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Case Update

It's now been six years since the Supreme Court revolutionized 2nd Amendment law in District of Columbia v. Heller, holding that the amendment provided an individual, rather than collective, right to bear arms.  That was followed two years later in McDonald v. Chicago, which extended Heller to the states.  The chattering class provided all sorts of predictions of where this was all going to take us, with predictions that the Supreme Court would have to define what restrictions on firearms could be imposed, and what sort of test - strict scrutiny versus "intermediate" scrutiny - would have to be employed in making those determinations.

Since then, though, the Court has been remarkably gun-shy, most recently declining to hear cases involving bans on concealed carry for persons under 21, and how much discretion officials have in granting concealed carry licenses.  That may change with the decision last week by a district court judge in D.C., striking down the District's complete ban on carrying guns in public.  (Illinois' ban met a similar fate last year.)  Court-watchers have speculated that the reason for the Court's reticence to re-examine the gun issue lies in uncertainty on how Justice Anthony Kennedy, who presently rules the country, replacing Sandra Day O'Connor, might vote on the issue; the belief is that he voted with the 5-4 majorities in Heller and McDonald only after Scalia made changes to the opinion allowing for "reasonable restrictions."  Neither side wants to take the chance that he'll come down the wrong way on the next decision on the subject, but it may be that the odds of avoiding that are dwindling.

So exhausted was the Ohio Supreme Court in handing down three criminal decisions in two weeks that the best they could do was muster the strength to issue an opinion the chief justice had made in a judicial disqualification case almost two months earlier.  So let's wander over to the courts of appeals and see what's shaking there.

In State v. Kerby, the 2nd District holds that aggravated robbery and involuntary manslaughter don't merge where the use of force exceeds that necessary to complete the robbery; the 2nd and other districts have applied this analysis to aggravated robbery and other levels of homicide... A trial court cannot enter a no-contact order at the same time it's imposing a prison sentence, the 8th District says in State v. Wright; a no-contact order is a community control sanction, and you can't impose community control sanctions and a prison sentence for the same offense...

The 6th District reverses the denial of a motion to suppress in State v. Laveck.  A policeman had knocked on a door in response to a noise complaint, and when the door opened, saw a "large number of beer cans" on a table, and a young girl running up the stairs.  The State claimed this provided exigent circumstances for entry, but the court ruled that commission of a misdemeanor - underage consumption - can't provide exigent circumstances for the warrantless entry into a home.

The Supreme Court's decision a few weeks back in State v. Bonnell (discussed here) will probably put an end to cases like the 6th District's decision in State v. Trevino, and that's a good thing.  At issue in Trevino was the trial court's imposition of consecutive sentences.  The judge had made only one of the three required findings at the sentencing hearing, which would be enough to reverse right there; Bonnell holds that the judge needs to make the findings both at the sentencing hearing and in the journal entry.  What's scary about Trevino is how the panel determined that the judge had made the other two findings.  Essentially, it found that since the entry said the judge considered the principles and purposes of sentencing, and since one of the principles and purposes was to "protect the public from future crime and to punish the offender," this satisfied the statutory finding that consecutive sentences are necessary to protect the public and punish the offender.  In other words, as long as the judge said he'd considered the principles and purposes of sentencing - and if he doesn't say it, the appellate court will presume he considered it - that's sufficient to impose consecutive sentences as well.

Oh, and for the second finding, that consecutive sentences aren't disproportionate?  That was covered by the judge stating that ""considered, weighed, and made findings for * * * Consecutive sentence[s] (O.R.C. §2929.12 / §2929.13 / 2929.14 et.. seq..)."

Bullshit Traffic Stop of the Week™.  In State v. Graham, the 9th District reverses the grant of a motion to suppress, based on a stop for a traffic violation.  Three of them, as a matter of fact.  The defendant had made a left turn onto a one-way street, moving into the right lane so she could turn right at the next intersection; she did so, moving into the left-hand lane so she could turn left at the next intersection.  When you make a turn into a street with more than one lane, you have to turn into the corresponding lane:  if you turn left, you have to turn into the left-hand lane, if you turn right, you have to turn into the right-hand lane.  Word.


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