July 2011 Archives
Gun rights update update. On Monday, I mentioned a 2nd District decision affirming a conviction of weapons under disability, where the disability was -- the horror! the horror! -- a minor misdemeanor conviction for possession of marijuana. I was especially critical of the court's failure to even address the 2nd Amendment issue raised in the appeal: whether a conviction of a minor misdemeanor offense created a sufficient interest for the government to forever deny someone his right to bear arms, a right established as fundamental by the Supreme Court's decisions over the past two years in DC v. Heller and McDonald v. Chicago.
Undoubtedly to their great relief, I won't have the 2nd District to kick around on this any more. Or any other court, for that matter. While HB 86 has gotten most of the attention, the legislature also passed HB 54, which revises 2923.13 and 2929.14, the statutes on weapons under disability and obtaining relief from disability. The major change in the bills is to provide that only a felony drug offense creates the disability. It takes effect on September 30, same as HB 86.
But there's an interesting twist on this. Back in January, I wrote about a case here in Cuyahoga County where the judge dismissed a weapons under disability charge which had been based on a misdemeanor marijuana conviction. (In that case, attempting trafficking, a 1st degree misdemeanor.) That case is up on appeal, and one of the main issues will be determining whether the State has an interest in disqualifying a person from owning a gun based on a misdemeanor conviction, sufficient to override that person's 2nd Amendment rights. Couldn't the argument be made that HB 54 is an expression of legislative intent acknowledging that the State doesn't have an interest in disqualifying a person from owning a gun based for a drug conviction unless that conviction is for a felony? Stay tuned.
Now that's strict liability. Up until 2002, Florida law provided that a person was guilty of a drug offense if he was "in actual or constructive possession of a controlled substance." That year, the state supreme court was called upon to interpret the law, and decided that although it didn't mention any mens rea, the legislature had intended to prohibit the knowing possession of contraband. Not so fast, said the legislature: it promptly amended the law to provide that "knowledge of the illict nature of a controlled substance is not an element of any offense under this chapter," and imposing upon the defendant the burden of proving, as an affirmative defense, that he didn't know he was in "actual or constructive" possession of the drugs.
On Wednesday, a Federal district judge tossed this on a habeas petition, finding that the imposition of strict liability under these circumstances was a violation of due process. (The opinion, which you can find here, is a good read for determining when a legislature can impose strict liability for a criminal offense.) The opinion noted that under the law as written, a Fed Ex driver could be prosecuted for delivering a package which contained drugs, even though he had no idea what the contents were.
Now that's soft on crime. Your client's just been convicted, and the judge rejects your pleas for leniency and sends him off to prison. No, not to Mansfield Correctional, a place where your first visit elicits the reaction, "So that's what razor wire is." No, this is a prison set on 75 acres of idyllic woodland, where your client's cell features a flat-screen TV, a minifridge, and designer furniture. He can take advantage of the jogging paths and sound studio on the site, or play various games with the guards, none of whom are armed. In fact, half of them are women, since studies show that the presence of women creates a less aggressive atmosphere. And speaking of women, should your client's wife and children decide to visit him, they can stay with him overnight in the two-bedroom house on the grounds.
No, your client won't be going there, but Anders Behring Breivik, who just killed 76 people in Norway this past weekend, will be. When the prison opened last year, the governor explained, "In the Norwegian prison system, there's a focus on human rights and respect. We want to build them up, give them confidence through education and work and have them leave as better people."
Then again, maybe it works; only about 20% of Norwegian offenders wind up back in prison within two years, far below our own rate of recidivism. Which I don't understand at all. If they built a prison like that here in Ohio, you'd have to stand in line to rob a convenient store.
Oh, by the way, it looks like the most that Breivik can get for what he did is 21 years.
It's a dog's world. Which is dumber? (A) Going up to a police dog who's sitting in a cruiser and barking and hissing at him; (B) Prosecuting someone for going up to a police dog who's sitting in a cruiser and barking and hissing at him; (C) Defending against a charge of going up to a police dog who's sitting in a cruiser and barking and hissing at him by claiming you were simply exercising your First Amendment rights, or (D) all of the above.
I'm partial to (D) myself, especially after reading this news article about the judge's denying the motion to dismiss the charge on free speech grounds, because portions of it read like it came from the Onion:
"Even if there was a communicative value to the Defendant's barking and hissing, it is clear that this ordinance is directed toward prohibited conduct and impairment of a First Amendment right is incidental," Judge Batsche wrote.
Mason Prosecutor Bethany Bennett had argued in June that Stephens' barking should be considered "fighting words" and an exception to free speech because it created a clear and present danger to Timber, who started barking frantically.
At the time police ticketed him early April 3 outside The Pub, Stephens maintained that "the dog started it," according to police reports.
A discrimination lawsuit in waiting:
And no bacon, either? Oh, the humanity!
See you on Monday.
Last week I took a look at how HB 86, the criminal reform package slated to go into effect in September, affects drug laws. Today I'm going to look at the much larger effect it has on sentencing. After all, that was the major purpose of the law: to reduce the number of people in prison in Ohio.
As people who have dealt with me will tell you, I'm relatively mild-mannered. (Although if asked to describe me, they're more likely to first mention my Adonis-like physique.) There's one time I did go off, though. About twenty-some years ago, I was in a hearing, and the prosecutor implied that I'd coached my witness to lie. I absolutely blew up, made a fool out of myself, got right in his face, yelling at him... I calmed down, walked back and apologized to him for the outburst, but I still remember that.
