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Case Update

One reason Federal sentences are so long is the Armed Career Criminal Act.  If you commit a crime with a gun, and you have two prior convictions for drug or violent offenses, you get an additional fifteen years in prison.

So what's a "violent offense"?  The statute gives several examples, such as robbery, but then concludes with what became known as the "residual clause":  a catchall definition that a violent offense is one which "involves conduct that presents a serious potential risk of physical injury to another."  Two years ago, the Supreme Court decided in Johnson v. United States that this was too vague, and struck it down.

Another reason Federal sentences are so long is the Career Offender designation under the Sentencing Guidelines.  We'll skip the math, but I recently had a case where my client was a career offender.  Without that, he faced a sentence of 77 to 96 months; the career offender designation boosted that to 188 to 235 months.

The definition of what constitutes a career offender is the same as for the ACCA.  Last year, the 6th Circuit struck down the residual clause of the career offender guidelines, for the same reason the Court killed it in Johnson.

So last Wednesday, the Supreme Court held in Beckles v. United States that there's nothing wrong with the definition in the Career Offender designation, because the guidelines are now advisory, and a sentencing factor which is discretionary with the judge isn't subject to void for vagueness analysis.  So a lot of Federal sentences are going to stay long.

Beckles was one of three US Supreme Court decisions that came down last week.  Rippo v. Baker addressed the standards for determining judicial bias in summary fashion, and Pena-Rodriguez v. Colorado will have a profound effect on jury deliberations.  We'll talk about those two tomorrow, and bump the 8th District Roundup to Wednesday or Thursday.

That's two more decisions than the Ohio Supreme Court came down with last week, the latter issuing only the misbegotten reversal in State v. Gonzalez, which we talked about then.  Let's see if there's anything of note in the courts of appeals.

A woman drunk and high on cocaine picked a fight with Timothy Oller and his brother for reasons not entirely clear, the melee culminating with Oller stabbing her to death.  His day was better than hers but not by much:  when he tried to leave the scene, he was stopped by friends of the woman and "stomped into unconsciousness," as the opinion paints the picture.

He had another bad day a few months later, after his trial.  He'd been convicted of involuntary manslaughter, with a specific finding that he'd acted under provocation.  (Aggravated assault, which requires provocation, was the underlying crime.)  The judge ignored the jury's determination on that point, finding the killing to be a calculated one, and not only maxed Oller out, but tacked on another ten years for being a repeat violent offender.

In State v. Oller, the 10th District decides that's wrong, although the journey getting to that point is not a smooth one.  The court begins with the Apprendi/Blakely line of Supreme Court's decisions, which forbid judicial fact-finding in sentencing, but the applicability of those cases is unclear.  They define the "maximum sentence" as the one which can be imposed based upon findings made by a jury or admitted by the defendant.  To be sure, the jury found there was provocation, and the judge engaged in "judicial fact-finding" in deciding that there wasn't any, but that didn't affect the sentence the judge could impose; even if he agreed with the jury, he still could have given Oller the maximum sentence.

The court's on a bit more solid ground in abiding by its precedent, that it's an abuse of discretion "for a trial court to impose a more severe sentence for a lesser charge of which the defendant was convicted because of the trial court's belief that the jury was mistaken in finding the defendant not guilty of a more serious offense."  Still, the opinion's got some nice language about the prime position of the jury in the fact-finding process. 

Last week I talked about a case where the appellate court upheld the trial judge's denial of a motion to suppress because it was filed more than 35 days after arraignment.  The opposite result obtains in the 5th District's decision in State v. Bryson

Indeed, it's hard to see how the court could have come to any other conclusion.  Bryson was arraigned on a DUI on May 16.  The prosecutor sent initial discovery out on June 2, then provided the officer's dashcam video on June 28.  Bryson filed a motion to suppress on July 8, ten days later, and eighteen days out of rule, and accompanied it with a motion for leave to file the suppression motion untimely.  Without explanation, the court denied leave.  No trial date had been set at that point.

A motion to suppress can be filed outside the time limits "for good cause shown."  Frankly, if there's no trial date set, or even imminent, I'm having a hard time figuring out how filing the motion out of rule wouldn't be for good cause shown.  As the Bryson court notes, the State wasn't able to show any prejudice from an untimely filing, and the same would seem to apply in any similar situation.  Hypertechnical application of the rules rarely serves any purpose, other than giving judges an excuse not to do something.


Recent Entries

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  • March 27, 2017
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  • March 20, 2017
    Taking time off
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  • March 17, 2017
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  • March 14, 2017
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  • March 13, 2017
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  • March 9, 2017
    A switch in time
    The court reverses itself in Gonzalez
  • March 8, 2017
    What's Up in the 8th
    More sentencing stories, and the right way to handle an Anders brief
  • March 7, 2017
    Case Update
    Knock and announce and the Ohio Constitution, and Anders briefs.
  • March 6, 2017
    Never mind
    The Ohio Supreme Court reverses Gonzalez.