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What's Up in the 8th

A slow week in the 8th; only six decisions in criminal cases.  That includes State v. Rodgers, in which the defendant files an untimely application to reopen his appeal, a task rendered even more forlorn than customary by the fact that there was no appeal to reopen:  the court had earlier denied his motion to file an untimely appeal.  And it includes State v. Taslitz, an affirmance of two convictions for misdemeanor assault against a manifest weight challenge, the most noteworthy aspect of the opinion being a warning to stay away from Black Velvet whiskey in the Jumbo Family Size:  the two victims allegedly consumed a half-gallon of the stuff each day.  

State v. Penn has a bit more meat on the bones.  Penn was arrested at the Beachwood Mall in August 2012 - the opinion says nothing more than that it was "a result of an incident" - and the police discovered he had a number of gift cards, as well as a counterfeit Pennsylvania driver's license.

The former led to the placement of a "felony investigative hold," while the latter resulted in a charge of obstruction of official business, a second-degree misdemeanor, to which Penn pled no contest three days later, and was placed in a first-offender program.

Meanwhile, the felony investigation proceeded apace:  a few days after Penn's arrest, the investigating detective found that the gift cards had been recoded with someone else's actual credit card number.  Exactly a month after the arrest, the detective turned the case over for review by prosecutors, having verified that the gift cards were fraudulent, and a warrant was issued for Penn's arrest.

In January of 2014, some sixteen months later.

The judge tossed the felony charges on speedy trial grounds, and that provides the only reversal of the week.  The law here is that if the State files additional charges which arise from the same facts of the original charge, speedy trial time for the additional charges runs from the date of arrest on the original charge.  But if the additional charges are based on different facts, or the State did not know of the facts at the time of the initial charge, then speedy trial time doesn't start to run until the new charges are filed. 

The panel decides that this falls into the latter category, concluding that the original charge was based on Penn's lying to the police about his identity.  While the police suspected something was wrong with the credit cards, their suspicions weren't confirmed until after the obstruction of justice charge was resolved, and speedy trial time stopped upon its resolution; it didn't begin again until the new charges were filed.

I think that's drawing some pretty fine lines.  It seems likely that the "incident" giving rise to Penn's arrest was his suspected use of the fraudulent gift cards; the charge of obstruction for using the fake identity was a throw-in.  The police immediately began investigating the cards, and within days determined that they had been recoded.  To be sure, they didn't have absolute confirmation, but they got that within a month, leaving plenty of time on the speedy trial clock.  Instead, they did nothing for almost a year and a half.

And this is one of those times where the court engages in line-drawing without looking at the broader picture.  The whole purpose of the speedy trial statute is to encourage speedy prosecutions.  That didn't happen here.

In State v. Colegrove, the prosecution tries an interesting tactic:  confronted with the victims' reluctance to testify because of threats made by the defendant's family, they ask the court to permit the hearsay statements of the victims.  The opinion doesn't state the basis for this, but I'm guessing it's the exception for forfeiture by wrongdoing.  The judge doesn't buy it, but does issue material witness warrants for the victim.  Colegrove decides to try the case to the bench - not a choice I would have made - and gets convicted of one count of robbery and sentenced to prison for five years.

Colegrove's manifest weight argument on appeal meets the fate you'd anticipate, so he focuses on the judge's allowance of the victims' testimony as to the intimidation, claiming it's improper 404(B) evidence.  It's not; as the panel points out, "evidence of threats or intimidation of witnesses reflect a consciousness of guilt and are admissible as admission by conduct," and "attempts by persons other than the accused to suppress evidence is admissible against the accused  where the accused is connected to such attempts."  How was Colegrove connected to the attempts?  Through his jailhouse phone calls.  Toss in a conviction for felonious stupidity, too.

You may not be able to go home again, but you sure as hell can go back to prison, and that's what happens to the defendant in State v. Gibson.  He'd been sentenced to three years imprisonment for kidnapping and gross sexual imposition, the sentences to run concurrently, but the case got reversed for failure to merge allied offenses.  So back it goes, and the State unsurprisingly elects to have the Gibson sentenced on the kidnapping count.  By then, Gibson is 30 months into his 36-month sentence, and his lawyer pleads for the judge to put him on community control sanctions at this point.

The judge opts not to, sending him back for the remainder of the term.  Gibson appeals, and makes several arguments about why the judge shouldn't have sent him back, but if you know anything about Ohio sentencing law, you know that there's nothing anybody's going to do about that.


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