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Case Update

Punxsatawney Phil last emerged last week, and so did the topic of the Federal judiciary's independence, the latter a result of our Supreme Leader's latest Twitter barrage about the "so-called" judges striking down his executive order on immigration.  Even Trump's Supreme Court nominee Neil Gorsuch confessed to several senators that he found the attacks "dispiriting" and "demoralizing," which the Trump palace regulars disputed, only to have the exchange confirmed by White House aides who were present. 

Still, while a majority of the public edges closer to the belief that the country should get a Mulligan for last November's election, it's proper to note that many of the same people caterwauling about Trump's tweets had no problem with Obama using his 2010 State of the Union speech to lambaste the Supreme Court over its Citizens United decision, while the justices sat there in silence.  Yes, judges should be independent, but it's not like Trump can apprenticize the judges and tell them, "You're fired!"

The only thing happening in SCOTUS this week is Friday's conference, where the justices will decide which certiorari petitions have been naughty and which have been nice; the last conference yielded no grants, so don't get your hopes up.  Nothing going on in the Ohio Supreme Court, either, except that we'll have a bevy of oral arguments to discuss later this week.  So let's head over to the courts of appeals.  

There are any number of cases which will tell you What You Need to Do to get a plea vacated; the 6th District's decision in State v. Hurrell tells you When Not to Bother.  Hurrell, a "highly educated, well trained civil engineer," pled no contest to one count of misdemeanor domestic violence.  The plea hearing took three hours, during which Hurrell asked "an exhaustive series of specific, detailed, and articulate questions."  I think exhausting might be a more accurate term.  Oh, and Hurrell didn't file the motion to vacate the plea until two years later, after he'd completed probation. 

The defendant in State v. Goldsmith pleads to one count of receiving stolen property, a 5th degree felony, and gets sentenced to eleven months.  He claims on appeal that this violates the "presumption" for community control sanctions of RC 2929.13(B)(1)(a).  Not so, says the 6th District; the presumption can be overcome if the judge makes one of the findings under (B)(1)(b), and here the judge did, concluding under (b)(ix) that Goldsmith "committed the offense ... as part of an organized criminal activity." 

This is wrong.  I've argued for years that there is no "presumption" of community control sanctions; (B)(1)(a) says that the judge shall grant CCS if certain conditions are met, and Goldsmith met them.  That means that, for Apprendi/Blakely purposes, CCS is the maximum sentence which can be imposed, absent facts admitted by the defendant or found by a jury.

To be sure, (B)(1)(b) allows the judge to impose prison time in certain circumstances, and those include situations where the defendant would be admitting facts:  the offender committed a sex offense, or pled to an offense involving a firearm.  But whether the offense is part of an organized criminal activity is not a fact Goldsmith pled to, nor one found by a jury.  It's a fact found by a judge, which increases the penalty Goldsmith received.  That's a Blakely violation.

That's not even considered by the 6th District, but I can't blame them:  Goldsmith's lawyer filed an Anders Brief.  And he wasn't the only one.  Almost nine years ago, I did a post on Anders briefs, and noted that one had been filed in three of the five 12th District criminal decisions that week.  Apparently, things haven't gotten any better there; last week, it was four out of the seven decisions.  One lawyer has handled forty-seven criminal appeals in the 12th in the past six years.  He's filed Anders briefs in fifteen of them, nearly a third.

Hearsay is the subject of the 11th District's decision in State v. Dyer.  The case features a reluctant victim, as so many domestic violence cases do, but the judge permits the State to introduce the statement the victim made to three police officers an hour after the incident, and a statement she made to a nurse and a doctor at the hospital.  The lead opinion states that admission is reviewed for abuse of discretion, and the panel finds that the statement to the officers were "excited utterances," despite the delay:  the decisive question is not when the statements were made, but whether the declarant was still under the stress of the exciting event.

The statement to the nurse and doctor are another matter.  They were admitted under EvidR 803(4) -- "statements made for purposes of medical diagnosis and treatment" -- but the general rule is that "a statement as to the identity of the perpetrator of a criminal act, which is not reasonably related or necessary to medical diagnosis, is not admissible."  Two of the three judges agree that it shouldn't have come in and concur only in judgment, but all find it harmless.

One more thing.  I've been harping on the fact that the bromide that abuse of discretion involves "more than an error of law" is bogus:  you can't find a single decision, for example, where an appellate court found that the trial judge had erred in admitting hearsay, but nonetheless held that he had the discretion to do so.  One of the concurring judges notes that distinction:

I write to clarify that the trial court does not have "discretion" to admit hearsay. With regard to some evidentiary rulings, such as relevancy, the trial court must exercise discretion as to the admissibility of the evidence. In contrast, hearsay is simply inadmissible unless a valid exception exists.

Keep that in mind the next time you're writing the standard of review portion of your brief.

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