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  • What's Up in the 8th at The Briefcase by Russ Bensing
    prison sentence On appeal that s affirmed the court holding that Price retained the new lawyer solely for purposes of delay and the judge didn t abuse his discretion in denying the continuance The gotcha moment comes with the panel s upholding the mandatory fine noting that if Price could come up with a 5 000 retainer for the new lawyer he could pay the fine Marlon Ricks decides to act as his own lawyer too but in State v Ricks the court decides he shouldn t have been allowed to For the waiver of counsel hearing the judge gave Ricks 5 page boilerplate form which only mentioned the aggravated murder charge Ricks had also been charged with murder felonious assault kidnapping and escape didn t explain the nature of the charge which the court holds requires at least a recitation of the elements and didn t discuss any aspect of trial procedure such as jury selection or examination of witnesses The curious aspect of Ricks is that it comes up on appeal from a plea not a trial four days after the judge held that Ricks could represent himself he pled no contest and was sentenced to life without parole Ricks didn t need to know anything about trial procedure to enter a plea and the judge obviously told him of all the charges he was pleading guilty to the courts have consistently held that the judge in a plea hearing need not inform the defendant of the elements of the crime I m not sure of the validity of the argument that a knowing voluntary and intelligent plea remedies a defective waiver of counsel Ricks still had standby counsel and could have discussed the plea with them but it s an argument that the State doesn t make The State does rely on an argument it s made before in State v Bozhukov Bozhukov a non citizen was charged with trafficking less than 200 grams of marijuana and the judge granted him intervention in lieu The motivation was obvious Federal law requires the deportation of anyone convicted of a drug offense involving more than 30 grams of marijuana but since ILC doesn t result in a conviction Bozhukov s lawyer told him he could avoid any immigration consequences BZZZT Wrong answer there doesn t need to be a conviction under immigration law only an admission of a crime and the plea required to get into ILC qualifies The judge grants a motion to vacate the plea but the State contends that any problem in the plea was solved by the judge s giving the statutory advisement under RC 2943 031 of the consequences of a plea As I ve noted before the problem with that argument is that it confuses the judge s duties with the attorney s the judge s advising the defendant that there may be deportation consequences doesn t solve the problem of the attorney s advising him that it won t which is what

    Original URL path: http://briefcase8.com/2015/02/whats-up-in-the-8th-106.html (2016-04-27)
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  • Case Update at The Briefcase by Russ Bensing
    a misdemeanor case where you entered a no contest plea for your client with a stipulation to a finding of guilt Happens all the time Might not happen anymore at least in the 6th District after State v Czech RC 2937 07 says a judge taking a no contest plea may make a finding of guilty from the explanation of the circumstances of the offense While explanation of the circumstances isn t defined in the statute it necessarily involves at a minimum some positive recitation of facts and a reference to the charge isn t sufficient And neither is the judge s saying that he had reviewed the complaint as in Czech s case the plea gets vacated A horrible decision from the 2nd District in State v Morefield Morefield was convicted of two counts of aggravated menacing for having pointed a gun at two people He appealed the trial court s denial of an instruction on self defense but the panel decides that he wasn t entitled to one because he denied that he d pointed the gun While it s true that self defense is in the nature of a confession and avoidance I admit the elements of the crime but have justification for having committed it there s a boatload of case law holding that alternative defenses are permitted even if they re contradictory Plus last year in State v Wine discussed here the Supreme Court rejected the idea that a defendant in pursuit of an all or nothing defense had the right to prevent the trial court from giving a jury instruction on a lesser included offense That s not a perfect fit but it affirmed the case law that a judge should give an instruction any time the evidence supports it and that applies to self defense as well The State files a motion in limine seeking to exclude your expert s testimony and after a full hearing the judge grants it You plead no contest to take it up on appeal But a ruling on a motion in limine is only preliminary and you don t preserve any error unless you proffer it at trial right Wrong in State v Johnston the 2nd District holds that in some cases a motion in limine serves the same purpose as a motion to suppress and appeal can be preserved on a no contest plea The defendant s family comes in wanting to know if you can come up with a way to get him out from under the 18 to life sentence he got after pleading guilty to murder five years ago You check the transcript and discover the judge didn t advise him of his rights to cross examine his accuser as required by Crim R 11 C 2 so you file a motion to vacate the plea A slam dunk right Wrong it s res judicata according to the 10th District s decision in State v Lowe because although Lowe didn t appeal it

