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What's Up in the 8th

A long time ago, I summarized the 8th's jurisprudence on search and seizure and hearsay as follows:  If you're arrested in Cuyahoga County and you've got a 4th Amendment issue, don't worry, the evidence is going to be thrown out.  But if you do go to trial, anything anybody said is going to come in. 

And so it goes.  

The 8th District's decision last year in State v. Abdul-Hagg introduced us to the term "gorilla time."  That was what an FBI agent threatened the State's star witness with if he didn't cooperate.  We were not surprised to learn that "gorilla time" meant "a lot of time."

Sticking with primate metaphors, Steve Lawson, the State's star witness in last week's decision in State v. Lewis, got "panda time."  Brought in on an aggravated robbery charge, Lawson informed the detectives that he just couldn't do prison time, and told them about a killing two years previously, in which a 20-year-old woman had been shot while walking to a convenient store.  Lawson's reward was to spend ten months in a boarding school outside Philadelphia, his view of the bucolic setting unencumbered by bars or razor wire.

Lawson's testimony was the key feature of the trial, and of the appeal.  After defense counsel had eviscerated Lawson on cross-examination, the detective took the stand and was allowed to read Lawson's entire statement into the record.

That's hearsay, but there's an exception to that rule for prior consistent statements:  a statement is admissible to refute "an express or implied charge against declarant of recent fabrication or improper influence or motive."  Say, for example, that the defense cross-examines a witness, asserting that the witness is lying because he wants to get reward money.  A statement made by the witness before the reward was offered can come in, because it was made before he had a motive to falsify.

The panel decides that Lawson's statement is admissible because it was made before he got the deal.  True that, but his whole purpose in making the statement was to get a deal.  The precise parameters of the deal couldn't be resolved until after he made the statement, but he had a motive to falsify when he walked into the interrogation room.

Under RC 2929.13(F)(6), if your client's had a prior conviction for various serious offenses, a prison sentence for the new one is mandatory.  In State v. Hand, the Supreme Court held that a prior juvenile adjudication could not be used in that fashion; the adjudication violated due process, because of the lack of a jury trial in juvenile proceedings.  The same thing happened to the defendant in last week's decision in State v. Parker:  his sentences for aggravated robbery and felonious assault became mandatory because of a prior juvenile adjudication for the latter offense.

Parker made the same argument that Hand did, but there was a problem:  Parker made his four years before Hand came down, and the 8th District rejected it.  But after the decision in Hand, Parker took another shot at it, filing a motion to vacate the sentence due to the unconstitutional application of the prior juvenile adjudication.

And he wins.  The key issue is whether Hand applies retroactively.  There are generally two kinds of decisions which operate retroactively:  those announcing a new "substantive" rule, and new procedural rules which implicate "the fundamental fairness and accuracy of the criminal proceeding."  A "substantive rule" is one that "either (a) prohibits criminal punishment for certain types of primary conduct, or (b) forbids the imposition of certain categories of punishment for particular classes of defendants."  The majority decides that Hand met the second definition:  the Supreme Court had "limited the reach of the underlying statute by altering 'the class of persons' who may be subject to mandatory prison terms to exclude juvenile adjudications as prior convictions." 

The majority notes that a motion to vacate the plea and conviction has to be treated as a petition for post-conviction relief, and that's where problems arise.  Normally, such a petition must be filed within one year of when the transcript for the appeal is filed (or from the date an appeal could've been filed, if it isn't).  As the dissent points out, a trial court doesn't have jurisdiction to consider an untimely petition, except in two circumstances:  (1) he was unavoidably prevented from discovering the necessary facts, or (2) the US Supreme Court has recognized a new federal or state right that applies retroactively to persons in the petitioner's situation.  (I promise:  that' the last numbered list you'll see here.)  Hand wasn't a decision of the US Supreme Court, so that doesn't count.

The majority got over that hump by deciding that the Parker was unavoidably prevented from discovering the facts necessary for the claim of relief.  I'm not sure of that; it's more accurate to say that Parker was unavoidably prevented from discovering the necessary law.  Still, a win is a win, and this means that, in the 8th District at least, somebody doing mandatory time because of a juvenile adjudication has a path to obtaining relief.  That window might have closed, though; even an untimely petition has to be filed within a "reasonable time" after discovering the facts, and it's been two years now since Hand came down.

Three or four years ago, disposition of cases in the 8th involving an Anders brief would have been by post-card.  No more; now the court writes an opinion in each one.  They have no problem concluding there's no non-frivolous issue in State v. Davis, but the decision is nonetheless informative because of two footnotes.

In the first, the opinion notes that the 4th District has announced it will no longer accept Anders briefs.  While a first in Ohio, numerous other states have adopted that policy as well; it's called the "Idaho rule" because that state was the first to adopt it.  I've heard rumors that the 8th is moving toward doing the same.  Stay tuned.

The second footnote tells us that the court's previous decision in State v. Jones is being considered en banc.  As I explained when I discussed Jones, the Supreme Court's decision in State v. Marcum (discussed here) had a paragraph which seemed to hold that a non-consecutive sentence could be reviewed to determine whether it was "clearly and convincingly" unsupported by the record.  Jones bought into that, but there are other decisions from the 8th which haven't.  We'll sort out the arguments tomorrow.

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