Ohio Criminal Appeals Lawyer Blog

Jason and Tara Durig have been charged in the death of their 8-month old son as you can read here. The story states that Jason Durig previously served time for child endangering.

A Cuyahoga County defendant will get another bite at the apple because someone failed to file the jury waiver she signed with the trial court and failed to make sure it was made part of the record. R.C. 2945.05 specifically states that the jury waiver must be filed and made part of the record, and the Ohio Supreme Court has stated that strict compliance with R.C. 2945.05 is required. State v. Pless, 1996-Ohio-102. So even though the record shows the defendant waived her right to a jury trial in this case, none was filed and the Eighth District Court of Appeals determined that the trial court lacked jurisdiction to try the defendant without a jury. Read the decision in State v. Butler, 2010-Ohio-3414, here.

Montgomery County Judge Michael T. Hall sentenced James Cundiff to 38 years in prison for his convictions for aggravated robbery and felonious assault after a jury trial. Read about the case here.

Zachary Marshall sentenced to 15 months in prison. According to the Dayton Daily News article you can read by clicking here, the former Miami University football player admitted to a probation violation and was sentenced to 15 months.

A statute of limitations provides a limit as to how long the State has to commence a criminal prosecution against a defendant. The Ohio Supreme Court has stated that the purpose of the SOL is "to discourage inefficient or dilatory law enforcement." In Ohio, R.C. 2901.13 states the limits on State prosecutions. For example, the State is barred from commencing a prosecution against a defendant for most felonies after six years. But what if the defendant just hides in Alaska for six years? R.C. 2901.13(G) states that the limitations period "shall not run during any time when the accused purposely avoids prosecution."

The Ohio Supreme Court just made life easier for the State (again). In a case in which an accused fled the jurisdiction to avoid prosecution for molesting his girlfriend's daughter, the OSC ruled that the statute of limitations was also "tolled" (did not run) on the prosecution of the accused for the molestation of her brother too, even though her brother did not report the abuse to anyone until after the statute of limitations had run.

The Ohio Supreme Court held that "R.C. 2901.13(G) tolls the statute of limitations for all offenses committed by an accused during the time when the accused purposely avoids prosecution for any offense." But read the well-reasoned dissent here. Or review the oral argument here.

Plea bargains have been reached in Ohio courts forever. And defendants have not been complaining. What if you were facing a felony of the second degree and the State was willing to let you plead to an amended charge which was a felony of the fifth degree? Would you take the deal? Maybe. There are several factors for you and your lawyer to consider. But in the case of State v. Rohrbaugh, the Third District Court of Appeals took it upon itself to reverse a case where the State amended a charge and allowed the defendant to plead to the amended charge. The Third District pointed out that the Ohio Constitution and Criminal Rule 7 both require an indictment in a felony case. And Rule 7(D) states you cannot amend the crime charged if a change is made to the name or identity of the crime. So when the Third District Court of Appeals saw that the State amended a charge to which the defendant pled - and no waiver of the defendant's right to an indictment was made - there was an "obvious defect" that required reversal. But the Ohio Supreme Court reversed the decision of the Court of Appeals and held that "a defendant may plead guilty to an indictment that was amended to change the name or identity of the charged crime when the defendant is represented by counsel, has bargained for the amendment, and is not prejudiced by the change." Read the Third District Court of Appeals decision here, or the Ohio Supreme Court decision here.

Montgomery County Judge Mary Katherine Huffman sentenced Shamar D. Davis to three years in prison for his conviction upon a plea of "no contest" to felonious assault. Read about it here.

A fifth degree felony (carrying a penalty of up to 12 months in prison and a $2500 fine) was just reduced to a fourth degree misdemeanor (carrying a penalty of up to 30 days in jail and a $250 fine) because I successfully argued on appeal that the State failed to prove an essential element of the offense of breaking and entering. The State was required to prove that the structure the defendant broke into was "unoccupied." The Second District Court of Appeals agreed with me that the State failed to meet their burden and instead imposed a conviction for criminal trespassing in violation of Revised Code Section 2911.21 (a fourth degree misdemeanor). Since the defendant was sentenced to the maximum 12 months on the B&E, his sentence will essentially be reduced to the maximum 30 days for the criminal trespass. Judge Fain points out that this is an "unsatisfactory result" and he urges in a concurring opinion that the General Assembly fix this problem in the law that allowed me to help this defendant on appeal. Read the decision by clicking here. If you need help with an appeal, contact me by clicking here.

