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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

The US Supreme Court justices have their first conference of the term this weekend, where they'll decide what cases they'll want to hear, in addition to the 42 in which they've already granted cert; that's about half the number of cases they decided last year.  In Columbus, only one decision, Dohme v. Eurand AmericaDohme was employed as the facilities administrator for Eurand, and his duties included maintaining the plant's fire-protection system.  Prior to the arrival of an insurance adjuster, Eurand instructed everyone that only certain employees were to have contact with the adjuster.  Dohme wasn't on the approved list, but talked to him anyway, suggesting he look into what Dohme believed was the disappearance of an internal monthly report on overdue fire-alarm inspections.  Dohme was fired for insubordination, and sued, claiming his discharge violated public policy.  The trial court tossed it on summary judgment, the court of appeals reversed, but the Supreme Court reversed that and reinstated the trial court's ruling.  One of the elements of a public policy wrongful discharge case is called the "clarity" element, that there be a clear public policy against firing people for that reason.  The court decides that the clarity element needs added clarity, and so clarifies it thusly:

To satisfy the clarity element of a claim of wrongful discharge in violation of public policy, a terminated employee must articulate a clear public policy by citation to specific provisions in the federal or state constitution, federal or state statutes, administrative rules and regulations, or common law.

So, when the legislature or some agency gets around to enacting a statute or regulation prohibiting the immolation of employees, people like Dohme can speak their mind.  Not until then, though.

Here, we have a clear public policy of reviewing the criminal decisions of the Ohio courts of appeals, so let's get to that...

It used to be that if a court screwed up post-release controls and had to do a resentencing, the defendant could file a motion to withdraw his plea and have it treated under the pre-sentence standard.  Why?  Because the sentence was void.  In State v. Robb, the 1st District notes that those days are over since the Supreme Court held in State v. Fischerthat only the portion of the sentence dealing with PRC was void; withdrawal of a plea now must meet the much stricter standards of a post-sentence motion... In State v. Bray, the 2nd District finds that having weapons under disability, carrying concealed weapons, and carrying a firearm into a liquor establishment aren't allied offenses... In State v. Jefferson, the 8th District determines that trial counsel was ineffective for failing to request a jury instruction on how 404(B) evidence was to be utilized.  The decision also deals with GPS devices, and we'll talk about that in detail on Wednesday...

Yes, you can be charged with resisting arrest just for going limp, as the defendant learns in the 2nd District's decision in State v. Hawkins-McKinney... Although I give the 6th a hard time in a sentencing decision (see below), it makes up for it with an excellent decision in State v. McClain, on an Anders brief, no less.  The court concludes that the State's notice to the defense under RC 2925.51 of the results of a lab test might have been deficient because it didn't include the advisement that failure to demand the appearance of the analyst at trial would result in the report being admissible.  The court appoints another attorney to pursue the issue... Exigent circumstances allowed the police to enter the defendant's house without a warrant, the 5th District holds in State v. Wilson; defendant's vehicle was found at the scene of the accident with blood in it, and there was blood on the outside of a door when officers arrived at defendant's residence...

Great sentencing decision.  While the 8th District is the standout court in Ohio for 4th Amendment decisions, the 2nd District gets the award for consistently providing excellent decisions on sentencing, a reputation it burnishes in State v. Nichols.  Nichols, an elementary school janitor, pled guilty to four counts of gross sexual imposition involving the touching of girls "on their butts and pubic area of their skirts," although "no skin-to-skin touching" occurred, and appealed from the maximum consecutive sentences he was given.  In any other district, the court would shrug that off with the observation that it was within the statutory limits, and that the judge's routine reference to the sentencing factors meant he'd considered them, and even if he didn't mention them, the court would presume he considered them.  The Nichols court likewise concludes that the sentence wasn't contrary to law, but engages in a lengthy analysis of the seriousness and recidivism factors under RC 2929.12, and determines that they don't support the sentence.  If you want to read what an appellate opinion on sentencing should look like, Nichols is it.  By contrast, the 6th District in State v. Clark considers near-maximum sentences for felonious assault, and holds that "where the trial court's sentence was within the statutory limits, the trial court's sentence cannot be considered an abuse of discretion, absent some extraordinary circumstances."  It then devotes an entire sentence to the determination that -- quelle surprise -- no extraordinary circumstances existed.  The 6th does do a fine job with hearsay in another decision, though, that we'll talk about on Friday.


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