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Case Update

The big news out of SCOTUS this week was that Justice Antonin killed somebody.  Well, he didn't, but you wouldn't have known it from the all the hullabaloo over the mistake he made last week in his dissenting opinion in EPA v. EME Homer City Generation.  The 6-2 decision approved the EPA's cross-state pollution control rules, and Scalia used the occasion to criticize the EPA.  (I'd try to explain what the whole thing was about, but it would only want to make you stab yourself in the head.)  The problem was that Scalia used a 2001 decision to make his point, and the earlier decision said the exact opposite of what he claimed it did.  The bigger problem was that Scalia himself had written the opinion in the 2001 decision.  The knives came out quickly, Talking Points Memo calling it an "Epic Blunder," and the Daily Kos headlining it, "Scalia Screws Up Royally.  Time to Retire."  I'm not a big Scalia fan, although after Blakely, Crawford, and some of his recent 4th Amendment opinions, I'm reassessing that evaluation.  Still, a lot of the criticism seems overwrought. 

On the other hand, I remember writing a post a few years back about how Supreme Court law clerks get snapped up by big firms, usually with starting salaries above the people they recently clerked for.  I'm guessing that the future for one of them isn't so bright.

Down in Columbus, no decisions, but several cases on tap for oral argument this month.  Next week, the court tackles a death penalty case and the issue of whether a defendant can have his conviction expunged without completing restitution, and reviews a 12th District decision holding that a resentencing hearing limited to proper imposition of post-release controls is not a "critical stage of the proceedings," and thus a defendant isn't entitled to appointed counsel.  At the end of the month, the court hears a case on the flip side of expungement:  whether a trial court can unseal a defendant's records.  It will also hear a case on allied offenses, and one on the 4th Amendment implications of seizing a computer.  The latter is my case, so, as you might imagine, we'll hear more about that.

Off to the courts of appeals...

RC 2907.322(A)(1), a second-degree felony, prohibits a person from "creating, recording, photographing, filming, reproducing or publishing" obscene material involving a minor.  Subsection (A)(5), a fourth degree felony, prohibits a person from possessing it.  In State v. Hodge, the defendant is charged with (A)(1), but argues that he should have been convicted of only (A)(5), because the only evidence was that he downloaded the images from an internet site.  The 2nd District, in conformity with its own prior decisions and that of several other districts, finds that downloading constitutes "reproduction."  What I found interesting is that although Hodge had "thousands" of videos, he was charged with only twelve counts, and the trial court merged the counts and gave him two years in prison.  Here in Cuyahoga County, each separate image is a separate offense, and a defendant's chances of walking out of prison after a measly two years for having "thousands" of images is about the same as Madonna and Lady Gaga teaming up to start a nunnery.

The defendant in State v. Allen gets a big break.  In 2009, he pled guilty to two cases involving possession of crack cocaine.  For whatever reason, the court didn't get around to sentencing him until June 2011, where it gave him ten years on the one offense, another ten for the major drug offender specification, and another five for the other offense, all to run consecutively.  The next year, the 10th District reversed because while consecutive sentences were authorized, they weren't required as the trial court believed.  So the case goes back to the trial judge, who imposes the ten-and-ten on the one offense, but gives Allen five years concurrent on the second.

But by that time, HB 86 had gone into effect, and that eliminated the ten-year add-on for the MDO spec.  (The spec survives, but it's only effect is to make the maximum sentence mandatory.)  RC 1.58(B) determines whether a defendant benefits from a change in the sentencing laws, and the test is that he doesn't if its application "alters the nature of the offense."  The 10th District finds that the change only affected the penalty, not the nature of the crime, and Allen will wind up spending a decade in prison, instead of a quarter century.

Everybody was kung fu fighting.  In State v. Boscarino, the defendant gets seven years in prison for urinating behind a bush.  Well, not so much for that:  for punching out the police officer who objected to his doing it.  Boscarino's complaint on appeal is that his attorney was ineffective for not objecting to evidence that he was a mixed-martial-arts fighter.  (Boscarino, not the attorney.  Like I had to tell you that.)  The 2nd District rejects the argument, finding that the evidence was relevant to Boscarino's knowledge that he could cause a serious injury with his fists.


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