The Briefcase by Russ Bensing | Musings by an Ohio criminal lawyer

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Friday Roundup

The Internet and sex offenders.  Last week, I did a summary of Packingham v. North Carolina, in which the Supreme Court struck down a North Carolina law prohibiting sex offenders from going on social media sites, such as Facebook.  Ohio doesn't have such a law, but limitations on an offender's use of computers as a condition of probation are routine in sex cases.

Typical is the 11th District's decision a few years ago in State v. Robbs.  Robbs had fooled around with his 18-year-old stepdaughter, and wound up pleading to gross sexual imposition.  The judge put him on community control sanctions, with the condition that his computer and Internet usage be monitored by the probation department.  The court found no problem with this.

The court addressed only the issue of whether the probation condition was reasonably related to the crime.  There might have been a First Amendment issue; Robbs argued that the order "forbade him from using social media," but that provision wasn't included in the journal entry, so the court ignored it.

But what if it had been?  A probation condition prohibiting a defendant from using social media doesn't seem any different from a law prohibiting it, and Packingham would seem to preclude that, too.

Maybe not, though.  The court in Robbs points to State v. Eal, a 2012 10th District decision which upheld a probation condition which provided that any computer usage had to be supervised by the probation department.  In that case, though, Eal had downloaded child porn from the Internet.  And since "supervision" doesn't broadly prohibit him from going on certain sites, as did the law in Packingham, it seems "narrowly tailored" to the actual offense sufficient to pass constitutional muster.

But lawyers handling sex offense cases should be aware of how restrictions on computer usage in probation conditions might be affected by Packingham.  One of the problems in Robbs is that he didn't object to the conditions at the time the trial court imposed them, so the panel reviewed it only for plain error.  And you know how that goes.

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Case Update

One SCOTUS term has ended, but another is just getting revved up.  The Big Thing for the Court upon its return in October will be the Trump Travel-Ban-That-Was-A-Ban-But-Maybe-Isn't.  There's also the cakesellers case:  whether Colorado could use its public accommodations law to compel the Masterpiece Cakeshop to create a cake for a gay wedding, despite the owner's religious views about marriage. 

Cell phones are the topic of one of the key criminal cases for next term in Carpenter v. US.  At his trial for a string of robberies in Michigan and Ohio -- irony alert:  Carpenter and his team stole smartphones -- the government used several months of cell-site records showing Carpenter's proximity to cellphone towers in the vicinity of the robberies.  The district court and the circuit court rejected his claim that the government needed a warrant for this data.  A few years back, SCOTUS held that the government needed a warrant to search the contents of a cellphone.  Two years earlier, it had held that the government needed a warrant to place a GPS on a vehicle.  The government in Carpenter is relying on relying on two Supreme Court cases from the 1970's, but when it comes to technology, the 70's is so five minutes ago.

 There aren't a whole lot more criminal cases on the Court's docket so far.  There's one on habeas law about whether a court should "look through" a summary state court decision to the last "reasoned" decision by the state court's on the case, which can be understood by habeas practitioners and no one else.  And there's Class v. US, which involves the issue of whether a plea of guilty waives a defendant's right to challenge the constitutionality of the statute he was convicted under.

I'm a baseball fan, and I've frequently marveled at the plethora of statistics that are available.  For example, with a few clicks of the mouse button, I can learn that Bryce Harper, the Washington Nationals outfielder, has a .396 batting average in night games, but only hits .254 in day games.  (Of course, for statheads, batting average is as relevant as 1970's technology.  The pertinent new statistic is OPS (on base percentage plus slugging average), which for Bryce are 1.237 and .842, respectively.))  And with the count no balls and two strikes, Harper bats an astonishing .387.

Well, for those more inclined to legal minutiae, the end of the Supreme Court heralds the arrival of the SCOTUSblog STATPACK.  From this we learn many things.  Once again establishing his street cred as the swing justice, Kennedy voted with the majority in 97% of the cases.  The Court was relatively collegial; of the 69 opinions the court issued, 59% were unanimous, the highest rate since the 2013 term.  And while Breyer asked the highest number of questions per oral argument (20.5), once again Thomas clocked in with the lowest number (0.0.)