So I kind of understand what went through the defense attorney's mind during a portion of the testimony in the aggravated murder prosecution of Joaquin Hicks.
As I've mentioned before, appellate law isn't for those who have self-esteem issues; the state's winning percentage in criminal appeals usually runs between 80 and 90 percent. When I sit down each week to do my post summarizing the 8th's decisions, I usually have my old friend Jimmy Beam on hand as I brace myself for the cavalcade of opinions batting away defendant's arguments as "devoid of merit," followed by a breezy "judgment affirmed." The past month, for example, has seen only about three reversals, other than in sex offender classification cases.
So imagine my surprise when I went through the dozen criminal cases the 8th churned out last Thursday, and found no fewer than eight reversals, including a high profile aggravated murder case which we'll discuss tomorrow, as County Prosecutor Bill Mason suffered his worst week since getting an atomic wedgie back in 9th grade gym class. (Artist's rendition at right.)
Some of them came as no surprise. Three years ago, in State v. Chambliss, the 8th considered a case in which the trial judge had peremptorily removed the defense lawyers, for no apparent reason. In line with Ohio Supreme Court precedent, the court found there was no final appealable order, but this April the Supreme court overruled that precedent and returned the case to the 8th. As expected, the 8th reverses, the state taking no position on the matter.
State v. Bronston is another reversal which could have been anticipated. Bronston had been convicted of a sex offense in 2004, and was brought back before the court in 2010 for proper imposition of post-release controls. The judge did that, but also raised Bronston's sex offender classification to Tier III, in accordance with the Adam Walsh Act. This contradicted the Supreme Court's decision in State v. Fischer that in resentencing because of a post-release controls error, only PRC can be addressed, and 8th District precedent that a judge is not authorized to address a defendant's previously-imposed sex offender classification in resentencing to impose PRC.
An easy reversal is also found in State v. Holloway. Holloway was charged with kidnapping (convictions for intimidation of a crime victim and domestic violence were affirmed), with the victim denying at trial that her liberty had been restrained. This was contrary to her statement to the police, and so the judge allowed the prosecutor to have her read it into the record, and then admitted it into evidence as well. There are ways to use a prior statement in this fashion, but none were properly employed; no attempt was made to show surprise or affirmative damage, which would allow the State to impeach its witness, and the impeachment was improper anyway (the prosecutor had the victim read the statement, before laying any foundation for admission of the inconsistent statement), there was no basis for using it to refresh her recollection, since she didn't indicate she couldn't recall any of the events, and even if any of these had been done, there's no basis for allowing the statement to be introduced as substantive evidence.
But then things get more complicated. In State v. Daley, the judge finds the defendant incompetent to stand trial based on psychiatrist's opinion that he was a "radical Christian" who "expresses such extreme intensity of religious belief in very unorthodox religious beliefs to the point to constitute psychosis." Typical of Daley's "unorthodox religious beliefs" is his description of divorce court as "the high court of Satan," an observation which would probably find murmured concurrence among half the practitioners there. The ACLU filed an amicus brief on Daley's behalf, arguing that his religious beliefs were protected by the First Amendment, and the court agrees that since "the diagnosis was based solely on Daley's religious beliefs. . . the trial court court erred in finding him incompetent."
Two problems here. The cases cited by the court deal with situations in which people were penalized for their religious beliefs (prosecuted for handing out religious pamphlets) or the state tried to take action to override their religious principles (force a believer in faith healing to seek medical treatment for a tumor). That last case might seem to apply to Daley, since the finding of incompetency was coupled with an order for forced medication. But the court doesn't address the latter, only the former. Even more worrisome is the notion that any religious belief, no matter how delusional, insulates one from being found incompetent. If my client decides I'm one of the devil's henchmen and refuses to help me with his defense, does that mean he has to stand trial?
State v. Wright stands on firmer footing. The case involves a sordid tale of Wright, then aged 30, beginning a dalliance with a 12-year-old girl, which continued until just before her sixteenth birthday; she became pregnant, and DNA evidence confirmed Wright as the father. He was convicted of one count of rape and several of unlawful sexual conduct with a minor.
One problem. That part about Wright being 30? There was no evidence ever introduced of Wright's age. That becomes key, because sexual conduct with a minor is normally a fourth degree felony, but becomes a third degree if the defendant is ten or more years older than the victim. The court correctly finds the evidence insufficient to support the ten-year specification, but instead of simply reducing them to 4th degree felonies, vacates the convictions entirely. The State's rape case fares only slightly better; it gets reversed, because of the evidence introduced of Wright's sexual episodes with the girl after she moved out of state (and hence not part of the charges in this case), and the DNA results. The State argues that the evidence is admissible to show a "common scheme" because the events are "inextricably related" to the charges, and that the DNA evidence proves Wright's identity as the perpetrator. Not so, correctly counters the court: the out-of-state acts occurred months to years after the charges here, and the charges could have been proved without reference to them, so they're not inextricably linked. And the 8th continues its excellent work on 404(B) evidence, noting that the proof of identity exception isn't applicable where identity is not disputed, as was the case here: the dispute was over whether Wright did it, not over who did.
The State does wind up one for two in cases involving a defendant named Wright, and the other State v. Wright provides a procedural primer. Wright pled guilty to weapons under disability and child endangerment, then appealed his four-year sentence. He also filed a motion with the trial court to withdraw his plea, which was denied. On appeal, he also argues that the trial court erred in denying the motion, but there's a problem: he didn't file an appeal from that order, nor did he ask to amend the appeal to include it, so the court won't address it. As for the appeal of the sentence? Well, he didn't file a transcript of the sentencing, either, so that goes down the tubes, too.
