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What's Up in the 8th

I practice in Cuyahoga County.  A fair amount of my readership is here.  The 8th District Court of Appeals hands down more decisions than any other appellate district in the state.  Hence, the new feature here:  Tuesday's rundown of decisions from the Cuyahoga County Court of Appeals.

I've had my differences with the 8th, particularly on hearsay/Crawford and allied offense issues, but one area they're consistently good on is 4th Amendment law.  That continues with in State v. CrenshawThe short version:  the cops investigate a complaint of drug activity out of a particular house.  They go to the backyard, which is fenced in, smell marijuana, and climb over the fence with guns drawn, ordering the ten or so people there for a barbecue to put their hands up.  The homeowner "consented" to a search of the house.  The net result of all this?  A pipe containing cocaine residue. 

The search got tossed quicker than a Taco Bell burrito after eight beers, and the 8th easily affirmed, noting first that the backyard was within the "curtilage," because it was fenced in, and thus deserved 4th Amendment protection.  The state argued that the search was "consensual," although that applies to an encounter in a public place, not a backyard.  The state also argued that the smell of burning marijuana gave the police probable cause; the opinion notes that while that was true, it didn't relieve them of the requirement of obtaining a warrant, in the absence of any showing that the evidence was about to be destroyed.

Whether the court would have had to go through all this is another question.  The validity of the seizure of the crack pipe depended upon the validity of Crenshaw's consent, and whatever adjective might be applied to a consent given after a half-dozen armed police officers crawl over your backyard fence and point their guns at you, "voluntary" is not one of them. 

Back in May, it looked like the Supreme Court's decision in State v. Colon, reversing an aggravated robbery conviction because the indictment didn't include a mens rea requirement, would be The Next Big Thing.  Then the Supreme Court reconsidered and, doing its best Emily Litella impression, said, "Never mind," as I explained back here.  The 8th wrestled with that in a few decisions last week.  In State v. Wade it decided that failure to include a mens rea requirement wasn't fatal to an aggravated robbery charge under the having a deadly weapon subsection, because the weapon element didn't require a specific mental state.  In State v. Rogers, though, the court followed Colon I in holding that the failure of the indictment to include a mens rea under the "causing physical harm" subsection did require vacating the conviction.

Whether that's the right answer is indeterminable, because Colon II is such a mess.  That decision emphasized that the facts in the case showed the failure to include a mens rea "permeated" the trial, thus requiring a structural error analysis, while apparently saying that if it didn't permeate the trial, it could be considered under a plain error analysis, but only on even-numbered days of the week...  Well, it wasn't quite that bad, but you get the idea.  In Rogers, it didn't really matter:  the defendant had also been convicted of three counts of agg robb under the deadly weapon subsection, and a conviction under the serious harm portion would probably have merged with the others anyway.

State v. Robinson teaches a very simple lesson for trial judges:  if you want to deny a motion to withdraw a guilty plea, just hold a hearing and deny it.  But if you deny it without holding a hearing, you're very probably going to get reversed.

On the other hand, while RC 2929.18 also requires a hearing before a court may order restitution, that's not always necessary, according to State v. JarrettThere's a due process component to a restitution order, and there has to be some evidence of economic loss, as the court concluded last year in State v. LabghalyIn that case, the defendant had been caught with 695 pirated copies of the movie Rebound, and the court ordered him to pay $13,655.  That was nearly 1% of the entire box office garnered by the movie, a rip-off of the Bad News Bears which got a 14% Tomato-Meter rating and earned such reviews as "an underdog sports saga that skips nary a cliche on its nearly laughless journey."  The court reversed the restitution order.

Not so in Jarrett; the agreement to pay restitution had been fully discussed at the plea hearing, and the defendant had agreed to pay it as part of the plea.  The amount had been calculated by the probation department, and was included in the presentence report, which defense counsel conceded was "substantially correct" at the sentencing.  That's pretty much the end of that; the statute requires a hearing only if "the offender, victim, or survivor disputes the amount."

Tomorrow I'll have something on the oral argument in State v. Winn, which represents the latest Ohio Supreme Court foray into allied sentences.  And I'll probably figure something else to write about on Thursday and Friday.  See you then.

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