    Original URL path: http://briefcase8.com/2015/02/case-update-98.html (2016-04-27)
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  • Teacher, teacher at The Briefcase by Russ Bensing
    agents under Crawford The case revolved around what constituted a testimonial statement and here s what you need to know about that The objective witness test The first time the court looked at the issue in Crawford it didn t really need to define it at issue there was a four page written statement the defendant s wife had given during a police interrogation and everybody agreed that would be testimonial under any conceivable definition of the term But Scalia threw out a general definition which included whether an objective witness would believe the information he provided was going to be used in subsequent prosecution The primary purpose test Four years later the Court decided Davis v Washington and Hammond v Indiana two domestic violence cases In Davis the Court held that Davis 911 calls describing how he was using her as a punching bag were not testimonial the primary purpose of the call was to summon help for an ongoing emergency not to make a statement which would be used for prosecution In Hammond they held that the statements the wife made to the police when they arrived were testimonial the officer had taken the wife into the kitchen by which time any emergency had ended O Connor s dissent in Clark for Lanzinger and French makes the assumption that both tests are still operative the primary purpose test is used where law enforcement agents are involved and the objective witness test is used for non law enforcement personnel I think this is wrong There s no test for when the statement is made to somebody who s not a law enforcement agent The underpinning of Crawford as in all Scalia opinions is history the right of confrontation developed to prevent the English practice of the government compelling witnesses to make statements and then introducing the statements at trial without the opportunity of cross examination of the witness Allowing a statement made to a family member or friend may raise issues under the hearsay rules but is simply not the evil against which the Amendment is chiefly directed But that gets to the big issue the one where the two sides really differ which is whether the teachers were government agents by virtue of the mandatory reporting requirement O Donnell who authored the majority opinion is a thorough writer his dissent in another Confrontation Clause case a few years ago State v Arnold discussed here was studded with case citations of courts which had held contrary to the majority s conclusion No such citations in support of his argument appear here O Connor fares little better managing to come up with a handful none terribly authoritative It appears that there s little law in this area and Ohio s law is now that statements made to someone with a mandatory reporting requirement and that could include workers in a facility housing disabled or elderly people are testimonial under Crawford O Connor blisters the majority for what she believes will

    Original URL path: http://briefcase8.com/2013/11/teacher-teacher.html (2016-04-27)
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  • SCOTUS Update at The Briefcase by Russ Bensing
    the judge had found him incompetent to testify Clark was convicted and sent off to prison for 28 years but the 8th District reversed on the basis that the child s statements to several of the witnesses a police officer a social worker and two teachers were testimonial under Crawford v Washington The police officer and the social worker were easy calls but the teachers were another matter the court decided they were government agents within the meaning of Crawford because they had a mandatory duty under statute to report child abuse The Ohio Supreme Court took the case in and after watching my buddy John Martin get smacked around in oral argument like a red headed stepchild I figured it was a sure bet for reversal It would have been if Chief Justice O Connor who s biting dissent made some of Scalia s look like they were penned by Mr Rogers been able to coax one more justice to her side Instead the court affirmed by a 4 3 vote SCOTUS granted cert on two issues 1 Whether an individual s obligation to report suspected child abuse makes that individual an agent of law enforcement for purposes of the Confrontation Clause and 2 whether a child s out of court statements to a teacher in response to the teacher s concerns about potential child abuse qualify as testimonial statements subject to the Confrontation Clause The two are intertwined what the State s really seeking is clarification about whether Crawford applies to statements made to non government agents I think there s a decent argument that it doesn t given the historical underpinnings that Scalia used in the concept of testimonial statements After all the chief evil that the Confrontation Clause was designed to prevent according to Scalia was statements made to the King s agents who would then testify about them at trial without the opportunity of the defendant to cross examine the person who actually made the statement And then there s this little nugget of dicta from the Supreme Court s 2008 decision in Giles v California only testimonial statements are excluded by the Confrontation Clause Statements to friends and neighbors about abuse and intimidation and statements to physicians in the course of receiving treatment would be excluded if at all only by hearsay rules Of course this begs the question of whether a statute imposing a mandatory reporting duty on a teacher or doctor or nurse to report abuse makes them a government agent There s not a lot of case law on that one but what there is probably doesn t bode well for Clark Still it s not all gloom and doom for him regardless of how the Potomac Nine come down on the issue Clark still gets a new trial because the 8th District held that certain statements made by the boy to relatives shouldn t have come in under EvidR 807 The Supreme Court granted cert in another criminal case Rodriguez

