What's Up in the 8th
The Supreme Court's decision in Lafler
v. Cooper a couple years ago opened up new ground for ineffective
assistance of counsel claims. Cooper was
charged with attempted murder, and his lawyer advised him to reject the state's
plea offer and go to trial, telling Cooper the state couldn't prove intent to
kill because all of his bullets had hit the victim below the waist. (Yes, I know; that's like something we'd
expect to hear from our clients: "They
can't convict me of attempted murder, I only shot him in th ass!") When Cooper was convicted and sentenced to
three times what he would have had on the plea, he blamed it on his attorney's
bone-headed advice, and the courts agreed.
The defendant in the 8th District's decision last week in State
v. Hills tries to climb aboard the Lafler
train; he claims his attorney was ineffective for not advising him take a
plea which would have deleted the firearms specifications in the indictment.
Actually, his argument is that the judge didn't warn him of
the consequences of going to trial. Not in
the job description, the panel says:
the judge has an obligation under Rule 11 to advise the defendant of the
consequences of a plea, but not of the consequences of not taking a plea. As for
the lawyer, the record amply demonstrates that Hills and his attorney discussed
the plea offer at length, and Hills told the court it was his decision to go
trial.
That's helpful in deciding a Lafler claims, because the record can be murky. In Missouri
v. Frye, decided the same day as Lafler,
the Court held that an attorney rendered ineffective assistance by not
informing his client of a plea offer. It
was easy to protect against that; courts now routinely conduct "Frye hearings,"
where the plea offer is placed on the record.
But you can't put on the record what advice the attorney gave to the
defendant; that's privileged. And this
is really a variation of a Lafler claim: the argument isn't that the lawyer told Hall
to reject the plea offer, it's that he didn't talk him into taking it.
And here's something else to think about. There's a flip side to Lafler: what happens if the lawyer
wrongfully advises his client to take a plea instead of going to trial? I don't think that argument has a lot of
legs; unless you run into the same kind of obvious mistake in evaluating the
case that the lawyer made in Lafler,
just about anything else is going to be chalked up to trial strategy and tactics.
The double jeopardy clause gets a workout in State
v. Hall. Hall was charged under alternate theories with
two counts each of aggravated murder, aggravated robbery, and kidnapping. He was acquitted of the two aggravated murder
counts, and one each of the aggravated robbery (brandishing a weapon) and kidnapping
(terrorizing or inflicting serious physical harm) counts. The jury hung on the remaining count of aggravated
robbery (inflicting serious physical harm) and kidnapping (for the purposes of
committing a felony). He was convicted
of those counts at a second trial, and complains on appeal that double jeopardy
barred the retrial, relying on a 1983 Supreme Court case, State v. Liberatore.
But there's a key difference. Liberatore had been tried for aggravated
murder and aggravated arson for blowing up a fellow Mafioso. The jury had hung on the aggravated murder
charge, but acquitted on the aggravated arson charge. The former, though, was based on the
commission of the latter; Liberatore was charged with aggravated murder through
the commission of aggravated arson. He couldn't be retried for aggravated murder
because he'd been acquitted of the underlying predicate offense. That wasn't Hall's situation: he'd been acquitted of the main offense, not
the predicate offense, and there was no problem with retrying him for the underlying
offenses.
Last
week, we talked about gun specifications and the requirement that they be
run consecutively to each other in certain situations, something that I and a
lot of other lawyers didn't know. This
week the 8th District fills in another gap in my knowledge base; in State
v. Parker, they inform me that there's a 7-year add-on for shooting at
a cop. That works like the other
specifications: they have to be run
consecutively to each other if they're both tacked on to a charge of felonious
assault, or just about any first degree felony besides aggravated burglary and
kidnapping (aggravated robbery, murder, attempted murder, and the like.) If you're keeping score at home, the list of
specifications, which can be found at RC 2929.14(B)(1), are
- Possessing a firearm -- 1 year
- Brandishing -- 3 years
- Wearing body armor -- 2 years
- Using an automatic weapon or a silencer -- 6 years
- Shooting at a police officer -- 7 years
- Shooting out of a motor vehicle -- 5 years
That last one is different from the others; it has to be run consecutively to any other
specifications, regardless of the degree of the offense. If Larry the Cable Guy is one of your heroes,
you can draw comfort from the fact that a motor vehicle doesn't include a
trailer.
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