Their time apparently occupied with exploring the various means by which turkey can be prepared, the 8th District's judges handed down only two decisions last week. Both are worth a look, albeit the one barely.
The Ohio Supreme Court's decision two weeks ago in State v. Washington was the first time the court's looked at the test it articulated three years ago in State v. Johnson for determining whether offenses were allied. Washington is noteworthy not for what it holds, but for what it says.
Let's get Washington out of the way first. He'd led police on a wild car chase, then bailed after the inevitable crash and ran into the woods, where the police finally tackled him. He was convicted of failure to comply and obstruction of justice, and at sentencing the State contended that there had been separate conduct - the failure to comply was the car chase, and the trek into the woods was obstruction of justice. The judge agreed, and gave him consecutive time, but the 9th District, in a split decision, reversed, holding that the State couldn't argue that distinction at sentencing since they hadn't made it at trial. That's an easy one: allied offenses is a sentencing issue, not a trial issue. The State isn't obligated to present evidence on the issue at trial. The End.
Let's take a closer look, though. We'll start with a...
Every appellate lawyer has his Harmless Error Horror Story, where the appellate court will discount the most egregious evidentiary ruling or instance of outrageous prosecutorial conduct on the "no harm, no foul" theory that the evidence was so overwhelming the error didn't matter. A couple of weeks ago, in State v. Caldwell, a case I handled, I'd argued trial error in the admission of 404(B) evidence in a child molestation case. The court agreed it shouldn't have come in, but was harmless because of the "substantial testimony concerning the charges," an assessment brought into question by the fact that Caldwell had been acquitted of twenty-eight of the thirty charges against him. (Not that I'm complaining; the court agreed with me that the judge had abused his discretion in refusing to accept Caldwell's plea to a handful of third-degree felonies, and ordered that Caldwell be allowed to enter that plea. Whatever the sentence, it's going to be substantially less than the 25-to-life he had.)
I'm pretty sure that the 8th's decision last week in State v. Ceron is Terry Gilbert's Harmless Error Horror Story.
I gave a presentation on constitutional issues at the OACDL's death penalty seminar a couple weeks back, and my advice on how to win 4th Amendment issues was simple: move to Cleveland. Combining a police force which has no more than a nodding acquaintance with the rudiments of search and seizure law with an appellate district which is the most 4th Amendment-friendly in the country is a sure-fire recipe for success. For doubters of the latter point, take a look at the 8th's decision last week in State v. Fontaine.
As might be expected with the holiday, last week produced few decisions of note, or even of not-note: only 81 appellate decisions, a full quarter of those from the 8th District; they'll provide fodder for my post tomorrow. The big news from the Supreme Court was its acceptance of the "contraceptive mandate" case, determining whether the Affordable Care Act's requirement that employers providing health care insurance for their employees must have policies which cover contraceptives. SCOTUSblog has a good analysis of the issues in the case, if you're interested. Going forward, there's not much to look forward to: the only argument in a criminal case this month pertains to the prosecution of a soldier for going on a military base after he'd been barred from entry by the commanding officer. No, trust me, you don't want to know what the details are.
There are weeks when the 8th District comes down with a decision, maybe even two or three, which address major issues of law. Other weeks, not so much. Last week was an other week. Still, the court's decisions usually provide a lesson, maybe even two or three.
Well, that's a change of pace. No oral arguments in the U.S. Supreme Court, and nothing happening other than a dissent to a couple of denials of certiorari. On the other hand, the gang down in Columbus has come down with three - count'em, three - decisions in criminal cases over the past couple of weeks.
The biggest was State v. Washington, which we'll talk about on Wednesday. (Yes, I know I told you last Monday that we'd talk about it last Thursday, but then it's not the first time you've been disappointed in life, is it?) State v. Holdcroft is the latest decision on the ever-fascinating topic of post-release control, and it features a new variation on what had become a clichéd theme. Holdcroft was convicted of aggravated arson and arson in 1999, and received a 10-year sentence on the former and a 5-year sentence on the latter, to be served consecutively. PRC was in its infancy then, with few decisions to guide trial judges, and as was so often the case, the judge screwed it up. No one realized that problem until 2010, by which time Holdcroft had completed the sentence for the aggravated arson. The judge nonetheless held a hearing and imposed the five-year mandatory PRC period for the aggravated arson, and the three-year discretionary period for the arson.
In numerous decisions, the court has held that PRC couldn't be imposed once the defendant had completed his prison sentence, but the trial court and 3rd District held that this didn't present a problem, since Holdcroft was still in prison. But not on the aggravated arson, and so, by a 5-2 vote, the court holds that PRC couldn't be imposed on that count. (Lanzinger concurs only in judgment, beating her well-worn drum that improper imposition of PRC shouldn't result in a "void" sentence.)