    Original URL path: http://briefcase8.com/2014/10/scotus-update.html (2016-04-27)
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  • Revisiting Pepper Pike v. Doe at The Briefcase by Russ Bensing
    the State three months later to unseal the records The State claimed that Vanzandt s acquittal had been procured by threatening one of the witnesses against him and wanted to pursue an intimidation case against Vanzandt That of course would require them to present evidence of the trafficking case the proceeding which served as the basis for the intimidation claim The judge agreed The Supreme Court didn t The statute does allow for access to sealed records but only in narrow circumstances by the person whose records were sealed by a police officer defending against a civil action involving the case or by a prosecutor in determining whether a defendant is eligible for diversion The reason the State presented for unsealing Vanzandt s records didn t fall into any of those so no go In 2011 the governor granted a pardon to Radcliff for five convictions which occurred some thirty years ago Last year in State v Boykin the court held that a pardon didn t automatically entitle a defendant to expungement and last week s decision in State v Radcliff expands on that by holding that a defendant can t get a pardoned conviction expunged unless he otherwise meets the qualifications of the statute Given the statutes Radcliff and the State in Vanzandt were left to rely on Pepper Pike and the assertion that a court has inherent authority to grant the relief being sought Pfeifer who dissented in both cases noted in Vanzandt the diametrically opposite the positions the State was taking arguing for the court s extra statutory authority in Vanzandt and against it in Radcliffe From a purely precedential view that s a hard argument to make Pepper Pike involved the sealing of records of an arrest while Vanzandt involved unsealing them and Radcliff involved the sealing of a conviction But the argument doesn t go anywhere in either case the court holds that while it was writing on a blank slate in Pepper Pike the legislature had filled out that slate That s not necessarily dispositive of the question though it presumes that when the legislature decided to regulate the expungement process it did so with the intent of pre empting the court s authority to go beyond that in unusual and exceptional circumstances Radcliff may well have presented just such a situation He d committed a number of felonies in his youth but in the past 30 years had led an exemplary life he was married and supported his disabled wife and her four children from a previous marriage and became an active member of the church He d obtained a custodial position with the Dublin City schools and in 21 years rose to the position of lead custodian at the high school He was fired after a local newspaper published an article about his criminal record and that of other school employees The court s not unsympathetic to that and indeed the real blame here lies in the harshness of Ohio s expungement

    Original URL path: http://briefcase8.com/2015/02/revisiting-pepper-pike-v-doe.html (2016-04-27)
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  • What's Up in the 8th at The Briefcase by Russ Bensing
    been repeated in various 8th District decisions for years Considering that there is absolutely no appellate review of whether a trial court properly applied the sentencing guidelines there s nothing to prevent one judge from routinely handing out minimum sentences for a particular crime while another routinely imposes maximum sentences which is what the consistency requirement was designed to prevent Again though it s hard to get worked up about this It just serves as a reminder that with rare exceptions like Moore the appellate courts serve no purpose when it comes to sentencing I was going to rewrite that to also include consecutive sentencing as an exception but any more the only purpose that serves is to prevent a trial court from imposing consecutive sentences without saying anything about the required findings in which case the appeals court sends it back with a post it note explaining just what the judge has to read out of the statute back next time around The court s analysis in State v Fonseca has some problems too Fonseca was granted intervention in lieu of conviction with a rather onerous set of requirements but she failed to meet some of the less onerous ones like just showing up for meetings with her probation officer The judge held a hearing found that Fonseca had violated the terms of ILC terminated her from that program and found her guilty of drug possession In order to go into the program you need to enter a guilty plea to the charge The case is held in abeyance and if you complete the program the case is dismissed but if you don t the court accepts the guilty plea and you ve now got a conviction Fonseca claims that her due process rights were violated at the hearing because the judge didn t have a preliminary hearing before the probation violation hearing and the hearing itself didn t meet minimum due process standards The US Supreme Court has held that a person charged with a probation violation is entitled to due process at a hearing The cases require that the court actually hold two hearings a preliminary one to determine whether there s probable cause to believe a violation has occurred and the violation hearing itself Fonseca easily dispenses with the first argument about the preliminary hearing justifiably relying on case law which holds that intervention in lieu is not like probation We never learn what due process violations the judge may have committed at the actual hearing though and that s the problem The panel relies on a simple syllogism the Supreme Court cases requires due process at a probation violation hearing intervention in lieu is not the same as probation therefore due process is not required at a violation hearing for intervention in lieu This is a logical fallacy Andy is a man Andy is not Dennis therefore Dennis is not a man The ILC statute requires a hearing for it to be revoked why shouldn

