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


Case Update

The wheels of justice can grind exceedingly slow.  Or not.  Back on February 18, the Ohio Supreme Court heard oral argument in Kiminski v. Metal Wire Products, involving the constitutionality of RC 2745.01, Ohio's new employer intentional tort statute.  No decision has yet been forthcoming.

On Tuesday, the court heard oral argument in State v. Roberts.  Roberts had been sentenced to five years in prison for a drug offense, but the Department of Corrections and Rehabilitation decided she was a good candidate for the intensive program prison.  As required under the law, it faxed a notice to the sentencing court of its recommendation.  If the court didn't respond within ten days, the law allows DRC to proceed with the placement, and that's what happened; Roberts was placed into the program, successfully completed it, and was released.

Meanwhile, Roberts' appeal of her conviction resulted in the court of appeals ordering a resentencing because two convictions should have been merged.  Roberts had been released by that time, but the trial court held that it hadn't properly been given notice of Roberts entry into the IPP -- apparently, because the fax never got to the judge -- and sent Roberts back to prison on the same five-year sentence, with credit for time served.

All that was rehashed on Tuesday, with the high point being Justice Cupp's managing to keep a straight face when he suggested to the prosecutor that Roberts really hadn't suffered any harm here, and the prosecutor's keeping a straight face when he agreed.  A mere two days later, the court unanimously reversed Roberts' sentence and ordered her immediate release, concluding that the state failed to show that the sentencing court never received notice.

Down in DC, the Court's gearing up for the argument Monday on the juvenile life-without parole cases, and I'll have more on that later this week.  On to the courts of appeals...

Criminal.  2nd District holds that a plastic baggie containing crack cocaine is a "criminal tool," defendant can be convicted of that as well as drug possession... 1st District reverses conviction for robbery with BB gun, holds that there was insufficient evidence that this particular BB gun was capable of causing death... Aggravated robbery and aggravated burglary are not allied offenses, says 6th District... Journal entry saying defendant is subject to post-release control of "up to five years" results in a void sentence where full five years is mandatory, says 9th District... Defendant charged with tampering with evidence for disposing of gun, which he confesses he did; 2nd District finds this insufficient, confession only evidence, inadmissible under corpus delicti rule... 8th District says that home electronic monitoring is "detention" within meaning of escape statute... 9th District says that criminal rules do not require State to respond in writing to motion to suppress, State could argue defendant's lack of standing without giving notice in writing...

Civil.  6th District rejects argument that physician has fiduciary duty to apply for and get medical insurance benefits for his patient, also rejects same claim under promissory estoppel theory... 8th District reverses denial of grant of class action certification in case against car dealership for changing financing terms after vehicles were delivered; good explanation of class action requirements... 9th District says that finding that plaintiff had "ill-will" toward defendant in maintaining suit not sufficient for finding of harassment for award of sanctions for frivolous conduct... "Scheduling oversight" not sufficient excuse to warrant relief from judgment dismissing case without prejudice for missing second case management conference, 8th District holds; counsel had also failed to show up for the first one...

Dumb argument of the week.  In defending a client accused of a 5th-offense DUI, his lawyer said at sentencing that his client "has learned that although people might want to think that DUI is a victimless offense, he and his family have become victims because of his behavior." 

Who the hell thinks of DUI as a "victimless offense"?  In State v. Melson, the court concludes that "this remark may have suggested to the judge a lack of appreciation by Melson of the dangerousness to the public of the offense," and affirms a maximum 30-month sentence.

Boys will be [expletive deleted] boys.  In Lombardo v. Mahoney, the 8th District holds that the voicemail message, "you cock sucking, mother fucker, you fucking asshole you, I'm going to fuck you up. You, Joe, mother fucker," while "vulgar," did not "rise to the level of outrageous conduct required to establish a claim of intentional infliction of emotional distress."  Problematic for the plaintiff was his acknowledgment that he was "hardened to a certain amount of rough language." 

When asked during his deposition if he had ever said "you cock sucking, mother fucker," Lombardo replied "[y]es." He explained that he used it "with the guys trying to be macho."

That must have been one hilarious deposition.  Interestingly, all three judges on the appellate panel were women, as was the trial judge who granted summary judgment to the defendant on the claim.


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