What's Up in the 8th
Sometimes, the 8th District's decisions tell us something new, and sometimes they just reiterate what we should have known all along. Typical of the latter is Middleburg Heights v. Elsing. Elsing pled no contest to OVI, the judge accepted her plea and found her guilty, but not only is the plea vacated, so is the conviction, and she's discharged.
Why? The statute on misdemeanor pleas, RC 2937.07, requires the court to "call for an explanation of the circumstances of the offense." That explanation can come from a variety of sources: the prosecution, documents (so long as the court states its considered them), even the defendant himself. But where there's no explanation, that's insufficient.
There's an interesting twist, though, in Elsing. She'd filed a motion to suppress, and the court had conducted a hearing on it, and denied it. At the plea, the judge asked if the defense was "waiving the facts"; just like almost anything else, a defendant can waive the explanation of circumstances. The defense attorney, obviously referring to the evidence presented at the suppression hearing, responded, "I believe you've heard the facts... so I don't think there's anything more that needs to be presented to the court." I think you could make a pretty argument of invited error, although it would have been better for the judge to at least refer to that evidence in making a finding of guilt.
We don't learn much in State v. Burger and State v. Mitchell. Burger appeals his sentence of 16 years after a guilty plea to 74 counts of child porn, arguing that the record doesn't clearly and convincingly support consecutive sentences. But that's backwards; the standard is whether the record clearly and convincingly doesn't support consecutive sentences. Among Burger's stash were videos depicting infant and toddler rape, so guess where you're going with that argument.
Mitchell fares no better in appealing his ten years of sentences for several counts of sexual battery. A youth minister, Mitchell had groomed a 16-year-old member of his congregation and had sex with her. Not helping: after his arrest, Mitchell set up a dummy email address so he could continue sending the girl messages professing his "love" for her.
We do learn something in State v. Nelson. Nelson was charged with rape and kidnapping, and was convicted of sexual battery and abduction after a bench trial. Both are third degree felonies, right? Well, no. Back in 2008 the legislature amended the abduction statute to include an additional method of violation: holding another "in a condition of involuntary servitude."
That steps it up to a second-degree felony, and that's what the judge decided, based on testimony that Nelson had forced the woman to perform oral sex on him. The panel finds that a bit much, as well it should: the amendment was made in conjunction with the implementation of other statutes addressing human trafficking.
What's weird here is that although the judge convicted Nelson of a second-degree felony, the two offenses merged, and the State elected to have the sentence imposed on the third-degree felony sexual battery. That leads to a spirited debate between the majority and the dissent, the latter arguing that this renders harmless any error in the abduction count.
Speaking of weird, in State v. Blackman, the defendant pleads guilty to various crimes, and acknowledges at the plea hearing that no particular sentence has been promised. Well, maybe it was; at sentencing, the judge mentions that a "gentleman's agreement" had been reached in chambers, in which the judge had indicated he was looking a sentence between three and five years.
Upon reflection, the judge announces, he's not "comfortable" with that range, and offers Blackman the opportunity to withdraw his plea and go to trial. Blackman opts against that, and on appeal argues that his lawyer was ineffective in not enforcing the "agreement."
This argument might have made more sense if the judge had imposed a sentence greater than what he'd theoretically agreed to. But he didn't: he imposed exactly five years. Since that was the outer range of what the agreement specified, that one definitely goes into the harmless error bin.
If you're running out of summer beach reading, you might want to check out Lemons v. Ohio. With the dissent, the opinion clocks in at an impressive 58 pages. And we do learn something.
Lemons was convicted of murder in 1995, but was granted a new trial in 2013 because the prosecution had hidden evidence, an all-too-common occurrence for that office in the 90's. The State's key witness had died, and the concealed evidence pertained to that witness, so the State dismissed the case.
That prompted Lemon's lawsuit for wrongful imprisonment, and here's where things get funky. There are a number of requirements for getting compensated for spending time in prison which you shouldn't have, but it boils down to this: you either have to prove, by a preponderance, that you're actually innocent of the crime or that no crime was committed, or that "subsequent to sentencing and during or subsequent to imprisonment, an error in procedure resulted in the individual's release."
So what's an "error in procedure"? We know it's not a pretrial or trial ruling that gets reversed on appeal. The Supreme Court held that in Mansaray v. State, nixing Mansaray's attempt to get compensation because his conviction had been thrown out due to an illegal search.
To be sure, a Brady violation begins before sentencing: the violation occurs when the State fails to produce exculpatory evidence at trial. Just last year the 10th District rejected a claim for wrongful imprisonment based on a Brady violation on that basis: it didn't occur after sentencing. The 8th District gets around that by finding that the Brady violation was a continuing one, and therefore satisfied the "after sentencing" requirement.
The Supreme Court has decided several cases on wrongful imprisonment over the past few years, and it has not been kind to defendants. This one is likely to be heading there. We'll see what happens if it does.
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