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Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


Case Update

Two years ago, in District Attorney v. Osborne, the Supreme Court ruled that prisoners do not have a constitutional right to access to DNA evidence which might prove their innocence.  Last week in Skinner v. Switzer, the Court opened the door they'd seemed to have slammed shut in Osborne, but ever so slightly:  the inmate is not limited to habeas corpus in such matters (the avenue taken by Osborne), but may pursue the matter in a Section 1983 civil rights action.  Actually, the opinion says only that the Federal courts have jurisdiction to consider the case; the numerous arguments the State has in opposition to the request will now be considered. 

The only other decision from DC was Wall v. Kholi, which answered the question of what was "collateral" as opposed to "direct" review for habeas corpus.  This was critical for Kholi's habeas petition.  Such petitions have to be filed within one year of the judgment becoming final, but the time is tolled during the pendency of any collateral proceedings in the state courts, such as post-conviction relief.  The State argued that Kholi's state petition to correct or reduce his sentence was really a plea for leniency, and thus did not constitute the seeking of collateral review.  As Robert Benchley once observed, there are two kinds of people in this world:  those who believe there are two kinds of people in this world, and those who don't.  The Court borrows a page from Bentley and concludes that there are only two kinds of judicial review, direct or collateral, and if it's not one, it's the other.  There's no Door No. 3.  The review in Kholi's case was not direct, so ipso facto, as the Romans would say if they weren't all dead, it had to be collateral.

That's two more decisions than came out of Columbus, unless you count smacking down miscreant attorneys and a case involving utility rate hikes.  Which I don't.  So let's see what happened in the courts of appeals...

Civil.  Contents of lost will may be proved by a single witness, says 1st District...  5th District concludes that landlord's testimony that lease tenants were liable for portion of common area electrical usage barred by parol evidence rule; lease provided that tenants were liable for their own use, made no mention of common usage... Whether to install traffic sign or device is discretionary and protected by sovereign immunity statute, but once decision is made, implementation of decision is not immune from liability, 6th District holds...Right to arbitration provision waived by failure of defendants to file motion for stay pending arbitration, says 5th District...

Criminal.  6th District reverses grant of motion to suppress, holds that officer had right to walk around to back of house to knock on back door after no one answered front door... 8th District holds that "excessive bruising" to child did not constitute serious physical harm where no medical treatment provided, reverses conviction of child endangering for insufficient evidence... Defendant can't pursue claim of allied offenses in habeas or prohibition action, 5th District rules... 12th District finds that movement of victim from residential street to parking lot two blocks away sufficient separate animus to support convictions for both kidnapping and aggravated robbery... Judge must impose separate sentence for each offense, even where sentence is community control, says 3rd District... 4th District suggests, but does not decide, that defendant not entitled to an instruction on testimony by accomplice unless witness was actually indicted as an accomplice...   

Saved by FischerAlthough the Supreme Court's decision in State v. Fischer closed the door on a defendant's ability to "revive" appellate issues in an appeal from the resentencing that he'd lost on in his original appeal, how it helped defendants is shown by State v. TalafhahWhen the Supreme Court held that a sentence which failed to properly impose post-release controls was void, one of the questions raised was whether a judge could give a defendant more time at resentencing.  Normally, that's presumptively invalid, but the argument was that the presumption of vindictiveness didn't apply because, since the original sentence was void, there never really was an original sentence. 

Talafhah found out about that theory the hard way:  sentenced in 2008 for two counts of rape and one of attempted rape, the court ordered him back for resentencing a year later to correct PRC, and imposed the same seven year sentence on each count.  Except this time the judge ordered them to run consecutively, instead of concurrently.  The 9th District reverses, holding that under Fischer the resentencing hearing was limited to properly imposing PRC.


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