    Original URL path: http://briefcase8.com/2015/02/whats-up-in-the-8th-105.html (2016-04-27)
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  • Case Update at The Briefcase by Russ Bensing
    whether the enterprise had to have a separate existence from the pattern of corrupt activity That s a muddled question but the court in Griffin resolved that by ignoring it it held that a judge in her instructions to the jury need do no more than read the statute Beverly is nothing more than error correction Beverly and his cohort Imbler went on a crime spree over a three month period in late 2010 stealing cars and burglarizing homes The 2nd District found this wasn t sufficient to show that there was an enterprise separate from the pattern but given Griffin that s going nowhere That s a defensible result in this case but it leaves open the possibility that anytime two people commit two crimes over any appreciable period of time they re going to get hit with an OCPA charge and it s questionable whether that was the intent of the legislature in enacting the statute In the courts of appeals We all know that an indictment can be amended to change the date so long as the defendant isn t prejudiced For example if the indictment says you robbed a 7 11 on January 6 2014 and the evidence shows the store was actually robbed on January 8 2014 the discrepancy isn t going to get you off On the other hand if the indictment charges child rape between March 1 2008 and January 1 2010 but the State wants to change that to March 1 2006 they re not going to be allowed to do that you didn t have an opportunity to prepare a defense to events that occurred two years prior In State v Wilkins the 2nd District points out another situation where the indictment can t be amended to change the date if the new date would be after the date the indictment was returned The State charged Wilkins with theft occurring on May 7 2011 but on the day of trial moved to change the date of offense to May 7 2011 to the present No can do at least in the 2nd the amendment is invalid because the crime alleged in the amended indictment was at least in part neither presented to nor considered and returned by the grand jury A court doesn t have unfettered discretion in imposing conditions for community control sanctions as the 1st District notes in State v Cauthen The judge had required Cauthen to obtain full time employment as a condition for CCS but the 1st reverses noting that Cauthen had been unable to work full time in the past because of mental health issues and would lose her disability payments if she took a full time job State v Stevens demonstrates the difficulties of demonstrating jury misconduct even if you get around the aliunde rule Stevens had been convicted of murder but sought a new trial when he discovered that one juror s sister had been raped and murdered four years before The 5th District

    Original URL path: http://briefcase8.com/2015/02/case-update-97.html (2016-04-27)
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  • What's Up in the 8th at The Briefcase by Russ Bensing
    constitutes hybrid representation which isn t permitted Here s the problem this creates In this situation I think the attorney has the obligation to advise his client of this and tell the client that if he wishes to pursue the motion to withdraw he has to ask the court to represent himself Of course to do that the trial court has to conduct a Faretta hearing to determine whether he should be allowed to It doesn t have to be a full blown Faretta hearing since you re not talking about the defendant s ability to handle a trial Still it seems the easiest course is just to have the damned hearing on the motion to withdraw the plea and let the defendant speak his piece It s not like anybody s going to grant the motion I d suggested last week that the latest compensation package for the 8th District likely ties pay to word production and that theory seems borne out by State v Davis an eleven page opinion when two would have sufficed Davis appeals from the denial of his motion to suppress an identification but there s a big problem Davis pled guilty instead of no contest so he waived an appeal on any pre plea motions The court nonetheless plows ahead and we learn several things First the statute on identification RC 2933 83 only applies to photographic and live lineups not to cold stands Second you are never ever going to win the argument that the cold stand was unduly suggestive when the victim you robbed recognizes you in a grocery store a month later and calls the cops The defendant in State v Turner complains that the judge never told her she could get consecutive time on two felony child endangering charges maxed out at three apiece but that s too bad because the law is very clear that while a trial judge is required to tell a defendant what the maximum sentence is she s not required to inform a defendant of the possibility of consecutive sentences I m kind of split on this On the one hand telling Turner that the maximum sentence was three years when it turned out to be six doesn t seem to be keeping with the entire idea of advising the defendant of the potential sentence so he can make an informed choice on whether to plead On the other hand if you as a lawyer haven t advised your client of the possibility of consecutive sentences you haven t done your job As indicated by my post about last week s Supreme Court decision in State v Ruff the course of allied offense law in Ohio has not been a smooth one One thing has always been certain though the crimes of theft and receiving stolen property are allied offenses if it s the same property You complete the theft when you steal the property and you also receive the stolen property at the same

    Original URL path: http://briefcase8.com/2015/03/whats-up-in-the-8th-113.html (2016-04-27)
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