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What's Up in the 8th

With Labor Day approaching, the 8th's judges have just enough time to toss a palrty nine decisions into the hopper before heading out of town.  Good work all around, though, and of particular interest are some dissenting and concurring opinions.

One of the latter is contained in State v. Sarkozy.  Name sound familiar?  Yep, he's baaaack.  In 2005, Sarkozy pled guilty to attempted murder, aggravated robbery, and kidnapping.  The Supreme Court ultimately vacated the plea because the trial judge hadn't told Sarkozy about post-release controls.  (Decision here, discussion here.)  So the case goes back, and Sarkozy winds up entering the same plea.  He appeals again, arguing first that the trial judge didn't comply with Rule 11(C)(2) because it told him he had a right not to testify, it didn't tell him he had a right to testify.  That argument's been rejected, oh, about 147 times.  Make that 148.

He also argued that the kidnapping count should have merged with the robbery, but the court rejected that, too, finding that Sarkozy's dragging the victim around the house and stabbing her provided a separate animus to the robbery.  The more interesting issue on that was raised by the concurrence by Judge Cooney:  the allied offense analysis doesn't apply to a negotiated plea.

Some of the cases Cooney cites in support of this are distinguishable.  In State v. Geddes, for example, the defendant pled guilty to six counts of child pornography, based on downloading six different pictures; the court correctly held that each picture constituted a separate offense.  But she raises an interesting point, which hasn't gotten as much attention as it perhaps should:  if the defendant makes a deal on which charges he's going to plead to, why should he get the further benefit of having the judge toss some of those charges out as allied offenses? 

Another controversy rages in State v. Eatmon, where the defendant, sentenced to consecutive terms for drug offenses, argues that the January US Supreme Court decision in Oregon v. Ice implicitly overruled State v. Foster and reinstates the legislative scheme which required judges to make certain findings before imposing consecutive sentences.  (See discussion here.)  The majority rejects Eatmon's contention, as has every other Ohio court to consider the issue, saying that until the Ohio Supreme Court overrules Foster, that's the law.  Judge Dyke dissents from that, arguing that the court is duty-bound to apply Ice.  Dyke also dissented on the same grounds in another case last week, State v. King

Does Dyke have a valid point?  The only real argument contra is that Ice considered only Oregon's legislative scheme for imposing consecutive sentences; until it passes on Ohio's, Foster is still good law.   That argument's problematic for two reasons.  First, the Oregon statute upheld in Ice is functionally indistinguishable from the Ohio statute struck down in Foster.  What's more, as Dyke points out,

the U.S. Supreme Court specifically cited the Foster case when it stated "State high courts have divided over whether the rule of Apprendi governs consecutive sentencing decisions. We granted review to resolve the question.  (Emphasis in original.)

Here's an even better question:  if the Ohio Supreme Court got a do-over on the issue of whether consecutive sentencing runs afoul of Apprendi/Blakeley, is there any way they'd come to the same decision they did in Foster, in light of Ice? 

That dustup aside, the court had no problem achieving unanimity in its other rulings.  State v. Pettway contains a lengthy, and good, analysis of the question of whether statements made by the victim's girlfriend immediately after the shooting qualified as testimonial under Crawford:  were they made for the purpose of "establishing past events potentially relevant to later prosecution," or "to enable police assistance to meet an ongoing emergency"?  The court comes down on the side of the latter, and then correctly proceeds to the question of whether they were also excited utterances.  Ditto on that.  The opinion's a long one, 21 pages, but Pettway will have 18 years to life to read it.

The defendant in State v. Bridges fares better.  After a bar shooting in which one woman was killed and four other people were wounded, Bridges was charged with a variety of counts of murder, attempted murder, and felonious assault, plus one of weapons under disability.  Bridges opted to try the latter case to the bench, so as not to let the jury in on his prior convictions.  It worked.  After presenting 30 witnesses and 119 exhibits, the trio of prosecutors had to sit there and listen to the jury foreman intone "not guilty" seven times.  But the judge didn't follow suit:  she found Bridges guilty of the weapons charge, and the 8th affirms it, noting that the inconsistency between the jury's findings and the judge's is not a basis for reversing the latter's verdict.

Finally, we have Strongsville v. Starek, in which a chiropractor installed a two-way mirror in his office, which earned him a misdemeanor conviction for voyeurism.  He pled no contest, and the judge gave him 90 days in jail, a $300 fine, and five years of probation, a condition of which was that the defendant couldn't work as a chiroporactor for the entire period.  The court notes that a state chiropractic board governs licensing of chiropractors in Ohio, and finds itself "troubled by the apparent usurpration" of the board's powers.  Nonetheless, it upholds the sentence here, finding that the trial judge didn't suspend Starek's license as a chiropractor, it... well, it prohibited him from working as one.  That seems to be a distinction without a difference, but to the court's credit, it does its homework, citing a few cases where a similar employment-related prohibition has been upheld.  Then again, had Starek been a lawyer convicted of stealing a couple hundred bucks from a client, and had the trial judge imposed as a condition of probation that he not practice law for five years, we know how that would have come out, don't we?

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