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What's up in the 8th

Timing is everything, the comedians tell us, and William Newrones and Anthony Walker can vouch for that.  Newrones finds out that he's too early, and Walker learns he's too late.  Besides time-keeping, we learn a little bit about shoplifting and counterfeit money.  Good week for us, bad week for defendants:  even the City of Cleveland wins an affirmance, and I'd have to check, but I don't think that's happened since Monica Lewinsky got that dress cleaned.

Newrones walked out of a Sears store with over $500 worth of video games that didn't belong to him, and got convicted of a felony five theft.  That's wrong, his lawyer argues on appeal, noting that HB 86 increased the threshhold for a felony theft conviction to $1,000.  True, but this is where it pays to read the fine print in legislation.  The not-so-fine print, actually; as the court points out in State v. Newrones, HB 86 didn't take effect until September 30, 2011, about five months after Newrones was sentenced.  The panel uses the conviction date as the critical one, but that's wrong:  had Newrones been sentenced after the effective date, RC 1.58 says he could still have claimed its benefit even though he'd committed the offense and been convicted of it before that.  It's the date of sentencing that controls.

But what does it control?  Obviously, the punishment:  under HB 86, stealing less than $1,000 is a misdemeanor, so Newrones would have been entitled to a misdemeanor sentence.  Would he have been entitled to have the offense classified as a misdemeanor?  There's an argument to be made for that.  RC 1.58 distinguishes between "penalty, forfeiture, or punishment," and you could contend that penalty and punishment are two different things:  punishment involves the fine or incarceration, and penalty involves the classification of the offense.  It's an argument that couldn't be made in Newrones' case, however.

Under different circumstances, Wiley Ivory may have had a better argument, too.  He was convicted of rape and kidnapping back in 2001, and ten years later filed a motion for resentencing, asserting that his convictions for rape and kidnapping should have merged as allied offenses.  Too late, says the court in State v. Ivory:  that argument could have been raised on his direct appeal from his conviction, so it's res judicata.

They're right:  even under State v. Rance, the law governing allied offenses at the time, kidnapping and rape were regarded as allied; the court said precisely that five years after Rance in State v. Adams.  (In fact, Adams never mentioned Rance, leading some appellate courts to believe that Rance had been implicitly overruled.)  So Ivory could have raised the argument.  But what if the offenses were clearly not allied under Rance, but would be allied under State v. Johnson, which overruled Rance and articulated a wholly different test for allied offenses?  You can hardly fault a defendant (or his lawyer) for not raising allied offenses if, under the law at the time, the offenses weren't allied.

While that would arguably overcome the res judicata problem (and only arguably; I don't know offhand of any law to that effect), there's another problem.  Normally, new decisions only affect those cases that are pending or on direct review.  Johnson obviously doesn't permit defendants who were sentenced five, ten, or fifteen years ago from now contending that their cases should reopened so the sentences can be merged.

Another defendant who falls on the wrong side of the timeline is Anthony Walker.  He was convicted of aggravated murder back in 1996, and filed a motion with the trial court in 2011, claiming that the journal entry of his conviction was void because it didn't include the fact that he had been convicted after a jury trial.  The judge made a nunc pro tunc entry changing the conviction entry to reflect that, but Walker appeals, claiming that the nunc pro tunc process can't be used to cure such an error.  That would've been true before State v. Lester came out last year, but it's not any more; Lester (discussed here) clearly approves the use of that tactic, and so does the court here in State v. Walker

Somewhat puzzling is the dissent, which argues that the appeal should've been simply dismissed on the basis of Lester, and states that "no reasonable grounds existed to file the appeal or to pursue it once Lester was decided."  While making an appellate argument that is specifically rejected by a controlling Supreme Court opinion is to be avoided, it's sometimes necessary, if you wish to preserve the issue for Supreme Court or federal review; I certainly know of no basis for dismissing an appeal for that reason, rather than simply affirming the lower court's ruling.  What's more, the dissent makes it seem as though the appeal was wholly frivolous, and it wasn't; Lester came down a mere 11 days before the appellant's brief was filed.

Finally, the City of Cleveland gets back in the win column with Cleveland v. Brown, which provides three brief lessons for those engaged in criminal endeavors.  The first is that counterfeiting is not merely a federal offense.  In fact, the Feds probably aren't going to get too excited if all you're doing is handing out fake Jeffersons at a strip joint.  But it is a violation of Ohio's criminal simulation statute, and the local cops probably will become interested.

Second, if you're going to do it, admitting that you've done it to the club owner, and trying to buy back the bogus bills with real money, is probably going to severely impact your chances of winning an appeal on grounds of insufficient evidence.

Finally, if your bills are so phony-looking -- the opinion notes that the bills were made of "dull and coarse paper," that the margins were off center, and that they had the same serial number -- that even the stripper notices, you should probably look for a new line of work.

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