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Case Update

SCOTUS may still be three weeks away from oral argument, but that doesn't mean the court's closed for business.  The justices will have their first conference two weeks from today, and one of the petitions they'll be looking at is US v. Krieger.  One of the new It Drugs is fentanyl patches, normally applied to the skin for pain management; druggies either chew them or inject them, which can have calamitous effects.  Jennifer Curry found that out when she died after chewing one that her friend Jenny Krieger had sold her.  Initially, Krieger was indicted for distribution of drugs with death resulting, but after the government's key witness, a doctor, fled the country because he had his own troubles, including giving a patient he slept with prescriptions for narcotics, the grand jury issued a superseding indictment dropping the "death resulting" language.  The government nonetheless argued that the death did result, thus triggering a mandatory minimum sentence of 20 years.  The trial court agreed, finding that the government had shown by a preponderance of the evidence that Krieger's actions caused Curry's death, although it would not have found this beyond a reasonable doubt.  The 7th Circuit affirmed, discussing at length the difference between elements and sentencing factors, and the Supreme Court could decide that the case is the appropriate vehicle to re-examine the Apprendi/Blakely line.  More on that later, depending on what happens.

Down in Columbus, the only decision of note was BWC v. McKinley.  Back in the Golden Days of plaintiff's tort litigation, if your client happened to be on the job when she had the accident giving rise to a personal injury claim, you'd hit the perfecta:  she could collect under workers comp and still get paid in full by the tortfeasor's insurance company.  The legislature put an end to this back in 1995, allowing the Bureau to be subrogated to any payments received by a claimant from a third party.  In McKinley, the court holds that sloth in pursuing that subrogation interest has its penalty:  the state is subject to the same 6-year statute of limitations as anyone else would be in that situation.

Nothing else, and no oral arguments in any criminal cases scheduled until October, so let's head over to the courts of appeals...

In State v. Jerninghan, the trial court announces a sentence of six months for a breaking and entering conviction, whereupon the defendant reminds the judge that he filed a pro se motion to vacate his plea.  The court has the hearing, denies the motion, then sentences him to eight months.  The 8th District affirms, finding that since the first sentence wasn't ever finalized, it didn't count... In State v. Russell, the 10th District affirms the denial of a motion for new trial on timeliness grounds, where the motion included an affidavit that had been signed eight months before the motion was filed.  The defendant had filed at least two motions for new trial before this, arising from his 2003 murder conviction... If you tell the police that you're the only one living in a house, and they find cocaine in a closet next to the only bedroom that is occupied, it's going to be tough to claim that the state didn't prove you possessed the drugs, the 9th District decides in State v. Williams...

If the trial court imposes costs in the journal entry but fails to do so at the sentencing hearing, the case has to be remanded, says the 9th District in State v. Stallworth; the defendant has to be given the opportunity to seek a waiver of costs... Where the defendant doesn't raise an issue in the trial court as grounds for his motion to withdraw his plea -- in this case, that the court didn't make sure he understood the counts to which he was pleading guilty -- the appeals court won't consider it, says the 10th District in State v. Knowles... A letter from a captain in the sheriff's department to the judge seeking the "longest possible punishment" for the defendant was a breach of the state's promise to recommend a sentence of not more than four years, says the 2nd District in State v. Liskany, deeming the captain to be a "state agent"...

Second chances.  In State v. Collins, the 2nd District rejects a claim of ineffective assistance of counsel based on counsel's failure to seek a judgment of acquittal in a protective order violation case, where the prosecution had forgotten to introduce the order.  The court concluded that if the attorney had moved for a judgment of acquittal, the trial judge would have simply allowed the state to reopen its case and introduce it.

Sometimes it's better to just shut up.  In State v. Pettyjohn, the defendant filed a motion for resentencing, arguing that the trial court's entry failed to properly impose post-release controls.  The trial court agreed, held a de novo sentencing hearing -- as required by the Ohio Supreme Court's decision in State v. Singleton -- and modified the sentence, reducing it from 19 years to 15.  Pettyjohn filed two more motions asking for corrections to the journal entry, and when the trial court denied the latter, Pettyjohn appealed.  Then last December the Ohio Supreme Court ruled in State v. Fischer that when a trial court improperly imposed post-release controls, the only thing it could do was properly impose them; any other modification to the sentence was forbidden.  The 9th District finds that the trial court exceeded its jurisdiction in modifying the sentence, so Pettyjohn gets to serve the 19-year sentence.

You mean I have to come up with an explanation for everythingIn State v. Jarvis, the 9th District affirms defendant's convictions for sexual battery.  Jarvis had claimed that the sex was consensual, but one witness testified he saw Jarvis climbing through the victim's window after she'd locked him out, and the appellate panel dryly noted, "Jarvis has not attempted to explain why he would need to gain entry through Lipovsky's window if she, in fact, wanted him in her apartment and wanted to engage in sexual intercourse with him."


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