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What's Up in the 8th

Sylvester Cotton and Michael Brooks held up a guy at gunpoint, robbed him of his cellphone, then drove him around town and forced him to withdraw money from various ATM's.  Not content with that, they drove him to an alley, forced him to undress, and shot him several times.  Not enough times, it turned out; the top charge was attempted murder.

But there were a whole bunch of other ones.  Both went to trial and got convicted, with Cotton getting 78 years and Brooks 75.  Both appealed, and Brooks got 14 years chopped off of his sentence, the court finding that the evidence was insufficient to sustain the aggravated burglary conviction.  The court didn't find that in Cotton's case, because his lawyer didn't raise it. 

There's a provision in the appellate rules, Rule 26(B), which allows the court to reopen an appeal if it determines that the attorney handling it rendered ineffective assistance.  The Ohio Public Defender picked up the case, filed a 26(B), and last week in State v. Cotton the panel reversed Cotton's conviction and sentence for that offense as well.

This is all you need to know about the state of appellate review of sentencing.  Both men will die in prison; even with the reduction, Cotton would have to reach age 88, and Brooks would have to hit the century mark.  And nobody even bothered to raise that as an issue on appeal.

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No more Anders Briefs?

I have a case now in the 8th District where I came close to filing an Anders brief the other week.  It's an appeal from a plea and sentence.  The plea hearing was flawless.  The judge imposed consecutive sentences, and made all the required findings.  That leaves me with only the argument that the record clearly and convincingly demonstrates that consecutive sentences are not supported.

Good luck with that:  the defendant, in three separate situations, cased out a house, waited until the mother left for work, then broke in and raped her teenage daughter.

I took an extension to sort through all this, but I've heard a rumor that the 8th District is not going to accept Anders briefs any more.  Last week, the 4th District, in State v. Wilson, decided not to do that, either.  

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Sex offenders and the First Amendment

I have a Facebook profile, but I haven't been on it in months.  In keeping with my core philosophy that It's All About Me - further evidence of which is that I'm beginning a post on a Supreme Court decision by talking about myself - I find it difficult to get interested in other people's pictures of where they just vacationed, or their baby, or their dog.    

Lester Packingham learned to his sorrow that he had a better reason to stay off Facebook than a self-centric view of the universe.  After beating a traffic ticket, he triumphantly posted on his Facebook page,

Man God is Good! How about I got so much favor they dismissed the ticket before court even started?  No fine, no court cost, no nothing spent. . . . . .Praise be to GOD, WOW! Thanks JESUS!

A problem:  several years earlier, Packingham, then a 21-year-old college student, had sex with a 13-year-old girl, resulting in his conviction of a sex offense.  His post violated a North Carolina ordinance which made it a crime for a sex offender "to access a commercial social networking Web site where the sex offender knows that the site per­mits minor children to become members or to create or maintain personal Web pages."  The North Carolina Supreme Court rejected a constitutional challenge to the law, and so up it went to the Supreme Court to determine whether the statute accorded with the First Amendment.

Make that a "No."

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Removing a retained attorney

Charles is on trial for aggravated robbery, with gun specs.  He's had two appointed attorneys already, and he fires the second one and hires his sister.  She was admitted to the bar just three weeks earlier, and has never tried a case.  The State files a motion to disqualify the attorney on the grounds that her inexperience will inevitably result in reversal for ineffective assistance of counsel.  The judge denies the motion, and the trial proceeds.

James is on trial for aggravated robbery, with gun specs.  He had an assigned lawyer, but then retained one.  The lawyer he hired was in his 80's, and had never tried a criminal case before.  Two days before trial, and over six months after the lawyer had been retained, he filed a motion to suppress evidence.  The motion made no mention of the facts, and only law cited was that informing the judge that there was indeed a Fourth Amendment. 

On the day of trial, the judge discovered that the lawyer still hadn't gone over the discovery he'd been provided months earlier, and intended to present witnesses despite not having provided their names in response to the State's discovery request.  The judge removed the lawyer, and assigned another attorney to the case.

