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 »


What's Up in the 8th

What's a poor boy to do?  Say you're a defendant who wants to withdraw his plea.  Your lawyer won't do it, and there's plenty of case law which says that the lawyer is under no obligation to file such a motion if he feels it's not in your best interests.  But if you file it pro se, there's plenty of case law which says that the trial court can ignore that because it's hybrid representation.

I think both prongs of that are wrong; a lawyer can't file a motion he deems frivolous, but "I don't think it's a good idea" or "I don't think we'll win" does not equal "frivolous."  And the main case on hybrid representation - the defendant acting pro se while still having his lawyer represent him - dealt with the trial situation, not motions.  In fact, in two early cases on the subject, the 8th held that the concept didn't apply to motions.

That may change after State v. Ward.  

The State argued that the trial court could ignore the motion to withdraw, but the panel agrees that the concerns about hybrid representation "are trial-based and have less applicability to pretrial and post-trial proceedings where there is no jury to confuse or trial to delay."  The decision to plead is the defendant's alone, and the panel also notes that withdrawing the plea is the flip side of that:  even if defense counsel believes that withdrawing a plea is unwise, that belief cannot supercede the defendant's right to control his own plea.

It's all dicta; the court finds that Ward's reason for seeking to withdraw his plea don't even rise to the level where a hearing is required.  And requiring a trial court to consider every pro se motion might have unfortunate consequences.  One of the other decisions two weeks ago was Shaker Heights v. El-Bey, in which the defendant claimed that he couldn't be ticketed for improper license plates because he is a national of ""United Washitaw de Dugdahmoundyah  Mu'ur, an Original inhabitant of the Americas and a Freeholder inheritance, under the auspices of the great Highness, Emoress Verdiacee 'Tiara' Washitaw (Washington) Tunica (Turner) Gosten El Bey and Her great 'Crown Prince' Ramisis Abel Bey."  Those familiar with the Moor Defense and the Sovereign Citizen movement know that its adherents are not chary in their pro se filings; I had one who filed 73.

But as far as pro se motions to withdraw a plea, I believe Ward gives them a green light.  In fact, any other way would result in completely foreclosing a defendant from seeking to withdraw a plea unless his attorney concurred.

State v. Pierce is a must-read for deadbeat dads.  If a court in a non-support case orders you to pay the child support arrearage as restitution, the amount of the restitution can't exceed the time period of the indictment, which is a maximum of two years.  BUT....  If the court orders the arrearage paid as a condition of community control sanctions, it can use the entire amount of the arrearage.  The case law on child support finds approval of all manner of blood-from-stone experiments, so another one is no surprise.

State v. Rodano looks like the ordinary arson case:  Rodano's house burns down, and he apparently felt compelled to tell everyone and his brother - including his brother - that he torched it for the insurance proceeds.  That Rodano hiked the insurance policy just five weeks prior to the fire doesn't help him, either. 

But the case takes a weird turn:  One of the State's two fire experts changes her conclusion about the cause of the fire from "incendiary" to "undetermined."  That change comes after the grand jury indicted Rodano, and he argues on appeal that the indictment is defective because the grand jury wouldn't have charged him if it had known about the change in the report.

That's a hard sell:  there are a lot of things that turn up between indictment and trial, and they don't invalidate the indictment.  And the argument's made a lot harder by the fact that the issue is raised for the first time on appeal, so it's reviewed for plain error.  That requires a showing of manifest injustice, and Rodano telling his brother that he was "going to be rich," while explaining in sordid detail the process by which that wealth would be acquired, coupled with his 14 prior felony cases just in Cuyahoga County, doesn't exactly call up parallels to the Scottsboro Boys.

You can't appeal a sentence if it's jointly recommended by the parties and adopted by the trial court, but what happens if the parties recommend only a range, like ten to twenty years?  That's what happens in State v. Webster.  Webster gets fourteen and a half, but appeals, claiming that the judge didn't make the required findings for imposition of consecutive sentences.

Two problems with that.  The first is last year's decision in State v. Sergent, where the Supreme Court held that if the defendant agreed to a sentence which would necessarily require imposition of consecutive time, the judge didn't need to make the findings.  The same thing applies to a sentencing range, the panel holds in Webster, helped immeasurably by second problem with Webster's argument:   he agreed at sentencing that the judge didn't need to make the findings. 

We'll close with the second most interesting point about Shaker Heights v. El-Bey.  El-Bey wound up owing $375 on the improper license plates charge, which broke down as follow:

Fine:   $35
Costs:  $340

Bet you don't get hosed like that in United Washitaw de Dugdahmoundyah Mu'ur.


Recent Entries

  • September 12, 2017
    What's Up in the 8th
    Prior consistent statements, whether State v. Hand is applied retroactively, and a big Coming Attraction
  • September 11, 2017
    Case Update
    Looking back at Melendez-Diaz, and the 8th goes 0 for 2 in the Supreme Court
  • September 8, 2017
    Friday Roundup
    Pro bono work, screwed-up appeals, and is Subway shorting their customers?
  • September 5, 2017
    What's Up in the 8th
    The barriers to expungement, jury verdict forms, and hybrid representation
  • August 31, 2017
    Constructive possession
    Constructive possession is 9/10ths of the law
  • August 29, 2017
    What's Up in the 8th
    A traffic stop found Samson Primm in possession of a few grams of marijuana, but he hires a lawyer and files a motion to suppress the stop. On the day of trial, the City asks to dismiss the case. Primm...
  • August 28, 2017
    Truth in plea bargaining
    So I got a brochure last week from Judge Donnelly over at the Common Pleas court. As you can see, it's a panel discussion on plea bargaining. The judge asked me to get out the word, so I just sort...
  • August 15, 2017
    Summer Break
    Got a bunch of stuff to do over the next couple weeks, and with the slowdown in the courts, it's a good time to take a break. I'll be back here on August 28. See you then....
  • August 11, 2017
    Friday Musings
    Drug trafficking, ADA lawsuit abuse, and e-filing
  • August 10, 2017
    Case Update
    Waiting on SCOTUS; two Ohio Supreme Court decisions