Cleveland Law Library Weblog

Press Release on Major Sentencing Decisions

To view the press release summarizing the Eighth District Court of Appeals en banc decisions on the constitutionality of Ohio's sentencing statutes, see Download _0601092942_001.pdf .

En Banc Decisions: Ohio's Sentencing Scheme Constitutional

The Eighth District Court of Appeals, sitting en banc, found that Ohio's hybrid sentencing scheme did not implicate the Sixth Amendment as construed in Blakely v. Washington (2004), 124 S.Ct. 2531 and U.S. v. Booker (2005), 125 S.Ct. 738.   The findings required to impose a maximum sentence or a nonminimum sentence on a first offender are subjective in nature and not amenable to determination by a trier of fact or admissions in a plea.  Additionally, the sentencing factors do not allow a sentence greater than the statutory range.     State v. Atkins-Boozer 2005-Ohio-2666, May 31, 2005.  State v. Lett 2005-Ohio-2665, May 31, 2005. 

Governor Signs Domestic Violence Bail Legislation

H.B. 29, known as "Amy's Law", was signed by Governor Taft on May 25, 2005.  The law requires the court to consider certain factors before setting bail for a person accused of domestic violence.  See Domestic Violence Bill Signed by Taft by David Eck, Cincinnati Enquirer, May 26, 2005. 

Summary of Post-Booker Sixth Circuit Decisions

For a useful discussion of sentencing issues after U.S. v. Booker (2005), 125 S.Ct. 738, see Sixth Circuit Blog, May 17, 2005, "Booker Follow-Up in the Sixth Circuit".   The Sixth Circuit Blog is written by federal defenders of the Sixth Circuit. 

Administrative Health Warrant Can Not Justify Search

The Eighth District Court of Appeals held that the trial court should have suppressed evidence of operating a bottle club and public gaming at a gentleman's club.  City of Cleveland v. Cornell , 2005-Ohio-2174, May 5, 2005.   The court held that a health inspection warrant can not be used as a pretext to gather criminal evidence.   

Ohio Senate Passes Identity Theft Legislation

Both the Ohio House and Senate passed H.B. 48, which helps victims of identity theft.  The bill creates an identity fraud passport, which victims can present to law enforcement agencies and creditors.  Also, when law enforcement uses a person's identifying information for a confidential informant, they must now obtain permission to use the information.  The penalties are increased for identity fraud perpetrated against an elderly or disabled person.

Police Officer's Testimony Insufficient to Identify Heroin

The Eighth District Court of Appeals reversed defendant's convictions for possession and trafficking of heroin.  The police officers' testimony that residue on a spoon and wax paper was probably heroin was not sufficient to prove the substance was actually heroin.  A laboratory test was required.  Case law holding that an experienced officer may identify a substance as marijuana did not apply.   State v. Titsworth, 2005-Ohio-1962, April 28, 2005. 

New Study Says Inmates May Suffer During Lethal Injection

A new study shows that many inmates who received lethal injections may have had inadequate anesthesia.   Thus, the inmates remained conscious and experienced pain during the lethal injection.  See Study: Inmates Suffer During Lethal Injections by Eric Berger, The Houston Chronicle, April 14, 2005. 

Statute Allowing Eviction of Sex Offenders Challenged

Ken Kozlowski reports as follows on his Ohio Law Blog:  The ACLU and the Prison Reform Advocacy Center have filed a federal lawsuit challenging the provisions of SB 5, 125th General Assembly, which allow eviction of sex offenders living near schools.  To read the article see:  Ohio Law Blog.

Ohio General Assembly Attempts to Fix Domestic Violence Statute

126th General Assembly H.B. 161 proposes to remedy the domestic violence statute, which was recently found unconstitutional.  The bill changes the definition of a "family or household member," deleting the "person living as a spouse" language, and inserting the language, "Any person who is residing with the offender."

To see the bill, go to:  Ohio General Assembly