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Case Update

Nothing new down in Washington, but a couple of decisions from Columbus.  First up is State v. Gilbert, where the opinion begins, ominously for Gilbert, with the line, "in a plea negotiation, appellee, Kareem Gilbert, received the benefit of a bargain with the state but simply chose not to live up to his end of the deal."  That's an accurate description, too; Gilbert agreed to testify against his father in a murder case in return for some of the charges against him being dropped.  But a year after he was sentenced, when he was brought back from prison for his father's trial, he reneged.  The court vacated the plea agreement, Gilbert pled to murder, and was resentenced.

The interest in finality of judgments almost always hurts the defendant:  if you don't file a motion to reopen an appeal within 90 days, you don't file for post-conviction relief within 180 days, you don't file your habeas petition within a year, you're basically screwed.  Here, finality benefits the defendant; by a 5-2 vote, the court decides that once Gilbert was sentenced, the trial court lost jurisdiction to vacate the plea.

Gilbert is no big deal, at least going forward; the problem can be avoided simply by holding off sentencing the defendant until after he's testified.  (It's been my experience that that's almost always done anyway.)  The more interesting aspect of the case is how it got to the Supreme Court.  Gilbert appealed to the First District, and his lawyer filed an Anders brief.  That court, by a 2-1 vote, decided that the jurisdictional issue wasn't frivolous, and appointed new counsel, and ultimately voted to reverse.

Expungement has been whittled away to the point where it's hard to get, and State v. Aguirre makes it harder.  Aguirre was convicted of theft and given three years of community control sanctions, part of which was restitution to the victim and two insurance companies.  (This was before the 2004 amendment which disallowed restitution to insurance companies.)  She came off of community controls in 2005, and three years later filed her application for expungement.  By the same 5-2 vote, the court holds that since she still owed $14,000 in restitution, she hadn't completed her sentence and thus wasn't entitled to expungement.  Justice O'Neill, who wrote the majority opinion in Gilbert, makes a good argument in dissent that restitution is a community control sanction, which can be modified, an argument which would be stronger if restitution could not also be ordered when a defendant is sent to prison.  I'd probably get more worked up about this, but the fact is that in this age of the Internet, the idea that one can hide a previous criminal conviction is pretty much illusory anyway.

In the courts of appeals...

The 8th District's decision in State v. Bailey provides a lengthy discourse on allied offenses.  Bailey and two accomplices entered a home, robbed a couple at gunpoint, beating one, then tied them up and took their car keys and phones before leaving.  That resulted in convictions for aggravated burglary, aggravated robbery, felonious assault, and kidnapping.  Which ones merge?  None of them.  The aggravated burglary was charged under the section for causing serious physical harm, while aggravated robbery was charged under the section for having a deadly weapon.  The elements don't match up, so they're not allied.  (Unmentioned is the general case law holding that burglary and the other offenses don't merge because the burglary is complete upon entry, and everything that takes place after that is a separate offense.)  While the robbery and felonious assault, which was charged under the serious physical harm section, do have the elements in common, the courts have held that where the harm caused is more than that necessary to accomplish the robbery, the offenses are committed with a separate animus.  The court reaches the same conclusion for the kidnapping:  the taking of the keys and phones indicated an intent to prolong the restraint of the victims to facilitate flight after the robbery was completed," and thus constituted separate animus. 

Nice decision from the 9th District in State v. Littell, on a search issue.  Cops conducting aerial surveillance spotted marijuana plants in Littell's back yard, and instead of getting a warrant, one officer on the ground approached the front door while others went into the back and seized the plants.  The State argued that the police who went into the back were simply trying to make contact with Little, and then spotted the plants in "plain view."  The 9th was having none of it:

It appears to be the State's position that its officers, knowing full well that Mr. Littell had contraband in his backyard, could enter his backyard for the stated purpose of establishing contact and, as soon as they saw the contraband they knew to be there, could lawfully seize the contraband. The Fourth Amendment cannot possibly be construed to condone such a practice.

The defendant in State v. Anderson enters a plea with an agreed twelve-month sentence.  He doesn't show up for sentencing, due to an "unexplained" medical condition, and when he's apprehended six months later, the court sentences him to fourteen months in prison.  No can do, says the 2nd District; once the judge signs on to the sentence, the only two remedies available are to sentence in accordance with the agreement, or, if the judge feels that's not appropriate, to allow the defendant to vacate the plea.

Damned if you do and damned if you don't.  In State v. Shwamberger, Shwamberger and some friends take a drunk woman home, and a couple of hours later, the friends find Shwamberger on top of the unconscious woman, having sex with her.  His first argument in the appeal from his conviction is that his lawyer was ineffective for arguing that the woman consented to sexual activity, because such a theory was "tenuous at best" and was "offensive to the sensibilities of the jurors."  In his second assignment of error, he argues that the verdict is against the manifest weight of the evidence, because the woman consented to sexual activity.

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