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  • Two good decisions at The Briefcase by Russ Bensing
    broke up with Pawlak because he was sleeping around and that the ages of the girls he was sleeping around with were 22 17 17 and 15 The 8th agreed the failure to object to that was ineffective assistance of counsel and reversed for a new trial Any claim of ineffective assistance is highly fact dependent but Pawlak s a good decision and a well written one because it runs against the grain Probably the critical factor here was that this wasn t just a single question or answer it was an extended colloquy it took eight questions to elicit the 15 year old s age And that s the way the law should look at it If you re sitting in trial and a witness blurts out something that s damaging you might decide not to object for fear of highlighting the evidence But if you just zone out or you don t understand your case well enough to realize that when your thirty year old client is charged with fondling twelve year olds you don t want the jury to hear that he s sleeping with a fifteen year old well I m sorry that s a bad job Schillo will have much broader legal significance Schillo a local business owner and his wife went out for dinner and drinks in Cleveland with four other couples one November night On the way back over the Carnegie Ave Bridge Schillo ran down a bicyclist who was left a quadriplegic The evidence at Schillo s trial for aggravated vehicular assault was muddied the other participants at the dinner testified that Schillo didn t appear to be intoxicated at any point and there was even some uncertainty about that on the part of the cops But during the cross examination of the detective he said that he d received an anonymous letter during the investigation This hadn t been disclosed in discovery and the defense asked to see it The prosecution went one better during re direct it had the detective read the letter and the judge later accepted it into evidence The letter was devastating it was obviously from one of the participants of the dinner and claimed that Schillo was extremely intoxicated that night and the letter writer was coming forward albeit anonymously to ensure that justice was done Schillo was convicted and the judge imposed the maximum five year sentence The admission of the letter is wrong on so many levels but there was problem This was a bench trial Actually there s some good case law for Schillo here a few years back in In re C T the 8th reversed a delinquency adjudication because the judge had improperly admitted 404 B evidence The court essentially held that where the judge admits the evidence over objection that overcomes the presumption that the judge considers only admissible evidence when the juvenile court admits evidence over an accused juvenile s objection it is counterintuitive to conclude that the juvenile

    Original URL path: http://briefcase8.com/2014/06/two-good-decisions.html (2016-04-27)
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  • Conflict resolution at The Briefcase by Russ Bensing
    in prison He appealed to the 9th District in State v Skorvanek claiming that evidence wasn t sufficient to convict him of tampering Time out to take a look at the statute It provides that no person knowing that an official proceeding or investigation is in progress or is about to be or likely to be instituted shall alter destroy conceal or remove any thing with purpose to impair its value or availability as evidence in such proceeding or investigation Skorvanek s argument focused on the word such According to him his tossing the stuff out of the window didn t impair its availability for use in a drug investigation because he was being investigated for making an illegal turn not for possessing drugs The 9th District wasn t buying noting that an investigation may quickly proceed beyond its initial purpose and that this court has never held that a defendant commits the offense of tampering with evidence only if he tampers with an item directly related to a police officer s purpose for investigating the defendant Well the 2nd District had held just that a few times and did it again a couple of years ago Two Clark County detectives stopped Amanda Straley s car after they saw it go left of center She was drunk but they didn t want to arrest her because they were in plain clothes and driving an unmarked car so instead they decided to drive her home At that point Amanda said that she had to urinate and over the detective s objections trotted off to the side of a building and squatted announcing I don t care if you arrest me I have to pee Not likely to take its place among Watchwords of Liberty like I have not yet begun to fight but we live in less heroic times After she was done one of the detectives walked over to where she d been and found a cellophane bag on the ground covered in urine Guess what was in the bag Guess what I would do if I had a job which required me to handle urine covered bags to determine their contents At any rate Straley too was convicted of tampering with evidence but the 2nd District took a decidedly different tack The court contemplated all the possible investigations that might have ensued from Amanda s activities that night drunk driving public indecency disorderly conduct and correctly concluded that the contraband Straley dropped had no use or value as evidence in an investigation of these offenses And last week the Ohio Supreme Court adopted essentially the same reasoning in a 6 1 decision O Donnell dissented and would have dismissed the case as having been improvidently accepted As a matter of statutory interpretation the court s right when Amanda Straley dropped the bag of cocaine she didn t do so knowing that an investigation for her for drug possession was likely That s why I m a little concerned because

