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Case Update

Just over four years ago, in State v. Smith, the Ohio Supreme Court held that the police couldn't search the cellphone of an arrestee without first getting a warrant.  It was a pro-Fourth-Amendment decision from a court that has not been noticeably solicitous toward defendants on that issue, made even more surprising by the fact that many courts which have considered the issue have come to the opposite conclusion.  SCOTUS may weigh in:  on Friday, the Court's first conference of the year, it will consider not one, but two petitions concerning that question.

The Court will be resolving one issue which has generated a lot of controversy.  At the end of the month, it will hear oral arguments in Navarette v. California (link is to the SCOTUSblog page for the case).  In 2000, the Court held in Florida v. J.L. that the police couldn't stop a suspect based upon an anonymous tip, unless they were able to corroborate some of the incriminating aspects of the tip.  The courts have nonetheless frequently ignored that when it comes to enforcing drunk driving laws.  That's what happened to Navarette:  the police received an anonymous tip about a possible intoxicated driver, followed the suspected offending car for five miles and, despite not observing any erratic driving, pulled the driver over.  Besides presenting an interesting 4th Amendment issue, the case illustrates that the route to the High Court can have humble beginnings; Navarette's lawyer is a sole practitioner, none of the decisions in Navarette's climb up the appellate ladder were even published, and the State of California didn't deign to file a response to the petition for certiorari.

While SCOTUS starts its oral arguments next week, the Ohio Seven begin theirs tomorrow.  First up is State v. Bonnell, which finally presents the court with the question of exactly what a judge needs to do in order to impose consecutive sentences, as required by RC 2929.14(C)(4).  That section requires a trail court three findings, and as my countless hordes of regular readers know from my seemingly endless stream of jeremiads on the subject, courts are all over the lot.  The 8th has adopted a strict compliance test, others districts have been far more lax, some panels even willing to search the record itself to see if whether what a judge could have said is sufficient.  And, of course, the situation arises any time a judge imposes consecutive sentences, and from my experience, judges in general don't have much reticence in doing so.  If ever something needed to be clarified by the state's highest court, this does.

Another sentencing issue is on tap the next day, in State v. Johnson, which addresses the question of whether an appellate attorney is allowed to see the presentence report.  Yeah, I know:  you mean there's an argument that he shouldn't?

We've got about three weeks of decisions from the courts of appeals, so let's take a look at the highlights...

The 2nd District's decision in State v. Schuttinger provides a cautionary advisement that the rules on discovery now cut both ways.  Schuttinger was charged with using an ex-employer's credit card to buy gasoline, and the case relied heavily on surveillance photos of the minivan she was supposedly driving at the time.  She attempted to introduce a photo of her own minivan, to show the differences between that and the one in the surveillance pictures.  A defendant has the duty to disclose exculpatory evidence, and the trial court excluded the photo because the defense hadn't disclosed it.  The 2nd affirms, finding no abuse of discretion.  

The impact of the Supreme Court's decisions in Lafler v. Cooper and State v. Frye are the subject of the 11th District's opinion in State v. VinsonVinson was convicted of murder, and lost his appeal and his petition for post-conviction relief.  He filed a second petition for post-conviction relief, claiming that his lawyer had urged him to reject a deal which would have involved a plea to manslaughter.  That fits into the profile of Lafler, where the Court held that a lawyer had rendered ineffective assistance by giving woefully incorrect advice regarding his chances of beating an attempted murder charge, resulting in the defendant getting three times the prison sentence he would have gotten on the plea.  A second post-conviction relief petition, however, isn't allowed unless a defendant can show it's based on a "new federal or state right" that's been recognized by the US Supreme Court.  The 11th District, in line with just about every other court which has considered the question, decides that Lafler and Frye do not establish a new constitutional right to effective assistance of counsel in plea bargaining, as Vinson urges, but only applied established 6th Amendment principles to that situation.

If you've got domestic violence case involving parental discipline, the 7th District's decision in State v. Rosa is huge.   A couple years ago, I discussed the problem of parental discipline in the context of domestic violence cases, noting that the Ohio jury instructions regard it as an affirmative defense, as do just about all the appellate districts.  As I explained in that post, doing so is theoretically inconsistent, because it proceeds from the assumption that physical discipline by a parent is inherently wrong, and it's up to the parent to justify it.  It's also pragmatically problematic, because it prevents an appellate court from addressing whether the discipline was truly improper:  under an insufficiency test, the defendant's evidence is discounted.  The 7th District adopts the same that the unreasonableness of the parental discipline is an element the state must prove in domestic violence case.  You can't get any bigger than changing it from the defendant's burden of proof by a preponderance to the state's burden of proof beyond a reasonable doubt.

Where a defendant has filed a jury demand in a misdemeanor case, a subsequent waiver of that demand has to be in writing, the 5th District holds in State v. White... A statement that the defendant is "depressed" is not sufficient to put the trial court on notice of any mental health issues that would affect the defendant's ability to enter a valid guilty plea, says the 10th District in State v. Akbari... How's this for getting off on a technicality?  In State v. Kaczmarek, the 3rd District finds that the evidence was insufficient to convict the defendant of insurance fraud, because no representative of the company testified, and no certificate of registration was introduced demonstrating that the insurance was licensed in Ohio... Wait another five years, and we'll see:  in State v. Campbell, the 1st District rejects a claim that the concealed weapons statute is unconstitutional on its face, as infringing upon the fundamental right to bear arms... 

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