View From The Bench: Is It THAT Bad?

Judging the pace of headlines, one would think we are still swimming in foreclosures, sinking in unemployment and drowning in crime. But according to a new report from Ohio's Supreme Court -- we're actually trending better than one would imagine.

At least that's my takeaway from today's news release, citing the latest statistics compiled by reports from courts all across Ohio.

A reduction in the rate of growth for foreclosure cases is among the conclusions of a new report released today by the Supreme Court of Ohio that for the first time examines 10 years of data from Ohio courts.

Previously, the annual Ohio Courts Summary provided raw statistical tables of activity in Ohio's courts '“ from trial courts to appellate courts to the Supreme Court '“ including statistics about caseloads, case terminations and clearance rates from the previous year. (Mayor's courts' statistics are published in a separate report, which will be released later this year.)

Beginning this year, the raw data are published in a separate publication titled the Ohio Courts Statistical Report, which was published earlier this year. The Ohio Courts Statistical Summary now analyzes the data of the Ohio Courts Statistical Report and identifies trends.

As has been the case for the last several years, foreclosure cases stood out among the court statistics from 2008. In February, the Supreme Court reported a record high number of 85,773 new foreclosure filings in general division courts of common pleas in 2008. Beginning in 2007, foreclosure court cases outnumbered criminal cases in Ohio's common pleas courts for the first time on record.

However, today's report shows that while foreclosure cases have increased for 13 consecutive years, the rate of growth slowed considerably in 2007 and 2008 compared to previous years.
The number of new foreclosure cases filed in Ohio's common pleas courts increased by 23.5 percent from 2005 to 2006. From 2006 to 2007, foreclosures increased by 5.3 percent, and from 2007 to 2008, the rate of increase was 3.1 percent.

A special section on foreclosures delves deeper into these specific caseload statistics. Other notable trends from the report include:

• The rate of trials in civil cases declined from 1999 to 2008.
• Divorces and dissolutions are down nearly 20 percent over the decade.
• Custody and visitation cases in juvenile courts involving unmarried couples are up more than 25 percent since 1999.

Chief Justice Thomas J. Moyer, in his letter introducing the new report, noted the importance of providing reliable, transparent and accessible data on the courts.

'Transforming the mass of caseload statistics collected each year into useful and meaningful information is key to fulfilling our duty to maintain an effective and responsive judicial system,' he said.

Information contained in the reports is provided to the Supreme Court on a monthly basis by all courts except for courts of appeals and probate courts, which provide statistics on a quarterly basis.

If, as the report suggests, the rate of growth in foreclosure cases is actually slowing does that mean the recovery is starting, or are we pretty much hitting bottom in the world of double-digit unemployment? The actual number of foreclosure cases did hit an all-time high, leading one to suggest this is the worst -- but what does the slowing rate mean?

Among the other findings noted in Moyer's release: fewer divorces and failed marriages, fights over where the kids live when parents don't marry are up and trials in civil cases are down. On that last item: does that mean all the stories of a legal system run amok, with trial lawyers taking over the world, were just scare tactics?

Ohio's Supreme Court and, in particular, Chief Justice Moyer should be commended for putting these statistics out for public view and discussion. These relatively dry readings usually wind up in the legal journals but they have a big impact (and paint a vivid picture) of all of us.

Now Something Completely Different

Let's get off the bonus bus for awhile now that Congress has shoved the nose of the government under the tent flaps and fully into our wallets by taxing bad bonuses. Here's crime McGruff can sink his teeth into...thank God there are lawyers to explain all of this for us.

This is a quick rundown provided by the Ohio Supreme Court ahead of cases to be argued next week. On next Tuesday's docket: an item claiming to raise important constitutional issues.
A cynic would observe the fact the appellant was wearing body armor at the time he shot two people during a home invasion, and his admission on appeal he shouldn't have even had a gun in his hand to begin with thanks to previous convictions, should signal pretty clearly another 30 years in the Big House wouldn't be a bad idea...

