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9th District: Judge retaliated against defendant for going to trial
TRACEY BLAIR
Legal News Reporter
Published: April 15, 2016
A Lorain County judge denied a defendant due process in two separate cases by retaliating against him for going to trial rather than accepting a plea deal, the 9th District Court of Appeals recently ruled.
In the first case, Kareem Tucker was indicted on five counts of kidnapping, plus one count each of aggravated robbery, aggravated burglary, robbery, burglary and vandalism.
According to appellate court documents:
Tucker and co-defendant Delno Clayton asked their friend Calvin Parker to go drinking on July 17, 2010. Instead, they stripped the Lorain man to his underwear, bound him with duct tape, stole his wallet, phone and apartment key and left him in a shed. The victim escaped the next day to a nearby gas station after giving the duo the combination to a safe in his bedroom.
That same day, Tucker and Clayton entered Parker’s apartment using a key. A female resident was punched in the face. Her 3-year-old son was covered with a blanket while a gun was held to his mother’s head.
While Tucker was still represented by a lawyer, he was repeatedly offered a plea agreement that would result in a nine-year prison sentence with credit for time served.
Instead, he chose to represent himself at trial and rejected stand-by counsel. A jury found him guilty on all counts, and the court sentenced him to 25 years in prison.
At pretrial appearances, Tucker filed numerous documents claiming he was not subject to the trial court’s jurisdiction because he is a “Moorish American Sovereign.”
In a 3-0 majority opinion, the appellate panel agreed Tucker was punished for exercising his rights to not plead guilty.
Ninth District Judge Carla Moore noted that although the trial court told Tucker he would not punish a defendant for taking a case to trial, the judge stated that a defendant’s sentence could reflect a weak defense after a rejected plea offer.
“Ultimately, the trial court informed Mr. Tucker that he was facing the potential for more than 50 years in prison after trial, but could receive a nine-year prison term if he accepted the court’s offer,’ Moore wrote. “The trial court told Mr. Tucker that the arguments that he was making during pretrial appearances `get guys in prison for two times or three times or four times what they could have done.’ “
The trial judge also compared Tucker to his co-defendant, who did accept a plea deal.
“(The co-defendant) `did show up. And he handled it like a man,’ “ Lorain County Common Pleas Judge Mark Betleski said, adding, “The fact of the matter is that Mr. Tucker had an opportunity to significantly reduce the consequences of his actions. He didn’t do so.”
The panel ordered the sentence vacated and remanded.
Ninth District judges Jennifer Hensal and Julie Schafer concurred.
In Tucker’s second case, he was sentenced to 13 years and four months in prison after a jury found him guilty of four counts of trafficking in drugs, possession of drugs, two counts of having weapons under disability, possessing criminal tools and use or possession of drug paraphernalia.
In that case, Tucker was found guilty of selling crack cocaine to a confidential police informant in the fall of 2011. He again represented himself at trial and argued he should be declared a sovereign citizen of “Moorish Native American” heritage.
The drug sentence was to be served consecutive to the kidnapping case.
The appellate court again agreed with Tucker that the trial court retaliated against him at sentencing.
Judge Moore’s opinion said the trial court’s comments at various stages of the proceedings made it necessary to vacate the drug sentence and remand that case as well.
“I have spent numerous possibly wasted moments and minutes and words and breath trying to get an individual to man up to his past conduct, and it never occurs,” Judge Betleski said at sentencing. “It’s very frustrating from the Court’s perspective; not that I lose sleep over it, because I don’t take it personally.”
Judge Moore rejected Tucker’s other assignments of error.
Ninth District Judge Jennifer Hensal concurred.
Appellate Judge Donna Carr concurred with the majority’s finding that the trial court did not abuse its discretion by failing to order Tucker to undergo a competency evaluation before trial.
However, Judge Carr dissented in part, disagreeing that Tucker “knowingly, intelligently and voluntarily waived the right to counsel.”
Judge Carr wrote, “Mr. Tucker’s responses to the trial court’s questions were ambiguous at best and at worst, may indicate that he did not appreciate the gravity of the proceedings against him.
“… I believe that the trial court erred by accepting Mr. Tucker’s waiver, discharging his attorney, and allowing him to represent himself at trial. As such, I believe that the trial court’s appropriate course of action would have been to deny his request to proceed without counsel.”
Judge Carr added that she would sustain Tucker’s first assignment of error, in which he argued the trial court erred by allowing him to proceed pro se.
The drug case is cited State v. Tucker, 2016-Ohio-1353. The kidnapping case is cited State v. Tucker, 2016-Ohio-1354.