Former Northeastern High School Social Studies teacher Anthony Parker was sentenced today in Springfield to fifteen years in prison pursuant to his conviction on charges related to his "inappropriate relationship" with a female student. Read about it here.

When the indictment does not charge a criminal offense, the trial court has no subject matter jurisdiction and your conviction is void. State v. Chessman, 2010-Ohio-3239, at ¶ 7. Chessman was accused (and convicted) of failing to notify the proper authorities of a change in his telephone numbers pursuant to R.C. 2950.05(D). But the penalty section of the Sex Offender Registration and Notification Act (SORNA) provides no penalty for such a violation. The Second District Court of Appeals stated per R.C. 2901.03(A) that, "where there is no penalty, there is no crime." Read the decision in which the Second District reversed and vacated Chessman's conviction by clicking here.

Trial counsel was ineffective when he failed to object as the trial judge sentenced the defendant to separate prison terms for rape and gross sexual imposition, and for rape and two counts of attempted rape. The Second District Court of Appeals determined that a count or rape should have been merged with a count of gross sexual imposition because the act constituting gross sexual imposition was not committed with a separate animus but was committed during the act of rape. The Appellate Court also determined that two counts of attempted rape should have been merged with the rape count because there was no intervening acts between the attempted rapes and rape and there was no specific risk of injury from each attempt at rape. The case was remanded for re-sentencing. Another interesting thing about this case is that the Court of Appeals determined that trial counsel should have filed a motion to suppress illegally obtained statements to police, but it did not matter anyway. Read the Second District Court of Appeals decision here.

"Affirmed and Remanded." That is something you don't see everyday. Usually you see "Affirmed" or "Reversed and Remanded" when you appeal a criminal conviction or sentence. But in this case the Eighth District Court of Appeals overruled the defendant/appellant's arguments but noticed an error the defendant's lawyer did not notice. At the sentencing hearing, the trial judge sentenced the defendant to ten years in prison. But the sentencing entry stated that the defendant was sentenced to eleven years in prison. Certainly the defendant can be grateful that the Court of Appeals caught the error. Read the decision by clicking here.

Choosing a lawyer to appeal your conviction or sentence is hard. The yellow pages are full of lawyers. How do you know which one to pick? You could ask a friend who they used on their criminal appeal, but how many of us have friends who had a good lawyer on their criminal appeal? How about a lawyer on television or a billboard? Those are things that can be bought too. Is a lawyer better because they pay more on advertising? Not necessarily so you better be cautious.

So what do you do about hiring a lawyer for your appeal? If you don't have a trusted friend who knows that a certain criminal appeals lawyer will do a good job on the appeal, you will have to do your best with what you have - your common sense. Maybe you should ask the following questions.

1. Does the lawyer limit their practice to certain areas of the law or is the lawyer trying to wear too many hats (and trying to keep up on developments in too many areas)? I have limited my practice to criminal defense appeals since 2003.

2. Is there any way for you to tell that the lawyer is current in the area of criminal law or are you just hoping they are? I keep up on the Federal and Ohio cases every week and I blog about the cases I think you would find most interesting.

3. Who is going to work on your appeal? Will it be the lawyer you meet or will it be staff hired by this person you will never see? Even worse, will the lawyer you meet contract the work out to another lawyer or someone else? I have often heard how a family wanted to hire someone they perceived to be some "Perry Mason" type figure to handle the criminal defense at trial only to find that all they saw during the trial process were Associates hired by this "top dog." On appeal it would be even easier for this Perry Mason figure to have all kinds of law students, paralegals, other lawyers down on their luck or whatever do the work you hired "Perry Mason" to do. How would you ever know? I do all the work -- from start to finish -- on every criminal defense appeal I handle.

4. Watch out for promises. You know when you will find out you hired the wrong lawyer? Probably when it is too late. I have heard stories of how lawyers have promised the moon to potential clients. The defendant and his family are surprised at the end when it all falls flat and the lawyer goes on to the next case, but then what? The lawyer already has his money. "But you promised you would take it all the way to the Supreme Court" or "You promised we would win" or "You promised he would be home for the holidays." Yeah, right. Watch out for the lawyer making promises that sound too good to be true (even though I know you want to believe them at the time). And how do you think one lawyer will get the case instead of another? Is it who makes you more or better promises? Take any promises you do not get in writing with a grain of salt. I will not make any promises and I will be honest about your prospects.

