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Once more, with feeling: Post-release controls and stare decisis

When is a sentence not a sentence?  How does a court overrule a case without doing so?  Which came first, the chicken or the egg?  The Ohio Supreme Court provided answers to two of these metaphysical conundrums last week; sadly, the chicken/egg one, which has always bedeviled me, was not one of them.  In doing so, the court re-examined two issues which have bedeviled them.

First up was State v. Boswell, which involved, yet again, post-release controls.  At Boswell's plea hearing in 2000, the judge advised him that he may be subject to PRC when he completed his sentence.  Well, that was wrong, because Boswell was pleading to two first-degree felonies, and PRC is mandatory for them.  Boswell finally got around to doing something about that in 2005, when he filed a motion to vacate his plea, which the judge granted. 

In vacating a plea, as in life, timing is everything:  if you file the motion before you're sentenced, it's to be granted "liberally" (although it usually doesn't work out that way in practice), but if you wait until after you're sentenced, you have to show a "manifest injustice" warrants vacating the plea, and good luck with that.  So the state took it up, claiming that Boswell hadn't made that showing.

The court's holding is simple, although the trip there is a little rocky:  where PRC is improperly imposed, and a defendant moves to vacate his sentence, the motion should be considered under the liberal "presentence" standard.  Why?  Because a sentence where PRC isn't properly imposed is void, and if the sentence is void, there is no sentence, and if there is no sentence, a motion to vacate the plea has to be treated as a pre-sentence motion. 

Justices Lanzinger and Lundberg Stratton dissent, with Lanzinger arguing that sentencing errors such as failure to properly impose PRC should have to be corrected on direct appeal, and not subject to being attacked collaterally.  Her position is understandable; as I mentioned a couple years back, she was one of the first to question the court's position that failure to properly impose PRC made the sentence void, instead of merely voidable.  In two years, she's got one other justice to agree with her, so the likelihood of anything changing on that score aren't good. 

The other case decided last week, State v. Silverman, also resulted in a clear holding, but with some deeper undertones.  A four-year-old child had made statements to the authorities about his father sexually abusing him, but before trial, the mother burned down the house, killing the child.  The question raised was simply whether introduction of the child's testimony under Evidence Rule 807, a general exception for statements by a child in a sex abuse case, required a preliminary showing that the child was competent to testify.  The court had previously held that no showing of competency was required to introduce a child's hearsay declarations under the exceptions for excited utterance or statements made for purposes of medical treatment, and concludes that the same rule should apply to Rule 807. 

But this was a road previously traveled; back in 1994, the court had come to the exact opposite conclusioni n State v. Said.  No problem, says the majority in Silverman.  The real issue in Said was whether a court had to record the hearing to determine competency, and the court had held the failure to do so was error.  Instead of stopping there, though, according the Silverman majority, the Said court "sweepingly declared, without any authority, that 'Evid.R. 807 clearly does not dispose of the need to find a child competent.'"

So the court overrules Said, right?  Well, that's where things get funky.  The major impediment to doing that is the court's 2003 decision in Westfield Ins. v. Galatis, in which the court constructed a three-part test to determine when it was appropriate to overrule a prior case.  As Justice Lanzinger (again) pointed out last year (discussed here), the problem is that the Galatis test is so strict it's almost impossible to meet.  In fact, the court hasn't expressly overruled a single precedent since Galatis was handed down.

The Silverman court was thus confronted with several options:  hold that Said meets the Galatis test; pretend that it's not overruling Said, so Galatis doesn't come into play; or if the only thing keeping them from overruling Said is Galatis, then overrule Galatis, too.

It didn't do any of those things, and this is where you need a scorecard to keep the players straight.  The majority (O'Connor, Lundberg Stratton, O'Donnell, and Cupp) hold that Galatis is limited to cases involving substantive law, rather than procedural or evidentiary rules, relying largely on the US Supreme Court's recent analysis of stare decisis in Pearson v. Callahan, discussed here.  (And let's give it up for one of my commenters, who picked up on the possible impact of Pearson when it came down.)  The two dissenters, Lanzinger and Pfeiffer, went even farther; although they argued that Said was correctly decided, they don't believe Galatis should have any application to criminal cases, regardless of whether the issue is substantive or procedural.  That left Chief Justice Moyer as the only one arguing for the continued vitality of Galatis.

So what's it all about, Alfie?  Well, as far as the criminal law is concerned, especially on procedural or evidentiary issues, Galatis is pretty much on life support.  That might or might not be a good thing, but the interesting question is how it could affect the continued vitality of the Rance test for allied offenses; as I mentioned earlier this year, at this point Galatis is arguably the biggest impediment to overruling Rance.

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