Ohio Criminal Appeals Lawyer Blog

A murder warrant was issued for Dion Pinson this past Monday for the murder of Demetrius Frazier last January. Today Dion Pinson turned himself in. News stories you can read here or here say that the shooting took place during an attempted robbery.

In a 4 to 3 vote (which is often the score in criminal appeals decided by the Ohio Supreme Court lately), the Ohio Supreme Court ruled that "[t]he warrantless search of data within a cell phone seized incident to a lawful arrest is prohibited by the Fourth Amendment when the search is unnecessary for the safety of law-enforcement officers and there are no exigent circumstances."

Read the decision in the case of State v. Antwaun Smith, 2009-Ohio-6426, here and watch the oral argument 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).

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!

Montgomery County Common Pleas Judge Frances E. McGee sentenced DaJuan M. Bell to 10 years in prison for because Bell shot and killed Kantron Gipson on or about July 11, 2009, according to the indictment filed October 2, 2009. Read the Dayton Daily News story here.

Montgomery County Common Pleas Judge Michael Tucker sentenced Gregory Walz to an eight year prison term for his pleas of guilty to felonious assault on a police officer, vandalism, and failure to comply with an order of a police officer. Walz pleaded guilty back on October 23, 2009. The victim was Dayton Detective Jamie Bullens and Walz apparently tried to drive away in his car when he seriously injured the detective. Gregory Walz got a different lawyer and filed a pre-sentence motion to withdraw his pleas of guilty on November 5, 2009, claiming that his first lawyer failed to fully inform him about the ramifications of his plea. Such a motion is made pursuant to Criminal Rule 32.1. Judge Tucker denied Walz's request and sentenced him to eight years in prison. Check out the story by clicking here or here.

Today the Second District Court of Appeals reversed the two year prison sentence imposed by one trial judge and remanded the case for re-sentencing by a different trial judge. The prosecutor failed to live up to his side of the plea agreement because, at the plea hearing, the prosecutor agreed to recommend community control with inpatient treatment. But when it came time for sentencing, the prosecutor aggressively cross examined a doctor who testified that the defendant needed treatment instead of prison and then the prosecutor failed to recommend inpatient treatment as he promised he would. The Court of Appeals found the defendant's trial counsel failed to provide the effective assistance of counsel when he failed to object to the prosecutor's conduct and thereby breached his duty to his client as you can read by clicking here.

Today the Ohio Supreme Court decided not to hear an appeal by the Montgomery County Prosecutor's Office. Darnell Jones had been convicted of possession of between 100 and 500 grams of cocaine and he was sentenced by Judge A. J. Wagner to 4 years in prison and about $3,500.00 in mandatory fines. He pleaded "no contest" after his motion to suppress had been denied by the trial court.

On appeal to the Second District Court of Appeals, Jones had his conviction and sentence reversed and the case was remanded to the trial court on January 9, 2009, 2009-Ohio-61. But the Montgomery County Prosecutor filed a Notice of Appeal in the Supreme Court of Ohio on February 25, 2009. The Ohio Supreme Court hears a case like this only if it decides to, and it decided to hear this one on June 30, 2009. Oral argument was held in the Ohio Supreme Court on November 3, 2009, and you can see that argument by clicking here.

Today the Ohio Supreme Court decided by a 4-3 vote that it was mistaken in accepting the appeal. Therefore the decision of the Second District Court of Appeals stands. The Second District Court of Appeals, as you can read by clicking here, decided that police could not look into the Aldi shopping bag Jones had left in the motel room without probable cause or a search warrant. The Court of Appeals ruled that the cocaine in the bag should have been suppressed by Judge Wagner at Jones' suppression hearing. Police saw Jones walk out of the motel room with the bag and then Jones put the bag back into the room. The Second District decided the police could enter the motel room but could not look into the bag.

Supreme Court Justices Lundberg Stratton, O'Connor, and Cupp, disagree with the reasoning of the Court of Appeals so they would have heard this case in the Ohio Supreme Court to make it "right." But as Justices Moyer and O'Donnell pointed out during oral argument, this case did not raise any new issues of law the Supreme Court had to address and the prosecutor agreed. The role of the Ohio Supreme Court is not to "fix" what it thinks the Courts of Appeals do "wrong." And that is really what the Montgomery County Prosecutor wanted the Supreme Court to do here. Right or wrong, the decision of the Second District Court of Appeals in this case stands and Darnell Jones walks.

Montgomery County Common Pleas Judge Mary Katherine Huffman sentenced a 55 year old to five years of probation for the defendant's plea to gross sexual imposition of a person under the age of 13, a third degree felony. A charge of rape of a child under 13 was dropped as part of the plea deal. Read an article about the case by clicking here.

