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What's Up in the 8th

One of the arguments raised in the appeal in State v. Makin is that the judge denied a continuance requested by the defendant for a defense witness to show up.  That's sabotaged by the defense attorney admitting to the trial court that the witness wasn't really that important.

When I read that, my first reaction was, "what defense witness is?"  One out of twenty will be helpful.  The others range from inconsequential to catastrophic, with the curve skewed toward the latter.  If you put a family member on to give an alibi, you deserve to lose.  In fact, the only thing worse than presenting the testimony of one family member on an alibi is presenting two:  they'll invariably get their stories mixed up.  

You get assigned to an appeal, carefully review the journal entry, and spot that the trial court screwed up on the imposition of post-release control.  So you raise an assignment of error on that.  Sure enough, you lose on all the other issues, but win on PRC.  So that goes in the W column, right?

Probably not.  Here's why:  the case will now go back to the trial court for a resentencing, limited solely to the proper imposition of PRC, in this case, five years mandatory.  So when the defendant gets out in four years, he's going to be supervised for another five.  If he messes up, like dropping some dirty urine, they can send him back to prison for up to nine months at a time, for a maximum of two years, half his original prison sentence.

But it gets worse.  If he doesn't show up for a hearing with his parole office, that constitutes escape, and he's looking at another felony.  Let's say that happens the first year he gets out.  Let's say the judge sends him to prison for that.  The judge can also violate him on the PRC, and give him as a prison sentence whatever time he has remaining on that, which runs consecutive to the underlying sentence.  So potentially, he could wind up spending as much or more time in prison for the PRC violation as he did on the underlying sentence.

What should you have done?  Nothing.  If nobody catches it -- and they're very unlikely to -- when the defendant gets out of prison he can move to vacate the PRC, and the court will:  once a defendant has served his prison sentence, PRC can no longer be imposed.  The short version:  never raise the issue of PRC on direct appeal.

I usually skip over reading over opinions dealing with pro se defendants, but one that caught my eye was South Euclid v. Longino.  Longino was charged with passing bad checks, a misdemeanor, and wound up representing herself at trial.

A trial court has to do certain things before a defendant is allowed to represent herself.  There has to be a valid waiver of the right to counsel, which must be done in open court and recorded on the docket.  Before that, even for a misdemeanor, the judge has to conduct what's known as a Faretta hearing, warning the defendant of the perils of self-representation.

So what happened in Longino?  This is the sum total of what the judge told her:  that she had a right to counsel and to court-appointed counsel if she met certain qualifying criteria.  That doesn't come within an area code of a valid waiver.

Ohio RC 2901.08 provides that a juvenile adjudication can be used to determine a sentence for an adult crime.  Let's say your client is convicted of second-degree felony robbery.  If he has a prior delinquency adjudication for a first or second-degree felony, prison time on the new offense is mandatory.

Well, no.  The Supreme Court put the kibosh to that in its decision in State v. Hand (discussed here), holding that the statute was unconstitutional. 

I've been arguing since then that Hand also forecloses prosecution for offenses based on a juvenile adjudication, like weapons under disability:  if you increase a penalty on the basis of a juvenile adjudication, you shouldn't be able to use a juvenile adjudication to create a crime.  Nobody's bought that yet, but it gets worse in In re J.T. 

Here's something I didn't know:  while you can't attach a firearms spec to a weapons under disability charge for an adult, you can for a juvenile; RC 2152.17(F) specifically permits it.  That's what happened to J.T., and he appeals, arguing that it's a violation of equal protection to punish a juvenile more harshly than an adult.  But the panel says the statute only requires a rational basis, and it's perfectly rational for the legislature to look at the juvenile court system, where juveniles are supposed to be treated more leniently, and decide that they shouldn't be. 

Finally, we come to State v. Westley.  Westley brings her ten-week old son to the emergency room, where examination reveals multiple healing rib fractures and a healing fracture of the femur.  The State charges Westley with child endangering, arguing that the injuries were caused by Westley's boyfriend, and she should've known about it.  In that endeavor, the State presents expert testimony from a doctor that the injuries weren't accidental in nature.

But how certain is the doctor of that?  We don't know, because the prosecutor never asked.

It doesn't require a whole lot.  While the standard expert opinion question phrases it in terms of reasonable medical or scientific certainty, the Supreme Court has interpreted that to mean "more probable than not."  And in the criminal context, it's not even that:  a "possibility" is sufficient, with the jury deciding whether that's sufficient.  Here, though, the doctor wasn't even asked about whether it's possible, so the court sua sponte raises the issue of sufficiency and decides that it's not, and Westley walks.

If you've got a case involving expert testimony, Westley is something you want to look at.  Especially if you're a prosecutor.


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