Baker Revisited/Revised
It was such a simple argument. In State v. Baker, the Ohio Supreme Court had held that under Crim R 32(C), to be a final appealable order, a journal entry "must include the sentence and the means of conviction, whether by plea, verdict, or finding by the court." That means if the journal entry doesn't include the means of conviction -- whether the defendant was convicted after a jury trial, a bench trial, a plea of no contest, or a plea of guilty -- there was no final appealable order. And if there was no final appealable order, any appeal the defendant took was a nullity, because the appellate court only has jurisdiction to hear final appealable orders.
But simple doesn't mean winning, as Stephen Lester's lawyer learned last Tuesday.
Lester had been convicted of a variety of offenses back in 2006. He appealed, and the case was sent back for resentencing because -- you guessed it -- the court improperly advised him of post-release control. He appealed again after his resentencing in 2007, but lost completely.
But neither of those entries had included the "means of conviction" (Lester had been convicted after a jury trial), and so in 2010 he asked the court to remedy that defect. The court did so with a nunc pro tunc entry, and Lester appealed again, claiming that this was actually his first appeal; the other two didn't count because there'd been no final appealable order.
If this sounds vaguely familiar, it is: it's the same argument that was made, and rejected last December, in State v. Fischer. As I'd mentioned when I discussed Lester and Fischer a couple months back, though, there was a sizable distinction between the two. In Fischer, which involved a "void" judgment due to PRC problems, the defendant had to rely on a convoluted logical argument which began with a void judgment and included a number of steps before arriving at the desired destination, an appellate decision that was a nullity. Lester, though, required no such mental gymnastics: Baker dealt with whether a journal entry was a final appealable order, and the opinion makes it clear that one which doesn't comply with Baker isn't. I'd opined further that "the only real wiggle room for the court in Lester" was for the court to "'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." I'd noted that would be difficult to do, though:
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.
Hard-pressed indeed. I've often felt that there are times when the presiding judge, instead of announcing the case at the beginning of oral argument, should just yell out, "Open fire!" Lester's attorney had barely cleared his throat before the questions started coming like a rolling artillery barrage. Isn't the rule one of form, not substance, inquired Cupp? The language of the rule doesn't mention anything about "means of conviction," we just stuck that in in Baker, didn't we, asked O'Donnell. O'Connor noted that the court had been "inundated" with Baker compliance claims -- the good ol' "floodgates of litigation" concern -- and Lanzinger suggested that perhaps a clarification of Baker was in order, an observation of ominous import to Lester, considering that Lanzinger wrote the opinion in Baker. O'Connor re-entered the fray, quizzing Lester's lawyer about why it mattered whether the journal entry differentiated between the defendant having been convicted after a jury trial or a bench trial, and Lundberg Stratton joined in by expressing her sympathy for counsel's discomfiture:
You're sort of stuck because you've got an opinion from us that we're now sort of like arguing against, so I appreciate the position you're in.
Well, yeah. Lawyers spend a lot of time rehearsing for oral argument before the Supreme Court -- I know for a fact that Lester's lawyer did -- but one thing you don't plan for is the Supreme Court to overrule a unanimous decision they made just four years ago. (There were two dissenting votes in Baker -- O'Connor and Moyer -- but they argued for an even stricter interpretation of the rule.)
So Lester's going to go down in flames, and pardon me, but I find it hard to get worked up about that. Baker was much more concerned with what didn't have to be in a journal entry than what did: Baker came up before the court because the 9th District was dismissing appeals due to a failure of the journal entry to include the defendant's original plea. That was a hypertechnical reading of the rule, and one that didn't make much sense; as the Baker court noted, a sentencing entry wouldn't exist if the defendant was found not guilty, so why was it necessary to indicate that he'd initially pled not guilty? O'Connor's point is also valid: what difference does it make, in terms of an appeal, if the journal entry doesn't distinguish between a conviction after a jury trial or a conviction after a bench trial? Or a conviction based upon a finding of guilt by the court after a no contest plea, for that matter? And McGee Brown had perhaps the best point of all: it's not like any failings in the journal entry had deprived Lester of his right to appeal.
As I've said before, I'm as pro-defendant as the next guy (unless the next guy is William Kunstler), but I'd rather that the law be correct than that it be goofed up but tilted toward the defendant. Sooner or later, if the law's screwed up, it will come back to bite you. Exhibit "A" was the Colon decision, which required indictments to include the mens rea requirements. It was initially haled by defendants, because it provided another technical hurdle for prosecutors to overcome. So what happened? Before finally scrapping the whole thing and overruling Colon three years later, the court mitigated its effect by showing an increasing willingness to conclude that certain offenses were strict liability, and didn't require a mens rea at all.
There's no earthly reason why a journal entry must include the "means of conviction." The rule doesn't require it, nor does common sense. Let's modify Baker to reach the correct result, and move on.
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