Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »

×

Mea Culpa

So here's the deal.  I'm in Fire Drill Mode.  I've got a reply brief due in the 5th District yesterday.  "Yesterday, Russ?  You mean you've got to not only finish the brief, but drive it down to Canton, Mansfield, or wherever to file it?"

Let me feed you, baby birds.  If you're doing an out-of-district appeal, know the following provision of App.R. 13(A), and know it in your soul:

Documents required or permitted to be filed in a court of appeals shall be filed with the clerk. Filing may be accomplished by mail addressed to the clerk, but filing shall not be timely unless the documents are received by the clerk within the time fixed for filing, except that briefs shall be deemed filed on the day of mailing.

So all I have to do is make sure it gets in the mail by the end of the day.  That's still a somewhat daunting task, considering that I have the brief only half-written, in keeping with the guiding principle of my life:  "If it weren't for the last minute, I wouldn't get anything done."

So do I devote every moment to the completion of the brief?  No; I instead decide to complete the blog post I'd mostly done the night before (when I also could have been working on the brief), on the tactical and strategic questions raised by the recent Supreme Court case of State v. Gonzalez.  That case requires the state to present evidence of the purity of cocaine in order to convict someone of more than a fifth degree felony trafficking or possession charge for cocaine.

And in which I wrote the following:

So what are your strategic options?  One is to plead no contest, and if the State doesn't come up with a weight, your client walks away with a 5th degree felony.  And keep in mind that guilt is determined at the time of the plea, not the time of the sentencing; if the State doesn't have proof of weight by the time of the plea, you're home free.

The first sign of trouble emerged just after noon yesterday, with a terse email from one of my numberless horde of loyal readers:

Did you just whiff on the effect of a NC plea?

Long story short, oh, yes, I did.  Majorly.  A no contest plea admits the allegations of the indictment.  If the indictment alleges that you possessed more than 100 grams of cocaine, the State doesn't have to prove weight, it doesn't have to prove purity, it doesn't have to prove squat.  You've just admitted that you possessed more than 100 grams of  cocaine.

I'm tempted to blame it on the drugs I'd taken and the noise in the strip club when I wrote the post, but that would require you, faithful reader, to wholly suspend belief and imagine that I lead a far more exciting life than the facts of my baneful existence would support.  I did attend a party for a friend last night, and my parting words were, "I have to go home and feed my cats, and yes, I know that sounds like a cry for help."

So anyway, I made a mistake, and a biggie.  On the plus side, it's the only mistake I've made.  I thought I did one other time, but I was wrong.

Search

Recent Entries

  • November 15, 2017
    What's Up in the 8th
    Plea withdrawals (again), sexual predator hearings, and an appellate law question
  • November 7, 2017
    What's Up in the 8th
    Don't listen to prosecutors about the law, good new/bad news jokes on appeal, and the Byzantine course of a death penalty case
  • October 24, 2017
    What's Up in the 8th
    Trying to change the past
  • October 16, 2017
    En banc on sentencing
    The 8th District takes a look at what State v. Marcum means
  • October 13, 2017
    Friday Roundup
    Musings about the death penalty and indigent defense
  • October 11, 2017
    Case Update
    SCOTUS starts its new term, and the Ohio Supreme Court hands down two decisions
  • October 10, 2017
    What's Up in the 8th
    Collaboration by inmates, fun in Juvenile Court, the limits of Creech, and more
  • October 5, 2017
    State v. Thomas
    The Ohio Supreme Court reverses a death penalty conviction
  • October 4, 2017
    Russ' Excellent Adventure
    A juror doesn't like me. Boo-hoo.
  • October 3, 2017
    What's Up in the 8th
    What not to argue on appeal, waiving counsel, the perils of being a juvenile, and expert witnesses