What's Up in the 8th
Not much output from the 8th District last week; only four criminal cases. Still, we learn about the difference between strict compliance, substantial compliance, partial compliance, and non-compliance in plea colloquies, about Batson challenges, and about "mandatory probation."
We also learn that App.R. 26(A)(2)'s admonition that en banc consideration is intend to "secure or maintain uniformity of decisions within the district" is so much chin music. In fact, that merits its own post, so we'll discuss that later this week.
The primer on plea colloquies is provided by State v. Wells. Wells pled guilty to trafficking, but claims on appeal that the judge didn't really explain what trafficking was. Let's work our through this. (This will be on the test, so take notes.)
First, there's a difference between constitutional and non-constitutional rights. If it's a constitutional right, then strict compliance is necessary. Telling a defendant that he has the right to call witnesses in his defense doesn't cut it; if you don't also tell him he has the right to use the subpoena power to force witnesses to come to court, it goes back.
The explanation of the nature of the charge is a non-constitutional right, so only substantial compliance is required. That means that the defendant must "subjectively understand the implications of the plea and the rights he waived." If the judge doesn't say anything, that's non-compliance, and it goes back. But if the judge says something, even if it isn't enough to get him to Substantial Compliance Land, that's enough for partial compliance, which means that the defendant has to show prejudice, i.e., that he wouldn't have entered the plea if he'd been given the right information. I'm thinking back on all the cases I've seen where the court has found prejudice from partial compliance, and what I'm thinking is that there are damned few cases where the court has found prejudice from partial compliance. Wells does not add to that total.
Prejudice is also the issue in State v. Perez. Perez pleads guilty to forging checks from an elderly person she was supposedly caring for, and the judge advises her he can give her prison or community control sanctions. There's a slight problem with that: the judge couldn't have given her prison, because Perez fell within the "mandatory probation" provision of RC 2929.13(B)(1). She argues that the plea should be vacated because the court gave her the wrong information, but the court finds
The error, however, was actually beneficial to Perez: she could not have been sentenced to prison like the trial court informed her was a possibility... Perez's sentence was actually less severe than what the trial court outlined, and Perez could not have detrimentally relied on the court's misstatement in deciding to plead guilty.
That statement seems right at first blush: if Perez was willing to plead to a crime thinking she could wind up in prison for a year, then she was surely willing to plead to a crime knowing prison wasn't a possibility.
But let's look at it from Perez's perspective: she's charged with a crime that, to put it mildly, is regarded as particularly odious. The judge in this case is not the kind who imposes a trial tax, but I'd say with most judges, and maybe even this one, if you put them through a two-day trial and they get to hear from the victim and how nasty the crime was, instead of just reading it in a PSR, they're going to be tempted to look longingly at the "remorse" factor in RC 2929.12. Or lack thereof.
The decision to plead is based on a risk/reward analysis. The reward part is the likelihood of acquittal or conviction on lesser charges. The risk part is the likelihood and length of a prison sentence. And "likelihood" is the key: the difference between a two-year and a five-year prison sentence is much less significant than the difference between a six-month prison sentence and no prison at all.
But what if Perez knew from the outset that prison wasn't a possibility? There's no longer any risk. Maybe then Perez is willing to roll the dice. Who knows? Maybe the victim won't show up, maybe the prosecutor isn't any good, maybe she'll wind up with four jurors who hate their mothers. And who cares? There's no downside to trying the case.
Like I said, it's a risk/reward analysis. If the judge is giving inaccurate information about that, a plea just isn't knowing, intelligent, and voluntary.
That's not to say that Perez comes to the wrong result; Perez still has to show under those circumstances that she would have gone to trial. Since it's a plea, we don't know what kind of evidence the State has. If the evidence was strong, Perez probably pleads out anyway. But that's where the focus should be.
State v. May presents a Batson issue, and, like Wells, does not add to the meager total of successful pursuits of that claim. A Batson challenge - a claim that the prosecutor used peremptory challenges in a discriminatory manner - requires a three-step analysis. First, the defendant must make a prima facie showing of racial discrimination, which really doesn't require much more than showing the prosecutor used a peremptory on a cognizable racial group. Step Two requires the State to then show it had a race-neutral reason for the challenge. In Step Three, the court must examine the explanation to determine whether it's merely pretextual.
What it really boils down to, though, is that unless the prosecutor flat-lined his last EEG, he shouldn't have to break a sweat to come up with a "race-neutral" explanation for the peremptory. Oh, sure, the 8th did reverse on Batson grounds in State v. Strong last year (discussed here), where the prosecutor's sole grounds was his assertion that the juror had a "thousand-yard stare."
The prosecutor's explanation for striking a black juror in May was that the juror had a brother who was in prison, and a son "in the age range of the defendant." The last one is a bit sketchy; several white jurors had sons in the same range, or were in the same age range themselves. But they didn't have family members in prison, and that's race-neutral enough for the panel.