The court's reversal binge carries over into civil cases, but the plaintiff's victory in Beegle v. South Pointe Hospital will prove a Phyrric one. Beegle's malpractice case was dismissed with prejudice for failure to file the affidavit of merit, but the court partially reverses. Beegle's request for extension to file the affidavit was denied, and so the court reviews that for abuse of discretion. That's usually the death knell for claims of error, and it is here, the court frankly acknowledging that "we would likely" have granted the extension, but that the trial judge's ruling wasn't sufficiently unreasonable to warrant reversal under the more deferential standard. The court does partially reverse, finding that the dismissal should have been without prejudice, but that does Beegle no good. Just last week in Graf v. Cirino, the court held that you can't use the savings statute more than once to refile a case. Beegle presents exactly the same situation -- he'd earlier voluntarily dismissed his claim, and used the savings statute to refile it, then been kicked out again for failure to file the affidavit, then refiled -- and so it will fall upon Beegle's lawyer to relate the good news/bad news joke.
Nothing new from the Supreme Court this week, although I made an appearance there. Rather, my blog did. Back in April, in State v. Taylor, the 8th District found that evidence had to be suppressed because of an illegal search, a result it arrives at with numbing regularity, due mainly to a police department which, as I've observed elsewhere, has no more understanding of the 4th Amendment than it does of the Rule against Perpetuities. The State appealed, as it also does with numbing regularity, and on the second page of its Memorandum in Support of Jurisdiction we find this:
. . . the ordered suppression is an anathema to 4th Amendment jurisprudence. Or as a local criminal defense blog so aptly stated,
"State v. Taylor can be introduced in evidence as Exhibit 135 in my case that the 8th District is the most 4th-Amendment friendly court in the state, if not the country."
And who might that local criminal defense blogger be? Why, Your Faithful Correspondent, of course; the quote is taken from my wrapup of the 8th District cases back then.
I'm not sure what the purpose of quoting me was. The argument seems to be that since a local criminal defense blogger believes the 8th District is "4th Amendment-friendly" and that Taylor is an example of this, Taylor must have been wrongly decided. The flaws in that reasoning, to use the term loosely, are self-evident. It apparently springs from a belief that a court's being solicitous for the constitutional rights of criminal defendants is to be frowned upon, and that the 8th District should instead emulate other districts, in which the legitimacy of an investigative stop is determined by using the standard of what a reasonable Gestapo agent would do. That belief might be one of the reasons that the prosecutors office here has done nothing to educate the police about their shortcomings in understanding search and seizure law, and why that office, while enjoying success before the Supreme Court in other areas, has been singularly unsuccessful in getting that court to accept search cases, much less overturn them.
Their luck is unlikely to change with Taylor. The Memorandum spends a lot of time arguing about how prior court decisions permit the police to detain a person after an investigatory stop by putting them in a police cruiser, without ever mentioning that Taylor was held for a half hour, without any basis for believing that she'd done anything wrong.
That rant out of the way, let's go on to what happened in the courts of appeals last week...
In 2010, the 2nd District held that felony murder and felonious assault which caused the death were allied offenses. The State appealed, and the Supreme Court reversed and remanded for consideration in light of State v. Johnson, which had overruled State v. Rance and held that the focus in determining whether offenses were allied was the defendant's conduct. On remand, the 2nd District in State v. Alsup holds that "upon review of State v. Johnson, we conclude that it provides more support for our prior decision, not less," and again finds the offenses were allied... Also on the allied offense front is the 4th District's decision in State v. Abdi, which found that felony murder and aggravated robbery were allied offenses. I handled the appeal, and I'll have more on that in the next few weeks... In State v. Wiley, the 5th District holds that the test to determine whether reverse a trial judge's decision not to grant a continuance to a defendant because of a prosecutor's discovery violation -- "whether there was a willful violation of the discovery rules, if foreknowledge would have benefited the accused in the preparation of his defense and whether the accused was unfairly prejudiced" -- is to be applied in the conjunctive, not the disjunctive: all three prongs have to be met...
The 2nd District reverses a restitution order in State v. Rose, finding nothing in the record to indicate that the trial court had considered the defendant's ability to pay; notable here is the court's correctly requiring the record to affirmatively demonstrate that, rather than engaging in the fiction that the judge must have done so... Does Crawford v. Washington bar a police officer from testifying in a suppression hearing what a witness told him? In State v. Rhines, the 2nd District says no, basing its ruling on decisions of the US Supreme Court which have held that hearsay that would not be admissible at trial can be admitted at a suppression hearing, because "the interests at stake in a suppression hearing are of lesser magnitue than those in the criminal trial itself"... In State v. Plastow, the 5th District rejects the argument that a defective imposition of post-release controls renders invalid a search conducted by his parole officer, finding that there is no basis for suppression when the officer's belief that PRC was properly imposed is "objectively reasonable"...
Gun rights update. In State v. Stone, the 2nd District holds that a weapons under disability conviction can be based upon a minor misdemeanor marijuana conviction, even though the latter does not constitute a criminal record. That's in keeping with a decision from the 1st District and an earlier decision from the 2nd. Most troublesome about the decision is that while Stone raised a 2nd Amendment argument (which I discussed here), the court mentioned it, then didn't even bother to address it. The court concluded that "that appellee's arguments would be better directed at the General Assembly than the judiciary" in getting the law changed. One might respectfully suggest that appellee's 2nd Amendment argument would be better received if courts understood the changes in the law in that area wrought by Heller and McDonald, and appreciated the fundamental nature of the right to bear arms.
