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  • Not a good start at The Briefcase by Russ Bensing
    Balkinization Legal Blog Watch SCOTUSblog Gamso For The Defense Not a good start September 18 2014 by Russ Bensing This is the kind of morning I had First I forgot to set the alarm I was working on an appeal from home the last several days and I got up late Then when I got downtown I realized I d left my cellphone at home so I had to go back and get it And then all four tires on my car went flat on the way back to the office Okay the tires part isn t true but the rest is and the upshot is that I got to the office an hour late I ve got a full slate of stuff this morning and this afternoon I m doing a seminar There are two appeals and a motion that I absolutely positively have file today if it weren t for the last minute I d never get anything done and the only time I have to do that is first thing in the morning which I should get to doing instead of explaining to you why there s not going to be a post besides this one today But there will be one tomorrow in which I discuss race and gender in America and also provide penetrating insights on the Federal Reserve s announcement yesterday that it would keep its interest rate guidance intact See you there Permalink Print Search Search Recent Entries April 19 2016 What s Up in the 8th New sentencing cases and a really crazy drunk defendant April 18 2016 On the road again Time to pull out the travel mix CD One more radar lover gone April 14 2016 Money changes everything Cyndi Lauper was right especially when you re charged with a

    Original URL path: http://briefcase8.com/2014/09/not-a-good-start.html (2016-04-27)
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  • In the wake of Bonnell at The Briefcase by Russ Bensing
    deter the offender in order to protect the public from futures crimes Saying that sanctions aren t appropriate because of the seriousness of the conduct isn t the same as saying that the harm is so great that consecutive sentences are warranted and making findings to support a prison sentence isn t the same as making findings to support consecutive prison sentences The more interesting aspect of Brooks though is the concurring opinion which parses Bonnell and concludes that if the judge doesn t make the required findings the appellate court can modify the sentences so that they are concurrent in fact it suggests that the appellate court is required to do so I m not sure I buy into that more to the point I don t think the Supreme Court would but it s not without basis An appellate court can increase reduce or otherwise modify a sentence or may vacate the sentence and remand the matter for resentencing in two circumstances if it clearly and convincingly finds that the sentence is contrary to law or that the record doesn t support the trial court s findings Logically this would seem to require the appellate court to engage in a two step analysis The first would be to determine whether the trial judge made the required findings If she didn t then the sentence is contrary to law If the trial judge did then the appellate court determines whether the record clearly and convincingly shows that the findings aren t supported Stewart argues that Bonnell conflates the two but actually Bonnell never mentions the contrary to law prong it cites only the prong for whether the record supports the findings That s somewhat understandable in light of the facts of the case Bonnell was sentenced to eight years in prison for stealing 117 from several vending machines The Supreme Court decided that the judge hadn t made the finding regarding disproportionality which would make consecutive sentences contrary to law But you could also make a decent argument that sending someone to prison for eight years for what Bonnell did wasn t supported by the record that even if the judge had made the finding that consecutive sentences were not disproportionate to the seriousness of the offender s conduct or the danger he poses to the public that finding was wrong In fact the opinion hints of that But the trial court never addressed the proportionality of consecutive sentences to the seriousness of Bonnell s conduct and the danger he posed to the public which in this case involved an aggregate sentence of 8 years and 5 months in prison for taking 117 in change from vending machines The takeaway from all this is that if you re appealing from consecutive sentences don t concentrate solely on whether the judge made the required findings No the judge doesn t have to give reasons for her findings Bonnell deals a death blow to the idea that she s required to

