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What's Up in the 8th

In the new world of alternative facts, I'm left wishing that the 8th would issue some alternative decisions.  But we gots what we gots, so let's dig into it.

State v. King wends its way toward a conclusion.  As those of you who saw the episode of 48 Hours, let alone the numerous documentaries, covering the case know, King pled guilty to drug possession, which at the time required a mandatory driver's license suspension.  A few days later, her attorney filed a motion for limited driving privileges, and the court granted them, not only for work and medical appointments, but for "grocery shopping and paying bills."

The State appealed this extreme example of judicial activism.  I wound up with the appeal, and pointed out that the judge had never issued an order suspending the license in the first place.  The panel initially reversed, relying on cases which have held that failure to impose the mandatory suspension renders that portion of the sentence void, and remanded the case for resentencing on that point.  A few weeks later, it sua sponte vacated that order, but after pondering it further, issued a decision to the same effect last week.

The law's changed since then, though; the suspension is now discretionary.  We'll have to wait a while to see how this all plays out:  under the new 8th District policy, the court keeps the file until the 45 days time for appeal to the Supreme Court has expired, and only then will return it to the common pleas court.

State v. Lewis demonstrates the low bar for competency of a defendant.  Lewis files a motion for new trial from his 2010 conviction of murder, attaching a letter from a psychiatrist stating that Lewis was incompetent at the time of trial.  The psychiatrist's opinion probably would have been viewed more favorably had he actually examined Lewis; instead, he relied on previous reports and records.  Those reports, though, show that Lewis was examined twice before trial, and both doctors indicated a possibility of malingering.

That's not enough to create the "strong probability" of a different result required for granting a motion for new trial, especially in light of the standard for establishing incompetence: 

Incompetency must not be equated with mere mental or emotional instability or even with outright insanity. A defendant may be emotionally disturbed or even psychotic and still be capable of understanding the charges against him and of assisting his counsel.

Frankly, it's my experience that having a psychotic client is not particularly helpful, but maybe that's just me.

Speaking of low bars, he said, demonstrating his mastery of transitional paragraphs, State v. Akhikari demonstrates that not much is required for the corroboration necessary to convict the defendant of sexual imposition.  Akhikari makes sexual advances toward an employee, but escapes major damage:  the jury convicts him of only two counts of sexual imposition.  (Although the 15-year period of sex registration resulting from the misdemeanor convictions might well qualify as "major damage.") 

The corroboration here comes in the form of the victim's mother, the investigating detective, and several co-employees, who all testified that immediately after the incident (and during the detective's interview) the victim was crying profusely and appeared "visibly upset."  Given the unlikelihood of direct evidence of the offense -- it's not going to be witnessed by anyone, and forensic evidence is improbable -- this is probably fair.  At least it requires something other than the victim's own testimony; last year, the court found that the fact the victim appeared upset when she called 911, and that she cried on the stand during cross-examination, was sufficient proof of corroboration. 

Not much else of note in the remaining cases decided last week.  In the Doesn't Everybody Know This Already category we find Middleburg Heights v. Kneip and State v. FrazierThe first contains the unsurprising proposition that if the judge sentences you to two years of probation, he can't impose sanction for violating probation after those two years are up.  Frazier contains the similarly routine admonition that if you admit to a community control sanctions violation, you can't claim on appeal that the State failed to introduce any evidence that you committed a community control sanctions violation. 

State v. Smith provides a safety tip, not a legal one.  Smith apparently subscribes to the theory that when committing a crime, one should go big or go home.  After stealing a car and while driving drunk, Smith drag-races another car, reaching speeds of over 100 mph.  The opinion does not reveal what the seven (seven?) passengers in Smith's car thought of all this, and we'll never know for three of them:  they were killed in the inevitable crash, while three others were severely injured.

What of the seventh?  As the court informs us in a footnote, "the only passenger wearing a seat belt was not seriously harmed." 

So, this week's helpful tip:  if you're going to get into a stolen car being driven by a drunk guy, make sure to buckle up.  Of course, one might suggest that one's instinct for self-preservation should have kicked in before getting into a stolen car being driven by a drunk guy, but all's well that ends well.  It didn't for Smith; his prison sentence of 23 years is affirmed.

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