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What's Up in the 8th

Sylvester Cotton and Michael Brooks held up a guy at gunpoint, robbed him of his cellphone, then drove him around town and forced him to withdraw money from various ATM's.  Not content with that, they drove him to an alley, forced him to undress, and shot him several times.  Not enough times, it turned out; the top charge was attempted murder.

But there were a whole bunch of other ones.  Both went to trial and got convicted, with Cotton getting 78 years and Brooks 75.  Both appealed, and Brooks got 14 years chopped off of his sentence, the court finding that the evidence was insufficient to sustain the aggravated burglary conviction.  The court didn't find that in Cotton's case, because his lawyer didn't raise it. 

There's a provision in the appellate rules, Rule 26(B), which allows the court to reopen an appeal if it determines that the attorney handling it rendered ineffective assistance.  The Ohio Public Defender picked up the case, filed a 26(B), and last week in State v. Cotton the panel reversed Cotton's conviction and sentence for that offense as well.

This is all you need to know about the state of appellate review of sentencing.  Both men will die in prison; even with the reduction, Cotton would have to reach age 88, and Brooks would have to hit the century mark.  And nobody even bothered to raise that as an issue on appeal.

Sometimes a prosecutor has to protect a judge.  I handled an appeal recently where the defendant, a lawyer, wanted to represent himself.  I thought that maybe the court had failed to conduct what's called the Faretta hearing, where the judge explains the perils of self-representation.  Then I looked on the docket, saw who the prosecutor was, and knew that he was smart enough to make sure the judge did.  I reviewed the transcript when it came in, and sure enough, the judge would have skipped that part, but the prosecutor reminded her to do it.  (I got the case reversed on something else.)

That didn't happen in State v. Scalf.  The shrink who examined Scalf diagnosed him with intermittent explosive disorder and reported that he experienced episodes of hearing voices and seeing visions, with a history of schizophrenia and bipolar disorder.  The doctor nonetheless found him competent to stand trial, lending support to the theory that the standard for determining competency is the ability of the defendant to distinguish his lawyer from a cabbage.

By the time trial rolled around, Scalf had gone through two attorneys, and when he expressed dissatisfaction with the third, the exasperated judge said, "Sounds like you want to try this case yourself," and when Scalf agreed, let him do so.  Since that was without the formality of the Faretta hearing or the signed waiver of counsel required by CrimR 44(C), it comes back, the State conceding the error it could have itself prevented. 

In State v. Jennings, the first assignment of error is that the conviction is against the manifest weight of the evidence.  This is normally a Quixotic exercise, made more so by the fact that this was a bench trial.  Reversal on that basis requires a determination that the fact-finder lost its way, resulting in a manifest injustice.  Good rule of thumb:  juries rarely lose their way, judges never do.

Jennings fares better in his second assignment of error.  The judge maxed out Jennings on the felonious assault, and tacked on five more years on the repeat violent offender specification.  The judge, though, hadn't made the findings for that required by RC 2929.14(B)(2)(a)(iv) and (v): that a maximum prison sentence is inadequate to punish the offender and is demeaning to the seriousness of the offense, because the RC 2929.12 factors indicate that the offender's conduct is more serious and there's a greater likelihood of recidivism.  So the case gets remanded for a resentencing hearing limited to the RVO spec.  Wonder how that'll turn out.

In Cleveland v. Clay, the defendant was charged with domestic violence, and on the day of trial agreed to plead to aggravated disorderly conduct.  When the judge told him he has to accept responsibility, though, Clay withdrew his plea and goes to trial.  He appeals his resulting conviction for assault, claiming that the judge was biased.

This is an easy one:  apparently, the only evidence of bias is the judge's insistence that Clay accept responsibility if he's going to plead, and the panel correctly finds that that's not sufficient to show that Clay couldn't get a fair trial.  Instead of disposing of it on that basis, though, the panel adds that Clay's remedy was to file an affidavit of disqualification with the Supreme Court.

A number of courts have held to this effect, some going so far as to state that an appellate court lacks jurisdiction to even consider a claim of the trial judge's bias because only the Supreme Court has the power to remove a judge for bias.  Notably, the Supreme Court has never held this, and in fact reversed a capital case because of a judge's bias. 

To be sure, only the Supreme Court has the power to remove a judge from a case, but this has nothing to do with determining whether the judge exhibited bias at trial.  That's all the more significant because the procedure to disqualify a judge under RC 2701.03(A) requires that the affidavit be filed at least seven days prior to trial.

Finally, we have State v. Vihtelic, where the court inexplicably devotes 17 pages to an appeal from a denial of a pro se motion to withdraw a plea that was entered nine years ago.  Our motto here at The Briefcase is "We read the cases so you don't have to."  But we don't read all of them, all of the way through, and in this one, "affirmed" and "pro se" was all we needed to know. 

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