Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »

×

Case Update - Supreme Court Edition

Two weeks ago, I was whining about the lack of decisions from Columbus; now, I'm whining because there's so many.  Make up my mind, why don't I.

The big decision out of Columbus was State v. Hunter, which concerned the viability of the repeat violent offender specification after State v. Foster.  Under the law at the time of Foster, if the defendant had previously been convicted of certain crimes involving physical harm, he was a repeat violent offender.  In addition to imposing the maximum sentence for the crime, the trial judge could impose an additional one to ten years if she made certain findings, such as that failure to do so would be inadequate or would demean the seriousness of the crime.  In Foster, the court held that requiring those judicial findings violated Blakeley, and severed them.  A question arose as to whether that meant that the add-on sentence was excised, or just the requirement that the trial court make findings before imposing it.  The court unanimously resolves that question, in the way you'd expect:  the findings are gone, but the add-on sentence is not.

Several other criminal cases of note.  In State v. Lester, the court holds that in aggravated robbery under RC 2911.01(A)(1), the element of "brandishing, display, use, or indicating possession of a deadly weapon" imposes strict liability, rather than recklessness.  Worth a read is Justice Lanzinger's evisceration of the Colon cases and the havoc they've raised.  The court obviously believed that its reconsideration of Colon I, and the substantial limitations placed on that decision in Colon II, would solve the problems created by the former, and I thought so, too.  (See discussion here.)  We were both wrong. 

In Youngstown v. Traylor, the court upholds the constitutionality of the city ordinance imposing criminal liability for failing to restrain a vicious dog.  While Justice Pfeifer's labeling the decision "morally repugnant" is a bit over the top, there's some merit to it.  The statute defines a "vicious dog" as one who bits another animal or human being; as Pfeifer notes,

Traylor’s dog was not “vicious” until the moment it bit a human, at which point it was too late for Traylor to restrain his dog. [The ordinance] imposes obligations on dog owners that they do not know they need to comply with until they have no opportunity to comply.

A couple of civil decisions of note.  In Schelling v. Community Hospital, the court holds that a claim that a hospital was negligent in credentialing a doctor can proceed without a prior finding that the doctor was negligent, although the plaintiff must still of course prove the doctor's malpractice.  In Allen v. totes/Isotoner, the court accepted jurisdiction to determine whether "alleged discrimination due to lactation is included within the scope of Ohio’s employment-discrimination statute," and winds up not doing so; Allen had taken breaks without her employer's knowledge in order to use a breast pump, and the employer's termination of her for violating orders constituted a valid, non-discriminatory reason for granting summary judgment.  O'Connor and Pfeifer would have reached the issue, although they would have decided it differently, the former upholding summary judgment, the latter reversing it.

On to the courts of appeals...

Civil.  6th District affirms disqualification of plaintiff's counsel in malicious prosecution action, where counsel was witness in how case was dismissed... Where default judgment granted after ordinary mail service is perfected under rules, defendant's claim that she never received notice requires a hearing, says 2nd District...

Criminal.  Proof that defendant fired gun, and fact that gun wasn't found, not sufficient to show tampering with evidence on theory that defendant must have disposed of gun, 6th District rules... 2nd District tosses out seizure of defendant's marijuana plants based on observations from police helicopter flying 100 feet above property on basis that flight violated FAA regulations... 8th District says that defendant's walking into diner, reaching over counter to steal employees purse while her back was turned, constituted burglary:  defendant didn't have permission to enter that area, and used stealth to do so... 9th District reverses denial of judicial release on basis that State breached plea bargain in not supporting it... 1st District holds that failure to impose mandatory fine in drug case renders sentence void... 11th District says that "furtive movements" alone do not provide reasonable suspicion for a frisk, reverses denial of motion to suppress...

Stop!  Thief!  Plaintiff injured in car accident at 5:50 AM.  Other vehicle abandoned; nobody sees who driver was.  Owner of other vehicle claims that car was stolen when she left keys in ignition to run into her house "for a few minutes"; says car was stolen at 5:00 AM, reports it at 8:40 AM.  In Bugaj v. Nationwide, 6th District affirms summary judgment on basis that prior Supreme Court cases hold that motorist isn't liable for leaving keys in car, because theft of car is superseding event.

Am I missing something, or does the above time frame create a genuine dispute of fact as to whether the defendant's car was really stolen?

No kidding.  In Jones v. Rose, a pro se appeal from a motion to modify a civil protective order, which had included defendant's warning that everyone involved with this case was "subjectted to be tried and convicted for treason against the united states of america," the appellate court states, "at the outset, we note that appellant's precise argument is difficult to discern."

Search

Recent Entries

  • May 25, 2017
    "Clarifying" post-release controls
    A look at the Supreme Court's decision in State v. Grimes
  • May 23, 2017
    What's Up in the 8th
    Allied offenses, and two search cases
  • May 23, 2017
    What's Up in the 8th
    Allied offenses, and two search cases
  • May 22, 2017
    Case Update
    Is SCOTUS looking for a forfeiture case? Plus, appellate decisions on expungement and restitution, plain error, and what a judge has to tell a defendant about sex registration
  • May 19, 2017
    What's Up in the 8th - Part II
    Decisions on lineups and prior calculation and design, and two out of eight (eight!) pro se defendants come up winners,
  • May 17, 2017
    What's Up in the 8th - Part I
    Taking a first look at some of the 8th District's decisions over the past two weeks
  • May 16, 2017
    Case Update
    Stock tips, Federal sentencing reform goes dormant, schoolbag searches, and the retroactivity of State v. Hand
  • May 8, 2017
    Case Update
    Death in Arkansas, a worrisome disciplinary decision, and appellate cases on speedy trial, arson registration, use of prior testimony, and the futility of post-conviction relief
  • May 2, 2017
    What's Up in the 8th
    Nothing but sex
  • May 1, 2017
    Case Update
    SCOTUS closes out oral argument for the Term, the Ohio Supreme Court has seven of them this week, and we report on a decision where you'll probably want to play Paul Simon's "Still Crazy After All These Years" in the background while you read about it