What's Up in the 8th
No 8th District summary last week, due to my bout with the
scalpel. Shows the importance of good
health insurance, which mine, sadly, is not; my only in-network provider was
Rob's Tire Store and Medical Center in Lodi.
They did an adequate job of it, fortunately, although it was somewhat
disconcerting to have the nurse shout out "dead man walking!" as she escorted
me to pre-op.
Advice to defendants comes by way of State
v. Bryson. If you decide to get
a tattoo under your eye -- and who among us hasn't at least given that some
thought? -- you might want to consider that that's likely to be the identifying
feature the eyewitnesses use to finger you for a murder. And that tattoo
will still be there when you get out of prison 33 years later.
State
v. Collins and State
v. Morris provide lessons for judges.
In the latter, the issue of Morris' competency arises, and so the judge
twice refers him to Northcoast Behavioral -- aka the Rubber Ramada -- for restoration
to competency. Eventually there's a
plea, but what there isn't, despite a very good judge, prosecutor, and defense
attorney, is any indication in the record that Morris was found competent. The interesting thing here is what happens
now. The court vacates the plea and
remands it for a hearing on competency.
But let's assume that he is found to be competent. (I talked to the judge, who told me that a
stipulation to the report finding Morris competent simply slipped through the
cracks.) Does that mean that Morris'
plea goes back into effect, or does he have to enter a new one? And what if he doesn't want to? I'm sure there's an answer to that somewhere,
and maybe -- perhaps during the recovery period from my next bout of invasive
surgery -- I'll take the time to find out.
Collins is one of
those cases which should come with a flow chart. Collins is convicted of drug trafficking and
possession in two cases (we'll call them A and B). The possession and trafficking merged, and
the state elected to proceed to sentencing on the trafficking charge. The judge gave Collins two years on Case A
and four years on Case B, and ran them consecutively, for a total of six years.
With me so far? Well,
in the first appeal the 8th found that the evidence was insufficient to prove
trafficking, but was sufficient to show possession. When it came back for resentencing on the
possession counts, and the judge gave Morris three years on Case A and one year
on Case B, for a total of four years. The
appeal from this focuses on the sentence in Case A, which was increased from
two years to three. While many believe
that a judge can't give a greater sentence after a remand, that's not the
case: doing so only raises a presumption
of vindictiveness, i.e., that the greater sentence was punishment for having
the audacity to appeal. (The basic law
on this is summarized in this
post I did six years ago.) The panel's
opinion takes us through the law on all this, and concludes that on the
information presented here, the presumption of vindictiveness hasn't been
overcome. All this, while acknowledging
in a footnote that what probably happened is that the judge just switched the
cases, intending to give one year on Case A and three on Case B.
But, you ask, what's the harm? The result of the first sentencing was six
years, and that was cut to four in the second sentencing. The answer is that Ohio does not follow the
sentence packaging doctrine, in which the judge arrives at a total sentence
based upon all of the offenses the defendant committed. Here, each sentence stands individually, and has
to be considered in isolation from the sentence for any other offense.
You've got an appeal where the defendant was pled to rape
and kidnapping, and you think there's an allied offense issue. What happens if that wasn't raised in the
trial court? Normally, that would allow
review only for plain error, but a few years back in State
v. Underwood the Supreme Court held that sentencing a defendant for
offenses which should have merged as allied is
plain error. But how do you
determine if there's any error, plain
or otherwise, when the case comes up on a plea, and there's little to no information
as to the underlying facts.
As I've
mentioned before, that problem has bedeviled the 8th District, with two
lines of cases emerging. In one -- most
cases -- the court either delves into the allied offense issue and makes a
determination itself, or remands it back to the trial court for consideration
of the issue. But last year in State
v. Lindsey, a panel held that the defense's failure to offer any
evidence on the issue precluded a finding of plain error. Several subsequent decisions have rejected Lindsey's result, but last week the 8th
switches back in State
v. Rogers. The majority notes
that Underwood does not stand for the
proposition that the mere possibility that the offenses might be allied is sufficient
to warrant a remand; in Underwood,
the state had stipulated to the fact that the offenses should have merged. In a thoughtful and well-reasoned opinion,
the majority goes to the heart of the issue.
Plain error is not a finding, it's a standard of review, and it requires
that the defendant show that an error did in fact occur. The defendant doesn't do that simply by posing
the possibility of error: "there is no
plausible interpretation of the plain error doctrine that would allow an
appellate court to find error simply because there are no facts to show whether
any error occurred."
So that's the advice from the court for defense attorneys: if there's a plausible allied offense, you'd
better raise it in the trial court, and not expect the appeals court to bail
you out.
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