Predictions
The first sentence of Criminal Rule 32(C) seems pretty simple: "A judgment of conviction shall set forth the plea, the verdict, or findings, upon which each conviction is based, and the sentence." The problem started a few years back, when the 9th District began reading it hypertechnically: if the journal entry didn't indicate how the defendant had initially pled at his arraignment, it was defective, and the appeal was dismissed for lack of a final order. This didn't really make any sense -- if the entry reflected that the defendant subsequently pled guilty or was convicted after a trial, what did it matter how he'd pled at the arraignment? -- and the Supreme Court cleaned that up in State v. Baker. Sort of; while the court did say it wasn't necessary to indicate what the defendant's initial plea was, it did state that the manner of conviction, that is, whether it resulted from a guilty plea, a finding by of guilt by the court after a no contest plea, or a verdict of a jury or the court after trial, had to be included.
That's the horse Steven Lester wanted to ride in his bid to get a new appeal. He'd been convicted in 2006, and had lost his appeal, but the case got remanded for correction of post-release controls. The new journal entry contained the PRC provision, but, like the previous entry, it indicated only that he had been convicted of the various crimes without specifying how that conviction came about. Lester appealed, claiming not only that the journal entry was defective, but that it entitled him to a brand spanking new appeal, complete with issues that hadn't been raised or had been rejected in his initial appeal. What about res judicata? Doesn't apply, said Lester; an appellate court only has jurisdiction over final appealable orders, the entry in his case wasn't a final order, thus the first appeal was a nullity.
When I'd first blogged about the case, I'd indicated that Lester had a fair shot at winning, demonstrating the prognosticative prowess that explains why I quit betting NFL games 30 years ago; there was as much likelihood the court was going to give defendant's who'd been convicted five, ten, or fifteen years ago a whole new appeal as there was that Kim Kardashian and Kris Humphries were going to be celebrating their golden wedding anniversary. I was right on the money in one respect, though: I'd written that "the only real wiggle room" for the court was 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." And three weeks ago, in State v. Lester, that's pretty much what the court did.
Pretty much, but not exactly. The purpose of the rule, Cupp's opinion for the majority holds, is to make the conviction final for purposes of appeal, so substantively all that is required is the fact of conviction. But while "Crim.R. 32(C) does not require a judgment entry of conviction to recite the manner of conviction as a matter of substance, it does require the judgment entry of conviction to recite the manner of conviction as a matter of form." If the manner of conviction is omitted, it's no big deal; the trial court can make a nunc pro tunc entry to correct it, and that's that.
The basis for this is somewhat of a mystery; the court never explains how it arrives at this distinction between form and substance. In fact, the court's treatment of this whole question is reminiscent of its attempt to walk back State v. Rance, its 1999 decision which held that allied offense analysis required the elements of the two offenses to be compared in the abstract, without any reference to the actual facts of the case. Nine years later, in State v. Cabrales, the court conceded that Rance had led to "inconsistent, unreasonable, and, at times, absurd results," but laid this at the feet of the appellate courts for "misinterpreting" Rance, rather than simply acknowledging that the Rance test was unworkable. (As the court finally got around to doing in State v. Johnson last December.) Similary, the Lester court finds it necessary to modify Baker "to the extent that Baker implies, or has been interpreted to require, that more than the fact of conviction and the substantive provisions of Crim.R. 32(C) must be set out in the judgment entry of conviction before it becomes a final order." Well, guys, Baker didn't "imply" it, and it wasn't "interpeted" to mean that; it flat out said it:
We answer the certified question by holding that the judgment of conviction is a single document that need not necessarily include the plea entered at arraignment, but that it must include the sentence and the means of conviction, whether by plea, verdict, or finding by the court, to be a final appealable order under R.C. 2505.02.
Lester was decided by a 4-3 vote, but that's a bit misleading; O'Donnell and Lundberg Stratton dissented only to the extent of arguing that Baker had been wrong to mention "manner of conviction" at all, and it wasn't required even as a matter of form. Only Lanzinger bought into Lester's claim that the failure to include the manner of conviction rendered the entry non-final.
Still, it wasn't a complete loss for defendants. Baker had also held that the final entry had to include both the conviction and the sentence, and that having one entry containing the jury's verdict and another spelling out the sentence wasn't sufficient. There are still a lot of pre-Baker entries floating around which did just that, and Lester does affirm that where the entry does not include what the rule requires, it isn't a final entry, and presumably any appeal from that entry is a nullity.
Three weeks ago, I'd also blogged about the oral argument in State v. Ginley, which raised the issue of a court calling a recalcitrant domestic violence victim as the court's witness so that the prosecutor could impeach her with her prior statement. I'd written that, because of the muddled procedural and factual posture in Ginley, "there's better than a 60% chance that the court never makes a decision, instead booting it as having been improvidently granted." And last week, that's exactly what the court did.
Maybe I'll go back to betting NFL games after all.
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