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Case Update

Almost all of the attention at the Supreme Court was focused on the oral argument two weeks ago in Shelby County v. Holder, which will determine the continued constitutionality of the 1965 Voting Rights Act.  No oral arguments last week, and although Monday was designated "Opinion and Orders Day," only one was handed down, concerning a medical malpractice suit under the Federal Tort Claims Act.  Oral arguments begin anew next week, but no criminal cases are on tap; in fact, the next one, Salinas v. Texas, doesn't come until the middle of April.  The first two cases on gay marriage will be argued at the end of this month, which might be worth a post or two, simply because of the significance of the issue.

Down in Columbus, the only criminal decision was a non-decision.  When I'd written about the Supreme Court's acceptance of State v. Lindstrom, I'd said the case presented a "decidedly bizarre factual situation," which was probably an understatement.  Lindstrom's sister complained to the police in 2010 that, when he was between the ages of ten and fourteen, he'd repeatedly raped her.  Just six days shy of Lindstrom's 21st birthday, the State filed a complaint against him in juvenile court.  It later indicted Lindstrom, but Lindstrom moved the common pleas court to transfer the case back to the juvenile division, which it did.  The issue was whether Lindstrom had been "apprehended" by the issuance of the summons in the juvenile case, in which case the juvenile court would continue to have jurisdiction.  The 8th District decided he had been, and the State's contention that he hadn't been met with an incredulous response by the Supreme Court justices during oral argument.  Last week, the court decided that it been improvident in granting the appeal, and dismissed it, taking the unusual step of specifying that the appellate court decision was not to be cited as authority except between the parties.

In the courts of appeals...

One issue the Supreme Court probably won't be able to sidestep is the effect of a prior felony on newly-amended RC 2929.13(B)(1), which makes community control sanctions mandatory if the defendant unless, among other things, the defendant has been convicted of a felony or of a misdemeanor crime of violence within the past two years.  The phrasing of the statute leaves it unclear whether the two-year period refers only to misdemeanor crimes of violence, or to any felony.  A few weeks ago, the 8th District held that it applied to both in State v. Johnson (discussed here).  Last week, the 6th District came to a contrary conclusion in State v. Lumpkin.  The analysis in Lumpkin is lacking, though; the court simply states that Lumpkin's three prior felony cases make him ineligible, without even engaging in any discussion of the wording of the statute.  (But see Update Below).

In State v. Hughes, the 2nd District decides that the defendant's use of heroin just prior to his being questioned didn't affect his ability to understand and intelligently waive his Miranda rights... Where a court denies an expungement petition without conducting the mandatory hearing, the denial isn't entitled to any res judicata effect, and doesn't bar a subsequent petition, the 8th District holds in State v. M.S... About the only way you're going to see an appellate court reverse a trial judge's denial of a motion to withdraw a plea is if the judge doesn't even hold a hearing on the motion.  You've got to at least do that, the 10th District says in State v. Hurlburt... In State v. Marlow, the 12th District holds that defendant's convictions for voyeurism and illegal use of a minor in nudity-oriented material, arising from his secretly taping his sister-in-law while she was in the bathroom, were allied offenses and should've merged.  Bet that'll be a fun family gathering next Thanksgiving... You can do a lot of things with sentencing, but one of the things you can't do is banish the defendant from the State of Ohio for life, the 9th District says in State v. Mose...

Well, at least there's some good news. In State v. Ramirez, the defendant claims that his 59-year sentence for a crime spree of armed robbery and felonious assault was cruel and unusual punishment.  That argument met the fate that you'd expect, but wait!  There is an error after all!  It turns out the judge had sentenced Ramirez to nine years on one count of felonious assault, when the maximum sentence is only eight.  It was the State, not Ramirez, which brought the error to the appellate court's attention. 

UPDATE:  Someone just alerted me to the fact that the "mandatory probation" statute has been changed.  Effective March 22, 2013, the new statute will exempt anyone who has ever been convicted of a felony from the benefit of that section.  In fact, there are a bunch of new changes in the statute, which we'll talk about on Wednesday.

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