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…

Back in 2004, the Ohio Supreme Court ruled in State v. Brooks that, oddly enough, the section means exactly what it says:  a judge has to indicate the specific prison term that would be imposed if CCS were violated.  Judges have nonetheless continued to hand down sentences saying that if CCS are violated, a sentence “up to” 12 months or whatever will be imposed.  That’s what the judge in Miller-Nelson did, and that’s not good enough. 

Keep in mind, a judge can always make the sentence lower if there is a violation; if she imposes an 18-month sentence, there’s nothing to keep her from reducing it to 12 months at the violation hearing.  (It doesn’t work the other way, of course; the judge can’t give your client more time, as I explained here.)  And keep in mind that screwing this up provides a major windfall to the defendant:  if the judge doesn’t impose a specific sentence at the original hearing, the defendant can’t be sentenced to prison at all if he violates CCS.

Second, the 8th District’s recent decision in State v. Bullock is one to stick in your trial folder.  It’ll come in handy on those occasions when you come across that snotty prosecutor who thinks that only the judge is entitled to view a witness’s statement for inconsistencies under Crim.R. 16(B)(1)(g) to determine whether to allow you to use it in cross-examination.  The judge bought that argument in Bullock: there were three statements of the witness, and the court provided only one to defense counsel, noting on the record that it found no inconsistencies in the other two and “accordingly did not provide them to defense counsel.”  Again, back in 2004 the Supreme Court held that the “present and participating” requirement of the rule meant that defense counsel was permitted to see the statement and to point out inconsistencies to the judge.  Failure to do this means reversal, especially where the judge also fails to include the statements in the record on appeal, which is what happened in Bullock. 

Finally, it pays to take a closer look at those Miranda forms the cops in your jurisdiction are using.  The Athens Sheriff’s Office had one which included the statement, “If you cannot afford a lawyer, one may be appointed to represent you, if you wish.”  (The Athens police department uses the same warning.)  Last week, as this article notes, a judge granted a motion to suppress a statement.

“[The word] ‘may’ tells the accused that if he cannot afford a lawyer, it is possible that one will be appointed to represent him if he wishes,” Goldsberry wrote, adding that the word “does not adequately convey the requirement that a lawyer must, or will, be appointed prior to questioning.”

That’s some good lawyering.

See you next week.