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Catching up with the 8th

A number of interesting decisions out of the 8th District this past week, vaguely reminiscent of the final scene in Carrie, where Carrie's hand emerges from the grave to grab the arm of one of the survivors of the prom massacre.

Okay, so it wasn't anything like that.  But there was some cleaning up of old business.

First up was State v. CasalicchioThat opinion actually came out on March 13 of this year, and involved the question of whether a sentence imposed without notifying the defendant of post-release controls was void or merely voidable.  Despite the clear pronouncement by the Ohio Supreme Court in State v. Bezak that this made the sentence void, the 8th District looked at the subsequent case of State v. Payne and decided that the Court really meant that the sentence was voidable.  I've blogged tirelessly (and, some would say, tiresomely) about the problems with the Supreme Court's analysis of the void-voidable issue (as I did here), and complimented the 8th District on its decision in Castilicchio for finally getting it right.

Whoops.  A week later, the Supreme Court came down with State v. Simpkins, in which they reaffirmed the "void" holding of Bezak.  So last week, the 8th District reconsidered Castalicchio, and acknowledged they'd jumped the gun a bit.  Somehow, despite using totally different reasoning from their opinion two months ago, they still came to the same result, affirming the trial court's decision holding that the defendant's petition for post-conviction relief wasn't timely filed.

Then there's State v. Holder, a decision from a month ago that I talked about here.  The case had dealt with "copy-cat" indictments, typical in child molestation cases:  the defendant is indicted on, say, twenty counts of rape, the indictment specifies that the crimes took place over a two-year period of time, and there's nothing to distinguish one crime from the other.  In Holder, the court had held that the prosecution's failure to individualize one crime from the other, in the indictment or the bill of particulars, compelled the trial judge to toss out all but one count of each crime. 

Then last week, in State v. Barrett, a different panel of the court said that wasn't so:  the court reversed a trial judge's dismissal of all but one count of an indictment, saying that the prosecution should have been given an opportunity to differentiate the counts, "either in discovery or at trial."  Barrett acknowledges Holder only in passing:  "but see - State v. Holder."  That's going to have to be resolved some time down the line.

And last, the saga of Robbie Moore finally comes to an end.  Moore was the woman who, back in 2004, drove drunk the wrong way on I-71, managing to travel fifteen miles in that fashion before wiping out a couple on a motorcycle.  That got her maximum consecutive time of twenty years, but as I mentioned in a post on consistency of sentencing back in September of 2006, the 8th District reversed that in State v. Moore, finding that the sentence was disproportionate to others handed down for similar crimes.  And, in some cases, identical ones:  the day before Moore got her twenty years, another judge two floors down in the Justice Center handed out six years to a guy -- tell me if you've heard this before -- who'd driven drunk the wrong way on the Interstate and wound up killing two people.

Moore's case went back to the trial court, and she gave Moore sixteen years.  Last week, the 8th District had no trouble upholding the sentence.  The difference, besides the four years, was the fact that State v. Foster had come down just six months after the original reversal of Moore's sentence, and this time around the court did the customary genuflection toward the wide-ranging discretion that Foster gave judges in sentencing, and that was pretty much that.

The interesting aspect of the case was the concurrence by Judge Gallagher, who writes some of the most thoughtful opinions to come out of the court.  The thrust of his argument was that Foster has rendered the original goal of the SB 2 sentencing reforms -- promoting consistency in sentencing -- a nullity.  Essentially noting that what we now have in Ohio sentencing is unguided judicial discretion, he commented that the "now discredited federal 'grid format' for sentencing" at least "ensured similarly situated offenders received similar sentences, and even suggested something like that might not be a bad idea.

The Moore decision came out last Thursday at 9:00 AM.  That same day, I'd written a long post (do I write any other kind?) about sentencing reform, also lauding how the Federal sentencing guidelines have worked, at least since Booker, Gall, Rita, and Kimbrough. 

Now, it's certainly possible that Judge Gallagher read my post when it appeared on the blog at 7:36 AM, and was so impressed that he managed to get down to his office and write his concurrence by the time the Moore opinion was issued at 9:00 AM, but I'm guessing that's not exactly the way it went down...

Probably because he might not have gotten done reading the damn post by 9:00 AM.

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