With a little help from my friends... Court costs & Intervention in Lieu
Every now and then, an attorney will give me a tip about a case that he thinks would be good for the blog. The other day, for example, one of the habitués over at the Justice Center told me about State v. Stanovich, a decision out of the 3rd District last year on treatment in lieu of conviction under RC 2951.041. Under that statute, you can petition the court for drug treatment; if the court goes along with it, and you complete the treatment term, the charges are dismissed.
In Stanovich, the problem was that in addition to a charge of drug possession, the defendant had also been indicted for two counts of misdemeanor assault. While drug possession is one of the crimes that are eligible for treatment in lieu, assault isn't; the judge denied the petition for treatment on the grounds that all charges under the indictment had to qualify. The 3rd District reversed, holding that eligibility had to be determined for each offense, and if any of them qualified for treatment in lieu, the court had to determine eligibility for that offense.
This does pose some options in certain circumstances. Treatment in lieu isn't available for trafficking offenses, for example, but it's quite common in many counties for the prosecution to tack on "preparation for distribution and sale" trafficking counts with just about any possession case. The state will then offer you a "deal," agreeing to dismiss the trafficking in return for a plea on the possession. Under Stanovich, you can file the motion for treatment on the possession count, and let the state decide if it wants to try the trafficking case anyway.
It may give you an advantage, and it may not. There's some law to the contrary, and keep in mind that whether you're eligible for treatment is one question, whether the judge is going to grant it is another. It, like so many things in life any more, is within his sole discretion.
And one of the guys over at the PD's office let me in on a decision about payment of court costs by prisoners. As you may (or may not) know, it's not unusual for a defendant to go off to the joint dragging a court cost bill of several thousand dollars. There's a provision of the Ohio Administrative Code which permits the prisons to withdraw money for costs from the inmate's account. In an effort to extract every remaining ounce of flesh, the prisons have been taking not only the money the inmate gets from cranking out license plates, but also any money his family sends him.
An inmate down in Belmont decided that was a bit much, and filed a petition for writ of mandamus. Lo and behold, the 7th District granted it. You can find a copy of their decision here. If you've got a client who's in prison and is complaining of this, send him a copy of the decision; there's a grievance procedure he can utilize under OAC 5120-5-03(C), or under RC 2329.66 to complain about this.
Speaking of court costs, remember that the issue is waived if you don't raise it at sentencing, under last year's Supreme Court decision in State v. Clevenger. If you've got an issue on this on appeal, though, there's an 8th District decision last year in State v. Blade, which held that it's ineffective assistance of counsel for trial counsel to fail to file an affidavit of indigency at sentencing if there's a reasonable probability that the court would've granted a waiver of costs.
By the way, if you've got an interesting case or something you think deserves to be checked out, drop me a line. The email address above isn't just for fan mail.