FROM THE JUDGES DESK
Judge Langer’s Criminal Law Top Ten List
By Hon. Dennis J. Langer Montgomery Cty Common Pleas Court
ach year I have the pleasure of conducting an end-of-the-year criminal law update at the Dayton Bar Association. The seminar is a survey of major cases from the U.S. Supreme Court and the Ohio Supreme Court and Appellate Courts, as well as changes in criminal statutes. Here is my admittedly arbitrary Top 10 list for 2015:
. There’s a new test from the Ohio Supreme Court to determine whether offenses are “allied offenses of similar import” for the purpose of merger of sentences. Under State v. Ruff, 2015-Ohio995 (Mar. 25, 2015), the trial court must ask three questions: • Were the offenses dissimilar in import or significance? In other words, did each offense cause separate, identifiable harm? • Were they committed separately? • Were they committed with separate animus or motivation? A “yes” answer to any of these questions permits the judge to impose separate sentences for the separate offenses. A “no” answer to all three questions requires the sentences to be merged – with the prosecutor selecting the single offense for sentencing. Under this test of merger, the focus is on the defendant’s conduct, not the elements of the offenses. Thus, it’s possible that offenses with completely different elements may merge for purposes of sentencing. REMINDER: Generally, multiple firearm specifications attached to several felonies committed as part of the same act or transaction merge into a single firearm spec for purposes of sentencing. However, R.C. 2929.14(B) (1) (g) carves out an exception to this rule of merger. Under this statute, the two most serious firearm specs cannot merge if the defendant is convicted of, or pleads guilty to, more than two felonies as well as the attached the firearm specs, and one of the felonies is: • aggravated murder & attempted aggravated murder • murder & attempted murder • aggravated robbery • rape • felonious assault Furthermore, the trial court even has discretion not to merge all the remaining firearm specs. Thus, a single gun in an incident can result in the sentencing for multiple firearm specs. And keep in mind that the firearm specs carry mandatory prison terms, which must be served consecutively with each other, as well as consecutively with the prison sentences for the underlying felony offenses.
. Obviously, a false statement in an affidavit in support of a search warrant can result in the suppression of evidence. Now the Ohio Supreme Court in State v. Castagnola, 2015-Ohio-1565 (Apr. 28, 2015), has ruled that evidence may be suppressed as a result of a “hidden inference” in an affidavit – that is, an inference presented by the affiant as an empirical fact. This is impermissible, because it usurps the inference-drawing authority of the judge who is reviewing the search warrant affidavit. If the “hidden inference” is “significant” (that is, if it had a substantial bearing on the determination of probable cause) and the affiant acted “intentionally
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or with conscious indifference,” then the evidence is automatically suppressed. On the other hand, if the affiant acted “negligently,” then the misstatement is removed from the affidavit, any omitted underlying facts are added, and the affidavit is reassessed – and the evidence may or may not be suppressed.
. The Ohio Supreme Court repeatedly has ruled that Article I, Section 14 of the Ohio Constitution affords greater protection than the Fourth Amendment. It did so again in State v. Brown, 2015-Ohio-2438 ( June 23, 2015), holding: A traffic stop for a minor misdemeanor made outside a police officer’s statutory jurisdiction or authority violates the guarantee against unreasonable searches and seizures established by the Ohio Constitution. Evidence obtained from an ensuing search must be suppressed.
. It is well established that an arrest or search based upon an officer’s reasonable mistake of fact does not violate the Fourth Amendment. For instance, if an officer with probable cause to arrest a suspect mistakenly arrests an individual matching the suspect’s description, the arrest and search of the arrestee is lawful. Likewise, the U.S. Supreme Court in Heien v. North Carolina, 135 S.Ct. 530 (Dec.15, 2014), has ruled that a search and seizure based upon an officer’s objectively reasonable mistake of law does not violate the Fourth Amendment. The duty of the trial court in a suppression hearing is to determine whether there is an ambiguity in the statute that has not been clarified by an appellate court within the officer’s jurisdiction.
. An inoperable handgun – unless it’s used as a bludgeon or otherwise is used, possessed, or carried as a weapon - is not a “deadly weapon” for purposes of the CCW statute. In re J.T., Ohio Supreme Court, 2015-Ohio-3654 (September 10, 2015).
. At trial, when a peremptory challenge is invalidated under Batson, it’s within the trial court’s discretion to rule that the invalidated peremptory challenge is forfeited and cannot be re-exercised. Among the factors the trial judge may consider, the Second District ruled in State v. Moore, 2015-Ohio-1327(Montgomery County Apr. 3, 2015), are: • whether the challenged juror is available to be reseated • whether the litigant appears to be engaging in a pattern of discrimination • the number of peremptory challenges that remain to be exercised • whether challenges are exercised in the presence of the jury.
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