Does a Criminal Defendant Waive Sentencing Error By Failing to Object at the Time Sentence Pronounced?
State of Ohio v. Baker
case nos. 2008-1094 & 2008-1304 9th District Court of Appeals

ISSUES:

In criminal prosecutions brought under state law in which establishing the defendant's status as a prior felony offender is a required element of a crime with which he is currently charged, must Ohio courts follow the U.S. Supreme Court's 1997 decision in Old Chief v. United States by allowing the defendant to 'stipulate' (admit) his status and barring the state from presenting the jury with other evidence providing details of the defendant's prior criminal history?

When a trial court imposes a sentence that is contrary to law for one or more charges or specifications on which a defendant has been convicted, does the defendant waive (forfeit) his right to later appeal the sentencing error if he fails to enter an objection to it at his sentencing hearing?

In cases where a trial court improperly imposes multiple sentence enhancements for firearm and body armor specifications when the underlying robberies were committed as part of a single incident, does the trial court's failure to merge those sentences constitute "plain error" that must be reversed even though the erroneous sentences were ordered to be served concurrently, and their elimination would not shorten the defendant's actual prison term?

BACKGROUND: Jermaine Baker of Akron was convicted on multiple felony counts for his role in a home invasion robbery of four persons and the non-fatal shootings of two of the victims. He was sentenced to prison terms totaling 32 years.

Baker appealed his convictions and portions of his sentence to the 9th District Court of Appeals. Among other claims of error, Baker argued that the trial court violated his fair trial rights and ignored the ruling in Old Chief by allowing the jury to be given detailed information about his three prior felony convictions rather than allowing him to stipulate that he had a qualifying prior conviction and therefore was barred from possessing a gun.

Baker also argued that his sentence should be declared void because the trial court improperly increased his sentence on each of four counts of robbery by two years (adding a total of eight years) based on the fact that he wore body armor while committing those crimes when state law requires that multiple body-armor specifications arising from the same incident should be merged into a single two-year sentence enhancement.

On review, the 9th District Court of Appeals denied each of Baker's assignments of error. The court of appeals ruled that Ohio courts are not required to follow the holding in Old Chief in criminal cases involving violations of state law. The 9th District also held that Baker waived any appeal of his multiple sentences for the body armor specifications when he failed to object to those sentences at the time sentence was pronounced.

While noting that an appellate court can correct a sentencing mistake despite the absence of a timely objection if that mistake rises to the level of "plain error," the 9th District declined to find plain error in this case on the basis that Baker's multiple sentences for the body armor specifications were ordered to be served concurrent with his sentences for other crimes, and therefore the unmerged sentences did no actual harm to Baker because eliminating them would still leave him with a 32-year sentence.

The 9th District subsequently certified that its ruling on each of the issues detailed above were in conflict with rulings by other Ohio courts of appeals. The Supreme Court agreed to review each of the questions of law to resolve the conflict among appellate districts.

Attorneys for Baker cite rulings in two other Ohio appellate districts holding that Old Chief is controlling precedent that must be followed by Ohio courts when hearing state law criminal cases. They contend that, similar to the facts in Old Chief, Baker was willing to stipulate as a proven fact that he had a prior conviction for a violent or drug-related felony that barred him from legally possessing a firearm, and the trial court committed plain error by allowing the state to introduce documents informing the jury about irrelevant details of his past convictions that were likely to predispose jurors to improperly presume his guilt in the current case.

Baker's attorneys point to courts of appeals decisions holding that, when a criminal sentence is contrary to law, the sentence is a nullity and a court of appeals has jurisdiction to vacate it or correct the error whether or not the defendant raised an objection to that error at the time he was sentenced. They also urge the Court to reject the 9th District's reasoning that a clearly illegal sentence does not constitute plain error simply because of the coincidence that the years improperly added to the defendant's sentence were to be served concurrently with his sentence for other offenses.

Attorneys for the state point out that the ruling in Old Chief addressed a question of federal law, and assert that no Ohio court has ever held that a trial court's failure to allow a defendant to stipulate to a prior conviction constituted plain error requiring reversal where the defendant did not object to the introduction of other evidence of his prior offenses at the time it was proffered. With regard to the issue of a defendant's waiver of a defective sentence, they point to this Court's 2007 decision in State v. Payne holding that Ohio defendants who failed to object to judicially enhanced sentences at the time of sentencing following the U.S. Supreme Court's ruling in Blakeley v. Washington had waived their right to later dispute their sentences on appeal.

Arguments are scheduled for Tuesday, March 24 in Columbus.