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What's Up in the 8th

Your client decides he wants to dispense with your services and try the case himself.  Not only does he have to sign a waiver of his right to counsel, the judge has to engage in an extended colloquy with him to ensure that his waiver of this key constitutional right is knowing, intelligent, and voluntary:  inquiring as to any training or knowledge that he has in the law, informing him of the nature of the charges against him and the potential penalties, and advising him of the perils of self-representation.

Your client decides he wants to dispense with a jury and try the case to the judge.  Not only does he have to sign a waiver of his right to a jury trial, the judge has to engage in an extended colloquy to ensure that his waiver of this key constitutional right is knowing, intelligent, and voluntary:  inquiring as to his previous experience in criminal cases, and informing him that while a jury verdict must be unanimous, if he waives a jury the judge will be the sole determiner of his guilt or innocence.

The colloquy requires for a waiver of counsel is called a Faretta hearing.  The colloquy required for a jury waiver isn't called anything, because it doesn't exist.  The "colloquy" necessary for a jury waiver requires the judge to do no more than hold up the waiver and ask, "Is this your signature?"

The judge in State v. Floyd does more than that.  He asks two questions of Floyd:  did he knowingly and voluntarily sign the waiver, and did he wish to proceed with a trial to the judge?  As Floyd learns in his appeal from his conviction of 18 counts involving four carjackings and resultant 16-year prison sentence, that's more than enough.  He also learns that there are few endeavors more Quixotic than claiming insufficiency or manifest weight from a bench trial.

Floyd does have an interesting twist.  Floyd's charge of weapons under disability stems from two juvenile adjudications, and he stipulates to the existence of them.  The judge allows testimony that one of the adjudications was for attempted murder.  The panel finds that this was wrong, relying on the Supreme Court's recent decision in State v. Creech (discussed here).  Creech allows the defense to stipulate to the disqualifying conviction, and if he does, no more evidence can be introduced on that conviction.  It's harmless error, though, because of the overwhelming evidence of Floyd's guilt.

What goes undiscussed is the impact of the Supreme Court's decision last year in State v. Hand, which held that a juvenile adjudication could not be used to enhance the penalty or level of offense for an adult crime.  Although Hand dealt with an adjudication which made Hand's sentence mandatory, thus precluding judicial release, I've argued that it should also apply to weapons under disability:  if the prior adjudication can't be used to increase the penalty for an offense, it shouldn't be used to create the offense in the first instance.

A jury waiver is also the subject of State v. Jordan, where Jordan claims that the judge should've obtained a signed waiver when he elected to try the sexual motivation specification in a kidnapping charge to the bench.  Not so; the statute requiring written jury waivers applies only to the entire case, not to specifications.

Jordan also raises an issue of allied offenses:  Jordan had been convicted of rape and kidnapping involving his girlfriend's daughter when she was between the ages of 10 and 14.  (Jordan dodged a bullet here:  indicted on 35 counts, he was convicted of only four.)  The court applies the analysis set forth in the Supreme Court's decision in State v. Ruff, which I believe is pretty much of a mess.  Regardless of Ruff's inadequacies, it doesn't really matter:  under any view of allied offenses, taking the girl from her home to Jordan's to engage in sexual activity would be separated offenses.

Merger is also an issue in State v. Landrum, another case demonstrating the futility of arguing insufficiency and manifest weight from a bench trial.  Landrum also claims on appeal that his convictions of rape and kidnapping should've merged, but two problems.  First, he didn't raise the issue in the trial court, so it can only be reviewed for plain error, which means it's "not reversible error unless it affected the outcome of the proceeding and reversal is necessary to correct a manifest miscarriage of justice."  Problem No. 2 is that it didn't:  the judge ran the sentences concurrently, so even if there is any error, it's harmless.

In State v. Barnes, yet another bench trial, Barnes is convicted of attempted murder.  Stupid Criminal Trick of the Week:  his Instagram account, which featured a picture of him holding a gun and a large wad of money, led to his identification and arrest.  He argues on appeal that the photo array used to identify him wasn't properly authenticated.  The threshold for authenticating evidence, at least for admissibility, is astonishingly low, requiring little more than "testimony that a matter is what it is claimed to be."  Everything else goes to weight.

One beef here.  The court notes that admission of evidence is reviewed for abuse of discretion, which "connotes more than an error in law or judgment, but instead demonstrates 'perversity of will, passion, prejudice, partiality, or moral delinquency.'"  You will find literally thousands of decisions, many from the Ohio Supreme Court, saying the same thing.

They're wrong.  What you will not find is a single decision where an appellate court ruled that the judge erred in allowing certain evidence, but nonetheless had the discretion to do so.  There are several decisions from the 2nd, 3rd, 10th, and other districts - even the 8th -- which properly hold that no court has the "discretion" to commit an error of law.  There are few areas of law where the judge has more discretion than in sentencing, but if the judge gives your client three years in prison on a 4th degree felony, no appellate court is going to uphold that because the judge wasn't foaming at the mouth when he made his ruling.  


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