There were a couple of significant decisions out of the Supreme Court on Wednesday.  In State v. Lather, the court held that a waiver of Miranda rights didn’t have to be express, but could be inferred from the defendant’s conduct.   And in State v. Sanchez, the court held that the filing of a motion in limine tolled the running of the speedy trial statute.  It also held that an immigration detainer didn’t keep the defendant from getting the benefit of the triple-count provisions of the statute for time spent in jail.  I’ll be talking about both of those in more detail next week.

Now, for decisions in the courts of appeal…

6th District vacates summary judgment in case where BWC investigators posed as customers to enter home of woman receiving PTD benefits, find that warrant was required… 10th District affirms summary judgment on slip on ice and snow, rejects claim that plaintiff could rely on defendant property owner’s clearing ice and snow on previous occasions, distinguishes that from landlord-tenant cases… 9th District affirms summary judgment in attractive nuisance case, says homeowner’s locking fence around swimming pool satisfied duty to use reasonable care in protecting children… Landlord had “actual notice” of tenant’s new address, thus tenant did not have to provide him with written notice to trigger right to security deposit, says 2nd District…

8th District vacates sentence because judge didn’t allow defendant his right of allocution… 1st District reverses grant of speedy trial motion, finding that under Crim.R. 45(A), time doesn’t count if last day falls on a Saturday, Sunday, or holiday… 5th District reverses multiple felony convictions for sexual offenses involving children, holding that evidence of prior gross sexual imposition was improperly admitted as other acts evidence… 8th District holds that gross sexual imposition and rape not allied offenses, where defendant touched victim’s breasts before penetrating her…

And finally, people, please:  don’t forget that a motion in limine doesn’t mean squat in the court of appeals.  Happened again in Columbus v. Thevenin.  The defense found out the day before trial that the prosecution was going to call witnesses that weren’t on the discovery response, and filed a motion in limine.  The trial court overruled the motion on the grounds that defendant hadn’t filed a motion to compel discovery.  That was bogus; the Supreme Court decided almost twenty years ago, in Lakewood v. Papadelis, 32 OSt3d 1, that a filing of a motion to compel wasn’t a prerequisite for sanctions for failure to provide discovery.  But the court of appeals still affirmed the conviction.  Why?  Because after the motion in limine was overruled, defense counsel didn’t object to the witnesses testifying. 

A few quick notes today; I’m going on vacation at the end of next week, and have some stuff to wrap up before then.  First, I was apparently premature in my exultation the other day over the increase in appointed counsel fees.  Yes, the County Commissioners did approve an increase of $100 in the maximum fee, making up for the cuts which had been imposed in 2001, and restoring fees to the level that had been set back in the 1970′s.  But the judges turned it down.  That’s right, the judges refused to restore the fees.  I don’t know at this point whether it was all of them or a committee of them or merely the administrative judge, but that’s where it stands.  I’m going to do some more digging, but this might be something to keep in mind the next time you get a letter inviting you to give $100 to a judicial candidate in return for getting to eat crappy food and having him smile, shake your hand, and pretend that seeing you has been the best thing that’s happened to him in weeks. 

Speaking of judicial candidates, the betting here is that sometime in the next two weeks the Plain Dealer is going to run a story with the following lead:  “In another embarassment to the campaign of judicial candidate Christine Agnello Russo, her former in-laws allege that they have documentary evidence showing she is a spawn of Satan.”  Film at 11.

As a follow-up to my post of yesterday, I talked to Jim Hardiman, the lawyer who represented Robbie Moore.  As I mentioned, the maximum consecutive sentences initially imposed on Moore were reversed by the court of appeals, and the case is back in front of the trial court for resentencing.  A sentencing hearing was supposed to have been held last week, but was continued to give each side an opportunity to file a sentencing memorandum.   Part of the reversal was based upon the trial court’s not giving an adequate explanation for the maximum or consecutive sentences, but Foster takes that out of the picture.  The remaining issue is consistency.  If the trial court imposes the same sentence, it’ll go up again, at which point the court of appeals will have another opportunity to expound upon the issue of consistency in sentencing.

