What's Up in the 8th
In State v. Shaw, Shaw appeals from the denial of his motion withdraw his plea to involuntary manslaughter and aggravated burglary. The one truly surprising thing about the case is that he only loses by a 2-1 vote; there's actually a dissent, which argues that pre-sentence motions to withdraw pleas should be "freely and liberally granted." That's the law, but it's essentially honored only in the breach: there are literally hundreds of cases which hold that a "change of heart" is not a sufficient basis to seek withdrawal. If I want to back out of a deal for new gutters for my house, I've got three days to do it. If I try to back out of a deal which is going to send me to prison for fifteen years minimum, I'm out of luck.
What more than a "change of heart" could a defendant be expected to show? Shaw claims he was "coerced" into pleading guilty by his lawyers and his father, but it seems more likely that the "coercion" consisted of telling him things he didn't want to hear. Like the fact that he was going to lose: DNA evidence linked him to the crime. And as the majority notes, "pressure" isn't the same thing as "coercion."
There's one line in Shaw that gives pause: the opinion notes that Shaw filed the motion to withdraw, "even though he was then represented by counsel." That's significant, because there are a lot of cases in the 8th and elsewhere, which hold that since hybrid representation isn't allowed, the court must ignore any pro se motions when a defendant is represented by counsel. There are also a lot of cases in the 8th, and elsewhere, which hold that an attorney has no duty to file a motion to withdraw if he doesn't believe it's in client's interests. So, what's a defendant to do if he wants to withdraw his plea and his lawyer doesn't want him to?
The problem was avoided here because the judge allowed the original lawyers to withdraw, appointed two new attorneys, and then heard Shaw's motion and denied it. But at some point, we're going to have a situation where a defendant files a pro se motion to withdraw a plea, and the trial court ignores it because it's a nullity. Then we'll find out what the 8th does.
The 8th does provide some guidance to trial judges in State v. Hutchinson and State v. McClaurin. Hutchinson got community control sanctions, but violates and is sent to prison. Hold on, he says: at the original sentencing hearing, the judge didn't impose post-release controls, so the sentence is void and so he couldn't have violated sanctions. Hold on, says the panel: the judge doesn't have to impose PRC unless it sends the defendant to prison. Which the judge did when he sent Hutchinson to prison on the violation.
McClaurin is more convoluted. He and two others plead to attempted felonious assault, and at the plea hearing the defense attorneys agreed that the three would split the victim's medical expenses of $10,000. At sentencing, the prosecutor informed everyone that $6,000 of the bills had been covered by insurance, so the judge ordered each of the defendants to pay $1,1333, contingent on the court getting verification of the $4,000 figure.
At first glance, this seems to fall into the line of cases which hold that no proof of the amount of restitution is necessary when the defendant stipulates to it. At second glance, too; at sentencing, the prosecutor announced that after a discussion with the defense attorneys, "it was agreed the $4,000 will be split amongst the three defendants in this matter." The panel nonetheless reverses, finding that the court making its order contingent upon subsequently getting documentation meant that there wasn't sufficient support for the order at the time it was made.
We're left with a situation where the trial court's effort to benefit the defendants backfired. The judge simply didn't want the defendants to pay restitution in an amount greater than the victim's actual bills; had the documentation showed a lesser amount than $4,000, the judge could have modified the order accordingly. Had it shown more, the award would be capped at $4,000, because that's what the entry said. And had the judge said nothing about documentation, the figure would have stood.
That's some fine needle-threading by the panel, and good work by the appellate lawyer, especially considering that this was plain error review, and I'm not seeing a whole lot of manifest injustice in Hutchinson being required to pay what he agreed to pay.
In State v. Martin, the defendant commits a rape as a juvenile, is bound over to adult court, and upon conviction is deemed a Tier III offender with a lifetime requirement to register as a sex offender. He argues that it's unconstitutional to apply that to him since he's a juvenile, relying upon recent Supreme Court decisions - Roper v. Simmons, Graham v. Florida, Miller v. Alabama, and the decision just last month in Montgomery v. Louisiana - which essentially required that juveniles be treated differently because of their lesser cognitive development and maturity.
The court rejects the contention, finding first that Roper et al. applied to death penalty or life without parole sentences, while Martin's involves sex registration, and that Martin had been bound over to stand trial as an adult, so no longer was a "juvenile." I'm not so sure either reason is valid. The defendants in the Supreme Court cases had all been bound over, and while spending the rest of your life as a sex registrant is certainly preferable to spending it in prison, the logic - that we shouldn't make lifetime decisions on punishment (which sex registration is) about people based on what they did as juveniles - arguably carries over.
Martin's probably not the last word on this. State v. Aalim is pending in the Ohio Supreme Court, and presents the issue of whether mandatory bindover - and it was mandatory for Martin - is constitutional. We'll talk about that in the next week or so.