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What's Up in the 8th

No search cases, the court addresses the Castle Doctrine, which we'll discuss tomorrow; the rest is relatively ho-hum.  We'll take a look anyway, 'cause that's why you pay me the big bucks.

I read somewhere that, since the passage of the Anti-Terrorism and Effective Death Penalty Act in 1996, the rate of success in Federal habeas corpus cases is less than 1%.  Petitions for post-conviction relief under Ohio's statutes can't be any higher, as Bruce Johns can attest.  He was sentenced to community control sanctions back in 2006, with the judge warning him "[the crime] is an F-3 and it's five years to LCI and I will send you to LCI" if he violated.  Wouldn't you know it, Johns did, and the judge shipped him for four years.  He filed a PCR petition, claiming that the judge had violated State v. Brooks, which holds that a defendant must be advised at the sentencing hearing of the exact penalty he faces for violation of community control.  One of the requirements for PCR is that the petition has to be filed within 180 days after the time for appeal has run.  In State v. Johns, the court holds that for a variety of reasons, some questionable, Johns should have filed his petition within 180 days after the court's original sentencing in 2006, rather than from December, 2008, when the sentence was actually imposed, although Brooks says the appeal date is from the latter.  But there's also the little matter than Johns' situation doesn't seem to fall within the PCR statute, which is limited to claims of constitutional violations. 

If the success rate on PCR petitions is low, it's non-existent anymore on sentencing issues, as State v. El-Berri demonstrates.  El-Berri was sentenced to seven years for rape in January of 2007, but came back for resentencing because of a merger problem in October of 2008.  The judge gave him the same seven years, and El-Berri argues on appeal that his lawyer was ineffective for failing to raise several issues that could have resulted in a lower sentence, such as El-Berri's good conduct in prison and the fact that the victim didn't want him to serve any more time.  The court goes through the Khalish test and determines that the sentence isn't contrary to law and that it wasn't an abuse of discretion.  Well, that's true, but the question is whether counsel should have argued the other factors.  The court finds that based on the Khalish factors, "El-Berri cannot prove that he would have obtained a lighter sentence had his counsel raised the issues of victim impact and sentence proportionality."  This probably isn't a good analysis; it's basiscally saying that as long as the sentence is legal, counsel can't be ineffective for not arguing that it should be less.  Not a good analysis, but a correct one:  the fact of the matter is that it's impossible, under the current state of Ohio's sentencing law, to imagine what an attorney could argue which would lead an appellate court to say, "Yeah, the judge gave this guy too much time."

In State v. Smith, the court reminds trial judges to take competency matters seriously.  The court had ordered a referral for competency and sanity, but nothing was ever done on it, and Smith later pled guilty.  The interesting thing of note was that Smith's lawyer did not raise the issue after initially requesting the competency evaluation, but the court holds this doesn't constitute a waiver of the issue or stipulation to competency. 

The issue of "carbon-copy" indictments in child rape cases arises yet again in State v. Wilson.   Basically, a carbon-copy indictment occurs when the defendant is charged with multiple counts, with the date of each one listed as, say, "December 1, 2006 - January 1, 2007."  The short version of the law is that a defendant cannot be convicted of twenty counts of rape if the victim merely describes one incident and then says it happened about twenty times in the course of a year.  On the other hand, if the individual crimes can be distinguished by a bill of particulars or the evidence at trial, the defendant can be convicted of each.

The majority claims that's what happened in Wilson, and to an extent they're right:  the victim testified as to four specific, individual incidents.  But Judge McMonagle makes a compelling argument in dissent.  She points out that the case law prohibiting carbon-copy indictments stems from two concerns.  The first is the double jeopardy one, which arose in State v. Ogle I'd discussed Ogle here; what happened is that Ogle faced a carbon-copy indictment, was convicted of some counts, acquitted of others, and the jury hung on several more.  The convictions were reversed for trial error, but instead of remanding the case, the appeals court vacated the convictions and discharged Ogle:  since the counts were undifferentiated, retrying him would subject him to the possibility of being convicted in a second trial of a count on which he'd been acquitted of in the first trial.

As McMonagle notes, though, while the differentiation of evidence at trial might solve the double jeopardy problem, there's still the due process right of a defendant to adequate notice of the charges.  Here, the state had refused to file a bill of particulars differentiating which count applied to which conduct, and the jury was similarly confused:  one of the questions it asked soon into deliberations was whether the counts were "in chronological order" with the evidence about them.

Finally, there's State v. Scott.  Scott got out of prison in September of 2008, and four days later gave birth to a baby fathered by William Johnson, with whom she'd had two other children.   Johnson wasn't the "stand-by-your-woman" kind of guy; even in the relatively short duration of Scott's imprisonment (you do the math), he'd taken up with another woman.  Suitably enraged by his betrayal, Scott went over to Johnson's place and beat on the door of his apartment until it came off the hinges, then lunged at Johnson and tried to scratch his neck.  He held her down until the police get there, and last week the Court affirmed her resultant burglary conviction against a weight/sufficiency challenge.  The only noteworth aspect of the case is that I don't think anyone can get more than three paragraphs into the opinion without saying, "Didn't I see something like this on Cops?"

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