Well, that's a change of pace. No oral arguments in the U.S. Supreme Court, and nothing happening other than a dissent to a couple of denials of certiorari. On the other hand, the gang down in Columbus has come down with three - count'em, three - decisions in criminal cases over the past couple of weeks.
The biggest was State v. Washington, which we'll talk about on Wednesday. (Yes, I know I told you last Monday that we'd talk about it last Thursday, but then it's not the first time you've been disappointed in life, is it?) State v. Holdcroft is the latest decision on the ever-fascinating topic of post-release control, and it features a new variation on what had become a clichéd theme. Holdcroft was convicted of aggravated arson and arson in 1999, and received a 10-year sentence on the former and a 5-year sentence on the latter, to be served consecutively. PRC was in its infancy then, with few decisions to guide trial judges, and as was so often the case, the judge screwed it up. No one realized that problem until 2010, by which time Holdcroft had completed the sentence for the aggravated arson. The judge nonetheless held a hearing and imposed the five-year mandatory PRC period for the aggravated arson, and the three-year discretionary period for the arson.
In numerous decisions, the court has held that PRC couldn't be imposed once the defendant had completed his prison sentence, but the trial court and 3rd District held that this didn't present a problem, since Holdcroft was still in prison. But not on the aggravated arson, and so, by a 5-2 vote, the court holds that PRC couldn't be imposed on that count. (Lanzinger concurs only in judgment, beating her well-worn drum that improper imposition of PRC shouldn't result in a "void" sentence.)
The impact of Holdcroft is obviously limited to situations where the defendant is serving consecutive terms, has completed one of them, and the uncompleted term involves a lesser PRC period than the completed one. Completely unmentioned in Holdcroft is how the court determined that the aggravated arson sentence had been completed first. As we'll see in a decision from the 8th District tomorrow, that's sometimes a tricky matter to determine.
RC 2945.75 requires that when the presence of additional elements makes an offense one of a more serious degree, the verdict must state either the degree of the offense or the additional elements; if it does neither, it serves as a conviction of only the least degree of the crime. In its 2007 decision in State v. Pelfrey, the court held that the failure of a verdict form in a tampering with records case to include the fact that government were involved reduced the crime from a third-degree felony to a misdemeanor. Last week's decision in State v. McDonald builds on that. McDonald had led the police on a high-speed chase, and was indicted for failure to comply.
That offense actually contains two sections. The first simply prohibits failure to comply with an order of a police officer, and is a first degree misdemeanor. The second prohibits operating a motor vehicle and "willfully" fleeing from the police after a signal to stop, and becomes a third degree felony if the jury determines that the operation of the vehicle caused substantial risk of serious physical harm to person or property. The verdict form found McDonald guilty of "Failure to Comply with Order or Signal of Police Officer And Caused A Substantial Risk of Serious Physical Harm To Persons or Property."
That's not enough for Pfeifer, who writes for the five-member majority: "failure to comply" could mean a violation of either of the sections of the statute, and only the second can be a felony if elevated by the "substantial risk" element. But French's dissenting opinion (O'Donnell dissented without opinion) has, I think, the better argument. Jury verdicts aren't required to list all the elements of the offense; only when there is an aggravating element does that have to be included. In short, the verdict form did not have to distinguish between the two sections, and since the aggravating element applied only to the second, and was found by the jury, that was enough. Of course, the whole problem could have been solved simply by having the verdict form specify the degree of felony, and figure on seeing more of that.
Let's check out the courts of appeals...
Despite CSI and similar shows, the reliability of forensic evidence has taken a hit in recent years, and ballistics comes under fire - no pun intended - in the 6th District's decision in State v. Langlois. The opinion's a monster read - it's some 57 pages - but the gist is that while there are some flaws in the theories surrounding them, it's not sufficient to justify exclusion under a Daubert theory. If you need to know how the Daubert standards work, this is the place to go. It also contains an interesting argument about the prosecution's use of the fact that the defendant, charged with murder, had a virtual arsenal in his home. The panel harrumphs up some indignation, noting that in this God-fearing state, no small number of people have acquired multiple firearms, a right protected by the Constitution, but then -- quelle surprise -- affirms the conviction.
Just how difficult a Batson challenge can be is demonstrated by the 2nd District's decision in State v. Russell. After Russell had been convicted of felony murder and assorted other crimes, the 2nd District affirmed his conviction, only to grant a motion to reopen and reverse the conviction. Russell's second trial also resulted in conviction, but got that reversed, too: the judge had rejected a challenge to the exercise of the state's peremptory challenge to a black juror, finding that no "pattern" of using peremptories in this fashion existed. But you don't need a pattern, the 2nd District held in that appeal, sending it back to the trial judge for determination of whether the challenge was valid. The judge decided that the defense hadn't established a prima facie case of racial discrimination, but that was wrong, too; basically, you can establish a prima facie case by showing someone of a protected group was excluded. That goes up, and the 2nd District sent it back again, this time for the judge to make the second and third determinations required under a Batson analysis: whether the prosecutor articulated a race-neutral reason, and if so, whether it was credible. You can guess what the judge found, and last week the 2nd District affirmed that decision.
Cases I'll be sure to get around reading someday. The LEXIS summary for the 9th District's decision last week in Akron v. Cabell:
In a case involving a missing dog, defendant's coercion conviction was based on insufficient evidence because there was no evidence that defendant ever threatened the dog.