What's Up in the 8th
Interesting week in the 8th District. Twenty-five cases, only eight of which are criminal; usually, that ratio is reversed. Of the eight, three are reruns, having been before the court before. The court's struggle with allied offenses continue.
In the rerun category we find Carl Geddes. As I chronicled in an earlier post, his litany of woe began when he downloaded kiddie porn at the Cleveland Public Library, then tossed it into a trash can in the lavatory, along with a copy of his resume. He got maximum consecutive sentences of thirty years for that, which the 8th District reversed, finding it was disproportional. On remand, a new judge gave him eighteen years earlier this year, and the 8th concludes that's about right.
The more interesting aspect of the case is the allied offense angle. Geddes' six convictions were based on six different photographs he downloaded at the same time, and he claimed this made them allied offenses. No, it doesn't, says the court, its analysis extending no further than the citation of a 1st District case which held that multiple violations of the forgery statute did not constitute allied offenses. It also says that, even if they were, Geddes waived the issue by pleading guilty.
I'd mentioned the problems with this latter assertion a couple weeks ago. I have some problems with the first argument as well. In the 1st District case, the police had apparently raided the defendant's hotel room and found him in possession of thirty forged checks he'd made. There's some argument to be made that thirty forged checks poses a substantially greater criminal problem than one. I'm not sure that downloading six kiddie porn pictures is conduct worthy of being punished six times as severely as downloading one, though.
The 8th's problems with allied offenses are on even greater display in State v. Hawkins, where the defendant pled to vandalism and breaking and entering, then argued on appeal that they were allied offenses. This time the court mentions not a word about waiver by virtue of the plea. It correctly cites the case law on allied offenses, including Cabrales (discussed here), but then proceeds as if Cabrales had never been decided. It compares the elements of the two offenses purely in the abstract, decides that each can theoretically be committed without committing the other, and that's that.
Since this was a plea, there's a lack of a factual record, and that's a problem. If the defendant entered a structure, then proceeded to trash it, that certainly would support convictions for two separate crimes. But let's say he broke down the door in an effort to gain entry. If the "vandalism" consisted of breaking the door, how is that distinguishable from the other crime? Isn't that why they call it "breaking and entering"?
In civil matters, the suburb of Lakewood had decided to open a dog park, "a fenced-in area where owners may bring their unleashed dogs." This resulted in "loud barking, foul odors, and biting," at least to the four citizens of the suburb of Rocky River who were located a mere four hundred feet from the park. They, and Rocky River, sought an injunction against the park. The trial court dismissed it on grounds of sovereign immunity, but bad news for Rover: the 8th reverses, joining with the courts which have held that the sovereign immunity statute applies only to suits seeking money damages, not equitable relief.
Also notable was Great Lakes Capital Partners v. Plain Dealer, a defamation suit based upon the paper's articles tying the plaintiff company in with the mismanagement of the Ohio Workers Compensation fund. The court finds that the trial judge was correct in concluding that Great Lakes was a "limited purpose public figure," and that pretty much seals the deal, because then Great Lakes has to prove that the Plain Dealer knew it was lying, rather than that it was simply wrong. An extended discussion of the intersection of libel and the First Amendment ensues, all demonstrating the wisdom of the admonition never to get into a pissing contest with someone who buys ink by the barrel.