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8th District - Recent criminal cases

There are some things about State v. Colon, decided on Thursday, that I don't care for, the major one being the holding that allowing the defendant to consult with his attorney during trial only in the courtroom, with the deputies present, was not a violation of his right to counsel.  To be sure, the trial court's order was based on previous rather loud disputes between defendant and counsel, but I'm not sure the record supported the court's decision, and probably warranted more than the brief attention the appellate court gave it.

On the plus side, though, there's some good stuff on sentencing.  A couple of months back, I'd suggested that Foster didn't give judges unfettered discretion in sentencing: they still had to comply with the provisions of the code which dealt with recidivism and seriousness factors, along with the overriding purposes of felony sentencing.  That view is emphasized in Colon.  The defendant, who'd never been in prison before, was given a seven-year sentence (out of an eight-year maximum) for felonious assault.  The court vacated the sentence because of the Foster decision, and decided that an attack on Foster's ex post facto application, something we discussed yesterday, wasn't ripe for review, but also noted,

In resentencing appellant, the trial court may want to keep in mind the Ohio Supreme Court's holding in State v. Mathis, 109 Ohio St.3d 54"Although after Foster, the trial court is no longer compelled to make findings and give reasons at the sentencing hearing, *** nevertheless, in exercising its discretion the court must carefully consider the statutes that apply to every felony case. Those include R.C. 2929.11, which specifies the purpose of sentencing, and R.C. 2929.12, which provides guidance in considering the factors relating to the seriousness of the offense and recidivism of the offender. In addition, the sentencing court must be guided by the statutes that are specific to the case itself."

That's some language you might want to include in sentencing memoranda.

The court upheld the granting of a motion to suppress in State v. Paschal, but it's a stretch.  A cop had spotted two men sitting in a car late at night in the proverbial high crime area, looking at something between them.  The officer, finding this "odd," pulled up next to them, and they appeared surprised.  He pulled forward, intending to turn around in the driveway and come back, when the passenger took off running, and the driver sped away.  The officer caught up with the driver, and a subsequent search turned up a rock of cocaine.

The court affirmed the suppression, deciding that while prior case law holds that unprovoked flight in a high-crime area can create reasonable suspicion for a stop, those cases required immediate flight, which wasn't present in this case.  Judge Corrigan's dissent is probably correct in noting that the majority is wrong on both these points:  the prior case law did not require a "temporal nexus" between the sighting of the police car and flight, and even if it did, the time lag here was no more than a few seconds.

Finally, State v. Talley expounds on a number of legal issues, including the general rule that self-defense and accident are inconsistent defenses, and that an instruction on flight can't include a provision stating that flight shows consciousness of guilt "unless the flight was satisfactorily explained."  It also contains this great line from the trial court, in answer to defendant's claim that his attorney was a racist:  "If he gives you some legal advice that you might not like, that doesn't make him a racist, it just makes him a lawyer."

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