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What's Up in the 8th

The hardest part of filing a motion to reopen your appeal because you think your appellate lawyer was a screw-up -- besides the fact that almost invariably, you have to do it pro se -- is getting in the door.  You have 90 days from the court's decision to file it, unless the court finds "good cause" for a late filing.  That "good cause" appears to be a legal Bigfoot; although people talk about it, there've been no sightings, as best I can tell.

And so the defendant in State v. Robinson doesn't get in the door, in fact, isn't even allowed on the tree lawn:  the time for his filing expired ten years and nine months earlier.  The defendants in State v. Miller and State v. White do make the cut, but their identical arguments -- that the Cuyahoga County common pleas court lacked jurisdiction to try them because the indictments didn't specify where in Cuyahoga County the incident occurred -- is rejected because there's nothing that requires an indictment to do so.  You will probably not be surprised to learn that the two briefs are almost identically worded, as well.

It will surprise you even less to learn that Miller and White are in the same prison.

A.R. has a precious penchant for crime, unmatched, unfortunately, with a precocious talent for not getting caught.  In In re A.R., he files an appeal from no fewer than seven separate cases.  The judge gave him probation for a variety of burglaries, robberies, and thefts, then finally lost patience when he committed his umpteenth violation and sent him to ODYS for five years.

But this is Juvenile Court, where compliance with the rules seems to be more the result of coincidence than competence.  The judge accepted A.R.'s admission of the violation without first informing him of the consequences, and then there's the small matter of violating his probation in seven cases when a probation violation had been charged in only one.  A.R.'s lawyer stood idly by while this was going on, so the panel finds this to be ineffective assistance for good measure. 

Cleveland v. Giering shows the limits of the Supreme Court's decision last December in State v. CreechIn Creech, the defendant was charged with having a weapon under disability, and the State proved the disability by introducing all kinds of evidence about Creech's prior convictions for drug trafficking near a school, felonious assault with a gun, and possession of cocaine.  The court held that the judge should've accepted Creech's offer to stipulate that he had a disqualifying conviction, and kept the details from the jury.

Giering is charged with OVI, and apparently subscribes to the belief that if you're going to drive drunk, go big or (try to) go home.  Not only does she weave all over the road, not only do the police find an open bottle of Grey Goose and assorted other alcoholic beverages in her car, but she falls off the chair while attempting to take the breathalyzer test. 

This wasn't Giering's first intoxicated rodeo; she had four prior OVI's.  The defense filed a motion offering to stipulate only to one conviction, and the State responded that it only intended to introduce evidence of one.

The panel finds the introduction of that conviction to be harmless error, but I'm not seeing any error at all.  Creech doesn't mean that the jury doesn't get to find out about the previous conviction, it just means that the prosecution doesn't get to flesh out the details.  Giering was charged with having an OVI with a prior conviction, and the prosecution here was correctly allowed to tell the jury exactly that.

The panel finds itself "troubled" in State v. Taylor, and understandably so.  Taylor, then 17, had sex with a 12-year-old.  Although law enforcement was alerted, the families decided to resolve the issue among themselves.  Fourteen years later, the DNA from the rape kit comes back, and Taylor eventually pleads guilty to sexual battery.

He appeals, arguing that the common pleas court doesn't have jurisdiction because he committed the crime when he was 17.  But the common pleas court has jurisdiction over an adult if the defendant committed the crime when he was under 18, the offense would be a felony if committed by an adult, and he wasn't apprehended or taken into custody before turning 21.  Taylor contends that since the cops talked to him, he was "apprehended," but it doesn't work that way.

The panel excoriates the police for not investigating it further when it happened, and the prosecutor's office for pursuing it now.  It also says that Taylor could probably have shown prejudicial pre-indictment delay, because had he been prosecuted back then, he would have likely been able to keep the case in juvenile court, would've been subject to a different sexual offender calculation, and would have been eligible to have his record sealed.  His lawyer actually filed motion to dismiss, but says that Taylor told him he didn't want to pursue it.  That's probably as bad a decision on Taylor's part as deciding to have sex with a 12-year-old.

Finally, State v. Maddox provides this week's Tip for Criminals.  Maddox seeks to withdraw his plea, claiming he's innocent.  The judge continues the matter to review the transcript of the plea hearing, but this gives the prosecution the opportunity to check out Maddox's jail house calls.  Sure enough, there was apparently a part of "all jail calls are recorded" that Maddox didn't understand, because he's heard telling one of his homies that he has to get the plea withdrawn, because he doesn't think the victim is going to show up for trial.  There's also a hint that that Maddox's homies might be enlisted to dissuade the victim in that regard.

It's also notable that Maddox appeals from three separate cases numbers, and so he might serve as the Ghost of A.R.'s Future.


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