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What's Up in the 8th

The 8th District took the week off following New Years' Day:  only one opinion, dealing with a defendant's forlorn attempt to reopen an appeal.  But they made up for it last week, handing down nearly a dozen criminal decisions, including four dealing with defendants' forlorn attempts to reopen their appeals.

As usual, the decisions prove instructive.  State v. Binford presents the metaphysical question of whether eleven years in prison is too long for shooting somebody.  It isn't when you've got a criminal record dating back to the Reagan administration, you've done time for multiple drug trafficking offenses and aggravated robbery, and you were on post-release control at the time of this offense. 

The defendant in State v. Barnes fares no better.  He pleads guilty to a cold-case rape, and then appeals, claiming his lawyer was ineffective for not filing a motion to dismiss for pre-indictment delay.  Unfortunately, a guilty plea waives an IAC claim, unless the ineffective assistance induced the guilty plea.  It didn't here, but the court delves into the merits nonetheless.  Barnes' claim of actual prejudice, the first step in the analysis, comes a cropper; along with the "faded memories" and phantom missing witnesses, one of Barnes' contentions is that if the offense had been promptly prosecuted, he wouldn't have committed the crimes he did after that but before he got indicted, and so would have been able to testify in this one without fear of impeachment.  Novel, but novelty appears to be its primary feature.

State v. Carzelle goes a long way in demonstrating what a mish-mash Ohio law on allied offenses has become again.  Carzelle shoots someone from across a street, and gets consecutive time on the charges of felonious assault and discharging a firearm over prohibited premises, a fancy term for shooting across a street.  Under the test from the Supreme Court's 2010 decision in State v. Johnson, the two offenses would've merged, because they were committed with the same conduct.

Now?  Not so much. 

The primary villain here is State v. Ruff, the 2015 Supreme Court decision which essentially overruled Johnson and held that offenses aren't allied if they "cause separate identifiable harms."  As I have tirelessly -- some would claim tiresomely -- pointed out, all offenses cause separate identifiable harms; that's why they're separate offenses. 

The panel concludes that the offenses do involve separate harms, but the journey to that conclusion is not a smooth one.  The court begins by citing a case which holds that the two are not allied offenses, but the case is from 2009, before Johnson, and under the discredited Rance analysis, which held that in determining whether crimes were allied, one looked at the elements of the two in the abstract.  (Rance led to any number of absurd results - a defendant could be convicted of two counts of felonious assault for shooting someone, for example, one for using a deadly weapon and the other for causing serious physical harm - and was overruled by Johnson.)  The court cites two other cases, neither dealing with the crimes at issue here, and finally concludes that the harm for felonious assault was the harm to the person shot, while the harm to discharging a firearm across a street was to the general public.

There's some basis for that finding:  Carzelle admitted that he "let off two shots. I didn't know where they went. I just know they went somewhere, and I drove off." 

The problem with Carzelle is not that the result is wrong, but that the court's language is not limiting:  it basically holds that felonious assault and discharging a firearm over prohibited premises never merge.   But what if Carzelle hadn't made that statement?  Then the only arguable harm is to the victim, and it matters not a whit whether Carzelle had made the shot from across the street or standing next to the victim.

Carzelle and Barnes also highlight an unfortunate tendency among appellate courts:  despite an easy route to disposing the appeal on the basis that the issue has been forfeited, the court proceeds to consider the merits of the case, and winds up deciding legal issues it didn't have to decide.  The cardinal rule of constitutional interpretation is that the court should not decide a constitutional issue if it can decide the case on another basis.  That should also be the rule in non-constitutional cases. 

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