Cierra is on trial for aggravated murder.  A few days before trial, the court puts on a journal entry stating that it has just learned that the attorney "has not been certified to handle homicide cases in this court," meaning that the attorney isn't on the assigned counsel list for homicide cases.  In an "abundance of caution," she appoints the Public Defender as co-counsel.

Did the judges make the right call? 

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What's Up in the 8th

There are 34 judges here in Cuyahoga County, and you can win or lose a case in the arraignment room.  Michael Young lost his there.  He was accused of child pornography, and sentencing for that runs the gamut from probation to multiple decades.  The wheel for him landed on "multiple decades":  he wound up with a judge who imposes probably the harshest sentences for that crime of anyone on the bench.  Sure enough, he wound up with a sentence one month shy of 22 years, and that was affirmed on appeal.

He pops up again in State v. Young, this time with an appeal from the denial of his motion to vacate his plea.  He argues that his lawyer was ineffective for not telling him that the sentence would be "anything close" to what he actually got, and his trial lawyer mans up and signs an affidavit admitting that he figured the sentence would be closer to half of what he got, and told Young that.  Young also claims that his lawyer failed to present certain mitigating evidence.  The court rejects all this, finding that it's res judicata:  "Young could have raised any argument regarding ineffective assistance of counsel relating to his plea and the length of his sentence in his direct appeal."

Well, no.  Those arguments couldn't have been raised on appeal, because none of that was in the record.  That's why you have post-conviction relief and motions to vacate a sentence:  it allows you to introduce evidence that wasn't in the record, and which accordingly couldn't have been considered on appeal.

Continue reading "What's Up in the 8th" »

Case Update

The 2016 Term of SCOTUS is over, and the main lesson learned seems to be that new Justice Neil Gorsuch is as conservative, if not more so, than the justice he replaced, Antonin Scalia.  Quelle surprise.  As Linda Greenhouse's column notes, he also seems inclined to lecture his colleagues on their failings; as she writes, where she previously thought Gorsuch might be a natural ally of Chief Justice Roberts, and would move him to the right, "it now seems just as likely that Neil Gorsuch's main effect on John Roberts will be to get on his nerves."  We can only hope.

As usual, the Court's term ended with a flurry of opinions.  Among them, one on Brady, one on First Amendment rights of sex offenders, and one on immigration and deportation.  We'll discuss them in the next week or so, and I'll have my annual summary of Supreme Court decisions after that.

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Recent Entries

  • July 21, 2017
    Friday Roundup
    Computers and sex offenders, civil forfeiture, and phrases that should be put out to pasture
  • July 20, 2017
    Case Update
    A look at the Ohio Supreme Court's decision in State v. Oles, and did you know that Justice Ginsburg has a .311 batting average with runners in scoring position? Oh, wait...
  • July 18, 2017
    What's Up in the 8th
    Judicial bias, RVO specs, 26(B) stuff, waivers of counsel... And more!
  • July 17, 2017
    No more Anders Briefs?
    I have a case now in the 8th District where I came close to filing an Anders brief the other week. It's an appeal from a plea and sentence. The plea hearing was flawless. The judge imposed consecutive sentences, and...
  • July 13, 2017
    Sex offenders and the First Amendment
    Analysis of the Supreme Court's decision in Packingham v. North Carolina
  • July 12, 2017
    Removing a retained attorney
    What does a judge do if he thinks a retained attorney in a criminal case isn't competent?
  • July 11, 2017
    What's Up in the 8th
    The court does good work on a juvenile bindover case, and the State finally figures out that it should have indicted someone in the first place
  • July 10, 2017
    Case Update
    SCOTUS ends its term; the Ohio Supreme Court issues another opinion, and likely the last one, on the trial tax
  • June 28, 2017
    Plea Bargaining -- The defendant's view
    A look at the Supreme Court's decision last week in Lee v. United States
  • June 27, 2017
    What's Up in the 8th
    A worrisome decision on expert funding, and, mirabile dictu, a court's dismissal of a case for a discovery violation is upheld