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The power of the pen

Well, I guess I told them, huh?  Within mere hours after I'd blogged last week about the New Haven 8th-grader who'd been suspended for buying a bag of Skittles at school, the district, per this story, came to its senses, reinstated him, and cleared his record.  No word on when the candy-seller is up for parole, but believe me, I'll be focused like a laser beam on clearing her, too, in my fight for Truth, Justice, and the American Way.

If you're wondering where the Case Update is, I was gone this weekend, and didn't have time to do it.  It'll be here tomorrow.  Meantime, I've got to give some snaps to the 8th District.  Every now and then you'll see an appellate panel toss out some vague criticism of an Ohio Supreme Court decision, but it's relatively rare to see one say, in essence, "Hey, you guys got this wrong; here's what you meant to say."  That's exactly what the court did in State v. Casalicchio

Cases are becoming sort of like movie sequels.  There's Godfather II or Halloween 3, and here there was Casalicchio I, Casalicchio II, and Casalicchio IIICasalicchio I involved his direct appeal from his conviction for intimidation, which was affirmed, but the court sent it back down because the trial judge forgot to tell him about post-release controls.  He got resentenced two weeks before Foster v. Ohio comes down, so when he appealed that (Casalicchio II), sure enough, that sentence had to be vacated, too.

Before that last decision came down, though, he filed a motion for postconviction relief.  What's relevant isn't the argument that he made, but the timing.  Which brings us to Casalicchio III.  The trial judge had thrown out the petition for post-conviction relief on the grounds that he'd filed it well past the 180-day deadline:  he'd originally been sentenced in April of 2004, and he'd filed the petition in November of 2006.

But he had an argument:  under State v. Bezak and the other Ohio Supreme Court decisions, a failure to advise a defendant of post-release controls renders the sentence void; it's a nullity, as if it had never happened.  Since it was a nullity, the 180 days never started running, and thus the petition was timely.

When Bezak came down, I blogged about the problems in holding that a sentence was void, as opposed to merely voidable:  under Ohio law, there's no conviction if there's no sentence.  The Supreme Court's begun to see the light there, because in State v. Payne they backed away from that.  In Foster, they'd similarly held that any sentence handed down under the unconstitutional statutory provisions was void, but in Payne they decided that they'd really meant that the sentences were merely voidable:  that is, they were valid as long as no one contested them.

When I discussed Payne (which I did here), I'd said that the decision "goes a long way toward cleaning up the problems the Court created in not distinguishing between void and voidable sentences," but pointed out that Bezak was still out there, and predicted that the Court would "readdress, and correct, that issue within the next year." 

The 8th District decided not to wait, and didn't mince any words about it:

the reasoning in Bezak was flawed, as it was in Foster, with respect to classifying a sentence as void. It is our view, that after Payne, the holding in Bezak, regarding the use of the word "void," is no longer correct. Payne makes it clear that the Supreme Court erred when it labeled a sentence "void" -- because the trial court had jurisdiction to impose the sentence. Therefore, the holding in Bezak, that a sentence that does not properly include postrelease control is "void," should actually be "voidable."

Of course, since it's only voidable, it's not a nullity, the 180-day clock started to run in April of 2004, and Castalicchio's petition for PCR is untimely.

I've been critical of some of the opinions out of the 8th District lately, but I've got to give them a lot of credit for this one.  Most courts would have been content to parrot the language from Bezak, but the court here analyzed the situation, took into consideration the developing case law from a related area, and came to a logical, well-supported conclusion.  That's the way things are supposed to work.

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