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Case Update

The decline of our civilization accelerated last week with the oral argument in the Supreme Court in Octane Fitness v. Icon Health and Fitness.  Not the case itself, which dealt with attorney fees in patent cases; it is extremely unlikely that you will ever see those four words in this blog again.  Nor was the defining event a spectator, Noah Newkirk, using the occasion to stand up and protest the Court's 2010 ruling in Citizen's United.  Such outbursts, while rare, are not unheard of, the last coming eight years ago when a protester started yelling about Jesus Christ during an argument in an abortion case.  No, it was the fact that Newkirk's demonstration was secretly recorded.  The Court doesn't even unsecretly record their sessions.

Oh, the humanity!  Newkirk got out a couple of sentences before he was trundled off by the gendarmes, to be charged with violating a Federal law banning a "harangue" or using "loud threatening or abusive language" in the Supreme Court building.  Good luck with that.  Free speech much?

The Ohio Supreme Court's oral arguments last week went unimpeded by protesters, and there was an interesting one in State v. Gilbert, dealing with whether a judge can vacate a plea after sentencing because the defendant violated the terms of the plea agreement.  We'll talk about that later this week.

Only one "decision," if you can call it that.  Alva Campbell's date with whatever method of execution the state comes up with by next year was hastened by the Supreme Court's granting his application to dismiss his appeal.  It turns out his application was not prompted by his eagerness to meet the same fate as Dennis McGuire, who took twenty-six minutes to die in January when he was injected with the new, not-so-improved drug cocktail Ohio now intends to utilize to kill people.  Campbell actually had two previous appeals from his 1997 conviction for killing the victim of a car-jacking, and his latest one involved an appeal from a nunc pro tunc entry the court had made to impose post-release controls on his other offenses.  When the Supreme Court limited the appeal to determining the propriety of PRC for those offenses, Campell realized it was game over, at least with this latest round of court challenges. 

In the courts of appeals, two decisions on the intricacies of community control sanctions.  The 2nd District shows no love to the defendant in State v. Williams.  Williams had pled guilty to five counts of possessing cocaine, and one count of trafficking the drug.  He was given community control sanctions, but violated them, and the judge gave him 42 months in prison.  Williams then appealed, arguing that the offenses should have merged for sentencing, and that at most he could only be sentenced on the trafficking and one of the possession charges. 

Too late, the court decides:  Williams could have, but didn't, appeal from his original sentencing, so his appeal now is barred by res judicata.  At least six other appellate districts have held the same way.  Still, the dissent makes a good point that it's better to allow appeals only after an actual prison sentence has been  imposed; "the majority's  opinion will result in countless appeals from the grant of community control sanctions which may ultimately be unnecessary due to successful completion of community control or administrative termination thereof."

The 8th District also deals with violations of community control sanctions in State v. BriggsThe judge placed Briggs on community control sanctions for five years, then sent him to prison for six months when he violated a second time.  The judge granted him judicial release on condition that he do five years of CCS.  Briggs violated those, too, but at his second violation hearing he argued that more than five years have elapsed since he was first put on CCS, and the maximum is five years.  But the panel holds that CCS from the original sentence is a different animal from CCS for judicial release, and the judge could give Briggs a fresh five years after his release from prison. 

Bullshit Traffic Stop of the Week.™  In State v. Smith, the defendant didn't activate his turn signal until he stopped at a stop sign.  The 10th District finds that this gave the police reasonable suspicion that he'd committed a traffic violation, and upheld the stop.  

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