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Case Update

In addition to the King decision, which I discussed last Thursday, SCOTUS handed down a couple of other decisions, one on the intersection between the False Claims Act and the Freedom of Information Act, and other on ERISA.  If you came here to find out more about either, you are so in the wrong place.  One decision I didn't cover was AT&T v. Concepcion, which dealt with consumer arbitration provisions and class actions.  I'll make up for that sometime in the next few weeks.

Several decisions of note from Columbus, for a change.  Wilhelm-Kissinger v. Kissinger provides Chapter 413 in the continuing sage, "Hell Hath No Fury"; embroiled in a divorce, the wife finds emails between the husband and his lawyer on the former's computer, and promptly sends them to her own attorney.  Husband moves to disqualify wife's attorney, the trial court denies it, husband appeals, and the 9th District holds it's not a final appealable order.  The Supreme Court agrees, given that a judge can review that order and change it if he finds doing so appropriate.  Keep in mind that an order disqualifying counsel is final and appealable.

State v. Damron could have been a lot more than it turned out to be.  Damron had pled to felonious assault and domestic violence, and, in keeping with the state of the law at the time, the prosecutor argued that since the elements were different, the two crimes were not allied.  The trial court found that the two offenses should merge under State v. Harris (discussed here), but instead gave concurrent sentences.  On appeal, the 10th District affirmed, holding that although the judge may have been wrong about the merger issue, the concurrent sentences were "authorized by law" and thus valid.  The Supreme Court finds this incorrect, for the obvious reason that giving concurrent sentences is not the same as merging offenses, and remands it for consideration under State v. Johnson.  The state had asked that the court also consider whether felonious assault and domestic violence are indeed allied offenses, but the court had declined that proposition of law.  Since the plurality decision in Johnson, the court hasn't issued any rulings in allied offense cases, and one or two explaining that decision further might be welcome.

On to the courts of appeals...

Civil.  2nd District holds that agreed entry in juvenile case granting father visitation with child was a "de facto" designation of mother as custodian, requiring father to show change of circumstances for modification of custody... 1st District holds that action for conversion lies with regard to intangible property; here, domain name host had given third party access to all of plaintiff's domain names and emails... Nurse not qualified to testify as expert with regard to standard of care of physical therapists, says 1st District... Trial court erred in dismissing age discrimination claim under CivR 12(B)(6) because court improperly required plaintiff to plead that age was "but-for" cause for his termination, says 10th District; plaintiff need not establish prima facie case of discrimination to survive 12(B)(6) motion...

Criminal.  No need for hearing on forfeiture where defendant agrees to it as part of plea deal, says 8th District... Voluntary manslaughter and felonious assault were allied offenses where committed in single course of conduct with single animus, 1st District holds... 10th District holds that motion to suppress was untimely where defendant arraigned in January, motion filed in June, and trial takes place in November...  Judge tells defendant he'll be sentenced to 8 years in prison if he violates post-release controls, but puts in journal entry that it'll be 5 years, but after defendant violates and is sentenced to 8 years, judge issues nunc pro tunc entry correcting time from 5 to 8 years; can't do that, says 8th District -- nunc pro tunc can only be used to correct obvious arithmentical errors... Am I missing something here?  5th District says that court didn't err in allowing defendant's sole witness to testify via televideo, rather than in person; for some reason, court analyzes this as whether defendant's right to confrontation was violated...

Note to defense attorneys:  you're not a potted plant.  Ordinary event in State v. McCollins:  the trial judge was holding a hearing to properly impose the 5 years of mandatory post-release controls on McCollins.  The hearing was being conducted by televideo conferencing, as many such hearings are any more.  McCollins claims on appeal that appearance by video violated CrimR 43, which requires the defendant to be personally present for all critical proceedings.  The 8th District had held that in previous cases, but rejects its application to McCollins because neither he nor his attorney objected.

So big deal, you say.  Even if the attorney had objected, they'd simply bring McCollins up from the prison he was in, do the resentencing with him there, and the result would've been the same.

Except that, at the time the video conference was held, McCollins was due to get out of prison in another 36 hours.  That's hours.  Had his attorney objected, there's no way they could have brough McCollins up in time.  And once he gets out, post-release controls can't be imposed. 

Bullshit Traffic Stop of the Week.®  In State v. Pierce, the 5th District upholds a stop based upon the allegation that the defendant's vehicle was following another vehicle too closely.  When the officer approached the car and obtained the driver's insurance and registration, "he noticed that the car's turn signal continued to operate and that an air freshener was hanging in the car's interior."  That led to a dog search, and the discovery of cocaine in the trunk.

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