Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »

×

Case Update

No decisions from SCOTUS this week, and none expected next week; there are 26 cases which were argued and have yet to be decided in the seven weeks remaining in the term.  Attention is already turning to some of the cases in the pipeline for next term, and one petition up for consideration in the justices' conference on Thursday is Robbins v. Texas, which considers the issue of whether a defendant is entitled to a new trial when the expert medical witness whose testimony convicted him now deems that testimony wrong, in light of subsequent developments in forensic science.  The Court is being asked to determine the fine distinction between a defendant who's "actually innocent" and one who has been convicted on "false" testimony, and perhaps will also consider whether there should be a distinction.  Not being considered at the conference, but working its way toward the court, is a case in which Maryland's high court threw out a law allowing the state to obtain DNA from anyone was was arrested, as opposed to convicted, of a crime.  The result was the reversal of a rape conviction based almost solely on the DNA evidence.

A couple years ago, the 8th District decided in State v. Harris that the failure to impose a mandatory fine or a mandatory drivers license suspension in a drug case rendered the sentence void.  This was during the heyday of the "void sentence" debate, which stemmed from the Supreme Court's decisions holding that failure to properly impose post-release control made the sentence a nullity.  The problem with this was noted in several quarters, including here:  if a sentence was void, did that mean the conviction was, too?  Since there wasn't a valid sentence, and hence no final order, did that mean the original appeal from the conviction was void as well, removing any res judicata effects.  The court finally peered over the abyss into the logical consequences of those decisions, blinked, and held in State v. Fischer that only the PRC portion of the sentence was void.  Last week, the Supreme Court reverses the 8th District in State v. Harris, holding that only the mandatory fine and drivers license suspension portions of the sentence are void, and thus require resentencing only to those issues.

Pardon me, but is this trip necessary?  Doesn't it make more sense to hold that if a judge fails to impose a fine, or a license suspension, that makes the sentence voidable, and if somebody appeals, you send it back and fix it, and if they don't, you don't?  I understand that you can't do that with PRC, since the only way to get around the separation of powers problem of having the Adult Parole Authority impose a prison sentence is to perpetrate the fiction that it's the judicial branch that's actually imposing the sentence by "authorizing" the APA to do it.  But there's no need for that fiction with stuff like fines and suspensions, and continuing the "void" charade is going to lead to problems down the road, just as it did with PRC.

Let's see what problems the courts of appeals are encountering, and how they're resolving them...

One more reason to go to the gym:  in State v. Dennison, the court affirms defendant's conviction of voyeurism for taking pictures of other nude men in the locker room of the YMCA, rejecting defendant's argument that the men had no reasonable expectation of privacy with respect to being nude in a locker room.  Nude, no, being photographed, oh yeah... The trial court's imposition of a condition that defendant not consume alcohol during the period of his probation after conviction of two counts of violating a protection order didn't constitute cruel and unusual punishment, the 10th District holds in State v. Tobin... Good discussion of the difference between spousal privilege and spousal competency in State v. GreavesThe defendant was charged with having a weapon while intoxicated and domestic violence (threatening his wife), and the trial court excluded her testimony.  The 6th District reverses, holding that there were no confidential communications re the privilege issue, and that the spouse wasn't incompetent to testify because the rule contained an exception for crimes against the spouse...

In State v. McFarland, the defendant, a resident of Erie County, was charged with importuning and disseminating matter harmful to juveniles for attempting to hook up with someone he thought was a minor in Lucas County.  Lucas County had the Erie County sheriffs seize McFarland's computer, and after he'd pled no contest to the charges in Lucas County, Erie County indicted him for the child porn they found on his computer.  The trial court kicked it out on double jeopardy grounds, and the 6th District affirms, holding that where several offenses are committed in different jurisdictions as part of a course of criminal conduct, the defendant can be prosecuted in any of the jurisdictions, but not in more than one... Failure of the police to comply with the requirements set forth in RC 2933.83 for conducting a photo identification process is not a basis for suppression of the identification, the 1st District says in State v. Ruff... The 12th District rules in In re N.A. that where the issue of the juvenile defendant's competency was raised, the trial court committed error, and defense counsel was ineffective, in not addressing it further...

The 2nd District's decision in State v. Drane is notable because it resolves a couple issues that I haven't seen addressed elsewhere.  First, if an appeal is resolved on an Anders brief, the court allows reopening of the appeal on grounds of ineffective assistance of appellate counsel, is that appeal limited only to those issues raised by the motion to reopen, or can the defendant raise any issues, including ones that the court previously considered in its Anders review?  Any issues, the court decides, because the defendant didn't have the assistance of counsel in framing the issues the first time around.  Second, can a judge include in the sentencing entry that it disapproves of the defendant receiving transitional control?  Yes, at least in the 2nd; they've held that it's premature at that point.  The judge can always disapprove of transitional control when the APA inquires about it.

 

Search

Recent Entries

  • April 20, 2017
    The Supreme Court takes a look at the trial tax
    And you thought this was the week you only had to worry about income taxes
  • April 18, 2017
    What's Up in the 8th
    Remembering Warren Zevon, and the Fourth Amendment lives
  • April 17, 2017
    Case Update
    Structural error, prejudice, and police run amok.
  • April 13, 2017
    Some arguments on sentencing
    Why oral arguments can be fun, even when they're not yours
  • April 12, 2017
    What's Up in the 8th
    Oh fun: declarations against interest v. non-hearsay. Also, the difference between not guilty and innocent, and Ohio's statute penalizing the refusal to take chemical test in a DUI case goes bye-bye
  • April 11, 2017
    Case Update
    Filibusters, and appellate cases on all the ways lawyers can screw up.
  • April 7, 2017
    Change of course
    A new approach in my client-attorney relationships
  • April 4, 2017
    What's Up in the 8th
    A true rocket docket, and Anthony Sowell pops up again
  • April 3, 2017
    Case Update
    Free merchant speech, an argument on Brady, another look at Creech
  • March 28, 2017
    What's Up in the 8th
    Pro se motions, pro se defendants, and advice for deadbeat dads