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What's Up in the 8th

As if there's not enough to complicate my life - and, as you know by now, it's all about me - the 8th came down with two big decisions on no contest pleas, and they're both named State v. Williams.  And they came down with two decisions on reconsideration, so I had to go back and read the original decision to figure out what they changed.  And I had to Google "chitterlings" when reading one opinion.

Oh, well, enough whining.  (See previous post; notice a trend?)  Time to put on my big boy pants and get on with this.

While judges are normally given broad discretion in how they manage their courtrooms, there are limits.  One judge here, for example, has a policy of not accepting no contest pleas.  In this State v. Williams, the panel holds you can't do that:  you can refuse to accept a no contest plea, but not until after you examine the facts and circumstances of that particular case, not as a blanket policy. 

A couple of other points.  In this case, the defendant had argued a motion to suppress, the judge had denied it, then refused to permit a no contest plea, but allowed a "conditional" guilty plea, permitting Williams to appeal the decision on the motion to suppress.  The court vacates the plea because of the refusal to permit it to be no contest, but then decides that moots out the suppression argument, and sends it back.

For what?  The plea has no effect on the suppression issue; that would be appealed either way.  One of two things is going to happen on the remand:  the judge will allow the no contest plea, or she'll examine the facts and decide that she won't.  In which case, it will go back up to the 8th, and they'll have to decide the suppression issue anyway.

Second, several judges have policies against accepting misdemeanor pleas.  I think Williams opens up some possibilities for attacking that as well.

In the other State v. Williams, Williams is indicted for theft, that is, exerting control over property without the owner's consent.  Williams pleads no contest, and the prosecutor gives a factual basis for the plea.

Which he doesn't actually need to do:  a no contest plea in a felony is an admission of the facts contained in the indictment, and if the indictment properly charges the crime, that's it.  In the prosecutor's proffer, though, he says that the victim gave Williams money to lease property that Williams didn't actually own.  In other words, the victim consented, it's just that Williams keeping the money he wasn't entitled to was beyond the scope of the consent.  And since the prosecutor's proffer negated an element of the offense - consent - the proffer trumps the indictment, and Williams walks.

In State v. Gibson, the panel rejects the defendant's manifest weight challenge.  Gibson points to weaknesses in the testimony of the State's witnesses, but according to the panel, he has to point to some contrary evidence.  I'm uncertain on how this relates to the burden of proof and the defendant's right not to testify, but I'd be more distressed about it if the chances of winning a manifest weight challenge weren't already akin to Donald Trump's giving Rosie O'Donnell a cabinet appointment.

 State v. Ramos comes back on reconsideration.  Ramos killed his wife, and was convicted of aggravated murder under the B section (purposely causing death in the course of committing certain serious felonies), kidnapping, felonious assault, and domestic violence, with everything merging into the aggravated murder.

The first time around, the court decided there was insufficient evidence for the kidnapping conviction, and vacated it.  On second thought, the court decides that it shouldn't have decided that because it was merged, and when one offense is merged into another, insufficiency of the evidence of the first is harmless error.  That's a bit too broad:  if the only predicate crime for aggravated murder was the kidnapping, then insufficient evidence of kidnapping would also require vacating the aggravated murder conviction.

State v. Jones gets a reworking, too.  Jones and his wife were convicted of involuntary manslaughter in the death of their daughter, for neglecting medical treatment, and the trial judge gave them each ten years.  In an earlier opinion, the court decided that the sentence wasn't contrary to law, but remanded it back because it was unable to determine if the record clearly and convincingly failed to support the sentences, because the judge hadn't made particular findings on the 2929.12 factors. 

The State squawked, arguing that the appellate court couldn't review the judge's decision because the weight the judge gives the factors is unreviewable.  There's actually a lot of law to this effect, and so the panel says, "Hey, you're right."  And then decides that the sentence is contrary to law because the record clearly and convincingly fails to support it.  So there.

State v. Crawford involves a fight between two 50-year-old women over cleaning out a bag of chitterlings.  In the scuffle, the victim is pushed/slips and falls, hitting her head on a concrete street barrier, resulting in a concussion and broken nose.  Crawford is charged with felonious assault, but the jury convicts her only of negligent assault.

That required proof that Crawford used a deadly weapon, and Crawford argues on appeal that this was an absurd extension of what constitutes a deadly weapon.  That might be, but that invokes the doctrine of invited error:  it was the defense counsel who argued that the barrier was a deadly weapon, so they could get the charge on negligent assault.

Frankly, the trade-off from a second-degree felony to a third-degree misdemeanor is an error I'd invite every day of the week.  

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