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What's Up in the 8th

There's plenty of good news for Michael Brooks in his appeal.  Brooks was one of three men who held up another at gunpoint, robbed him of his cellphone and cash, then drove him around to various ATM's so they could withdraw money from them, and finally forced the victim to undress and lie face down in an alley before shooting him several times.  There's the aggravated burglary conviction:  Brooks and one of the other members of his crew had emerged from the victim's apartment building just as the victim was entering, but two members of the panel decide that the theft took place outside the building, so that's vacated for insufficient evidence.  The conviction for attempted felony murder goes away, too; in State v. Nolan (discussed here), the Supreme Court decided there wasn't any such animal.  (Short version:  an attempt requires a purposeful or knowing intent, while felony murder is strict liability:  if you commit felonious assault, say, and a person dies as proximate result, you can be convicted even if you didn't intend to kill anyone.  The court held in Nolan that you can't intend to attempt to unintentionally kill someone.)

The bad news for Brooks is that leaves him with a 64-year prison sentence.  The absurd state of Ohio sentencing law is perhaps best demonstrated by the fact that the sentence didn't even prompt an assignment of error.

Deafred Hardman is also the victim of a good news/bad news joke.  Two months ago, the 8th reversed his conviction for compelling prostitution and unlawful sexual conduct with a minor because the judge had improperly allowed him to represent himself.  Hardman hadn't known to make a Rule 29 motion for judgment of acquittal, so the court spent four pages talking about whether that waived his challenge on appeal to the sufficiency of the evidence, before deciding that they could review it for plain error, and then deciding that they didn't have to, since any problem on that score would be cured by the retrial.  No, it wouldn't:  if the evidence is insufficient, the defendant is entitled to be discharged, not retried.  Hardman moves for reconsideration, the court grants it, only to decide that the evidence was sufficient.

The one real win for defendants comes in State v. Whitfield, which gives the court an opportunity to expound again about substantial compliance, partial compliance, and non-compliance in a plea hearing.  Whitfield pled guilty to three rapes, committed in 1997, 1998, and 2001, and at the plea hearing the judge incorrectly observed that post-release control wasn't available then.  It was; it was part of the sentencing reforms ushered in by SB 2 in 1996. 

The court corrected the error at sentencing, giving Whitfield five years of PRC.  But what about the failure to advise him about it at the plea hearing?  If the judge "substantially" complies - and don't ask what that means - no problem.  If the judge partially complies - tells the defendant about PRC, but tells him it's mandatory when it's discretionary, or vice versa, or gets the period of PRC wrong - in order to win reversal the defendant has to establish prejudice, i.e., that he wouldn't have pled if he'd been given the right information.  But when the judge doesn't say anything about it, there's no prejudice analysis:  the plea just gets vacated.

Tyshawn McCutchen wishes he would've stayed in juvenile court.  At the tender age of 15, he robbed four people in three separate incidents, two of them at gunpoint, and gets bound over to adult court, where he pleads and is given an agreed ten-year sentence.  A transfer from juvenile court for a 15-year-old requires both a probable cause hearing and an amenability hearing.  The first is no problem, given the evidence, so McCutchen's sole argument on appeal is that the judge erred in not finding him amenable to rehabilitation in the juvenile system.  That's reviewed for abuse of discretion, and given the flexibility of the factors governing that question, that's not going anywhere.

Especially since the court takes the opportunity, as it has in a number of recent decisions, to articulate a standard of review for abuse of discretion which suggests that the only way of meeting it is to show that the judge was off his psych meds:

To find that a trial court abused its discretion, the result must be so palpably and grossly violative of fact or logic that it evidences not the exercise of will but the perversity of will, not the exercise of judgment but the defiance of judgment, not the exercise of reason but instead passion or bias.

Hey, guys, whatever happened to "arbitrary, unreasonable, and capricious"?

In re N.S. is the other juvenile court case last week, in which N.S. appeals from his adjudication of delinquency by arguing that the judge's decision that he didn't act in self-defense is against the manifest weight of the evidence.  That this is an issue at all stems largely from the fact that Ohio is the only state in the union which requires the defendant to prove self-defense; in all the others, if the defendant introduces any evidence of self-defense, the prosecution has the burden of disproving it beyond a reasonable doubt.

And if the prosecution had that burden here, good luck, because the record amply demonstrates that N.S.'s victim, T.T., is a thug.  N.S. apparently crossed him by befriending T.T.'s girlfriend, leading T.T. to use social media to threaten N.S. with a host of bad outcomes, including death.  T.T. also instigated three separate fights with N.S., only to realize at the last one that he'd gotten into a knife fight without a knife.  The panel agrees that T.T. was the instigator, but decides, as did the judge, that N.S. used excessive force, and violated a duty to retreat, and thereby affirms the adjudication.

I'll bet that N.S., unlike McCutchen, wishes he'd gotten into adult court.  Judges like to tut-tut about excessive force and duties to retreat.  Juries don't.  You would've been hard-pressed to find twelve people in the entire State of Ohio who would've convicted N.S. on this record.  You don't have to argue that the "victim" had it coming for the jury to conclude that he did.


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