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Case Update

SCOTUS is out of session, and there's nothing new from the Ohio Supreme Court.  I haven't checked out the decisions from Ohio's appellate courts in a while, so let's do that.

First up is the 6th District's decision in State v. Sledge.  Sledge was charged with multiple child rape counts, and pled to two counts of GSI and one count of rape (the State dropped the life spec as part of the plea deal) after the judge granted the State's motion in limine under the Rape Shield statute to preclude any testimony that the children had been raped by their biological father.  The plea was based on Sledge's lawyer's advice that he could appeal the granting of the motion in limine by doing the no contest plea.  Of course, that's wrong.  A ruling on a motion in limine is always preliminary:  if it's denied, you have to object to the evidence at trial, and if it's granted against you, you have to proffer at trial.  The court held that the lawyer's incorrect advice rendered the plea involuntary.

But that wouldn't be a factor if the granting of the motion had been proper; you have to show prejudice for an ineffective assistance of counsel claim, and you can't if an appeal would have been futile anyway.  That's where Sledge gets interesting:  it holds that the Rape Shield statute doesn't apply to sexual abuse of children. 

That makes sense.  The whole purpose of the statute was to prevent putting the victim on trial by allowing cross-examination on her previous sexual history.  That's not a factor in child sex abuse cases.  Sledge cites a few cases from other districts which have come to the same conclusion, so if you've got a case like this, Sledge is definitely worth a look.

Back in 1988, the Supreme Court held in State v. Johnson that a judge didn't need to tell a defendant at a plea hearing that sentences can be run consecutively.  The 9th District's decision in State v. Bailey points to one exception:  where the sentence has to be run consecutively.  Bailey had pled guilty to failure to comply, and that statute does require a prison sentence for that offense to be imposed consecutively. 

The case, though, points out Johnson's flaw.  There, the court held that "the decision of whether the criminal defendant is to serve the sentences for all his crimes consecutively or concurrently is a matter of sentencing discretion" and "the exercise of such discretion" occurs at the time of sentencing not when the plea is entered.  Bailey attempts to distinguish that:

When a statute requires that sentences be served consecutively, the consecutive nature "directly affects the length of the sentence, thus becoming a crucial component of what constitutes the 'maximum' sentence."

I'm sorry, but I don't see what "discretion" has to do with it.  The ability of the judge to impose consecutive sentences "directly affects the length of the sentence, thus becoming a crucial component of what constitutes the 'maximum' sentence," and I don't understand why the defendant shouldn't be informed of the judge's ability to do that.

Can a defendant be sent to prison, instead of given community controls, for a fourth or fifth degree felony conviction of drug trafficking?  Assuming he meets the other requirements for "mandatory" probation -- that he's being sentenced for a fourth or fifth degree felony that's not a crime of violence, and hasn't had a prior conviction for a felony or a misdemeanor crime of violence -- the answer seems to be no.  As the 2nd District's decision in State v. Castle points out, though, the judge can send a defendant to prison if she finds that the offense involved "organized criminal activity":  that's one of the exceptions to mandatory probation under RC 2929.13(B)(1)

As Castle notes, a number of courts have automatically applied the "organized criminal activity" designation to any drug trafficking crime.  Castle draws a distinction:  it is only organized activity beyond that inherent in any such crime that triggers eligibility for a prison sentence, and here, there was plenty of evidence of that:  the $44,000 in cash found in Castle's home, his admission that his supplier was a "biker gang," among others. 

I did a post a couple of months back on whether certain factors which allow a judge to avoid mandatory probation are constitutional, in light of Blakely and Apprendi.  Basically, those decisions forbid a judge from imposing more than the maximum sentence based on findings she makes.  That's exactly what happened here:  under the statute, the maximum sentence which could be imposed on Castle without judicial fact-finding was community control sanctions.  That issue isn't addressed in the opinion, and hasn't been by any court I'm aware of.  It should be. 

Worst.  Identification.  Process.  Ever.  In State v. Main, the 2nd District affirms the judge's grant of a motion to suppress an identification.  Main was charged with menacing by stalking, and a neighbor of the victim claimed to have gotten a "very good look" through her car window of two "scruffy-looking" men she observed in the vicinity of the victim's house.  Instead of showing her a photo display of six individuals, as required by RC 2983.33, the police showed her only two photographs.  The witness positively identified one of the photos, but thought the second photo was of someone else.

Both of them were BMV photos of the same person.  What blows my mind is that the State decided to appeal this. 

What also blows my mind is that the State decided to indict Marianne Peirano for burglary for entering her own house.  She and her husband were going through a divorce.  She was the sole owner of a house in Gahanna, which went into foreclosure, and entered it just before the sheriff's sale.  Somehow, "for reasons that are not clear, the State of Ohio submitted the situation to a grand jury," which indicted her for burglary.  The judge dismissed the indictment, and the 10th District affirmed.  One judge dissented, arguing that a pre-trial dismissal wasn't warranted, since resolution was dependent upon the facts, but the court holds that this was a dismissed based on the legal question of whether someone could be convicted for breaking into their own house.

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