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Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »

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Courts Update

Nothing of significance this week in the Ohio Supreme Court.  The US Supreme Court held that the statute which provides for deportation of an alien who commits a theft offense where the potential penalty is a year or more in prison also applies to aiders and abettors.  In the Ohio courts...

Criminal. 2nd District holds that Defendant bears burden of showing he lacked mental capacity on issue of voluntariness of confession... 1st District rejects ex post facto argument with regard to Foster resentencing (an argument I discussed here), holds that issue is really not ex post facto clause, but due process... 9th District upholds trial court's determination that motion to suppress filed 13 days before trial, but 49 days after arraignment, was untimely...

Civil. 1st District upholds right of village to require landlords to obtain rental permits and submit to inspections, overruling statutory and constitutional challenges... 3rd District holds that where juvenile court determines parentage, but parties subsequently marry, juvenile court loses jurisdiction over all child support issues... Employer not liable for assistant manager's requiring employees to submit to strip search because manager believed they'd stolen her jewelry, 10th District holds; respondeat superior not applicable in intentional tort case since manager's act didn't benefit employer...

One case deserves a little more extensive treatment.  In State v. Harper, the defendant faced several drug counts, plus one of intimidation of a witness under RC 2921.04(B), a third degree felony.  As part of a general plea bargain, the state amended that count with the attempt statute, making it a fourth degree felony.

The 3rd District vacated the plea, finding that the crime of intimidation already, by its very wording, involves an attempt ("no person... shall attempt to influence, intimidate, or hinder a witness..."), and thus the defendant was pleading to an attempt to attempt to commit a crime, which isn't a cognizable offense under Ohio law.  The first thought I had upon seeing the case was how it might affect plea bargains to "attempted" felonious assault, since the base offense also includes an attempt ("cause or attempt to cause... serious physical harm...").  The offense of robbery also incorporates an attempt. 

That's a possible scenario, and several courts have vacated pleas on that basis.  The 8th District, in several cases, has refused to do so, because the defendant benefited from the plea bargain, and thus couldn't show prejudice.  That's probably the better argument, as the dissent in Harper points out.

Finally, we have State v. Stone, where the defendant wound up with a four-year prison sentence instead of community controls because he didn't show up at the probation department to determine his eligibility for a drug program.  He tried to claim that his counsel was ineffective for not making sure that he did show up, but the appellate court rightly reminded him that he was a big boy now, and bore the responsibility of ensuring his own attendance.  As Woody Allen pointed out long ago, 90% of life is just showing up, and that's especially true if you're on probation.

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