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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

Reaction to the decision in Citizens United allowing corporate campaign financing still dominates news about the US Supreme Court; a recent poll showed 80% of the public opposed to the decision.  Interestingly, the opposition crosses party lines (85% of Democrats and 76% of Republicans disapprove), perhaps complicating Republican congressional leaders' vow to oppose any legislation limiting its impact. 

The Court gets back into action this week with oral argument in six cases.  The most notable one is Holder v. Humanitarian Law Project, which tests the constitutionality of the law prohibiting "material support" to designated terrorist groups, but the one closest to our hearts is Astrue v. Ratliff, which poses the question, When attorney fees are awarded in a court case, do they belong to the attorney or the client?  Ratliff had successfully represented a client in her claim for Social Security benefits, and the district court, pursuant to statute, awarded her $2,112.60 in attorney fees.  The government claimed her client owed it money for something, and took the fees.  The 8th Circuit ruled in Ratliff's favor, but there's a split in the Circuits that the Court will have to sort out.

Down in Columbus, the court was too busy setting execution dates or staying them to do much of anything else, even smacking down some miscreant attorney or other, although it did order one released from jail after he'd served five days.  Moral:  if the Supreme Court tells you to appear, you'd better appear. 

On to the courts of appeals...

Criminal.  2nd District says that court can't even give a suspended jail sentence in misdemeanor case without a valid waiver of counsel; problem complicated by fact that defendant didn't have counsel at revocation hearing, either... Fact that police tested only sample of drugs doesn't mean State can't prove quantity of drugs possessed, 8th District rules... Where defendant's appeal is based solely on his length of sentence, completion of sentence renders appeal moot, 2nd District concludes...   Summaries of witness' statements in police reports not discoverable and not subject to inspection for inconsistencies after witness testifies, says 6th District... Minor misdemeanor possession of marijuana can serve as basis for weapons under disability offense, 1st District holds; case on that issue is pending before Supreme Court... Because court costs are mandatory, court can impose them in journal entry of sentencing even if it doesn't mention them at sentencing hearing, says 12th District; that issue is also pending before Supreme Court... Where court fails to include restitution order in journal entry of sentencing, can issue a nunc pro tunc order doing that, but can't change amount of restitution ordered, says 2nd District...

Civil.  Informed consent doctrine does not require doctor to advise patient of risks of not submitting to an alternative treatment that doctor is not recommending... Parking bumper was open and obvious condition, regardless of whether it violated regulations under the Americans with Disabilities Act, says 9th District... 11th District reverses custody order, holds that magistrate couldn't rely on guardian ad litem's report if GAL did not appear at hearing and parties thus did not have opportunity to cross-examine GAL about report... Where joint membership in country club must be retained by only one spouse after divorce, other spouse must be compensated for value of membership, says 6th District in what it claims is only case on issue, and if you think I'm going to check to see if they're right, you're out of your mind...

Interesting sentencing decision out of the 4th District.  In State v. Davis, the defendant had been convicted of domestic violence, and the judge gave him a more severe sentence because it found that, under RC 2929.12(B)(6), "his conduct was more serious than conduct normally constituting domestic violence because his relationship with the victim facilitated the offense."  The appellate court notes that while a judge doesn't have to make findings or state reasons for imposing more than a minimum sentence, if he chooses to do so they have to be supported by the record.  Here, the "relationship with the victim" is part of the offense; "a trial court may not elevate the seriousness of an offense by pointing to a fact that is also an element of the offense itself."  The court vacates the sentence and remands the case for resentencing. 

Repeat after me:  there are no bad kids.  In In re MC, the 6th District affirms a juvenile delinquency adjudication, but reverses for failure to hold a hearing on restitution.  Here's the line that jumps out and grabs you:  "Appellant, who was 15 years old at the time of the adjudication in this case, had been adjudicated delinquent 27 previous times."


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