    Original URL path: http://briefcase8.com/2014/09/i-was-interested-to-see.html (2016-04-27)
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  • What's Up in the 8th at The Briefcase by Russ Bensing
    The woman says she s not exactly in the mood for that to which Dobson lovingly responds you my bitch That s pretty scant support for a rape conviction but the State s argument was that the use of force could be inferred from the earlier beating the woman acquiesced because she was afraid of what would happen if she didn t The panel decides that this inference can t be made here The State s filed a motion for reconsideration arguing that it s up to the jury to draw inferences not the appellate court It s an argument they ve made recently in several 8th District decisions seeking review by the Supreme Court If the panel denies the motion for reconsideration which is likely figure this to be another one In Middletown v Flinchum the Ohio Supreme Court said that the police could make a warrantless entry into a home when in hot pursuit of a fleeing DUI misdemeanant Two weeks ago in Berea v Collins the 8th District said that the police can t make a warrantless entry into a home to arrest a fleeing DUI misdemeanant The distinction Here Finchum pulled into his driveway then went into the house before the police could put their lights or sirens on The panel accordingly decides that there was no pursuit hot or otherwise Two lessons here First Woody Allen s observation that 90 of life is just showing up applies to appeals the city didn t file a brief in the case Second the case serves as one more indication of why the 8th District is a great place for 4th Amendment cases In the 5th the panel would ve given the cops a medal The good news ends though with the decision in State v Taylor The police chased a man and a woman on a motorcycle and the man eventually ditched the cycle and took off running The police couldn t catch him but the woman who was pinned under the bike proved a font of information telling the police that the driver was Taylor and even provided his date of birth Come time for trial though the woman called as a witness by the State gave a different story she had gotten on the motorcycle with someone she didn t know to make her boyfriend jealous couldn t describe the driver was because he was wearing a helmet and made up the name Charles Taylor and apparently his exact birth date because she was scared The State impeached her with the statements she d given the police which were recorded by the dash cam But go back a second to that called as a witness by the State A party can t impeach its own witness unless it can show both surprise and affirmative damage The damage part is self evident but there s one strong indicator that the State was hardly surprised by this turn of events it had to obtain a bench warrant

    Original URL path: http://briefcase8.com/2014/09/whats-up-in-the-8th-89.html (2016-04-27)
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  • Case Update - OSC edition at The Briefcase by Russ Bensing
    That got him charged with third degree felony robbery using or threatening force while committing a theft offense The particular section of the robbery statute doesn t specify an intent element and RC 2901 21 B says that if no intent element is specified it defaults to recklessness unless the legislature clearly intended the offense to be one of strict liability The judge hadn t included any instruction on the mens rea required for robbery and the 2nd District reversed Tolliver s conviction for that reason And the Supreme Court reverses that deciding that because the robbery statute requires commission of a theft offense and since a theft offense requires a knowing or purposeful intent that gets imported into the robbery offense The opinion could be clearer In one place it says that robbery always includes the mens rea of the predicate theft offense which would seem to mean that a robbery including the force element which is what makes it a robbery requires a purposeful or knowing intent Two paragraphs before that it says that the force element doesn t require intent The three dissenters who would apply a reckless mens rea certainly read the majority opinion making the force element one of strict liability They re probably right A couple of interesting things First the judge didn t refuse an instruction the case went up on plain error review and could have easily been disposed of on that basis The court never discussed that Nor does it even mention State v Horner a decision from just four years ago holding that the serious physical harm element of aggravated robbery required no mens rea This is an example of defendants losing by winning Back in 2008 the court handed down a major victory to criminal defendants in State v Colon which held not only that recklessness was the intent element for aggravated robbery but that the failure to include that in the indictment and to instruct the jury on it at trial was structural error County prosecutors reacted in the same way AIPAC would to the US breaking off diplomatic relations with Israel and within a couple of months the court while denying a motion for reconsideration reconsidered and decided that Colon s holding was limited to the facts of the case whatever that meant It didn t mean much because prosecutors could no longer just employ the language of the statute in their indictments but had to figure out what mens rea element to include And so ultimately did the appeals courts with varying results Colon created such a mess that the court overruled it in Horner just two years later And the court s tried to run away so hard from Colon that it s created some pretty bad law on intent The court affirms a conviction and death sentence in State v Jackson In a two week period in June of 2009 Jeremiah Jackson committed six robberies in three counties ending with him shooting a laundromat

