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What's Up in the 8th

You don't see too many 25-plus year prison sentences for drug trafficking in Federal court anymore, but Davonne Keith manages to get 27, in state court, no less.  Keith loses the suppression issue, and just about everything else, but it all comes back because the judge never asked Keith if he had anything to say before sentencing him.  That's allocution, and it's a constitutional right:  the judge has to ask the defendant.

So what do you figure is going to happen when Davonne shows up for the secquel, Sentencing II:  Now We Mean Business?  I'll take the action of anybody who wants to go with the under of 27.  

Of the twelve judges on the 8th District bench, a full quarter are named Gallagher.  There's some wonderful things on the Internet.  One of them is a little calculator which tells me that the chances of an all-Gallagher three-judge panel are 1 in 1,320.  (Here's another factoid:  there are 220 possible combinations of judges for a panel.)  The G3 trio combine to smack the State down in State v. ThurmanThe judge had granted Thurman's motion to terminate his post-release controls, and filed the notice of appeal within the 30 days of the trial court's ruling.

What they didn't do is seek leave to appeal.  There are certain times when the State doesn't have to; from the granting of a motion to dismiss or suppress evidence or post-conviction relief, and certain sentencing decisions.  This wasn't one of them.  And requesting leave within 30 days is jurisdictional, so the appeal goes bye-bye.

In State v. Randle, the defendant claims his plea should be vacated because the judge didn't tell him the consequences of violating community control sanctions, an argument rendered problematic by the fact that he told the judge he wasn't on any at the time of the plea. 

That's an easy one.  There's a concept called invited error, and it fits this situation perfectly.  The end.

But no.  Instead, the court decides that the judge doesn't have any obligation at all to tell the defendant the consequences of violating a judicial sanction.  As long as the judge tells the defendant the possible prison time and the fine, and the defendant acknowledges he understands them, it's all good.

This is puzzling to me for two reasons.  First, not once in the 40 years I've been doing this has any judge - Federal, state, or municipal - failed to ask my client if he was on a judicial sanction.  After this, I don't know, because if the judge isn't required to tell them about what a violation might do, there's not much reason to ask them if they're on sanctions in the first place. 

No, the judge doesn't have to tell you every possible consequence of a criminal conviction.  Yeah, it's going to be tougher to find a job.  Who knew?  But this isn't a minor consequence; I've seen a violation result in three times as much of a prison sentence as the underlying crime.  Sure, this is something that the lawyer should've discussed with the client, but there's a whole bunch of things the lawyer should discuss with the client, and we make the judge ask it anyway.  Should be the same with this.

In keeping with gambling metaphors, Sein Heineman lost big:  charged with sexually molesting his sister-in-law, E.M., since she was eight, he had an offer on the table of five years.  He rolled the dice, and it came up snake-eyes.  The judge gave him thirty-five. 

The major issue on appeal in State v. Heineman is the testimony of E.M.'s treating psychologist.  The State claims she's only a fact witness, and so no expert report is necessary.  At trial, she's anything but a fact witness, the State repeatedly eliciting testimony asking her to explain various conduct by E.M. in light of the psychologist's "professional experience," and then telling the jury in closing that they should listen to the doctor that she was an expert.  The panel decides that she indeed gave both expert and fact testimony, but doesn't find that a basis to reverse, deciding any error is harmless.

And it may have been.  When E.M. decided to disclose - she was in her early twenties at this point - she had numerous conversations with Heineman which she secretly recorded.  Because of the sound quality, they weren't as damning as they might have been, but if somebody tells you that you gave her herpes when you had sex with her when she was twelve, your answer should be, "Are you out of your friggin' mind?" not "Let's talk about that tomorrow."   

As for the sentence, the panel decides it was simply product of the judge's reflection on Heineman's lack of remorse.  Lack of remorse is certainly an appropriate consideration in sentencing; in fact, it's one of the factors in RC 2929.12 to indicate that the defendant is more likely to recidivate.  That's hardly the case here; I don't think anybody seriously contends that Heineman would have been likely to do something like this with somebody else.  And wherever the line is between punishing someone for lack of remorse and punishing them for exercising their constitutional right to put the State to its burden of proof, tacking an additional thirty years onto the sentence crossed it.


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