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What's Up in the 8th

Thumbnail image for courtgavel_4.jpgBanishment and exile have played an important role as punishment in criminal cases over the centuries, but their utility is limited in modern times; if somebody commits a crime, one of the judge's options is not to kick him out of the county and prohibit him from returning.  Limited, but not flatly prohibited:  a modern version is to ban a shoplifter from going back to that particular store.  In the 8th District's decision last week in Mayfield Heights v. Aziz-Akim, we learn that there are limitations on that.  Aziz-Akim had shoplifted at Walmart, and the judge imposed the maximum jail sentence and banned him from the store. While you can impose banishment as a community control sanction, you can't do it as part of a jail sentence, and so Aziz-Akim gets to go back to Walmart, where he can see people like these.

We also learn that there are limitations on the "hot pursuit" and emergency exceptions to the warrant requirement. In Cleveland v. Lynch, a man sees a car sideswipe a tree. The driver gets out, says she's okay, and drives off, but he calls police. The police follow a trail of car fluid to Lynch's house, where they see her sitting in the kitchen. She tells them through the screen door that she's okay, but they nonetheless enter the house, where they smell alcohol on her breath and arrest her for drunk driving. The trial court denied the motion to suppress, but the appellate panel reverses. There is case law upholding the right of the police to enter a house in pursuit of someone they're chasing for a DUI, but here, there's no evidence of any crime having been committed, nor is there any emergency, since the police didn't observe any injuries.

We also learn there are some municipal court cases not worth reading, East Cleveland v. Goolsby being a prime example. I didn't get past paragraph 3, which advises that the pro se appeal from a no driver's license conviction "asserts 11 separate assignments of error," a "significant portion" of which are "nonsensical," "unsupported by any legal argument and are rambling statements"; the "sole discernible argument by appellant... is that every citizen is imbued with a constitutional right to drive, with or without a license."

A couple of decisions on self-defense provide some interest. In State v. Tabasso, Tabasso beats up Martaus, apparently over a girl, with the main issue on appeal being whether counsel was ineffective for not asking for instruction on self-defense. Probably because there wasn't any evidence to support it: as we all know, the defendant has not only the burden of proof on self-defense, but the burden of producing some evidence of it. Usually, this requires the defendant to testify. Tabasso didn't, but the appeal claims that the girl's testimony that she had seen Martaus punch Tabasso was sufficient to warrant a jury instruction. The trial judge had held that Tabasso didn't satisfy the first prong of self-defense, showing he wasn't the aggressor, since he'd gone over to Martaus' house and inflicted the beating on the latter's porch. That's an eminently reasonable decision, and the appellate court should have stopped there. Instead, the panel holds that Tabasso didn't show the other two elements of self-defense: that he was in imminent fear of death of great bodily harm, and that he had no opportunity to escape. But those are elements for use of deadly force in self-defense, and while Tabasso inflicted some serious injuries - Martaus had fractures to his ribs, skull, and jaw - he didn't use any weapons. There's still a requirement that he not be the aggressor, but he only has to show fear of physical harm, and there's no duty to retreat.

State v. Owens provides a similarly sketchy claim of self-defense. Owens drives by ex-girlfriend's house at 2:00 AM to "see how she's doing." Turns out whatever she's doing, it's with her new boyfriend, Jones, who's in the process of getting on his motorcycle and leaving. According to Jones, Owens tries to run him down, at which point Jones pulls out a gun and gets off a few shots. Owens claims that he tried to run Jones over in self-defense, because Jones was shooting at him. Again, the trial judge refuses to charge, finding that Owens was the aggressor, and again, the panel upholds that. What's missing from the court's opinion, though, is a clearer recognition that the judge's role here is as a gatekeeper: his decision is not whether the defendant established self-defense, but whether he adduced enough evidence to allow the jury to consider it. I don't know if I would have come to a different conclusion, but I wish the opinion had spent less time weighing the evidence and more time explaining what the judge's obligation is here.

The most interesting case, though, is State v. Huber. This is Huber's second appeal; his first, from his convictions for kidnapping, attempted felonious assault, and two counts of aggravated robbery, resulted in a 2009 decision holding that the kidnapping and robbery counts should have merged. But wait! On the State's motion for reconsideration, the panel changes its mind, and decides that while the robbery counts should have merged, the kidnapping was committed separately.

But wait! Did I say panel? One of the three judges had retired by that time, and didn't participate in the ruling on reconsideration. Huber claims that this deprived the court of jurisdiction, since the Ohio constitution requires "three judges shall participate in the hearing and disposition of each case." The court decides that's an argument he could have raised when he appealed to the Ohio Supreme Court, but didn't, but also concludes that it wouldn't have mattered: the court had jurisdiction to reconsider, even with only two judges participating.

Then there's the court's treatment of what the trial judge did on the remand. He had given Huber a total of fifteen years in prison, and the first appeal had upheld the consecutive nature of the sentences, as well as the sentences for kidnapping and felonious assault. On remand, the judge imposed a sentence for the robbery - the same as he'd given before, except for one offense, not two - but held that he couldn't revisit the question of consecutive sentences.

This gets back into the sentence packaging doctrine. In the Federal system, for example, a judge crafts a total sentence based on what the defendant did. Not so in Ohio; here, each sentence is determined individually. That means if a particular sentence is vacated on appeal, it doesn't affect the others. Normally, when a case is remanded because of an allied offense error, the defendant is entitled to a de novo sentencing, but with limitations: the sentences for any offenses that weren't affected by the error remain the same.

So wouldn't the consecutive nature of the sentences remain the same? No, because, as the court points out, it had vacated the sentence for aggravated robbery. That sentence, of course, was part of the consecutive sentence that the judge had originally imposed, so Huber was entitled to have the judge make a de novo determination of whether the sentences should be run consecutively.

And that's got to be good news, right? After all, he resentencing occurs after the effective date of HB 86, which means that the judge had to make the findings required by RC 2929.14(C)(4), and how's he going to pull that off if he (wrongly) decides that he can't even consider the consecutive sentencing issue?

Well, he does; he said just enough about Huber's conduct (which was egregious) and extensive criminal history that the court can fit it into the findings required by the statute. When you conclude that you can't decide something, and wind up deciding it correctly anyway, well, that's a pretty good trick.

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