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What's Up in the 8th

There's been a big movement toward easing the re-entry of criminals back into society.  Ohio's expungement laws have not marched in lockstep with that concept.  Which is difficult to understand:  the surest way of preventing a felon from recidivating is to have him get a job, and there is no greater barrier to employment than a felony record.

And so it goes.  Although the panel in State v. T.S. opines that "if anyone deserved to have a record expunged, it is T.S.," the court is compelled to reverse the grant of expungement, by the clear language of the statute:  T.S. pled to child endangering, and you can't have a conviction expunged, felony or misdemeanor, if the victim was a minor.

The panel urges the General Assembly to take another look at the expungement statutes, but one has difficulty imagining six more forlorn words in the English language than "maybe the legislature will fix this."

The defendant in State v. T.M. doesn't fare any better.  He's attempting to get his conviction for abduction expunged.  That's a problem:  you can't expunge a crime of violence, and abduction is defined in the statute as a crime of violence.  The judge grants the expungement anyway, deciding that nothing in the record indicates that any violence occurred.

The 8th District bought that - in 2014.  The defendant in State v. V.M.D. had pled to attempted robbery, a third degree felony, but the 8th reversed a denial of expungement, deciding that nothing in the record indicated that any violence occurred.

And they got unanimously gob-smacked into last month by the Supreme Court.  A "crime of violence" is defined by statute.  The End.  And so T.M. meets the same fate.  Once bitten, twice shy.

There'll be a memo going around in the prosecutor's office tomorrow, if it hasn't already, with the subject heading "CHECK THE JURY VERDICT FORMS!!!"  That's the lesson taught by State v. Shaw

Shaw supposedly shot at a couple people, but it was kind of a hoky case.  The jury acquitted Shaw of the two felonious assault counts, but convicted him of discharging a firearm over prohibited premises (in English, "the street").  That's a third degree felony, so Shaw's looking at a minimum five years.  To give you an indication of what the judge thought of all this, he allowed Shaw to go free on a personal appellate bond.

Did I mention that discharging a firearm over prohibited premises is a third degree felony?  Well, it is, if the State proves that the discharge created a substantial risk of harm to persons or caused serious physical harm to property.  The indictment included that language.  The jury instructions included that language.

The jury verdict forms did not:  they simply asked the jury to decide whether Shaw was guilty or not guilty of discharging a firearm over prohibited premises.  And under the Supreme Court's decision in State v. Pelfrey, if the circumstance which elevates the crime isn't included in the jury's verdict, the defendant can only be convicted of the least serious level of the offenses.  That's a misdemeanor, and it looks like Shaw will be around for a while:  a gun spec doesn't attach to a misdemeanor.

There are few issues which have bedeviled the appellate courts more than plea withdrawals, and the decision in State v. Ortiz highlights, rather than clarifies, the problem.  And that problem is, what does the lawyer do when the client wants to withdraw the plea, especially where the client is claiming that the plea was induced by the lawyer's malfeasance or nonfeasance?

Ortiz was charged with seven counts of rape and two of kidnapping, pertaining to two victims.  He filed a motion to disqualify the Public Defender as his counsel, claiming that they'd failed to investigate the case.  The judge held a hearing, announced, "the Court does not recognize hybrid representation anymore," and denied the motion.

Ortiz pled to one count of attempted rape and one of rape.  Before sentencing, Ortiz filed another motion to disqualify his attorney, and at the sentencing hearing made an oral motion to withdraw his plea.  The judge denied both, on the same basis:   allowing the defendant to file pro se motions would be hybrid representation.  The panel affirms on that basis.

To be sure, there are numerous cases in the 8th which hold that a judge need not consider pro se motions if the defendant is represented by counsel.  But several months back, in State v. Ward, the 8th District took another look at that, and decided that barring "hybrid representation" applied more in the trial setting, rather than to motions.  (In fact, in several earlier cases the 8th had specifically held that it didn't apply to motions.) 

And in the context of these motions, it's hard to justify ignoring it because it was filed pro se.  For the motion to disqualify, what's the defendant to do?  Tell his lawyer, "Could you please file a motion saying that you're screwing up my case so I can get a new lawyer"?  The same with a motion to withdraw the plea.  The courts have also held that an attorney has no obligation to file a motion to withdraw a plea if he feels withdrawal would not be in his client's best interests.  So the attorney doesn't have to file one, and the defendant can't. 

Ortiz makes a second claim:  that since the basis for the withdrawal was that counsel had failed to investigate the case, counsel couldn't properly represent Ortiz on the motion to withdraw, and thus his right to counsel was violated.  The panel decides that this requires Ortiz to show that he had a reasonable and legitimate basis for the withdrawal of his plea.

But isn't it the lawyer's job to demonstrate that Ortiz had a reasonable and legitimate basis for withdrawing the plea?

Basically, what Ortiz says is that motion to withdraw a plea can be denied on the sole grounds that it was filed pro se by a defendant who was represented by counsel, and that despite the quality of that representation being the basis for seeking withdrawal of the plea, defense counsel can simultaneously defend herself from the defendant's attacks while continuing to represent the defendant.  

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