November 2017 Archives
If the next bar exam has an appellate question, State v. Bhambra could provide it. He's charged with several counts of rape and gross sexual imposition, but in August he works out a deal: he'll plead to one count of GSI, and one count of the indictment will be amended from attempted rape to felonious assault. (Why isn't important.) He's sentenced on October 14. He files a motion to withdraw his plea, which is denied on November 29. He files a notice of appeal on December 21. In his appeal, he argues that the plea was invalid because under Crim.R. 7(D), an indictment count can't be amended if it would change the name or identity of the crime. The appellate court should:
A) Refuse to consider Bhambra's argument because he only appealed from the denial of the motion to withdraw
B) Vacate Bhambra's plea and remand the case
(C) Reject Bhambra's argument on the merits
The correct answer is (A), but the panel doesn't get to that until it finishes (C). That's not a hard job, because the law's clear that a defendant can waive 7(D), and in fact explicitly did so here. Some extra work, but the panel recognizes this as bootstrapping -- appealing one order to argue one you didn't appeal -- and that's that.
I once had a case on appeal where the trial court improperly imposed post-release control on a weapons under disability charge. Given that the guy had also received a life-without-parole sentence for killing someone with the gun he wasn't supposed to have, that might not seem like a big deal, but PRC has to be imposed properly, no matter how foolishly so, so back it came. When the judge imposed the sentence, she asked the prosecutor whether PRC was mandatory or discretionary. "Mandatory," the prosecutor said, so that's what the judge did, and assigned me the appeal.
PRC was discretionary. So they dragged the defendant back from prison yet again to properly impose PRC on a guy who's never going to get out of prison.
The moral of that story, besides "PRC law is stupid," is "look it up yourself." Last week's decision in State v. Weakley drives that point home.
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