Case Update
There were a number of questions left open by the US Supreme
Court's decisions last year in Missouri
v. Frye and Lafler v. Cooper,
which extended the duty of effective assistance of counsel to plea bargaining. Both cases, along with the decision two years
earlier in Padilla v. Kentucky,
offered clear examples of affirmative misadvice or negligence, and in all three
cases the State conceded the deficient performance prong of the Strickland test. That doesn't do much in the way of defining
the lawyer's duty. Do I have an
obligation, say, to advice my client, who is pleading to a child rape with a
life sentence and parole eligibility of ten years, that the "ten years" is
meaningless: he's going to do two to
three times that, if he ever gets out. A
judge doesn't have to tell a defendant in a plea colloquy of the possibility of
consecutive sentences; does the lawyer have the obligation to tell his client
of that? And if he doesn't, and the defendant
gets consecutive sentences, can the plea be vacated for ineffective assistance?
Burt v. Titlow
offered the potential to give some further definition of the lawyer's role. Titlow helped her aunt murder the aunt's
husband, and her attorney negotiated a plea to voluntary manslaughter with a
7-15 year sentence, conditioned on her testifying against the aunt. A sheriff's deputy advised her not to plead
guilty if she wasn't guilty, and this sage advice prompted her to retain a
different attorney, who quickly withdrew her plea. Oops.
The aunt went to trial and was acquitted, Titlow was tried and convicted
of second-degree murder, and sentenced to 20 years.
Unfortunately, the simple question - can the lawyer's advice
to withdraw the plea serve as a claim of ineffective assistance? - is beset
with problems, as the oral argument last Tuesday demonstrated. The record's a mess; it's not even clear that
the lawyer (who was subsequently disbarred, for this among other things)
advised her to withdraw the plea. Plus,
the case comes up on habeas review, with the attendant highly deferential
standards for review by the federal courts.
And even if Titlow was granted relief, it's not clear what that would
be. In Lafler and Frye, the
Court remanded for the trial court to determine whether the defendants there
would have taken the plea deal. That's
not an option here; the aunt died, and thus a key aspect of the bargain,
Titlow's testimony against the aunt, can't be performed.
I'll write more about the case when the decision comes down,
if that happens; a summary reversal could be in the works.
The Ohio Supreme Court had oral arguments, too, last week, with
a case on wrongful imprisonment, double jeopardy, and the enticement
statute. I'll have a rundown on those on
Thursday. Thursday will also be my last
day posting for two weeks; time for some R&R.
In the courts of appeals...
Reversals for prosecutorial misconduct in closing argument are
rare; there are a lot of things a prosecutor can get away with. In State v. Hartman, the 9th District
decides that repeatedly claiming that the defense witnesses, defendant, and
defense lawyer were all lying is not one of them. Probably
the key reason for reversal is that the judge overruled the defendant's
objection to it. As the court noted,
this meant that the jury was given the impression that such argument was
permissible, and was allowed to consider it.
If you've got a case involving the interplay between hearsay
and testimonial statements in, you can check out the 1st District's decision in
State v. Goshade. The court concluded that a domestic violence
victim's statements to the police when they responded to her 911 call were
excited utterances, and were made to receive assistance for an ongoing emergency,
and the opinion does a nice job of laying out the law... Something to be aware of: if your client's been sentenced to prison in
another case, and they bring him back to Cuyahoga County to sit in jail while
they handle his new case here, he doesn't get jail time credit toward the new
case, the 8th District says in State v. Smiley... Normally, as I
mentioned above, a court doesn't have to tell the defendant that the sentences
can be run consecutively. An exception to
that is where the sentences have to
be run consecutively. So the failure of
the trial court to advise the defendant that any prison sentence for a repeat
violent offender specification would have to be served consecutively to the
underlying offenses wasn't substantial compliance with Rule 11, and the plea
has to be vacated, the 12th District rules in State v. Whitaker...
Speaking of consecutive sentencing, there were about eight
or ten cases on that subject just last week in the appellate districts. The unresolved question is just what the
judge has to say in making the findings required by RC 2929.14(C)(4). The 2nd District aptly sums up the state of
the law in State v. Wills,
Without engaging in an exegesis of
Ohio sentencing laws, we note that some interpretations of the current version
would affirm a sentence in which the court rotely verbalizes the
statutorily-prescribed conclusory findings; other interpretations would accept
factual explanations and infer the conclusory requirements; and still others
would approve a silent record as compliance with certain statutory and
constitutional mandates.
One of the things I've noted over the past several months,
though, is the appellate courts becoming stricter in their enforcement of the required
findings. Early on, there were numerous
cases where the sentence would be affirmed if the appellate court could make the required findings, based on the
record. There are still some decisions
like that; just a few weeks ago, the 8th did this in State
v. Barker, deciding that when the judge said that consecutive sentences
"were the only appropriate sentence," this really translated into the required finding
that consecutive sentences were not disproportionate to the offender's conduct
and the danger he poses. But in Wills and in two cases from the 8th last
week, which we'll talk about tomorrow, the courts seem to be saying, "if you
can't even read the words out of the statute book, we're not going to bail you
out."
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