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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

Further evidence that Facebook, Twitter, and other social media have made our lives oh so much better will be on display in the Supreme Court building on Monday, where the justices will chew over whether Scott Elonis violated 18 USC 875, which prohibits communicating threats in interstate commerce, by writing rap lyrics on his Facebook page about killing his ex-wife and blowing up FBI agents.  Whatever the eventual decision, it will likely do little to slow the death spiral of meaningful social and political discourse in this country.  In other news, the Court accepted cert in a case from the 9th Circuit holding that the Americans with Disabilities Act requires police to provide some accommodation for mentally disabled persons whom they are trying to take into custody.  Sometimes, it is impossible not to write satire.

Bad news from Columbus for Shawn Ware.  He pled guilty to two counts of trafficking in crack in 2010, one a second-degree felony and one a fourth.  The judge gave him four years on the former and 18 months on the latter, to run concurrently, but concluded the sentencing hearing by telling Ware that if he was a good boy in prison, his attorney could ask for "judicial release when it's appropriate."

The problem is, it would never be appropriate:  the second-degree felony carried mandatory time, and mandatory time doesn't count toward judicial release.  The judge granted JR anyway after two years, stating that it was his intention to have Ware do the mandatory minimum two years, then be eligible for early release, and put in a nunc pro tunc entry to that effect.  Well, it was my intent to become the Pope, but that don't make it so.  In State v. Ware, the court unanimously reverses:  if a prison sentence for a crime is mandatory, then the entirety of that sentence, be it two years or eight, is mandatory.

I haven't done an update in a little while, so let's catch up on what's happened in the courts of appeals...

The 9th District has built a reputation for being one of the most hypertechnical courts in the State, and burnishes that in State v. DavisDavis contends that the court erred in imposing consecutive sentences for rape, because the offenses were allied.  He didn't raise that at sentencing, but that doesn't preclude the claim on appeal; the Supreme Court's held that imposition of multiple sentences for allied offenses is plain error.  But, says the panel, Davis didn't argue plain error in his brief, so it won't consider the issue.  That's wrong.  Plain error is a standard for reviewing error, not an assignment of error in itself.

Nice decision out of the 5th District in State v. Keserich, an appeal I handled.  After a traffic stop, a cop needs reasonable suspicion to have you perform the field sobriety tests.  That's determined by the "totality of the circumstances," and most courts follow a 1998 11th District decision which enumerates eleven factors to be considered.  The panel finds four of the eleven factors to be present, but to its credit, it doesn't stop there:  it also considered the factors that weren't present.  Keserich didn't fumble for his license and registration, walked normally after exiting the car, and responded appropriately to  the officer's questions.  Key here was the fact that Keserich was stopped for an equipment violation.  The absence of any moving violation, coupled with the lack of any indicia that Keserich was impaired, rather than simply having consumed alcohol, was enough to find the trial court erred in overruling the motion to suppress the FST's.

Another very good 4th Amendment decision from the 12th District in State v. NormanThe cops and Bradley Andre's probation officer went to Andre's house to do a probation search, and while there, found a bunch of marijuana plants in the basement behind a locked door; Andre was renting the basement to Norman and another person.  That poses a number of issues:  Did the fact that Andre was on probation give notice to Norman that the house was subject to search, and thereby have him implicitly consent to the search?  Did Andre have actual authority to consent to the police taking the basement door off its hinges to seize the drugs?  Did he have apparent authority?  The 12th answers no to all of those questions, and then finds that the main argument the State raises on appeal, exigent circumstances, doesn't cut it, either.  Excellent decision, and an excellent summary of the law on all of those issues.

The need for defense counsel to adapt during trial is on display in State v. IhingerIhinger was charged with complicity in a shoplifting case, the theory being that she aided and abetted the thieves by triggering the entrance door and allowing them to leave in that fashion, rather than through the exit door where they would have had to pass the cash registers.  On appeal, she argues manifest weight and sufficiency, and the court agrees:  the only testimony identifying her was a deputy's, stating that he identified her from the surveillance video.  But the panel reviewed the video and found it impossible to identify anyone, and accordingly holds that the State's evidence was insufficient.

The problem?  Defense counsel intended to try the case on the theory that Ihinger's actions didn't constitute aiding and abetting, and during his cross-examination repeatedly referred to his client as being the person on the video.  The 5th District finds this to be a "tacit admission of identity," and upholds the conviction.

Cases I never got around to reading.  From the Lexis summary of the 12th District's decision in State v. Moore:

The trial court stated that it considered the principles and purposes of sentencing under R.C. 2929.11 and R.C. 2929.12 and it gave careful and substantial deliberation to the sentencing provisions, including defendant's lengthy criminal history, and also found that the crime was "kind of nasty."


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