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Case Update

No new decisions from DC.  There's one criminal case on the docket for oral argument this week, Setzer v. US, which presents the question of whether a Federal judge can order a sentence to be served consecutively to a state sentence that hasn't yet been imposed.  The Court concludes its oral argument for the year the following week, but it's going out with a bang:  one of the cases, Williams v. Illinois, provides another Crawford question, this time whether an expert witness can testify about the results of a DNA report performed by a non-testifying analyst.  I'll do a preview of the oral argument on that one later this week.

Down in Columbus, a multitude of significant decisions from the Ohio Supreme Court.  Oops, hold it, that was in a parallel universe.  In this one, other than a solitary disciplinary ruling chastising an attorney for having a sexual relationship with a client, there was nothing.  As regular readers know, I do this Case Update every Monday.  I'm thinking of renaming it, "All Quiet on the Scioto Waterfront."  If you don't know what that means, look up "Scioto River."  That's what God created Google for.

There were some oral arguments in the past few weeks, and so it's certainly possible that the court will eventually issue decisions resolving those cases, and I'll get to write about it.  A couple weeks ago, for example, it heard one on whether the failure of a judge to impose a mandatory driver's suspension on a drug offender renders the sentence void, and requires a de novo resentencing, or whether he's only entitled to a sentencing hearing limited to the suspension issue.  Frankly, I don't think I will be writing about that one, because it's stupid.  The answer is, "What's behind Door B."  Let's move on.  Equally stupid was another case presenting the issue of whether the crime of discharging a firearm from a motor vehicle was committed when the defendant fired the gun while standing on the ground immediately outside the car, from behind an open door.  I did watch some of the oral argument in that case -- there's twenty minutes of my life I'll never got back -- which was more than sufficient to allow me to write the opinion in that one, too:  "Defendant loses."

My spleen suitably vented, let's see what happened the appellate court judges managed to get done before going off to increase their cholesterol levels...

In State v. Grooms, the defendant argues that his sentence was void because of a Pelfrey violation -- the verdict form finding him guilty of second-degree felony child endangering didn't contain the degree of the offense or any aggravating element, and thus should have only been a conviction for a minor misdemeanor.  He's right about the form, says the 9th District, but wrong on the issue of voidness:  the statute at issue, 2945.75, is not a sentencing statute, and thus does not affect the validity of the sentence.  That could have been raised on appeal, but wasn't, so our old friend Ray Judicata takes care of that...  The 8th District holds in Cleveland v. Palik that post-conviction relief, not a motion under CivR 60(B), is the appropriate method of making a post-conviction challenge... After the State's key witness refused to testify at a murder trial because she was in fear for her life, the judge granted a mistrial; in State v. Clark, the 1st District holds that the mistrial was based on manifest necessity, and that double jeopardy didn't prevent a retrial... A lengthy, and excellent, opinion from the 10th District in State v. Yahya, finding that the judge erred in denying a hearing on a motion to withdraw a plea based on counsel's failure to properly advise his client of the possibility of deportation.  The court distinguishes between the simple failure to advise, which is usually cured by the judge's giving the warning required by RC 2943.031, and incorrect advice, as happened here... In State v. Graves, the 9th District grants a petition to reopen, finding that appellate counsel was ineffective for failing to raise the issue of allied offenses, even though the sentences imposed were concurrent, and insufficiency of the evidence that defendant possessed drugs found in a car in which he was a passenger...

In State v. Simmons, the 8th District concludes that a board-certified nurse and certified nurse examiner had sufficient qualifications to give expert testimony on the issue of whether the victim's injuries were consistent with a beating, and that marks on the victim's neck were indicative of attempted strangulation... In State v. Williams, the 1st District affirms the grant of a motion to suppress in an OVI case, finding that "a a slight to moderate odor of an alcoholic beverage and bloodshot eyes, along with the potentially lengthy lapse of time between an afternoon arrest and an admission of drinking the night before" didn't establish probable cause for an arrest.  Notable about the decision is that the defendant was 20-years old, and the courts have held that the standard for probable cause is reduced because of the much lower prohibited per se limit (.02)... A trial court does not have authority to modify a sentence for trafficking drugs because of the reduced penalties for crack contained in HB 86, the 5th District rules in State v. Fields; the legislation clearly provides that it is not to be imposed retroactively, but applies only to sentences imposed after its effect date of September 30, 2011...  A trial court does not have jurisdiction to rule on a motion to withdraw a plea while an appeal is pending in the case, the 8th District holds in State v. Thomas...

There's a job I want.  In State v. Jones, the defendant was convicted of rape and aggravated murder in the strangulation death of a woman.  In a post-conviction proceeding, he claims that his lawyers were ineffective for failing to argue that the death resulted from consensual sex in which Jones' partner had asked to be choked.  In support of the contention, he submitted an affidavit of Jay Wiseman, "who claimed to be an expert on alternative sexual practices."

The 9th District wasn't buying that, but did agree that the judge should have held a hearing on the claim of ineffective assistance during the penalty phase.  The opinion's a very good read on that aspect, although it's not authority; two judges concurred only in judgment, finding that the opinion's author relied too heavily on the ABA Guidelines on handling death penalty cases.  The US Supreme Court dealt with that issue a couple years back, holding in Bobby v. Van Hook that the guidelines are not "inexorable commands with which all capital defense counsel must fully comply."  (Decision discussed here.)

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