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.

UPDATE Red Stamp Justice

The City of Akron does the right thing and reinstates Jesse Jones, the 22-year veteran of the Akron Fire Department originally placed on indefinite unpaid suspension when he was facing sex charges. You may remember this case: Jones was given a pass when a grand jury ruled "no bill", but the prosecutor's office slapped the wrong stamp on the paperwork and the case moved ahead as if he'd been indicted (that would be a true bill) by mistake.

The error was caught and the correct paperwork entered, with apologies (how would you have liked to get that call from your lawyer!) and case dismissed, with prejudice meaning it won't come up again.

The City tells AkronNewsNow's Larry States they will put Jones back on duty, with back pay. But should there be more coming? After all, the neighbors and co-workers and total strangers will remember the case when it broke -- and we all reported it. We're reporting now that the case was dismissed but is that really fair to a man's reputation built on a lifetime and sent up in flames in a matter of hours? What price does Jones think is fair for the months he spent with no job, no money, and likely no support? A hard lesson to play out to find out who your friends are -- and how justice works.

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The deadline just came and went in the election filing crush at the Board of Elections in Summit County. New Summit Republicans headmaster Sen. Kevin Coughlin was filing his paperwork this afternoon on South Grant Street; I've got to imagine the growling behind the scenes from the partisans backing incumbent GOP chairman Alex Arshinkoff as Coughlin claims he's got his slate ready to go to give the long-time party boss a run for the money. It would be educational to hear more from Alex but as usual he's not talking. This, I predict, will be THE race we're all watching over the next eight weeks. When is the last time anyone even mentioned "central committee" and eyes didn't glaze over? Nothing like a family feud to satisfy our lust for political bloodletting, and in a rare switch it isn't Democrats beating each other over the head. At this point the Summit County elections folks were laughing at our reporter's attempts to get a read on just how many people are filing for those central committee slots and tell us they may not have a full list until Monday.

I just want to know: is anyone running against Alex in his home precinct? How big a sign can Alex put up in his front yard this time, with or without the help of the ACLU?

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Speaking of races to watch: the early conventional wisdom says Joe Finley's challenge of Russ Pry in the Democrat primary for County Executive will be a snoozer. I tend to agree with the analysis that running against bossism isn't always the best idea because successful bosses keep their machines in power by doing what they promise; besides, as Pho points out in his Pho's Akron Pages blog it isn't as though people don't like Russ Pry...even political opponents tell me privately they like the guy off-ballot and he's won high marks for his first six months since being appointed to the job. But to rule out Finley at this point is like buying into the wisdom that had Hillary Clinton winning Iowa a month ago: let's not forget it's voters, not the pundits, who decide. Still, Finley's opening salvo today and in his interview earlier this week with ANN's Craig Simpson wasn't the best start...Pry showed a more steady campaign style in not reacting to the bluster when we spoke with him on Thursday.

Frankly, I'm Ashamed

This weekend should have been fairly routine. Diane and I headed up to see her mother in Michigan, recovering from some pretty serious health issues. The newsroom seemed in good hands with plans to cover the Road Runner Marathon, Akron's farewell to Rex Humbard, the Indians on a playoff roll and the Browns looking to beat the Ravens. What's to go wrong?

Plenty.

Monday afternoon I got an e-mail and phone message from Laurie Cramer at the Prosecutor's Office, but because of tasks on my schedule for today didn't get a chance to see until late in the day she was alerting me to our story coverage last week where we dropped the ball.

Some of you have been following the coverage of the Tayse trial, the story of the Pennsylvania man charged with abducting and assaulting a Pittsburgh-area mother and her daughter before releasing them here in Ohio. He was found guilty. They were hoping for justice in Summit County, where Prosecutor Sherri Bevan Walsh personally handled presenting the state's case of crimes that crossed state lines.

As you'll see in our AkronNewsNow story, edited earlier this afternoon, the names of the victims of this horrible crime were included in our original coverage. Not only did we make this mistake on Thursday of last week when the trial first went to the jury, but we also repeated the error on Friday. There is no excuse.

We've since removed the names because as a matter of policy we don't normally report the ID of victims of sex crimes, especially when it involves children. In fact, the only time I remember identifying the victims of sexual assault locally was the Denny Ross rape case a few years ago, and that was only because the victim insisted upon it. My personal and professional view is that we should never report the name of the victim unless it is by prior consent or, as in the Duke lacrosse allegations case, the charges are found to be without merit by clear and convincing evidence and the accuser becomes the accused. We've had such discussions on numerous occasions in the newsroom, usually in the coverage of high-profile cases but also in coverage of other, less headline-grabbing accounts.

We failed in our coverage of the Tayse trial, and worse we failed to correct our actions in a timely and professional manner when it was brought to our attention. When the Prosecutor's office first called to alert us the victims found their names in our coverage, we should have acted immediately to correct our story and apologize; instead, we left the issue in voicemail for another day.

I contacted Laurie and apologized for our original coverage; I apologized for our failure to appropriately edit the coverage on multiple levels; and I apologized for the lack of a response deserved by not only the Prosecutor but also the victims in this crime. They were victims of our actions and our inaction, and there is no excuse. We can apologize, but that will not repair the damage.

It isn't against the law to identify victims of crime, nor do I think it should be. Many times reporting the news is an ugly business, but making these decisions should be a constant subject of debate in every newsroom. News departments will fashion their own policies according to their own ethics and standards, and news consumers will make the ultimate judgment on whether those organizations earned their trust and respect.

We all work hard toward that goal, but there are times when we don't work hard enough. The problem isn't when we worry about what we do but when we don't worry about why; in this case we didn't protect a family in Pennsylvania who deserved better, we didn't serve our audience who should expect higher standards and we weren't true to our own sense of personal values that should drive us to question why, especially when that question is turned to ourselves.

We apologize on all counts.