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Case Update

Since the US Supreme Court is out of session until October, instead of beginning every Case Update between now and then with the phrase, "the US Supreme Court is out of session until October," I'll preview a case which the Court has accepted for ruling next term, or one it's likely to accept.  Maryland v. King falls into the latter category.  King was arrested in 2009 for felony assault.  In 1994, Maryland had authorized the police to take DNA samples from those convicted of crimes, and extended that in 2008 to anyone who was arrested.  King wound up convicted of the assault and was sent to prison for a year, but his problems grew exponentially when the DNA sample taken from him at the time of his arrest linked him to a 2003 rape.  He was convicted of that as well, and sentenced to life without parole, but two months ago the state's highest court ruled that taking a DNA sample from someone who's only been arrested is a 4th Amendment violation.  Last week, Chief Justice Roberts issued a stay of the Maryland court's ruling prohibiting the taking of sample from arrestees, and given that lower court decisions are split on the issue, it seems likely that the Court will wind up deciding the issue.

Down in Columbus, a big case on double jeopardy, which we'll discuss on Wednesday.  The juxtoposition of two news stories also proved interesting.  Last Wednesday, the court released its annual statistical summary of what's going on in the common pleas courts, and found that the number of new cases filed had reached a ten-year low.  With the next day came a press release noting that the pay for Ohio judges was lagging behind that of other states.  The connection between Ohio judges doing less and Ohio judges getting paid less went unnoticed, except by this jaundiced observer.

On to the courts of appeals...

In State v. Cosby, the defendant gets a 5-year sentence for aggravated robbery, which is mandatory because of his 2002 conviction for the same offense.  But, he says, the 2002 entry never stated the manner of conviction, as required by Crim R 32(C), which makes that conviction void.  But, says the 2nd District, the Supreme Court cleared that up in State v. Lester, holding that the manner of conviction wasn't a substantive requirement, so its absence doesn't render the journal entry void... While sentence for failure to comply is required to be served consecutively to any other sentence, sentence for attempted failure to comply is governed by the attempt statute, not the failure-to-comply statute, so the sentence need not be consecutive, the 8th District holds in State v. Garner...  Fact that there was a relationship between the defendant and the victim, that the defendant had the murder weapon a week before the shooting, and that he drove directly to the restaurant where he killed the victim was sufficient ot prove prior calculation and design, the 9th District decides in State v. Simpson...  In State v. Blackwell, the 8th District explains that if the defense does not renew a motion for Rule 29 judgment of acquittal at the close of all the evidence, appellate review of a claim of insufficiency of the evidence is limited to plain error...

Retroactivity of Bodyke/Williams:  Interesting take on that issue in the 2nd District's decision in State v. Blanton.  Blanton was convicted of a sex offense in 2003, then reclassified as a Tier II offender under the Adam Walsh Act.  He was convicted of failure to verify in 2009, and put on probation, but violated a couple months later and was sentenced to two years in prison.  He didn't appeal either the conviction or revocation.  In 2010, after Bodyke, he filed a motion for post-conviction relief, arguing that his reclassification was void.  The judge found the petition was untimely, and the court agrees:  unless it's filed within 180 days after the transcript of the appeal is filed, or from the time an appeal could've been filed if there wasn't one, the trial court's without jurisdiction to hear it unless the defendant was unavoidably prevented from discovering the facts of his claim, or that the US Supreme Court recognizes a new right that the petitioner alleges applies retroactively.  Bodyke held that Megan's Law offenders couldn't be reclassified, and the later decision in State v. Williams held that the AWA couldn't be applied to people who committed their offense before its effective date, but those were state decisions, so they don't count.

But the concurring judge's opinion is where it gets interesting:  he contends that there's no rational basis for distinguishing between someone who's arguing that the US Supreme Court has recognized a new federal or state right that would retroactively benefit him, and someone who's arguing that the Ohio Supreme Court has recognized a new federal or state right that would retroactively benefit him.  Thus, the failure to allow relief in the latter case is a violation of equal protection.  But that issue wasn't raised, so the court can't consider it.

"90% of life is just showing up" shouldn't apply to the 6th Amendment.  An equally interesting but less defensible result comes in the 2nd District's decision in State v. Wintermute, From what can be gleaned from the opinion, Wintermute was represented by someone from the public defender's office, and on the day of trial someone else from the office, with whom he'd never met or spoken, shows up to try the case.  (That person is referred to in the transcript only as "unidentified" or "the defense."  The court rejects defendant's claim of ineffective assistance of counsel, finding that he failed to show prejudice.  Yeah, I know it's only a misdemeanor assault case and the defender's offices are overburdened and you don't get to pick who your app0inted counsel is, but if somebody you've never met comes into court and sits down next to you and winds up trying your case, I don't think that's what the Framers had in mind.

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