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What's Up in the 8th - Back to the future

Oh, happy day, at least for some of you Cuyahoga County denizens who've gotten mail notifying you that one of the city's traffic cameras have caught you doing 40 in a 35 mph zone, a sin which can be expiated by mailing off a check for 120 bucks.  Turns out that when the city crafted the statute enabling the use of the cameras, they didn't write a definition of "owner" which included people driving leased or rented vehicles.  A crafty lawyer -- but I repeat myself -- over at Dickson & Campbell caught the mistake, and last week the 8th District tossed his two tickets, leaving the city open to a class action lawsuit over the loot it's already garnered from previous lessees.

That decision capped an unusual week which saw almost as many civil as criminal decisions handed down.  The traffic camera case was the most interesting of the former lot, second place going to Woodworth v. Dept. of Job & Family Serv., which stands for the unremarkable proposition that if you're absent from your job 20% of the time over six months, it's hard to argue that doesn't give your employer justifiable cause to fire you.

Over on the criminal side, Laszlo Kiss wanted to hop inside the Wayback Machine and land in 1960, so he could vacate the plea he'd entered back then, because he's run  into problems applying for citizenship.  The trial judge figured it was a bit late to unring that bell, given the coming and going of no fewer than nine presidential administrations in the interim, but the 8th reverses, holding that the trial court erred in finding that the motion was untimely as a matter of law, and should instead have held the hearing that Kiss requested.  The court hangs its hat on State v. Francis, in which the Supreme Court reversed the 8th's holding that the motion in that case was untimely, given the "strong policy expressed within RC 2943.031(D)," the statute requiring warnings of plea consequences for non-citizens.  In Francis, though, the plea had been entered nine years before, not forty-eight, and whatever strong policy the statute expresses, the legislature didn't get around to expressing it until nearly three decades after Kiss' plea.  I'm sympathetic to the defendant's claim here, but if almost half a century isn't an "unreasonable delay" as a matter of law, it's hard to see what would be.

State v. Williams poses this question:  If you steal 29 copies of the same video game from the same store over six days, each worth $50, does that make you a six-time misdemeanant or a one-time felon, or just a goof who's obsessed with video games?  Last week the 8th had a case on RC 2913.61(C)(1), which requires that serial theft offenses be combined into one where they arise from the offender's same employment, capacity, or relationship to another."  That involved an employee who ripped off an accounting firm by writing checks to herself, so the "relationship" part wasn't tricky.  This week, in Williams, the court holds that the relationship test is also met "because Williams committed a series of theft offenses against the same store with the same scheme or plan."  The case might have had a more ironic twist if, instead of devoting his efforts to stealing NCAA 08 Football, Williams had swiped copies of Grand Theft Auto. 

Last, in the category of it's not what you say, it's when you say it, we have State v. WilsonWilson pled guilty to drug trafficking, with the judge telling him at the plea that Wilson would be placed on probation, despite Wilson's having been convicted of drug trafficking half a dozen times previously.  After Wilson pled, the judge attempted to go right to sentencing.  When it was pointed out that the judge couldn't place Wilson on probation without getting a pre-sentencing report, the judge continued the sentencing, but not without warning Wilson that he'd get the maximum if he committed another drug offense.

Which he promptly did -- quelle surprise -- and so the judge gave him the max, as promised.  The problem, the 8th points out, is that the judge gave him the warning about what would happen if he picked up another case after he'd already accepted the plea:  the judge should have either warned Wilson during the plea hearing of the consequences of picking up a new case, or offered to let him vacate his plea at the sentencing.

The court also had a couple of interesting decisions on post-arrest silence, and we'll talk about those tomorrow.

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