The Sixth Amendment to the Constitution of the United States and Section 10, Article I of the Constitution of Ohio give criminal defendants the right to counsel in most situations in the trial court. And it is not easy to waive your right to an attorney. Apparently, properly accepting a waiver of counsel is not easy for trial judges because a significant number of convictions are reversed on appeal because trial judges allow defendants to proceed without a lawyer even without an adequate waiver.

The case of State v. Brock, 2009-Ohio-6182, is the most recent example. The Licking County man showed up to his trial without a lawyer. The trial judge basically asked him if Brock wanted to proceed without a lawyer and Brock said, "yes, sir."

Of course that does not amount to an adequate waiver of counsel. Check out the Licking County Court of Appeals decision by clicking here if you want to see what the trial judge should have done.

So says the Twelfth District Court of Appeals in the case of State v. Spicer, 2009-Ohio-6173. Spicer was convicted of possession of drug paraphernalia and he appealed. The Court of Appeals reversed and discharged Spicer because the State failed to deliver sufficient evidence to support his conviction.

When Officer Johnson of the Hamilton Police Department stopped Spicer for a minor traffic offense, Johnson saw a digital scale in the car that was covered with a white powdery substance. If that substance had been crack or powder cocaine, the State would have little trouble getting their conviction for possession of drug paraphernalia. But in this case the State presented no evidence that the white powdery substance was in fact crack or powder cocaine. The Twelfth District wrote, "[m]ere possession of a digital scale, without more, is not a criminal offense."

Officer Johnson testified that the substance appeared to be crack or powder cocaine, but he conceded that chalk dust and talcum powder also could appear to be white and powdery. Did Officer Johnson or the prosecutors think the substance was chalk or talcum powder? Of course not, but this case is a good illustration of what the State has to do to prove a case "beyond a reasonable doubt." Mere speculation is not enough. The State has to prove every element of an offense beyond a reasonable doubt. The State failed in this case and you can read the decision by clicking here.

Sometimes prosecutors make improper arguments and the Court of Appeals warns them not to make them again. Maybe the argument did not result in reversible error this time, but in the right case under the right conditions it could. Criminal defense lawyers on appeal should keep an eye out for these.

For example, in a recent case involving the rape of a child under thirteen years of age (click here for the case), a prosecutor made the following argument:

"And I think you would all agree with me that one of the decisions that's the most important in your life is who you leave your kids with, who you let baby-sit your kids. And since he asked you about forming opinions on the most important things in the victim's life, I'm going to ask you this: 'Would you let this defendant baby-sit your four-year-old daughter? Would you?"

The Second District Court of Appeals found this argument to be improper. It was "irrelevant and inflammatory" and "only served to incite passion and open the door to the consideration of improper facts in rendering judgment." Keep your eyes and ears open for arguments like this.

According to the Ohio Supreme Court's decision in State v. Robinson, 2009-Ohio-5937, "the damaging of a single private telephone or cellular telephone disrupts public services in violation of R.C. 2909.04(A)(3) if the conduct substantially impairs the ability of law-enforcement officers, firefighters, rescue personnel, emergency-medical-services personnel, or emergency-facility personnel to respond to an emergency or to protect and preserve any person or property from serious physical harm." Read the decision by clicking here and view the oral argument by clicking here.

The United States Supreme Court in Herring v. New York stated that a defendant has a right to make a closing argument. But in State v. McCausland, 2009-Ohio-5933, the Ohio Supreme Court ruled today that the trial court does not commit reversible error when no closing argument is made by a defendant who neither requests closing argument or objects when the trial court goes on to the next step in the proceeding instead of offering an opportunity for closing argument. If a defendant (or their criminal defense attorney) wants to make a closing argument, they better say something about it on the record or their right to make a closing argument will be waived as you can read by clicking here. Watch the oral argument before the Ohio Supreme Court by clicking here.

Montgomery County Common Pleas Judge Connie S. Price sentenced James Harper to two years in prison for stabbing another man in the stomach. Read more by clicking here.

Today the Ohio Supreme Court decided a case on sealing of criminal records. Here is the syllabus by the Court: "[w]hen an applicant with multiple convictions under one case number moves to seal his or her criminal record in that case pursuant to R.C. 2953.32 and one of those convictions is exempt from sealing pursuant to R.C. 2953.36, the trial court may not seal the remaining convictions." Read the Ohio Supreme Court's decision in State v. Futrall, 2009-Ohio-5590, by clicking here. Watch the oral argument in the Ohio Supreme Court by clicking here. See Ohio's Ninth District Court of Appeals decision by clicking here.