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What's Up in the 8th

Bad week for criminal defendants, a much better one for civil plaintiffs; in twelve criminal cases, the meager results are the vacation of a plea and a reversal because the judge failed to merge certain offenses.

State v. Davis involves the former question, and a search issue as well.  During a frisk, which resulted in the discovery of drugs, the officer testifies he feels two objects in the defendant's pants pocket, one of which was "squishy or crunchy" and the other "hard and bumpy," and the court concludes this satisfies the "plain feel" exception.

God, I feel like I'm writing gay porn, not a legal blog.   Anyway, the case gets reversed because of problems with the plea.  First, the judge failed to tell Davis that violating post-release controls could result in him having to serve an additional half of his sentence.  This is actually wrong; the cases (and the statute) hold that failure to advise a defendant of this at sentencing requires a do-over, but not at the plea.  The second reason is that the judge never "personally addressed" the defendant, at least as far as the appeals court can determine:  the transcript shows that defendant never said a word during the plea.

A couple of cases on disproportionate sentencing.  In State v. Rabel, the defendant, a teacher, pled to 10 counts of sexual battery involving a student, was sentenced to two years, and got judicial release after eight months.  Not good enough; he points to the case of Christina Scarlett, which I discussed in my usually snarky fashion back here, who also was convicted of sexual battery with a student and was given probation.  The court rejects that, stating that proportionality analysis does not involve determining whether the trial court "imposed a sentence that is in lockstep with others, but whether the sentence is so unusual as to be outside the mainstream of local judicial practice."  In State v. McCoy, the court rejects the claim that a trial judge must make a determination that a sentence is consistent with that of other similarly-situated offenders; instead, the judge need only consider statutory factors.

The only other "win" for defendants comes in State v. Seljan, which actually comes before the court a second time.  In the first, the court held that McCoy's various drug-related charges didn't merge, but after State v. Cabrales the Supreme Court peremptorily reversed and ordered reconsideration in light of that decision.  The court does agree, as Cabrales holds, that charges of preparation for sale of drugs and possession of those same drugs merge, but decides that drug manufacturing and drug assembly charges don't.  The opinion is pretty skimpy on the facts, but that doesn't matter, because the court pretty much ignores the facts and goes with the abstract comparison of the elements, concluding that one can engage in drug manufacture without engaging in drug assembly, and vice versa.

On the civil side, Groening v. Pitney Bowes is an important case on the medical privilege in personal injury cases.  In fact, there were two other cases on the same issue this past week, one out of the 1st District and one out of the 11th, and I'll discuss all three tomorrow.

If you run into Roger Sutliff at a cocktail party, ask him to tell the story of how he was walking across a parking lot at the Cleveland Clinic one day when he was struck in the head by a broken wood parking gate that had become airborne.  In Sutliff v. Cleveland Clinic, the court reverses the grant of summary judgment to the Clinic.  The gate had a metal sign attached to it, and the plaintiffs' expert testified this made the gate more likely to break off and become airborne, while other witnesses testified that it was not unusual to see broken gates lying around the parking lot.  That was enough to get past the claim that the Clinic lacked notice of the problem.  The Act of God defense -- in this case, what the Clinic contended was an unusually strong windstorm -- gets rejected, too, since that defense isn't available if the defendant did something to help God out, in this case, by putting the metal plate on the gate.  And the defense shouldn't apply in Cleveland anyway; I can readily attest that there is no weather event here which could  be described as "extraordinary."

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