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Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


Case Update

It's hard to tell what's more screwed up, the laws on drugs or the laws on immigration, and the two intersected nicely in the Supreme Court's decision last week in Moncrieffe v. HolderMoncrieffe, a Jamaican national who'd lived in America since he was brought here when he was three years old in 1984, was stopped by Georgia police for a traffic violation in 2008, and was discovered to have 1.3 grams of marijuana, enough, the Court says in its opinion, for two or three joints.  (And yes, like you, I would have given not inconsiderable sums of money to be at the conference where the justices arrived at that estimate.)  Moncrieffe pled out to possession of marijuana with intent to distribute in the state court, which was not good advice, because intent to distribute drugs is an aggravated felony which requires deportation.  Distributing a small amount of marijuana for no money, however, is a misdemeanor under Federal law, and allows the attorney general discretion in determining whether the person should be deported.   The Court decided that the Georgia conviction did not determine the issue of whether Moncrieffe's crime was an aggravated felony or a misdemeanor under Federal law, and so Moncrieffe could not be subject to mandatory deportation.

No decisions from Columbus, but oral argument in State v. Kareski proved interesting.  This was the "lite beer" case from Akron that I'd mentioned before.  Kareski was prosecuted for selling a Bud Lite to an underage person, but the State didn't call anyone to testify that the item contained more than 1.5% alcohol, which was a required element.  No matter; the trial court took judicial notice of that.  The 9th District reversed, holding that a judge couldn't take judicial notice of an element of a crime, but remanded the case for retrial.  It wound up before the Supremes on Kareski's claim that without proof of the element, the evidence was insufficient, and instead of remanding the appellate court should have vacated the conviction.  I'd opined that the oral argument could provide a good drinking game:  you'd have to take a chug every time one of the justices said the word "beer."  The game would have gotten off to a rollicking start; early on, Pfiefer aptly summed up the issue as being "when is a beer a beer."  Tedium took over after that, though, and by the end I would have been downing shots of tequila, and probably without waiting for the trigger word to be uttered.  In any event, from the looks of the oral argument, it's going to be the prosecutor who'll need a good stiff one when the decision comes down.

In the courts of appeals...

A defendant's refusal to answer certain questions is not an unambiguous assertion of his Miranda rights requiring that all questioning cease, the 2nd District holds in State v. Blythe... In State v. Allen, the defendant had turned down a plea on numerous occasions, and the judge warned that there would be no plea after the jury was brought up.  After one was empaneled, the State disclosed certain 911 calls, and Allen changed her mind.  The judge wouldn't allow the plea, but the 8th District reverses, finding that a "blanket policy" (won't accept no contest pleas, won't accept pleas on day of trial) is a failure to exercise discretion, and will be treated as an abuse of discretion... In State v. Cheno, The 6th District affirms the trial court's refusal to allow the defense to cross-examine the co-defendant, who was testifying for the state, as to the penalties he faced before agreeing to cooperate; those were the same penalties faced by the defendant... The police didn't have sufficient basis for a traffic stop for drunk driving, because the gas station attendant didn't provide them with enough information to indicate bad driving or inappropriate activity or behavior, the 5th District holds in State v. Hipp, reversing the denial of a motion to suppress... In State v. Clair, the defendant pled guilty to unlawful sexual conduct with a minor, and appeals his classification as a Tier I offender.  The 5th District notes that since the defendant was less than four years older than the victim, the court couldn't find him to be a sex offender unless it determined that the victim hadn't consented to sexual activity, and remands the case for a hearing on that issue...

Another discovery.  Onto the ever-growing list of Things I Didn't Know is the new provision under R.C. 2929.13, which prescribes the seriousness and recidivism factors a judge should consider in sentencing.   Effective March 22, subsection (F) was added, which requires the sentencing court to "consider the offender's military service record and whether the offender has an emotional, mental, or physical condition that is traceable to the offender's service in the armed forces of the United States and that was a contributing factor in the offender's commission of the offense..."  I learned this from State v. Hammond, where Hammond filed a pro se brief  (his lawyer filed an Anders brief) claiming that the trial court had failed to consider this.  The 2nd District rejected the argument because, alas, there was nothing in the record to indicate that Hammond had ever served in the military.


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