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What's Up in the 8th

Cassandra Goodson was an "emotional strength coach" at Parmadale, a "juvenile residential treatment facility," and she pled guilty to eleven counts of sexual battery, gross sexual imposition, and unlawful sexual conduct with a minor for having sex with two residents of the facility.  The opinion informs us that her lawyer told her she'd get 10 to 12 years.  BZZZT!  Wrong answer:  the judge gave her four years on each of the counts, and stacked them for a total of 44 years. In State v. Goodson, the panel finds that the trial judge didn't explain that he could run the sentences consecutively. 

There's a boatload of law that says you don't have to, but frankly, those cases are stupid.  If you don't tell a guy that he can get up to eight years on a felonious assault it's coming back, but if you don't tell him since he's got five of them, he's looking at up to forty years in prison, that's okay? 

There's one problem, though:  the judge did tell Goodson about the possibility of consecutive sentences.

After informing her of the potential sentence for each count (all third degree felonies), he told her this:

If I so choose I can run the sentences concurrent, which means all together, or I can run them  back-to-back to one another, or consecutive, assuming I make certain findings required by House Bill 86.

Basically, the judge's only failing was that he didn't do the math for Goodson.  The panel nonetheless finds that the judge completely failed to comply with CrimR 11 "to ensure that Goodson understood what the maximum penalty would be for each offense."

That's a stretch, but even if the Supremes take the case and reverse, Goodson isn't go to do 44 years.  The panel moots out her claim that the sentence was inconsistent with that of other defendants, but notes that the defense presented four other cases of Parmadale supervisors who'd pled guilty to having sex with a resident.  One got eight years, one got three and was given judicial release after one, and the other two got community control sanctions. 

In State v. Johnson, the defendant pled guilty to two counts of rape, one of a three-year-old and one of a five-year-old, and the judge gave him the required 25 to life on each one, and stacked them.  The panel finds the judge didn't make the finding of disproportionality to support consecutive sentences. 

So it goes back, right?  No.  The court then decides that the record wouldn't support findings under either the disproportionality or the great harm requirements. 

So it goes back, right?  No.  Since the record wouldn't support it, the panel modifies the sentence to concurrent time.  It's not going to matter much to Johnson; he's still got life, and here's a headline a newspaper published never:  "Parole Board frees child rapist."  Still, this might indicate that the 8th has decided to take seriously its role as an appellate court when it comes to sentencing.

 Or not.  Then we come to State v. Ongert, where Ongert got three years for stealing from an 83-year-old man.  She argues that the judge didn't correctly weigh the mitigating factors. 

Back in November I highlighted State v. Morefield, where the 2nd District held that "to exercise appellate review, we must be able to review the record to find what underlying facts were considered by the trial court relating to the applicable" 2929.11 and 2929.12 factors.  That's a complete break from other cases, especially the 8th's.  (And - wipes forehead - the Supremes denied review of Morefield a couple weeks back.)   The Ongert panel isn't going anywhere near that; "appellate courts can only review to determine whether the sentencing factors were considered; we cannot independently review the weight of each factor in the trial court's sentencing decision." 

In fact, Goodson and Johnson are the extent of the good news for defendants.  The defendant in State v. Copeland was really crazy drunk, and kicked a police officer in the face as they were trying to wrestle her into the patrol car.  All of this is clearly caught on the other cruiser's dashcam.  Her only real claim on appeal is that her lawyer was ineffective for not objecting to the introduction of testimony and the video from the booking station, which showed her continuing to be really crazy drunk and kick at things; she argues that that was improper 404(B) evidence.

The panel misses on the standard of review, finding that even without the challenged testimony, there was "sufficient" evidence to convict.  Sufficient?  "Sufficiency" is the test for... well, sufficiency of the evidence.  It's not the test for harmless error.  In fact, the Supreme Court held a couple years ago in State v. Morris that admission of improper 404(B) evidence has to be shown harmless beyond a reasonable doubt. 

Still, the woman sounded really crazy drunk, and even under the right standard, she's got a hard sell.

Finally, State v. Castleberry provides the obligatory case about plea withdrawals.  After pleading to shooting at two police officers, he asks to withdraw the plea the day before sentencing, telling the judge that his family had retained a lawyer, and were taking him the money a few days later.  Woody Allen observed that 90% of life is just showing up, and the new lawyer didn't, because (a) he hadn't been paid, and (b) he seems to have agreed only to handle the sentencing, if Castleberry got to withdraw the plea. 

Spoiler alert:  Castleberry didn't.

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