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Case Update

Everybody's still picking at the goat entrails, trying to decide how the Supreme Court's going to come down in the gay marriage cases, and given that the Court won't have oral arguments for another two weeks, bet on me being able to open the Case Update with that line for the next fortnight.  There aren't many big decisions coming up that might interrupt that train of collective thought; the only big criminal one I can recall is Alleyne v. US, which involves a Blakely issue.  I'll go read up on that right now so that I'll be ready to go when the Court issues its opinion.  Sure I will.

A good part of my life has been devoted to testing the hypothesis that if you ignore a problem long enough, it will go away.  The results to date are decidedly mixed: sometimes they do, but when they don't, the consequences can be disastrous.  One of the things that's become harder to ignore is a disciplinary complaint.  I've never had the occasion to test my hypothesis on this one, but apparently something's been added to the rules which allows the court to issue an interim default suspension if the attorney doesn't respond to the complaint.  I say "apparently" because this is the first time I've seen this happen; it happened to three attorneys last week.  That, and deciding which cases to hear (a few) and which cases not hear (many, many) comprised last week's output by the Ohio Supreme Court.

Rough week, huh?  Let's see if there's anything of significance in the courts of appeals...

Breaking and entering and theft could be allied offenses under the "same-act" standard of State v. Johnson.  Does that mean if you plead guilty to petty theft in municipal court, the State can't prosecute your for the B&E because of double jeopardy?  A common pleas judge thinks so, but the 9th District reverses in State v. LampThe test for double jeopardy is the "same elements" test established by Blockburger v. US in 1932 - basically, it's not double jeopardy if each offense requires proof of an element that the other does not.  The Ohio Supreme Court's held that double jeopardy analysis is separate from that for allied offenses... A defendant can't file an application for an AppR 26(B) reopening because of ineffective assistance of counsel where he's filed his own supplemental pro se brief on appeal, the 8th District says in State v. Cowan... The statute for gross sexual imposition of a child under 13 says that the prison sentence is mandatory if the victim's testimony is corroborated.  Is this barred by the Apprendi/Blakely line?  No, because it doesn't affect the maximum sentence, only the defendant's eligibility for judicial release, the 10th District says in State v. Bevly.  That's wrong; when the sentence is mandatory, it not eliminates the possibility of judicial release, it eliminates the possibility of community control sanctions; the defendant has to be sentenced to prison.  That's an increase beyond the sentence which could be imposed upon a finding of a jury or facts admitted by the defendant, and violates Blakely... Where the defendant convicted of a misdemeanor is sentenced to time served, the fact that he has completed his sentence does not moot the appeal, rules the 8th District in State v. Lewis... In State v. Brown, the State introduced a video at trial of the defendant's interrogation in which the detective tells him that one of the codefendants had implicated him in the crime.  The 7th District finds that defense counsel was ineffective for failing to object to this testimony on confrontation grounds, and reverses... A defendant doesn't have the right to counsel at a resentencing hearing to impose mandatory post-release control, the 12th District concludes in State v. Schleiger, holding that the hearing was purely ministerial and not a critical stage...

In State v. Osley, the appellant pled guilty to involuntary manslaughter and aggravated robbery, and was sentenced to 23 years imprisonment.  His lawyer filed an Anders brief, alleging potential errors in the sentencing, failure to merge allied offenses, and acceptance of an Alford plea.  The court reviews the assignments, concluding that there was "nothing in the record" to indicate that the trial court failed to consider the proper sentencing factors, that while the two offenses were allied, the court "cannot say that the trial court erred in failing to merge the offenses," and that the trial court had taken the appropriate steps to insure that the plea was knowing, intelligent, and voluntary.  It then concludes that "this appeal is without merit and wholly frivolous."

And that's completely wrong.  "Frivolous" and "without merit" aren't the same thing, and it's quite clear that the court confused the two.  When an appellate court concludes that it "cannot say" that the trial court erred, that means it's at least arguable that it did.  The purpose of the court's review of an Anders brief isn't to decide the potential claims presented in it, but to decide whether any of those claims have any potential merit.  If they do, another attorney should be appointed to represent the defendant and present those claims.  This wasn't an adversary process, as it should have been; the court decided the issues without benefit of input from the defendant's counsel.  (That's clear in how the court handled the sentencing issue.  It decided it solely on the basis that it wasn't contrary to law, which is just the first step in the Kalish analysis; it didn't address abuse of discretion at all.)

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