What's Up in the 8th
Perhaps in recovery mode from witnessing the debacle of Ohio State's performance in the Fiesta Bowl or the debacle Mariah Carey's performance on New Year's Eve, the 8th can muster the energy to produce only four criminal decisions last week. Three of them involve sentencing issues. Not surprising; when 95% of cases are resolved by pleas, you're stuck with either plea or sentencing issues, usually the latter.
First up is State v. Kibble. Here's a helpful hint when reading appellate decisions. When the first paragraph tells you that the only relief granted the defendant is a remand "for a nunc pro tunc entry reflecting that Count 65 merged at sentencing with Count 64," it's a good bet that the major damage was inflicted in Counts 1 through 63.
Kibble got out of prison in August 2014. The next time Kibble's name will appear in the same sentence as "got out of prison" will be in 2046. Within a month after his release, Kibble burglarized a home, then with several companions engaged in a crime spree running through March of 2015 that involved no fewer than eighteen armed robberies. He pled to 60 of the resultant 105 counts, and the judge gave him thirty years. That's the major issue on appeal.
The panel's treatment begins in rocky fashion. Relying on the Supreme Court's recent decision in State v. Marcum, the panel announces that a sentence will be affirmed "unless the record clearly and convincingly demonstrates that the trial court's sentence is contrary to law." There's been a split in the 8th's decisions over whether Marcum (discussed here) allows an appellate court to review whether the sentence is "clearly and convincingly" unsupported by the record, but Marcum dealt only with a sentence for a single offense; there's no question that a court can review consecutive sentences to determine whether they're unsupported by the record, as well as whether they're contrary to law. ("Contrary to law" in this context would be that the trial court failed to make the necessary findings for the imposition of consecutive sentences.)
But while the panel goes a bit off course in its journey, it arrives at the correct destination: the judge made the required findings, and the record amply supports the sentence. Let's put it this way: while I ordinarily need a bucket for my bleeding heart, when you bring a gun into 18 different establishments and point it at people -- and all this after you've just gotten out of prison -- I'm not going to lose any sleep over not having to worry about you for the next thirty years.
The defendant in State v. Ward flees from the police, runs over a pedestrian and kills him, then takes off. The first issue is allied offenses: do the three offenses here -- failure to comply, aggravated vehicular homicide, and hit-and-run -- merge?
There are two recent Supreme Court decisions on merger, State v. Ruff (discussed here) and State v. Earley (here). I'm not impressed with the clarity or logic of either one, and neither is the panel, apparently, because it doesn't even mention them. That omission is appropriate: under any allied offense analysis, there's a separate animus for each of the offenses, and so separate punishments are appropriate.
Those punishments totaled 11 years, and Ward argues the sentence is disproportionate. To argue disproportionality, though, you have to raise it in the trial court, and present "some minimal evidence" to support it; otherwise, it's waived. Ward did neither.
The defendant in State v. Paulino is charged with 69 counts of child porn, pleads to 49 of them, and then changes his mind, gets a new lawyer, and seeks to withdraw the plea. He claims that he's innocent -- pretty much the sine qua non for such a motion -- and that he was denied the opportunity for a forensic examination of his computer to show that there wasn't any child porn on it. The trial judge allows the defense to have a forensic expert examine the computer; alas, he comes to the same conclusion that the State's people did.
The judge denies the motion, and gives Paulino six years, about the mid-range for child porn in this county. The panel affirms the denial, and also rejects Paulino's claim that the judge should've given him community control sanctions. That would've required overcoming the presumption for prison with a second-degree felony, and here we learn that while the judge does have to make findings to overcome the presumption, he doesn't if he determines the presumption hasn't been overcome.
Yanira King pleads to drug possession, and gets community control sanctions. Several days after the sentencing, her lawyer files a motion for occupational driving privileges, which the judge grants for purposes of work, doctor's appointments, paying bills, and grocery shopping. The very next day, the State appeals, with the assignment of error that "the Trial Court erred in granting driving privileges for paying bills and grocery shopping."
Oh, the humanity! I'm assigned to the case, and write a blog post about it, stating that I'd stab myself in the head before I'd write an assignment of error like that. (From the way oral argument went, I'd venture that assistant county prosecutor failed to discern any humor in the comment.) I point to a problem: the sentencing entry didn't impose any suspension in the first place. That's what should have been appealed.
Not necessary, says the panel, noting that the failure to do so renders the entry void in that respect, and remanding the case for that purpose. Of course, as they also note, the law has since been changed: the suspension is now discretionary, and even if it's imposed, privileges can be granted "for any purpose."
So I'll count this as a win, at least on a moral level, although I doubt the case will make the cut as a separate chapter in my autobiography.
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