5. Is the lawyer you had at trial pushing a certain lawyer on you for appeal? This may be okay, but it could also be a bad thing. On appeal I try to find ways in which the trial lawyer failed to provide the effective assistance of counsel. Many trial lawyers do not enjoy being accused of being ineffective. If a trial lawyer is pushing a certain lawyer onto you to do the appeal, ask yourself why they are doing this. Are they buddies from law school? Associates? Golf partners? You may be better off choosing a lawyer who only has your interest in mind when examining the record for ineffective assistance of trial counsel.

6. Does the lawyer have a winning track record to show they know how to win an appeal or can't they show you cases they have won on appeal? How many criminal defense appeals have they done? Make sure you get facts from the lawyer and not just claims or promises. Many of my wins are listed on this blog (click on MY WINS ON APPEAL in the upper right corner). Click here to see how to check a lawyer's record on appeal.

7. What research system will the lawyer use to do the research for your appeal? Will it be a "free" or low-cost system or a premium research system like Westlaw? I have used Westlaw since 2003 and I have access to all the law I would need to handle your appeal.

8. What kind of support network does the lawyer have? As a long-time member of the Ohio Association Of Criminal Defense Lawyers, I have access to the Listserv which "joins over 500 members from around the state" who bounce ideas off each other and keep up on current developments in the field of criminal defense in Ohio. I am also a long-time member of the National Association of Criminal Defense Lawyers which also has a listserv.

Choosing the right professional is always a challenge and choosing a lawyer for your appeal might be the hardest of all. But choose wisely because you may not know how good (or bad) your choice was until it is too late. By the way, if you went with someone else and regret it, check out the information I posted under PRACTICE AREAS about applications to reopen appeals.

Good luck!

It is important for you to know how to check a lawyer's record on appeal before you hire him or her. How many appeals have they handled? How many have they won? How many have they lost? From looking at the opinions of the Court of Appeals, does it look like the lawyer put a lot of work into trying to win the appeals they lost?

You can search for Court of Appeals decisions by a lawyer's name or Supreme Court Number (you should try both ways to make sure you do not miss anything). Let's use Appeal Lawyer Robert Alan Brenner as an example. I practice in the Second District. When you go to the web site (for which there is a link at the end of this paragraph), pick "Second District Court of Appeals" under "Source," pick "Anytime" under "Decided," enter "Brenner" in the "Full text" search area, make sure "Topics/Issues" is checked and click "Submit." You can see every case I handled in the Second District Court of Appeals that made it to a decision. Some of those are not my cases since "Brenner" will pull up some miss-hits, but you get the idea. Check each case by clicking on its link to confirm you found the attorney you were looking for. Here is the link to the web site.

Make sure you check a lawyer's history when you are considering hiring them. Or you could just trust what the lawyer tells you. You know, how great they are, how they can handle your situation, how much experience they have with your kind of case, etc. But if I were you, I'd run a search.

And do not forget that you do not know who is actually doing the appellate work in these cases. Just because a particular lawyer's name is on a decision does not mean they reviewed the transcript and the rest of the record, did the research, or even wrote the brief. Word has it that a popular local firm uses a lawyer outside of Ohio for their appellate work. As I have said elsewhere on this site, I do all the appellate work myself on all the cases I handle. And since I am located in this area, I can go to the clerk's office myself, view the evidence myself, and even visit important landmarks related to the case. Click here for the rest of my tips on picking a lawyer for your criminal appeal.

Trial judges should instruct the jury on a lesser-included offense upon the request of a defendant, "if the evidence is such that a jury could reasonably find the defendant not guilty of the charged offense, but could convict the defendant of the lesser included offense." The Second District Court of Appeals reversed a conviction for aggravated burglary because the trial judge refused to instruct the jury on the lesser included offense of criminal trespass where the defendant testified and his version of events supported an acquittal on aggravated burglary and a conviction of trespass, and it was up to the jury to decide who to believe. Read the decision in State v. Lawson, 2010-Ohio-3114, by clicking here.