HB 86, the new sentencing reform package recently signed by the governor and slated to go into effect in September, does more than just reform sentencing: it also makes numerous revisions to the drug laws. Much of the change there is intended to achieve the bill's main purpose, which is to reduce Ohio's prison population by, in part, making it less likely that people will be sent to prison. Here's a short synopsis of the changes that HB 86 makes in the drug laws.
The first change comes in RC 2925.01, the definitional section of the chapter on drug offenses. Only one change there, but it's a biggie: say goodbye to crack cocaine. As every defense attorney and a lot of other people know, since the emergence of crack in the 80's, the law (both state and federal) has drawn a distinction between rocks and powder, with penalties for the latter requiring anywhere from 5 to 100 times more in amount than penalties for the former. For example, right now a five grams of crack will get you a third degree felony and a mandatory prison term. You could have up to 100 grams of powder before reaching that level.
But when we get to the trafficking statute (and the possession statute works the same way for the amounts), we find that what the legislature really did was change the amounts for the higher-level powder offenses so that it is in line with what defendants used to get for having that much crack. The penalties remain the same at the low end: five grams or less of cocaine, regardless of the type, is a fifth degree felony, and between five and ten grams puts you at a fourth degree. From there, though, things accelerate: the top level for a third degree felony is reduced from 100 grams to 20, for a second degree felony from 500 to 27, and 1,000 to 100 for a first degree felony. As before, a juvenile or schoolyard specification hikes it one level. (And, not to give anybody any ideas, but if you read the definition closely, it appears that if get caught with drugs in your house and your neighbor has a kid, you could get a juvenile spec; as long as the juvenile is within 100 feet, it doesn't matter whether you're aware that the juvenile is there or whether he sees you commit the offense.)
There's also a change in how imprisonment is handled. A fourth degree felony used to carry a presumption of imprisonment; it now basically requires a community control sanction except in certain circumstances, as I'll explain next week when we discuss HB's changes in sentencing. A third degree felony used to require a mandatory prison term, and still does, but only if the offender has two prior felony drug convictions; otherwise, there's simply a presumption of imprisonment. Conviction of a first or second degree felony requires mandatory imprisonment, and if the amount is over 100 grams, the defendant is a major drug offender and the court has to impose the maximum penalty for a first degree felony, which is now 11 years. One other thing, though: the additional penalty for a major drug offender specification -- an additional prison term of one to ten years -- has been eliminated.
Cocaine isn't the only drug to receive modified treatment under HB 86, but for the most part, the changes in other drugs merely pertain to sentencing issues, and parallel those with cocaine. A third degree felony for a Schedule I or II drug, like Ecstasy, used to require mandatory imprisonment for trafficking, but now only creates a presumption for imprisonment, as possession of the drug does. Trafficking in a Schedule III, IV, or V drug, in greater than bulk but less than five times bulk is still a fourth degree felony, but the presumption in favor of imprisonment has been removed. The same applies to fourth degree felony charges for heroin.
The amounts required for the upper-level penalties in marijuana trafficking have been changed. It used to be that more than 20,000 thousand grams would get you a 2nd degree felony and a maximum sentence; under the new law, you have to exceed 40,000 grams to reach that. Between 20,000 and 40,000 is still a second degree, but now gets you a mandatory prison term of 5, 6, 7, or 8 years. Possession gets you the same penalties, but as in all possession offenses, the difference is that juvenile and schoolyard specs don't apply. Hashish is given the same treatment: 1,000 grams of hash in solid form, or 200 in liquid form, used to get you maxed out on a second degree felony, but now the upper limits are 2,000 and 400, respectively.
The statute on meth manufacturing is also modified in the same respect, except that there's never any presumption in favor of community controls, primarily because all the offenses in that regard are third degree felonies or above. The modification is that mandatory prison terms, in some respects, have been reduced to presumptions in favor of imprisonment.
As I said, other than the treatment of crack and powder cocaine, the big changes in the law on drug offenses wrought by HB 86 is to make it more unlikely that someone's going to go to prison for committing those offenses. Next week we'll take a look at exactly how that works, not only drug offenses, but for other crimes as well.
Updating some stuff that I've done recently...
Date Rape. A couple of weeks back, I took a look at the question of the prevalence of false rape charges, noting that the issue is particularly problematic in the case of "date rape." That became even more problematic with a letter sent out by the U.S. Department of Education's Office of Civil Rights a few months back, to universities which receive any Federal funding. The letter concerned disciplinary procedures used at the universities for addressing complaints of sexual violence. Noting that the Supreme Court had applied a preponderance of the evidence standard for civil litigation involving sex discrimination, the letter put universities on notice that, for future disciplinary hearings regarding sexual harassment or violence claims, "in order for a school's grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the eivdence standard (i.e., it is more likely than not that sexual harassment or violence occurred.)" In other words, if the university employs the more common standard of "clear and convincing," it could lose Federal funding.
So you have a kid, let's call him Caleb Warner, who's brought before a disciplinary board at the University of North Dakota, which, using a preponderance of the evidence standard, concludes that he engaged in "violations of criminal or civil laws, sexual assault, and interference," based on allegations of sexual assault. Now, that's a bit more serious than having been found "guilty" of, say, water-ballooning some guys on the quad. Warner was banned from the university campus for three years.
