Case Update, Cabin Fever Edition
It's Sunday morning, our house is buried in 18 inches of snow, and it's a race as to what's going to get to the sidestreet we live on first: a snowplow, or summer. To top it off, a pipe under our bathroom sink broke, and we've got as much chance of getting a plumber here today as Britney Spears does of winning Mother of the Year. I was thinking of calling in the National Guard to write this post, but I guess I'll suck it up and get to it. Not like there's going to be anything else to do.
Nothing out of DC this weekend; the Gang of Nine is girding their collective loins for the oral argument in the big gun rights case next week. The Court has announced that they will release the audio of the argument as soon as it's concluded, and Scotusblog will have that, plus a downloadable version shortly thereafter, plus the transcript that afternoon.
Down in Columbus, the Gang of Seven churned out a number of decisions of import. In Sexton v. Mason, they held that the statute of limitations for a continuing trespass case began to run when the trespasser's tortious acts have been completed, even if the damage continues after that. In State v. Fugate, they ruled that when a defendant is sentenced to concurrent terms of imprisonment, he gets jail time credit toward all of the terms, not just some of them. In that case, the judge had sentenced Fugate to prison for burglary and theft, and also determined he'd violated his community control sanctions on another case, and ordered that sentence into effect as well, running that one concurrent, but not giving him credit for the 213 days he'd spent in jail awaiting resolution of all the cases. And the decision in Rosen v. Celebrezze is a must-read for divorce lawyers handling multi-state custody issues: four months after moving to Ohio, the mother had filed a divorce complaint, and the Court held that Ohio courts were barred from considering the custody issues because of the provision in the Uniform Child Custody Jurisdiction Enforcement Act that the child must have been a resident of the state for the preceding six months.
On to the courts of appeals...
Criminal. A puzzler from the 6th District: Defendant gets maxed on reckless homicide case, moves to vacate plea claiming his lawyer told him he'd talked to the judge and judge had said defendant wouldn't get the max, lawyer admits this, court still affirms denial of motion, saying that judge had discretion to impose the maximum... Rare dismissal for insufficiency of evidence: 9th District says fact that defendants were present on premises during drug raid not sufficient to convict them of trafficking... Defendant pleads guilty with agreement to serve eight-year mandatory sentence, then moves to vacate plea on grounds that court didn't advise him that he was ineligible for probation; 8th District tells him that he has eight whole years to learn what "mandatory" means... 4th District holds that riding a bicycle while drunk falls within DWI statute... 9th District permits evidence of prior instances of domestic violence in defendant's current DV trial, under apparent "he choked her then, he's charged with choking her now" theory... 5th District says driving 20 mph in 35 zone gives officer reasonable suspicion to make traffic stop... 8th District says defendant not entitled to jury instruction on lesser included of aggravated assault, where defendant alleges she accidentally shot the victim. Twice...
Civil. 10th District reverses summary judgment in case alleging negligent misrepresentation by insurance agent regarding availability of commercial UMI coverage... 8th District affirms award of $55,000 against California couple for sending junk faxes... 5th District rules that 12 years of back child support in paternity action barred by laches where mother used threat of seeking support to prevent father from establishing relationship with child... 9th District holds that false answers about drug use were material and voided life insurance policy... Sovereign immunity statute protects school district from suit for employer intentional tort, says 8th District...
Drinking problem? What drinking problem? In State v. Kiser, the 5th District upheld the trial court's maximum 5-year sentence of defendant for involuntary manslaughter arising out of a fight, noting that defendant "had numerous prior convictions, upwards of thirty with most being alcohol related" and "had failed previous attempts for alcohol and drug abuse treatment." What was the fight about?
On December 14, 2006, Appellant invited some friends to his residence to drink. One of Appellant's friends, Gerald Sikorski lived upstairs and eventually joined the people in the basement. An argument broke out between Appellant and Sikorski over Appellant's bottle of gin. The argument turned into a fight in which Appellant struck Sikorski. The investigation indicated that the strike caused Sikorski to fall and hit his head on the concrete floor. Appellant was then pulled off Sikorski. After the fight, Sikorski went upstairs to his residence. He was later taken to the hospital where it was determined that he had a serious head injury. He died the next day.
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