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What's Up in the 8th

A few years back, in Lafler v. Cooper, the US Supreme Court decided that a lawyer had rendered ineffective assistance by advising his client to proceed to trial in an attempted murder case.  The lawyer's advice was predicated on his belief that the defendant couldn't be convicted because all of his bullets hit the victim below the waist.  Unfortunately, the "but Your Honor, I only shot him in the ass!" defense found no support in the case law, and the court found prejudice from the fact that instead of doing the six years offered in the plea, the defendant was sentenced to eighteen.

In State v. Wright, the defendant flips that:  his lawyer, he claims, was ineffective for not "persisting" that Wright go to trial.  Wright was charged with numerous counts of raping his girlfriend, and pled to one count of sexual battery.  As is often the case in date-rape situations, there might be some semblance of a defense, but if there is, it's certainly not sufficient to find ineffective assistance for declining a plea offer.

In fact, in light of Lafler, one could make a reasonable argument that a lawyer would be foolhardy to recommend turning down a plea offer and taking the case to trial.  Wright's claim is the supreme example of Monday morning quarterbacking; one can imagine what he would have argued if his lawyer did "persist" in talking him into going to trial, resulting in guilty verdict on four counts of rape and getting sentenced for that.  I'm guessing that would have been much more than the three years he got on the plea.

As I mentioned last week, appellate decisions seem to deal with various crimes in bunches.  Wright was one of five cases last week dealing with rape, none of them involving strangers.  Typical is State v. Soto, in which the victim, M.R., goes to a bar with a friend to celebrate the latter's pregnancy, portending a future diagnosis of fetal alcohol syndrome.  We meet some interesting characters along the way, not the least of which is "a paraplegic male known as El Negrito," and the story culminates with M.R. getting roofied by Soto and the co-defendant. 

Soto appeals his conviction, arguing that the judge shouldn't have instructed the jury on complicity, because the indictment doesn't allege that.  As we all know, it doesn't have to:  a charge of complicity may be stated in terms of either the principal offense or the complicity statute.  One caveat:  it's error to give the instruction if there's no evidence of complicity.  But that's not the situation here.

State v. Vigil combines both rape and an ineffective assistance claim.  Vigil is convicted of raping his girlfriend, but claims that there are contra-indications to that, namely, that the two became engaged afterwards.  He contends that there was evidence to support this, namely, her purchase of an engagement ring and Facebook announcement of her changed status.

Vigil also made another claim at the beginning of trial:  that he'd never met his attorney until ten minutes earlier, never having been visited during the five months he'd spent in jail.  There's nothing in the record denying it, but the judge gives the two of them an hour to get acquainted, after which "the record reflects that trial counsel provided effective representation throughout trial.

That representation didn't include production of the receipt for the ring, or the Facebook page.  No matter, says the panel; counsel "effectively inquired about the nature of her relationship with appellant" and "specifically inquired into whether she had purchased an engagement ring, planned a vacation for appellant and her, and had opened a joint bank account." 

Those inquiries might have proven even more effective if they were backed up with the hard evidence Vigil alludes to.  One is tempted to suggest that post-conviction relief would have been the better vehicle to address the ineffective assistance claim, because it would allow Vigil to present that evidence, but from the tone of the opinion, that might well have proven equally futile.

The defendant in State v. Young argues that the texts the victim sent her mother about being raped, minutes after the incident occurred, shouldn't have been allowed in.  And it's a decent argument:  texts, he claims, require thought and deliberation inconsistent with the spontaneity required for admission of statements as excited utterances.  Sadly, as parent of any teenager knows, texts don't require any thought or deliberation at all.

What would a week without sentencing decisions be?  A welcome relief, given the trend line here.  And so it goes; other than a win by a pro se defendant in a case involving combined prison and community control sanctions sentences, which the 8th forbade a few weeks back in State v. Anderson, the news is grim.    

The defendant in State v. Reid pleads guilty to selling heroin, normally a fourth degree felony, but his preferred marketing venue is near a school, so that hikes it to a third degree, and carries a presumption of imprisonment.  He claims the judge shouldn't have given him eighteen months, because the judge didn't make the findings under RC 2929.13(D)(2) regarding the presumption. 

But the judge only has to make those findings to overcome the presumption; otherwise, he doesn't have to say diddly about them.  Or much of anything else; this panel falls on the side of the theory that unless the record clearly shows the judge didn't consider RC 2929.11 and RC 2929.12 - and short of the judge saying, "I was going to look at 2929.11 and 2929.12, but decided they're just so much chin music," I don't know how you'd do that - it's all good. 

In State v. Harris, the defendant pleads out mid-trial to a bevy of charges involving drug trafficking and prostitution, in return for the State's recommendation of a 12-year sentence.  Fat lot of good the recommendation does him:  the judge gives him 20.  He acknowledges on appeal that the judge made the required findings for consecutive sentences, but contends that "merely parroting the language of the statute is insufficient to justify maximum consecutive sentences," only to learn, to his sorrow, that yes, it is.

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