Case Update
Everybody's gearing up for the typical end-of-the-term
madness at SCOTUS, with decisions on gay marriage, affirmative action, and Section
5 of the Voting Rights Act expected over the next fortnight. The only criminal cases still to be resolved
are one on mandatory minimum sentences and one on the armed career criminal
act. Both are likely to be limited in
impact to Federal cases, but the former, which concerns the application of Blakely/Apprendi to minimum sentences,
may have wider implications.
The Court's handed down two criminal decisions in the past
couple of weeks, the more significant of which, Peugh v. US, deals with the Ex Post Facto Clause and
sentencing. We'll talk about that later
this week. The Court also decided US v. Davila, which dealt with the 11th
District's decision vacating Davila's guilty plea because a magistrate judge
had advised him that his only sensible course might be to plead guilty and
accept responsibility or, as the magistrate put it, "that means you've got to
go to the cross." There was no question
that this violated Federal Crim.R. 11, which, unlike its Ohio counterpart,
flatly prohibits judicial participation in plea-bargaining. The problem was that the appellate court had
held this automatically required reversal.
The Court unanimously reversed, noting that Davila had pled guilty three
months later, never mentioning the exchange with the magistrate, even when he initially
filed his motion to vacate the plea. The
moral of this story is that structural error analysis, as opposed to
determining whether the error is harmless, is going to be severely limited,
such as denial of counsel or jury or judicial misconduct.
The Ohio Supreme Court handed down a pair of criminal
decisions, too. Back in 2010, the Court
amended App.R. 26 to allow for en banc reconsideration
of district court decisions, in an attempt to avoid intradistrict conflicts,
such as the one which had seen two 8th District panels hand down conflicting
decisions in the same case on the same day.
At issue in State
v. Forrest is the mechanics of this process. The rule specifies that "upon a determination
that two or more decisions of the court on which they sit are in conflict, a
majority of the en banc court may order that an appeal or other proceeding be
considered en banc." The court, by a 4-3
decision, holds that the rule is silent as to who makes the determination of
whether a conflict exists, and concludes that the three-judge panel which heard
the case, not the entire court en banc,
has the right to do this. I think a
better argument could be made to the contrary, but on my List of Things I Care
About, this winds up somewhere in the middle of page 14.
Placing a couple of pages beyond that is State
v. Willan. Not that it's
insignificant; it concerns the issue of whether the a defendant convicted of engaging
in a pattern of corrupt activity is subject to a mandatory ten-year prison sentence
when the most serious offense in the pattern is a first-degree felony. No, I do not care because the statutory provision
which resolves this question is a mind-numbing 307 words long, without benefit
of any punctuation mark stronger than a comma.
For those of you foolish hardy enough to tackle the project, the
provision in question is RC 2929.14(D)(3); go see if you can decipher it,
secure in the knowledge that if you can do so without slipping into a state of
stupefaction, you're a better man than I.
I don't know what's funnier about the case: the fact that the majority opinion actually
says at one point, "if language in a statute is plain and unambiguous, we will
apply it as written" -- as if -- or Pfeifer's dissenting opinion, which is
exactly 307 words long, also without any non-comma punctuation, although he has to engage
in a brief discourse about the Battle of Thermopylae to accomplish that. Or the fact that the legislature has since
amended the statute, adding another twenty words to it in the process.
Less opaque are some of the decisions from the courts of
appeals...
One of the key questions that have arisen in the wake of HB
86 is whether the reduced penalties for various offense also includes a
reduction in classification. For
example, HB 86 increased the threshold for a felony theft from $500 to
$1,000. There's no question that
somebody who stole $700 before the statute went into effect, but was sentenced
after, is entitled to be sentenced for a misdemeanor; is he also entitled to
have the offense classified as a misdemeanor?
In State
v. Zalewski, the 6th District joins the 1st, 2nd, 5th, 10th, and 11th District in holding that he is; the 8th and 9th District have ruled to the contrary, and
the issue is pending before the Supreme Court... A finding of a violation of
community control sanctions isn't a prerequisite for a trial
court to extend their term, the 10th District holds in State
v. Weston; the court only needs a rational basis to do so... The 11th
District affirms an award of nearly $140,000 in restitution in State
v. Demirci, noting that the defendant had an education and 25 years
until retirement... Jury instructions that the jury had to find that the stolen property
was a dangerous drug to find the defendant guilty of a 4th degree felony theft
weren't sufficient to avoid a Pelfrey problem,
the 3rd District says in State
v. Klein; since the verdict form didn't include the degree of the
offense or the aggravating element, the conviction was only for a misdemeanor...
Anders briefs. In State
v. Lester, the 4th District affirms the trial court's denial of a
motion to withdraw a plea -- on an Anders
brief. I'd be the first to tell you
that the chances of success in that endeavor are minimal; despite the case law saying
a pre-sentence motion to withdraw should be "liberally and freely granted," the
judge's decision is reviewed for abuse of discretion, and a denial is rarely
overturned. Still, an Anders brief? "Frivolous" doesn't mean "likely to lose," it
means not having any good-faith basis for making an argument, and that's almost
never the case in these situations. And
here's something else to ponder: the
original appellate lawyer in US v. Davila
filed an Anders brief, apparently
not realizing he had a US Supreme Court case on his hands.
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