Also, a shout-out to attorney Brian McGraw, who was kind enough to send me a sheet containing a breakdown of appointed counsel fees for all 88 Ohio counties.  We’ll talk about that next week.  Hint:  if you’re thinking of relocating your practice, Guernsey County might be a nice place to put down roots, but Coshocton, not so much…

And last, good news for all of you lawyers who are working hand in glove with al Qaeda to replace the government of our Founding Fathers with an Islamic caliphate.  In an effort to flush out the traitors in our ranks, the Bellefontaine Municipal Court began requiring all attorneys seeking to represent indigent defendants to fill out a form, pursuant to the Ohio Patriot Act, certifying that they do not provide material aid to terrorist organizations.  No, I’m not making that up.  In a 4-3 per curiam decision, the Supreme Court decided this was a bit much, and issued a writ of prohibition. 

Robbie Moore had a bad day on May 20, 2004:  she got drunk, wound up going the wrong direction on the Innerbelt, and wiped out a couple on a motorcycle.  She had a worse one a month or so later, when she walked into the arraignment room on two counts of aggravated vehiclular homicide, and drew Kathleen Sutula as a judge.  Any reason why 2004 wouldn’t go down as the worst year of her life was dispelled on September 28, when, after she’d pled guilty to the two counts, Judge Sutula gave her the maximum ten-year sentence on each count, and ran them consecutively.

But Robbie Moore’s karma was about to change:  a year later the court of appeals reversed her sentence.

Actually, it wasn’t good karma — it was good lawyering.  Moore’s attorney, who represented her at both the trial and appellate level, filed a presentence memorandum setting out a number of cases involving first offenders who had killed somebody while driving drunk, not one of whom received the maximum sentence, let alone maximum consecutives.  In fact, the day before Moore was sentenced, another defendant three floors down in the Justice Center received six years in a virtually identical fact pattern:  driving the wrong way, and killing two people.  Moore’s lawyer argued that the sentencing scheme violated RC 2929.11(B)’s requirement that “a sentence… shall be… consistent with sentences imposed for similar crimes committed by similar offenders.”

The court of appeals agreed.  This wasn’t the first time a sentence had been struck down as inconsistent with that for similar crimes.  Back in 2002, the 8th District in State v. Lyons vacated a sentence after concluding that the trial judge hadn’t given any consideration to the issue of consistency. 

But other than Lyons and Moore, it’s tough to find any helpful decisions on this.  The problem, as pointed out in Judge Karpinski’s concurrence in State v. Haamid:  it’s almost impossible for lawyers or judges — aat the trial or appellate level — to obtain the information necessary to determine how consistent a sentence is with what’s been imposed for similar offenses and offenders.  When SB 2 was passed, the contemplation was that a database would be established for criminal sentencing.  Somehow the legislature forgot to appropriate money for it.  Since Ohio no longer faces any other pressing problems, I’m sure the money will be forthcoming any day now, probably coinciding with peace in the Middle East.

Lacking that, you have to get creative, which is what Moore’s lawyer did:  he contacted a Plain Dealer reporter, who compiled a list of newspaper stories on aggravated vehicular homicides in the Cleveland area in the past several years.  (Apparently, the Plain Dealer does have a computerized database.)  That’s not something you’re going to find for your run-of-the-mill drug trafficking case, though.  On the other hand, consistency is a great argument to use in the case of sentencing of codefendants, as the 1st District recognized in State v. Stern, 137 OApp3d 110.

At any rate, consistency is one of the things that survived State v. Foster, and it’s something to be kept in the back of your mind when approaching sentencing.  But, slightly off the topic, any laments about the other things that didn’t survive Foster can be tempered by looking at the history of the Haamid case I cited above.  The judge originally gave Haamid 15 years for trying to run down some police officers with his car.  The 8th District reversed, holding that the judge hadn’t given sufficient findings to impose maximum sentences.  On remand, the judge gave Haamid the same 15 years, and he appealed again.  The court of appeals reversed again, finding this time that although the judge gave sufficient reasons to impose the maximum sentence, she hadn’t given a basis for consecutive sentences.  On the third try, the judge gave the same sentence.  Haamid appealed again, but this time the appellate court decided that the judge got it right.

