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Speedy sentencing and forfeiting the game

Brandon Betterman wanted to go to prison.  He'd pled guilty to failing to show up for sentencing in a prior criminal case, and had been sentenced to prison for that prior case.  He waited in jail to be sentenced on the failure to appear case.  And waited.  And waited.  After nine months, he filed a motion asking to be sentenced soon, claiming that the jail did not provide various rehabilitation programs that would be available in prison.

Not so fast, said the trial court; there were other civil matters to attend to.  (Don't know how they do things in Montana, but the average sentencing here in common pleas court can take anywhere from five to forty-five minutes, depending on the judge.  Kind of hard to understand why the Montana court's civil docket couldn't have been reconfigured a bit to allow that.)  It didn't get around to sentencing Betterman for another five months, and to add insult to injury, Betterman didn't get credit against the new sentence for the time he's spent in jail; the judge held that was attributable to his old sentence.

So Betterman wound up in the Supreme Court, arguing that the delay in sentencing violated his speedy trial rights.  And a few weeks back, in Betterman v. Montana, the Court said it didn't.

As indicated by the unanimous vote, it was an easy call:  the Court took an originalist approach, finding that the history of the Speedy Trial clause supported the conclusion that it applied only to... well, trial.  The ruling "comports with the historical understanding" and "the Framer's comprehension of the right as it existed at the founding." 

The opinion suggests that a due process challenge might have fared better, but that Betterman didn't preserve it.  Somewhat oddly, both the Court's opinion, written by Ginsburg, and Sotomayor's concurrence suggest that the appropriate test to be used in evaluating a due process claim in that context is the one articulated in Barker v. Wingo for speedy trial claims.

While Scalia must be smiling from on high - presumably - at the Court's use of originalism, the case actually shows the limits of that approach.  To be sure, at the time of the Framing, the speedy trial doctrine only applied to trials, not to sentencings, but that was because the second occurred immediately after the first:  in Merry Olde England or Colonial America, if you got convicted of a crime, you weren't sent over to the probation department for a PSI.

Down in Columbus, the Supreme Court also announced a decision about three weeks ago, in In re Von Von had been convicted of sexual assault of a child in Colorado in 1997.  When he moved to Ohio in 2011, he registered as a sex offender.  He then applied under RC 2950.15 to terminate his sex offender status.

And here's where things get messy.  First, that statute was part of the Adam Walsh Act, and only applies to Tier I offenders.  But since Von's conviction predated the AWA, he couldn't be classified under that statute because the Supreme Court held in State v. Williams that the AWA couldn't be applied retroactively.  Making things worse, it's not clear exactly what Von's status was as a Megan's Law offender; some of the documents indicate he would have been a sexually oriented offender, which was the lowest classification under Megan's Law, while others suggest he would be classified as a sexual predator.

We don't need to get into that, because the court's ruling is simple:  RC 2950.15 is not retroactive, and applies only to AWA offenders.  It's hard to argue with that conclusion.

Not impossible, though.  A decent argument could be made that the purpose of RC 2950.15 is remedial, and that it makes little sense to allow a judge to decide that an AWA offender should no longer be required to register as a sex offender, while not allowing her to make that same decision about a Megan's Law offender.  Perhaps not a winning argument, but a decent one.

But that argument wasn't made.  In fact, Von made no argument at all.  The court accepted the appeal on September 30, 2015.  On December 23, 2015, Von's lawyer filed a motion to withdraw, stating that the fee agreement with his client required an additional fee if the court accepted jurisdiction, and that the attorney's letters and phone calls to the client regarding the payment of that fee had gone unheeded and unanswered.  The court granted leave to withdraw three weeks later, and the next day the court's clerk sent a letter to Von informing him that since no brief was filed, under the courts rules he would not be permitted to argue.  And nobody did.

That's not to fault the lawyer.  I've filed about five briefs in the Supreme Court this year, and it is not a day at the beach.  And that doesn't even get into the oral argument; anybody who's done one of those will tell you that you spend about as much time preparing for it as you do writing the brief.  It's understandable that somebody wouldn't want to do all that for free.

Still, this is the highest court in the State.  The Ohio Public Defender has excellent appellate lawyers; regardless of whether Von was indigent, the law would have been better served if that office had been appointed to represent him.  A rules change might be in order.

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