    Original URL path: http://briefcase8.com/2014/06/conflict-resolution.html (2016-04-27)
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  • What's Up in the 8th at The Briefcase by Russ Bensing
    in State v Dodson four years and State v Labadidi seven years but never mind The latter two cases work on some of the fine points of consecutive sentencing One of the required findings is that the sentence is not disproportionate to the seriousness of the offender s conduct and to the danger the offender poses to the public the judge in Dodson said that consecutive sentences are not disproportionate to the seriousness of your conduct and the danger that you caused to the public That semantic distinction is not an insignificant one the first focuses on future dangerousness the latter to past dangerousness Good enough for government work though the panel concludes Labadidi also focuses on that requirement but here the judge s verb choice was correct Labadidi nonetheless argues disproportionality using the time worn and inevitably unsuccessful tactic of pointing to other cases where defendants got lesser sentences I m guessing that Venes didn t make the cut The court holds that this relates solely to the offender s conduct and not to the conduct of any others it does not require the court to compare the offender s conduct to that of others The court s said that before and I didn t understand it then and I don t understand it now It s like saying that you must decide whether Roseanne Barr s weight is disproportionate only by comparing her weight to Roseanne Barr s But let s go back to Mosley The judge had discussed at length the seriousness and recidivism factors but here s all she said about consecutive sentences With regard to the length of the prison term the general rule being that consecutive concurrent terms are appropriate I cannot find that concurrent terms are appropriate enough in this situation There are four case numbers It s eight separate incidents that are condensed into four case numbers So we have multiple case numbers representing and within those case numbers multiple incidents totaling eight separate crimes with multiple victims I do find that that harm with that amount of cases and that amount of victims is so great or unusual that a single term would not adequately reflect the seriousness of the conduct I also believe that his criminal history shows that consecutive terms are needed to protect the public The first two requirements are that consecutive sentences are necessary to protect the public from future crime or to punish the offender and the disproportionality one quoted above The judge said absolutely nothing about those The court nonetheless affirms I don t understand that either I know that the way consecutive sentencing has worked out is dumb and that even when a judge gets reversed for not saying the magic words it s just a post it note telling the judge what to say at resentencing But if appellate review is nothing more than making sure the judge says the magic words you can at least make sure the judge says the damn

    Original URL path: http://briefcase8.com/2014/06/whats-up-in-the-8th-77.html (2016-04-27)
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  • Case Update at The Briefcase by Russ Bensing
    judge found Martinez not guilty The prosecution appealed and the state courts ruled that since the prosecutors never put on a case against him Martinez was never at risk and could still be prosecuted The Court didn t even bother with argument or full briefing summarily and unanimously ruling that there are few if any rules of criminal procedure clearer than the rule that jeopardy attaches when the jury is empaneled and sworn It also ordered refresher courses in constitutional law for Illinois prosecutors and judges Well I made that part up but it s certainly worth a thought isn t it I d mentioned a few weeks back that there were numerous cases pending before the Court on whether Crawford permitted one forensic analyst to testify about tests conducted by another Last week the Court denied certiorari in all fourteen of them Down in Columbus one big criminal decision State v Straley which will put a crimp in the prosecution s tactic of elevating a crackpipe case into a third degree felony tampering charge We ll talk about that on Wednesday So let s head over to the courts of appeals A couple of interesting points in the 2nd District s decision in State v Brown Brown had been sentenced to four years in prison on a weapons under disability count in 2010 then was granted judicial release a year later He violated in 2012 but the judge continued him on probation He violated again and this time he got shipped to do the remainder of the four year term But it wasn t the same judge who sent him to prison it was a new judge A judge it turns out who had been the prosecutor in the probation violation hearing five months earlier Brown argues that the judge was biased against him but the 2nd District rejects that finding that the remedy was to file an affidavit of prejudice It also rejected the claim that his attorney had been ineffective for not filing an affidavit concluding that it was a tactical move Translation screw the client I m not going to have a judge pissed off at me It also finds that while HB 86 made the weapons charge and most other third degree felonies punishable by a maximum three years imprisonment Brown didn t get the benefit of that The change only affected sentences not already imposed and Brown s sentence was imposed in 2010 Can a judge order a misdemeanor sentence to be served consecutively to a felony sentence The 6th District explores the issue at length in State v Polus concluding that it can t but certifies that its decision conflicts with one from the 5th District It s all about revisions to the sentencing statutes resulting from the Supreme Court s Foster decision and HB 86 If you ve got that as an issue Polus provides a nice explanation of the question The award for Worst Decision of the Week goes to 6th

