Questions from the mailbag
One of the things about writing a law blog is that it makes you the Answer Grape for legal questions. Other lawyers ask me all kinds of stuff. Sometimes I even learn something. Here are three questions I got this week.
Does sex offender registration have to be imposed at the sentencing, and included in the journal entry? Joe is convicted and sentenced for rape. At the hearing, the judge fails to tell Joe of his duties to register as a sex offender, and doesn't put anything in the journal entry about that, either. Joe finishes his sentence and gets out of prison. Can he still be made to register?
This isn't as off-the-wall as it might seem. As the lawyer explained it, his logic was that since the Supreme Court held in State v. Williams that the Adam Walsh Act was punitive, sex registration has to be part of the sentence. State v. Baker says that the entire sentence has to be contained in one journal entry. And State v. Bezak says that once a defendant has completed his sentence, he can't be subject to resentencing. Q.E.D.
That's not a bad argument. There are a number of cases holding that a judge didn't have to advise a defendant of his duties to register under Megan's Law, but Megan's Law was theoretically remedial; Williams makes those cases distinguishable. If that's so, Baker controls: sex registration has to be part of the journal entry. In the normal case, I'd figure that wouldn't matter: using post-release controls as a template, the courts would hold that the failure to impose the registration duties would render only that part of the sentence void, with a resentencing hearing limited solely to remedying that.
Of course, this isn't the "normal case"; here, the defendant finished serving the prison sentence. The law here is a little muddled; while Bezak says that a defendant can't be resentenced, for any purpose, once he's finished serving the sentence, there are cases before and after which refer to that rule solely in the context of post-release controls. Still, it's a pretty good argument, and there's no harm in making it.
Does a delinquency adjudication take you out of "mandatory" probation? A friend calls me up. He's got a guy who's pleading to a felony drug case, and he's got a prior adjudication of delinquency in juvenile court. Under RC 2929.13, the court "shall" give community control sanctions to people convicted of fourth and fifth degree felonies, except in certain situations. One of the things that takes a defendant out of that is a prior felony conviction.
This was the first time I'd encountered this, so I went with my gut, which told me that if the legislature wanted to include juvenile adjudications as convictions, they would have said so. I knew you couldn't use them for a repeat violent offender specification, for example. So I told him that yes, his client was still eligible for mandatory probation.
BZZZT! Wrong answer. My gut was right -- if the legislature wanted to include juvenile adjudications as convictions, they would have said so. What my head didn't know was they'd done that, way back in 1996, when they wrote RC 2901.08. It basically provides that an adjudication counts for two purposes. First, in determining the offense with which the defendant is charged. Commission of a third domestic violence, for example, is a third-degree felony; it doesn't matter whether the prior offenses were as a juvenile or as an adult. Second, it's used in determining the sentence. That means that a prior delinquency adjudication for a felony takes you out of mandatory probation.
The statute does provide that juvenile adjudications can't be used for RVO specs, so there's that.
Can the police ask to search your car once they've finished writing you a ticket? The friendly policeman -- well, not so friendly; he just got done writing you up for a traffic citation -- hands you the ticket and politely inquires, "You're not carrying anything that could hurt me or drugs or something like that, are you?" You tell them that you're not, but when he smiles and says, "You wouldn't mind me searching your car then, would you?" you give in. And of course he finds the two kilos of Columbia's number one export in your trunk... Good search or bad?
Bad. The rule is that when you're stopped for a traffic citation, you can't be detained longer than the period of time necessary to write the ticket, unless the officer observes something else which gives rise to a reasonable suspicion of criminal activity. This situation often comes up in drug dog searches, where the cop keeps you on the scene until Not Man's Best Friend arrives. That's not permitted, but here you've got a consent issue. Doesn't matter; the officer can't ask for your consent once the reason for the stop is over. This really goes back to the Ohio Supreme Court's decision in State v. Robinette, but the 2nd District's decision in State v. White is the most recent case along this line, and it's right on point.