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Case Update

Only 149 shopping days left until Christmas (and exactly zero non-shopping days), but if you're reading this, you know that the much more pertinent figure is that only 63 days remain until the Supreme Court's next term begins.  Sure you do.

At any rate, we continue our weekly countdown toward that with another pre-preview of cases that the Court will be considering when The Nine convene again.  Two come from Florida, and concern canines who do not qualify as man's best friend (at least, certain men):  the drug-sniffing dog.  In Florida v. Jardines, the cops had received a tip that Jardines was growing marijuana, so they had a dog sniff outside his house.  Sure enough, Officer K-9 promptly sat down at the front door, and the cops used this to get a warrant.  The courts have fairly consistently held that a dog sniff is not a "search" within the meaning of the 4th Amendment, but those cases have been in the context of a sniff of the exterior of a car, or a package in an airport terminal.  The Florida Supreme Court distinguished those cases, though, holding that the home is entitled to a greater privacy interest, and the sniff there did constitute a search.

The other case, Florida v. Harris, involves a different aspect of search and seizure law, probable cause.  Harris' vehicle had been stopped for a traffic violation, the cops suspected Harris was high, and the dog alerted at the driver's door handle; the cops used that as a basis for searching the glove compartment, and found drugs.  The court in Harris reversed that, too, finding that there wasn't sufficient proof of the dog's reliability.  (I discussed Harris in much more detail here.)  In any event, either or both cases could have a dramatic impact on 4th Amendment law, and I'll have much more to say about them down the road.

That road also winds through Columbus, at least on Mondays, but not this week:  other than three extraordinary writ decisions involving small claims court jurisdiction, newspaper access to public records, and civil service, nada.  (And to clarify, they were three decisions about extraordinary writs, not three extraordinary decisions about writs.)  The court did accept one appeal of a criminal case, involving the question of whether Megan's Law offenders can be prosecuted for violating their reporting duties under the Adam Walsh Act if the violations occurred after AWA's effective date, but the court already has a case pending on that issue, so only granted the appeal and held it until it's decided the other case.  So let's head over and see what the courts of appeals have been doing...

A decision from the 2nd District in State v. Wilcox on when the police can detain a passenger of a stopped vehicle, with an interesting twist.  After the police made the traffic stop, they found Wilcox intoxicated, and complaining that he needed to urinate.  The police told him to get back in the car, and when he began urinating from the open door a few minutes later, they arrested him for public indecency.  The trial court found that Wilcox was "not committing acts, but rather was responding to a natural biological function," and that his arrest was accordingly "improper."  The panel's decision doesn't go that far, but does agree that once the police determined Wilcox wasn't going to be allowed to drive the vehicle, there was no basis for keeping him there...  A cautionary note for appellate attorneys is provided by the 8th District's decision in State v. Allen. Allen filed a motion to withdraw a plea he entered seven years earlier, to rape and kidnapping,  The State opposed the motion, but asked for a resentencing because post-release controls hadn't been properly imposed. The trial court denied the motion to withdraw plea on October 11, and did the resentencing on October 14, and the notice of appeal filed was filed 30 days after latter date.  The appeal argued the motion to withdraw, but the court refused to hear it:  a ruling on motion to withdraw is a final entry, and you have to appeal that within 30 days after the ruling on it... In State v. Alexander, the 1st District holds that a trial court need do no more than make the requisite findings before imposing consecutive sentences under HB 86; it need not articulate reasons for those findings...

In State v. Small, the 6th District finds that kidnapping and aggravated robbery didn't merge as allied offenses; the defendants, in robbing a jewelry store, had removed the clerks from the counter to a back room, and had handcuffed one, which the panel found sufficient to show separate acts... The 1st District comes to the opposite conclusion in State v. Anderson, but there the victims were detained for only 45 seconds, and weren't moved... A rare reversal of a denial of a motion to withdraw a guilty plea in State v. Kutnyak; the 6th District finds that defendant presented sufficient evidence of innocence that it showed the motive to withdraw the plea was not simply a change of heart... In State v. Jackson, the 1st District holds that the failure of the court to inform a defendant of the sex-offender classification inherent in a gross sexual imposition conviction voided the plea to that offense...

If you do indigent appeals, you regularly get letters from your clients asking that you send them a copy of the transcript.  Here's one more case to stick in your response as to why you can't do that:  the 6th District's decision in State v. Houston:

Appellant contends that the trial court erred in denying his request for an additional copy of the transcript from the proceedings to be prepared at state expense. Appellant is correct that an indigent defendant is entitled to one copy of the transcript of his trial. The copy filed during the appeal at the state's expense constitutes the one copy to which the defendant is entitled. The state is not required to provide the desired additional copy.

Well, that's a relief.  In State v. Frett, the 8th District upheld Frett's conviction of raping three under-thirteen victims, overruling his claim that his attorney was ineffective; he pled guilty, and an IAC claim survives that only if the defendant can show that the ineffective assistance caused him to enter a plea that wasn't knowing, intelligent, and voluntary.  But there's a sliver of good news:  the judge had given him maximum consecutive sentences of 11 years on each count -- HB 86 raised the maximum sentence for a first-degree felony from 10 to 11 years -- but since Frett committed his crimes before HB 86 went into effect, he only has to do 30 years in prison, not 33.

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