Baker = Fischer?
Last Friday I wrote about the Ohio Supreme Court's decision in State ex rel. Cordray v. Burge, in which the court vacated a judgment of acquittal granted 15 years after the verdict. The process which resulted in that acquittal began when the defendants' attorneys noted that the journal entry didn't comply with the Supreme Court's earlier decision in State v. Baker, which held that the entry must contain both the guilty finding (by verdict or plea) and the sentence. I mentioned that Burge left hanging the question of the effect of such an error on appeals, but one of the unnumbered legions of my regular readers, a sharp young lad with the state public defenders office, tipped me off that there is indeed a case in the pending before the Ohio Supreme Court which presents that very issue.
Let's step back and put this all in context. The court's previously held that errors in imposition of post-release controls render the judgment entry void. That left the question of what happens if you appeal from a void judgment, an opening the defendant seized in State v. Fischer. He argued that since the entry was void, it wasn't a final appealable order, and since courts of appeals only have jurisdiction over final appealable orders, the appeal he took from his original (void) conviction was a nullity, too. Upon his resentencing, he was entitled to appeal not only the resentencing, but any issues from the original trial, including issues that he'd raised (and lost on) in his first appeal; those weren't res judicata or law of the case because the original appeal was void as well. Left with the prospect of allowing defendants who were resentenced on convictions to bring, in essence, a brand new appeal from those convictions, with the possibility of the defendant winning and the prosecution having to retry cases five, ten, or even more years after the crime, the court slammed the door and announced that failure to impose PRC didn't result in a void entry, but only a "partially void" one, necessitating only a resentencing for the sole purpose of properly imposing controls.
That's similar to the argument being made in State v. Lester, presently pending before the court. Lester is asking the court to rule that his first appeal from his convictions in 2006 and 2007 were nullities, and that he's entitled to a brand new appeal. There's a big distinction in the two arguments, though: in Lester's case, the problem with the original entry wasn't that it didn't properly impose post-release controls, it was that it didn't include how the Lester had been convicted -- in his case, by jury verdict.
This issue, in turn, arises from the 2007 Supreme Court decision in State v. Baker, which held that in order to comply with CrimR 32(C), the court's final journal entry had to contain both the finding of guilt and the sentence. I'd originally figured that Lester would meet the same fate Fischer had: the court would do whatever it needed to do to avoid having initial appeals voided and cases reopened. On second look, though, I'm not so sure.
The big problem is that, unlike Fischer, Lester doesn't have to rely on logical inferences about the effect of a void judgment. As noted, that's what Fischer had to do: he basically constructed a logical argument that void judgment = no final appealable order = no jurisdiction of appellate court = appellate decision is a nullity. Again, as noted, the court rejected that by changing the initial proposition from "void judgment" to "partially void judgment."
Lester doesn't have to do that, though; the court in Baker made it clear that it was addressing the issue of final appealable orders. In fact, one has to go no further than paragraph 6 of the opinion to find this: "A court of appeals has no jurisdiction over orders that are not final and appealable." The opinion makes it clear that a non-Baker-compliant entry isn't a final appealable order.
The problem the 9th District found in Baker resulted from its hypertechnical reading of 32(C): although the journal entry in that case included the fact that the defendant had been convicted after a jury trial, the 9th held that it was defective because it didn't include the statement that the defendant had initially pled not guilty. The Supreme Court found that this wasn't necessary:
A more logical interpretation of Crim.R. 32(C)'s phrase "the plea, the verdict or findings, and the sentence" is that a trial court is required to sign and journalize a document memorializing the sentence and the manner of the conviction: a guilty plea, a no contest plea upon which the court has made a finding of guilt, a finding of guilt based upon a bench trial, or a guilty verdict resulting from a jury trial.
That gives a hint of the only real wiggle room for the court in Lester. His journal entry indicated he'd been convicted, but didn't give the "manner of conviction" -- in his case, a jury trial. The court could "modify" Baker and hold that the entry only requires a statement that the defendant has been convicted, without elucidating the particular mechanism by which that result was achieved.
Whether this is logically coherent is another matter. After devoting virtually the entire opinion in Baker to discussing the necessity of including the means of conviction in a journal entry, the court's going to be hard-pressed to now say that none of that matters, especially since the rule itself specifies a difference between a plea, a verdict, and findings, which would correspond, respectively, to a plea of guilty, a verdict by a judge or jury after trial, or a finding of guilt after a no contest plea. Chief Justice O'Connor is in a particular bind here: she dissented in Baker. Having argued a strict interpretation of the Rule there, it will be difficult for her to justify an expansive interpretation in Lester.
If the result of Lester is indeed raising the possibility of "first" appeals from decade-old cases, with the prospect of reversal and retrial, it will be a case of prosecutors hoist on their petard. Baker got to the Supreme Court because the State argued before the 9th District that the entry wasn't a final appealable order, and that it should be dismissed for lack of jurisdiction.
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