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Case Update

The Ohio Seven issues a trio of significant cases, two on allied offenses.  State v. Underwood involves the additional issue of a defendant's right to appeal a sentence.  Underwood had pled no contest to four counts of theft with an agreed sentence of two years, but argued on appeal that the two counts should have merged.  RC 2953.08 prohibits a defendant from appealing an agreed sentence that is "authorized by law," and the court concludes that failure to merge the allied offenses means the resulting sentence wasn't authorized by law.  The result should clarify one issue.  A number of courts have held that a defendant waives his right to challenge failure to merge allied offenses by failing to object at sentencing.  The Underwood court specifically notes that failure to merge is plain error.

State v. Whitfield purports to answer a simple question, but does so in a way that might open up whole new problem.  When a defendant is convicted of allied offenses, who gets to decide which offenses are merged?  The State, the court answers, also holding that the determination of the defendant's guilt remains intact after the merger.  Precisely what a "determination of guilt" means in this context is unclear, as is its effect.  It's not a conviction, because the court notes elsewhere that a conviction includes both a finding of guilt and a sentence; if the defendant is not sentenced, there's no conviction.  This also emphasizes Justice Lanzinger's previous point that the court's jurisprudence on post-release controls -- that failure to properly impose PRC results in a void sentence -- means there's no conviction, either.  And since PRC can't be imposed after a defendant finishes his prison term, does this mean that such a defendant was never "convicted" of the crime?  Imagine that in the context of a weapons under disability offense.

One civil case of note:  in Beckett v. Warren, the court holds that a plaintiff in a dog-bite case can pursue both a common-law and statutory action; the former requires proof of the owner's knowledge of the dog's vicious propensities, while the latter is strict liability, but does not allow punitive damages.  The majority rejects the lower courts' holding that a plaintiff must elect to pursue one or the other at trial, holding he can pursue both, over Justice O'Donnell's vigorous dissent that the result will cause "chaos and confusion."  O'Donnell can't resist a weak pun, saying that the majority is "throwing these cases to the dogs," leaving us thankful we were spared something like "the majority doesn't give a Shih Tzu that juries will have difficulty separating the two causes of action."

By the way, 0ne thing you will learn if you watch the oral argument in Beckett:  never, ever say to a judge, "If you read my brief..." 

With that admonition, on to the courts of appeals...

Civil.  8th District rejects claim that plaintiff in suit against political subdivision must plead with specificity how subdivision is not entitled to sovereign immunity... 5th District holds that relocation of child is not itself sufficient to show change of circumstances for modification of child custody, but is a factor to be considered... 9th District says that police officer's entering busy intersection against light with sirens off but lights activated does not qualify as "willful and wanton" conduct so as to take case out of emergency under sovereign immunity... 10th District says that trial court didn't err by requiring divorcing plaintiff who'd relocated to Idaho to move back to Franklin county to retain custody of child...

Criminal.  9th District says trial court erred in giving accomplice instruction where accomplice testified for the defendant, but error is harmless... At sentencing, defendant disputes pre-sentence report's allegation that he flunked drug test, 5th District says judge violated RC 2951.03(B) by not making a finding resolving the allegations, remands for resentencing... Well, yeah:  2nd District holds that Miamisburg municipal judge did not have jurisdiction to issue a search warrant for a home in California, police not entitled to rely on good faith doctrine in executing warrant... 4th District says that just because prosecutor offered him a plea bargain which involved a lesser sentence than he got after being convicted after trial doesn't mean he was unconstitutionally punished for going to trial...

Really?  Really?  In State v. Gonzalez, the court rejects an ineffective assistance of counsel claim, determining that it must have been defense counsel's trial strategy to pursue total acquittal on a 4th-degree felony charge of assaulting a police officer, rather than request an instruction on lesser-included offense of disorderly conduct, a minor misdemeanor.

A joke to tell Justice O'Donnell the next time you see him.  Woman takes her dog to the vet, says, "He hasn't moved in 12 hours."  Vet looks him over, says, "I think he's dead."  Woman says, "Is there any way to be sure?"

Doctor says, "Yeah," goes out, brings back a cage with a cat in it.  He lets the cat out of the cage, and the cat goes over, sniffs the dog from head to tail, looks up at the vet, shakes his head, and goes back in the cage.

"Well, Ma'am, I'm sorry to tell you, your dog's definitely dead.  That'll be $330."

"What???  How do you come up with that?"

"Well," says the vet," it's $30 for the office visit, and $300 for the cat scan."

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