The impact of Holdcroft is obviously limited to situations where the defendant is serving consecutive terms, has completed one of them, and the uncompleted term involves a lesser PRC period than the completed one. Completely unmentioned in Holdcroft is how the court determined that the aggravated arson sentence had been completed first. As we'll see in a decision from the 8th District tomorrow, that's sometimes a tricky matter to determine.
RC 2945.75 requires that when the presence of additional elements makes an offense one of a more serious degree, the verdict must state either the degree of the offense or the additional elements; if it does neither, it serves as a conviction of only the least degree of the crime. In its 2007 decision in State v. Pelfrey, the court held that the failure of a verdict form in a tampering with records case to include the fact that government were involved reduced the crime from a third-degree felony to a misdemeanor. Last week's decision in State v. McDonald builds on that. McDonald had led the police on a high-speed chase, and was indicted for failure to comply.
That offense actually contains two sections. The first simply prohibits failure to comply with an order of a police officer, and is a first degree misdemeanor. The second prohibits operating a motor vehicle and "willfully" fleeing from the police after a signal to stop, and becomes a third degree felony if the jury determines that the operation of the vehicle caused substantial risk of serious physical harm to person or property. The verdict form found McDonald guilty of "Failure to Comply with Order or Signal of Police Officer And Caused A Substantial Risk of Serious Physical Harm To Persons or Property."
That's not enough for Pfeifer, who writes for the five-member majority: "failure to comply" could mean a violation of either of the sections of the statute, and only the second can be a felony if elevated by the "substantial risk" element. But French's dissenting opinion (O'Donnell dissented without opinion) has, I think, the better argument. Jury verdicts aren't required to list all the elements of the offense; only when there is an aggravating element does that have to be included. In short, the verdict form did not have to distinguish between the two sections, and since the aggravating element applied only to the second, and was found by the jury, that was enough. Of course, the whole problem could have been solved simply by having the verdict form specify the degree of felony, and figure on seeing more of that.
Let's check out the courts of appeals...
I pissed off a judge once. Long time ago -- close to 30 years now. I wrote something in an appellate brief about the "intellectual bankruptcy" of his position. Cute phrase, huh?
The judge didn't think so. He found out about it, and suffice it to say that payback was a bitch. And although he was theoretically only one of thirty-four judges, word gets around, and it was quite a while before I recovered from the damage. I always wondered what it would be like if you were an attorney practicing in a small county that had only one or two judges.Robert Bright found out the answer to that question.
For a moment, it looked like Warren Caldwell had dodged a bullet. He was charged with thirty counts of child molestation, including rape and kidnapping charges, the latter carrying sentences of 25 to life. But the case wasn't a good one; there were any number of credibility problems with the alleged victim, Caldwell's stepdaughter, and so when the judge ruled that her previous false accusations of rape against an uncle would be admissible, the prosecutor cut bait, and the two sides presented a plea bargain to the judge: Caldwell would plead to two counts of abduction and two of importuning, both third degree felonies, the latter requiring Caldwell's registration as a Tier I sex offender.
The judge refused to accept it.
The trial proceeded, and the prosecutor's fears as to the viability of her case proved well-founded: the jury acquitted Caldwell of 28 of the 30 counts. But it convicted him of one count each of rape and kidnapping. The two merged, but that didn't really matter. Off Caldwell went to do his 25 to life, instead of the maximum three years he would've done on any of the charges in the plea deal.
Last Thursday, by a 2-1 vote the 8th District held in State v. Caldwell that the judge abused his discretion in nixing the deal.
Joe grabs his twelve-year-old stepdaughter and runs his leg up her thigh as he tries to kiss her. The stepdaughter pulls away, tells Mom, and Joe's charged with gross sexual imposition and kidnapping. "Kidnapping" under Ohio law isn't what a layman would ordinarily think: throwing somebody in a trunk, driving them across town, and sending a ransom note to the family. Here, kidnapping is any restraint of liberty. The jury, duly instructed, returns a verdict of guilty of both. The gross sexual imposition is punishable by a maximum of three years; the kidnapping, by a sentence of ten years to life. The State gets to elect which offense the defendant is sentenced on, and guess what?
SCOTUS came down with one of its more liberal 4th Amendment decisions in 2006, holding in Georgia v. Randolph that the police can't use a co-tenant's consent to search a house if the other co-tenant is present and objects. Last week, in the oral argument in Fernandez v. California, the defendant's attempt to expand that rule encountered substantial resistance. When the police arrived at Fernandez' home in response to a domestic complaint, they found his girlfriend bruised and bloody. Fernandez told them "I know my rights. You can't come in." The police arrested Fernandez for domestic violence, then returned later without a warrant and obtained the girlfriend's consent to search the house for evidence of a robbery, for which Fernandez was ultimately convicted. Randolph was a 5-3 decision, and the same five-member majority is there, or with replacements (Sotomayor for Suitor, Kagan for Stephens) who would vote the same way, and those two plus Ginsberg expressed discomfort with the idea that the police can vitiate a co-tenant's objection by simply removing him from the scene. But Kennedy and Breyer, who voted with the majority in Randolph, expressed deep misgivings about extending its reach, and it appears likely the Court will limit Randolph to physically present objectors.