I think there were some good ideas behind SB 2, but in practice it resulted primarily in a gross waste of judicial resources.  If they ever do get around to constructing that database, one of the things I’d like to find out is in what percentage of reversed cases  the same sentence was imposed.  I’d say the over/under on that was at least 75.

The police get a tip that a person in a “light-colored vehicle” is going to be making a drug sale that night at a particular strip mall.  The police stake out the mall, and at 1:30 in the morning observe a gold-colored van pull into the parking lot, drive slowly through it, and exit.  The police follow the van, running a computer check on the plates.  They pull the van over before the check comes back, and wind up arresting the driver for a susended license.  In State v. Porter, the 8th District affirms the trial court’s granting of a motion to suppress, finding that at the time the police stopped the vehicle, they didn’t have a basis for doing so:  even though there were several factors militating toward the validity of the stop — the late night, the high-crime area — they hadn’t seen the driver doing anything wrong, and hadn’t had any corroboration for the anonymous tip.

One more thing:  shortly after the police stopped the van, the computer check came back indicating the van was stolen.  The defendant was indicted for receiving stolen property.  That’s the case that wound up getting tossed on the suppression motion.

There’s a concept in search and seizure law, which apparently the prosecutor in the case was unaware of, called inevitable discovery:  even if the search and seizure was unconstitutional, if the evidence would have been legally discovered anyway, it’s admissible.  (The late Judge Ann Kilbane had an excellent summary of the doctrine in her dissenting opinion in this case.)  This seems like a classic case of that:  had the police waited only a few more minutes until the computer check came back, they would have had a perfectly valid reason for stopping the vehicle.

In fact, in State v. Seals, an unreported case out of Lake County in 1999, the court upheld a search on virtually identical facts:  the police officer initiated the computer check, then stopped the vehicle.  A few minutes later, the check confirmed that the vehicle had been stolen.  (Talk about being “on all fours”:  the case even involved a car being driven through a parking lot at night.)  The appellate court disagreed with the trial court that the facts justified the initial stop, but held that the police would have learned that the vehicle was stolen anyway, which would then have justified the stop, and allowed the evidence in under the “inevitable discovery” doctrine.

This isn’t to suggest that our Court of Appeals was wrong in failing to raise the issue of inevitable discovery; by not raising it in the trial court, the prosecution had waived the argument.  In Seals, by comparison, the prosecution had argued in the trial court both that the stop and search was reasonable, and that if it weren’t the inevitable discovery doctrine would apply to validate it nonetheless.

The new site has given me the ability to do some new things, one of which I did here.  As I explained a while back, the Ohio Supreme Court site contains most of the court of appeals decisions since 2001, and most of the Supreme Court decisions since 1992.  That’s what I link to when I cite a decision.  The problem is what to do about decisions that aren’t there.  If they’re reported, that’s fine, but if they’re not, like the Seals case wasn’t, that’s a pain; if I give you the Lexis site, it’s a lot of trouble to find it if you’ve got Westlaw, and vice versa.

So what I’m doing is converting the files to PDF format and uploading them to my web site, and then linking to that in the posts.  Just going the extra mile… 

A couple of notes on speedy trial issues….

First, last week in State v. Hull the Ohio Supreme Court held that the speedy trial statute doesn’t apply after an appellate court’s vacation of a no contest plea.  There’d been a contrary holding from our district two years ago in State v. Parker.  Even Parker had held that speedy trial didn’t apply after reversal of a verdict, so now the law is crystal clear:  if you’ve got a case that came back from the court of appeals, for whatever reason, the only speedy trial rights that apply are constitutional.  I’m not entirely comfortable with the decision — it really doesn’t engage in any more analysis than that the legislature didn’t mention remands when it passed the statute — but it’s not too far-fetched, either, and it at least has the virtue of clarifying the law.

The other day a lawyer asked me the effect of speedy trial and reindictment, more particularly, whether the time runs during the period between dismissal and reindictment.  This is pretty much of a no-brainer:  it doesn’t.  The time under the original indictment is counted, at least when the new indictment is based on the same facts as the original one, and then picks up again when the defendant is arrested or arraigned under the new one, according to State v. Broughton, 62 OSt2d 253. 

