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Case Update

The Supreme Court's docket is starting to fill, with seven new cert grants on Friday, included among them Alleyne v. US. Alleyne was convicted of robbery and using a firearm in the commission of the crime; the jury acquitted him of a charge of brandishing the firearm, but the court imposed an additional 7-year sentence, finding by a preponderance of the evidence that Alleyne should have known that his accomplice was going to brandish it. Back in 2002, the Court held in Harris v. US that brandishing was a sentencing factor, not an element of the crime. Defendants have argued in the decade since that Harris conflicts with the Apprendi/Blakely line of cases, but the Court's resisted the entreaties to take up the issue again, until now. Harris was only a plurality opinion, and Breyer, who concurred in the result, has made noises since then that he's had second thoughts. The sentencing elements/factors distinction has much more impact on Federal sentencing law than Ohio sentencing law, but any time the Court addresses a constitutional right like jury trial under the 6th Amendment, it's of significance. After all, look at the effect that Apprendi/Blakely had on Ohio law, culminating in State v. Foster.

Downstate, a significant ruling on juvenile rights in delinquency cases in State v. D.W. D.W. was 17 years old when he was charged with burglary. After finding probable cause, the trial court turned to the required amenability hearing; after being advised by the prosecutor that D.W. already had been bound over on another case, and an off-the-record discussion with counsel, the judge found D.W. not amenable and bound him over. The Supreme Court decides that the requirement for waiver of the amenability hearing is the same as for waiver of counsel: it must be done in open court, on the record, after a colloquy between the judge and the juvenile to determine that the waiver was made knowingly, voluntarily, and intelligently. It's an interesting decision, given that it's fairly clear from the transcript that the defense lawyer agreed to waive the hearing.

In the courts of appeals...

HB 86 raised the threshhold for a felony theft charge from $500 to $1,000, and RC 1.58 gives the defendant the benefit of sentencing: if the crime was a felony at the time it was committed, if he's sentenced after September 30, 2011, he gets a misdemeanor sentence. But what if he was initially given community control sanctions, and then violated: is the date of sentencing, for HB 86 purposes, the date he was given the sanctions, or the date he's sentenced for violating them? The latter, the 1st District decides in State v. West... Where the trial court sentences the defendant to the minimum mandatory term, failure to allow the defendant his right of allocution is harmless error, the 12th District holds in State v. Larios... In State v. Diene, the defendant argues that the trial court should have conducted a competency hearing after it referred him for evaluation of competency and sanity. The 8th District disagrees, noting that the parties stipulated to the report finding the defendant competent, and that a hearing is required only where "the competency issue is raised and maintained"...

Failure of the trial court to mention the mandatory license suspension of three years to life renders the defendant's plea void, even where the written plea form includes such information, the 2nd District holds in State v. Walz... The 12th District in State v. Smith concludes that a judge need not include the findings supporting consecutive sentences in the journal entry, as long as it makes the findings at the sentencing hearing. The 9th District had earlier come to the same conclusion in State v. Just... Possession of marijuana, cultivation of marijuana, and possession of criminal tools should have merged as allied offenses, the 12th District holds in State v. Luong; it also finds that the trial court erred in not conducting a hearing to determine whether the forfeiture of defendant's tools and equipment was disproportionate to the severity of the offense... In State v. Wells, the 11th District rules that the failure of the jury verdict form in a burglary case to include the element that a person was "present or likely to be present," required for conviction of a 2nd degree felony, reduces the crime to a 3rd degree felony...

Nice decision from the 10th District in State v. Stewart. Stewart had been been classified as a Megan's Law offender, then reclassified as a Tier II offender after the Adam Walsh Act went into effect. In 2009, he pled guilty to a failure to verify charge, and was sentenced to the minimum mandatory three years in prison. Then Bodyke came down, holding that it was unconstitutional to retroactively classify Megan's Law offenders under the AWA. Stewart filed a motion to withdraw his plea. The trial court granted it, and the 10th District affirms:

Simply put, Stewart entered a guilty plea and was found guilty of violating a statute that was later determined to have been unconstitutionally applied to him. It is not an abuse of discretion for a trial court to conclude that this constitutes a manifest injustice sufficient to warrant the withdrawal of his guilty plea.


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