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Case Update

Padilla v. Kentucky, the Supreme Court's 2010 ruling that a lawyer renders ineffective assistance by improperly advising his client of the potential immigration consequences of a plea, is the subject of a case awaiting decision next term, Chaidez v. US. Not the continued vitality of the decision; only Scalia and Thomas dissented in Padilla. Rather, it's whether the decision is to be applied retroactively. That could be huge. As I noted here, if you've got a client who's facing deportation as a result of a plea, the courts have often concluded that there's no basis for vacating the plea as long as the trial judge read the mandated statutory warning contained in RC 2943.031. A motion to vacate the plea based on ineffective assistance of counsel under Padilla offers another alternative for keeping your client in the country.

Whether that's going to happen depends on the Court's analysis of another case, it 1989 decision in Teague v. Lane. Normally, a new decision applies only to pending cases or those on direct review. Teague held that a decision could be applied retroactively if it is not a new rule, but merely an old rule applied to new facts, with a couple of exceptions: a new rule applies retroactively on collateral review if it is substantive, or if it is "a "watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." The 7th Circuit held that Padilla announced a new rule that didn't meet either of those exception, so it can't be applied retroactively. Interestingly, in addition to amicus briefs from the usual groups -- immigration lawyers and defense attorneys -- on behalf of Chaidez, a group of former and present prosecutors filed an amicus brief one on her behalf, too, arguing that applying Padilla retroactively would allow prosecutors the discretion they need to moderate the harshness of immigration law. Oral argument is scheduled for the end of October, and we'll discuss it more thoroughly then.

We don't have to wait that long for the Ohio Supreme Court justices to exercise their vocal chords; they have oral arguments scheduled for Tuesday and Wednesday of this week. Three of them are criminal cases, and all involve some aspect of sex offender law. In State v. Raber, the court considers whether a judge's failure to impose a sex offender classification at sentencing precludes the court from later reopening the case to do so. In re Bruce S. presents the issue of whether a defendant sentenced after June 30, 2007, but before January 1, 2008, is classified under the AWA or under Megan's law. The AWA was signed into law on the former date, and specified that it was to become effective on the latter date; however, it also language that it was an "emergency" enactment, and thus became effective when signed by the governor.

The big case, though, is State v. Howard, which involves the question of whether AWA penalties for violation of registration duties can be imposed on a Megan's Law offender, when the violation occurs after the effective date -- whatever that turns out to be -- of the AWA. It's a big deal to Howard: under Megan's Law, his failure to give the sheriff 20 days advance notice of his change of residence was a 5th degree felony, but under AWA, it's a 1st degree felony with a mandatory minimum three-year prison term.

On to the courts of appeals...

An error in a jury verdict form under RC 2945.75(A)(2) can result in a defective verdict, but it doesn't result in a void sentence, the 6th District holds in State v. Henson... In State v. Owens, the defendant had raped a 73-year-old woman twice, then strangled her, resulting in convictions for aggravated murder, two counts of rape, and aggravated burglary. Without any discussion regarding whether the offenses are allied, the 9th District follows its policy of remanding the case back to the trial court for a Johnson analysis. Also noteworthy about the case is that the jury had recommended a death sentence, but the judge instead imposed life without parole... In State v. Drake, the defendant was stopped for a traffic violation, and gave the police somebody else's name and signed that name to citation. He argues that his conviction for identity fraud must fall because there's a separate statute, RC 4513.361, which prohibits giving a false name to a law enforcement officer who's issuing a traffic citation, and the specific statute controls over the general one of identity fraud. The 2nd District, for reasons which aren't entirely clear, rejects the argument...

In State v. Anderson, the 9th District reverses a conviction for burglary, finding that the house was not an "occupied structure." Case law has found houses to be "occupied" where the occupant is not present, even for extended times, like a vacation, or when the property is vacant because repairs are being done to it. Here, though, the property had been condemned by the city and listed as uninhabitable. The majority rejects the dissent's argument that the house is an occupied structure as long as its "continuing purpose" is residential... In State v. Pore, the defendant had deceptively gained entrance to the victim's home, moved her from the kitchen to the bedroom at knifepoint, then to the living room to lock the door, then back to the bedroom to commit a rape. The 5th District finds that the aggravated burglary was complete when the defendant gained entrance to the home, and so is not an allied offense; the kidnapping was merely incidental to the rape, though, and so those offenses merge...

Turn and cough. In State v. Purley, the defendant claims the police were a tad too diligent in their patdown of him for weapons following a traffic stop. The officer testified that when he felt appellant's "groin rear buttocks area," he detected what he believed to be a bag with drugs. With a bit of help from Purley, he retrieved two baggies of crack -- no pun intended -- from Purley's pants. Purley argues that this constituted a "strip search" under RC 2933.32, which contains everything you ever wanted to know, and much that you didn't, about how strip searches are to be conducted in Ohio. The 6th District finds the "manual inspection of the proscribed area" to be "an arguable violation," but holds that a violation of the statute doesn't mean it's a violation of the 4th Amendment, so the search was proper.  

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