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Case Update

I'll be here all week, be sure to tip your waitstaff.  So what do we do here when SCOTUS isn't in session?  Well, after we get done talking about what they did do and what they might do in the future, we trot out things like the podcast by Boston University law professor Jay Wexler, who has spent the last decade counting out how many times each justice elicits laughter during oral argument.  How do we know when that happens?  Because the transcript of the oral argument will say [laughter].  For example, Kennedy brought down the house during the argument in Yates v. United States, a case concerning a fishing boat captain's conviction under the Sarbanes-Oxley Act for tossing back illegally-caught grouper, by riposting, "Perhaps Congress should have called this the Sarbanes Oxley-Grouper Act."

Hey, you had to be there.

Scalia was the biggest cut-up, followed by Breyer some ways back.  Ginsburg racked up only two, which, according to the prof, is two more than she usually gets.  Given its current broadcasting woes, look for NBC to greenlight the pilot for a series.  "Real Justices of the Supreme Court," maybe.

No laughs down in Columbus, the court's recent slate of decisions conspicuously missing any cases of a criminal bent.  We are gearing up for the resumption of oral arguments in just two weeks, though, with two cases from Cuyahoga County featured on September 1.

One of them is the death sentence for Dennis Obermiller, convicted by a three-judge panel of murdering his grandparents, and raping his 60-year-old grandmother; she'd been strangled with an electrical cord, and used condoms were found near her body.  Obermiller is pretty much a volunteer for the death penalty:  he pled guilty to all the charges, and instructed his attorneys not to offer any mitigation evidence.

The second case, State v. Delta Rosario, is the culmination of a pissing match between the prosecutor's office here and one of the common pleas judges, who determined that the probation department, not the prosecutor's office, is the proper representative of the State in a probation violation hearing.  The 8th District has ruled in favor of the judge numerous times - it did so again just last week - but if I was going to bet on the outcome, I'd want at least 3-1 odds that the Supreme Court is going to uphold that.

In the courts of appeals...

In State v. Bennett, the defendant uses his charms to hit on a streetwalker, who of course turns out to be a cop.  A conviction for solicitation and loitering ensues, with the judge ordering probation for the former and imposing only costs on the latter.  Bennett appeals the convictions, arguing that the officer was the first one to mention money.  Doesn't matter, says the 1st District:  while solicitation "requires the accused to have solicited, rather than agreed, to engage in sexual activity for hire," here the officer's mention of an amount came after Bennett approached her and indicated he was interested in engaging in sexual activities, and asked what she charged.  His appeal of the loitering conviction gets dismissed:  costs is not a criminal sanction, and so there's no sentence, and no final appealable order.

The 10th District's decision in State v. Montgomery shows the obstacles a defendant faces when challenging a sentence.  Montgomery had sold an ounce of cocaine on two occasions to an undercover officer, and was given sentences of eight years for each, run consecutively.  The court reversed the sentences because the judge failed to make the required findings and sent it back, whereupon the judge simply read the findings from the statute book and imposed the same sentence.

Montgomery appealed again, left only with the argument that the record didn't support the findings.  The panel rejects that, finding that his "extensive criminal history" makes it more likely he'll commit future crimes, and the fact that he committed the offenses in the vicinity of a school "indicates the seriousness of his conduct and the harm he poses to the public."

Conspicuous by its omission is any discussion of the third finding, that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and the danger he poses to the public.  Isn't it at least worth talking about whether sending a man to prison for 16 years for selling drugs is an appropriate sentence? 

Ever have a situation where you get a call from the family of a defendant asking what's happening in his appeal, and you check and find out that the court never notified you that you'd been appointed to handle it, and that the 30 days for filing one ran last week?  Not a big deal In a criminal case, because AppR 5 provides for a delayed appeal in those situations.  But just because it's a criminal case doesn't mean you get the benefit of that.  In State v. Nelms, the defendant filed a notice of appeal 45 days after his petition for post-conviction relief was denied, and the 5th District dismissed it as untimely.  He hired an attorney, who filed a motion for reconsideration, but that was denied, too.  A few weeks after that, the attorney filed a motion for delayed appeal, which was granted.

So the parties wrote the briefs and were ready to go when the court realized that post-conviction relief is a civil proceeding, and AppR 5 doesn't apply.  So that gets dismissed.

Speaking of having appeals dismissed, if you're handling one, the first thing you should do is to make sure the entry is a final appealable order.  I had an oral argument last week in the 11th District on a case where my client was convicted by a jury of felonious assault and perjury.  He got sixty days in jail, so there weren't any sentencing issues.  Well, there were, it turns out; during the argument, one of the judges asked me what the sentence was for the perjury conviction.

Oops.  There wasn't one.  One of the requirements for a final journal entry in a criminal case is that it dispose of all the charges.  I suggested as a remedy a limited remand so the judge could impose a sentence on the perjury charge, but dismissal for lack of a final order is a much more likely outcome.  In which case, resort to Bob Dylan's line from Stuck Inside of Mobile with the Memphis Blues Again is appropriate:

An' here I sit so patiently
Waiting to find out what price
You have to pay to get out of
Going through all these things twice. 


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