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.