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Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


Case Update

Nothing happening at SCOTUS, so we'll talk about what might happen.  The answer is not much, except for Federal practitioners.  What happens when the judge screws up the guideline calculations, and nobody catches it?  That's what happened to Saul Molina-Martinez.  The judge sentenced him at the bottom of the 77-96 month guideline, but it should have been a 70-87 month range.  Tomorrow the Court will hold argument on how plain error applies in sentencing, especially in regard to prejudice; the government argues that since the 77 months Molina-Martinez got were within the 70-87 month range he should've gotten, he can't show he was prejudiced.  Since Molina-Martinez could serve as a poster boy for the Trump campaign - a Mexican national, he was convicted of illegally entering the country, after being thrown out after committing burglaries in 2002 and 2011 - it's unlikely the Court's going to muster much sympathy for his position.  There's a saying that hard cases make bad law, but bad cases make bad law, too; Molina-Martinez has a decent issue, but he's hardly the best vehicle for pursuing it.

Last week, the Court accepted a more significant case, Welch v. U.S.  The Armed Career Criminal Act adds 15 years to the sentence of anyone convicted of unlawful possession of a firearm who's had three prior state or federal convictions for violent felonies or serious drug offenses.  The statute contained a residual clause defining a violent crime as one which "involves conduct that presents a serious potential risk of physical injury to another."  The Court found that unconstitutionally vague last year in U.S. v. JohnsonWelch raises the issue of whether Johnson should be applied retroactively, with the government surprisingly taking the position that it should be.  A warning, though; even if it is ultimately held retroactive, the time for filing a Federal habeas is one year from the date Johnson was decided, June 26, 2015.  

Nothing happening in Columbus, either, so we'll talk about what might happen.  A couple of death penalty cases are on the docket for oral argument this month, and State v. Montgomery might prove the more interesting.  Not the direct appeal; on Thanksgiving Day in 2010, Montgomery found out that his girlfriend, Tia Hendricks, had had an affair with another man, and so not only slit her throat, but the throats of her 10-year-old daughter and 2-year-old son for good measure.  None of this "alleged" stuff; Montgomery pled guilty to all the charges and specifications, and was sentenced to death by a three-judge panel.  The only significant argument in the appeal is that Montgomery's plea was invalid because he was taking psychotropic medication.

Where it gets interesting, though, is that in the meantime the 10th District has ruled that Montgomery was entitled to a hearing on his petition for post-conviction relief.  The appellate court, apparently believing that it had been teleported to Texas, held in a split decision that Hendricks' infidelity might have provided reasonable provocation for a charge-down to manslaughter, and that counsel might have been ineffective for failing to raise the issue and instead advising Montgomery to plead guilty.  Cheesing the State off even more was the fact that the provocation issue was raised by the court sua sponte in its decision, without briefing or argument.  The State has appealed that, too, and I'm betting that a summary reversal of the 10th District's decision is in the works, as well as an affirmance in the direct appeal.

The defendant in State v. Belton also pled out, no contest this time, to the indictment and specifications, and also had the death penalty imposed by a three-judge panel.  That provides the central point in Belton's appeal:  he argues that he should have been entitled to a jury determination of punishment.  His more ambitious claim is that HB 86, by including as a principle of sentencing that the court should use "the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources," implicitly repealed Ohio's death penalty, because of the exorbitant cost of capital cases.  "Ambitious" is one way of putting it.

But the defense might have a point.  Why the State is going to go to the trouble and expense of trying to execute Belton isn't entirely clear.  He robbed a convenient store and killed the clerk.  He says the gun went off by accident, but that's somewhat undercut by the surveillance video.  He doesn't seem to merit the criminal background, though, that would earn him a date with the needle more than anyone else who robs a store and shoots the clerk, an event which is, sadly, not uncommon.  Somewhere in the twenty propositions of law contained in his brief, hopefully, is an argument that the death penalty is imposed arbitrarily, because Belton's case would seem to be proof of that.

While a trial is concerned with the defendant's guilt or innocence, that becomes an afterthought in the appellate and post-conviction process, as demonstrated by the 2nd District's decision in State v. Clark.  Clark was convicted of the arson of a residence, which killed one occupant and injured the other, back in 1991.  In 2013, he sent a letter to the Innocence Project, and received an affidavit from a fire expert indicating that the expert testimony used in Clark's trial to establish that the fire was intentionally set wouldn't be allowed under modern fire investigation practice.  So Clark attached the affidavit to his motion for new trial.

A motion for new trial on the basis of newly-discovered evidence has to be filed within 120 days of the verdict, unless the defendant can show that he was "unavoidably prevented" from discovering the evidence.  Clark argues that this means once the 120 day period is over, he can file the motion at any time, but the court rejects this, holding that the movant must still demonstrate that he filed the motion within a reasonable time after discovering the evidence.  And Clark can't do this, because the new standards were published in 1997, 18 years earlier.  That's when he should have discovered it.

So we have a man spending the rest of his life in prison because while sitting in his cell he didn't dig up the new standards for fire investigation in a timely manner.  


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