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Updates on some stuff

A couple of weeks ago I mentioned in my Case Update that there were no decisions from the 8th District.  Somewhat surprising, considering that they usually churn out about fifteen to twenty cases a week.  (According to my BFF Lexis, there were more reported cases out of the 8th District last year than the 1st (Hamilton County, mainly Cincinnati) and the 10th (Franklin/Columbus) combined.

Turns out that it's not that there weren't any decisions, it's just that the court changed the way it handles them.  In Cuyahoga County, alone of the appellate courts, the decisions aren't actually final when the opinions are released:  the opinions are merely "announcements" of the decision, and become final ten days later if no one files a motion for reconsideration.

The problems with that approach became apparent in State v. Casalicchio.  I'd blogged about the case when it came out in March, and the short version is that this was another case on post-release controls, the issue being whether the trial judge's failure to properly impose them rendered the sentence void or merely voidable.  Although the Ohio Supreme Court had held last summer in State v. Bezak that the sentence was void, there'd been an intervening Supreme Court case since then:  in State v. Payne, the court had held that it had been wrong in saying that a sentence handed down under the statutes declared unconstitutional in Foster were void, deciding that they were instead voidable.  The 8th District in Casalicchio decided that Payne implicitly overruled Bezak on the void/voidable question. 

Actually, they were a little more direct than that:  the opinion referred to the "flawed reasoning" of Bezak, which probably broke some new ground for an inferior appellate court.  (I ran into the judge who authored the opinion this morning while I was waiting to get slaughtered in oral argument in another case, and she told me she got a fair amount of sardonic congratulations from her peers for having overruled the Supreme Court.)

Well, a week after Casalicchio came out, the Supreme Court handed down with State v. Simpkins, in which they reaffirmed Bezak's conclusion that sentences imposed without PRC were void, not voidable; the 2nd paragraph of the syllabus reads, "Hey, 8th District, we mean it this time."  Okay, I made that part up, but you get the idea.

So did the 8th District.  It decided to reconsider its decision, and on May 15, it came out with another opinion, agreeing that Casalicchio's sentence was void, not voidable. 

Of course, now you've got two opinions out there that say diametrically opposite things, which the court decided wasn't such a good thing.  So since then, it's sent the announcements of the opinions out to counsel, but hasn't sent them to the Supreme Court, which is where Lexis and Westlaw pick them up.  The court's web site gives summaries of the announced decisions -- I know, for example, that the 8th District struck down as unconstitutional the statute passed last year prohibiting municipalities from imposing residency restrictions on their employees -- but we'll have to wait until later this week for those decisions to start coming out.

In the meantime, a couple of other updates.  One of the big decisions out of the Ohio Supreme Court this year was State v. Colon, which I discussed here, holding that an indictment which failed to allege the mens rea required for a crime was structurally defective.  (The state has asked the Court to reconsider the decision, and that request is still pending.)  In the meantime, the Ohio Judicial Conference has produced additions to Ohio Jury Instructions for aggravated robbery, robbery, and aggravated burglary, the main targets in Colon.  You can download a copy of them here.

Second, Cuyahoga County Common Pleas Judge Ron Suster came down with an opinion a few weeks back declaring the Adam Walsh Act -- Ohio's new law governing registration and notification by sex offenders -- unconstitutional.  Courts have come to differing conclusions on the matter, but Suster's opinion does a thorough job of covering all the bases.  You can download it here.

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