The Latest and Greatest Misused Crime: Disrupting Public Services (F4)

In its infinite wisdom, our beloved legislature keeps creating new laws and new ways for folks to end up behind bars.  Sometimes, I suppose, there is a need for a new offense.  Life changes, after all, and the manner in which we interact and conduct business changes almost daily, it seems.  However, I still contend that new evils can largely be handled by existing offenses.

Rest assured, there is almost nothing mean you can do to another human being that won’t be considered a crime as you read this today.  If the legislature immediately stopped creating new crimes, there would still be nothing mean you could do to someone else 20 years from now without being a criminal.   One of my personal favorites is R.C. 2917.46, which is entitled: “Unauthorized use of block parent or Mcgruff house symbol.” I have no idea what led to this provision’s passage. But whatever happened after someone was fooled into believing the defendant’s home was a Mcgruff house was probably already a crime, and probably much worse than the false claim itself.  Is this really needed? Of course not. Yet, the new crimes keep on coming.

By the way, this is the major reason our courts had a heck of a time dealing with the merger of “allied offenses of similar import.”  A single course of illegal conduct can arguably constitute several, if not dozens, distinct statutory offenses. Prosecutors charge them all and leave it to the judge to ultimately decide which ones are so similar that they really are the “same offense” such that multiple convictions violate double jeopardy protections.  Prosecutors like to charge as many offenses as possible to create negotiating leverage.

Okay, I’ll get off my soapbox on this issue.  Well, mostly.  Another absurd result of having so many crimes on the books is that it only takes one creative prosecutor to utilize a particular offense in a situation for which it wasn’t really intended.  If the elements seem to fit, they charge it, even when there is a different statute that more aptly fits what the defendant did.

Why would prosecutors do this?  Again, it is a matter of negotiating leverage or the fact he or she simply doesn’t like the guy. If you can charge someone with a felony, why settle for the misdemeanor, even if the misdemeanor is really more on point.

This is what has happened with the Disrupting Public Services statute.  Prosecutors are now using this statute as a way to backdoor a felony charge in the typical misdemeanor domestic violence situation (DV).  Typically, a first-time offender for DV is only facing a misdemeanor, not a felony. Oh, and why we need the specific crime of DV  when assault is and has been on the books, is beyond me.

Anyway, R.C. 2909.04 reads in relevant part:

(A) No person, purposely by any means or knowingly by damaging or tampering with any property, shall do any of the following:

   (1) Interrupt or impair television, radio, telephone, telegraph, or other mass communications service; police, fire, or other public service communications; radar, loran, radio, or other electronic aids to air or marine navigation or communications; or amateur or citizens band radio communications being used for public service or emergency communications;

   (2) Interrupt or impair public transportation, including without limitation school bus transportation, or water supply, gas, power, or other utility service to the public;

   (3) Substantially impair the ability of law enforcement officers, firefighters, rescue personnel, emergency medical services personnel, or emergency facility personnel to respond to an emergency or to protect and preserve any person or property from serious physical harm.

(B) No person shall knowingly use any computer, computer system, computer network, telecommunications device, or other electronic device or system or the internet so as to disrupt, interrupt, or impair the functions of any police, fire, educational, commercial, or governmental operations.

So, this apparently prohibits messing with any form of public service, which is something that ought to be outlawed – and already was under trespassing, criminal mischief, vandalism, etc. I guess I haven’t actually gotten off my soapbox entirely. Sorry.

However, now prosecutors are charging guys accused of domestic violence with this felony of the fourth degree when the girl’s cell phone gets damaged as well.  How in the world destroying a singular cell phone would disrupt “mass communications services” is really a stretch, but courts have bought it.  Therefore, defendants are told: “you never should have shoved/punched her, DV is a terrible plague on society and therefore, we’re going to punish you with a misdemeanor.  Oh, and the fact you threw her cell phone in anger is going to carry 18 months in prison as a felony.” Does that make sense?

I would argue that the legislature enacted this statute to prohibit someone from knowingly destroying a telephone pole or a satellite dish, or the radio transmissions of the local fire department, etc., such that mass communications are truly interrupted.  It was not enacted to hang a felony on a guy that, out of anger, destroyed a lady’s cell phone by throwing it across the room during their altercation. But the state is busy utilizing this statute for that very scenario.

