FC: Ohio conviction for fictional journal overturned

[Declan McCullagh <declan () well com>]

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Date: Mon, 21 Jul 2003 03:04:42 -0400
To: declan () well com, politech () politechbot com
From: "Robert L. Ellis" <rellis () internet-attorneys com>
Subject: Ohio conviction for fictional journal overturned

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http://www.politechbot.com/p-02223.html
http://www.politechbot.com/p-02326.html
http://www.politechbot.com/p-02468.html
http://www.politechbot.com/p-02223.html

Declan:

On Thursday, the 10th Ohio District Court of Appeals here in Columbus threw 
out the guilty plea of Brian Dalton, who had been imprisoned a second time 
for "pandering obscenity involving a minor."  Dalton's first conviction was 
not a source of controversy:  He had pleaded guilty to five counts of 
"pandering obscenity to a minor" and five counts of the slightly different 
"pandering sexually-oriented material involving a minor."  After serving 
about four months of his 18-month prison sentence, Dalton was released on 
probation.  He was arrested for violating his probation by not showing up 
for his sex offender treatment program.

The controversy arose after Dalton was back in custody for probation 
violation.  A probation officer (acting on a tip from Dalton's mother) went 
to Dalton's home and found a 14-page handwritten journal involving 
fictitious accounts of child molestation and torture.  Dalton was charged 
yet again with "pandering obscenity involving a minor" based on his journal 
writings.  Dalton pleaded guilty, but after realizing that this time he was 
being convicted on the basis of a fictitious private journal, he tried to 
withdraw the plea to challenge the constitutionality of his 
conviction.  The trial judge refused to allow him to do so.  ACLU attorneys 
intervened and asked the court to reconsider, which the court also refused 
to do.  The ACLU then helped Dalton appeal.  Although the ACLU had argued 
for dismissal primarily on First Amendment grounds and secondarily on 
procedural grounds, the appeals court based its decision solely on 
procedural grounds, namely that Dalton's guilty plea was invalid due to 
ineffective assistance of counsel.

http://www.sconet.state.oh.us/rod/documents/10/2003/2003-ohio-3813.doc

- Bob Ellis





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