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What's Up in the 8th

On New Year's Eve in 2007, Kevin McDermott, a 52-year-old lawyer, went jogging in his Shaker Heights neighborhood.  It almost cost him his life; he was set upon by six teenagers from adjacent Cleveland, who shattered his leg with a pipe and beat and stabbed him.  The case had racial overtones:  McDermott was white, the teenagers black.  The appeals from the convictions of the six finally come to an end, posing an interesting sentencing question.  The planets perfectly align, resulting in the State winning two search cases.  All that and more in this week's study of the 8th District's decisions.

 I've often commented on the desire of courts to bring clarity to 4th Amendment law by devising "bright line" rules for various situations, and the court does that in two cases this week.  In State v. Greathouse, an officer on patrol had run the defendant's license plates.  No reason for it, but no reason required; running a plate easily visible to the public does not violate any privacy interests a person might have.  (I know one policeman who basically spends his entire shift doing that, running as many as 200 plates a day.)  The plates came back as registered to a driver with a temporary permit, which requires a licensed driver to be on board; seeing only one occupant, the police stop the vehicle, approach it, and when the driver rolls down the window, detect a strong odor of marijuana.  That leads to a frisk, which reveals two more bags of the demon weed.  The defense argued that the police couldn't stop the vehicle on the mere assumption that the owner of the vehicle was the driver, but that some additional factor must be present.  The trial court bought into that theory, but the appellate panel did not:  the inference that the owner is the driver is a reasonable one, and that's all it takes.

Simplicity of the message is also the key to State v. Turner, in which the police had obtained a warrant based upon a controlled buy by an informant.  The defendant argues that a single controlled buy cannot serve as sufficient probable cause for the issuance of a warrant.  Well, yes, it can, says the court. 

In fact, the tendency to make simple pronouncements of law extends to other decisions as well, perhaps prompted by some, shall we say, "creative" arguments advanced by appellants.  Such is the case in State v. Callahan, in which the defendant contends that the state must introduce some medical testimony in order to prove the "serious physical harm" element of felonious assault.  To be sure, the victim's claims of continued neck and wrist pain, on a "constant. . . seven or eight out of ten on the pain level" seem exaggerated; constant pain of that degree is something out of Dick Cheney's torture manual.  Still, the defendant's proposition went too far, although it might have received a more sympathetic hearing had the assault included not only beating the victim with a skateboard and a brick, but running over him with a car.   

The latest, and perhaps final, case in the McDermott saga comes in State v. Wilson.  Wilson was the only adult charged in the crime, and the only defendant to take his case to trial.   He was acquitted of the attempted murder charge and the gun specification, but was convicted of aggravated robbery, felonious assault, and kidnapping, for which the judge gave him 10, 8, and 7 years respectively, running the sentences consecutively.  The appellate court does an allied offense analysis on those three charges.  Kidnapping and aggravated robbery are allied, as the Supreme Court held last year in State v. Winn.  The next question, then, is whether a separate animus existed for two offenses.  The court finds no evidence "to suggest that the kidnapping was anything but incidental to the aggravated robbery," so the two merge.

Next up is felonious assault and kidnapping.  Although there is no Supreme Court decision on this point, the court concludes that "one cannot 'knowingly cause serious physical harm to another' without also restraining the liberty of the other person," so these offenses are allied; the same conclusion as to separate animus applies, so they merge as well.

This leaves only felonious assault and aggravated robbery.  The court correctly concludes that their elements do not align, and thus separate convictions can be maintained.  In line with State v. Whitfield, the case is remanded back to the trial court for an election by the State as to "which allied offense it will pursue against the defendant"; Wilson's sentence is vacated, "and he is entitled to a de novo sentencing hearing upon remand."

Did the court really mean "de novo"?  Is the whole sentencing opened up again, with the trial judge having the power to give Wilson more time, or less, on the remaining charges?  (The latter possibility seems remote, given that the last assignment of error, mooted by the decision to remand for resentencing, was that "the appellant was denied due process of law when he was sentenced by a biased court as evidenced by the statements made by the court at the time of sentencing.")  The State could undoubtedly elect to have Wilson sentenced on the (first degree felony) kidnapping count instead of the (second degree felony) felonious assault charge; could the judge decide to impose a ten-year sentence on the former instead of the seven-year sentence he originally imposed?

Probably not.  This would not only raise an argument of vindictive sentencing, but would conflict with Ohio's rejection of the sentencing package doctrine in State v. Saxon.  The better argument would be that it's not a "de novo" resentencing:   the State merely gets to elect the offenses it wishes the judge to impose sentence on, and the previous sentences are imposed.

So Wilson will do 18 years instead of 25, his appellate lawyer having saved seven years of his life.  Regardless of how the other assignments fared, that goes in the win column.

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