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What's Up in the 8th

There are 34 judges here in Cuyahoga County, and you can win or lose a case in the arraignment room.  Michael Young lost his there.  He was accused of child pornography, and sentencing for that runs the gamut from probation to multiple decades.  The wheel for him landed on "multiple decades":  he wound up with a judge who imposes probably the harshest sentences for that crime of anyone on the bench.  Sure enough, he wound up with a sentence one month shy of 22 years, and that was affirmed on appeal.

He pops up again in State v. Young, this time with an appeal from the denial of his motion to vacate his plea.  He argues that his lawyer was ineffective for not telling him that the sentence would be "anything close" to what he actually got, and his trial lawyer mans up and signs an affidavit admitting that he figured the sentence would be closer to half of what he got, and told Young that.  Young also claims that his lawyer failed to present certain mitigating evidence.  The court rejects all this, finding that it's res judicata:  "Young could have raised any argument regarding ineffective assistance of counsel relating to his plea and the length of his sentence in his direct appeal."

Well, no.  Those arguments couldn't have been raised on appeal, because none of that was in the record.  That's why you have post-conviction relief and motions to vacate a sentence:  it allows you to introduce evidence that wasn't in the record, and which accordingly couldn't have been considered on appeal.

Young also argues that he should be allowed to withdraw his plea, because his sentence was "wildly excessive," and "well exceeded" what his lawyer told him it was likely to be.  The court's on safer grounds with that, resting on the time-worn observation that "a lawyer's mistaken prediction about the likelihood of a particular outcome is insufficient to demonstrate ineffective assistance of counsel."

The National Rifle Association regularly pushes stories about armed citizens fending off criminals, in line with their motto that only a good guy with a gun can stop a bad guy with a gun.  Leonard Goins will not be featured in one of those stories:  when Steven Nelson confronted him with a gun, intending to rob him, Goins, a concealed carry permit holder, pulled out his own weapon, and the two exchanged gunfire.

It was not an even exchange:  Nelson got shot in the foot, while Goins took a fatal bullet to the head.  In State v. Nelson, the 8th decides that there was insufficient evidence of prior calculation and design, and vacates Nelson's conviction for aggravated murder on Count 1.  That leaves standing the conviction for aggravated murder on Count 2 - purposeful killing in the course of committing an aggravated robbery - and so his appellate lawyer gets to tell him the classic good news/bad news joke.

One other issue in Nelson.  The law requires a judge to run the first two firearm specs consecutively if they're for a first-degree felony or felonious assault, and the judge has the discretion to impose any further firearms specifications for those offenses consecutively as well.  And if the judge does do so, the court holds, he needn't make the findings for consecutive sentences. 

In State v. Rosser, Rosser is charged and convicted in 2015 for an attempted rape and kidnapping he committed in 1996, when he was 17.  The court easily rejects claims of pre-indictment delay and statutes of limitation.  But then things get weird. 

The law is that the juvenile court has jurisdiction if (1) the offender was under 18, (2) the offense would have been felony if committed by an adult, (3) the offender was "taken into custody or apprehended" for the offense prior to age 21.  It's not clear from the opinion, but apparently Rosser was taken into custody before turning 21.  Attempted rape and kidnapping are not "category 1" offenses, which require a mandatory bindover; they're category 2 offenses, which means that not only does the juvenile court have to have a probable cause hearing before binding the case over to the common pleas court, it has to have an amenability hearing, too, to determine whether the juvenile is capable of being rehabilitated in the juvenile court system.

Although neither party raised the issue, the court does sua sponte:  since Rosser wasn't given an amenability hearing, that means the bindover wasn't proper, and that means the common pleas court lacked subject matter jurisdiction to try him.  The court reverses for ineffective assistance of trial counsel for failing to file a motion to dismiss for that reason, and the case is sent back to the juvenile court for the amenability hearing.  The outcome of that isn't difficult to guess:  Rosser is now 39, and in the 20 years since gaining adulthood he's managed to acquire no fewer than eleven criminal cases.  The smart money is that the juvenile court will decide there's nothing they can do to rehabilitate Rosser at this stage, and send it over to common pleas court anyway.

That doesn't mean Rosser loses completely:  since the common pleas court never had subject matter jurisdiction, his conviction and six-year sentence are a nullity, so he starts all over again.  (And only for kidnapping; the jury acquitted him of the attempted rape.)  My theory of appellate and post-conviction work is simple:  do everything you can to get back into the trial court, because that's where good things can happen.  Rosser did, and a plea deal should cut some years off his sentence, at the least.

And a shoutout to the court, for spotting an issue that nobody else had.

Timothy Bennett was on probation for OVI, and decided that the alcohol monitoring device he'd been ordered to wear unduly crimped his lifestyle, so he cut it off.  That got him convicted of escape.  One problem:  the subsection of the escape statute he was charged with requires that he'd been on "supervised release detention," which means post-release control.  The State concedes the error in State v. Bennett, leaving unexplained why it did not concede error at the plea hearing, or why it bothered to indict Bennett in the first place.  


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