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What's Up in the 8th

You know defendants are having a tough time in the 8th District when the only favorable decision is one that allows a guy who killed two people while driving drunk to get his license back.

That comes in State v. Sneed, where the judge sentenced Sneed to 15 years in prison, then later that day made a nunc pro tunc entry suspending his license for life.  That was back in 1997, and in August of 2013 Sneed filed a motion arguing that the nunc pro tunc entry was void.  Everybody agrees that it is, and normally all that would entail is everybody trooping back into the courtroom to have the judge impose it on the record.  But there's a catch:  two months after he filed the motion, Sneed was released from prison.  Once a defendant has finished serving his sentence, it can't be re-imposed to correct things like post-release control or driving license suspensions.  So Sneed gets his wheels back.

The same can't be said for Greg Franklin.  The cops approach his car, a gray Lexus, which is parked on the street, to inquire about who might another car that's parked nearby, with its motor running.  Franklin's motor was running, too, apparently; as the cops approach the car, he gets out, at which point the police are "overwhelmed" with the smell of burning marijuana.  Unfortunately, not so overwhelmed that they develop a craving for Dorito's and spending endless hours debating whether psychology is just so much bullshit.  Instead, they begin searching the car for the location of the weed, when one of the officers notices that the molding around the center console is loose.  Having worked as a master technician for Lexus before he decided he'd rather make drug busts for a living, he knew that the console was removable, so that's what he did, and found felony one weight of heroin and a gun.  After the judge denied Franklin's motion to suppress, he pled no contest and took it up.  But the denial is affirmed - approaching a parked car is a consensual encounter, and doesn't require reasonable suspicion - the $10,000 fine is upheld because an affidavit of indigency wasn't filed before sentencing, and since Franklin didn't object to the forfeiture of his ride, the cops become the proud owner of the Lexus.

The other side of the drug war is portrayed by two cases, State v. Morton and State v. Clayton.  They're co-nominees for the Bullshit Traffic Stop of the Week Award™, having failed to use their signals before turning or changing lanes.  Morton was then arrested for driving under a suspended license, whereupon the police found a solitary pill of ecstasy on him.  That resulted in a motion to suppress hearing, a trial, a guilty verdict of fifth degree felony drug possession, and a year of community of community control sanctions.  And an appeal, where this is all affirmed.  Your tax dollars at work. 

A bigger bite out of your wallet comes in Clayton.  Clayton was the passenger in the car the police stopped, but they asked him to exit the vehicle when they observed him smoking a joint.  When he did, a sharp-eyed police officer observed a small bag of cocaine hanging out of the front pocket of his sweatshirt.  At least, that's what the police officer claimed, and the judge bought it, so the appellate court's stuck with that.  Clayton was convicted of a count of possession and one of trafficking, as well as a count of possession of criminal tools.  All were fifth degree felonies.  The judge merged the first two, and imposed maximum, consecutive sentences totaling two years.  The court affirms the denial of the motion to suppress, and the sentence, too, finding that the judge said the magic words; if she said anything beyond that, the opinion, clocking in at a breezy four pages, doesn't mention it.  The tab for the whole shebang should run just north of $50,000. 

The court goes the extra mile, and perhaps one it doesn't have to, in State v. GreenleeGreenlee was charged with assault in juvenile court in Iowa in 2000, when he was 15, the petition alleging that he did so for a sexual purpose.  He admitted the assault, but didn't admit to the sexual purpose.  He moved to Ohio in 2004, did two years for robbery, and was told when he got out that he had to register as a sex offender because of the Iowa adjudication.  He's prosecuted now for failing to verify his address.

The question is whether he was required to register as a result of his Iowa conviction.  The Supreme Court tackled that two years ago in State v. Lloyd, holding that a defendant convicted out of state has a duty to register in Ohio if

(1) the defendant was convicted of a sexually oriented offense that is 'substantially equivalent' to a sex offense subject to registration requirements in Ohio, and (2) the defendant was under a duty to register in the other jurisdiction at the time he moved to Ohio.

The two are in the conjunctive, and since Greenlee was never required to register in Iowa, that would take care of that, but instead the court conducts an exhaustive analysis of the first prong and decides that the Iowa assault doesn't translate to gross sexual imposition, as the state alleges.  That seems unnecessary, but the same result obtained in Lloyd:  after the court went through all kinds of hoops to show that the aggravated sexual assault conviction in Texas was "substantially equivalent" to rape, using the "modified categorical" approach employed by Federal courts to determine whether a state offense triggers the enhancement under the Armed Career Criminal Act, the court noted that Lloyd had never been required to register in Texas.

The biggest decision, though, was one that will have major ramifications in cases involving rapes which occurred ten and even twenty years ago.  We'll talk about that one tomorrow. 

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