 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
PANDERING OBSCENITY: UNAFFECTED BY LAWRENCE V. TEXAS (2003), 539 U.S. 558. State v. Shawn Jenkins, No. C-040111 (1st Dist. Ct. App., Hamilton Co. 12-30-04). Shawn Jenkins owned a video retail store, at which he sold several sexually explicit videotapes to undercover detectives. Finding one of the videotapes to be obscene, the Hamilton County Grand Jury indicted Jenkins for one count of pandering obscenity, R.C. 2907.32(A)(2), a fifth degree felony. Jenkins was convicted and he appealed. Appellant argued that the case of Lawrence v. Texas, supra, in which the United States Supreme Court held statutes proscribing sodomy in private among same-sex consenting adults unconstitutional, rendered unconstitutional all laws regulating sexual morality. He based his argument on Justice Scalia’s dissent in Lawrence v. Texas, supra. The Hamilton County Court of Appeals described Justice Scalia’s opinion as follows: "The Justice decried the majority’s holding as tantamount to a conclusion that the state can no longer assert a legitimate interest in passing any law, including those proscribing prostitution, incest, adultery, child pornography, and obscenity, that promotes 'majoritarian sexual morality.'" Remarking that Justice Scalia was entitled to his opinion about the effect of the majority opinion, the Hamilton County Court of Appeals disagreed that Lawrence’s holding is so broad. The grounds for the Lawrence decision, the Hamilton County Court of Appeals said, was an "emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters relating to sex." The Hamilton County Court of Appeals saw no "emerging awareness" that the constitution protected selling obscenity, or any other conduct that Justice Scalia feared would now be constitutionally protected. The court affirmed the conviction. COURT’S GRANTING DEFENDANT’S MOTION TO WITHDRAW GUILTY PLEA REVERSED, WHEN. State v. Rodriquez, No. 84161 (8th Dist. Ct. Apps., Cuyahoga Co. 11-10-04), 2004 Ohio 6010. The State appealed the trial court’s granting the defendant’s motion to withdraw his guilty plea. Confronted with overwhelming evidence, including DNA results, that David Rodriguez raped a seven-year-old girl, he entered guilty pleas to rape, kidnapping, and aggravated burglary. His conviction was reversed and remanded for re-sentencing but otherwise was affirmed. On remand, he received the same sentence, which he did not appeal. Almost two years after his guilty plea, he filed a motion to withdraw the plea, asserting ineffective assistance of counsel. He claimed that the DNA report contained exculpatory information that, had he known about it, would have caused him to insist upon a trial. At the hearing on the motion, all three of the lawyers who had represented him during trial testified that he could have viewed the report. The trial court granted the defendant’s motion to withdraw his plea, "because he was represented by three attorneys during the course of his case and because he was sentenced to life in prison. Further, the trial court stated that the attorneys who represented Appellee during his trial failed to apprise him of the evidence against him at the time he was considering his plea." The appellate court responded politely, "In our review of the record, that does not appear to be the case." Moreover, the appellate court observed, Appellee failed to show that withdrawing his plea was necessary to avoid a manifest miscarriage of justice. The court described the trial court’s analysis of the evidence presented at the hearing as "inaccurate." The court reversed and reinstated the defendant’s conviction. COURT’S GRANTING DEFENDANT’S PETITION FOR POST CONVICTION RELIEF REVERSED, WHEN; FINDINGS OF FACT AND CONCLUSIONS OF LAW REQUIRED WHEN PETITION GRANTED. State v. Bradley, No. 84204 (8th Dist. Ct. of Apps., Cuyahoga Co., 11-4-04) , 2004 Ohio 5871. The state sought and received leave to appeal the trial court’s granting Joseph Bradley’s post conviction petition. Bradley had been convicted of aggravated burglary, kidnapping, aggravated robbery, and vandalism, each with a firearm specification. While his direct appeal was pending, he filed a post conviction petition claiming ineffective assistance of counsel, because his defense attorney and the prosecutor shared office space. (Presumably this was a private arrangement as Cuyahoga is a big county, but the opinion fails to explain). The trial court granted the petition and ordered a new trial because, the