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What's up in the 8th

Good news and bad news for criminal defendants in the 8th District last week.  Okay, I lied; there is no good news.  The State won every case.  Still, there's one en banc decision down and one to go, we learn a new concept, and some good, albeit ultimately unsuccessful, work in an appeal.  What more could you ask for?

Well, a few more wins for defendants wouldn't hurt.

You say to-mah-to, I say to-may-to.  The defendant in State v. Tannert argues that he had a valid defense of sentencing entrapment, but the panel says his theory is really sentencing manipulation.

Huh?

Tannert sold Ecstasy to an undercover informant for the ATF.  The agent also asked Tannert to arrange for the purchase of a firearm during the drug transaction.  Tannert did so, and voila:  he winds up with a firearm specification.

The panel rejects his claim of sentencing entrapment, noting that entrapment occurs when the government improperly induces someone to commit a criminal offense, and firearm specifications are sentencing enhancements, not separate offenses.  That doesn't get the State completely out of the woods, because there's still the doctrine of sentencing manipulation, which "occurs when the state engages in improper conduct that has the effect of increasing a defendant's sentence."  That's used mostly in Federal court, and even there they're not sure it exists.  It doesn't in Tannert's case; even assuming the doctrine exists, there's nothing to indicate that the agent acted improperly.  He'd heard that Tannert was trying to sell the gun, and simply accommodated Tannert in doing so.

State v. Allen represents Allen's latest attempt to overturn his 1991 conviction and death sentence for aggravated murder.  It takes the form of a motion for new trial and petition for post-conviction relief, with the centerpiece being two gloves found at the scene of the crime, and subsequently tested and found to contain DNA samples from two unidentified males.

Allen makes two separate arguments - that the State failed to disclose the existence of the gloves, and that the gloves constitute newly discovered evidence.  This is a wise choice, because those arguments have different burdens of proof, and different standards of appellate review.  A Brady violation is reviewed de novo by the appellate court, and a defendant need only show a probability of a different result, which is that the now-disclosed evidence undermines confidence in the original verdict.  (That's the same standard for prejudice in a claim of ineffective assistance of counsel.)  A motion for new trial based on newly-discovered evidence, on the other hand, is reviewed for abuse of discretion, and the defendant has to show that the evidence creates a "strong probability" of a different result.

In the end, it does Allen no good.  His Brady claim is undercut by the fact that a video of the crime scene was played for the jury, and the video clearly showed the gloves; in fact the witness narrating the video paused it to point them out to the jurors.  With that out of the way, the panel has little trouble concluding that, in light of the other evidence implicating Allen, the gloves don't create the "strong probability" that a jury would have found him not guilty.

For several years, judges here have used a sentencing tactic of imposing a prison sentence on one count, and community control sanctions on the other.  This has the virtue of allowing a judge to monitor a defendant after he's released from prison.  That's been previously approved by numerous 8th District decisions, but no more:  the en banc decision in State v. Anderson nixes that.

The majority's analysis turns on the question of whether "courts are limited to imposing sentences that are authorized by statute, rather than only being limited to sentences that are not prohibited by statute."  It concludes that the former is the correct standard, drawing extensively from a Supreme Court decision last year of the same name, State v. Anderson.  Anderson didn't deal with that issue directly, though; it simply held that a court couldn't impose a no-contact order with a prison sentence.  The dissent argues that this makes too much of Anderson's dicta, and that the majority's opinion robs judges of an important sentencing tool. 

The issue's probably headed down I-71 to Columbus:  a number of other appellate districts have upheld the tactic, making a certification of a conflict likely.

An en banc decision on appellate review of sentencing grows more likely, too.  Two weeks ago, in State v. Jones (discussed here), the panel vacated a sentence after carefully reviewing the judge's findings under RC 2929.12 and concluding that they "clearly and convincingly" failed to support the sentence.  This week, in State v. Akins-Daniel, a different panel says an appellate court can't do that. 

I've written about the split in the 8th District on this before, which stems from the interpretation of a paragraph in the Supreme Court's decision last year in State v. Marcum.  That paragraph had suggested that an appellate court could review any sentence to determine whether it was "clearly and convincingly unsupported by the record."  As indicated by the decisions in Jones and Akins-Daniel, various panels have taken opposite approaches with that language.  The only way to resolve this, apparently, is either with en banc decision, or a cage match.  While I would pay good cash money to watch the latter, I must confess that the former seems more likely.

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