What's Up in the 8th
Their time apparently occupied with exploring the various
means by which turkey can be prepared, the 8th District's judges handed down
only two decisions last week. Both are
worth a look, albeit the one barely.
That one is State
v. Falkenstein, which represents the defendant's latest effort to get
out from under his consecutive life sentences on the 41 counts of child rape he
was convicted of back in 2003. He lost
his direct appeal, but in 2010, he filed a motion to "vacate void sentence,"
claiming that the judge had failed to advise him of the term of his
post-release controls, and of the consequences for their violation.
This reveals the idiocy of the law on PRC, on two
levels. First, the sentence is life with
parole eligibility after twenty years; in the unlikely event that Falkenstein
is released, he will be on parole. Why
are we even talking about post-release control?
Second, "unlikely"? The next time
you see the headline, "Child Rapist Paroled" will be the first. I was talking to one of the guys over at the
county PD's office, and he told me they had a client who was sentenced to 5 to
25 back in 1989. That was under the old
law, and the parole board decided how much time you did after the minimum. He did every day of that 25 years. He was 84 years old when he was released, and
had been wearing a colostomy bag for the last 10.
That aside, Falkenstein's
teaching is a simple one: if the court
improperly advises a defendant of post-release control or the consequences of a
violation at the sentencing hearing, a new sentencing hearing has to be
conducted (limited, of course, solely to proper imposition of PRC). But if the judge just fails to include it in
the journal entry, that can be corrected without a hearing by a simple nunc pro tunc entry.
State
v. Michailides proves the more interesting case, for several
reasons. A neighbor called the police
and reported that Michailides had fired a shot from his porch. The police responded, searched the home, and
found several guns which Michealides wasn't allowed to have because he had an
aggravated robbery case 26 years earlier.
His appeal from his conviction of weapons under disability and 18-month
prison sentence focused on the trial judge's summary denial of his motion to
suppress. The motion had been filed 25
days before trial, but 46 days after arraignment, 11 days after the 35-day
limit provided by CrimR 12(D), so the judge proclaimed it out of rule.
Michailides tries to avail himself of the rule's "interest
of justice" exception, but we're in Abuse of Discretion Land here, and that
rarely goes well. I'm not sure exactly
what happened here. The docket reflects
that Michailides filed a motion to suppress on January 4, but then filed a
"supplemental brief" in support of the motion on the day of trial; it may be
that everybody regarded the initial filing as simply a pro forma effort, and it
wasn't until the day of trial that they realized it was supposed to be taken seriously. The panel also emphasizes that the defense
did not seek leave of court before filing the motion out of rule.
This really shouldn't be a problem here in Cuyahoga
County. With open discovery provided
electronically, usually within a few days of the request, you should know if
you have a viable motion to suppress well before the 35 days after arraignment
runs. If you get discovery after that
which raises a search issue, that's very likely going to extend the time. A word of caution, though: if you do file a motion to suppress after the
35 days, include a motion for leave to file it.
But there's still the issue of whether Michailides' attorney
rendered ineffective assistance of counsel, which the panel tackles next. Since the court's already concluded that the
attorney screwed up by filing the motion out of time, the deficiency prong is
satisfied. So the court tackles the
issue of prejudice, where the issue is whether the motion would likely to have
been granted; if it was a loser, then there's no harm by the late filing.
Which, unsurprisingly, is exactly what the court
decides. The police claimed that
Michailides had consented to the search of his home, and the court finds that
his "self-serving proffered testimony that he declined consent to search his
home is insufficient to create a reasonable probability that the motion to
suppress would have been granted had the suppression hearing been held."
Maybe, but then there's this: the first time he was asked to consent to the
search, Michailides refused. The cops then went next door and spoke to the
neighbor, and upon their return, they claim, Michailides consented. But then there's a further nugget in the
opinion's second paragraph:
According to one of the responding officers
(the other did not testify), the officers either shouted from behind a parked
car in the driveway for the occupant of the home, later identified as
Michailides, to exit, or they immediately climbed the stairs to the front porch
area and demanded that Michailides come to the door. The testifying officer
gave the former account during his direct examination and the latter during the
cross-examination.
Since this was a warrantless search, the State has the
burden of proving that it fell within the consent exception. Maybe it's just me, but I don't see
Micheilides coming out second in a credibility fight with that officer.
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