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What's Up in the 8th

Not much.  Some weeks the court will hand down a decision on some significant issue, sometimes not.  This time, not.

We do learn some things.  From State v. Price, we learn that while a judge can't modify a felony sentence once it's journalized, he can modify or waive costs at any time.  We don't learn much from State v. Ford; when an opinion begins by telling us that "this is Nathan Ford's sixth appeal from his convictions in 2006 of 53 counts of rape, gross sexual imposition, kidnapping, felonious assault, and aggravated robbery," we can fairly predict without reading any more that the outcome of the seventh will be no different.  

Nor does State v. Gurkovich add much to the court's burgeoning and increasingly divergent oeuvre on consecutive sentencing.  The judge made the findings, so Gurkovich is left with the quixotic argument that the record -- which shows that Gurkovich fired into a car, killing a five-year-old and shooting out the eye of the mother, and that Gurkovich has five prior convictions for domestic violence, among other crimes -- "clearly and convincingly" does not support him doing twenty-six years in prison. 

The prosecutor's office has set up a unit here which does nothing but handle the 20-year-old rape cases caused by the police department's practice of leaving rape kits lying untested in its evidence room.  A new memo will presumably go out after the court's decision in State v. Haynes.  Haynes and two others allegedly raped a 13-year-old on April 27, 1994.  The grand jury returned an indictment on April 24, 2014, but the panel concludes that CrimR 6(F) requires that an indictment isn't official until it's returned to a judge of the common pleas and filed with the clerk of court.  That didn't happen here until May 6, 2014, after the 20-year statute of limitations had expired.

Last week, I did a post about State v. Thomas, involving a 26(B) application to reopen an appeal.  Thomas claimed his appellate lawyer had been ineffective for, among other things, not contacting him and not pressing the issues he wanted raised.  I mentioned at the time that there was a split in authority over whether appellate counsel had the duty raise issues just because his client wanted them raised, at least as long as they weren't frivolous.

Well, as we find in State v. Barrow, there's not a split of authority about that, at least in the United States Supreme CourtBack in 1983, SCOTUS opined that ""Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues."

The panel concludes,

Indeed, including weaker arguments might lessen the impact of the stronger ones.  Accordingly, the court ruled that judges should not second-guess reasonable professional judgments and impose on appellate counsel the duty to raise every "colorable" issue.  Such rules would disserve the goal of vigorous and effective advocacy.

I'm in agreement with that, and even if you assume that failure to pursue a client's issue is deficient performance, you still run into problems with the prejudice prong.  Simply put, if counsel missed an issue that could have won the appeal, then it doesn't matter whether it was the client pressing it. 

But Barrow serves primarily to demonstrate how difficult it is to win a 26(B), at least in the 8th.  (Although I haven't found other districts to particularly more solicitous of them.)  One of the reasons for that difficulty is the time limits.  The application has to be filed within 90 days, and I can't remember the last time the 8th District found that a defendant had shown good cause for a late filing.  There are any number of cases where an application filed on the 91st day is bounced, without even reaching the merits.

I'd thought the Supreme Court might address this in State v. Williams.  As I explained a few weeks ago in my discussion of the oral argument in the case, Williams had filed an application for reopening just a tad beyond the 90-day period.  Six years and nine months beyond it, to be exact.  Much more time was spent in oral argument on the merits than on timeliness, but several justices seemed to be at least somewhat receptive to Williams' claim that the deadline shouldn't be strictly applied because his lawyer hadn't contacted him about the outcome of the appeal.  And none seemed particularly inclined to hold that the deadline should be applied with the rigidity that the 8th commonly does.

But Williams isn't going to address that, or anything else, for that matter.  Last week, the court dismissed the case as improvidently allowed. 


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