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Case Update

Nothing new from SCOTUS, save the application for a stay by a Kentucky clerk who claims that requiring her to issue marriage licenses to gay people will result in her eternal damnation.  Oral arguments are still a month away, and we'll start talking about that when the time comes nigh.

There was a significant case from the Ohio Supreme Court, C.K. v. StateWhen the 8th District reversed C.K.'s murder conviction back in 2011 for manifest weight, I described the facts in this manner: 

[C.K] was convicted of murder; during a crack binge, he broke into some poor guy named Coleman's house three times and finally shot him.  Whoops, sorry; it was Coleman who was on a crack binge and broke into C.K.'s house three times, and the last time was in the process of beating up Coleman's girlfriend when C.K. shot him, after Coleman "reached behind his back for his gun." 

Coleman didn't have a gun, but if you reasonably believe there's one, that's just as good for self-defense purposes.  C.K. knew Coleman had killed a man in 1990, and had been convicted of carrying a concealed weapon, and that was more than sufficient for the court to conclude that C.K. had a bona fide belief that he was in danger, and that the jury lost its way in not acquitting him on self-defense grounds.

So it went back for retrial, but that didn't happen:  the State dismissed the case.  When C.K. filed a motion to seal the records of his arrest, the prosecutor asserted that it did not intend to reindict C.K. at that time, but that "it could in the future."  The trial court granted the application to seal, and the 8th District affirmed.

C.K. then filed an action for declaratory judgment seeking compensation as a wrongfully convicted individual.  The trial court granted summary judgment for the State, and C.K. hit the trifecta:  the 8th District again sided with him, and reversed.

But that's where his luck ran out.  In last week's decision, the Supreme Court decided that he wasn't entitled to compensation, because the prosecutor had dismissed the case without prejudice.  Since there's no statute of limitations on murder, it could always be brought, and the wrongful imprisonment statute requires the movant to prove that "no criminal proceeding is pending, can be brought, or will be brought by any prosecuting attorney."  Doesn't matter that the prosecutor acknowledged that there are no plans to prosecute C.K., and that the case isn't even being investigated any more.  The State could theoretically decide to prosecute C.K. anew, so he's screwed as far as getting compensation for the time he spent in prison.

This is simply a horrible decision, because it grants veto power to the State over any compensation for wrongful imprisonment:  all the State has to do is dismiss the indictment without prejudice.  Someone wrongfully convicted of murder can never bring a case for compensation, and everybody else has to await the expiration of the statute of limitations, which in most of the cases where somebody would be seeking compensation is twenty years.

There's no real good way around this.  A dismissal with prejudice by the court requires a showing that a defendant's constitutional or statutory right would be violated by prosecution.  A dismissal by the State does require leave of court, and I suppose a defendant could object to the dismissal, and the judge could deny leave and force the State to trial.  I'm not sure that many defendants would undergo that risk simply to gain the possibility of being compensated.

You know how easy it is for a judge to send someone to prison?  The only real requirement is in the event the judge decides to impose consecutive sentences, and then all he has to do is read the findings off a card.  Otherwise...  The 1996 criminal reforms introduced statutes defining the principles and purposes of sentencing under RC 2929.11, and the factors under RC 2929.12 for a judge to consider in determining whether the crime is more or less serious, and whether the offender is more or less likely to recidivate.

It's all so much chin music.  Whatever the judge says about the 2929.12 factors, it won't be second-guessed by the appellate court.  And if the judge doesn't say anything in imposing a prison sentence, all he has is do is put in the journal entry that he did, and there's no problem.  In fact, even if he didn't put it in the JE, the court will presume that he did, and the defendant has to overcome that presumption.  One might think that the failure to even mention the factors overcomes the presumption that the judge considered them, but that's not the way it works.

And so we come to the 10th District's decision in State v. Nichter, where we learn that while it's damned easy for a judge to send someone to prison, it's a lot harder for a judge to let them out.  The judge sent Nichter to prison on a second degree felony - it doesn't say for how long, but it was less than five years - turned down his first motion for judicial release, but said he'd reconsider after Nichter had served a year.  Nichter filed another motion after a year, and the judge granted it, only to have the State appeal and the appellate court reverse because the judge didn't make the findings required by RC 2929.20.  So the judge granted it again, and the State appealed again.

And the court reverses again.  See, in order to grant judicial release for a first or second degree felony, a judge has to find that doing so would adequately punish the offender and protect the public because the 2929.12 factors indicate a lesser likelihood of recidivism, and that it wouldn't demean the seriousness of the offense because those factors indicate the offense was less serious.

Forget about reading them off the card:  the release statute also requires the judge to not only specify the findings on the record, but to list the 2929.12 factors that were presented at the hearing.  The court finds for the second time that the judge's efforts in that respect fell short.

The moral of this story is that if you're filing a motion for judicial release, at least for a second-degree felony, make sure the judge says the right things.  You may to spoon-feed him, but if he doesn't, it's coming back.

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