What's Up in the 8th
Lonnie McCoy is the biggest beneficiary of last week's batch
of decisions from the 8th: the court vacates
his conviction for burglarizing an 88-year-old woman's house, finding the
evidence insufficient. A somewhat
surprising result, given that a neighbor saw McCoy coming out of the house; the
absence of any stolen items could easily be explained, as the dissenting judge
surmises, by McCoy having abandoned his plan once he saw the neighbor
approaching. Still, the most interesting
aspect of the case, for me, was that the purported victim was mowing her lawn
at the time. Gotta show this case to my
wife.
Not a week goes by without some decision on ineffective
assistance of counsel; the appellate bar appears to spend a fair amount of time
complaining what a sorry lot the trial bar is.
Without much success, which is the case last week. In State v. Jarrell, the judge
sustained the State's motion in limine precluding expert testimony by the
defense on the breathalyzer. As we all
know, a ruling on a motion in limine is preliminary, and the defense would have
had to proffer the expert's testimony at trial to preserve the error, which it
didn't do, despite the judge's invitation.
The court chalks this up to trial strategy, but it's clear that the
decision was economic, and probably the client's decision at that: the lawyer alluded at trial to the
substantial cost in bringing the expert up from Columbus for trial.
Here is what the judge said in imposing consecutive
sentences on Ronald Wells for committing a home invasion on one day and an
aggravated robbery the next, all while awaiting trial on a pending drug case
and being on post-release control for two earlier robberies:
This Court is of the opinion that
consecutive sentences are necessary to protect the public from future crime or
to punish you. You had just served time for two robberies. While you were on
post-release control and bond here, you went out and committed two more serious
robberies with a firearm.
The Court finds that this sentence
is not disproportionate to the seriousness of your conduct and to the danger
that you posed to the public. In one instance, your codefendant beat a person
and sent him to the hospital, somebody you knew, and in another instance, they
beat again -- you call him your uncle and caused him to have injuries for which
he did not seek medical treatment. You frightened people that were robbed as
they came out of the casino after their winnings.
The Court finds that you committed
the two robberies, the two separate days, August 18th and August 19th, while
you were awaiting trial on your drug case and while you were under a sanction
of post-release control for a prior offense which was robbery. They were part
of a course of conduct in order to satisfy your desire for drugs to have money
for them as you were robbing people. Your history of criminal conduct since you
were a juvenile is all violence: felonious assault, robberies, antisocial
behavior by selling drugs and such. So I feel that consecutive sentences are
necessary to protect the public from future crime by you.
I take the time to quote the entire thing because it is as
good an explanation of why a judge imposed consecutive sentences as I've
seen: not only are the necessary
findings made, but the judge supports those findings with reasons. It is quite obvious that the judge gave
serious thought to all aspects of sentencing, including the imposition of
consecutive terms, which is exactly what a judge is supposed to do. And in State v. Wells, the court agrees
that "this text-book approach made appellate review of the issues and the case
simple."
So why don't more judges do this sort of thing? Because they don't have to; as the opinion
notes, "the trial court supported its separate and distinct findings with facts
from the record, although it was not
obligated to do so." That's my
emphasis, and it summarizes the problem with allied review of consecutive
sentencing: under the current state of
the law, a judge need do no more than give a rote reading of the statutory
findings. Pre-Foster, a judge had to give reasons in support of his findings, but
HB 86, which revived the findings, eliminated the requirement for reasons. I've discussed the problems with that before
-- it reads too much into the repeal of the reasons requirement, and ignores CrimR
32(A)(4), which does require a judge to give reasons - but somehow the courts
have persisted in ignoring my trenchant analysis, and I don't see that changing
soon. So we'll just have to be thankful
when a judge does his job and gives a thoughtful exposition on why he has
chosen to impose a particular sentence, and hope that others will follow suit,
although, as the court reminds us, they are not obligated to do so.
In Parma v. Fonte, the defendant claims
he should have been given a new lawyer because the public defender assigned to
represent him didn't like him. This
contention certainly didn't fail for lack of evidence: the record contains the public defender's
assertion to the judge, ""I don't like [Fonte]. Your Honor I don't
like him. Mr. Fonte has been in prison and I don't like him." The state of the law on the right to counsel,
however, is that that while you have the right to an attorney, that guarantee
doesn't include you having the warm and fuzzies for him, or him for you. Hopefully, the decision won't result in
defense attorneys becoming even more candid in their denunciations of their own
clients; confessing your loathing for the man you're representing will probably
not go far in instilling his confidence in the zealousness of your
representation.
But Fonte is significant
for another reason: it raises some
serious issues regarding the 1st Amendment implications of the menacing
statute. We'll take a look at that
tomorrow.
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