What's Up in the 8th
There's a stat floating around that the State wins something like 85% of all appeals. There's a reason for that: defendants have an attorney assigned to handle their appeal, regardless of how crappy their case is. Case in point is State v. Williams, where the only argument I could muster was manifest weight of the evidence, a contention hopelessly compromised by the discovery of the robbery victim's cell phone in my client's jacket. Or State v. Ladson, where the best argument the lawyer - not me, fortunately -- could come up with is that while the judge told the defendant at the plea hearing that he had the right to cross-examine the State's witnesses, the rule requires telling the defendant that he has the right to confront the State's witnesses. Those are some God-awful appeals.
I also took it on the chin in State v. Truhlar, but that wasn't God-awful, it was just weird. Truhlar was indicted for rape the day before the statute ran, and in a bench trial, the victim appeared to have some serious credibility issues. (Chief among them was her insistence that she and her best friend had been earlier kidnapped and held hostage for nine days by several Albanians, something the best friend testified had never happened.) In any event, the judge heard all the evidence, then announced that he was going to give his verdict in a week.
Three days after that, the prosecution filed a "supplemental response to discovery," which included a copy of the medical records the State had spent the last two years looking for, along with the assertion that they would clear up some of the victim's inconsistencies. This was the functional equivalent of walking into the jury room during deliberations, dropping the medical records on the table, and telling the jurors, "You'll really want to look at this."
The judge dismissed the case with prejudice, but it's not clear why: at one point he said he was dismissing it because of the delay in finding the records, at another that he was declaring a mistrial. The panel decides that it should have been a mistrial without prejudice, and that's probably right. Unfortunately, the court says in dicta that the State didn't do anything to provoke a mistrial, which would bar a retrial on double jeopardy grounds. That determination should await a hearing on the issue, where the lawyers could be questioned about that subject.
Oh, and if you're smart, which you are if you're reading this blog, you'll have figured out that the State had only one day left after the 8th's decision came out last Thursday to re-indict Truhlar. I even looked up a case from the 8th which says exactly that. And then I checked the docket, and sure enough, on Friday the State re-indicted Truhlar. They're smart, too.
They weren't so smart in State v. Hudson. The judge hadn't said anything remotely constituting the findings for consecutive sentences, but the State nonetheless insisted that didn't matter, because the record supported them. The panel spends about three pages pointing out that this is directly contrary to the Supreme Court's decision in State v. Bonnell, which specifically requires the judge to make the findings, and concludes, "We question why the state makes borderline frivolous arguments in this appeal, rather than concede the error, and risk diminishing its reputation by defending the consecutive sentences imposed in this case." That's a worse smackdown than I got in any of my God-awful appeals.
You remember all those cases you have in municipal court, where your client pleads no contest and you tell the judge that you're stipulating to the facts and the finding of guilt? Well, that's not good enough, says the court Berea v. Moorer. Under RC 2937.07, on a no contest plea, "the record must provide an 'explanation of circumstances' that includes a statement of the facts supporting all of the essential elements of the offense." A stipulation as to the facts and guilt isn't sufficient. A waiver of the "explanation of circumstances" is.
Most of the 8th's other cases lend themselves to easy summarization. If you're going to appeal the trial court's denial of a motion to suppress, Cleveland v. McCane reminds us that you have to include the transcript of the motion to suppress hearing. I don't know if they teach this in law school, but they need to. Due process at a probation violation hearing requires the right to cross-examine the probation officer about the violation, but if she doesn't show up and the judge just reads the report into the record, that's good enough if you don't object to it, according to State v. Ellington. And if you're defending a client charged with charged with menacing by stalking, State v. Hudson tells you that every single bad thing he did to that woman - doesn't matter what, doesn't matter when - is coming in.
Finally, in State v. Colon, Colon is indicted on seven counts of rape for sexually abusing two mentally disabled boys, but manages to get it pled to three counts of sexual battery. The judge max and stacks him for 15 years, for which I'm not getting all worked up about. That's affirmed, and there's an interesting argument about whether the sexual battery statute, at least in some respects, is constitutional. Or would be interesting, had it been made in the trial court. Even if an argument isn't raised below, the Court of appeals still has discretion to consider it, but they're not about to do that for Colon. I'm not getting all worked up about that, either.
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