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Case Update

The death yesterday of actor Philip Seymour Hoffman of a heroin overdose was not an isolated event.  Heroin use has undergone a revival of late; last year, heroin overdose deaths exceeded homicides in Cuyahoga County.  

Against that backdrop, SCOTUS last week released its decision in Burrage v. US.  Burrage was a heroin dealer, and after one of his clients died, he was convicted under a 1986 law which adds imprisonment up to life if the drug deal "results in death."  The doctors testified at Burrage's trial that they couldn't determine if the heroin caused the death, but the judge instructed the jury they could find Burrage guilty if the heroin contributed to the death.  The government argued that the two meant the same thing, but that foundered on the reality that if Congress had intended "contributing" to be sufficient, it would have said so.

Burrage was an interpretation of a specific Federal statute, so it can't be clearly applied to anything beyond that.  Still, it addresses the concept of causation in criminal statutes, and its adoption of a "but-for" test shouldn't be ignored.  Under Ohio law for aggravated vehicular homicide, the courts have adopted a concurrent causation test:  as long as intoxication was a contributing factor in the accident - and try convincing a jury that it wasn't - the defendant is culpable.  Burrage is definitely worth a read.

No decisions from the Ohio Supreme Court, but oral arguments are on tap this week for four criminal cases, plus a death penalty case.  The biggie is State v. White (link is to the Supreme Court's online docket page), which reversed a conviction of a police officer for an on-duty shooting of a motorist.  The 6th District's opinion generated 81 pages (and 67 - count'em, 67 - Lexis headnotes) and five propositions of law, so it's going to be interesting to see that compressed into 30 minutes of argument.  Two other cases come from the 2nd District: in State v. Tolliver, the State argues that the force or threat of force element in robbery is a strict liability offense, and State v. Straley considers the recent prosecution tactic of charging someone for tampering with evidence for dropping a crack pipe or bag of drugs when they're approached by the police.  Perhaps most interesting, if not in the result, in the journey, is State v. Morris, on 404(B) evidence.  It's the second appearance for the case before the court, and I'll have more on it later this week.

In the courts of appeals...

The 1st District's decision in State v. Kostyuchenko is a must-read if you're representing someone who's not a citizen.  Kostyuchenko pled guilty to failure to comply and received a one-year prison sentence.  His lawyer told him that the offense could make him "deportable," but there was no "could" about it:  deportation was mandatory.  The lawyer denied that it was any big deal, claiming that his client was only concerned with avoiding a prison sentence.  The trial court wasn't buying that, and neither did the 1st District.  Notable is the panel's holding that the trial court's advisement under RC 2943.031that a non-citizen "may" be deported doesn't cure the deficient performance of counsel in failing to advise the client that deportation is mandatory.

In State v. Widener, the trial court grants Widener's application for expungement of his conviction for contributing to the delinquency of a minor, because one of the sections of the expungement statute specifies that convictions of various low-level sex offenses aren't expungeable if the victim was a minor, and contributing isn't one of those offenses.,  But this is an easy one:  the 2nd District reverses, noting that the very next subsection section precludes expungement if the offense involves a minor victim and the offense is a first degree misdemeanor or a felony, and contributing to delinquency is the former.

Turnabout is fair play:  when the General Assembly passed HB 86, it eliminated the requirement that judges give reasons in support of their findings for consecutive sentences.  But it also eliminated the requirement that judges give reasons in support of their findings overcoming the presumption that a person convicted of a first or second degree felony term be sentenced to prison.  That works to the great benefit of the defendant in State v. Milhoan, who was given community control sanctions for a bevy of child pornography charges.  The 6th District affirms, and provides a lengthy analysis of the standards for appellate review of sentencing, especially the requirement that a court can reverse a sentence only if it "clearly and convincingly" finds that the record doesn't support the judge's findings.

I've been waffling on the issue of whether you need to make an objection to preserve an assignment of error that the judge failed to make the necessary findings to impose consecutive sentences.  The 10th District's decision in State v. Ayers moves me a bit toward not doing so:  it finds that the trial judge's failure to make the findings is plain error.  Several other courts have ruled the same way, and I've yet to see a decision holding that failure to object waives the error.  

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