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What's Up in the 8th

The court takes a breather after its holiday output, handing down only eight decisions, two of them pro se petitions for sundry relief in criminal cases.  The latter raise no interesting legal issues, other than that such petitions are about the only ones left where the rules of pleading are enforced with ruthless vigor.  Even the most idiotic civil complaint will usually survive a motion to dismiss for failure to state a claim, but some poor rummy files a habeas petition claiming that his jailers get their jollies from attaching electrodes to his genitals every morning, and it gets peremptorily tossed because he didn't attach a copy of the journal entry of his commitment.

The court begins to wrestle with the results of the Supreme Court decisions over the past two weeks.  In State v. Nicholson, the court comes down with its third opinion in the case in the past month.  Back on December 2, the court held that the trial judge didn't properly impose post-release controls, and, citing State v. Singleton, remanded the case for a sentencing hearing "for the limited purpose of the proper imposition of postrelease control pursuant to R.C. 2929.191."  A week later, I wrote a post pointing out that was wrong:  under Singleton, you get a de novo sentencing hearing if you were sentenced before July 11, 2006, and Nicholson was sentenced four months before that.  The following week, the court sua sponte vacated their decision "because of our misstatement regarding the hearing necessary pursuant to State v. Singleton," and remanded the case for a de novo hearing.  So last week, the court vacated that decision "in view of the Ohio Supreme Court's recent ruling in State v. Fischer" (discussed here last week), and remanded the case for proper imposition of PRC.  It wouldn't have even had to do that; Fischer allows an appellate court to modify the sentence to include the proper term of controls.

Fischer provides a welcome out for the court in State v. Braun, although the court doesn't take it.  Back in 2009, the court devoted 60 pages to rejecting the fifteen assignments of error Braun raised from his conviction of aggravated murder.  (And as further proof that I have no life -- as if further proof were required -- I slogged through all 60 pages back then and chided the court for its handling of a snitch issue.)  Did I say the court rejected all fifteen assignments?  Wrong; Braun had been convicted of several offenses besides aggravated murder, but the judge forgot to impose sentences on those at the sentencing hearing, then added the sentences in the journal entry.  That's a no-no, so the court sent it back for a new sentencing hearing. 

Braun now appeals that, filing the exact same brief he did from his original conviction, with the exception of the one assignment of error the court sustained.  Braun may have intended to raise the same argument that Fischer did:  because his original sentencing hearing was defective, it was void, and the appeal he took from it was a nullity, so he gets a do-over.  Without even citing Fischer, the court notes that "each and every one of these assignments of error exhaustively was addressed" in the previous appeal (and take it from me, they weren't the only ones who were exhausted), and files the whole thing under "Can of Worms, Not Opened."

Fischer came out on December 23, and Braun was released over two weeks later, suggesting that once they're prepared for publication, the court's opinions aren't updated with the latest developments.  That's confirmed by State v. StewartStewart asks that his plea be vacated because the judge didn't tell him what the prison sentences were for his offenses, but that information was stated by the prosecutor during her recitation of the plea agreement, so that's enough, the court holds.  Stewart also raised the Ice issue, claiming that the judge should've made findings of fact before imposing consecutive sentences.  The court rejects that argument, as it has always done before, but in a footnote mentions that "The Ohio Supreme Court is expected to decide whether the Foster decision remains good law in light of Ice in State v. Hodge, currently pending before the Ohio Supreme Court."  Well, we'll just have to see how that turns out, won't we?

According to Ernest Hemingway, F. Scott Fitzgerald once remarked to him, "The rich are different than you and me," to which Hemingway responded, "Yes, they have more money."  They also have dockominiums for their yachts, we find out in the ironically-captioned divorce case of Kaput v. KaputDivorced in 2006 after 33 years of marriage -- I guess they decided they couldn't get along -- Kaput was ordered to pay his wife $5,500 a month in spousal support, subject to modification by the court.  He moved for a reduction of support in 2008, and the wife counterfiled for an increase and a finding of contempt for arrears.  The parties entered into an agreement and dismissed their motions, but later that same year the husband again filed to reduce the support the figure, this time winning a reduction of $3,000 a month.

The issue, of course, is whether there was a change in circumstances.  The wife argues that the change should be measured from the time of the husband's attempted modification in early 2008, but the court notes that there was no final entry from that effort; the mutual dismissal is not entitled to any res judicata effect.  More difficult is the wife's argument that the husband's diminished income from his business is not a change, because he anticipated it.  It's customary for husbands to poormouth their business fortunes in their divorce hearings so as to minimize a potential award of support, and the wife seeks to hoist husband on his own petard, claiming that he can hardly claim circumstances have changed for the worse when he "painted a picture of doom and gloom for the future of his company" at the time of the divorce. 

The law requires a "substantial, uncontemplated" change of circumstances, and here the change was certainly substantial -- husband's income declined a precipitous 80%, though not enough, as the magistrate had pointed out, to lead him to get rid of his boat.  The court decides that "contemplate" in this context means "intend," selecting the third definition offered for that word by the Random House dictionary.  Since husband obviously did not intend for his income to drop like a stone, that's the end of that. 

The people at the dockominium are no doubt happy.


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