    Original URL path: http://briefcase8.com/2014/06/case-update-76.html (2016-04-27)
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  • We don't need no stinking report at The Briefcase by Russ Bensing
    Supreme Court finds inexplicable probably because it is After all that s what the en banc procedure is for to resolve splits within the district The court finds it truly troubling that by failing to hold the hearing the Eighth District has sent a message of chaos and confusion to all common pleas court judges in Cuyahoga County Frankly I d noticed that the common pleas judges up here were a bit more chaotic and confused than normal so I m sure this will help settle them down The court quickly shifts its fire to the legislature finding that the hodge podge that is Ohio s sentencing law is so complicated that discerning the legislature s purpose in enacting any individual statute now approaches futility One section for example allows a court to consider the appropriateness of imposing a fine as the sole sanction for the offense But another section says that a defendant convicted of a fourth or fifth degree felony shall be sentenced to a community control sanction of at least a year Armed with stats on what a presentence investigation costs 800 and how long it takes to prepare a month the court rightly concludes that it s pretty close to bone stupid to require a judge to order a presentence report when she s decided that one isn t necessary a process the court observes borders on the irrational Foregoing its pursuit of a logical understanding of the sentencing scheme the court reluctantly agrees that that what the law mandates The court s right That s what the clear language of the statute requires Only the legislature can remedy it And not only in this respect it s becoming increasingly clear that HB 86 isn t accomplishing its basic objective of reducing the cost of incarcerating people Making judges do things they don t need to do is only a part of that HB 86 originally included a provision for mandatory probation a defendant convicted of a fourth or fifth degree felony had to be given community control sanctions in most cases That was gutted a year later with the mandatory provision retained with the proviso that the judge had the discretion to impose a prison sentence in a wide variety of circumstances And yesterday we discussed the situation with consecutive sentencing SB 2 the big attempt at sentencing reform in 1996 had created requirements for judges for imposition of consecutive sentences the judge had to make certain findings and give reasons for those findings That was thrown out by State v Foster in 2006 because the court concluded that judicial fact finding was unconstitutional in light of the US Supreme Court s Apprendi Blakely line of cases A few years later SCOTUS held that there wasn t anything wrong with judicial fact finding for imposition of consecutive sentences so the legislature obligingly revived the findings requirement in HB 86 But at the same time it removed the provision requiring that a judge give reasons for

    Original URL path: http://briefcase8.com/2014/07/we-dont-need-no-stinking-report.html (2016-04-27)
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  • The Supreme Court takes on consecutive sentencing at The Briefcase by Russ Bensing
    poses to the public and then has to make one of three further findings that the offender committed the offense while on bond or under supervision that the harm was so great that concurrent sentences wouldn t adequately reflect the seriousness of the crime or that the defendant s criminal history shows that consecutive sentences are necessary to protect the public The discerning reader will note the substantial elasticity in those findings What happened to Bonnell He got caught stealing 117 from the vending machines at five hotels The judge gave him consecutive sentence totaling 8½ years citing Bonnell s extensive record which consisted of some 44 arrests or conviction and not much else The 5th District affirmed the sentence finding that the judge s reference to the criminal history met one requirement and the fact that the judge read the PSI met the other two It reverses and a damn good thing the 5th District s decision essentially meant that the judge didn t have to make the findings as long as the appeals court decided that he could have The Supreme Court s decision clarifies the law in two areas When does the judge have to make the findings There d been some debate as to whether the court had to make the findings in the sentencing hearing or in the journal entry The judge in Bonnell s case didn t do it in either While two justices French and Kennedy would have allowed it in either the majority came down on the side of requiring the judge to do it in both with one caveat if the judge neglects to put it in the journal entry that can be corrected by a nunc pro tunc entry as long as he said it at the sentencing hearing Does the judge have to give reasons for the findings There are arguments that could be made on this but not anymore That s a dead issue The court firmly rejects the contention that the judge has to do anything more than make the findings And this is where my problems with decision begin O Donnell who wrote the opinion in Bonnell asked in the oral argument whether a judge need no more to satisfy the statute than read the findings from a laminated card Well if you re not going to require reasons that s going to be pretty much what happens But my problem with the decision doesn t end there The other question is if the judge doesn t read it if a card what exactly does he have to say The Supreme Court found that the judge s reference to Bonnell s record sufficed for one of the required findings that the defendant s criminal history shows that consecutive sentences are necessary to protect the public Curiously several paragraphs later it seems to come to the opposite conclusion It then finds that the judge never addressed the second requirement that consecutive sentences aren t disproportionate to the

