SCOTUSblog tells us that we should expect the Supreme Court to announce some decisions tomorrow, but then again, that's what they told us last week, with the only result being that we all drank deeply from the Cup of Bitter Disappointment. Okay, not so much. In any event, the only news from the Court last week was speculation from the Talking Heads on whether and how much the approval of gay marriage in Rhode Island and Delaware (with Minnesota almost certainly joining them this week) might affect the justices as they deliberate the two cases on gay marriage that were argued a month ago. So that's what it has come to: instead of writing about the legal effect of decisions the Court's made, I'm writing about how decisions the Court hasn't made will be affected by non-legal factors.
F. Scott Fitzgerald observed that there are no second acts in American lives, but then again, he never met Michael Davie. Sent off to prison for 33 to 75 years in 1992 for a bevy of offenses, including attempted murder, aggravated burglary, and aggravated robbery, Davie used his prison time to take paralegal correspondence courses from Blackstone School of Law. Paroled after 14 years, Davie set about representing people in various matters, including parole hearings, criminal cases, and custody disputes. All without benefit of a legal degree, something the Supreme Court looks harshly upon. It smacked him with a $30,000 fine, and last week ordered him to appear before the court to explain why he shouldn't be held in contempt.
That was the highlight of the court's activity, so we're left with nothing else to do but wander over to see what's happening in the courts of appeals...
In State v. Haney, the defendant asks to withdraw his plea before the sentencing, but the request comes after he's told that the judge is going to sentence him to a year in prison on a domestic violence charge. That's treated as a post-sentence motion to withdraw, says the 2nd District, and requires a showing of manifest injustice... In State v. Cassano, the 8th District rejects a 26(B) motion to reopen an appeal, holding that counsel is not ineffective for failing to raise a sufficiency of the evidence argument, where a manifest weight argument is raised and overruled; in order to find that the verdict is not against the manifest weight of the evidence, the appellate court necessarily has to determine that the evidence was legally sufficient... Rape and unlawful sexual conduct with a minor are allied offenses, the 11th District holds in State v. Wooten...
Court's talking about fairness... what's next? In State v. Rupp, the defendant had filed for judicial release in 2011. The judge found that he was eligible, but that it wasn't appropriate to grant him release at that time. By the time he applied again, the law had changed, and he was no longer eligible. The court granted him release anyway, and the 12th District rejects the state's appeal, finding that "fundamental fairness" required that under these unique circumstances, the version of judicial release is the one that applied at the time of sentencing.
The DUI statute now prohibits someone from driving with at least 35 nanograms of marijuana metabolite in his urine, and in State v. Whalen, the 1st District holds that the statute is constitutional, being neither void for vagueness nor overbroad. Whalen's main argument is that one can't determine whether he's in violation of the statute, because he's "not able to reasonably discern how long traces of marijuana, whether ingested legally or not, may remain in one's system." The key word there is "legally": since "it is unlawful to use or unlawful to use or possess marijuana in any amount in Ohio. . . one who has consumed marijuana is on fair notice that metabolites may remain in his system. " Be interesting to see what happens if Ohio ever allows medicinal marijuana. It didn't help Whalen that he had 14 times the allowed amount in his system.
Our amazing Founding Fathers. In State v. Grasso, the defendant is prosecuted for manufacturing meth and aggravated arson, because the meth lab he had in the basement of a house blew up. One of the claims he makes on appeal is that his trial attorney was ineffective for failing to file a motion to suppress the results of the warrantless search the fire marshall conducted the day after the fire. The court cites one statute allowing a fire marshall two days to begin his investigation of a fire, and also cites RC 2933.33(A), which provides that if a police officer has probable cause to believe that a house is being used for meth production, that constitutes exigent circumstances so as to allow a search without a warrant. Thank goodness the Framers had the foresight to write the 4th Amendment in such a way that it allowed a state legislature to determine when the warrant requirement could be dispensed with.