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Coming to a court near you

Although the Ohio Supreme Court hasn't come down with any decisions since the flurry of big ones at the end of the year, it's back in session for oral arguments, and I thought I'd take a day to look at some of them.

One case to bet the ranch on the outcome is State v. Ford.  Ford was convicted of discharging a firearm into a habitation, a violation of RC 2923.161, and was given three additional years for the specification that he used a gun in the commission of the crime.  Now, if you're like me, you have some problems with this.   It's one thing to give somebody an extra three years because they brandished a gun during a robbery, but here the offense itself involves the use of a gun.  You can't discharge a firearm into a habitation unless you use a firearm to do it.  It doesn't make much sense to say, "It's illegal to fire a gun into a house, and by the way, if you use a gun to fire into a house, we're going to punish you more severely than if you fired a gun into a house without using a gun."

Unfortunately, logic gets you only so far.  There are a number of other statutes of this ilk, and courts have had no trouble upholding the result despite its apparent absurdity.  Check out State v. Aubrey, for example, which dealt with the defendant's conviction under RC 2923.16(D), which prohibits driving with a gun in the car if you're drunk.  The prosecutor had tossed in a 1-year firearm spec for good measure, and the 4th District was so impressed with the defense's argument on the illogic of this that they spent spent a whole paragraph discussing it.  Well, they didn't actually discuss it; they cited three cases where they'd rejected it before, stifled a yawn, and said they didn't see any reason to change their minds.

The problem is that the legislature provided only three exceptions in the section mandating imposition of additional gun enhancement penalties:  carrying a concealed weapon, carrying a gun into a courthouse (go figure), and having a weapon under disability.  (And it can be imposed for the last one if the defendant's been convicted of a 1st or 2nd degree felony, or was released from prison or post-release controls for the underlying offense within the past five years.)  Ford's attorney tried to get around this by making a "similar acts" argument:  With the enhancement, Ford was actually being penalized twice for the same crime.  As several justices pointed out, a firearm specification isn't a "crime," it's an enhancement, so you never get to the allied offense analysis.  Ford's attorney did an excellent job in oral argument, carefully answering the justice's questions, and he'll be unsurprised when the court unanimously affirms his client's conviction.

What happens in State v. Gingell is anyone's guess, and it may be that nothing will happen except a remand.  Gingell was convicted of rape in 1981 and served 25 years in prison.  In 2003, the court held a Megan's Law hearing, classified him as a sexually oriented offender, told him that when he was released from prison he'd be required to register annually for ten years, and that failure to do so would be a 5th degree felony.  In 2008, he was reclassified as a Tier I offender under the Adam Walsh Act, required to register every 90 days, and when he failed to tell the sheriff he'd moved several months later he was charged with failure to register.  Except that the AWA had changed that offense to a 1st degree felony, and Gingell was sentenced to 8 years.

The Supreme Court initially took the case to decide whether the enhanced penalty could be applied retroactively.  That argument would run into problems, the major one being that Gingell committed the violation after the penalty was enhanced.  Unlawful sexual misconduct with a minor is a 3rd degree felony now, punishable by up to five years.  If tomorrow the legislature changes it to a 1st degree felony and you commit the crime the day after that, you can't argue that the increased penalty doesn't apply to you because it wouldn't have applied if you'd done it a week earlier.  There is some merit to the argument, though, since the duty to register arises before the change in the law.

But then Bodyke came out, holding that reclassification was impermissible.  That meant that Gingell was no longer a Tier I offender.  The question then became whether he violated his yearly reporting duties under Megan's Law, and if so, whether violation of that could result in the enhanced penalties.  Justices Lanzinger and Lindbergh Stratton had very obvious problems with that, while O'Connor, and to a lesser degree O'Donnell, obviously didn't.  The real problem, though, was that nobody had figured out whether Gingell's charge was based on the failure to report on the 90-day requirement under AWA or the 1-year requirement under Megan's Law; the record contained nothing on that.  The justices kept referring to the docket of the earlier case, but that's not relevant; the reporting date isn't figured from when the court designated Gingell as a sexually-0riented offender and advised him of his reporting requirements, but from when Gingell got out of prison three years later. 

I'm betting this never makes it to a decision, but rather a simple vacating of the judgment and remand to the court of appeals to figure out the dates.  Left hanging is the split in the appellate districts, some holding that only Megan's Law penalties can be imposed upon Megan Law violators, while others hold that, regardless of whether they were impermissibly classified, Megan's Law offenders who violate their reporting requirements under that law are subject to AWA's harsher penalties.

There was one disciplinary case of note, especially to Cleveland lawyers, that was argued last week, too.  Joe and Vince Stafford have become renowned among the domestic bar here for their take-no-prisoners approach in their handling of divorce cases, and Vince is currently charged with various ethical failings, such as failing to provide discovery and lying about providing discovery.  After twenty-two days of taking testimony, the disciplinary board recommended an eighteen month suspension with all but six months stayed.  Vince is asking the court to stay the entire time, while Disciplinary Counsel is asking that the entire time be an actual suspension.  From the questioning of the judges, I'm guessing that Vince will be lucky to wind up with the board's recommendation.  There won't be much wailing and gnashing of teeth among his fellow attorneys should that fate befall him; as one practitioner once told me, "If I ordered twenty tons of sonsofbitches, and you sent me Joe and Vince on a flatcar, I'd call it substantial performance."


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