That's a little worrisome, you say, but maybe not so much. It may be that the evidence was so overwhelming that it would have satisfied any standard, even proof beyond a reasonable doubt. After all, I haven't given any details of the offense.
In fact, I don't know any of the details of the offense. What I do know is this: Warner's accuser also reported the allegation to the local police department, and after their investigation, they concluded not only that the case against Warner wasn't any good, but that the alleged victim had lied. Three months after the university determined that Warner had committed the offense, his accuser was charged with making a false police report. A warrant was issued for her arrest; to date, she's failed to appear to answer the charges.
Well, that certainly had to benefit Warner, you say. You just go back in and ask for a rehearing in light of that development. That's what Warner did, only to be told that the 5-day time period for filing an appeal had expired. Besides, the university counsel said, the only new testimony would be the police conclusion that the victim had lied, and this would be "an unproven allegation."
Yeah, we certainly wouldn't want to take any action based on an unproven allegation, would we?
Tell it to the judge -- er, jury. Coming soon to a courtroom near you: You've got one of those aggravated shoplifting cases, where your client gets accosted by the security guard while leaving Walmart after having lifted some makeup and a couple of bottles of conditioner. Instead of meekly submitting, your client shoves the guy aside and bolts for the parking lot. She doesn't make it, but instead of just looking at a misdemeanor theft, she's indicted for third-degree felony robbery. No record, but the prosecutor won't budge, and you've got to try the case.
Good news, though: you caught a break in the arraignment room. You've got a very practical, results-oriented judge, and a bit defense-friendly, too, and you know he's not going to hang a non-expungeable felony conviction around your client if he can avoid it. Maybe find your client guilty of attempted robbery -- sure, there's no such thing (robbery includes an attempt), but it's not like the state can appeal. So in chambers the day of trial, you tell the judge that you're willing to waive a jury.
At which point the prosecutor says, "Well, we're not."
I've talked about HB 86, the new sentencing reform package. (In fact, I'll have a detailed summary tomorrow of its provisions dealing with drug offenses.) But the state legislature didn't shoot its wad on criminal law with that bill; presently in hearing before the House Judiciary Committee is HB 265, which amends various sections of the code so as to "authorize prosecuting attorneys to demand a jury trial in a criminal case, notwithstanding a defendant's waiver of trial by jury and over a defendant's objection."
If you're thinking, "Gosh, that's not constitutional," think again. (And you should probably stop saying "gosh," or people will think that you come to court in a Conestoga wagon.) The Constitution guarantees you the right to a trial by jury; it doesn't guarantee you the right to a trial by judge. In fact, in Federal court prosecutors have exactly the ability that HB 265 would give to state prosecutors: the right to insist that the case be tried to a jury, regardless of what the defendant wants.
But there are some practical ramifications to doing this on a state level. The Federal District Court for the Northern District here handles 2500 criminal cases a year; the Cuyahoga County Common Pleas court handles 10 times that many. As indicated by the example above, I think a defense lawyer's decision to recommend a jury waiver is motivated primarily by tactical concerns, but not always: There are some cases so bad that you just want to get them over with in a hurry. Usually, that means bad for the prosecution: if the defendant is going to balk at any reasonable plea deal, he's certainly not going to agree to waive a jury. But I can easily see a prosecutor's office instituting a policy of not waiving a jury, and the result will be many more jury trials of relatively stupid cases, with the concomitant costs on already-strained county budgets.
And that's what could strangle the bill in its cradle. Back in March, I told you about HB 77, which was written to overcome State v. Bodyke. Bodyke had held that reclassification under the Adam Walsh Act of previously-convicted sex offenders by the Attorney General violated the separation of powers doctrine, in that it represented an executive officer changing a court decree. HB 77 proposed to fix that by having courts scour their records for sex offenders convicted before AWA, bring them back to court, and reclassify them. The cost of doing that was apparently mentioned to somebody, because the bill never made it out of committee. A few complaints by judges and county commissioners could send HB 265 to the same fate.
Some people believe in Santa Claus. Some people believe in the Easter Bunny. Some people believe that sex offender registration and notification (SORN) laws, which impose requirements on what sex offenders have to do and rather severe sanctions on them if they don't do it, are merely "remedial."
I don't know whether five Ohio Supreme Court justices believe in Santa Clause or the Easter Bunny, but in State v. Williams last week, they made clear that they're not buying the "remedial" SORN laws line any more.
Williams had been charged in November of 2007 with having consexual sex with his 14-year-old girlfriend, five years his junior. He pled guilty shortly thereafter, and twice during Williams' plea colloquy the judge told him that his conviction wouldn't subject him to reporting requirements as a sex offender.
He wasn't sentenced until February 1, 2008, however, by which time the Adam Walsh Act had gone into effect. That law made unlawful sexual conduct with a minor a Tier II offense, requiring registration for 25 years. Williams argued that he should be sentenced under the law at the time the offense was committed, but the State argued that there was nothing to support that argument. And they were right. Punitive laws cannot be imposed retroactively, but "remedial" laws can. The SORN laws have been changed on numerous occasions, and every time the Ohio Supreme Court had previously considered the question of whether the new law could be applied retroactively, it concluded that the law was "remedial," in that the purpose was not to punish sex offenders, but to protect the public from them.