The defendant in Rosemond v. US fared better in argument. Rosemond had been convicted of aiding and abetting in the use of a firearm during a drug trafficking crime, and the instructions at trial allowed the jury to convict if he "actively participated" in the drug crime, and "knew his cohort used a firearm." Everyone agreed that more is required, specifically, a showing that Rosemond had foreknowledge that a gun would be used. Rosemond seems very likely to win on this narrow issue, but the Court's opinion could go a good bit further in defining what constitutes "aiding and abetting."
The argument in Burrage v. US did not go well for the government, either. Burrage was a heroin dealer, and after one of his clients died, he was prosecuted and convicted under a 1986 law which adds imprisonment up to life if the drug deal "results in death." The doctors testified at Burrage's trial that they couldn't determine if the heroin caused the death, but the judge instructed the jury they could find Burrage guilty if the heroin contributed to the death. Burrage's lawyer argued that the government had to prove "but for" causation - that the death wouldn't have resulted without the heroin use - and that it had to show that the death was foreseeable. She fared poorly with the latter argument, but she had only to bat .500, and she seemed to: the government's lawyer's insurmountable problem was that if the Congress had intended to allow the drug to be only a contributing cause, it could have plainly said so, instead of using the phrase, "results in death."
I'll have more on these when the decisions come out.
Down in Columbus, no oral arguments last week, but a bevy of them coming up. Tomorrow will be Cuyahoga County Day, with two arguments scheduled on the intricacies of placing a defendant on community control sanctions: whether a court can impose a "time served" sentence -- releasing the defendant without placing him on supervision - and whether a pre-sentence report is required for to impose sanctions. Thursday finds only one criminal case on the docket, but it's a bit more significant, especially to OVI practitioners: a review of a 9th District decision affirming the trial court's determination that a motion to suppress in an OVI case wasn't sufficiently specific to warrant a hearing.
The court did come down with one decision, State v. Washington, its first real look at allied offenses since State v. Johnson three years ago. We'll discuss that on Thursday.
In the courts of appeals...
Doug Wine wanted to roll the dice. When the judge presented the proposed jury charge in Wine's rape case, it included an instruction on the lesser offense of gross sexual imposition. Wine's attorney objected, but the judge gave the instruction. Sure enough, the jury acquitted Wine of rape, but convicted him of the lesser offense. So last week, in State v. Wine (link is to video of oral argument, and that has links to briefs in the case, etc.), the Supreme Court heard oral arguments on Wine's proposition: that due process gives the defendant a veto right over whether an instruction on a lesser offense is given to the jury.
The argument had some logical incoherence, because Wine's lawyer conceded early on that if the State had asked for the instruction, the judge would have been bound to give it. Here, the judge had proposed the instruction sua sponte. In fact, that appears to be the reason the court agreed to hear the case, and the lawyer's decision to concede that point was dictated by the fact that there are any number of decisions that say that the prosecutor has the right to seek one. But it's tough to argue that your due process rights are violated if the judge gives the instruction on his own, but they're not violated if he gives it because the State asked for it. From the looks of it, Wine's going to be hard-pressed to find any votes for his argument, let alone four.
I'm wondering whether I should have just told Rico to take the case to trial.
There was a lot at stake. Rico, the police claimed, shot at some guy. Rico was charged with attempted murder and felonious assault, both of which carried three year gun specs. They'd merge, but that still meant that conviction of either of those offenses and the spec would mean a minimum of five or six years in prison.
But the case was garbage. The physical evidence didn't match up with the victim's account. The "victim" has been convicted of four drug charges, two of them trafficking. His girlfriend claimed to be a witness, but she originally told the police that she had pulled into a neighboring driveway, from which she couldn't have seen anything. There were two independent witnesses, but all they saw was a bunch of shooting, and from the way the report reads, it may have been the "victim" who was doing the shooting.
The deal was a plea to a count of attempted felonious assault, a third-degree felony, with no specs. Rico had spent five months in jail already, and had only a couple prior misdemeanors. Both of his brothers had been murdered, and he gave the prosecutor information on those cases; the prosecutor was going to come in and make a pitch for him. And we had a good judge, so I was about as confident as I could be that Rico would get paper.
So what do I tell Rico?
And, depending on what I tell him, have I rendered ineffective assistance of counsel?
I had an oral argument in the 8th a few weeks back, and one of the judges told me, "some of our cases indicate" something contrary to the position I was taking. "That's one of the nice things about this district," I replied. "You can find case law to support just about any position." The judges laughed, because there's more than a little grain of truth in that. Still, the judges are aware of their precedents, and seem to be developing consistency in various areas.