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What's Up in the 8th

There's a good discussion to be had about what constitutes "substantially impaired" for purposes of the rape and sexual battery statutes.  The only Supreme Court decision on the subject is State v. Zeh, which was decided back in 1987, and that dealt with mental retardation.  The much more common situation deals with intoxication.  And that's the discussion the 8th District had last week in State v. Springs.

Zeh's not at all helpful there; the court held that "substantial impairment must be established by demonstrating a present reduction, diminution or decrease in the victim's ability, either to appraise the nature of his conduct or to control his conduct."  That's nice.  What kind of reduction?  How much of a diminution or decrease?  A "substantial" one, I suppose, but that renders Zeh a tautology:  a substantial impairment is a reduction in the victim's ability to appraise her conduct that is substantial.

The Springs panel devotes a good bit of time to the discussion, citing cases pro and con on the subject, most of it unnecessary.  If there is one bright line here, it is where the victim passes out or is otherwise unconscious, which is precisely what happened here.  Short of that, it gets a little dicey, I suppose.  The 8th's decision four years ago in State v. Rivera, discussed here, provides a much more exhaustive analysis, and a more defendant-friendly one.

The obligatory sentencing decisions come in State v. Kirkman and State v. Jones.  In Kirkman, the court affirms consecutive sentences, noting that the Supreme Court in State v. Bonnell held that "the requisite findings [for consecutive sentences] could be made if the reviewing court could 'discern' them from statements made by the sentencing judge."  There's nothing to "discern" here:  the judge made each of the specific findings.  Kirkman argues that the judge didn't make separate and distinct findings, e.g., the judge said a consecutive sentence is "necessary to protect, punish, and I don't believe it's disproportionate."  Picky, picky.  Equally Quixotic is Jones' contention that his sentence is disproportionate because his co-defendant got a lesser one, an argument doomed by the fact that the co-defendant pled, while Jones went to trial, and the co-defendant pled to fewer and less serious counts than Jones was convicted of.

Equally forlorn is Melvin Washington's effort to secure a new trial, his motion for that accompanied by an affidavit from a co-defendant who testified against him at trial now recanting that testimony.  The case law on this is pretty grim:  "Newly discovered evidence that purportedly recants testimony given at trial is looked upon with the utmost suspicion." 

And then there's the problem of... oh, pick one:  (a) the guy who gave the affidavit was only one of three co-defendants who testified against Washington; (b) the affidavit had been given to someone else two years earlier, and there was no explanation for the delay; and (c) in the interim, the co-defendant had sent two letters to Washington which contradicted the affidavit.  The motion for leave to file is denied, and the court spends little time affirming

Delay is also the problem for the defendant in State v. Lein.  Lein, a non-citizen, pled guilty to theft, forgery, and uttering in 1995, then comes in twenty years later and tries to vacate the plea, arguing that he wasn't advised of the deportation consequences, as required by R.C. 2943.031.  There's no disputing that, because the court reporter's notes are gone.  Unlike the normal case, where there's a presumption of regularity in the absence of a record, no record means it's presumed that the warning wasn't given. 

That still leaves the hurdle of timeliness.  In some past cases, the court has measured that from the plea to the filing of the motion to vacate, but that's not the correct analysis:  it's the time the defendant became aware of the possibility of deportation to the time he filed the motion.  That does Lein no good; he was notified back in 2005 by the immigration people.  The fact that he'd picked up numerous other theft and similar offenses in the interim - what's known in immigration circles as COMT's, or crimes of moral turpitude, which can get you deported - doesn't help Lein either.

Lein also argues that his lawyer was ineffective for not advising him of the deportation consequences, but the panel holds that even if the lawyer performed deficiently, Lein would still have to show prejudice, i.e., that he "would have prevailed at trial."  In the absence of a transcript of the plea hearing (even assuming that the prosecutor gave a factual basis for the plea, which few judges require), it's virtually impossible to assess that issue.

The more difficult problem with that holding is that it analyzes the decision to plead without considering a critical factor - the possibility of deportation - and how that might have affected the plea process.  Let's say, for example, that Lein's lawyer is aware of the deportation consequences.  He might then try to negotiate a better plea, or secure a sentence that takes into account the harsh consequences of deportation. 

And Lein might have decided to go to trial, because then he's making a different risk calculation.  Lein was charged with several low-level felonies.  It was very likely that he was going to get probation on a plea.  But what if he knew he was going to get deported if he made that plea?

Let's break it down.  Let's say that Lein had a 30% chance of being acquitted, and was told that if he pled, he had a 90% chance of getting probation.  If he went to trial and lost, he had a 50% chance of getting a prison sentence of six months or a year.  Just about anybody would take that deal.

But with deportation on the table, Lein now knows that he has a 100% chance of being deported on a plea or a conviction.  That one-year prison sentence pales in comparison to being thrown out of the country, so he might as well take that 30% shot.

Many courts have taken the "prevailed at trial" approach, but I think a better one, especially for low-level felonies, is to gauge the likelihood of the defendant choosing to go to trial, rather than attempting to guess how he would have fared, especially in the absence of any evidence to evaluate that issue.

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