Exclusionary rule not applicable to violation of knock-and-announce statute

So says the Supreme Court in State v. Bembry.

The result may not be surprising, given that the US Supreme Court held similarly in 2006's Hudson v. Michigan, and I personally am convinced that the rationale of Hudson (which was adopted by the Court in Bembry) was correct, but I also am sympathetic to those who might view this as a missed opportunity to provide greater protection to Ohio's citizens through new federalism.

Cert. denied in State v. Brandon Moore

In December I wrote about State v. Brandon Moore, in which the Ohio Supreme Court held that a juvenile sentence for a non-homicide offense that exceeds the defendant's life expectancy violates the Eighth Amendment. It seems that roughly half the states that have confronted this question have found a constitutional violation, and half have not. (There are several other similar cases floating around out there.) One would think that the US Supreme Court will have to weigh in eventually.

But it will not weigh in on Moore. Today the court denied the state's cert. petition.

Four summary reversals and one summary affirmance

Yesterday I noted two cases summarily affirmed on the authority of Aalim II. Today we have a summary reversals in State v. Stevens, State v. Lonero, State v. Schroeder, and State v. Kepler, and a summary affirmance in State v. Moore, all on the authority of State v. Grimes. The Court in Grimes explained the requirements for validly imposing post-release control as part of a sentence.

As with the Aalim II dispositions, these five cases were decided some four months after the decision on which they were based.

Court decides two cases held for Aalim II

Earlier I noted that the Court had accepted some cases and held for the decision on the motion for reconsideration in State v. Aalim. Aalim II was decided in May, and I wrote at the time that I expected the held cases to be affirmed. It took four months, but today the Court affirmed State v. Belton and State v. Lee on the authority of Aalim II.

A milestone

Today marks the first anniversary of the Ohio Appellate Counsel blog. I've written more than 80 posts discussing more than 50 cases. I've spent more time covering the Ohio Supreme Court than I expected to, and less time covering the district courts of appeals than I expected to. Will that shift in Year Two? I hope so; stick with me to find out.

State v. Blair dismissed as moot

Today the court dismissed State v. Blair, which was noted as a newly accepted case in this blog post from May. The issue in Blair related to record-sealing, formerly known as "expungement"; an applicant is not eligible for sealing if she has a "pending criminal matter" at the time of the application. Blair's application was denied because she was on community control for a different offense at the time she applied. The question presented to the Court was whether community control constituted a "pending criminal matter." (The trial court and the First District had held that the answer was yes.) The State moved to dismiss the case as moot, because Blair's community control period was terminated earlier this year, and the Court agreed.

The State preemptively argued that the case was not capable of repetition yet evading review, because while Blair's community control was relatively short (one year), Ohio law authorizes community control period of up to five years, so the issue was bound to be raised eventually in another case. We'll keep our eyes open for that one.

New certified conflicts

I overlooked three new certified conflict cases in last week's case announcements.

Supreme Court case announcements, 7/26/17

Four new accepted cases today. Interestingly, all four cases have noted dissents regarding whether to accept the case or which propositions of law to hear. Three of the four are from the Eighth District. (Update: and certified conflicts, too.)

Follow-up: Fisher v. Doe

In December I wrote that Tom Haren and I had filed an amicus brief in the Ohio Supreme Court on behalf of our client Alexandria Goddard. We asked the Court, in Fisher v. Doe, to adopt the Dendrite International standard for cases in which a subpoena seeks to unmask anonymous internet speech.

Today the Court declined to accept the case by a 4-2 margin. Justices French and O'Neill dissented. Justice Fischer, who was on the First District panel that decided the case in October, did not participate.

We are disappointed, obviously. The First Amendment's protection extends as equally to anonymous and pseudonymous speech as it does to speech from identified sources, and this is no less true for online speech than it is for speech in newspapers, pamphlets, or any other media. We will continue to keep our eyes open for candidates to place the Dendrite issue before the Ohio Supreme Court and courts of appeals. If you are aware of any, please don't hesitate to contact me.

Supreme Court case announcement, 7/5/17

Today the Court announced that it has accepted discretionary appeals in two criminal cases.

Supreme Court case announcements, 6/21/17

Just two new grants today--one of which we've discussed before.

On orders, final orders, and judgments

Perhaps no issue more consistently perplexes litigants (and sometimes, it must be said, judges) than whether a particular order is merely an order, a "final order," or a "judgment." The distinction matters a great deal, and in this case it (for now, at least) cost the plaintiff a shot at almost 8 million bucks.

Potential conflict in arbitration case

The Ninth District has just released a decision in Kelsey v. Carrington Homes, Inc., in which it held that a trial court must conduct an evidentiary hearing before compelling the parties to arbitrate a dispute.

This holding appears to conflict with that of at least one other appellate district, and may be a candidate for review by the Supreme Court as a certified conflict.

First District roundup

Last week the First District issued two decisions worth mentioning--one civil and one criminal.

Supreme Court case announcements, 5/31/17

The Court has accepted two new cases.

Justice DeWine's concurrence in Aalim II

Yesterday I noted Justice DeWine's concurrence in Aalim II, and promised to write a bit more. And so--as I see Justice DeWine jog down the street past my office window--here is that post.

The majority opinion in Aalim II is a rejection of a due-process challenge to Ohio's statutory scheme providing for mandatory bindover of juveniles to common pleas court if certain factors are met.  Justice DeWine agrees with the conclusion that the scheme is in fact constitutional, but writes separately to emphasize his belief that the Court has conflated procedural and substantive due process standards.

Stick with me--this is more interesting than you might think.

State v. Roberts - death sentence affirmed on third appeal

Today the Court announced its decision in State v. Roberts, a death penalty appeal that had made two prior trips to the Supreme Court. In the first appeal, the Court vacated the death sentence because the trial judge had engaged in improper ex parte communications with the prosecutor, and had allowed the prosecutor to assist in drafting the sentencing opinion. In the second appeal, the Court vacated the death sentence because the trial court had (apparently) failed to consider the defendant's allocution.

This time, the Court affirms. Justice O'Neill concurred in the judgment affirming the conviction, but dissented as to the imposition of the death penalty (as he now always does). Chief Justice O'Connor concurred in the judgment only.

This blog has previously covered the case of Roberts's co-defendant, Nathaniel Jackson, whose conviction and sentence were affirmed last summer.

Court reverses itself in State v. Aalim

Last week the Court granted a motion to reconsider its December 2016 decision in State v. Aalim, and reversed its prior holding.

Double jeopardy clause bars ethnic intimidation charge

On Wednesday the Supreme Court issued its decision in State v. Mutter, an appeal from the Fourth District concerning whether a prior no contest plea and sentence for aggravated menacing precluded a later indictment for ethnic intimidation. The Court holds that it does.

Service of process abroad

In December I wrote about the First District's decision in Richardson v. Clinical Computing PLC, in which the court held that a treaty (the "Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters") permitted service of a complaint and summons by regular mail in the United Kingdom. I also noted that there was a split of authority on the question.

Today the US Supreme Court resolved that split, holding in Water Splash v. Menon that the treaty does indeed permit service of process through regular mail.

A tip of the cap is due to former First District Judge Peter Stautberg, who nailed the analysis in his decision.