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Case Update

A big 4th Amendment battle looms at SCOTUS, the 8th District has a bad week in the Ohio Supreme Court, and appellate cases on reducing sentences, limitations on resentencing in allied offense cases, and good news/bad news for Tomas Aquino: he gets to stay in this country when he gets out of prison, but he has to stay in prison for a while longer.

I'd mentioned a few weeks back that the US Supreme Court had been asked to hear two cases involving whether a defendant's cellphone could be searched incident to his arrest.  The Ohio Supreme Court said no a few years ago in State v. Smith, and so did the 1st Circuit last year in US v. Wurie.  The California Supreme Court came to a different conclusion in Riley v. California, and the Court took that case and Wurie in on Friday.  Oral argument is expected in April, and a decision by June.   Needless to say, we'll talk about that in a lot more detail later on.

You remember the SAT analogies, where you had to figure out that crumb was to bread what splinter was to wood?  (Think about it.)  Well, here's one:   9th Circuit is to SCOTUS what 8th District is to the Ohio Supreme Court.  In State v. McGlothan, the 8th concluded its bad, no-good, horrible week by having its second decision reversed by the Columbus Seven, this time in a domestic violence case.  McGlothan explains just what's needed to prove a domestic violence case where the victim isn't a family member, so we'll spend some time talking about it on Thursday.

 "Intensive Prison Programs," known as IPP, is one of the methods of reducing a prison sentence.  Basically, it's a 90-day program which can be utilized for inmates serving sentences for certain third, fourth or fifth degree felonies (no mandatory sentences, no sex offenses, no offenses involving physical harm), after which the inmate is either placed in transitional detention or released on post-release control.  The sentencing judge has control over this:  the Department of Rehabilitation and Corrections has to notify the judge before it places an inmate in IPP, and if the judge disapproves, it can't proceed with the placement.  A number of times, a judge will provide in the sentencing entry that the defendant is disapproved for IPP.

But there's a twist to that, the 2nd District notes in State v. Berry:  under RC 2929.19(D), if the trial court disapproves, it has to "make a finding that gives its reasons for its recommendation or disapproval."  While some districts, like the 5th and the 12th, give judges more leeway on this - basically looking to determine whether the record provides reasons for disapproval - the 2nd District does not:  "This statutory requirement, imposed on the trial court, is not satisfied by an appellate court finding in the record reasons that the trial court could have given, or might have given, for disapproval."  In many cases, the court won't even mention IPP at the sentencing, but instead will just stick a line in the journal entry, so if you're representing a defendant who might be eligible for IPP, this is another thing to check.  It's noteworthy that reasons aren't required for imposing consecutive sentences, so this set up the anomalous situation where a judge can send someone to prison for thirty years without giving any explanation of why, but has to provide reasons for not allowing another defendant to shave a few months off his sentence.

The judge imposes a six-year sentence on the aggravated burglary conviction, one year on the domestic violence, and runs them consecutively for a total of seven years.  The court of appeals reverses, holding that they're allied offenses.  On remand, the State elects to sentence on the burglary conviction, and the judge imposes seven years.  Can he do that?  No, says the 12th District in State v. SeymourThere's a presumption that an increased sentence on remand is imposed as punishment for an appeal, and the judge has to give an explanation of "relevant factors" that have occurred since the sentencing to overcome that presumption.

In State v. House, the trial court rules House can't present a claim that he was not guilty by reason of insanity due to PTSD, because he doesn't have any expert testimony to that effect.  He enters a no-contest plea and takes that up, but too bad, says the 2nd District:  a no contest plea waives the right to challenge a trial court's evidentiary rulings at trial... The defendant in State v. Willis claims his killing his girlfriend was an accident, and argues that the trial judge should've given an instruction on reckless homicide.  Not so, says the 8th District:  a judge need not give an instruction anytime there is "some" evidence supporting it, but only where there is "'sufficient evidence' to 'allow a jury to reasonably reject the greater offense and find the defendant guilty on a lesser-included (or inferior-degree) offense" . . . A rare reversal of the denial of a motion to withdraw a plea comes in the 11th District's decision in State v. Pudder:  the defendant presented evidence that two newly-discovered witnesses would exculpate him on the charge of sexually assaulting a woman at a party...

In State v. Aquino, the defendant takes his fourth shot at overturning the plea he entered back in 2005, this time claiming that the judge didn't give him the advice required by RC 2943.031 about the consequences his plea might have in terms of his immigration status.  Might've been a better argument if there had been some consequences:  Aquino was a naturalized US citizen. 

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