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Case Update - Appellate decisions

We covered Supreme Court decisions yesterday, so today we'll take a look at the decisions from the Ohio courts of appeals...

Criminal.  A police report is generally admissible under EvidR 803(6) if offered by the defendant, but not if it includes inadmissible hearsay, says the 2nd District... 8th District rejects claim that counsel provided ineffective assistance for failing to file a sentencing memorandum; that's not deficient performance because "vast majority of defense attorneys choose to forego a sentencing memorandum and speak directly to the court at sentencing"... 9th District finds plain error in trial court's failure to give jury instruction on accomplice testimony... Defendant is approached by two others in a fight, he pulls a knife; the 2nd District concludes he's not entitled to claim self-defense, because he violated his duty to retreat, or get a charge on aggravated assault, because he testified that he acted out of fear, not rage... 10th District says that whether to give Telfaire instruction on eyewitness testimony is up to discretion of trial court, court doesn't abuse its discretion if it gives standard instruction on credibility of witnesses from OJI... While normally a trial court's ruling on evidentiary issues is reviewed for abuse of discretion, where admission implicates a constitutional right -- the right to confrontation in this case -- review is de novo, 8th District holds... Defendant's taking of girlfriend's two children after getting into fight with her and subsequently putting them in trash bin  were two separate acts, not "single act committed with a single state of mind," and thus two counts of kidnapping for each child aren't allied offenses, 2nd District rules... Audiotapes of drug purchase not testimonial evidence, not submitted for truth of the matter asserted, says 3rd District...

Civil.  Trial court erred in not granting permanent injunction to enforce non-compete and trade secrets clause after granting money judgment against defendants, says 8th District; money was for past harm, injunction is to prevent future harm... Statute of Frauds did not bar oral contract giving plaintiff interest in property company which owned real estate of nursing home; that did not involve him acquiring an interest in land, says 9th District... Order that husband pay wife's attorney fees was in nature of spousal support and therefore not dischargeable in bankruptcy, 10th District holds...

PRC again... and again.  I've often wondered why defendants are in a hurry to raise post-release control issues while they're still in prison.  The benefits of deferred gratification are brought out in the 2nd District's opinion in State v. Adkins.  Adkins waited until he was released from prison, then filed a motion to vacate his sentence because the judge had told him he had "up to" five years of post-release control, when it was actually a mandatory five.  While noting that he "could not possibly be prejudiced" by this error, the 2nd agreed that the case law required holding the sentence void in its imposition of PRC.  The opinion also notes that while the Supreme Court in Fisher believed that its "work in this regard [to PRC] is drawing to a close,"

Actually, these problems will fester for years to come. Because voidness can be raised at any time, Fischer's "void" analysis encourages defendants not to challenge technically incorrect post-release control orders until after they are released because the problem cannot then be rectified.

The opinion further notes that the problem will arise in three types of cases: 

  • Where the defendant is released and then raises the PRC issue
  • Where the defendant is charged with escape for failure to comply with the terms of supervision
  • Where the defendant is charged with having contraband based on a search conducted by the APA under its supervisory authority.

In each case, the court notes, the invalid PRC will result in the supervision being terminated, the defendant being discharged, or the evidence being suppressed.  The court cautions

Unless and until the Ohio Supreme Court changes its "void" post-release control analysis or the legislature changes the statutory implementation of supervision, the State should be on notice that every sentencing entry should be reviewed for accuracy before imposition of post-release control.



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