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Case Update

The first oral arguments in the Supreme Court's 2015 term begin a week from today.  The Court's term actually begins this Friday, with the "long conference," where the justices will sift through the certiorari petitions which have piled up over the summer and decide who's been naughty and who's been nice.  Whoops, that's another couple of months down the road.  At any rate, there are some good death penalty cases on tap next week, and we'll talk about them then.

Speaking or oral arguments, every now and then the Ohio Supreme Court holds its arguments "off-site."  The venue of choice two weeks ago was the auditorium of the Fremont Ross High School.  The court's elegant home in Columbus features a large bench, with ample space for the justices.  Fremont Ross High School, not so much, with the judges crowded on the stage elbow to elbow; one half-expected to have seen them pile out of a clown car.  The Chief Justice noted that the purpose of off-site hearings was to inform the citizenry of the judicial process, and that having the argument before a body of high schoolers was therefore appropriate.  It's too bad the camera couldn't pan over the enthralled faces of the teen-agers as they listened to the prosecutor wax rhapsodic over the provisions of RC 2929.01(A)(9).

The case was State v. V.M.D., and even the high schoolers could probably predict the outcome, based on the course of the argument.  V.M.D. had been charged with aggravated robbery, and wound up pleading to attempted robbery using force.  Fifteen years later, he sought to expunge the conviction.  Problem:  robbery is a crime of violence, and can't be expunged.  V.M.D.'s solution:  robbery already includes an attempt, so V.M.D. was actually pleading to a crime which didn't exist:  attempt to attempt to commit robbery.  The 8th District bought it, but I didn't count two votes, let alone four, for that position among the justices.

We've got three weeks of appellate decisions to go through, so let's get to that...

You plead out to gross sexual imposition, and the State presents corroborating evidence at the plea hearing, so the judge advises you that a prison sentence of at least one year is mandatory.  Then after you're sentenced and while the appeal is pending, the Supreme Court decides in State v. Bevly (discussed here) that the provision of the law making a prison sentence mandatory if there's corroborating evidence is unconstitutional.  So your plea gets vacated, right?

Wrong, at least according to the 5th District's decision in State v. Myers.  The panel relies on law holding that "a defendant who enters a plea believing he or she faces a mandatory sentence when such sentence cannot actually be imposed" isn't prejudiced:  the judge isn't doing anything that the defendant didn't expect to happen.  (It's different, of course, if the judge doesn't tell you it's mandatory time, and it is.) 

The court does nonetheless remand it "for a new sentencing hearing limited to applying the holding of Bevly," but it's not clear what that means.  Does thE judge simply remove the "mandatory" designation, thus affecting Myers' eligibility for judicial release?  Arguably, it should be remanded for a de novo resentencing.  Myers wasn't the only one who was under the misapprehension that it was mandatory time; so was the judge, and he should have an opportunity to decide whether a prison sentence should be imposed at all.

You've got a serious case of sticky fingers:  you plead guilty to shoplifting in 2014, just like you did in 2002, 2004, and 2006.  A few months after the last case, you move to vacate the three previous ones, alleging that you're a non-citizen and The Man has taken a sudden interest in your legal status in this country.  No transcripts of the plea hearings still exist, and the law is that the absence of proof that the deportation warnings were given, there's a presumption that they weren't.  So the convictions get vacated, right?

Wrong, says the 8th District in State v. LemajicThe judge's failure to give the warnings isn't the only issue considered; there's also timeliness.  It's the time between the convictions and the motion that's important, it's the time between finding out that the immigration people have notified you that deportation is in the works, and the time you file the motion.  The problem is that Lemajic's motion gives no clue as to when she learned she might have problems.  And prejudice to the State is also a factor, putting together a 12-year-old shoplifting case wouldn't be easy.

You plead out to receiving stolen property, and the judge gives you probation, but as a condition you can't use alcohol.  Can she do that?  No, says the 10th District in State v. White.  A condition of probation has to be related to the interests of doing justice, which means that (1) it's reasonably related to rehabilitating the offender, (2) has some relationship to the crime of which the offender was convicted, and (3) relates to the conduct which is criminal or reasonably related to future criminality.  The problem is that White was 21 and thus could legally drink alcohol, and there was nothing indicating that alcohol was related to the crime.

Finally, the You Should Have Shut Up While You Were Behind goes to the defendant in the 8th's decision in State v. Lumpkin.  Lumpkin's main beef in his appeal from two drug cases is that the judge imposed the mandatory fine of $10,000 on each.  True, Lumpkin had filed an affidavit of indigency in both, but that just means that the judge has to consider Lumpkin's ability to pay, not that he has to waive the fine.  The judge decides that the fact that Lumpkin was found with $4,600, only $100 of which had to be forfeited, and that he retained lawyers for both cases, shows that he has the ability to pay.  To add insult to injury, the judge had imposed only $5,000 on each case in the journal entries, so the panel remands the case for the judge can correct the entries and impose the $10,000 fine.

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