There must have been some prosecutor’s convention where this brilliant idea was broadcast because I see it more and more.  And until appellate court’s start to rethink how destroying a cell phone, or cutting a single phone cord could possibly disrupt “mass communications,” we’ll continue to see it used.

Oh, and just for the record: it was already illegal to destroy someone’s personal property.  And I highly doubt that absent this statute being enacted, a defendant would have been in the clear after blowing-up the sewage system. That’s just a hunch.

 

 

 

Some random Issues

Effective Assistance of Appellate Counsel:

The Ohio Supreme Court recently issued a decision in State v. Johnson, 2014 Ohio 770, in which it stated that a criminal defendant’s appellate attorney is entitled to view what is know as a pre-sentence investigation report (PSI) as part of his or her representation on appeal.  Believe it or not, prosecutors were arguing that a defendant’s appellate counsel should not be allowed to view this report that is routinely prepared in the trial court, and greatly impacts the sentence a defendant receives.  Only in America.

Under Ohio law, a defendant may not be sentenced to community control sanctions (i.e. probation) for a felony unless the court first orders and considers a PSI.   After a defendant is convicted, either after trial or through a plea, the court will order the adult probation department to meet with the defendant, gather all pertinent information about the defendant and prepare this report with a recommendation as to whether the defendant should be given community control or be sent to the pen.  Most judges will follow the recommendation of the probation department, so this recommendation is usually a very big deal.  The report usually consists of facts and information about the crime itself, the victim, the defendant’s social, educational and criminal background, and other ancillary matters.  PSI’s are then filed under seal and are virtually unobtainable by interested parties, save for the government, of course.

Although by statute the PSI is supposed to be part of the appellate record automatically, in practice a motion must usually be filed with the appellate court directing the trial court to send it (under seal) to the appellate court.  I have handled a few appeals where the state wanted to make the PSI part of the record and the appellate court has never told them “no.” Well, in Johnson, the defendant’s appellate attorney wanted to make the PSI part of the record and the opportunity to view it.  For whatever reason, Johnson’s counsel thought it might be helpful.  The state objected and the 12th District Court of Appeals agreed with the state that a defendant’s appellate counsel is not allowed to view the defendant’s PSI.

The argument against the disclosure of the PSI  was purely a statutory construction one, and the 12th Dist. relied on the technical wording of the statute to deprive an attorney of important information regarding his client’s sentence.

Revised Code Section 2951.03(D)., reads:

“The contents of a presentence investigation report prepared pursuant to this section, section 2947.06 of the Revised Code, or Criminal Rule 32.2 and the contents of any written or oral summary of a presentence investigation report or of a part of a presentence investigation report described in division (B)(3) of this section are confidential information and are not a public record. The court, an appellate court, authorized probation officers, investigators, and court personnel, the defendant, the defendant’s counsel, the prosecutor who is handling the prosecution of the case against the defendant, and authorized personnel of an institution to which the defendant is committed may inspect, receive copies of, retain copies of, and use a presentence investigation report or a written or oral summary of a presentence investigation only for the purposes of or only as authorized by Criminal Rule 32.2 or this section, division (F)(1) of section 2953.08, section 2947.06, or another section of the Revised Code.” (emphasis added).

The State argued that term “Defendant’s counsel,” quoted above did not mean his appellate counsel, only his trial counsel.   The Supreme Court had little trouble declining to adopt such an absurd interpretation, stating “[c]onstruing R.C. 2951.03 and 2953.08(F)(1) to preclude appellate counsel from accessing the presentence investigation report may implicate constitutional concerns of due process and/or the right to effective assistance of appellate counsel on a first appeal as of right.” No, really? That this case was an easy call for the Court is not what is news. Rather, it is the fact that the state would even spend time and energy arguing against disclosure of important information to a defendant’s attorney.

Wrongful Imprisonment.

In another decision recently handed down by the Ohio Supreme Court, it was decided that basically there is no way for a person to collect under the wrongful imprisonment statute.  Ohio, like all states, is entitled to sovereign immunity, meaning its citizens cannot sue it unless it agrees to be sued.  I know, why would a state ever agreed to be sued?  Well, Ohio has opened its courts to civil suits where it is the defendant in limited situations, one of which was supposed to be for those folks that were wrongfully imprisoned. Think of the guy that spent 20 years in the can for a rape he didn’t commit. Shouldn’t he be entitled to compensation? The legislature thought at least some defendants ought to be compensated for losing years or decades of their life behind bars when they didn’t deserve to be there.

