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What's Up in the 8th

If you're engaging in self-flagellation because you've developed an unhealthyTriple Whopper.jpg fondness for Burger King's Triple Whopper (nutritional info:  you do not want to know), take some comfort in the fact that it might get you out of a DUI.

One of the benefits of doing this blog is that I constantly learn things I didn't know.  When a cop stops you and suspects you've been driving drunk, he can have you perform field sobriety tests, like the One Leg Stand test, which is self-descriptive.  The National Highway Traffic and Safety Administration prescribes how those tests are to be done; if they not done in "substantial compliance" with the regulations, out they go. 

One of the requirements is that before performing the OLS test, "the officer must inquire as to whether the suspect has a bad back, leg problem, inner ear problem, and must also determine if the suspect is more than 50 pounds overweight."  In Rocky River v. Bucci, the officer never made that inquiry, and there are problems with the other FST's, so they all get tossed.  

I've come to the conclusion that appealing from municipal court decisions is a sure way to boost your appellate winning percentage.  Rocky River takes another beating in Rocky River v. Zorc.  Zorc was driving eastbound on I-90, when a police chase of a speeding van overtook him.  The cops ahead threw stop-sticks onto the highway, blowing out two tires on the van and one on Zorc's car.  Twenty-eight days later, Zorc sent Rocky River a bill for the blown tire. 

Two days after that, Rocky River sent him a summons for reckless operation and failing to change lanes when approaching a police car with lights activated.  He's convicted of the latter, and appeals.  The panel calls bullshit:   the dashcam clearly shows that Zorc didn't have time to move over, and couldn't have because of the traffic in the adjacent lane. 

I've noticed that the 8th District has become increasingly picky about no contest pleas, and that's borne out by Cleveland v. O'Donnell.  My good buddy, the Lilliputian John Martin, succeeds in persuading the panel that when the judge says, "Do you wish to plead no contest, understanding the rights that you give up in order to plead no contest?" and the defendant says, "Yes, I do," that's not sufficient to show that defendant "formally tendered a no contest plea."   Perhaps something signed in blood would have sufficed. 

The defendant in State v. Sims argues that the evidence is insufficient to prove the firearm specification, and that his conviction of robbery is against the manifest weight of the evidence.  That's not surprising in itself; if patriotism is the last refuge of the scoundrel, manifest weight and sufficiency of the evidence are the last resort of the appellate lawyer.  What is unusual is that Sims pled guilty.  For reasons which should be obvious, you're hard-pressed to argue that the evidence doesn't prove you committed the crime when you've admitted you did.  The guilty plea also wipes out Sims' third claim, that the judge should've suppressed the identification testimony of a witness.

Sims also contends that court should have granted his motion to withdraw plea and fire his attorney, mainly because the attorney didn't file motions Sims wanted him to file, and Sims disagreed with the attorney's strategy during suppression hearing.  But counsel "had no obligation to file motions that would have been futile," and Sims "had no constitutional right to determine strategy, and decisions about viable defenses are within the exclusive province of defense counsel to make after consultation with his client." 

There's a tendency among lawyers to treat a bench trial more informally than a jury trial.  That's what happens in State v. Frierson.  Everybody agrees that a lot of hearsay came in, but the panel fluffs that off, noting that the defense lawyer told the judge that he didn't object to it "because it is a bench trial and this Honorable Court is fair and should hear all of the facts." 

Well, no.  Lecture time:  trial lawyers, Do.  Not.  Do.  This.  First, there's case law in the 8th which says that even though there's a presumption in a bench trial that a judge considers only admissible evidence, that presumption disappears if the judge overrules an objection to inadmissible evidence.  Second, the best way of getting a case reversed is by showing that the judge screwed up:  she let evidence in that should've been kept out, kept evidence out that should've come in, messed up a jury instruction, ruled the wrong way on a motion.  And in a study I made up for this post, about 80% of the time it's a ruling on an evidentiary issue.  By letting the judge sort it all out, you've given away your best argument on appeal.

AppR 26(B) allows a defendant to file a motion to reopen an appeal on the basis that his appellate attorney rendered ineffective assistance.  It must be filed within ninety days after the appellate court's decision comes down, unless the defendant can show "good cause" for a late filing.

As State v. Ayers shows, that "good cause" is a legal Sasquatch:  some people claim it exists, but no one's ever seen it.  Your lawyer never bothered telling you that you lost?  Not good enough.  Didn't know you had a right to file a motion to reopen?  So sad, too bad.  Didn't have access to a law library, which would have helped you prepare the motion?  Tough noogies.  Even not being able to mail it because there was a prison riot or lockdown isn't good enough.

Maybe going into a coma for the entire 90 days because you ate too many Burger King Triple Whoppers would make the cut, but I wouldn't bet on it.


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