Case Update
SCOTUS kicks off oral arguments today, and the first criminal case on the docket (for tomorrow) is Ocasio v United States. Ocasio, a Baltimore police officer, was involved in a bribery scheme where he would steer people involved in traffic accidents to a garage owned by the Mejia brothers, for which the brothers would appropriately compensate him. Ocasio was convicted of three counts of violating the Hobbs Act, the federal extortion statute, and also of conspiracy. He attacks the latter count, arguing that a conspiracy conviction requires taking money from someone outside the conspiracy, and the Mejia brothers were part of it. SCOTUSblog has a lengthy article explaining the whole thing. The author calls the case a "brainteaser," and it's certainly that; I found both my intellect and my attention exhausted by the sixth paragraph. Have at it, if you will.
More interesting cases - at least to me, and that's what it's all about - await, including two on Wednesday concerning Kansas' death penalty law. Odd that it would come from Kansas, which hasn't executed anybody in the modern (post-1976) history of capital punishment. More on that later.
Down in Columbus, a big decision in a death penalty case in State v. Adams. The major concern of the case is the "alternate means" doctrine. If you don't know what that means, you'll find out on Wednesday. Adams also deals with a variety of other issues, like pre-indictment delay, so we'll cover that, too.
In the courts of appeals...
Despite the Supreme Court's statement in State v. Xie that presentence motions to withdraw a guilty plea "should be freely and liberally granted," they're anything but; that the phrase is so much chin music is indicated by the fact that, in Xie, the court reversed the appellate panel's decision finding that the trial court had erred in denying the motion. I've been doing this blog for close to ten years now, and you can count the number of cases where a trial court got reversed for denying a motion to withdraw on the hand of Three Finger Mordecai Brown. About the only way for the defendant to get one granted is to show that he's innocent. In State v. DeJesus, the 2nd District adds a wrinkle to that: if the defendant was aware of the fact that he had a complete defense to the crime at the time he pled, he's not entitled to withdraw the plea.
Does a judge have to make the findings required for imposition of consecutive sentences where the sentence that's imposed has been jointly recommended by the parties, and would require consecutive sentences? RC 2953.08(D)(1) specifically provides that a recommended sentence, if authorized by law and imposed by the judge, is not subject to appellate review, and that's what the 9th District found last week in State v. Rue. The Supreme Court's going to have the last word on this, though. In State v. Sergent, the 11th District concluded that the imposition of consecutive sentences without findings was not "authorized by law," even if jointly recommended by the parties. The 11th certified a conflict on that issue, and last week the Supreme Court accepted the case.
We all know the problems of prosecutorial overcharging, but undercharging turns out to be the problem in State v. Williams. Williams, 47 years old, had met an 11-year-old girl on Facebook, and began exchanging messages and telephone calls with her. She called him up one day and asked him if he wanted to "chill," and he agreed and made plans to meet her at a gas station near her home in Lorain County. He then drove her to a motel in Cuyahoga County, where the two had sex.
Williams is the rare reversal for the State's failure to establish venue: all of the sexual activity took place in Cuyahoga County. The 9th District notes that the State could have charged kidnapping, criminal child enticement, or interference with custody for his actions in Lorain County, which would have resulted in Lorain County having venue under a "course of conduct" theory. But uncharged crimes can't form the basis of a course of conduct creating venue.
The march of technology has produced another question in criminal law: how do you authenticate text messages? The 11th District provides the latest answer to that in State v. Bickerstaff. Bickerstaff was accused of child rape, and the State sought to introduce text messages which the victim testified Bickerstaff had sent her. There's not a hearsay problem - the messages were statements of a party opponent - and so the only question was whether the victim could authenticate them. In keeping with just about every other court which has considered the issue, the panel finds that the recipient of the messages can testify that they were sent by another party, given that the burden of authentication "is not great, and requires only a prima facie showing." As for Bickerstaff's argument that somebody else sent them from his phone, that goes to the weight, not the admissibility, of the evidence.
Finally, an odd decision out of the 11th District in State v. M.D. M.D. had been convicted of theft with a physical harm specification back in 1991; the specification made the conviction non-expungeable. M.D. nonetheless filed for expungement, relying not on the statute but on the court's inherent authority to seal records. The trial court considered only the statute in denying the application for expungement, so the appellate panel sends it back for consideration of whether the court nonetheless has the inherent authority to grant it. Somewhat surprising, given that earlier this year the Supreme Court held in State v. Radcliff (discussed here) that the expungement statutes define the limits of the court's powers. Even more surprising is that the opinion in M.D. quotes Radcliff to that effect.
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