Case Update
Everybody's still picking at the goat entrails, trying to
decide how the Supreme Court's going to come down in the gay marriage cases,
and given that the Court won't have oral arguments for another two weeks, bet
on me being able to open the Case Update with that line for the next
fortnight. There aren't many big
decisions coming up that might interrupt that train of collective thought; the
only big criminal one I can recall is Alleyne v. US, which involves a Blakely
issue. I'll go read up on that right
now so that I'll be ready to go when the Court issues its opinion. Sure I will.
A good part of my life has been devoted to testing the
hypothesis that if you ignore a problem long enough, it will go away. The results to date are decidedly mixed:
sometimes they do, but when they don't, the consequences can be
disastrous. One of the things that's
become harder to ignore is a disciplinary complaint. I've never had the occasion to test my
hypothesis on this one, but apparently something's been added to the rules
which allows the court to issue an interim default suspension if the attorney
doesn't respond to the complaint. I say
"apparently" because this is the first time I've seen this happen; it happened
to three attorneys last week. That, and
deciding which cases to hear (a few) and which cases not hear (many, many)
comprised last week's output by the Ohio Supreme Court.
Rough week, huh?
Let's see if there's anything of significance in the courts of
appeals...
Breaking and entering and theft could be allied offenses
under the "same-act" standard of State v. Johnson. Does that mean if you plead guilty to petty
theft in municipal court, the State can't prosecute your for the B&E
because of double jeopardy? A common
pleas judge thinks so, but the 9th District reverses in State
v. Lamp. The test for double
jeopardy is the "same elements" test established by Blockburger v. US in 1932 - basically, it's not double jeopardy if each
offense requires proof of an element that the other does not. The Ohio Supreme Court's held that double
jeopardy analysis is separate from that for allied offenses... A defendant can't
file an application for an AppR 26(B) reopening because of ineffective assistance
of counsel where he's filed his own supplemental pro se brief on appeal, the
8th District says in State
v. Cowan...
In State
v. Osley, the appellant pled guilty to involuntary manslaughter and
aggravated robbery, and was sentenced to 23 years imprisonment. His lawyer filed an Anders brief, alleging potential errors in the sentencing, failure
to merge allied offenses, and acceptance of an Alford plea. The court
reviews the assignments, concluding that there was "nothing in the record" to
indicate that the trial court failed to consider the proper sentencing factors,
that while the two offenses were allied, the court "cannot say that the trial
court erred in failing to merge the offenses," and that the trial court had
taken the appropriate steps to insure that the plea was knowing, intelligent,
and voluntary. It then concludes that "this
appeal is without merit and wholly frivolous."
And that's completely wrong.
"Frivolous" and "without merit" aren't the same thing, and it's quite
clear that the court confused the two.
When an appellate court concludes that it "cannot say" that the trial
court erred, that means it's at least arguable that it did. The purpose of the court's review of an Anders brief isn't to decide the potential
claims presented in it, but to decide whether any of those claims have any potential merit. If they do, another attorney should be appointed
to represent the defendant and present those claims. This wasn't an adversary process, as it should
have been; the court decided the issues without benefit of input from the
defendant's counsel. (That's clear in
how the court handled the sentencing issue.
It decided it solely on the basis that it wasn't contrary to law, which
is just the first step in the Kalish analysis;
it didn't address abuse of discretion at all.)
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