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Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


Case Update

When the Supreme Court struck down the Defense of Marriage Act last year, Scalia's biting dissent promised that the ruling, despite the Court's protestation to the contrary, would inevitably result in attacks on state laws banning gay marriage.  That's proved prophetic; judges in Idaho and Arkansas declaring bans in those states unconstitutional in the past few weeks, running the record of opponents of same-sex marriage to 0-14.  The justices may eventually have to wade into the discussion, but right now, one of the chief reasons for the Court's exercise of its discretion to hear an appeal - resolving disputes between the lower courts - is missing.

No decisions from the Court last week in criminal cases.  There are only a handful still to be resolved:  Bond v. US (discussed here), Hall v. Florida, on executing mentally retarded defendants, and the two cases on cellphone searches which were just argued.

Speaking of executing people, the Ohio Supreme Court's been on a roll lately.  In addition to affirming the death sentences of Calvin Neyland and Anthony Kirkland in the past couple of weeks, it added James Mammone to the list.  I'm opposed to the death penalty, but if Mammone ever gets his date with the gurney, I doubt you'll find me protesting his demise outside the prison walls:  he murdered his mother-in-law, then stabbed his five-year-old daughter and three-year-old sons in the throat as they sat in their car seats; the girl had defensive wounds on her hands and arms.

The court did hand down one decision on non-life-and-death matters.  For those not convinced that the Drug War is paying substantial benefits, I give you State v. StevensStevens and his co-defendant Bondurant were two of nine individuals engaged in trafficking drugs in Highland County.   Both were indicted not only for the drug sales, but were also charged and convicted of Ohio's corrupt practices act, the counterpart to the Federal RICO statute; those convictions earned them nine- and seven-year sentences. 

To be convicted of an OCPA violation, the State has to prove two "predicate offenses"; in this case, that required the predicate offense to involve an amount of $500 (now $1,000) or more.  The State showed that the enterprise earned approximately $35,000 from drug trafficking, but could only show that Stevens and Bondurant had made $250 and $460, respectively.  The question before the court was whether the amounts could be conglomerated, but the statute was ambiguous on that point at best, and in criminal law ties go to the defendant.  The question before the rest of us is whether the fuss over a total of $710 in drug sales was worth it.

In the courts of appeals...

The 8th District provides the quick and dirty on post-release controls in State v. Elliott.  (1) The judge has to notify the defendant at the sentencing hearing of the consequences of violating PRC; (2) This notification also has to be included in the journal entry.  (3) If the court fails to include this in the journal entry, it can correct it nunc pro tunc; but (4) it can't correct it after the defendant has served his sentence.   That's what happened in Elliott's case, and his conviction for escape is vacated.

The expungement statute last year was expanded to include as eligible offenders those convicted of a felony and a misdemeanor or two misdemeanors.  The defendant in Bedford v. Bradberry is caught up in an exception to the latter:  the misdemeanors can't be of the same type.  He was convicted of two petty thefts within four months, but the 8th District concludes that he can't get rid of either.  Help may be on the way, though; the opinion notes that the legislature is currently considering a bill which would delete the "same offense" language from the statute. 

With all due respect.  The attorney for the juvenile in In re T.D. was tasked with convincing the 6th District that the trial court erred in removing him from the courtroom during his dispositional hearing.  Due to "safety issues stemming from appellant's history of violence," the court had ordered him to appear in handcuffs, leg shackles, and a "spit mask."  The hearing began in this fashion:

THE COURT: We're here in the matters of [appellant].
THE JUVENILE: Man, fuck this matter.
THE COURT: Today is October 11th --
THE JUVENILE: Oh, fuck today.
THE COURT: -- 2013.
THE JUVENILE: Oh, fuck 2013.

It went downhill from there.  The attorney filed an Anders brief.


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