A couple of caveats to that.  First, if the defendant is held in jail or on bail during the interval, the time does count.  Speedy trial is calculated when there is a charge pending against the defendant, and if he’s in jail or on bail, it’s still pending.  Second, there’s a contrary holding out of the 1st District way back in 1976, in State v. Justice, 49 OApp2d 46, where the state dismissed a DWI case, then refiled, and the court held that the time should be calculated from the original arrest, with no tolling.  You can always run that up the flagpole and see who salutes (and hope that the judge and prosecutor don’t know any better), but I’m not too fond of citing cases that were decided back during the Ford administration, especially when there’s an intervening Supreme Court case that blows you away.

A quick spin around the courts…

9th District holds that defendant who initiates affray has a duty to retreat, even in her own home… Judge’s erroneous statement that defendant could raise speedy trial issue on postconviction relief did not invalidate plea, according to 5th District…  9th District says that no contest plea does not preserve claim that judge erroneously denied defendant’s motion in limine… 5th District holds that accidental overwriting of arrest videotape did not require granting of defendant’s motion to dismiss/in limine; I gave full treatment to this issue a few months back…

Four-inch step on which plaintiff fell at car dealership was “open and obvious” hazard, and fact that plaintiff was engaged in conversation with salesman at time of fall didn’t create attendant circumstance, says the 2nd District… 5th District upholds spousal support award of $1,000 a month for 12 years in 30-year marriage where husband is postal worker making $22 an hour and wife recently got job as housekeeper at $7.50 per hour… 8th District rejects mother’s motion to relocate children, says she failed to show it was in best interests of the child.

And we’ll close with Slip and Fall Cases that You Really Shouldn’t Have Taken In, Volume 24:  the one where your client falls over a riser in the store and tells the employee, “You know, I slipped on this same riser yesterday.  You really should get this fixed.”

Have a good weekend. 

Cuyahoga County attorneys got good news the other day:  the maximum fees they were allowed to receive for appointed criminal cases had been raised.  Someone assigned to a drug possession case will get a maximum of $500, up from the current $400.  And if you’re lucky enough to spend a couple weeks in trial on a nasty rape case, take solace from the fact that your compensation will no longer be a meager $900, but an even grand.  Guess you can have the operation now, huh?

The good news is somewhat tempered by the fact that the “raise” merely restored compensation levels to what they were five years ago, when the recession forced the County Commissioners to cut maximums by $50, then another $50.  In fact, the compensation levels were “restored” to what they were when they’d been set back in the 1970′s.  With the cut/raise, defense attorneys in this county have seen their compensation increase exactly 0% in the past thirty years, while the minimum wage has increased 123% during the same time period.  Reference to the minimum wage is appropriate; I’ve had several cases where my actual hourly compensation has worked out to slightly less than what the fry guy at McDonald’s makes, and I don’t even get to wear the cool paper hat.

A few weeks back I mentioned the case of State of Titsworth, in the context of the question of whether policemen can give expert testimony as to the identity of a drug.  Titsworth is interesting for another reason, though.  It contains perhaps the single most novel argument I’ve ever seen for an ineffective assistance of counsel claim:

Defendant argues that he was prejudiced when his trial counsel was not fairly compensated for his time. Specifically, defendant claims that the fee schedule established by Cuyahoga County does not allow any appointed defense attorney to dedicate sufficient time to the defense of any client, including himself.

The court of appeals mulled this over, decided Titsworth was right, and ordered the County Commissioners not only to raise appointed counsel fees, but to provide each attorney with an expense account and private car.

Yeah, surrrrre.

But Titsworth was onto something.  Over in Virginia, the bar association and the National Association of Criminal Defense Lawyers are preparing a lawsuit over the state’s indigent defense system, which actually is more generous than Cuyahoga County’s:  lawyers there get $90 an hour.  The subject of the grievance, though, is the caps on the system:  $1,235 for major felony cases (involving maximum imprisonment over 20 years), and $445 for all other felonies.  Back in 2000, New York lawyers actually sued the state, successfully, to increase the appointed counsel fees, which had remained stagnant since the mid-80′s.

