What's Up in the 8th
What's dumber? Leaving open the door of the warehouse where you've got a marijuana grow operation, or dealing drugs from the house across from a police station? In this week's version of Stupid Criminal Tricks, the contestants are the defendants in State v. Lunder and State v. Ledbetter, respectively. We also learn what trial court and appellate courts can't do, and what attorneys should do.
In Lunder, the police get a call from a concerned citizen that the door to a warehouse across the street is open, which he finds, well, concerning. The police respond, decide that a burglary may be in progress, and enter the warehouse. They don't find anyone, but they do find some very healthy marijuana plants. The question is whether they could enter without a warrant. The majority decides that they can, under the "emergency-aid" exception to the warrant requirement. The dissent puts up a decent fight that an open door ≠ burglary, but the moral is if you leave the door open to where you've got your drug operation, you probably deserve to go to prison.
Ledbetter pleads out to drug trafficking with an agreed three-year minimum, gets four, and appeals. There's been increasing confusion among various panels on the 8th -- and just about everywhere else in the state -- as to exactly what an appellate court can do in reviewing a sentence, and that continues here. The court tells us that the judge doesn't need to make findings under RC 2929.11 and 2929.12, and that as long as judge considered the factors, "the appellate inquiry ends." Well, it doesn't here: the opinion goes on to say that the sentence is contrary to law if "the court makes certain findings [which, supposedly, it doesn't have to make in the first place] that are clearly and convincingly not supported by the record."
That's what an appellate court can or can't do, depending on how you read it. State v. Linville and State v. Saxon make clear what a trial court can't do. In Linville, the judge orders the forfeiture of Linville's car, but you can't do that if there's not a forfeiture specification in the indictment, and the State concedes there wasn't one here. They'd probably know. In Saxon, the judge puts the defendant on community control sanctions, then adds more conditions over the course of the next several months, then ships the defendant when he violates one of the new conditions. Can't do that, either: once a judge has put the defendant on sanctions, he can't add new conditions unless there's a violation of the old ones.
I've railed against jury waivers for some time, arguing that it should be rarely done because it eliminates many potential grounds of error on appeal. State v. Catney provides one more thing to consider. The police conduct one of the more egregious pre-trial identifications I've seen, eschewing a photo display in favor of showing the victim two pictures, both of Catney, one from the BMV and other from the county jail, in which his sartorial choice is an orange jumpsuit. But this is a bench trial, and in rendering his guilty verdict, the judge says he gave no weight to the identification testimony, relying instead on other evidence. The jury's verdict would have been guilty or not guilty, and wouldn't have included the addendum, "Oh, by the way, we ignored the identification because it was so whack." There's a huge difference in the harmless error analysis in those two situations.
The judge in a child rape case finds the two seven-year-old victims competent to testify against your client. Do you object? Do you object again when the children testify? You'd better, according to State v. Norman; otherwise, you've waived the issue and it's reviewed only for plain error. And you'd also better object if the judge orders your indigent client to pay court costs. In State v. Gibson, the court holds that the lawyer was ineffective for failing to request a waiver. I've seen courts find the attorney ineffective for failing to file the affidavit of indigency needed to waive a mandatory fine, but this is a first.
I've had a couple of cases this year where the appellate court remanded the case back to the judge for correction of the journal entry, usually because the judge failed to include something which prevented the entry from being final and appealable. The lawyer in State v. Ocasio isn't so lucky. She writes a brief containing eight assignments of error in the appeal from Ocasio's conviction of Ocasio of rape, sexual battery, multiple counts of GSI and kidnapping, all with sexually violent predator specifications, plus three counts of child endangering, and resultant 128-year-to-life sentence, only to see the panel dismiss the case for want of a final appealable order.
Why? Because the judge didn't impose a sentence on the three counts of child endangering. It can be a bitch to go through a sentencing entry to make sure it's Baker-compliant -- in a case decided three months ago, this same judge had issued a sentence where nobody could agree whether the total time was 84 years, 99 years, or 104 years -- but it's a bigger bitch to go back to the court, get the proper entry, appeal again, and write the brief again. I've started checking out the entries, and maybe that's a good idea.