    Original URL path: http://briefcase8.com/2014/07/the-supreme-court-takes-on-consecutive-sentencing.html (2016-04-27)
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  • What's Up in the 8th at The Briefcase by Russ Bensing
    people and had a resume er criminal history chockfull of misdemeanor and felony convictions 34 of them to be exact Williams wasn t a candidate for the Good Neighbor Award either having been given consecutive sentences on three cases two of them armed robberies But here the court lays out just how tough this line of attack is The panel says that trial judge s weighing of the factors whether harm was actually so great that consecutive sentences are necessary for example is unreviewable basically you can win this argument only where the court claimed to rely on a fact that the record on appeal shows to be demonstrably wrong for example attributing to the defendant a prior conviction that does not exist A new feature for the blog premiers this week Saved by Harmless Error That award goes to State v Taylor Taylor was on trial for raping his minor cousin and when the victim broke down crying on cross examination the judge asked her if she d like to have the nice lady from the Victim Impact Unit stand next to her during her testimony Taylor argues this was prejudicial ya think but the lead opinion cites several cases where that sort of thing was upheld including one where a 5 year old boy was permitted to testify while sitting on his father s lap As the concurring opinion notes though those cases involved young children here the alleged victim was 17 It s not clear exactly what Taylor holds the judge who wrote the concurring opinion said that he thought the procedure was improper and unfair but that it was harmless in light of the overwhelming evidence of guilt but he didn t concur only in judgment and neither did the judge who concurred in both opinions Confession is good for the soul and it doesn t matter whether the guy in the robe is a priest or a judge as the defendants in State v Blackley and State v Wright learn Blackley and a co defendant were charged with sexually assaulting an 11 year old girl The co defendant pled to the rape Blackley went to trial and then pled to gross sexual imposition in the midst of that and both received 5 year sentences Blackley argues disproportionality but the panel finds his remorse or lack thereof a sufficient distinguishing factor the trial court noted that Blackley s father was more apologetic toward the victim than Blackley was As for Wright this exchange best captures his problems with acceptance of responsibility DEFENDANT I m sorry that Mr Hobbs got shot that night THE COURT I m sorry he got shot too That s different than saying I m sorry I shot you Mr Hobbs As the politicians like to say when they re caught making a mess mistakes were made But while Blackley and Wright learn the benefits of verbosity at least when expressing remorse the defendant in State v Smith learns the wisdom of knowing

    Original URL path: http://briefcase8.com/2014/07/whats-up-in-the-8th-84.html (2016-04-27)
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  • Case Update at The Briefcase by Russ Bensing
    its passage and I believe provides further support for my argument here a couple weeks back that HB 86 governs sentences in cold cases and thus a defendant convicted of a 1994 rape faces a 3 to 11 year sentence rather than 10 to 25 years In State v Amos the court resolved a split between the 8th District and the 8th District two different panels had come out with on the same day one holding that a judge had to get a presentence report before placing a defendant on community control sanctions and one holding that she didn t Spoiler alert she does The last decision was probably the most significant in State v Bonnell the court sought to clarify the requirements for imposition of consecutive sentences Spoiler alert they didn t In any event we ll talk about Bonnell on Wednesday and Limoli and Amos on Thursday In the courts of appeals State v Brown involves one of the little known aspects of Miranda the public safety exception That doctrine allows the police under certain circumstances to temporarily forgo advising a suspect of his Miranda rights in order to ask questions necessary to securing their own immediate safety or the public s safety This almost always involves the location of a weapon and it did here Brown supposedly tossed a gun away as he was being chased by the police and the question was the admission of his statements regarding the gun before he was Mirandized The trial court allowed them and the 2nd District affirms Brown pled no contest to tampering with evidence to take the Miranda issue up to the appeals court but it s not clear why he didn t try the case instead his statements weren t incriminating he denied having a gun and the police didn t find one There s been a dispute among the lower courts as to whether a stop based upon a police officer s mistake of law is invalid and the 9th District comes down on the invalid side in State v Drushal The case provides the Bullshit Traffic Stop of the Week Drushal failed to stop his car before the clearly marked solid stop bar on a particular street The trial court found that the local ordinance required the driver to stop at the stop line not before it and suppressed the evidence resulting from Drushal s arrest The 9th District affirms Here and there The 10th District in State v Jordan holds that a discussion between court and counsel as to how to answer a jury question was not a critical stage of the proceedings at which the defendant was entitled to be present The police don t have to tell a defendant he has a right to refuse to provide a urine sample in a drugged driving case the 12th District rules in State v Ossege Good news bad news in State v Ferguson the 10th District upholds Ferguson s first degree felony conviction for

    Original URL path: http://briefcase8.com/2014/07/case-update-83.html (2016-04-27)
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