What's Up in the 8th
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.
Megan's Law, Ohio's earlier sex registration law, had a provision allowing the judge to conduct a hearing to determine whether the defendant was a sexual predator. You don't see many of those any more. Megan's Law was replaced by the Adam Walsh Act in 2008, so to get a hearing you would have (a) had to be in prison in 1996, when Megan's Law went into effect, and (b) still be in prison (the law provided you get the hearing when you get released), or (c) committed a crime while Megan's Law was still in effect. The defendant in State v. Durant makes the cut: in 1993, he was given an indeterminate sentence of up to 25 years for rape, and when he was released 23 years later, the court had a hearing and designated him a sexual predator.
To brand him a predator, the court had to find by clear and convincing evidence that Durant was likely to commit another sex-related offense. The most determinative factor in the outcome of an appeal is the standard of review, and here Durant is hampered by the fact that a sexual predator hearing is a civil proceeding, and thus the judge benefits from an even more deferential standard than that in criminal cases: the judgment will be upheld as long as there is "credible, competent" evidence to support it.
Durant also argues that the judge never determined that he was likely to reoffend, buttressed by a transcript which shows the judge never mentioned it. No problem, says the majority: ""Such a [finding] is redundant where the trial court determines that an individual is properly classified as a sexual predator." In other words, since the judge had to find that Durant was more likely to reoffend in order to find him a sexual predator, and since the judge did find him to be a sexual predator, he must have found that Durant was more likely to reoffend.
You've got a client charged with receiving stolen property for driving a car that didn't belong to him. The morning of trial, the prosecutor tells you that the owner of the car won't be testifying. Gleefully, you tell your client you're got a sure winner: without the owner, there's no way to prove that the car was stolen.
Yes, there is, State v. Bridgett tells us. "The relevant inquiry concerns not who owned the item alleged to have been stolen, but whether a defendant rightfully possessed it." Proof of a peeled steering column, flight when approached by the police, might well be enough.
The role of the attorney in plea withdrawals has always bedeviled the court. Oftentimes, the attorney wasn't keen about trying to undo a deal he'd spent a lot of time working out, and which he honestly believes is in his client's advantage. In one case, State v. Drake, the court found no problem where the defense attorney urged the judge to deny his own client's motion.
In recent years, the court has used the "hybrid representation" argument to avoid even a hearing on the motion. The concept of "hybrid representation" owes its basis to the Supreme Court's decision in State v. Martin: you can either represent yourself or you can be represented by an attorney, but you can't do both. So if the defendant files a pro se motion, it can be safely ignored if the attorney doesn't join in it.
That's exactly what happens in State v. Davis: Davis files a pro se motion to withdraw his plea, his attorney doesn't join in it, so both the trial and the appellate court ignore it.
The court came to the opposite conclusion eight months ago in State v. Ward. The court first noted that Martin dealt with the trial situation, and really had little applicability to motion practice. In trial, you can only have one person making decisions. That's the same with motions.
And especially in the context of plea withdrawal motions. The Ward court noted that a plea is the defendant's decision to make, and that allowing the attorney veto power over whether the defendant can seek to withdraw his plea interferes with that decision.
It may be that the Ward court went too far in suggesting that hybrid representation pertains only to trial situations. (That was dicta anyway.) Given the Moor and Sovereign Citizen defenses, courts are often flooded by pro se motions; I had one client on appeal who'd filed 73 of them with the trial court.
But the court's view of plea withdrawal motions (which is dicta, too) has merit. It's not like a motion to withdraw a plea is going to take up hours, let alone days, of the court's time: given the standards for allowing withdrawal, such hearings are generally perfunctory matters. Allowing the defendant to make his case, regardless of how his attorney feels about it, seems only fair.