So how did the court gut the statute?  This time statutory construction cuts against defendants. In Mansaray v. State, 2014 Ohio 750, the Court was required to construe some admittedly weird language of the wrongful imprisonment statute, R.C. 2743.48.  While there are a total of 5 elements a litigant must establish in order to be considered “wrongfully imprisoned,” the Court focused exclusively on the 5th element.  Section A of the applicable statute reads as follows:

(A) As used in this section and section 2743.49 of the Revised Code, a “wrongfully imprisoned individual” means an individual who satisfies each of the following:

   (1) The individual was charged with a violation of a section of the Revised Code by an indictment or information, and the violation charged was an aggravated felony or felony.

   (2) The individual was found guilty of, but did not plead guilty to, the particular charge or a lesser-included offense by the court or jury involved, and the offense of which the individual was found guilty was an aggravated felony or felony.

   (3) The individual was sentenced to an indefinite or definite term of imprisonment in a state correctional institution for the offense of which the individual was found guilty.

   (4) The individual’s conviction was vacated, dismissed, or reversed on appeal, the prosecuting attorney in the case cannot or will not seek any further appeal of right or upon leave of court, and no criminal proceeding is pending, can be brought, or will be brought by any prosecuting attorney, city director of law, village solicitor, or other chief legal officer of a municipal corporation against the individual for any act associated with that conviction.

   (5) Subsequent to sentencing and during or subsequent to imprisonment, an error in procedure resulted in the individual’s release, or it was determined by the court of common pleas in the county where the underlying criminal action was initiated that the charged offense, including all lesser-included offenses, either was not committed by the individual or was not committed by any person.

Okay, the first four requirements seem to make sense, if you try not to think too hard as to how someone could be sent to prison for a anything other than a definite or indefinite prison term.  But, I digress.  The real issue was the fifth requirement.  A defendant has to show that either (1) a court ruled that no crime was committed at all, or at least that he didn’t do it; or (2) there was an error in procedure, subsequent or during imprisonment, that ultimately resulted in his release.

In Mansaray, the criminal defendant turned civil litigant had successfully challenged on appeal the trial court’s decision overruling his motion to suppress.  In other words, the appellate court said, “hey trial court, you should have suppressed that evidence, Mansaray should never have been convicted, and we reverse his conviction and sentence.” Because the state did not have any competent evidence to seek a conviction after the appellate court’s ruling, Mansaray was in the clear.  And, in his mind, had been wrongfully imprisoned the entire time it took to have his case resolved. Not so says the Supreme Court.

The decision notes that Mansaray could not show that no crime had been committed, or that Mansaray didn’t commit it.  Drugs were actually found in Mansaray’s home.  It was only because that the police forget their elementary school civics lessons that he wasn’t convicted.  In real life, this guy illegally possessed drugs.  So, the only way to satisfy the statute’s fifth element was for Mansaray to show that an error in procedure had occurred that resulted in his release.  And that is where the problem arises.

Certainly there was an error in procedure: the trial court erred in not suppressing the illegally seized evidence.  Further, the error in procedure did result in his release from prison.  No problem, right?  Wrong.  The Supremes noted that the statute required the error in procedure to have taken place subsequent to or during the imprisonment.  Here, the error had taken place well before the imprisonment.

While the language of the statute does support this decision, it is a little absurd to think that a defendant should have to show an error in procedure after his case is over and he’s serving his 10-20 years.  There are no more procedures left for someone to mess up.   So, this basically leaves a defendant with only one option to seek relief under the statute:  convince the common pleas court that no crime was actually committed (fat chance) or that the defendant didn’t do it (better chance for DNA cases like rape, murder, etc.).

The court didn’t elaborate on what type of procedure could possibly happen while the defendant’s behind bars, and I struggle to think of one.  If I happen to discover some way in which this portion of statute could be satisfied, I’ll update.  Otherwise, let’s go with the theory that the state didn’t really want to be sued by some guy that, in reality, did do something wrong.  This is so even if the state violated his constitutional rights while it was busy sending him to prison.