    Original URL path: http://briefcase8.com/2014/09/case-update---osc-edition.html (2016-04-27)
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  • On vacation at The Briefcase by Russ Bensing
    Dec 2007 Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec 2006 May Jun Jul Aug Sep Oct Nov Dec Legal Blogs Sentencing Law and Policy The Volokh Conspiracy CrimLaw Grits for Breakfast Concurring Opinions Simple Justice A Public Defender Defending People CrimProf Blog How Appealing Lowering the Bar Crime and Consequences Drug WarRant Snitching Blog Overlawyered Balkinization Legal Blog Watch SCOTUSblog Gamso For The Defense On vacation September 2 2014 by Russ Bensing Some of my fondest childhood memories were fishing with my father Yeah right I know a lot of people like it but it bored me out of my skull You ever see me with a fishing pole head down to probate court and get me a guardian because I ve clearly lost my mind I am on vacation though Well actually I m on vacation from here for a couple weeks I m going away for a long weekend It was supposed to be a long week but that didn t happen I ll be back here on the 15th See you then Permalink Print Search Search Recent Entries April 19 2016 What s Up in the 8th New sentencing cases and a really crazy drunk defendant April 18 2016 On the road again Time to pull out the travel mix CD One more radar lover gone April 14 2016 Money changes everything Cyndi Lauper was right especially when you re charged with a crime April 13 2016 Ruminations of an old lawyer Gray hair has its benefits April 12 2016 What s Up in the 8th Reversals of a denial of a motion to continue and a of a motion to withdraw a plea Plus a new and probably unintended look at the failure to comply statute April 11 2016 Case Update

    Original URL path: http://briefcase8.com/2014/09/on-vacation-1.html (2016-04-27)
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  • Self-incrimination and sentencing at The Briefcase by Russ Bensing
    says that he made the necessary findings and calls it a day Well not quite Hodges also complains that because he remained silent at the resentencing the judge found that showed a lack of remorse on his part and relied on that to impose consecutive sentences We all know that a defendant retains the right against self incrimination at sentencing The Supremes said as much fifteen years ago in Mitchell v US But as the Hodges panel points out it s a little more complicated In Mitchell the defendant had pled guilty to cocaine conspiracy reserving the right to contest at sentencing the drug amount attributable to her conduct At that hearing several of her co conspirators testified as to the amounts distributed by Mitchell She herself did not testify but her attorney argued that the only reliable evidence showed she distributed a total of two ounces The judge didn t buy it finding that she had sold more than 5 kilograms putting her over the mandatory minimum sentence of ten years The judge indicated that one of the things persuading him to credit the co defendants testimony was Mitchell not testifying to the contrary The Supreme Court reversed The normal rule in a criminal case is that no negative inference from the defendant s failure to testify is permitted We decline to adopt an exception for the sentencing phase of a criminal case with regard to factual determinations respecting the circumstances and details of the crime That last portion is emphasized for a reason Mitchell does not confer blanket protection for a defendant s silence at sentencing The Court noted that whether silence bears upon the determination of a lack of remorse or upon acceptance of responsibility is a separate question and expressed no view on it The view that Hodges expresses on that issue is muddled The opinion notes that Ohio courts have consistently held that a defendant s silence at sentencing may not be used against him in fashioning a sentence but then observes that lack of remorse is a sentencing factor Thus even where a defendant does not speak at sentencing the court s statement that the defendant demonstrated a lack of remorse and an unwillingness to take responsibility does not demonstrate that a court s sentencing decision is based upon the silence but shows only that the court was considering the statutory sentencing factors So that means that a defendant s silence at sentencing can be taken as an indication of lack of remorse Well maybe not Although Hodges didn t speak at his resentencing he did at his original sentencing claiming that the gun accidentally discharged a story that left the judge singularly unimpressed he found that Hodges lack of remorse is palpable At the resentencing the judge incorporated by reference what had happened at the earlier hearing Although the court could not hold Hodges silence at resentencing against him it was not required to pretend that Hodges had not previously spoken on the

