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What's Up in the 8th

As if my life isn't complicated enough, here I find out that there's a war between two branches of the Heartless Felons, the Fleet and Broadway divisions.  I'm sure a good moral cause motivates at least one of the players in this internecine conflict, but can't quite be troubled to learn which one.  In any event, Antonio Houston is convicted of shooting at a bunch of people at various times while riding in a car.

He didn't kill anyone, but he might as well have.  By the time we get stacking sentences, and throwing in the firearm specs and the driveby specs and the RVO's, he winds up with 67 years in prison.  He'll next breathe the air as a free man when he turns 93.  It says here he doesn't make it. 

The panel's affirming all that breaks no new ground, but every now and then it's helpful to go back over well-trodden fields.  So here's what you need to know:

Joinder.  Legal:  Three tests for joinder.  (1) Is the evidence of both crimes interwoven because they are part of a course of conduct?  (2) Would the evidence of one be admissible under 404(B) in the other?  (3) If neither of those two apply, is the evidence of each crime "simple and direct"?  Practical:  It's always "simple and direct."  Trust me.  People ask me a lot of questions, but if one is "when's the last time you came across a case that tossed a conviction for improper joinder?" I'm drawing a blank.  Analysis:  The discerning reader will note the absence of a step requiring the court to evaluate the prejudice to the defendant of having the jury know this foray into crime was not his only one.

Gang Membership.  That's coming in, including expert testimony.  What, did you think it was going to be kept out?

In State v. Hunter, the panel reverses the trial judge's dismissal of a case for pre-indictment delay.  Not the judge's fault; he made his decision before the Supreme Court clarified the test for pre-indictment delay last summer in State v. Jones.  So it goes back to him so he can apply the test.

How that's going to come out is anyone's guess.  There's no question of unjustifiable delay; Hunter was identified by the woman at the time of the incident.  But you don't get to that issue unless you can show actual prejudice. 

Hunter's claim of prejudice is faded memories -- his and a friend's -- and the inability to locate other witnesses.  There's a boatload of cases saying that faded memories don't cut it.  As for missing witnesses, "Hunter need not set forth exactly what an unavailable witness might have said if he or she were available to testify.  However, it is still necessary that the defendant explain how the unavailable witness's testimony would hurt or undermine the state's case and aid the defense."  How that's developed is going to be the key.

My good friend Jeff Gamso, who writes a blog and has been one of the best appellate lawyers in the State since FDR's third term (well, no, he's not quite that old), comes up with an interesting take on consecutive sentences.  Latwan Anderson pleads to three aggravated robberies with gun specs, and the judge gives him minimum sentences on each of the three, but runs them all consecutively.  Gamso's argument is that if the judge felt minimum sentences were warranted, that was inconsistent with a finding that consecutive sentences were necessary to protect the public.  Interesting, yes, but the panel is singularly unimpressed, and affirms, concluding that the judge need not impose maximum sentences in order to run them consecutively.  And that's probably a good thing.

But four cases - count'em, four - go into the win column for defendants.  The judge in State v. Lawson imposes consecutive sentences, but makes only one of the three required findings.  It goes back for him to decide whether he can make the other two.  Given that Lawson has fourteen prior felony cases in Cuyahoga County, we know where the smart money is on that one. 

Michael Williamson is convicted of 12 counts of rape in 2001, and gets 12 life sentences.  He files a motion for DNA testing in 2016, which the judge summarily denies on the basis that it's "untimely."  There are a number of factors to consider in determining whether to grant DNA testing, but timeliness isn't one of them; there's no time requirement.  So it gets reversed and goes back for consideration of the actual factors. 

State v. Jackson involves another cold case rape, which occurred in 1995.  Jackson pleads to sexual battery, and the judge tacks on five years of post-release control to his sentence.  The problem?  Post-release control didn't come into being until the sentencing reforms of 1996.  Application of them to Jackson would violate the Ex Post Facto clause.

Speaking of PRC, back in the early days, it was customary for journal entry imposing PRC to simply state, "post release control is part of this prison sentence for the maximum period allowed for the above felony(s) under R.C. 2967.28."  That's what the judge did in State v. Kuhn, and subsequent decisions have made clear that that's not enough:  the entry has to advise the defendant whether PRC is mandatory or discretionary, whether it's for five years or three, and provide some notification of the consequences of violation.  What's more, it can't be corrected once the defendant has finished serving his prison sentence, which Kuhn has.

But Kuhn had also finished serving the period of post-release controls.  That would ordinarily moot the appeal, as the court recognizes in a footnote.  The court nonetheless determined that it should "decide the matter on the merits," because Kuhn spent time in prison based on a violation of PRC - "a period that was improperly imposed."  I'm not sure why that makes a difference.  If they're hinting at the possibility of compensation for wrongful imprisonment, that requires you to show that you're actually innocent, and a PRC violation isn't going to cut it there.

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