What's Up in the 8th
I gave a presentation on constitutional issues at the
OACDL's death penalty seminar a couple weeks back, and my advice on how to win
4th Amendment issues was simple: move to
Cleveland. Combining a police force
which has no more than a nodding acquaintance with the rudiments of search and
seizure law with an appellate district which is the most 4th Amendment-friendly
in the country is a sure-fire recipe for success. For doubters of the latter point, take a look
at the 8th's decision last week in State v. Fontaine.
Fontaine was stopped for going 10 miles over the speed limit,
and although he immediately provided the officer with his license,
registration, and proof of insurance, the latter suspected criminal activity
might be afoot. Why? Because Fontaine was "almost overly polite,
and he was breathing heavily at times." (Which
fairly characterizes my dating style in college.) The officer called for the drug-sniffing dog,
which arrived within ten minutes of the stop.
The dog alerted, and the cops found a bag of marijuana and a gun in the
glovebox.
The law on this is relatively simple: the stop can't unduly prolonged to allow for
the arrival of the drug dog. Most courts
figure it takes ten to fifteen minutes to make a stop, check the driver's
record, and issue a ticket. (The officer
here testified it normally took him twelve.)
So how does the panel affirm the trial judge's tossing of the
search? By pretty much ignoring that: it
concentrates instead on the lack of any reasonable suspicion of criminal
activity. There wasn't any, but you only
get to that point if the stop's been unduly prolonged.
Things I learned this week:
the Fletchinger rule. That comes into play when you work out a plea
bargain like the one in State v. English. The police were
investigating English's boyfriend for drug trafficking, and obtained a warrant
to search his home. They found a set of
keys belonging to English, and the resultant search of her home turned up 122
grams of crack and another 92 of heroin, along with assorted guns, scales,
$20,000 in cash, and various other items used in the drug trade. Someone along the way must have realized that
a search of English's home, whether with or without a warrant, based solely on
the discovery of her keys, might prove a risky venture (see Fontaine), and so English's five counts
of drug trafficking and possession, with major drug offender specifications,
were reduced to a single count of permitting drug abuse, a fifth degree
felony. She appeals, claiming that the
plea was invalid because permitting drug abuse isn't a lesser included offense
of possession or trafficking.
Hence, the Fletchinger
rule:
The acceptance of a guilty plea
violates due process where three conditions are met: (1) the defendant pleads
to an offense which is not a lesser included offense of the charged crime; (2)
there is a failure to explain the additional elements of the offense to which
the defendant will plead; and (3) under the facts of the indictment, the
defendant could not have committed nor been convicted of the offense.
All three conditions must be met in order to void the plea,
and while English can satisfy the first one, she can't meet the other two, and
so the plea stands. Seems better than going
to trial on five first degree felony charges with mandatory maximum 11-year
prison terms, but then what do I know.
The defendant in State v. Jefferson gets a break, too. His murder trial resulted in an acquittal on
that count, but conviction of the inferior offense of voluntary
manslaughter. In his first appeal, the
court held that the charge on voluntary manslaughter should never have been
given - Jefferson argued self-defense, and there was no evidence of sudden rage
or passion - and sent it back. For
what? Jefferson couldn't be tried for
murder, because the jury acquitted him of that, and he couldn't be tried for
manslaughter, because the appeals court said he couldn't. The judge obligingly dismissed the indictment,
and the State appealed. The court
dismisses that, spending a lot of time talking about jurisdiction and when the
State can file an appeal as of right versus seeking leave to appeal, but what's
the point? If anybody can come up with a
scenario where Jefferson can be tried again, I'd love to hear it.
At least the judge in Jefferson
listened to what the court had to say, which is more than the judge in Cleveland v. Crump did.
A police officer, suspecting that Crump was violating curfew, asked him
for identification, and when Crump refused to provide it, charged him with
obstruction of justice. There's a long
line of cases out of the 8th (and elsewhere) holding that obstruction of
justice requires some affirmative act, more than just a refusal to identify
oneself, and the attorney provided all that to the trial judge, to no
avail. The panel reverses the
conviction, pronouncing itself "stunned" that the judge would ignore the 8th
District's case law. Me, not so
much.
The court also relies on prior case law in State v. Segines. Segines was convicted of murder and
aggravated robbery in 2007, and his four ensuing appeals all went into the loss
column. But whatever personal failings
Segines had - and convictions for murder and aggravated robbery would indicate
he had some - lack of persistence wasn't one of them. So early this year he filed a "motion to
correct a facially illegal sentence," arguing that under the Ohio Supreme
Court's 2010 decision in State v.
Johnson, the two offenses were allied and should have merged. That's going nowhere; Johnson doesn't apply retroactively, but only to cases that were
pending (for trial or on direct appeal) at the time it came down. That should be the end of that, but the panel
decides to answer the question as if it had been properly presented, and
provides us with decisions holding that the offenses don't merge "where the
force used to effectuate an aggravated robbery is far in excess of that
required to complete the robbery."
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