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September 2007 Archives

Some stuff you should know

A few odds and ends from court decisions over the past few weeks...

First, a reminder out of the 3rd District, in State v. Miller-Nelson, that if a judge is going to impose a prison sentence for violation of community control sanctions, he had to specify that sentence at original sentencing hearing.  For a while after the new sentencing laws went into effect back in 1996, it was common for judges to simply place someone on CCS, and then decide what sentence to impose at the violation hearing.  RC 2929.19(B)(5), though, says that if the defendant is given CCS,

The court shall notify the offender that, if the conditions of the sanction are violated, if the offender commits a violation of any law, or if the offender leaves this state without the permission of the court or the offender's probation officer, the court may impose a longer time under the same sanction, may impose a more restrictive sanction, or may impose a prison term on the offender and shall indicate the specific prison term that may be imposed as a sanction for the violation...

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Preserving Blakely errors

Yesterday's Ohio Supreme Court decision in State v. Payneon the surface, couldn't be any simpler, but the ramifications of the decision are much more significant:  it represents a radical modification of the holding in State v. Foster.

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Gun crimes and gun specs

Your client is stopped for drunk driving, and during an inventory search of the car, the police find a gun in the trunk.  He winds up being charged with one of the more arcane offenses in Ohio's scheme of criminal statutes, RC 2923.16(D), which prohibits driving with a gun in your car if you're drunk, and is a fifth-degree felony.  For good measure, the prosecutor also throws in a 1-year firearm specification, which requires the judge to tack on an additional year to whatever prison sentence he gives you.

You present the court with a well-reasoned, cogently-argued brief asserting that this simply isn't logical.  It's one thing to give somebody an extra year because they have a gun when they commit a drug offense or a kidnapping, but here the offense itself involves the possession of a gun.  It doesn't make much sense to say, "It's illegal to do this with a gun, and by the way, if you have a gun when you do this, we're going to punish you more severely than if you don't."  Pretty good argument, huh?

Well, that and the proverbial $3.75 will get you a cup of moccha latte at any of the three Starbucks within fifty feet of your office building.

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Lomax and jury waivers

The Supreme Court handed down a rare unanimous decision in a criminal case a couple of weeks back in State v. Lomax.  A quick-and-dirty read on the case:

What's the issue?

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Case Update: Tanned, Rested & Ready Version

Needless to say, I spent the two weeks in Maui eagerly anticipating the decisions I'd get to write about on my return.  Yeah, sure...  Besides reprimanding, suspending, or disbarring a sundry group of miscreant attorneys, the Ohio Supreme Court handed down only a couple of decisions of note.  In Peters v. Columbus Casting, it held that a decedent's agreement with his employer to arbitrate disputes didn't bind his beneficiaries in a wrongful death suit against the employer.  In State v. Lomax, it ruled that the "in open court" requirement for a jury waiver means that there has to be some on-record colloquy between the judge and the defendant.  I'll have more on that later this week.  As for the court of appeals decisions...

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Fun in the Sun

As I told you last week, The Briefcase is on hiatus until September 24.  I'm in Maui now, after an interminable airplane trip.  Whatever happened to attractive flight attendants, by the way?  Ours looked like the Oak Ridge Boys with breasts.

Anyway, this is the dreary sight which greets me in the morning for the next couple of weeks:

Beach - resize.jpg


See you on the 24th.

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Strategy & Tactics: Charging on lesser offenses

Your client starts a fight with someone, and gets in the "(un)lucky" punch -- through some weird physiological accident, the victim winds up dead, and you're defending a murder charge.  The facts would warrant a charge on a lesser-included, like involuntary manslaughter, and the judge offers to give one.  You don't want the jury to have an easy out, so you turn it down, preferring to go all-or-nothing.  Does the judge have to instruct the jury on the lesser anyway?

There's plenty of case law that says that a trial court has a duty to give an instruction on a lesser-included if the facts warrant.  As the 10th District recognized last week in State v. Riley, there's an important exception to that rule:  where defense counsel doesn't want one, as a matter of trial strategy.

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Case Update

The Supremes have a busy week, disbarring three attorneys and suspending seven, and handing down a couple of decisions on top of that.  In Froehlich v. Ohio Dep't of Mental Health, we learn that the statute of limitations for a malicious prosecution action starts to run when the grand jury no-bills a case, even if the prosecutor is contemplating bringing additional charges.  In State v. Consilio, the Court held that a prior version of RC 2901.07, which requires persons convicted of felonies and certain misdemeanors to submit DNA samples, couldn't be applied retroactively.  The statute's been amended to allow that, but there's a decent 4th Amendment argument which could be made here, and which I'll get to talking about sometime.

I might also talk sometime about the issue raised in the other decision last week, Webb v. McCarty, which dealt with UMI coverage.  Given the murky nature of that topic, "sometime" in this context should be interpreted as synonymous with "when I'm forced at gunpoint to discuss it."

So let's see what happened in the courts of appeals...

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