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Case Update - Tanned, Rested and Ready Edition

Overheard in Phoenix, native resident to tourist:  "Do you have cactus in Michigan?"  Yeah, they used to, but the palm trees crowded them out.

SCOTUS decided to honor my vacation by not handing down any decisions; the talk down by the Potomac centered around the Court's nifty new web site, and the possibility of Justice Stevens' retirement.  On April 20, on the day the Court hears oral argument in a case involving the power of Federal judges to order restitution, Stevens will turn 90, the second-oldest judge to ever serve on the Court.  (Oliver Wendell Holmes retired when he was 90 years and 10 months old.)

The Ohio Supreme Court wasn't as forebearing.  The Adam Walsh Act, Ohio's latest sex offender law, requires notification to the public about a sex offender's registration and address, but permits a court to suspend the notification requirement if it determines that notification wouldn't have been required under former law.  In State v. McConville, the State argued that this only applied to offenders classified under former law, but the court found that the clear wording of the statute meant that it applied to anyone classified under the new law as well.

State v. Joseph involved a seemingly simple issue, but had an interesting subtext.  The judge made no mention of court costs at Joseph's sentencing, but imposed them in the journal entry.  The court has previously held that costs may be waived for an indigent defendant, but that a defendant forfeits the right to raise the argument if he doesn't object at sentencing.  Here, of course, Joseph had no opportunity to object, and the court agrees -- somewhat.  Joseph had argued that the failure to properly impose court costs rendered the judgment void, analogizing it to the failure to properly impose post-release controls, but the court rejects that argument, holding that a remand is necessary only to allow Joseph to argue that court costs should be waived.  This prompts an opinion from Justice Lanzinger concurring only in the judgment, criticizing once again "this court's misbegotten line of cases" regarding the distinction between void and voidable sentences.  Lanzinger has argued over the years that all sentencing errors, including those involving PRC, should be treated as voidable, correctable only on direct appeal.  She's managed to persuade Justice Lundberg Stratton, and this time picks up yet another vote for that view.  Alas, it's the vote of visiting Judge Dickinson, so change in the court's jurisprudence in this area doesn't seem to be in the offing.

We've got two weeks of appellate opinions to wade through, so let's get to that...

Criminal.  1st District says that "other acts" evidence that defendant had previously assaulted victim admissible in aggravated menacing case to show that victim's fear of defendant was reasonable... Failure to ask instruction on lesser included offense almost always a matter of trial strategy, thus not ineffective assistance of counsel, says 9th District... Defendant pleads to OVI, later discovers that police knew breathalyzer didn't produce valid result but didn't provide that info to him; 5th District holds that doesn't entitle him to have plea vacated, since he didn't request discovery or ask to suppress test results... Failure to include mens rea in indictment could be cured by amendment during trial, says 1st District; 2nd District ruled to the contrary, case is pending before Supreme Court... 3rd District vacates conviction, finds that evidence was insufficient to establish venue... 1st District says that two counts of weapons under disability -- one for prior conviction of offense of violence and one for prior drug-abuse conviction -- were not allied offenses... 11th District affirms child sex abuse conviction, rejects claim that State's "expert" violated Boston's prohibition against vouching for credibility of victim; but see great dissent, noting that this particular expert's testimony has been basis for reversal in numerous 8th District decisions... 7th District says that 180-day time for filing post-conviction relief petition runs from date timely appeal would have been filed, not from date of delayed appeal... 1st District holds that trial court erred in rejecting defendant's motion for new trial based on recantation of only eyewitness...

Civil.  9th District affirms denial of summary judgment, says that whether city entitled to sovereign immunity for accident involving ambulance/car collision raised genuine dispute of facts... Patron asks to use store's restroom, is told by clerk it's at the back of store, she goes there, opens door, searches for light switch, turns out it's stairway to basement, she falls down it; 2nd District says trial court erred in granting summary judgment, genuine issue of whether patron used ordinary care... Raising affirmative defense of statute of limitations in answer sufficient to preserve claim that plaintiff did not refile complaint within period allowed by savings statute, says 7th District... Oral settlement agreement between counsel is binding even though parties did not complete and sign written release agreement, 2nd District says... 6th District says that denial of motion for summary judgment is not a final appealable order, even if it includes 54(B) language, because it doesn't determine outcome of case...

And I thought I've made some goofy arguments.  In Smith-Evans v. Lavelle, the plaintiff-appellant argued that she'd lost at summary judgment below because the defendants never mailed her a copy of their motion.  Turns out (a) she'd moved and never told opposing counsel of her new address; (b) the defendants' motion got to her anyway a week after they'd filed it, and (c) she'd filed a brief in opposition to the motion.  We'll let the court take it from there:

At oral argument, appellant's counsel attempted to reconcile the argument advanced by appellant on appeal, i.e., that she did not have notice that appellees filed a motion for summary judgment, with appellant's untimely filed memorandum contra, by representing to this court that appellant had "sensed that something needed to be filed" and it "just so happened that she labeled [her memorandum contra] properly." While we pass no judgment on whether appellant has the power of extrasensory perception, we find that counsel's representations to this court are wholly without merit.

It probably will not surprise you that the court ordered an award of expenses for filing a frivolous appeal.


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