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Case Update - Appellate Edition

Time to take a look at the significant appellate decisions handed down in the past month.

The 2nd District tackles the issue of destruction of evidence in State v. BeaversThe defendant had filed a motion to preserve a videotape, but the tape was destroyed.  The trial court dismissed the charges, following a line of Ohio appellate cases which have held that if the State destroys evidence that's been specifically requested by the defense, the burden shifts to the State to prove that the evidence isn't exculpatory.  Not the way it works, says the court; US and Ohio Supreme Court decisions have made it clear that where the evidence is merely "potentially useful," the defendant always maintains the burden of showing that it was in fact exculpatory... How deferential the standard of review for claims of ineffective assistance of counsel is, especially where the issue pertains to anything remotely connected to trial strategy, is demonstrated by the 5th District's decision in State v. Ross.  Counsel had introduced evidence of his client's prior domestic violence conviction, and a statement by the victim, despite the fact that the trial judge had ruled both were inadmissible.  No matter, says the court:  the lawyer introduced it to show that the victim had been coached, and that was a permissible trial tactic... If you argue in a motion to suppress that the cops didn't have the right to search the car, that doesn't preserve the argument on appeal that the stop was illegal, the 10th District rules in State v. Taylor...  

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The 9th District gets the last laugh in State v. Morris.  Back in
2010, the court reversed Morris' conviction of raping his 9-year-old
stepdaughter because it found certain evidence - that Morris kicked the family
dog when his wife wouldn't have sex with him, that he propositioned his adult
stepdaughter after she got married - violated EvidR 404(B).  The court used a de novo standard of review, but the Supreme Court reversed,
deciding that the appropriate standard was abuse of discretion (discussion here).  It got remanded, and so what does the 9th
do?  Reverse
and remand
for new trial, deciding that the judge abused his discretion by
allowing the evidence... The 10th District takes a tough stance on Padilla claims in State
v. Tovar
Tovar, who pled guilty
to attempted possession of cocaine back in 1999, argues that his lawyer was
ineffective for not telling him that this could result in his being
deported.  The court sidesteps the
question of whether the Supreme Court's decision in Padilla v. Kentucky can be applied retroactively - that issue is
pending before the Court - but decides that Tovar can't show prejudice:  since he doesn't explain what possible
defenses his lawyer might have raised, he can't show that it would have been
rational for him to proceed to try a felony possession case instead of
accepting a plea to a misdemeanor... And in State
v. Muhumed
, the 10th seems to take the same posture with regard to
claims that the trial court failed to make the advisement required by RC
2943.031.  While the defendant failed to
file an affidavit claiming that he was facing deportation, the court also notes
that he didn't claim that "had he received the full advisement, such advisement
would have impacted his decision to plead guilty"...

Charges of drug trafficking and illegal cultivation or manufacture of marijuana should have merged, the 8th District holds in State v. West... A few weeks back I mentioned that RC 4511.091(C), which provides that nobody can be arrested, charged, or convicted of speeding based solely on an officer's visual estimation of speed may provide a basis for suppressing evidence.  In State v. Miller, the 5th District agrees, holding that the statute prohibits an investigative stop based on an unaided visual estimate of speed... Failure to pay the required restitution rendered a defendant ineligible for expungement, the 10th District holds in State v. Black... The 2nd District rejects the claim that RC 2923.16(B), which prohibits improperly handling of a firearm in a motor vehicle, is an unconstitutional infringement on the right to bear arms in State v. Rush; the statute doesn't prohibit the carrying of firearms in a motor vehicle, it simply regulates the manner in which they can be carried... An interesting decision from the 7th District in State v. Adams, involving a rare reversal of denial of a motion to withdraw a plea.  The defendant had entered an Alford plea to eight counts of rape, and the court essentially holds that the day and a half he had to decide whether to enter the plea did not give him sufficient time... On the other hand, the most interesting aspect of the 8th District's decision in State v. Winn  -- and I'm using the word "interesting" in the most relative sense possible -- is the five pages the court devotes to explaining why the 607 days it took to bring Winn to trial for selling .14 grams of crack didn't violate his right to speedy trial... 

In State v. Phillips, the 10th District holds that since parental discipline is an affirmative defense to domestic violence, an appellate court can't review a sufficiency of the evidence claim; sufficiency review only allows consideration of the evidence introduced by the state.  I warned about that possibility in a post last October, and questioned why parental discipline should be an affirmative defense at all... Nothing's sure except death, taxes, and restitution?  In State v. Williams, the 9th District finds that an order of restitution survives the death of the defendant... The 7th District sets the bar about as low as it can go for consecutive sentencing in State v. Reynolds.  The defendant, who was 50 years old with no prior criminal record, pled guilty to seven 4th degree felony drug offenses, based on seven undercover sales involving about 60 ecstasy pills over a two-month period.  The trial court merely reiterated the required language verbatim - in the journal entry, not the sentencing hearing - and the panel finds this was sufficient... If a juror is replaced after deliberations begin, the judge must instruct the jury to begin deliberations anew; failure to do that requires reversal of the conviction, the 9th District holds in State v. Sales-Hilton...

Appellate attorneys in the 8th District learn a couple of things.  First, State v. Milligan reiterates that if you're going to argue manifest weight and sufficiency of the evidence in the 8th District, you've got to make them two separate assignments of error, and if you simply incorporate the insufficiency argument into the manifest weight argument, the court's going to ignore it.  Not that it matters, given the success rate of such arguments.  Speaking of abysmal success rates, State v. Littlejohn brings us to post-conviction relief petitions.  There are several nits which can be picked with the substantive aspects of the decision, but the procedural aspects are more troubling:  the court rejects arguments pertaining to the trial because Littlejohn "failed to furnish the court with the transcripts and exhibits from his trial."  That should've been part of the record; the PRC is filed under the same case number as the original criminal case, so presumably when the record was sent to the court of appeals, it should have included the transcript.  While post-conviction relief work should not be undertaken by those with self-esteem issues (see "abysmal results," supra), if you're going to do it, it might be a good idea to move the trial court to include the transcript of the original trial as part of the record. 

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