I’ve done some research on this, and it appears that the real deciding factor is not the hourly rate, but the caps, the theory being that once the lawyer hits the cap, his decision-making — like, say, whether to go to trial — is going to be affected by the fact that he’s now doing it for free.  We’d all like to think that we’re immune to that, but if you’ve defending someone who’s charged with drug possession, and you know he’s going to get probation on a plea, it’s not too difficult to start selling that as a viable alternative to spending three days in trial for nothing.

The problem there is that Cuyahoga doesn’t have a “rigid” cap, again, at least in theory:  Local Rule Part II, 33(B) permits counsel to apply for additional fees in “extraordinary” cases.  That’s what the court used in Titsworth to shoot down the defense argument:  additional compensation was available, it’s just that trial counsel hadn’t applied it.  To be sure, this is sort of like saying that the reason I haven’t been made a saint is that I’ve been tardy in getting the paperwork into the Vatican.  The wording of the provision, coupled with the mechanism for its execution (it requires the approval of the trial judge, the administrative judge, and one other judge), indicates that nobody should count on funding their retirement plan with what they get for “extraordinary” fees.

Unfortunately, as long as the fees are available in theory, it’s going to pose some problem with a lawsuit forcing a more adequate compensation package, a move which rumor has it might be in the works.  It might be a good idea to routinely file a motion for extraordinary fees in any case which winds up being tried.  The worst they can do is say no, and building a record that that’s what they do may help down the road.

Well, that looks a little better, doesn’t it?  There are some things I need to do, like fixing up the blogging links.  I’ll explain more about that when I do it.  There’s also an ATOM/RSS feature, which allows you to get a feed from this site:  instead of having to check in, you’ll get a summary of the posts in Internet Explorer.  Click on the link and do some reading about it if you’re interested.  I’ve started getting feeds from various websites, and it’s a pretty cool feature.  Also, beneath each post, you’ll see a couple of icons.  The first is a printer; if you click it, you’ll be able to print out that particular post.  Handy to have for those “Hey, I’ve got a case on that very thing” situations.  The second is an email icon, which allows you to email the post to someone else, which is handy to have for those “Hey, you’ve got a case on this very thing, don’t you” situations.

On to the law.  Last week, in State v. Butler, the 8th District handed down a decision affirming the trial court’s designation of a defendant as a sexual predator.  Butler had been convicted of rape back in 1987, in which he’d stabbed the victim (and has been in prison since then), and he’d had prior convictions, including one for aggravated robbery.  What apparently most impressed the appellate court (and the trial court as well) was Butler’s scores on the Static-99, a test intended to measure the likelihood of sexual reoffending.  Butler graded out at a “39% chance of re-offending in five years, a 45% chance of reoffending in ten years, and a 52% chance of reoffending in fifteen years.”  That, combined with Butler’s record, his diagnosis of anti-social personality, and the details of the crime, was sufficient to uphold the designation.

Butler’s scores on the Static 99 weren’t off the charts by any means — I’ve seen cases where it’s as high as 75% — but it was enough to put him at a “high” risk of reoffending.  Does that mean that a low score militates against a sexual predator designation? 

Well, as they say in the car rental commercials, “not exactly.”  In fact, the 8th District has been almost cavalier in dismissing low scores as irrelevant.  In State v. Ellison, the Static-99 showed the defendant had a low to moderate risk of reoffending, but the court rejected that as an argument against the defendant’s being designated a sexual predator:

The court was not obligated to give the psychological report any great weight. The utility of the STATIC-99 evaluation as a diagnostic tool for individual risk assessment is open to question. The evaluation merely performs an actuarial assessment of an offender’s chances of reoffending. While actuarial risk assessments are said to outperform clinical risk assessments, actuarial assessments do not, and cannot, purport to make a prediction of a particular offender’s future conduct. In fact, the use of an actuarial assessment could arguably be at odds with Ohio’s statutory scheme.  RC 2950.01(E) and 2950.09(B) require a determination that the offender is likely to engage in the future in one or more sexually oriented offenses. This is an individualized determination for a particular offender. The STATIC-99 cannot purport to make an individualized assessment of future conduct any more than a life expectancy table can provide a accurate prediction of a particular individual’s longevity.

