-constitutional right, which means that the defendant has to prove she was prejudiced by the failure; under the 8th District's case law, that means the error is harmless unless the defendant actually claims innocence at the plea hearing.  The second is that a person or entity may be entitled to restitution even if they're not named as a victim in the indictment.

The third?  Well, if you've got a client trying to withdraw a plea, don't tell the judge that the reason the client wants to withdraw the plea is because "she's had a change of heart."  Do a LEXIS search on "change of heart," and you'll find about a gazillion cases out of the 8th saying specifically that that's not a sufficient basis for withdrawal.  

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