Case Update
Well, that's a change of pace. No oral arguments in the U.S. Supreme Court,
and nothing happening other than a dissent to a couple of denials of
certiorari. On the other hand, the gang
down in Columbus has come down with three - count'em, three - decisions in
criminal cases over the past couple of weeks.
The biggest was State
v. Washington, which we'll talk about on Wednesday. (Yes, I know I told you last Monday that we'd
talk about it last Thursday, but then it's not the first time you've been
disappointed in life, is it?) State v. Holdcroft is the latest decision on the
ever-fascinating topic of post-release control, and it features a new variation
on what had become a clichéd theme. Holdcroft
was convicted of aggravated arson and arson in 1999, and received a 10-year
sentence on the former and a 5-year sentence on the latter, to be served
consecutively. PRC was in its infancy
then, with few decisions to guide trial judges, and as was so often the case,
the judge screwed it up. No one realized
that problem until 2010, by which time Holdcroft had completed the sentence for
the aggravated arson. The judge
nonetheless held a hearing and imposed the five-year mandatory PRC period for
the aggravated arson, and the three-year discretionary period for the arson.
In numerous decisions,
the court has held that PRC couldn't be imposed once the defendant had
completed his prison sentence, but the trial court and 3rd District held that this
didn't present a problem, since Holdcroft was still in prison. But not on the aggravated arson, and so, by a
5-2 vote, the court holds that PRC couldn't be imposed on that count. (Lanzinger concurs only in judgment, beating her
well-worn drum that improper imposition of PRC shouldn't result in a "void"
sentence.)
The impact of Holdcroft
is obviously limited to situations where the defendant is serving consecutive
terms, has completed one of them, and the uncompleted term involves a lesser
PRC period than the completed one.
Completely unmentioned in Holdcroft
is how the court determined that the aggravated arson sentence had been
completed first. As we'll see in a
decision from the 8th District tomorrow, that's sometimes a tricky matter to
determine.
RC 2945.75 requires that when the presence of additional
elements makes an offense one of a more serious degree, the verdict must state
either the degree of the offense or the additional elements; if it does
neither, it serves as a conviction of only the least degree of the crime. In its 2007 decision in State
v. Pelfrey, the court held that the failure of a verdict form in a
tampering with records case to include the fact that government were involved reduced
the crime from a third-degree felony to a misdemeanor. Last week's decision in State
v. McDonald builds on that.
McDonald had led the police on a high-speed chase, and was indicted for
failure to comply.
That offense actually contains two sections. The first simply prohibits failure to comply with
an order of a police officer, and is a first degree misdemeanor. The second prohibits operating a motor
vehicle and "willfully" fleeing from the police after a signal to stop, and
becomes a third degree felony if the jury determines that the operation of the
vehicle caused substantial risk of serious physical harm to person or
property. The verdict form found
McDonald guilty of "Failure to Comply with Order or Signal of Police Officer
And Caused A Substantial Risk of Serious Physical Harm To Persons or
Property."
That's not enough for Pfeifer, who writes for the
five-member majority: "failure to
comply" could mean a violation of either of the sections of the statute, and
only the second can be a felony if elevated by the "substantial risk" element. But French's dissenting opinion (O'Donnell
dissented without opinion) has, I think, the better argument. Jury verdicts aren't required to list all the
elements of the offense; only when there is an aggravating element does that
have to be included. In short, the
verdict form did not have to distinguish between the two sections, and since
the aggravating element applied only to the second, and was found by the jury,
that was enough. Of course, the whole
problem could have been solved simply by having the verdict form specify the
degree of felony, and figure on seeing more of that.
Let's check out the courts of appeals...
Despite CSI and similar shows, the reliability of forensic
evidence has taken a hit in recent years, and ballistics comes under fire - no
pun intended - in the 6th District's decision in State v. Langlois. The opinion's a monster read - it's some 57
pages - but the gist is that while there are some flaws in the theories
surrounding them, it's not sufficient to justify exclusion under a Daubert theory. If you need to know how the Daubert standards work, this is the
place to go. It also contains an
interesting argument about the prosecution's use of the fact that the defendant,
charged with murder, had a virtual arsenal in his home. The panel harrumphs up some indignation,
noting that in this God-fearing state, no small number of people have acquired
multiple firearms, a right protected by the Constitution, but then -- quelle surprise -- affirms the
conviction.
Just how difficult a Batson
challenge can be is demonstrated by the 2nd District's decision in State v. Russell. After Russell had been
convicted of felony murder and assorted other crimes, the 2nd District affirmed
his conviction, only to grant a motion to reopen and reverse the
conviction. Russell's second trial also
resulted in conviction, but got that reversed, too: the judge had rejected a challenge to the
exercise of the state's peremptory challenge to a black juror, finding that no
"pattern" of using peremptories in this fashion existed. But you don't need a pattern, the 2nd
District held in that appeal, sending it back to the trial judge for
determination of whether the challenge was valid. The judge decided that the defense hadn't
established a prima facie case of
racial discrimination, but that was wrong, too; basically, you can establish a prima facie case by showing someone of a
protected group was excluded. That goes
up, and the 2nd District sent it back again,
this time for the judge to make the second and third determinations required
under a Batson analysis: whether the prosecutor articulated a
race-neutral reason, and if so, whether it was credible. You can guess what the judge found, and last
week the 2nd District affirmed that decision.
Cases I'll be sure to
get around reading someday. The
LEXIS summary for the 9th District's decision last week in Akron
v. Cabell:
In a case involving a missing dog,
defendant's coercion conviction was based on insufficient evidence because
there was no evidence that defendant ever threatened the dog.
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