The court was even more dismissive a year later in State v. Hornack, where the defendant’s Static-99 scores were 6%, 7%, and 7% in the relevant time periods.  Citing Ellison, the court held that “the Static-99 test results are of practically no worth in predicting the risk of sexual recidivism.”

That’s not to suggest that the Static-99, or any other test, should be determinative.  The facts in Hornack and Ellison were egregious, involving sexual abuse of young children, in Hornack’s case his own daughter.  Still, there should be some consistency in how that evidence is treated.  You can’t have the courts trumpeting high scores as proof of a likelihood of sexual recidivism, but dismissing low scores as completely irrelevant to the issue.

I was going to title this post, “AT&T Sucks.”  We got done with our move over the weekend, and if you ever wonder why this country is going to hell in a handbasket, look no further than the phone companies.  The Bell monopoly was dismantled a quarter century ago to provide more competition in the telephone industry, but it seems that the only competition between them is which one can outdo the others in gross incompetence and outright fraudulent conduct.

At any rate, time to get back to some blogging.  There’ve been a number of decisions coming out of the courthouse down at Lakeside and Ontario, so we’ll start there.  I’ll take a look at a couple of civil decisions today, and some criminal ones tomorrow.  On Thursday, we’ll talk about appointed counsel fees, and Friday I’ll do a general rundown on some recent decisions of interest.

This decision, Thomas v. Nationwide, is interesting from a number of angles.  First, if you do work on questions of auto insurance coverage, you might want to take a look at its discussion of the various procedural requirements for opinions in declaratory judgment actions.  It’s not enough for the judge to say, “You win”; the trial court’s entry must be sufficiently explicit in “construing the documents at issue” to “declare the rights of the parties.”  The opinion doesn’t go very far in explaining exactly what the trial judge should do to meet the specificity requirement, but prior cases suggest that some explanation of why coverage is or is not extended should be sufficient.

The opinion, though, is somewhat disconcerting from a procedural angle.  The court dismissed the appeal on the basis that there was no final order, because the trial judge, in granting a directed verdict for the insurance company, hadn’t complied with Civil Rule 50(E)’s requirement that “the court shall state the basis for its decision in writing.”  Citing another decision from three years ago, the Thomas court concludes that the court’s failure to do so rendered its decision a non-final order. 

But the case from three years ago doesn’t support the decision in Thomas; it holds that while a court should make specific findings, the party against whom the verdict is directed waives the issue if he doesn’t object at the time. 

The net result is that the court finds that the directed verdict for the defendant was improper, but instead of remanding the case back to the lower court to fill in the details, the court simply dismisses the appeal, claiming it’s not a final order.  What exactly is the plaintiff supposed to do at this point?

On the plus side, though, the court puts another nail into the coffin of arbitration agreements in consumer transactions in Felix v. Ganley Chevrolet.  The Felixes had bought a car on the understanding that they’d be given a 0% interest rate, but that the rate was only good that day.  They signed the papers, but when they returned to pick up the car, they were told that the GMAC wouldn’t approve the rate for less than 1.9%.  They signed new papers, only to be informed a month later that GMAC wouldn’t give the loan for 1.9%, either, but that they could get one at Huntington for 9.44%.  And here I thought all the moral derelicts worked for the phone companies…

At any rate, the trial court rejected Ganley’s contention that the Felix’s claim had to be submitted to arbitration in accordance with the provisions of the sales contract, and the appeals court affirmed.  Judge Gallagher’s decision gives an excellent exposition of the law on arbitration provisions, and goes the extra mile in holding that arbitration provisions in consumer contracts are going to receive very close scrutiny.  I’ve done a number of posts on arbitration provisions before — you can find them just by plugging “arbitration” into the Find box — and Felix cements my view that this court is going to be extremely reluctant to uphold an arbitration provision in a standard consumer transaction. 

A last point.  I know some of you are saying, “Gosh, Russ, didn’t you tell us that you’d have a new website design up by now?”  To which I respond by quoting Ring Lardner from The Young Immigrants:

Are you lost Daddy I arsked tenderly.
Shut up he explained.

Otherwise, good to be back.  See you tomorrow.