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Case Update

Another big decision on gun rights, but not from SCOTUS.  The Ohio Supreme Court hands down a couple of decisions, and a court of appeals entertains a Freudian interpretation of the burglary statute.

In Peruta v. San Diego, the 9th Circuit The 9th Circuit made it easier for Annie to get her gun by striking down California's concealed carry laws, which allow the county sheriff to grant a permit only upon a showing of "good cause," with the added proviso that "concern for one's personal safety alone is not considered good cause."  

Isn't that sort of the point of carrying a gun?  I used to be a strong gun control supporter, but it's clear that you're not going to keep guns out of the hands of the bad guys, so it makes sense to let the good guys have them, too.  Despite Michael Dunn's killing of Jayson Davis -- more on that later in the week -- concealed carry permit laws, which have been adopted in just about every state in the country, haven't led to the bloodbath that many had feared.  If you've got a clean record and have gotten the training, you should be allowed to carry a gun without having to convince some bureaucrat that there's more than your own "personal safety" at stake.

The 9th Circuit might not have the last word in Peruta.  The vote was 2-1, and an en banc consideration is likely.   And while the Supreme Court decisions in Heller and McDonald held that the right to bear arms was an individual one, but in both of those cases the regulation prohibited having a gun in one's home.  Peruta extends that right to carrying a gun outside the home.  Three other circuits have upheld restrictions in concealed carry laws, so the case could wind up in the Supreme Court's lap.

Sometime in August of 2011, your client decided to use the express checkout line at Walmart's, except in this case it meant loading up a shopping cart with $600 worth of stuff and walking out of the store without paying.  At that point, any theft over $500 is a felony, but by the time he gets sentenced in October, HB 86 has raised the threshold for a felony theft to $1,000.

There was no dispute that the change required that he be sentenced for a misdemeanor, but there was a dispute as to whether he was entitled to have the offense classified as a misdemeanor as well.  Last week, in State v.Taylor, the Supreme Court resolved that dispute, coming down on the side of not just reduction in punishment, but reclassification as well. 

Obviously, the chances of this issue arising now are minimal; there aren't a whole lot of shoplifting cases from 2011 still pending.  It does serve one purpose, though, which is to resolve the issue the next time the legislature raises the threshold.  It did it before, in 1996 (from $300 to $500), and when HB 86 came and this question first arose, I did some checking and damned if I could find any cases from that period addressing it.  True, I didn't make it my life's work to find one, but the Supreme Court justices employ law clerks whose life work is to find those cases, and if they did, the opinion doesn't mention them.

Ohio's RICO statute requires proof that a defendant committed two or more offenses while part of an enterprise engaged in a pattern of corrupt activity.  The Supreme Court's other opinion last week, State v. Miranda, addresses the question of whether the predicate offenses merge into the RICO count.  To the surprise of few, the unanimous answer is no.  Some thought the case might be a springboard for further clarification of the court's 2010 decision in State v. Johnson, which substantially revised the test for allied offenses.  No need to get into that; whether multiple punishments can be imposed is determined by the intent of the legislature.  Here, the clear intent of the legislature was to allow for punishment of both the RICO count and the predicate offenses, and we know that because although the legislature didn't say that, other courts have held that the legislature clearly intended that.  Any questions?

Your client gets convicted, and asks you to file an appeal.  You tell him that the fee agreement provided only that you'd represent him at trial, and besides, you don't know nothing 'bout appeals or birthin' babies, so you tell him to get somebody else.  Good move?  Not according to the 12th District's decision in State v. Francis, which in turn relies upon a 2000 US Supreme Court decision which held that "a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable."  That decision requires you to file an appeal only when instructed by the client, and held that while the better practice was to consult with the client about it, the duty to consult arose only whether a rational defendant would want to appeal; one highly relevant factor is whether the conviction came after a guilty plea.

Analogies run amuck.  In State v. Gonzalez, the defendant's conviction for burglary rests on whether he "entered" the premises by putting his foot about six inches over the door threshold.  The State argued that since the rape statute provides that "penetration, however slight, is sufficient to establish the statutory element of entry," the court should tell the jury that "when a person breaks the plane of a property line that defines the boundaries of the land or premises of another.  Breaking that plane, however slight, is sufficient to constitute entry."  The 6th District affirms the conviction.

All done?  Then we're outa here.  Nobody's going to accuse the 1st District judges of getting paid by the word.  In State v. Alexander, the court reverses consecutive sentences because the judge didn't make the required findings, disposing of the case in an opinion which clocks in at a tidy three paragraphs and 232 words. 


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