But the margin in support of that position had dwindled markedly. Back in 1998, in State v. Cook, the court reached that conclusion unanimously; ten years later, in State v. Ferguson, only a bare majority could be summoned to endorse it. When I discussed the oral argument in Williams, I noted that I didn't see any way the State could come up with four justices to support its view. The State in fact managed only half that number: McGee Brown, who'd replaced Moyer, and O'Connor, who'd written the majority opinion in Ferguson, joined the three dissenters from that case.
There are a number of interesting aspects of the opinion. First is that the court eschews analysis under the US Constitution's Ex Post Facto Clause and decides the case based solely on the Ohio constitution's prohibition of retroactive laws. This might have been a tactical move; as O'Donnell indicates in his dissent, joined by Cupp, every Federal circuit court which has considered the question of whether the national AWA violates the Ex Post Facto Clause has concluded that it does not; much easier to simply shift the battleground to the Ohio constitution than try to explain that away. It also precludes the possibility of any further review by the US Supreme Court.
This raises the question, though: does the Ohio constitution's prohibition on retroactive laws give more protection than the US Constitution? One of the problems is that the opinion concedes that there's no bright-line test for determining when a remedial law becomes punitive: "It is a matter of degree whether a statute is so punitive that its retroactive application is unconstitutional." Given that, and the absence of any attempt to distinguish the two constitutional provisions, it's impossible to determine whether one does provide more protections than the other, but it's something to keep in mind. Most likely, though, whether something is remedial or punitive is going to be determined by the "eye of the beholder," rather than any rigorous legal analysis.
That brings up another point. I've mentioned before that while appellate cases are supposed to be decided strictly on the law, it always helps to have good facts on your side. Williams' claim that the law was punitive was substantially aided by the specter of somebody being able to go on the Internet 20 years from now and finding his name and picture, along with the notation that he'd been convicted of having sex with a minor. As several justices noted in oral argument, that appeared to be a Draconian sanction for a 19-year-old sleeping with a 14-year-old. What were the facts in State v. Ferguson, where the court held that Megan's law was remedial, not punitive? Ferguson had been convicted of three counts of rape and one of kidnapping, had multiple convictions for rape and robbery in the previous 30 years, and psychological assessments indicated he had a high risk of committing another sexual offense.
Williams arguably answers another question that's been perplexing the courts. Since Bodyke, an offender who committed his offense prior to AWA was entitled to have his Megan's law classification restored, and could be subject only to the registration and notification requirements of that law. But what if he violated those requirements? For example, let's take a defendant who had been convicted of a 5th degree felony that required registration, and he twice failed to verify his address; the second violation was a fourth degree felony under Megan's law. Under AWA, though, a second offense is a third degree felony, and requires mandatory imprisonment for at least three years. Could a Megan's law offender be subject to the more severe sanctions under AWA? The 8th District, for one, has consistently held that he can't.
Williams doesn't address that precise question, and it's certainly possible to read the decision narrowly, as only holding that someone who commits an offense before AWA took effect can't be classified under AWA, even if his conviction came after the effective date. The syllabus, though, plainly states that the AWA, "as applied to defendants who committed sex offenses prior to its enactment, violates Section 28, Article II of the Ohio Constitution, which prohibits the General Assembly from passing retroactive laws." To me, that means not only that the classification can't be applied retroactively, but that the laws requiring registration, notification, verification, and so forth, and the penalties for violating those laws, can't be applied retroactively, either. A Megan's law defendant can only be prosecuted for violating the Megan's law requirements, and punished as provided in that law.
Finally, here's something else to chew on. The court has now said that AWA's provisions are punitive. You can't impose punishment without due process, specifically a hearing. AWA doesn't provide for that; classification is automatic, dependent solely upon the offense. An offender has no opportunity to claim that he should be exempt from the registration and notification requirements. Sure, Megan's Law imposed "automatic" classification in most respects; only for a sexual predator designation was a hearing required, and the court upheld that and rejected the due process argument in State v. Hayden in 2002. But that was because Megan's law was remedial. AWA is not.
I think Williams makes the AWA's entire classification scheme suspect. Defense attorneys should start raising that issue every time a client is charged with failure to notify or register or verify or any other offense under AWA, even if the defendant was convicted after AWA went into effect and "properly" classified under that law. File a motion to dismiss the charge on the basis that the defendant wasn't provided a hearing before being classified. If the classification is bad because he didn't have a hearing, then he can't be prosecuted for violating the requirements the classification imposed upon him.
I've sometimes wondered if any of the judges on the 8th District read my blog. That question was answered in oral argument this week. I had a case involving a Crawford issue, and my situation was greatly complicated by the fact that, six months earlier, the court had rejected the identical argument raised by a co-defendant in the same case. Different panel, but they'd still be bound by the earlier case. I figured I'd get around it by arguing that the prior panel hadn't had the benefit of Michigan v. Bryant, the Supreme Court case handed down earlier this year, which had clarified the definition of what constituted a testimonial statement (discussed here.) Not two minutes into my argument, one of the judges brought up the co-defendant's decision and asked why they weren't bound by that. "Well, as you know," I said, "I don't like to criticize this court's decisions --" which was immediately met by gales of laughter from the panel, one judge ascerbically noting, "At least not in oral argument."
So it's nothing but love this week, guys. Really. No, really.
Isn't technology wonderful? Five years ago, when someone would realize that post-release controls hadn't been properly imposed on some defendant, they'd transport the poor guy from prison so he could stand sullenly before the judge as he was told that he had a mandatory, not discretionary, three years of PRC. Now, through the miracle of science, when I handle one of those cases, I trudge over to the twelfth floor of the Justice Center, where the court and I get to videoconference with the defendant. Of course, the quality of the picture and sound makes it look as though the poor rummy is circling Earth in the space station, as opposed to merely being ensconced in Mansfield Correctional.
