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Case Update

I skipped over the court of appeals cases last Monday, so we've got two weeks' worth of them to go through.  Let's hit the highlights.

Add to the list of Things I Didn't Know:  the victim can remain in the courtroom during the trial, even if there's a separation of witnesses.  That knowledge comes courtesy of the 1st District's decision in State v. Maley.  Back in 1994, Ohio voters passed the Victim's Rights Amendment to the state constitution, and pursuant to that, the legislature passed RC 2930.09, which allows the victim to be present in court anytime the defendant is, "unless the court determines that exclusion of the victim is necessary to protect the defendant's right to a fair trial."  The judge's decision is reviewed for abuse of discretion, and what's worse is that the Maley court holds that more than a general claim of possible prejudice is needed.  What specific prejudice you might be able to show I leave it to your imagination. 

On the other hand, the 3rd District determines that there are limits to the victim's rights in State v. Godfrey.  In a vehicular manslaughter case, the lawyer for the victim's family appeared at trial, asked to confer with the prosecutor at one point to voice an objection, filed a brief in response to the defendant's motion for new trial, and argued it before the court.  Too much for the appellate court, which decried "this highly unusual and potentially ill-advised combination of a civil and a criminal matter."

Some tips on handling escape cases that arise from violations of post-release control come in the 8th District's decision in State v. Viccaro.   If the trial court didn't properly impose post-release controls, the defendant can't be charged with a violation of them.  And in order to properly impose it, the judge has to advise the defendant of the consequences of violating it, both orally at the sentencing hearing and in the journal entry; doing one but not the other doesn't cut it.  The judge in Viccaro's original case had warned him of the consequences at sentencing, but didn't put it in the journal entry.  The court vacates the plea to escape that was entered over two years earlier, finding that since Viccaro hadn't been properly placed on post-release control, the indictment charging him with escape was void.

I've got a problem with filing an Anders brief after a trial; you should be able to find something, if only a manifest weight claim.  I've got a real problem with filing one without the transcript of the trial, and so does the 1st District; in State v. Tsibouris, it grants the motion to withdraw and appoint a new attorney to represent the defendant. 

You have to complete your sentence in order to file for expungement of your conviction, the 10th District reminds us in State v. Hoover, and that poses a problem for the defendant in that case.  He'd received a lifetime driver's license suspension as a result of his conviction of aggravated vehicular homicide, and the appellate court holds that the suspension precludes Hoover from ever "completing" his sentence, and thus becoming eligible to have it expunged.

Finally, I stopped doing the Bullshit Traffic Stop of the Week™ a while back, but it's not because they stopped happening.  One of the usual culprits is the "marked lane" violation:  the defendant crosses the center line or the right fog line on the roadway.  Clarity is lent to this subject by the 6th District in State v. Parker.To  The court holds that to  justify a vehicle stop for violation of the marked lanes statute, the defendant's tires must travel completely over either the center or fog line.  The 5th District came to the same conclusion earlier this year in State v. Marcum.  


Recent Entries

  • May 25, 2017
    "Clarifying" post-release controls
    A look at the Supreme Court's decision in State v. Grimes
  • May 23, 2017
    What's Up in the 8th
    Allied offenses, and two search cases
  • May 23, 2017
    What's Up in the 8th
    Allied offenses, and two search cases
  • May 22, 2017
    Case Update
    Is SCOTUS looking for a forfeiture case? Plus, appellate decisions on expungement and restitution, plain error, and what a judge has to tell a defendant about sex registration
  • May 19, 2017
    What's Up in the 8th - Part II
    Decisions on lineups and prior calculation and design, and two out of eight (eight!) pro se defendants come up winners,
  • May 17, 2017
    What's Up in the 8th - Part I
    Taking a first look at some of the 8th District's decisions over the past two weeks
  • May 16, 2017
    Case Update
    Stock tips, Federal sentencing reform goes dormant, schoolbag searches, and the retroactivity of State v. Hand
  • May 8, 2017
    Case Update
    Death in Arkansas, a worrisome disciplinary decision, and appellate cases on speedy trial, arson registration, use of prior testimony, and the futility of post-conviction relief
  • May 2, 2017
    What's Up in the 8th
    Nothing but sex
  • May 1, 2017
    Case Update
    SCOTUS closes out oral argument for the Term, the Ohio Supreme Court has seven of them this week, and we report on a decision where you'll probably want to play Paul Simon's "Still Crazy After All These Years" in the background while you read about it