What's Up in the 8th
I read the 8th District's decisions in criminal cases every week. Sometimes, I don't need to read very far. For example, the opinion in State v. Jones begins, "Defendant-appellant appeals the imposition of consecutive sentences following his ninth and tenth convictions for rape." Not difficult to see where that's going. Nor are any surprises in store in State v. Williams, where Williams, convicted of raping someone under the age of 13, claims that the court shouldn't have relied on his earlier conviction of raping someone under the age of 13 in determining that he was a sexual predator.
Williams won't get a third chance to rape someone under the age of 13: he was sentenced to life without parole. The defendant in State v. Jackson may get another chance to rape someone; he's given "only" fifteen years for raping two women, on separate occasions. He argues that the judge shouldn't have given him 15 years consecutive, but it's hard to see a problem with that after reading in the opinion the heartbreaking statement given at sentencing by one of the victims.
It's also hard to see a problem with giving fifteen years to a guy who raped two women on separate occasions.
State v. Davis is yet another rape case, and provides two helpful tips. First, don't have sex with someone who's asleep, and second, if you do have sex with someone who's asleep, don't tell the police you did. Davis was convicted of rape where the victim is substantially impaired, and argues that the section is void for vagueness. That's a tall mountain to climb, and whatever the vagaries of the statute, the fact that a person's asleep would seem to provide adequate notice that they're not capable of consenting to sex.
Davis is on firmer ground with his argument on pre-indictment delay. The case is 17 years old, and Davis was well-acquainted with the victim. According to her, the two sat in a car for a while at two in the morning; she fell asleep, and woke up with Davis on top of her. She ran into her house immediately afterwards, and the police were called.
Davis claims that the victim's mother told the girl, "you need to stop lying, you didn't get raped," and would have provided other exculpatory evidence, like why the girl signed a no-prosecute form at the time. "Would have provided" is the key: the mother died two years before the trial.
I've said before that a dead witness is the gold standard for showing actual prejudice in a pre-indictment delay case. There's good language in Davis, especially the rejection of the State's argument that Davis can't show what the mother would have said; the Supreme Court's decision in State v. Jones flatly rebuffed that contention.
But it all comes down to Davis' repeated admissions to the police that the victim was asleep, and that he "wanted to try his luck." Whatever Mama would've said can't overcome that.
State v. Miller provides a must-read for Cuyahoga County judges. Miller apparently was involved in operating a meth lab, and pled out to aggravated arson, arson, and felonious assault. The judge began the plea colloquy by telling Miller that "nobody is under an obligation to accept [a plea offer]. You're welcome to stay with not guilty and go to trial instead." The judge then proceeded to meticulously go through Miller's constitutional rights, asking after each one whether he understood it, and eliciting an affirmative response each time. And this wasn't just a reading off the card: the judge used easily understandable language in explaining them.
And the plea gets vacated. Why? Because "the trial court never expressly stated, or inquired as to whether Miller understood, that by pleading guilty, he was waiving his constitutional rights."
The majority's decision is based on language from the Supreme Court's decision in State v. Veney that "the trial court must strictly comply with Crim.R. 11(C)(2)(c) and orally advise a defendant before accepting a felony plea that the plea waives" the rights contained in that provision. This seems a rather strained interpretation of Veney, and the dissent points to numerous cases where the Eighth has upheld pleas despite the judge's failure to use the magic word "waive."
The companion case of State v. Looby demonstrates the problem here. Looby didn't raise the waiver issue in his original brief, nor even after he was invited to do so by the court's sua sponte instruction to file a supplemental brief on the issue. The dissent suggests why: Looby was charged with four counts of attempted, four of aggravated arson, and four of felonious assault. He'd gotten the same deal as Miller, but there's no guarantee that he's going to get the same deal on remand.
One of the things an appellate lawyer contemplating trying to vacate the plea must gauge is whether his client got a good one. Looby and Miller are unlikely to do worse, but they're very unlikely to do better, and it might been to their benefit to let sleeping dogs lie.
Two cases, State v. Townsend and State v. Harris, seek to answer the existential question of what constitutes good cause to excuse the failure to file a motion to reopen an appeal for ineffective assistance of appellate counsel under AppR 26(B) within the required 90 days. Townsend's appeal was decided in 2012, so that takes care of that.
But Harris' was filed only five days late, and he seems to have a good excuse: he produces evidence that he paid the postage to mail the application from prison eleven days before it was due, but the prison apparently never got around to mailing it until the time had run.
As the numberless hordes of my regular readers know, "good cause" in this context seems to be a legal unicorn. Your lawyer failing to inform you of the decision doesn't qualify, nor does lack of access to the law library. Even a prison riot doesn't make the cut.
Add to the list, "somebody else screwed up." The court rejects the application as untimely, citing a Supreme Court case which upheld denial where the defendant sent it by overnight courier, and it absolutely, positively wasn't delivered until the day after the deadline.
I did find one case, from the 6th District, which considered an application despite it being a day late, noting that the time limit is not jurisdictional, and what constitutes "good cause" is a flexible standard. Not in the Eighth. Perhaps a Zombie Apocalypse might do the trick. (And talk about numberless hordes.) I wouldn't count on it, though.
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