The tricky thing here is that CrimR 43(A)(2)(d) requires the trial judge, in a video conference, to advise a defendant, on the record, that he has the right to communicate privately with counsel. What if the judge doesn't? That question was raised in two cases over the past two weeks, State v. Sherels and State v. Edwards. In both cases, neither the defendant nor attorney had objected, so the court reviews it for plain error and finds none.
I'm not sure about this. For example, a court is required by statute to ask a defendant if he's a citizen, and if he's not, to give him the warnings about about the possible effects on his resident status contained in RC 2943.031(D). The court has reversed numerous cases for failure of a judge to give the required warnings, and not once has it applied a plain error standard. For good reason: waiver might apply where the judge does something and you don't object to it, but it's hard to see why you have to object because the judge was required to tell you something and didn't. Better reasoning would have been the court's second choice, which is that it is harmless error: given that the only purpose of the hearing was to properly impose PRC, it's impossible to see how there would've been a different outcome if the defendant had communicated privately with counsel.
The Valentine issue is raised in another pair of decisions. Valentine, of course, deals with "cookie-cutter" indictments, common in child molestation cases, where the indictment contains numerous counts alleging the same date and facts; e.g., twenty counts of rape, all alleged to have occurred between October 1, 2007, and January 31, 2009. In State v. Hlavsa, the court deals with the "double jeopardy" aspect of Valentine, which holds that the indictment or the evidence must be sufficiently specific to allow a court to decide what the defendant was actually convicted of. (For an example of what can happen if it isn't, read State v. Ogle, discussed here.) The court does an excellent job of closely examining the facts, affirms 15 convictions of rape on the counts where there was specific evidence, and vacates the 2 counts where the testimony was that "this happened about 30 times. Not that it matters much to Hlavsa, who got 10 years to life on each of the counts that did make the cut.
While the vast majority of Valentine cases have dealt with the double jeopardy aspect of "cookie-cutter" indictments, State v. Ferren deals with the notice aspect: the indictment must be sufficiently specific to allow the defendant to prepare a defense. Ferren, a music teacher, was charged with 50 some counts of sexual battery for a dalliance with one of his students, and 7 counts of unlawful sexual conduct with a minor for a dalliance with another. While the sexual battery counts each contained a separate one-month time period, the sexual conduct counts specified the same seven-month period. The Valentine court had rejected the notice argument, holding that a problem with specificity was common in child sex cases, and there was no indication the prosecution had any more specific information than it gave. The court in Ferren follows this reasoning, but in such a way as to imply that it is the defendant's burden to prove that the state did have more specific information. At any rate, an attack on the notice aspect is probably doomed to failure, as long as the state makes some effort to supplement information in a bill of particulars.
I've had a number of clients who were convinced that the police were specifically targeting them, although they were usually at a loss to explain why the police would bother. There may be times, though, that you think perhaps The Man is indeed singling out your client and prosecuting him for what others commonly do. Should the thought occur to you to pursue a selective prosecution case, check out Lakewood v. Calani, where Calani raises the "but everybody else does it" in defense of a prosecution for violating some sundry city ordinance requiring auto body shops to do their work indoors. Here's what you need to know: The defense of selective prosecution must be raised in a pretrial motion, and the defendant bears a "heavy burden" of making a prima facie showing that (1) others similarly situated have not been prosecuted, while defendant has, and (2) selection of defendant for prosecution was based on impermissible considerations such as race, religion, or desire to prevent him from exercise of his contitutional rights.
Here's one other thing you need to know, if you practice civil law. It's not unusual for personal injury lawyers to take advantage of the voluntary dismissal provision under CivR 41(A)(1)(a): you can dismiss the case up to the day of trial simply by filing a notice of dismissal. The rule says you can only do that once, but the courts have held that this only applies to the notice dismissal; if the case is dismissed for another reason -- a stipulation of dismissal by the parties, for example -- that doesn't count. You can then refile within a year under RC 2305.19, the savings statute, which gives you a year to refile a claim that's been dismissed "otherwise than upon the merits."
So let's say you have a medical malpractice case which arose in June of 2004. You file suit in May of 2005, and voluntarily dismiss the case in May of 2006. You refile it in March of 2007, but the court kicks it out because you didn't include the affidavit of merit from another doctor saying you had a valid claim. That's a dismissal without prejudice, so within a year, you take advantage of the savings statute again, and refile.
No, you don't, says the court in Graf v. Cirino: the courts have consistently said that the savings statute can only be used once, althought no language to that effect appears in the statute, because otherwise "a plaintiff could infinitely refile his action, and effectively eliminate statutes of limitations." It's hard to see how, given the limitation on voluntary dismissal. Good thing to keep in mind, though; you've got only one mulligan. If you use it and you subsequently get tossed for missing a pretrial or something like that, you're out of luck.
Like the sergeant said on Hill Street Blues, "be careful out there."
And finally, a life lesson from State v. Gunter: When the BCI analyst testifies that the chances the DNA found on your 11-year-old cousin's genital swabs isn't yours is 1 in 42 quintillion 140 quadrillion, you'd better have a pretty good explanation of how it got there. A story that your cousin Bernard kidnapped you, forced you to masturbate into a tissue, then made you give it to the cousin so she'd smear it on her vagina, isn't it.
