Just three weeks until SCOTUS swings back into action, hearing oral argument in three criminal cases, so I'll have something to write about then. Not that I don't now, with the Ohio Supreme Court's decision a couple of weeks back in State v. Thomas.
The realization that there were several thousand untested rape kits gathering dust in the evidence rooms of the Cleveland police department has resulted in two legal issues, with me, as luck would have it, at the center of both. The first is the issue of pre-indictment delay, which was resolved back in July in State v. Jones (discussed here). The court found fault with the 8th District's analysis of the issue, which had commingled the two-step analysis - determining whether the defendant had suffered actual prejudice, then whether the delay had been justifiable - but rejected the State's proposed test for actual prejudice, which would have made establishing a claim virtually impossible. We'll see what happens on the rebound.
Thomas presented another issue stemming from the delayed prosecutions. A rape committed prior to July 1, 1996, was punishable by an indeterminate sentence, with a minimum of five to ten years, and a maximum of twenty-five. That's when SB 2 took effect, and that heralded the introduction of "truth in sentencing" with determinate sentences: if the judge gave you eight years, you did eight years. There was an uncodified provision in SB 2 which provided that anyone who committed a crime before its effective date was to be sentenced under the old law.
Then along came HB 86 in 2011, which reduced a lot of sentences, and which contained its own uncodified provisions saying that anyone being sentenced after the effective date, regardless of when the crime was committed, got the benefit if the sentence was less. So for all these cold case rapes, many of which were committed before July 1, 1996, which law controls?
The competing contentions are hashed in more detail in my post about the oral argument. Suffice it to say that I slew the dragon of the Cuyahoga County Prosecutors office, as well as the Ohio Prosecuting Attorney's Association and the Franklin County Prosecutor, which had entered the fray against me. My strength is as ten because my heart is pure.
Something like that. Maybe I need to stop going to those Renaissance Fairs.
Anyway, having channeled my inner Sir Lancelot, let's take a look at what's happened in the court of appeals.
In the ten years I've been doing this blog, I can think of maybe a half dozen cases where a court of appeals reversed a case because a defendant wasn't allowed to withdraw a plea. That ratchets upward by one with the 2d District's decision in State v. Channels.
Channels had been charged with felonious assault and carrying a concealed weapon, and pled to the CCW and a reduced charge of aggravated assault, under the deadly weapon subsection. Everybody agreed that the gun was inoperable, but that didn't matter, because while operability is required for conviction of a firearm specification, it isn't for the "deadly weapon" provision, or the designation of a firearm as a deadly weapon under the CCW statute.
It didn't matter until last September, that is, when the Supreme Court held in In re J.T. (discussed here) that unless the gun was actually used as a bludgeon, its inoperability precluded its being a deadly weapon. That came down while Channels was awaiting sentencing. He used it to seek to withdraw his plea, the trial court denied it, but the 2d District reverses.
It's nice to see a win on a plea withdrawal motion, but Channels actually proves how hard it is to do that: it took going to the court of appeals to get plea thrown out where the defendant was unquestionably innocent of the crime he pled to.
I recently had an appeal from Lorain County, where I learned that the customary court practice is to have the defendant sign a form at each pretrial waiving speedy trial time. Forever? Pretty much. Well, not exactly, but signing it does waive the statutory right to speedy trial, according to the 9th District's decision in State v. Brewer. If the defendant revokes the waiver, the trial need only take place within a "reasonable" time. Oh, by the way, if the defendant does sign the waiver, it doesn't toll the time from that point on: it relates back to the date of the arrest.
I looked up the court stats for 2015, and in 2015, of 2,186 felony cases in Lorain County, exactly one was dismissed for lack of speedy trial. Turns out that's hardly unusual; Lucas County had 1,991 cases, with nary a single one ousted on speedy trial grounds. In fact, the statewide total was 42 out of 79,100, which works out to a dismissal rate of five one-hundredths of one percent. They better get their act in gear in Mercer County, though; last year, they had to dismiss 19 cases, 10% of their total dispositions.
Where was I? Oh, yeah...
A couple of weeks ago I mentioned the 8th District's decision in State v. Lein, where Lein, a non-citizen, was seeking to vacate his plea because his lawyer had failed to advise him that he'd be deported. Lein's case had all kinds of problems, not the least of which is that he waited five years after being notified by the ICE crew that they were looking at him to file his motion. What got my attention was the court's holding that Lein didn't show prejudice in his ineffective assistance claim because he didn't demonstrate that he'd prevail at trial.
The 2d District's decision in came to a similar conclusion in State v. Cardenas. It notes that the Supreme Court decision in Padilla v. Kentucky required a defendant only to show that "a decision to reject the plea bargain would have been rational under the circumstances," but finds that because the evidence against Cardenas was strong, "a favorable outcome at trial would have been highly unlikely, thus making the decision to reject a plea agreement irrational."
I criticized Lein on the grounds that it didn't factor deportation into Lein's decision on whether to take a plea. Simply put, if Lein was facing low-level felonies, he might well have chosen to take them to trial even if his chance of success was marginal, given that he faced a 100% chance of deportation. The same applies here: Cardenas was facing two fourth-degree felony charges (for which he got nine months concurrent time), and he'd been in the country legally since 1989. Sometimes you have to gamble, and if the downside is nine months in prison, versus the upside of not getting kicked out of the country you've lived in for 27 years, it's a gamble you might want to take, even if the odds are against you.