What's Up in the 8th
I've often mentioned that criminal appellate work is not for those with self-esteem issues, but appealing from municipal court decisions might rescue you from despondency: so far this year, muni prosecutors have posted a solitary win out of six decisions in the Eighth. The latest loss comes in Cleveland v. Edwards. Edwards had been in jail for two months for violating a protective order, and when on the day of trial the prosecutor asks for a continuance, Edwards expresses a desire to resolve the matter. This is the entirety of the ensuing plea colloquy:
THE COURT: Do you want to plead no contest to Docket Number 16?
THE DEFENDANT: Yes, if it's going to resolve this. I'm trying to get this resolved.
THE COURT: I'm going to bring it back for sentencing 2-8-17. I'm going to give you a personal bond and let you out of jail today.
No indication of what "Docket Number 16" means, no explanation of the nature of the offense, no explanation of the effects of a no contest plea, and Edwards never actually entered a plea. I know Cleveland muni judges have a hundred or so cases every day, but there's only so many corners you can cut.
But the court's beneficence extends beyond muni court cases; even excluding those, defendants have gone 9-6 over the past two weeks, a record that Browns' coach Hue Jackson would gladly sacrifice a kidney for. And maybe two.
The court works to restore its reputation as the most 4th Amendment-friendly in the state in State v. Hakim. The police suspected Hakim of having weapons when he wasn't allowed to, so they got a warrant to search his house for firearms. A police officer opened a safe and saw a pill bottle. He manipulated it to see what was inside, and observed what he believed to be "small plastic bags." He opened it, and found white powder in the bags. He also testified that he found "suspected marijuana" inside a balled-up paper towel, his attention to it having been directed by the overpowering smell of the demon weed as soon as he opened the safe.
The trial court suppressed the drugs, and on appeal the State relies on plain view for the cocaine and plain smell (yes, that is A Thing) for the marijuana. But plain view requires that "the incriminating nature of the object be immediately apparent," and that wasn't the case here: the officer had to manipulate the bottle to see what was inside. As for plain smell, the panel throws some shade at the officer, noting that he mentioned nothing about the assault on his olfactory senses in his report, or on direct examination in the suppression hearing, waiting until cross-examination to first broach the subject.
Earlier this year, the Supreme Court struck down a judge's policy of not accepting no contest pleas in State v. Beasley. The Eighth puts that to work in In re M.H. The defendant, then a part-time police officer for a community college, responsible for collecting parking fees, stole $660 back in 2005. He pled to theft in office, and did six months in prison as well as pay a fine of $3,000. He hasn't been in any trouble since, but when he seeks to have the conviction expunged, the judge tells him, essentially, that she has a policy of not granting expungement to "people who take oaths to protect the public and to do right by the public fail in those oaths." Well, a policy of not granting expungement to people who commit theft in office is just as much a "policy" as not allowing no contest pleas, so the court reverses and remands for the sole purpose of having the judge enter an order of expungement.
The court's work in State v. Harris is less stellar. There's another search issue, and the court correctly concludes that in a child rape case a warrant granting the police the right to seize "any and all biological and/or forensic material" allows them to seize towels, even though towels aren't specifically mentioned in the warrant. (They are mentioned in the affidavit.) The court also concludes that a social worker's testimony that she "didn't have any concerns" with the victim "being untruthful" is not a sufficiently ringing endorsement of the girls' credibility to violate the Supreme Court's proscription of such testimony in its 1989 decision in State v. Boston.
But the court throws in the comment that since the child testified, any Boston error is harmless. As I explained ten years ago, that's an incorrect interpretation of Boston. Yes, if the child testifies, the jury has an opportunity to gauge her credibility, but that doesn't mean the jury is unaffected by an expert's testimony that the child is being truthful. I'm sure that this post will succeed in accomplishing what my post a decade ago did not, and we'll hear no more of this.
Here's something you probably know: if a defendant is convicted of a felony offense of failure to comply -- the old "fleeing and eluding" statute -- any prison sentence has to be run consecutive to any other prison sentence. Here's what you might not know: "any sentence" means any sentence: it has to be run consecutive to any prison sentence from any other case, even from another country, whether imposed before or after.
What it does not mean is that all other sentences have to be run consecutively as well. The judge in State v. Parker thought they did, and so didn't make the findings for consecutive sentences. (A judge doesn't have to if the law requires sentences to be run consecutively.) It gets sent back, and this is one of the rare cases where the defendant might not get consecutive sentences on the remand: if the judge believed she had to impose consecutive sentences, and finds out she didn't, she might well not do it at all.
One more thing about Parker: in the category of They Say Irony is Dead, Parker actually committed the offense in 2005, but went capias.
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