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What's Up in the 8th

It's a tough case.  Your client's just 19; at that age, it's unsurprising that he doesn't have an adult record, but considering the crowd he's been hanging out, it's amazing that he doesn't have a juvenile record, either.  But his luck runs out:  wrong time, wrong place, wrong people, and he's got a murder charge.  You're not sure he did anything, but you know that what matters is whether the jury thinks he did anything.  The judge has been kind enough to let him talk to his family in the courtroom, and mama's crying, because you've disabused her - and him - of the belief that 15 to life means he'll be out in 15 years; with the parole board granting release in about 6% of their hearings, 25 to 30 is a much more likely number. 

Maybe more.  I've had three clients in the past year who were convicted of murder back in the 1980's.  All of them are still in prison.  One is 82.

But you've gotten your guy a deal for eighteen years flat, and after much agonizing, he finally climbs aboard.  He mumbles his way through the plea hearing. You go back to the holding cell to talk to him about the sentencing, at which point he tells you he wants to take the plea back.

And you're about to learn that the emptiest phrase in the law is that "presentence motions to withdraw a plea should be freely and liberally granted."  

That's what the Ohio Supreme Court said back in 1992 in State v. Xie, and then upheld the trial court's denial of the motion to withdraw.  The courts have been routinely denying them ever since. 

The 8th District did it again last week in State v. Alexander.  Not that you can muster much sympathy for Alexander.  He got into an argument with his girlfriend, left the apartment, then decided to teach her a lesson by firing a shot at the front window.  It hit and killed his two-year-old son.  The State was willing to take murder off the table in return for a plea to six counts and an agreed sentence of between 15 and 30 years.  A month later, on the day of sentencing, Alexander asked to withdraw the plea.  The judge denied it, and sentenced him to 30 years.

The basic test a number of districts, including the 8th, use on plea withdrawals is from a 1980 case, State v. Petersheim:

A trial court does not abuse its discretion in denying a motion to withdraw a guilty plea where: (1) the defendant was represented by highly competent counsel; (2) the defendant was afforded a full hearing pursuant to Crim.R. 11, before he entered the plea; (3) the defendant was given a complete and impartial hearing on the motion to withdraw the plea; and (4) the record reveals that the court gave full and fair consideration to the plea withdrawal request.

Except for the third, these are useless.  From my experience, "highly competent" means the attorney has handled a criminal case before this; would having "merely adequate" counsel require granting the motion?  The "full hearing" means the judge complied with Rule 11 in taking the plea, but that's irrelevant here:  if she didn't, it's a not a factor bearing on the motion to withdraw, it means the plea was invalid, and has to be vacated.

The last two are intertwined, and the third is the only significant one:  a judge can't give "full and fair consideration" to the motion if she doesn't hold a "complete and impartial hearing."  (Conversely, the courts invariably hold that if she did hold a complete and impartial hearing, that must mean she gave the motion full and fair consideration.)

Several courts, such as the 7th District in their recent decision in State v. Patrick, have provided a more expansive list, such as whether the state would be prejudiced by withdrawal, whether the defendant has a real defense to the charges, and the timeliness of the motion.  Alexander acknowledges this, but it doesn't do him any good.  The biggest hurdle is the oft-cited holding that a "change of heart" is insufficient grounds to withdraw a plea.  It's perfectly sufficient to get out from under $3,000 home solicitation contract for new gutters, but not to get out from under a 30-year prison sentence.

If a bailiff calls to tell me the judge has assigned me an appeal, the first question I ask is whether it's from a plea or a trial.  The potential for error is obviously much less in the former scenario, but you do your best.  The lawyer in State v. Jones went the extra mile, offering three reasons why the plea was invalid.

All for naught.  No, the judge doesn't have to tell the defendant that the judge can enforce the subpoenas by having the witness arrested if he doesn't show up; telling the defendant he has the right to subpoena witnesses is sufficient.  No, the judge doesn't have the tell the defendant that the State can't comment on his choosing not to testify; telling the defendant he has the right not to testify is sufficient.  No, the judge doesn't have to tell the defendant that the jury will be instructed that his failure to testify can't be used against him; ditto.

We have 34 common pleas judges in the general division up here, and some are more flamboyant than others.  Perhaps the best part of the opinion in Jones is that we get to play, Which Judge Said This?  After describing defendant's conduct as that of a "base human," the judge asked, "Okay, counsel, what would you like me to know about your frontal lobe deficient client?"

Jones argues that his counsel was ineffective for not objecting to this, and that if he had, "it is highly unlikely that Jones would have received the maximum possible prison term."  I guessed who the judge was without looking it up on the docket, and my response would be, "Wanna bet?"

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