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What's up in the 8th

The Holy Grail for attorneys representing felony defendants here in Cuyahoga County is the misdemeanor plea.  So much of criminal representation involves simple risk/reward analysis, and rarely does that come down on the side of eschewing a misdemeanor and instead going to trial on a felony, especially in a county where judges are allowed to sentence only two misdemeanants a year to jail because of overcrowding there.  How well justice is served by this is another matter; as one judge told me, "In this county, innocence is a misdemeanor."

I had one last week, and the judge did the complete colloquy, the same as if my client had pled to a felony.  Good news for those judges intent on streamlining the plea process:  the court in State v. Mitchell notes that Crim.R. 11 says you don't have to.   Mitchell had argued that her plea to assault was invalid because the judge didn't tell her what the maximum sentence is.  That advice is necessary for a felony plea, but for a "serious" or "petty" misdemeanor, the judge need only advise the defendant of the effect of a plea of guilty, no contest, and not guilty. 

What's the difference between the two?  A "serious" misdemeanor is one where the penalty is more than six months.  I didn't know there were any, and now I'm worried that buried somewhere in the rules is a definition of a "petty felony," which involves imprisonment of less than six months.

I've mentioned before the split on the court about whether the Supreme Court's decision last year in State v. Marcum means that a defendant can get non-consecutive sentences reversed by "clearly and convincingly" demonstrating that the record doesn't support the sentence.  Before Marcum, the view in the 8th and most districts was that such a sentence was unassailable unless you could show the judge didn't consider the principles and purposes of sentencing, and the seriousness and recidivism factors, an undertaking made all the more daunting by the fact that it would be presumed that the judge did so, even if he didn't mention them.  The split now seems to be closing, with more judges getting on the Marcus train; the court looks to the record in both State v. Fresenko and State v. Gaines.  I'll be more impressed with the significance of that when a panel holds that the record doesn't support the sentences; they find that it does in both cases.

Speaking of things that don't matter, in State v. Watts, we have a discussion of what's the remedy when a judge fails to make the findings for consecutive sentences.  Watts argues that the sentence has to be vacated and the defendant given a de novo re-sentencing, but the panel finds, consistent with its precedent, that the case must be remanded for the sole purpose of allowing the judge to determine whether the findings can be made.  I'm not seeing a whole lot of daylight between the two.  And again, there's a question of significance.  I'm going to start tracking the reversals on consecutive sentencings to see what happens on the remand.  I've had two reversed on that basis in the past year, and the judge imposed the same sentence.  That's in line with my belief that a reversal is little more than a post-it note telling the judge what she has to say to impose consecutive sentences.

The defendant in State v. Thomas files a motion to withdraw his plea, which the judge denies without a hearing.  That's a problem, one might think, because while reversals of the denial of a motion to withdraw a plea make the appearances of Halley's Comet seem commonplace, the law does require a hearing on the motion.  Not if it's filed pro se, says the panel, in keeping with line of decisions holding that the filing of a pro se motion by a defendant who's represented by counsel constitutes hybrid representation, and thus is a nullity. 

I'm sorry, but this isn't the way the law should be.  To be sure, hybrid representation -- with the defendant essentially acting as co-counsel -- is barred, both by US and Ohio Supreme Court cases.  But those cases dealt with representation at trial.  There's good reason not to allow that, as the Ohio Supreme Court explained in State v. Martin:

Hybrid representation raises several troubling issues. First, situations may arise in a hybrid representation environment where the accused and his "co-counsel" disagree on strategy, which witnesses to call, and other key trial issues. Who is the ultimate decision maker? Hybrid representation poses difficult ethical issues for counsel and management issues for the trial judge when the defendant and his counsel disagree as to how the trial should proceed.

None of those are remotely applicable to motion practice.  What's worse, the 8th District has consistently held that a lawyer has no duty to file a motion to withdraw the plea if he disagrees with it, even to the point of affirming the denial where the defendant's lawyer argued at the hearing against granting the motion.  The net result is that there's no way for a defendant seeking to withdraw his plea to get that in front of the court if the lawyer's not on board with it.

Finally, a social media tip:  if you're going to be on Facebook, far better that you bore your "friends" with yet another dog photo than post a picture of yourself pointing a gun at the camera with your homies in the background throwing up gang signs.  If you do the latter, don't be surprised if the prosecutor shows that at sentencing, and it prompts the court to tack a few years onto your sentence.  And don't claim, as the defendant in State v. Allison did, that the defense attorney was ineffective for not objecting to it; the rules of evidence don't apply to sentencing, and the judge can consider just about anything.


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