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Case Update

No new decisions from either Columbus or DC.  Last week featured oral arguments before the Columbus 7.  One, State v. Lester, revisits State v. Baker, which held that a sentencing entry which didn't include certain terms wasn't a final appealable order.  Lester raises the issue of whether a non-Baker-compliant entry can be the basis of an appeal; in other words, is an appellate ruling from an entry which doesn't satisfy Baker a nullity, thus allowing a defendant a second "real" appeal when the Baker defect is remedied?  A similar argument was made about judgments which were "void" because of defects in imposing post-release controls, and the court rejected that argument last December in State v. Fischer.  Will Lester meet the same fate?  I'll take a look at the oral argument later in the week. 

The DC 9 were off last week, but take to the bench on Tuesday to consider a somewhat bizarre set of facts in Tapia v. US.   Alejandra Tapia was convicted of smuggling illegal aliens, and argued for a minimum 36 month sentence.  Instead, the judge gave her 51 months, saying that the longer sentence would allow her time to complete a 500-hour drug treatment program.  Tapia now argues that the judge was wrong to take rehabilitation into account in fashioning a sentence, because that's prohibited by 1984 act which created the Sentencing Guidelines:  it specifically provides that a court must consider various factors in determining a sentence, but must recognize "that imprisonment is not an appropriate means of promoting correction and rehabilitation."  Thus, instead of the government arguing that a judge wrongly gave less time because he thought the defendant could be rehabilitated in prison, we have the defendant arguing that she was wrongly given more time for the same reason. 

In the courts of appeals...

Criminal.  Delay between giving of Miranda warnings and interrogation can render warnings stale; good discussion of that concept in this 1st District case, although court decides against defendant... Exclusionary rule need not be applied in case involving violation of RC 2935.03(A) (arrest for misdemeanor that did not occur in officer's presence), says 2nd District... No necessity for conducting Daubert hearing in case involving pediatrician's testimony re baby's brain injuries, says 1st District; differential diagnosis was accepted scientific method for determining causation, and physician was board-certified and well-qualified... 2nd District holds that trial court erred in denying defendant's post-sentence motion to withdraw plea in escape case, since imposition of post-release controls was void, and therefore defendant was not legally under detention at time alleged escape was committed...

Civil.  8th District holds that door defect was not "open and obvious"; greater than anticipated force necessary to open left door misled plaintiff as to amount of force necessary to open right door, causing it to open easily and drag over her toes...  3rd District holds that DVD of hearing sufficient record to allow determination of which police department parties agreed to as drop-off point for visitation; there's a short list of things sadder than having to use a police station as the place to exchange a kid for visitation...  Attorney conduct in entering into settlement without client's approval is not imputed to client for purposes of motion to vacate, says 8th District, although here client consented to settlement... 3rd District says employer's lengthy delay in requesting stay of proceedings for arbitration in wrongful termination case constituted waiver... 12th District holds that medical malpractice statute of repose is unconstitutional, since it bars plaintiff from claim before she could have known that it existed, in violation of right-to-remedy provision of Ohio constitution...

The headnote says it all, Chapter 143.  From the 9th District's decision in State v. Geter-Gay:

Although there were minor inconsistencies in what the victim said, the jury did not lose its way in finding that defendant failed to prove she acted in self-defense for felonious assault (R.C. 2903.11). There were inconsistencies in defendant's testimony and she admitted she was annoyed with the victim for repeatedly interrupting her crack use.

And second prize is two weeks vacation in West Virginia.  In Meade v. Kurlas, the defendants had gone on a three-day vacation to Glade Springs Resort in Daniels, West Virginia, where they signed an agreement to purchase an undeveloped lot.  They tried to back out of the deal, claiming that it was contingent upon several of "their friends" participating in the purchase, but that they were unable to convince anyone else to participate.  (Can't imagine why.)  The trial court ordered specific performance, and the 12th District affirmed, finding that where the sale of land is the subject matter of an agreement, the plaintiff doesn't need to show inadequacy of  a legal remedy to enforce the equitable one of specific performance.  So be sure to look up the Karlases the next time you visit the Mountain State.  This week's West Virginia joke:

Q.  Why are redneck homicides so hard to solve?

A.  Everybody's got the same DNA, and there's no dental records.

The Karlases will have more, I'm sure.

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