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Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


Case Update

It's still two months before the Supreme Court opens its 2011 term, but speculation is already building.  Not so much about the 42 cases already on the Court's docket, but some big political cases that could wind up there, and be decided just before the presidential election:  health care, affirmative action, and gay marriage (actually, the constitutionality of the Defense of Marriage Act).  There are some other ones, too, including whether FCC regulations of broadcast TV violate the First Amendment, another Crawford case on expert testimony, how use of a GPS device by the police implicates the Fourth Amendment, and whether an attorney renders ineffective assistance by failing to communicate a plea offer to a client.  In the next few weeks, I'll start doing previews of some of the upcoming cases.

The Ohio Supreme Court on Tuesday "announced three merit decisions with opinions," but, like the knob on the toaster which assures us that it will produce nicely-toasted bread instead of slabs of charred dough, that's not quite true.  Two of the cases  concerned an attempt to vacate an entry to have a judge properly impose post-release controls, and the third challenged an indictment; in each case, the "opinions" each consist of  a paragraph or so rejecting a writ of habeas corpus or mandamus as a means of doing so.  Adequate remedy at law, and all that.  Oh, and in one case, the defendant forgot to attach a copy of his commitment papers, and in another, didn't file a statement of his inmate account "for each of the preceding six months, as certified by the institutional cashier," each of those on its own rendering the petition fatally defective.  For all the talk of the relaxed standards of "notice" pleading, state habeas work is one area where hypertechnicality reigns supreme.

On to the courts of appeals, where men are men, women are women, and opinions are opinions...

In State v. Hopkins, the 6th District rejects an Anders brief; defendant filed a motion for resentencing based on improper imposition of post-release controls, which was denied and appealed, and while the appeal was pending, the trial court held a new sentencing hearing and properly imposed PRC.  Hopkins' appellate counsel deemed this sufficient and filed the Anders brief, but the appellate court notes that the trial judge had no jurisdiction to resentence Hopkins because of the pending appeal; it appoints new counsel for the appeal...  The 8th District concludes in State v. Gulley that felonious assault and domestic violence are allied offenses and should have merged, as has every court to consider that scenario since the Supreme Court overruled State v. Rance last December in State v. Johnson... The 9th District holds in State v. Lewis that failure of a court to impose a mandatory fine in a drug case does not render the sentence void; there's some contrary law from the 1st and 8th Districts...

The 37 days the trial court spend before ruling on defendant's motion to suppress wasn't unreasonable, says the 5th District in State v. Powell, rejecting defendant's speedy trial claim...  Complicity to commit an offense can be inferred from conduct after the fact, says the 9th District in State v. Wilson...  Electric monitored house arrest does not entitle a defendant to "jail-time credit," the 5th Circuit decides in State v. Franklin...

You want me to wear that?  In State v. Lewis, the 6th District rejects an ineffective assistance of counsel claim.  Lewis, a truck driver, got into an argument with his wife and kids, then took off with them from a rest stop; she'd called 911, and Lewis ultimately led police officers on a 98-mile chase before pulling over.  He claimed to have no memory of the event, and argues that his attorney should have therefore filed a plea of not guilty by reason of insanity.  The court's not buying.  It also rejects his claim that he was forced to wear jail clothes during trial.  His attorney had actually gone out and bought some clothing for him, but Lewis refused to wear them because he felt they were too large.  That might have been a better basis for an insanity plea.

An ounce of prevention.  It's a bear to file an appeal, read the transcript, prepare the briefs, and go over and argue the thing, only to have the court kick the case out for lack of a final appealable order.  The 8th District has done that three times in the past two weeks.  Two cases, State v. Jones and State v. Bohanon, involved the same judge and the same reason:  lack of specificity in the forfeiture specification.  In Jones, it was "defendant to forfeit to State:  All weapons involved in this case"; in Bohannon, it was "defendant to forfeit:  two guns."  That's not sufficient, says the court, where there's nothing in the record to indicate what guns we're talking about.  Another case, State v. Singh, was kicked out last week because the judge failed to impose separate sentences for the two convictions.  Considering the work involved in an appeal, it may behoove you, if you're doing one, to spend a little time looking over the journal entry to make sure the judge got it right.

SCOTUS Factoid of the Week.  That the Court is essentially conservative is indicated by the fact that the four justices least frequently in the majority last term were Kagan (67%), Sotomayor (64%), Breyer (60%), and Ginsburg (50%).  Kennedy's status as the swing justice is confirmed by the fact that he voted with the majority 88% of the time, the most on the Court; Roberts was second at 83%, and the three other conservative justices voted with the majority three-quarters of the time.


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