Ohio

What’s Up in the 8th

If you’re a judge, here’s the trick about dealing with a defendant who’s not a citizen:  just read the language contained in RC 2943.031(A).  If you do, end of story.  If you don’t, well… that’s when we get into “substantial compliance.”

Back in 1997, Ingo Schlaf pled guilty to one count of fifth-degree felony drug possession.  Although the judge advised him of the possibility of deportation, it didn’t include warnings about possible denial of admission or naturalization.  That was enough for the 8th District, in State v. Schlaf, to affirm the granting of a motion to vacate the plea filed ten years later.  I’ve talked in the past of the necessity of picking your battles in an appellate strategy, and the prosecutor’s office picked about the worst possible case to appeal on this issue:  Schlaf had been in the country since 1960, and had even fought as a US soldier in the Vietnam War. 

The state didn’t fare any better in State v. Jenkins, where the court vacated a plea because the trial court had failed to advise the defendant of post-release controls.  The state admitted that this was error under State v. Sarkozy, which I discussed here, but argued that the court should have remanded the case back to the trial court to determine whether the defendant had been prejudiced, as the dissenters in Sarkozy had urged.  Yes, that’s right; the state argued that the court should follow the dissenting opinion of a Supreme Court case.  Hard to understand why the 8th didn’t buy that argument.

Except for those cases and State v. James, where the court held that a 4-year delay in imposing a sentence was too much, especially after the defendant had served other sentences which were supposed to run concurrent to that one, those were the highlights for defendants in the 8th last week, though.  In State v. White, the defendant was charged with several count of felonious assault and shooting into a habitation, and a couple of counts of having a weapon under disability.  He tried the latter to the bench, and the other charges to the jury.  The jury found him not guilty, but the trial judge didn’t, and gave him a ten-year sentence.  Too bad, says the 8th; that’s not an inconsistent verdict.  In State v. Willis, the court reiterates that a gun need not be completely invisible to be concealed; if the police open a car door and see the gun at the defendant’s feet, that’s enough. 

If you’re into dogs, condominium associations, or condominium rules about owners having dogs, you’ll want to read Courtyards of Crystal Lake Homeowners Ass’n v. Bradesca.  If not, not. 

Full post as published by The Briefcase on December 02, 2008 (boomark / email).