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What's Up in the 8th

Thumbnail image for BatistaFireSquad.jpgMy own view of home contractors - basically, that every third one should be shot, to improve the overall quality and to serve as a lesson to the others - is shaped by experiences as both a customer and a lawyer.  Many years ago, I was tangentially involved in a case involving a contractor whose business model was to prey on poor people in the ghetto:  sell them a $14,000 kitchen on a home that wasn't worth $20,000, and get a mortgage which he'd then sell to a company in Dallas.  This led to a lawsuit filed by a young black lawyer, and my friend, who was representing the contractor, told me that the Federal judge handling the case, a fearsome sort, would have little tolerance for this sort of nonsense.

He was right, but not in the way he anticipated.  At the first pretrial, the judge informed us that the contractor and the mortgage company would cancel the mortgages and pay each homeowner $20,000 and another $75,000 for the lawyer, or the judge would refer the case for prosecution to the U.S. Attorney's Office.  That was an offer the defense couldn't refuse.

Wonder what the judge would've done to Joseph Fasino.

Theft by deception, in the context of a home contractor, is tough to prove:  it's not enough to show that the contractor didn't perform the work, you have to show that he had no intention of doing so at the time he signed the contract with you.  But that can be proved by circumstantial evidence, as the court explains in State v. Fasano, and so it is here:  Fasano took money from three people ($4,000 from two of them), did no work, ordered no supplies, and stopped taking their phone calls and emails.  For his three theft convictions, two of them felonies, he got a year of community control sanctions.  For what would've happened if I'd been the judge, see above. 

If I'd been the judge, I would have granted Danny Dozanti's application to have his disability to own firearms removed.  He'd been convicted of one count of felony drug trafficking back in 1990, did eighteen months in prison, and hadn't been in trouble since.  He filed for relief from disability in 2010, and again in 2013; the judge held a hearing on it in 2014, then denied it without explanation eight months later.  The court reverses in State v. Dozanti, despite the panel noting that the judge is "a seasoned and thoughtful jurist," an opinion with which I concur.  But that's not enough:  "Although findings and reasons are not required by the statute, the record must in some form support the trial court's denial," and this record didn't.

If I'd been the judge, I probably wouldn't have imposed $20,000 in mandatory fines on Darien Smith, on top of the 11 years he was going to do as a major drug offender.  But the judge in State v. Smith did, and the panel comes to the Seinfeldian conclusion that there's nothing wrong with that.  To be sure, Smith had filed an affidavit of indigency, which is step One to avoiding the fine.  In Step Two, Smith has to show the offender has to show that he's unable to pay the fine.  But the affidavit only establishes the present inability; the court has to consider the future ability as well.  The panel concludes that the judge didn't abuse his discretion had the future ability to pay the fine:

Smith was only 30 years old at the time of sentencing. The record shows that Smith is intelligent, physically healthy, and capable of performing honest work, if he were so motivated.

That last phrase is the operative one, especially in light of the fact that when the Feds arrested Smith, they found $290,000 in cash lying around his house.  I'm guessing that since Smith didn't even get his GED until he did a previous prison stint, there weren't a whole lot of ways he could have accumulated north of a quarter million bucks through "honest work," and I doubt when he gets out that his motivation will change much. 

The judge gave Bobby Thompson twenty-eight years in prison, and I probably would have gone under that a bit.  Thompson is the name that appears in the court docket, but it's anybody's guess what his real name is:  although he's supposed to be John Donald Cody, when he was arrested he had no fewer than seven different ID's on him.  In any event, Thompson aka Whatever ran a fake charity for naval veterans and used it to scam millions of dollars from people around the country.  The focus of his appeal is his claim that thirteen of the theft counts involved activity that took place wholly outside Ohio.  The State counters by contending that this was a continuing course of conduct, but here's the lesson for today:  there's a difference between jurisdiction and venue.  A continuing course of conduct is sufficient to allow venue, the panel holds in State v. Thompson, but if none of the elements of the particular crime occurred in Ohio, the state doesn't have jurisdiction.  That's one bone the panel tosses him - and nothing more than a bone it is, as it shortens his sentence by one year - the other being that the judge erred in holding that Thompson had to be confined in solitary every Veterans Day.  I probably wouldn't have done the latter, either, because (choose one) I'm aware of the cases which say you can't do that/I'm not that clever.  Take your pick.

And if I were a judge needing to review the latest opus from the 8th on when offenses should merge, I might decide it's a good time to go back into private practice.  That comes in State v. Anthony, a 30-page tome, 22 pages of which are consumed by an Odyssean journey through the wasteland that is Ohio's allied offense law.  We steer through the Scylla and Charbydis of Rance and Johnson, are lured by the siren song of the Supreme Court's latest pronouncement on the subject, State v. Ruf, and are finally cast up onto the shore, exhausted and only slightly more enlightened.

Oh, and there's a 10-page dissent.

We'll talk about all that tomorrow.

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