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Case Update

No opinions from SCOTUS this past week, although some are anticipated today.  With the big decisions on the Arizona immigration law and Obamacare due to come out in the next six weeks, it was interesting to see a Pew Research poll showing public approval of the Supreme Court to be at 52%, a 25-year-low.  Various pundits have sifted through the entrails, noting that this comes at a time when the Court's partisan divisions have never been starker:  all the Republican appointees are conservative, and all the Democratic appointees are liberals.  (Justice White proved quite conservative despite being a Kennedy appointee, and Blackum, Souter, and Stevens were all appointed by Republicans.)  Somewhat puzzling is the fact that the decline in approval by Republicans has been sharper than by Democrats, despite the fact that, at least to some, it's the most conservative Supreme Court in the past 75 years.  In any event, the Court still scores higher than either of the other two branches of government; indeed, the percent of the population that approves of Congress' performance hovers around the proportion who believe in UFO's or are sure they saw Elvis working at the local 7-11.

Down in Columbus, the Supreme Court handed down six criminal decisions.  Five of them were GPS cases, specifically, whether the police were required to obtain a warrant before placing a GPS device on a car and tracking it.  All five of the opinions were worded identically:  the cases were reversed and remanded for consideration in light of the US Supreme Court's decision earlier this year in United States v. Jones.  We'll discuss that in more detail later this week.

The other decision was State v. Lloyd, which presented the question of how a court is to evaluate an out-of-state conviction for a sexual offense in determining what duty the defendant has to register here in Ohio.  Lloyd had been convicted of aggravated sexual assault in Texas, and the court determined that the offense was "substantially equivalent" to rape.  It did so by using the "modified categorical" approach the Federal courts use in determining whether a state offense triggers the enhancement under the Armed Career Criminal Act, and the resulting application of the ACCA's additional 15-year minimum sentence.  Whether that's a good idea is another story; to borrow Rehnquist's phrase, the case law on the ACCA is something less than a seamless web, and resorting to that for clarity in legal analysis is sort of like looking to Joyce's Ulysses for lessons in clarity of writing.

The bottom line is that a court in analyzing the issue is not limited to a comparison of the elements of the crimes, but "may consult charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, jury instructions, and jury verdict forms, or some comparable part of the record" in determining whether the two offenses are equivalent.  After all that, it turns out that it didn't matter:  in order to convict Lloyd of any sex offender registration, notification, or verification violations here in Ohio, the State had to prove that he had a duty to register as a sex offender in Texas, and it never got around to doing that.

In the courts of appeals...

In State v. Jones, the defendant was sentenced on September 22, 2011, but the entry wasn't actually journalized until October 7, 2011.  The 1st District holds that this meant that HB 86, which went into effect on September 29, 2011, governed Jones' sentencing.  It reduces the five-year sentence for weapons under disability to three years, per the reduced sentences for most 3rd-degree felonies provided for by HB 86.  It affirms the consecutive sentences, though, finding that the trial court's statements at sentencing show that it found that the harm caused by the multiple offenses "was so great or unusual" that consecutive terms were proper... One of those awkward moments in voir dire occurred in State v. Brewer, where, when asked whether they knew any of the parties, one prospective juror, a police officer, ventured that he'd arrested the defendant on a previous occasion.  The 2nd District finds that defense counsel was deficient for failing to ask for a mistrial, but no harm, no foul, because the defendant's prosecution for having a weapon under disability required proof of a prior conviction anyway...

In State v. Alt, the 8th District decides that the failure of appellate counsel to notify the defendant of the court of appeals' decision is not good cause for the untimely filing of a motion to reopen the appeal under AppR 26(B).  It contains no reasoning, and cites a solitary case in which the defendant waited five years to file a motion to reopen, and never claimed that his attorney failed to notify him of the judgment, but only that the attorney didn't advise him of the 26(B) procedure; here the application was two months late... In State v. Burnap, the 5th District says evidence of an OVI stop should've been suppressed.  The stop was based on a report by a gas station attendant that the defendant was intoxicated, but did not indicate bad driving by the defendant, and the officer didn't make an independent observation that the defendant was committing the offense...

Ballsy decisions.  I always enjoy reading the 2nd District's decisions, finding them to be almost uniformly well written and thought out.  And gutsy, too, as confirmed by their decision last week in State v. Anguiano, in which the trial court had initially overruled the defense motion to dismiss drug trafficking charges for pre-indictment delay, holding that the defendant hadn't shown actual prejudice, then dismissed the indictment anyway for the following reasons:

1) the unexplained delay in the indictment; 2) the State's argument regarding the protection of a confidential informant's identity did not justify delaying the indictment; 3) the memories of the witnesses could be impacted negatively by the delay; 4) Anguiano pled guilty to an offense in 2009 for which he was then serving a community control sanction and was showing positive steps toward rehabilitation; 5) Anguiano's offenses were low level felonies for which community control was the likely sanction; accordingly, the trial court found that no additional deterrence or punishment could be obtained by prosecution of the instant charges; 6) the apparent inefficiency of the State in processing its caseload; and 7) the trial court noted the ethical consideration for prosecutors which emphasizes that the primary duty of a prosecutor is to seek justice, not merely to convict.

The 2nd District affirmed, finding that the statements given by the trial judge in dismissing the indictment -- "while deference is usually given to the charging decisions of the prosecutor, such deference is not unlimited," and that the court "possesses a duty to measure justice equally as to all parties" -- are "correct statements of law."

And a special shout-out to the trial judge, who kicked out two other cases for the same reason.  The 2nd upheld those, too.

Homework assignment.  As the 1st District noted in Jones, one of the requirements for imposing consecutive sentences is that the judge find that "at least two of the multiple offenses were committed as part of one or more courses of conduct."  Your task is to come up with a scenario in which two or more offenses could not be committed "as part of one or more courses of conduct."  Good luck.

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