Milestones abounded last week. Wednesday was the anniversary of the Supreme Court's 1954 landmark decision in Brown v. Bd. of Education. Thursday was the anniversary of the infamous decision it overruled, Plessy v. Ferguson. And Tuesday was the 11th birthday of this blog. Some would say they're all of equal importance. Some would say that's the problem with hallucinogenics.
No new criminal decisions from SCOTUS last week, but we'll talk about one I missed, Nelson v. Colorado, which came down a month ago. It's relatively simple: Nelson had been convicted and ordered to pay restitution, which she did. Then her conviction was reversed on appeal, and the State decided not to retry her. She asked for her money back, but the Colorado courts pointed to the state's Exoneration Act. That had been passed to award compensation to those wrongfully convicted, but in a curious twist, the statute also provided that to regain money paid in restitution or fines after a vacated conviction, the defendant had to file a civil action, and then prove her innocence by clear and convincing evidence.
Colorado's the only state to do that, and now there are none: even before the decision, a new Colorado statute was to go into effect in September, providing for automatic reimbursement if a conviction is vacated. Thus, there's a temptation to view Nelson as an opportunity for bemusement at Thomas' lone dissenting opinion, which bewilderingly argues that the only source of relief for Nelson is the 14th Amendment's due process clause, and since in his view that amendment confers no substantive rights, "Colorado is therefore not required to provide any process at all for the return of the money."
I mean, that's silly. Can anyone think of a process by which the government can seize your money, then force you to file a lawsuit and prove that you should get it back?
Well, yes, you can: civil forfeiture.
That might even get Thomas aboard. Two months ago the Court declined cert in a Texas case because of a critical procedural problem, but Thomas wrote a statement with the denial castigating the "egregious and well-chronicled abuses" in far too many forfeiture cases. (You can easily find them on your own. That's why God created Google.) Keep in mind that this was a case the Court decided to hear, despite knowing that the issue would be mooted when the new state law went into effect in a few months. That would ordinarily warrant a DIG - dismissed as improvidently granted - but maybe the Court was sending a message.
No messages from Columbus; a few civil and disciplinary decisions, and that's about it. Let's check out the courts of appeals.
The defendant in State v. C.H. doesn't have a problem with getting back the restitution she paid; she didn't pay it. And therein lies the problem. After the appropriate time, she seeks to have her conviction for felony theft expunged, only to find that the "appropriate time" is three years after she's paid the required restitution.
The expungement statutes provide that sealing can be sought three years after the defendant's "final discharge" from her sentence. Three years ago, in State v. Aguirre, the Supreme Court held that discharge wasn't final as long as there was unpaid restitution. As the 10th District notes in ruling that the trial court erred in granting expungement, "the clear implication of the ruling of Aguirre is that it is much easier for a rich person to get an expungement in Ohio than it is for a person of modest means even if they committed the same crime." Well, at least the poor can sleep under bridges, just like the rich can.
There are few courts more hypertechnical than the 9th District, and that comes into play again in State v. Dawson. Dawson raises eight assignments of error from his conviction of vandalism; one of them is that the State improperly questioned him about his prior alcohol use, another that the prosecutor committed misconduct in closing argument. The court notes that no objection was raised to this below, which means that it's reviewed only for plain error. But the court refuses to consider it, because plain error wasn't argued on appeal.
I'm not seeing this. Plain error is not an assignment of error, it's a standard of review. If the defendant raises an issue which was not objected to below, it's perfectly appropriate to engage in a plain error review, which is rarely successful for defendants. But it doesn't make much sense to refuse to engage in any review because the defendant didn't use the magic words.
What does the court have to tell a defendant who's pleading to a sex offense about registration requirements? A lot, the 6th District decides in State v. Kouts. Kouts pled guilty to two counts of gross sexual imposition and five of pandering sexually oriented material involving a minor. The judge told him during the plea hearing that he would be a Tier III offender, required to register every ninety days for life, and that there would not be a community requirement notification.
The panel goes through the requirements for determining whether a plea is valid. Strict compliance is necessary for constitutional rights, but only substantial compliance is required for non-constitutional rights, such as registration. "Substantial compliance" comes in two flavors: if the court partially complied, then the defendant must show prejudice: that he would not have pled if he'd been properly advised. But if the judge completely fails to comply, then the plea must be vacated without a showing of prejudice. (The discerning reader might notice the contradiction in finding that a judge did not "substantially" comply because he did not comply at all.)
So what's the problem in Kouts? The 6th District has previously held that the judge must advise the defendant of three things: the registration requirements, the community notification requirements, and the residential restrictions. What's more, the three are independent; if the judge misses one, the plea is invalid. That's what happened in Kouts: the judge never told Kouts about the residential restrictions.