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What's Up in the 8th

Four, count 'em, four search decisions out of the 8th, so they get their own blog post tomorrow.  In other cases from the 8th last week, the degeneration of the English language that technology has wrought continues apace, another judge is reminded that the abuse of discretion standard isn't triggered unless you exercise some, and the Yuletide season comes early.

I mentioned a while back that I've never sent a text message, and after reading State v. Mitchell, I don't think I'm missing anything.  Mitchell beat up his girlfriend, and his attempts to dissuade her from pursuing charges results in a conviction and three-year sentence for intimidation.  His claim that the evidence is insufficient to support the verdict founders on the abundant emails he sent to the lady; after sampling his prose stylings -- e.g., "Its going to hurt, u will beg me to stop.  And I'm going to slit ur throat so u can't speak" -- the court affirms, saying "ur going 2 prison."  Or at least it would have, if I'd written the opinion.

I learn something I didn't know -- an all too frequent experience -- in State v. Bonner.  Bonner had pled to aggravated robbery and kidnapping, each with 3-year gun specifications, and the court had run the specs consecutively.  Can't do it; under RC 2929.14(D)(1)(b), the specs merge, because they're part of the same transaction.  Couldn't do it is more accurate; since the date Bonner committed his offense, the legislature added 2929.14(D)(1)(g), which provides that if one of the offenses is aggravated murder, murder, attempted murder, aggravated robbery, felonious assault, or rape, the judge must impose consecutive sentences for at least two specs, and may impose consecutive sentence for all the specs.  That, of course, is assuming that the underlying crimes don't merge.

A judge learns something she didn't know in State v. Clere.  Clere had pled guilty to sexual battery, then tried to withdraw his plea at sentencing.  "I do not grant those motions, so you're not going to be able to withdraw your plea, so that's my ruling on that," says the judge.  Not any more, says the appellate court:  "A trial court acts arbitrarily, and thus abuses its discretion, when it refuses to consider the facts and circumstances presented and instead relies on a fixed policy established at its whim."   What's interesting here is that Clere's basis for withdrawing his plea is that his attorney had incorrectly told him that his registration requirement was for 15 years, instead of life, which his attorney confirmed.  The majority remands it back to the trial court for consideration of the motion to vacate the plea, while the concurring judge would simply vacate the plea and be done with it.  I have a feeling we haven't heard the last of this case.

Nor of State v. RobertsonRobertson is indicted in October of 2008 for rape of Jane Doe #1.  In March of 2009, a superseding indictment charges him with that, as well as sexual misconduct with a minor, pertaining to Jane Doe #2.   The trial judge determines that the state was aware of the facts pertaining to the second count at the time it procured the first indictment, and thus the speedy trial time on the second count runs from that point, and thus has expired.  How speedy trial ran on the second count but not the first is not explained in the opinion, but the appellate court affirms, agreeing that a 1983 case holds that when additional charges arise from the same facts as the original charge, and the state knew of the facts at the time of the initial indictment, speedy trial time on the additional charges runs from the initial indictment. 

That's well and good, but as the dissent points out, the 1983 case is inapplicable:  while the state may have been aware of the facts about Jane Doe #2 at the time they indicted on Jane Doe #1, the two cases had nothing to do with each other:  they didn't arise out of the "same set of facts."  Don't be surprised if this winds up in Columbus, with a different result.

The court deals with another speedy trial issue in State v. Ferrell, and although it rejects the defendant's claim, it provides some useful guidance.  The state took 106 days to respond to discovery, and that's unreasonable; 30 days is, so that's all the time that's tolled.  Normally, any motion by defendant tolls the time, but a motion to compel discovery does not, because it was necessitated by the state's failure to timely respond.  The failure of the defendant to respond to discovery within a reasonable time -- probably the same 30 days -- tolls speedy trial from that point on.  That's a major victory; as I'd caustically noted before, previous decisions from the 8th had held that time was tolled from the point where the state requested discovery, on the theory that this somehow constituted a continuance requested by the defendant.  Better late than never in correcting this.  Finally, a motion to dismiss for speedy trial violation -- and arguably other motions, like a motion to suppress -- do toll the time until the judge rules on them, but again, only for a "reasonable" time; in this case, the 120 days provided in the Rules of Superintendence.

Finally, a lesson in how names shape our destiny.  Santa v. Smith begins "Kathi Santa and Santa's Workshop, Inc., dba Santa's Cycle Supply (collectively 'Santa'), appeal the trial court judgment granting the motion for summary judgment of defendants-appellees, Linda Smith and Dwayne Smith." Alas, we are not told whether the Smiths were naughty or nice; after the grant of summary judgment, their counterclaim remained pending before the trial court, meaning that there was no final order, so the appeal was dismissed.  Everything will hopefully be resolved so the court can take another shot at this, maybe, oh, sometime in December.

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