court said, "failing to disclose the office-sharing created the appearance of impropriety." On appeal, the Cuyahoga appellate court reminded the trial court that a defendant seeking post conviction relief must prove prejudice. The appearance of prejudice is insufficient. Nothing at the hearing showed that the defendant suffered any prejudice from his counsel’s sharing space with the prosecutor. The court also rejected the defendant’s contention that the state had failed to file a timely motion for leave to appeal. The court granted the petition on March 19, 2003 but failed to file findings of fact and conclusions of law until January 14, 2004. The defendant claimed that findings of fact and conclusions of law are required only when a court denies a petition, and, therefore, the state should have moved for leave to appeal within thirty days of March 19, 2003. The appellate court held that R.C. 2953.21 requires findings of fact and conclusions of law whether the court grants or denies the petition. The court reversed and reinstated appellee’s convictions. PAROLE VIOLATION AFTER AMENDMENT TO R.C. 2921.34 IS ESCAPE, REGARDLESS OF DATE OF ORIGINAL OFFENSE. State v. Duckworth, No. 84221, (8th Dist. Ct. of Apps., Cuyahoga Co. 11-4-04) 2004 Ohio 5874. Curtis Duckworth had been imprisoned for an unspecified crime on July 1, 1996. Having been placed on parole, he avoided his parole officer and was declared a parole violator and indicted for escape. Relying on the eighth district appellate opinion in State v. Thompson, No. 78919, 2002 Ohio 6478, in which the appellate court held it violated the ex post facto clause to apply the amendment to the escape statute of March 17, 1998 to persons who committed crimes before that date, the trial court dismissed the indictment and the state appealed. Unfortunately for Mr. Duckworth but fortunately for the rest of us, the Ohio Supreme Court, while the state’s appeal was pending, reversed the decision in State v. Thompson. In State v. Thompson (2004), 102 Ohio St.3d 287, the Ohio Supreme Court held: "A parolee who fails to report to his parole officer after March 17, 1998, may be prosecuted for escape under R.C. 2921.34, regardless of when his or her underlying crime was committed." The Cuyahoga County Court of Appeals reversed and remanded the case for trial. DEFENDANT UNENTITLED TO JAIL-TIME-CREDIT ON THREE-YEAR-TERM FOR FIREARM SPECIFICATION. State v. Furrie, No. 04-MA-23, 2004 Ohio 7068, (7th Dist. Ct. Apps., Mahoning County, 12-10-04). The State appealed from the sentence imposed on Brent Furrie. Furrie’s having been convicted of attempted felonious assault, attempted improper discharge of a firearm at or into a habitation, and firearm specifications, the court imposed sentence of four years on each count, to be served consecutively, and three years on the merged firearm specifications. The court ordered that Furrie be granted 261 days jail-time-credit, including 105 days that the court ordered applied to the three-year-term on the firearm specification. (The opinion omits explanation of the court’s calculations). The state appealed and the Mahoning County Court of Appeals reversed. Although the defendant failed to file a brief, the court pointed out Section 2929.01(GG), the definition of "stated prison term," which the court said might suggest that jail-time-credit could apply to the three-year-mandatory term. However, the court reluctantly followed the language of R.C. 2929.14(D)(1)(b). That section says in part that a sentence for a firearm specification "shall not be reduced pursuant to section 2929.10, section 2967.193, or any other provision of Chapter 2967 or Chapter 5120 of the Revised Code." The appellate court said the following: "We are tempted to distinguish jail time credit from the other forms of sentence reduction listed in the statute and conclude that credit for time served is simply that - credit. This reading of the statute seems to make more practical sense. However, since the language in the statute explicitly states that no provision in Chapter 2967 of the Revised Code shall be applied to the mandatory prison term, we have no choice but to accept the arguments of the prosecution and modify the journal entry to show that all jail time credit will be applied to the non-mandatory portion of the prison sentence." The court modified the sentence to show that the time served prior to conviction applied to the attempted felonious assault conviction.
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