Two weeks of cases to sort through, and I begin by learning what "viticulture" means: the growing of grapes. That's distinct from vinting, which is the making of wine from grapes, and the distinction is critical in Terry v. Sperry, which involves a zoning dispute. The court's syllabus says it all, at least as far as I'm concerned -- "the exemption from township zoning in R.C. 519.21(A) does not require for its application that viticulture be the primary use of property engaged in the vinting and selling of wine" -- and so, with our vocabulary suitably expanded, we move on.
The big decision was unquestionably State v. Williams, holding that the Adam Walsh Act was punitive, rather than remedial. That decision deserves its own post, which will appear here on Wednesday. A sign-o'-the-times decision was Hobbs v. Mullen, involving the Solomonic feat of splitting the baby between a lesbian couple. Mullen and Hobbs had been living together and had a child, with Mullen being artificially inseminated with the sperm from one of Hobbs' friends. The pair had entered into numerous agreements regarding the child, and then split up after several years, with Mullen denying Hobbs futher access to the child. The question for the court was whether "a parent's conduct with a nonparent created an agreement for permanent shared legal custody of the parent's child." The result, as is often the case, was dictated by the standard of review: the appellate court affirmed on the basis that the basis that there was "reliable, credible evidence" supporting the juvenile court's finding that the parties had not done so -- although everybody pretty much agrees that if the court had come to the opposite conclusion, there was plenty of "reliable, credible evidence to support that outcome, too -- and the Supreme Court affirms on that basis, 4-3. The majority suggests parties in such a position can apply for an order from the Juvenile Court under RC 2151.23(A)(2); unaddressed is whether such an order might run afoul of Ohio's constitutional amendment barring not only gay marriage, but prohibiting the State from creating or recognizing "a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage." Pfeifer may not be the justice on the court who provides the most penetrating legal analyses, but he has an uncanny ability to get to the heart of the matter, and he does so in his dissent:
Mullen was able to use the law as a weapon because same-sex coparents lack legal rights. The law has not caught up to our culture, and this court has failed to craft a rule that addresses reality... Mullen taught her daughter to call another woman "Momma" and to love her as a mother. She now wishes she hadn't, and for the majority, that's enough. It shouldn't be.
Lots of stuff in the courts of appeals from the past two weeks, so let's sift through the criminal decisions there...
Defendant charged with inducing panic because of his refusal to allow entry into apartment to police officers responding to domestic violence call; 1st District reverses conviction, says police can't be "'inconvenienced' within the meaning of the inducing-panic statute when they were simply asked to perform their duty of enforcing the law"... 6th District upholds search of victim's residence which discovered certain items belonging to defendant boyfriend, says that while defendant was an overnight guest there on some occasions, did not have standing to object to search because no evidence that he was going to be an overnight guest on this occasion... 2nd District affirms conviction after bench trial of trafficking in marijuana, but remands case for determination of whether transaction was a sale or a gift; conviction of latter would only be a third degree misdemeanor under RC 2925.03(C)(3)(g)... 10th District rejects State's argument that trial court couldn't grant Rule 29 judgment of acquittal where state failed to prove venue, since venue isn't an element of the crime; it's not, but the State still has to prove it, and if they don't, a Rule 29 is appropriate...2nd District rejects contention that trial court can't deny motion for treatment in lieu of conviction based on defendant's juvenile record... 8th District notes that while case law holds that operate" a vehicle for purposes of OVI or DUS statutes requires only that key be in ignition, statute was amended in 2004 to define "operate" as "to cause or have caused movement of a vehicle"; that didn't happen where defendant got in and out of car that had motor running, but car never moved... Defense counsel's claim in opening statement that shooting of wife was accidental opened door to other acts testimony about previous violence between defendant and wife, says 12th District...
Gun rights update. In State v. King, the 2nd District examines the question of whether the 2nd Amendment prohibits a conviction for improperly handling a firearm in a motor vehicle. The court finds that it doesn't, which is probably correct, but its analysis is pretty muddled. There's still some question as to whether a gun restriction has to be evaluated under a strict scrutiny or intermediate scrutiny test, as discussed here, but the 2nd uses a rational basis test -- "legislation will not be invalidated unless the challenger establishes that is unconstitutional beyond a reasonable doubt" -- which is completely inappropriate. In other places, they cite the Ohio Supreme Court's 2003 decision in Klein v. Leis upholding the carrying concealed weapon statute against challenge under the Ohio Constitution, holding that regulations are "constitutionally permissible if they impose reasonable limitations upon an individual's right to bear arms"; Klein was before both DC v. Heller and McDonald v. Chicago, and there's little to suggest that "reasonable" limitations can suffice to restrict a fundamental right. I'm a big fan of the 2nd District; they usually provide some of the best-written opinions of any court in the state. This wasn't one of their better ones.
Next time I'll just shut up. The bad news for the defendant in the 10th District's decision in State v. Chandler was that the court rejected his arguments that his attorney had been ineffective and the trial judge had erred in admitting hearsay testimony. The worse news was that he'll wind up serving almost six months more than he would've if he hadn't appealed. The State cross-appealed, and the appellate panel agreed that, although he was in jail for 255 days before trial, 169 of those came from the revocation of his probation in a previous case, and he wasn't entitled to jail credit for those.
Yeah, that'd make a difference. In State v. Bryant, the State had obtained a search warrant for drugs largely based on the allegation that the defendant's propery had a much higher rate of electricity consumption, an indication of a drug grow operation, than a neighboring property. The neighboring property belonged to an Amish family. The 5th District tossed the search.
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