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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

SCOTUS sprang into action last week, if "sprang" is the appropriate verb to describe a court in which the jurists average just north of 65 years of age.  (Then again, it's sobering to realize that three of them are younger than I am, calling to mind Tom Lehrer's observation, "when Beethoven was my age, he'd been dead for three years.")  No decisions, of course, just arguments.  One, Maples v. Thomas, I'll discuss on Wednesday.  Howes v. Fields is another, involving the question of whether a prisoner is in custody for Miranda purposes when he's told during seven hours of questioning that he's free to leave the cell and return to the prison population.  The concept of whether someone in prison feels free to leave is hard enough to wrap your head around, but complicating the situation is that, as so often happens in criminal appeals, the case arises through habeas, with the result that the question is not merely whether the prisoner should be deemed to have been in custody, but whether there was clearly established law by the Supreme Court on that point.  "That's some catch, that Catch-22," Yossarian would have opined on this:  if the law was clearly established, there would be no need to hear the case, would there?

In the category of Least Unanticipated Events, we have the Ohio Supreme Court's unanimous decision last week in State v. DavisDavis, convicted of murder and sentenced to death, had filed a motion for new trial, claiming that new evidence concerning DNA would exculpate him.  The trial judge disagreed, and things got funky when Davis appealed that to the 5th District.  There's a 1978 Supreme Court Case, State ex rel. Special Prosecutors v. Judges, which held that a trial judge couldn't grant a motion to withdraw a plea after the conviction had been affirmed by the court of appeals, and the decision has been read more broadly to include the proposition that a trial court loses jurisdiction over a case after an appeal is filed, even when the appeal is over.  The 5th District came to the conclusion that this prevented a trial judge from granting a motion for new trial as well.  Not to put too fine a point on this, but as I explained when I discussed oral argument in the case, the result is pretty much nuts.  Davis clarifies two points.  First, a trial court has jurisdiction to consider a motion for new trial on the basis of newly-discovered evidence even after an appeal; in fact, although the court's syllabus is limited to that, and even then only in the context of capital cases, the proposition arguably should be that a trial court has jurisdiction to do anything that's not inconsistent with the appellate court's ruling.  Second, the 1994 amendment to the Ohio Constitution providing for bypassing the courts of appeals and for direct appeal to the Supreme Court only apply to the decision imposing the death sentence; a court of appeals still has jurisdiction to review any post-trial motions in such cases.

On to the courts of appeals, which exercise their jurisdiction every day...

In State v. Hall, the 8th District holds that possessing a single small baggie of marijuana is a minor misdemeanor, and doesn't support an arrest; as a result, any evidence which is found as a result of that arrest must be suppressed.  A note to appellate lawyers, though:  the trial judge had rejected Hall's contention that the stop itself was illegal, and allowed in certain evidence resulting from that.  Hall contends that the judge was wrong about that, but the court holds that, to raise that issue, Hall should've cross-appealed; because she didn't, the court won't consider it... In State v. Zeune, the trial court had imposed a non-mandatory four-year sentence for third-degree felony drug trafficking, stating that defendant would be eligible for judicial release.  Problem:  the crime carries a mandatory prison sentence.  Because it's unclear what sentence the judge would have imposed had he realized that Zeune was not eligible for judicial release, the 10th District vacates the sentence and remands the case for resentencing... State v. Rader involves the issue of whether Miranda warnings initially given a suspect remain effective during subsequent interrogations.  The 9th District finds that they did in the three interrogations conducted over about four hours, and contains a good summary of the law on that issue.  Rader also claims that the trial court erred in giving the jurors transcripts of phone conversations played in court, but the panel finds no problem with that...

In State v. Ashby, the 8th District again rejects the practice of numerous judges here resolving low-level felonies by imposing a sentence of the time the defendant has served in jail awaiting trial.  Can't do that, the court says:  while jail time is an appropriate community control sanction, trial judge must still place the defendant under the supervision of the probation department. This is arguably wrong; the law requires a trial judge to place a defendant under supervision for the purpose of reporting any violation of any sanctions, and here there's no sanction to violate... Pre-test instrument checks and calibration reports on a breathalyzer were not testimonial under Crawford, and the trial court erred in excluding them because the person who performed those tests did not testify, says the 3rd District in State v. Wolfle... Convictions for robbery and possession of criminal tools based on presenting a note to a bank teller involved the same conduct, and thus the offenses should have merged, says the 12th District in State v. Clay...

This makes Rance seem sensible.  There is probably no area of Ohio criminal jurisprudence that has led to more absurd results than post-release controls, but the apogee in that was probably reached in the 8th District's decision last week in State v. FalkensteinFalkenstein was convicted of 41 counts of rape of a child under 13, and given consecutive sentences of life with parole eligibility after 20 years.  Having nothing better to do, he moved pro se for a resentencing because he wasn't told about PRC.  The trial court denied the motion, holding that PRC doesn't apply because when Falkenstein gets out of prison sometime around the middle of the 29th century, he'll be on parole, not PRC.  The 8th District reverses, though, based upon the Supreme Court decision which held that a defendant can be placed on PRC, even if he's on parole for the same offense.  Scientists recently discovered a planet about 20 light years away that is somewhat similar to earth and might support life.  Perhaps they will somebody discover a planet where this all makes sense, but I wouldn't get bank on it.


Recent Entries

  • November 15, 2017
    What's Up in the 8th
    Plea withdrawals (again), sexual predator hearings, and an appellate law question
  • November 7, 2017
    What's Up in the 8th
    Don't listen to prosecutors about the law, good new/bad news jokes on appeal, and the Byzantine course of a death penalty case
  • October 24, 2017
    What's Up in the 8th
    Trying to change the past
  • October 16, 2017
    En banc on sentencing
    The 8th District takes a look at what State v. Marcum means
  • October 13, 2017
    Friday Roundup
    Musings about the death penalty and indigent defense
  • October 11, 2017
    Case Update
    SCOTUS starts its new term, and the Ohio Supreme Court hands down two decisions
  • October 10, 2017
    What's Up in the 8th
    Collaboration by inmates, fun in Juvenile Court, the limits of Creech, and more
  • October 5, 2017
    State v. Thomas
    The Ohio Supreme Court reverses a death penalty conviction
  • October 4, 2017
    Russ' Excellent Adventure
    A juror doesn't like me. Boo-hoo.
  • October 3, 2017
    What's Up in the 8th
    What not to argue on appeal, waiving counsel, the perils of being a juvenile, and expert witnesses