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What's Up in the 8th

Pretty grim week in the 8th:  fourteen cases, and the only reversal comes in a municipal court case where the majority of the panel finds the evidence insufficient to support a conviction for obstructing justice.

Still, we learn some things; at least I do.  After wading through eighteen pages of the opinion in State v. Bridges to absorb the facts about the murder of the transvestite whose body is found after being submerged in a pond for several months, the payoff is that trying to conceal a body - like, say, submerging it in a pond for several months - constitutes abuse of a corpse.  

As usual, there are a bevy of sentencing decisions, none of any particular significance, with the possible exception of State v. Simpson.  The judge gives Simpson five years of community control sanctions on a third-degree felony tampering conviction, but imposes the maximum $10,000 fine.  Simpson had assigned counsel, and complains that the judge didn't take into consideration his indigent status.  From Simpson, we learn that while sentencing law as to prison time is bad, the law on imposing fines is even worse.  The panel informs us that while a judge "must consider the offender's present and future ability to pay," the judge "is not obligated to make any express findings," and "generally, a trial court complies with this requirement when it considers a presentence investigation report that contains information about the offender's financial situation and his ability to pay the financial sanction."  In other words, as long as the judge has "information" about the defendant's ability to pay, he'll be deemed to have "considered" it, and his decision is essentially immune from appellate review. 

One feels some sympathy for the defendant in State v. Becker:  he befriends a young lady on Facebook who professes to be 21, the two get their freak on, and when the police find her performing oral sex on him in a car, she responds to their questions about her age by telling them she's 15.  But not much; he's thirty, and their several assignations began with him picking her up at a gas station and ended with them smoking marijuana and having sex in a motel.  The real issue is whether the State proved that Becker was "reckless" with regard to her age, the mens rea required for conviction of unlawful sexual conduct with a minor.  Unfortunately for Becker, that's an argument you win in front of a jury, or not at all.

A bit of a perplexing result in Cleveland v. EvansEvans was stopped for erratic driving, and, deciding confession is good for the soul, told the officer that he was driving on a suspended license, had been drinking, and felt "buzzed."  He blew a .179, and pled to driving under suspension.  Four months later, the City charged him with DUI.

Evans raises two main arguments, one that this violates his speedy trial rights, and the second that it's a violation of his due process rights.  The second is based on court cases holding that a plea agreement is a contract, and that if a defendant has a "reasonable expectation" that his plea will terminate the case against him, that becomes a binding contract.  The court finds that he didn't have a reasonable expectation, because he'd had previous DUI's, and that had been referred over to common pleas court.  In fact, it had a case number, and was being submitted to the grand jury.

What about the speedy trial argument?  The law is that if new charges arise out of same facts as original charge, time on new charge runs from original charge.  But here, the court decides that the criminal case against Evans terminated with his plea to the DUS.  No case, no speedy trial time running.

But wait... didn't we just say that the case had been referred to common pleas court?  And there was a case number assigned to it?  And there were grand jury proceedings pending?  Wouldn't that constitute a pending case?

Sentencing and allied offenses get a workout in State v. Crockett.  He pleads guilty to murder with a gun spec and felonious assault, and agrees to an 18-to-life sentence for the murder plus five years for the assault, to run consecutively.  When he appeals, the State argues he can't, because a defendant can't appeal an agreed sentence.  True that, but he can appeal the trial court's failure to merge allied offenses:  if the felonious assault should've merged with the murder, then the court couldn't impose a sentence for that, agreed or not.  But Crockett had also stipulated that the offenses didn't merge, and that's binding on him, even if they should have.

Allied offenses is also the issue in State v. Washington, specifically, does burglary and the subsequent theft offense merge?  There are cases on both sides of that question, but the 8th sticks to its case law that the two crimes don't:  the burglary is completed upon entry of the premises, and the theft takes place after that.  Still, the court recognizes that "this issue may be in need of clarification by the legislature or the Ohio Supreme Court."  That's sort of like hoping the bubonic plague will fix the Ebola virus problem. 


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