    Original URL path: http://briefcase8.com/2014/10/self-incrimination-and-sentencing.html (2016-04-27)
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  • What's Up in the 8th at The Briefcase by Russ Bensing
    decision in State v Evans represented backtracking from its en banc decision in State v Nia which had required strict compliance with the findings requirement Well worry no more after last week Nia has about as much relevance as Plessy v Ferguson It begins with State v Spence where the court decides that the judge s statement it s clear to the Court that those injuries were so severe that a concurrent sentence is not warranted is equivalent to a finding that consecutive sentences are not disproportionate to the seriousness of the offender s conduct In that case the court cites to Evans and adds in a footnote Compare State v Nia State v Gray pounds the final nail into Nia s coffin the panel flatly stating that Bonnell put forward a less strict standard than the one this court adopted in Nia Equally unsettling is State v Wilson where the panel decides that the judge s statement that this is a sentence fashioned to punish the defendant for this horrible crime is close enough to consecutive sentences are necessary to protect the public from future crime and punish the offender That s not the unsettling part that comes with Wilson s argument that his sentence was disproportionate to that of his co defendants which the panel breezily dismisses by stating the trial court also noted that Wilson s total sentence was in line with the sentences his codefendants received Nothing more was required Appellate lawyers are familiar with de novo appellate review and review for abuse of discretion I suppose we now we must become familiar with the trial judge said it so it must be so standard of review The most interesting case and the subject of another 27 page opus is State v Marshall Way back in 1997 Marshall was convicted of aggravated murder and sentenced to death for the killing of a pizza shop owner but got a new trial In the first trial Haynes a longtime friend of Marshall testified that Marshall told him he d committed the robbery Haynes didn t show up for the second trial though Why not Because while the police had information as to when and where he would show up so that they could arrest him as a material witness the when was 1 00 AM and police department overtime rules didn t allow officers to be up that late The judge decided that didn t constitute a sufficient showing of unavailability and prohibited the State from using Haynes testimony from the first trial So the jury never got to hear what Haynes had to say Not quite turns out that someone snuck his written statement into the exhibits that went into the jury room A special investigator was appointed and his report which was summarized here strongly suggests that it was a prosecutor who did it Two other State witness statements that hadn t been admitted were found in the room The judge declared a mistrial and the

    Original URL path: http://briefcase8.com/2014/10/whats-up-in-the-8th-94.html (2016-04-27)
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  • Case Update at The Briefcase by Russ Bensing
    it s hard to get and State v Aguirre makes it harder Aguirre was convicted of theft and given three years of community control sanctions part of which was restitution to the victim and two insurance companies This was before the 2004 amendment which disallowed restitution to insurance companies She came off of community controls in 2005 and three years later filed her application for expungement By the same 5 2 vote the court holds that since she still owed 14 000 in restitution she hadn t completed her sentence and thus wasn t entitled to expungement Justice O Neill who wrote the majority opinion in Gilbert makes a good argument in dissent that restitution is a community control sanction which can be modified an argument which would be stronger if restitution could not also be ordered when a defendant is sent to prison I d probably get more worked up about this but the fact is that in this age of the Internet the idea that one can hide a previous criminal conviction is pretty much illusory anyway In the courts of appeals The 8th District s decision in State v Bailey provides a lengthy discourse on allied offenses Bailey and two accomplices entered a home robbed a couple at gunpoint beating one then tied them up and took their car keys and phones before leaving That resulted in convictions for aggravated burglary aggravated robbery felonious assault and kidnapping Which ones merge None of them The aggravated burglary was charged under the section for causing serious physical harm while aggravated robbery was charged under the section for having a deadly weapon The elements don t match up so they re not allied Unmentioned is the general case law holding that burglary and the other offenses don t merge because the burglary is complete upon entry and everything that takes place after that is a separate offense While the robbery and felonious assault which was charged under the serious physical harm section do have the elements in common the courts have held that where the harm caused is more than that necessary to accomplish the robbery the offenses are committed with a separate animus The court reaches the same conclusion for the kidnapping the taking of the keys and phones indicated an intent to prolong the restraint of the victims to facilitate flight after the robbery was completed and thus constituted separate animus Nice decision from the 9th District in State v Littell on a search issue Cops conducting aerial surveillance spotted marijuana plants in Littell s back yard and instead of getting a warrant one officer on the ground approached the front door while others went into the back and seized the plants The State argued that the police who went into the back were simply trying to make contact with Little and then spotted the plants in plain view The 9th was having none of it It appears to be the State s position that its officers knowing

    Original URL path: http://briefcase8.com/2014/10/case-update-89.html (2016-04-27)
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