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What's Up in the 8th

My winning streak - which was either at one or two, I forget - comes to an end with State v. Lash.  Lash and his three compatriots decided to rob an AutoZone.  From his prior experience working there, Lash knew that the store was staffed by two people.  One would take out the trash near the close of business.  The plan was to blind and handcuff him, then rob the store.

The first part went as planned, but the second part was aborted when some customers drove up.  Various other factors led to the search of the house where Lash lived with his mother, and in his bedroom the police found a pair of handcuffs, with the serial numbers scratched off.  Oh, wait, did I tell you the part where the police found that the employee had been bound by an identical pair of handcuffs, with the serial numbers scratched off?

That led to a tampering with evidence charge, certainly the least of Lash's problems, but the one for which I devoted most of my ingenuity.  Tampering requires proof that an investigation was in progress or likely, and I argued that since the crime hadn't progressed to the point where it was even an attempt, there was no investigation likely.  Even threw in some law school bullshit about inchoate crimes.

Yeah, that went well, right?  Ingenuity indeed.  Well, it wasn't the worst argument I've made.  That week...

In State v. Parker, the defendant beats up his girlfriend and winds up pleading to 4th-degree felony burglary and simple assault.  The judge gives him 18 months in prison, and Parker appeals, claiming that he should've gotten probation.

RC 2929.13(B)(1)(a) requires a judge to impose community control sanctions if the highest offense the defendant is pleading to is a fourth or fifth degree felony, and he's got no prior convictions for a felony or a misdemeanor offense of violence.  But (B)(1)(b) gives the judge "discretion" to impose a prison sentence if he makes certain findings.  One of them is that the "offender caused physical harm to another person while committing the offense."

As I've explained before, I think there's an Apprendi/Blakely problem with that.  The way the statute's written, community control sanctions is the maximum penalty the defendant faces if he meets the qualification of (B)(1)(a); it says the judge "shall sentence the defendant to a community control sanction."  Sending him to prison requires the judge to find certain facts, and Apprendi/Blakely requires those facts to be found by a jury or admitted by the defendant. 

The panel finds that the prison sentence was permissible because the defendant did indeed cause "harm," citing the presentence investigation report.  But if a judge isn't allowed to find facts, a probation officer certainly isn't.  No jury found that Parker caused physical harm, and causing harm isn't an element of burglary, so it wasn't admitted by his plea.

At least, not to his plea to burglary.  There is still the matter of the assault, and his plea there certainly constituted an admission that he caused harm.  Whether that can be dragged into the burglary is another question.

Does your car have a battery, an engine, transmission, and radiator?  Probably so, else you'd have some problems getting around in it.  But the Cleveland police want to make sure. 

Two officers stopped the defendant in State v. Lewis for a traffic violation, and found Lewis had a warrant for driving under suspension.  So he was arrested, the car was to be towed, and the police began their inventory search.  One of the first things they did was pop the hood, where they observed the handle of a gun sticking out.  There are also some drugs in the car, so Lewis gets hit with drug possession with a one-year firearm spec and CCW.

It's all good, the panel decides, because the Cleveland Police Department tow policy requires an officer conducting an inventory search to determine "if a car contains a battery, radiator, engine, air conditioning, radio, tape player, CD player, keys, and transmission." 

To be sure, if a search isn't conducted in accordance with the policy, then it's a bad search.  But the flip side isn't true:  just because it's in the policy doesn't mean that the search is good.  The whole idea behind the inventory exception was explained by the officer: 

When we tow that vehicle we're responsible for that vehicle. And let's say there was personal items that were valuable and if it wasn't listed and it ended up missing, we would be responsible for it.

A transmission isn't a "personal item."  The goal of the inventory policy is to make sure that any valuables in the car are secured.  It's not to make sure that the car can run.

Does that mean people will hide contraband under the hood?  Of course it does.  But an inventory search isn't supposed to be a search for contraband.  People may hide drugs under the hood, but they sure don't hide their wallets or their iPads there.

The defendant in State v. Ledbetter seeks relief by way of a Rule 26(B) motion, claiming that his appellate attorney was ineffective.  This requires him to propose an assignment of error that his lawyer should have pursued.  Ledbetter's grievance is summed up by his assignment:

Appellant was denied effective assistance of counsel ... where his appellate counsel omitted a dead bang winner." 

The opinion, alas, does not spell out what the "dead bang winner" is alleged to have been.

Probably something about inchoate crimes.


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