Catching Up
There are weeks when I scrape to come up with something to write about. No decisions by the Potomac Nine Eight or the Olentangy Seven, nothing notable in the courts of appeal, nothing in the 8th, no legal event or topic which stirs my outrage or even my fancy... And then I go away for a week and the gang down in Columbus hands down five decisions in criminal cases.
Let's take a look.
Does the judge have to make the findings for consecutive sentences if it's an agreed sentence? RC 2929.14(C)(4) says a judge has to make certain findings in order to impose consecutive sentences, but RC 2953.08(D)(1) says a defendant can't appeal a sentence that's jointly recommended by the parties and imposed by the judge. The 11th District had held that even where the sentence is agreed to, the judge's failure to make the findings renders the sentence "contrary to law." BZZZT! Wrong answer, says the court in State v. Sergent: the agreement nullifies the requirement for findings.
What happens if the parties recommend a sentence which would require consecutive sentences, but the judge doesn't adopt it; does he have to make the findings then? Sergent doesn't answer that, but it would arguably take the sentence out of 2953.08. But could the defense really argue that the judge had to make the findings, when they'd agreed to a sentence that would require consecutive sentences? I'm betting not.
Can a trial judge exclude the prosecutor from appearing for the State at a probation violation hearing? State v. Heinz resulted from a pissing contest between a common pleas judge here and the county prosecutor. The judge held that the county probation department was the proper representative of the State, and the 8th agreed. But this argument never made a whole lot of sense to me; as the Supreme Court holds in unanimously reversing, there's a separation of powers problem - the county probation department is actually an arm of the court - and a probation officers is rarely a lawyer, so he shouldn't be expected to act like one.
Does failure to register a motor vehicle count as a conviction for expungement purposes? It does for the defendant in State v. J.M., because back when he was convicted of it, it was a fourth degree misdemeanor, and that, along with another misdemeanor, stops him from getting his felony conviction expunged. J.M. argues that failure to register is now a minor misdemeanor, which never counts as a conviction, but it wasn't when he was convicted for it, and that's all that matters. It's a harsh result, but that owes to the harsh nature of Ohio's expungement law. There have been numerous attempts to liberalize it, such as by allowing someone to expunge a conviction after a certain time, like fifteen or twenty years. That's been rejected time and again, and instead the legislature has steadily whittled down the list of offenses which can be expunged.
Can you appeal from a judge's order denying jail-time credit? It used to be that whether a court had properly credited the defendant for all the time he spent in jail awaiting disposition had to be raised in an appeal. The legislature did fix that in 2012, enacting RC 2929.19(B)(2)(g)(iii), which allows a defendant to file a motion for credit "any time after sentencing." Lowell Thompson did just that, the judge denied it, and the 12th District said the denial wasn't a final order. In State v. Thompson, the court disposes of that contention in a tidy four pages. One of the ways an order becomes final is if it affects a substantial right and is made in a special proceeding. That how long a person has to be in jail affects a substantial right, and that the procedure outlined in the new statute is a special proceeding, should've been self-evident.
Does the statutory presumption that a videotaped confession is voluntary apply to juveniles? Let's back up a bit. There are two requirements for the admission of a defendant's statement: that he waived his Miranda rights, and that the statement is voluntary. (Even with a valid Miranda waiver, a statement produced by police coercion can be involuntary, and suppressible.) RC 2933.81 provides that electronically recorded statements made by a defendant in a homicide or rape case are presumed to be voluntary. The 1st District got those confused in numerous cases, holding that the presumption of voluntariness applies to the Miranda issue as well.
In State v. Barker, the Supreme Court, by a 5-2 vote, straightens that out: the statute has nothing to do with Miranda. But it goes farther, holding that the statutory presumption of voluntariness is invalid when applied to juveniles. (Barker was questioned about a killing, and subsequently convicted of aggravated murder and sentenced to 25 years to life. He was 15 at the time he was questioned, and had borderline intelligence.) The issue of voluntariness has to be decided by consideration of the "totality of the circumstances," including the defendant's age, intelligence, and other similar characteristics, and the court holds that it's a violation of due process to impose upon a juvenile the burden of proving that the statement wasn't voluntary.
It's not clear why that should be limited to juveniles; although juveniles might be less understanding of the consequences of police interrogation, it's a consideration for adults as well, and it would seem that due process would require the State to prove voluntariness in that circumstance as well. That may arise in the future, although it's not likely; the vast majority of "confession" cases address the Miranda issue, not whether the confession is voluntary. Something to keep in mind, though, and the immediate takeaway from Barker is that whether the conversation is recorded doesn't shift the burden of proving the validity of the Miranda waiver onto the defendant; the State always has that burden.
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