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What's Up with the 8th?

The 8th District cases come out every Thursday.  By about ten o'clock in the morning, the court will have posted the "weekly decision list" on its web site.  It will give a summary of the case, usually in a sentence or two.  By early afternoon, the actual opinions will have been sent down to Columbus, where they will be posted on the Supreme Court's web site.  A day or so later, they'll appear in Lexis.

Last Thursday's weekly decision list contained no fewer than a dozen criminal decisions.  Some of them, based on the summaries, looked promising.  So when I did my Weekly 8th District Roundup for the listservs for the state and local bar associations, plus a fair number of judges, and pulled up the Supreme Court's listing, my heart was resolute with the task to come, but my mind was eager with the anticipation of learning exactly why Jacob Flanagan's conviction and sentence were vacated because the trial court didn't conduct a competency hearing.

It wasn't on the Supreme Court's website.  None of the decisions from last Thursday are on there.  Nor are they on Lexis.  They've disappeared into the ether. 

Not quite.  They're on the court's online docket.  You just have to know the case number, which you can find in the weekly decision list.  Then you pull up the menu, specify the type of case you're looking for, type in the case number, pull up the docket, and click on the image for the opinion.

That's all there is to it.

I'm not going to do that for a dozen cases, which is why lawyers and judges across the state wept openly when they saw that their email boxes this past Sunday morning did not include my incisive analysis of the week's decisions, the dash of snark that this blog promises spread liberally onto that missive as well.

But I am going to do a few of them.  I could give you the case number and we could pretend that you'll look it up yourselves, but we know you're not going to; that's what you have me for.

So let's find out about Mr. Flanagan.  I mean, what's up with that?  Usually, a trial court's decision on competency will be upheld as long as the defendant didn't bark in response to the judge's advisement of his constitutional rights at the plea hearing. 

Not this time, though.  The case is a reminder that when the issue of competency has been properly raised - and referring someone for a competency hearing is properly raising it - a hearing is mandatory, unless there's a stipulation to the report.  Here, Flanagan was referred twice for psychiatric examination, and nary a word about it was said afterwards. 

There have been times when failure to conduct the hearing has been held to be harmless error, as the dissent urges should be the result here.  But the leading Supreme Court case on that subject involves the defendant going to trial and testifying in a sufficiently cogent manner to convince the court that there wasn't anything seriously off the rails with him.  Here, Flanagan simply answered yes or no to the questions.

In State v. Vandersspool, the panel plunges down the rabbit hole that Ohio sentencing law has become.  Given the Parole Board's reticence to parole inmates - it's granted only about 6% of the time - the Holy Grail for a defendant in a murder case is the flat sentence.  Vandersspool takes that out just about to the limit:  charged with aggravated murder, he cops to voluntary manslaughter and aggravated robbery, with an agreed 27-year sentence.  He argues on appeal that the two offenses should have merged.

So let the fun begin.  RC 2953.08, which governs appeals of sentencing, says that a defendant cannot appeal a sentence if he agrees to it.  Last year, in State v. Sergent, the Supreme Court held that where a defendant agreed to a sentence which would necessarily involve consecutive time, he couldn't argue that the judge failed to make the findings normally required for consecutive sentences.

It would be fairly easy to use the same analysis in Vandersspool:  if you agree to a sentence which necessarily precludes merger of the offenses, you can't argue that they're allied.

But there's a catch:  to preclude appeal, an agreed sentence must be "authorized by law," and since a judge must merge offenses if they're allied, a sentence where the judge failed to merge allied offenses isn't authorized by law.  The concurring opinion jumps in, noting the "growing divergence between 'contrary to law' and 'authorized by law' discussions. 

Then there's the void/voidable distinction.  Then there's the matter of the two firearm specifications, which use a different standard ("arising out the same transaction") to determine whether they merge.  I would have finished reading the opinion, but just then the Mad Hatter beckoned me to tea with the Red Queen, and I figured that would be a better use of my time.

I appreciate the effort, gang, but I'm thinking that you should have just used the Sergent analysis and called it a day.  Somebody I'm going to explain what I think Ohio sentencing law should be, but I'd rather discuss string theory than try to explain what it is.

 By the way, the 8th District handed down a new batch of decisions yesterday, and they did manage to find their way to the Supreme Court website.  The summary for City of Shaker Heights v. El-Bey includes this teaser: 

Defendant's claim that he was a citizen of United Washitaw de Dugdahmoundyah Mu'ur nation and not a United States or Ohio citizen did not preclude his conviction for failure to display license plates in violation of Shaker Heights Codified Ordinances 1135.09.

Can't wait to read that one.  And get on with your bad self, neither can you.

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