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Case Update

Can the police search the contents of your smartphone without a warrant?  Four years ago, in State v. Smith, the Ohio Supreme Court said no, in a decision I described at the time as "so defense-friendly it has me looking for other signs of the Apocalypse."  In fact, the decision's a bit of an outlier; most courts have concluded that a warrantless search of a cellphone incident to the defendant's arrest is permissible.  The California Supreme Court came to that conclusion, and the US Supreme Court is being asked to take the case.  There's a good article on the amicus brief filed by the Constitutional Accountability Center (and no, I've never heard of it either) arguing that the contents of a cellphone fall within the purview of a person's "private papers," the protection of which was a key factor in the adoption of the 4th Amendment.  That's the kind of argument that could resonate with Scalia, who's taken a much more defendant-friendly approach on 4th Amendment issues recently, so we'll see what happens.

Mirable dictu!  The Ohio Supreme Court came down with a decision in a criminal case, two of them, as a matter of fact.  One, a key decision on the use of the "investigative exception" to the hearsay rule, we'll talk about tomorrow, and move the 8th District summary to Wednesday. 

The other, State v. Dzelajlija, also came out of the 8th, and did not show the district at its best.  As I explained when I wrote about the oral argument, and also when the appellate decision came down, the case has followed a tortuous path, which can best be summarized as follows:  Dzelajlija's conviction from his first trial was vacated for evidentiary errors, and his second trial was reversed because the Supreme Court had held in State v. Colon that failure to include the mens rea element in an indictment was structural error.  Just before Dzelajija's third trial, though, the Supreme Court reversed Colon in State v. Horner, so the trial court applied Horner and reinstated the conviction.  In Dzelajlija's third appeal , the court again reversed, finding that he'd raised an issue of manifest weight of the evidence which hadn't been resolved in his second appeal.  A few weeks later, though, the court reconsidered, and decided that the trial judge should have listened to its decision in the second appeal reversing the case on the basis of Colon.

The contention that a trial court should listen to what the court of appeals says, despite an intervening decision to the contrary by the Supreme Court, met the fate that you'd expect.  The Supreme Court reverses it and sends it back so the 8th can take a 5th whack at it, on the manifest weight issue.

A quick look at the decisions from the courts of appeals...

The City of Cincinnati appeals a trial court's determination that the Adam Walsh Act is unconstitutional, and refusing to apply it to a defendant convicted of voyeurism.  Interesting decision, but the 1st District won't be reviewing it; in State v. Ratliff, the court dismisses the case because the State didn't seek leave to appeal, and a ruling declaring the statute unconstitutional doesn't provide a basis for an appeal as of right... The defendant is placed on community control sanctions for a third-degree felony in 2009.  In 2012, he violates the sanctions, and the judge imposes a five-year sentence.  HB 86, which went into effect in 2011, reduced the penalty for the defendant's crime to a maximum three-year sentence.  Does the defendant get the benefit of the reduction?  Yes he does, says the 4th District in State v. Tolliver...

In State v. Short, the 3rd District holds that the judge erred in imposing consecutive sentences because he didn't make any reference to the findings contained in RC 2929.14(C)(4).  The case has a twist, though.  Short pled guilty to conspiracy to murder and aggravated burglary, and in return the prosecution agreed to recommend a sentence of fourteen years.  (At the sentencing hearing, the judge refers to this as a "joint recommendation.")  That means whether the judge made the necessary findings was irrelevant; under RC 2953.08(D)(1), "a sentence imposed upon a defendant is not subject to review under this section if the sentence is authorized by law, has been recommended jointly by the defendant and the prosecution in the case, and is imposed by a sentencing judge."  That doesn't necessarily mean that the judge didn't have to make the findings, but it does mean that the defendant couldn't appeal on that basis.

Anders briefs.  The defendant in State v. Temple is given maximum consecutive sentences of 20 years for sex offenses involving a minor, and the court affirms - on an Anders brief.  The only potential issue raised is an 8th Amendment challenge, which of course goes nowhere; a court must find that "the penalty must be so greatly disproportionate to the offense as to shock the sense of justice of the community."   A better issue would have been whether the judge made the necessary findings to impose consecutive sentences.  The 2nd District finds that he did, but there was certainly an argument to the contrary; this wasn't a case where the judge made the express findings required by the statute, but rather one in which the appellate court rummages through the record to see whether what the judge did say was a reasonable approximation of what he was supposed to find.  Given that the Supreme Court has several cases pending on the issue of what a judge must do to properly impose consecutive sentences, there's no justification for filing an Anders brief in such cases.  

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