What's Up in the 8th
Sometimes the court will bail you out. Sometimes it won't. Those different approaches led to very different results in two cases last week.
The act of grace comes in State v. Thomas. It's a child rape case, and the only real issue on appeal, as to the conviction anyway, is whether the court erred in allowing the mother and a social worker to testify what the child told them about the abuse.
There's a problem, because the lawyer didn't object to it at trial, so it's reviewed for plain error. The opinion includes what's become obligatory language in those situations: "An appellate court recognizes plain error with the utmost caution, under exceptional circumstances, and only to prevent a miscarriage of justice." That comes from a Supreme Court decision back in the 1970's, so there's authority for it, but there's no real reasoning behind the standard being that harsh; the rule only requires that the error have affected "substantial rights."
There's a way around this, too: contend that the failure to object was ineffective assistance. To be sure, a lot of things attorneys do - or don't do: object, ask for jury instructions - is swept under the rug of "trial strategy and tactics," but if you do find something egregious, you wind up with a standard of review which requires you only to show a probability of a different result, which is defined as whether the attorney's failure undermines confidence in the verdict. Unfortunately, while Thomas alleges ineffective assistance of counsel in a variety of flavors, failure to object to the hearsay evidence isn't one of them.
Turns out it doesn't matter, because the court finds there wasn't any error, plain or otherwise. The purpose of the hearsay rule, the court notes, is to protect the defendant's opportunity to cross-examine the declarant, and here the child testified. Of course, that comes perilously close to saying that any time the child victim testifies, anything the child told anybody else is coming in, too. Especially after the Supreme Court's statement in Ohio v. Clark (discussed here) a few months back that "statements by very young children will rarely, if ever," be testimonial.
Thomas does get one break. On sentencing, he alleges only that the court's giving him consecutive 25-to-life sentences was an abuse of discretion and the result of judicial bias, which the panel easily rejects, but it does sua sponte conclude that the judge failed to make the findings for consecutive sentences, and remands it for that purpose.
The panel isn't so forgiving in State v. Ethley. Ethley's given consecutive sentences after a plea to involuntary manslaughter and conveying drugs into a detention facility. The opinion quotes the trial judge's explanation of why he imposed consecutive sentences, and it's pretty clear he completely missed the finding that consecutive sentences aren't disproportionate to the seriousness of the offender's conduct and the danger he poses to the public.
But that's never addressed by the court, because it notes that that "Ethley raises only two issues": that his history of criminal conduct didn't justify consecutive sentences because they involved nonviolent offenses, and that the judge imposed consecutive sentences because he misconstrued the presentence report. The panel in Thomas raised the issue sua sponte. Not here, pal.
Ethley also argues his plea was invalid because the judge didn't tell him he could get consecutive sentences. This is a well-worn road, and it always winds up in a dead end for defendants: The Ohio Supreme Court held back in 1989 in State v. Johnson that the court didn't need to advise a defendant in a plea hearing of the possibility of consecutive sentences, so that's that.
Not that it should be. The Johnson court's explanation of why this is so was that "the decision of whether the criminal defendant is to serve the sentences for all his crimes consecutively or concurrently is a matter of sentencing discretion, the exercise of which is committed to the trial court," and because that was within the court's discretion, it need not be addressed at a plea hearing.
But that doesn't make much sense, in light of the court's innumerable pronouncements that just about every aspect of sentencing is within the trial court's discretion. Whether to give the defendant three years or eleven years on a first degree felony is wholly up to the judge, but if the judge doesn't tell the defendant he could get up to eleven years, it gets reversed; the rule requires that the court inform the defendant of the "maximum penalty." But if the defendant's pleading to two first degree felonies, the maximum penalty is 22 years, and there doesn't seem to be much reason not to tell the defendant that.
Ineffective assistance is also the claim in State v. English, on account of the lawyer's failing to turn over text messages in discovery, resulting in their exclusion at trial. What were the text messages? We don't know, because the attorney didn't proffer them. The appropriate avenue for addressing that is post-conviction relief, where evidence outside the record can be presented. That also gives me the opportunity to remind you that the time limit for filing petitions has been extended from 180 days to one year.
Allied offenses is the bigger issue in English. English and her victim, Fisher, had a somewhat tortured romantic relationship, which culminated with English running over Fisher with her car and dragging him a short distance. For this she was convicted of two counts of felonious assault, one for using a deadly weapon, and the other for causing serious physical harm.
The prosecution defends the non-merger of the charges, arguing that the injury to Fisher can be broken down into "sub-acts occurring closely in time": the first when English struck Fisher and the second when she proceeded to drive over him, thus evidencing a separate animus for each. The court's not buying: the whole incident, according to the surveillance video, took six seconds, and that's too short a time to form a separate animus for two offenses.
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