Case Update - Supreme Court Edition
After complaining for weeks about the paucity of cases coming from Columbus, my cup runneth over: four major decisions. We'll discuss them in a minute, but there was a bevy of decisions from SCOTUS, too. We'll push the Ohio appellate decisions off until tomorrow, and do the 8th District summaries on Wednesday. Thursday, we'll look at allied offenses in the post-Johnson world, and on Friday we'll sing Bob Dylan songs.
Three decisions in criminal cases from the US Supreme Court, two involving the Armed Career Criminal Act, the Federal equivalent of the "three strikes" law: a a defendant who is convicted for certain federal offenses get an additional fifteen years tacked on if he has three prior state convictions for violent felonies or "serious drug offenses." The latter is defined as one for which a maximum sentence of ten years or more is prescribed. In McNeill v. US, the twist was that when McNeill had committed his prior drug crimes in North Carolina, they were punishable by a ten-year sentence, but by the time McNeill was convicted of the Federal offense, North Carolina had reduced the penalties to 38 months. Which controls? The penalty in effect at the time the defendant was sentenced on the state charges, not when he was sentenced on the Federal crime.
The defendant in Sykes v. US fares no better. His third state conviction was for fleeing and eluding the police, and the Court holds that that's a "violent felony" under state law. While the ACCA defines a variety of crimes that qualify as "violent felonies," it also contains a residual clause: a crime qualifies if it "otherwise involves conduct that presents a serious potential risk of physical injury to another" and is "purposeful, violent, and aggressive." The Court follows its "categorical approach" to resolving this question, which looks at the nature and risk of the crime generally, rather than the specifics of the crime that the defendant actually committed. In a 6-3 decision, the Court affirms Sykes' ACCA classification. Oddity number one is that Scalia dissented, contending the clause is too vague. Oddity number two is that Sotomayor voted with the majority while Kagan dissented, the first time all year that the two had wound up on opposite sides in a case.
Finally, in DePierre v. US, the Court resolves another split between the circuits: whether "cocaine base" in the Anti-Drug Abuse Act of 1986 means just crack cocaine. No, it doesn't, says the Court, affirming his conviction and much stiffer sentence. Cocaine base is any form in its chemically basic form, writes Justice Sotomayor for the unanimous Court, the first part of her opinion reminding me of why I decided to become a lawyer instead of a chemist. The white powdery substance you and I know as cocaine -- well, I don't, and maybe you don't, either -- is cocaine in its non-basic form. Crack, freebase, and coca paste all qualify as "cocaine base."
One civil decision of note: in Fox v. Vice, the Court addressed the question of attorney fees in cases where some of the claims are frivolous and some not. Is the victor entitled to attorney fees for the whole shebang? No, says the Court, only for those costs which he would not have incurred but for the frivolous claims. And no, the opinion does not use the term "shebang."
Still left in the Court's last two weeks: the decision on the California law barring violent video games, and the Walmart class action suit. At least one person is pretty confident in the outcome of the latter; tort-reform advocate Ted Frank has invested 10% of his net worth in call contracts betting that Walmart stock will go up when the Supreme Court reverses the lower court decision permitting the case to proceed as a class action.
Down in Columbus, a good week for the 8th District: two of its decisions are affirmed. In Cleveland Heights v. Lewis (appellate decision discussed here), the court agrees that an appeal from a misdemeanor conviction is not rendered moot by the defendant's having served his sentence, so long as the defendant has filed a motion to stay the sentence with the lower court, even though he didn't pursue a stay in the court of appeals. The court long ago held that completion of a felony sentence does not moot an appeal, because of the collateral consequences of a felony conviction. Two justices, Lundberg Stratton and McGee Brown, contend in the former's concurrence that the rule should also apply to misdemeanor convictions, because they now carry such a stigma, and Lanzinger, in her opinion concurring in the judgment, also makes note of that. That leaves open the possibility that a future litigant can successfully argue that his misdemeanor conviction was not mooted, even if he makes no attempt to stay the sentence. In fact, a majority of the 8th District had come to that conclusion in its en banc decision.
State v. Wilson involves the question of what happens when an appellate court determines that offenses are allied, and the case is remanded back to the trial court for election by the State as to which of the offenses the defendant should be sentenced on. Wilson had argued the allied offense issue on appeal, but had also alleged judicial bias and disproportionality of sentencing; the 8th had upheld the first issue, but declared the other two issues moot, and said it was up to the trial judge to consider them in the resentencing. The State appealed, contending that the resentencing hearing was limited to its election of the offenses. Not so, says the court. On remand, the trial court must conduct a new sentencing hearing, and the defendant can raise any issues regarding the sentencing, even those which could have been raised, but weren't, in the original appeal.
In re D.B. involves the unusual, and tragic, situation of two children under 13 having sex. D.B. was charged with eight counts of rape by force, and eight counts of rape under the subsection prohibiting sexual conduct with children under 13. The trial judge found no evidence of force, but convicted D.B. under the latter statute. The Supreme Court reverses, finding that the conviction violated due process: given that the both the "offender" and the "victim" were under 13, the prosecutor's determination of which was which was purely arbitrary.
Finally, a civil decision, Sutton v. Tomco Machining, Inc. RC 4123.90 creates a right of a civil action for an employee who is fired for filing a workers compensation claim. However, the courts have consistently held that the statute doesn't apply unless the employee has actually filed the claim, thus providing no protection if the employer terminates him in the window between the injury and the filing. That's what happened to Sutton: he was discharged an hour after reporting the injury to the president of the company. Sutton sued anyway, claiming that his discharge violated public policy, and the court, by a slim 4-3 margin, agrees. The dissenters argue, not without justification, that the legislature is the body charged with establishing public policy, and since the legislature has never amended the statute to close that window, well, that's the policy.