Ohio Criminal Appeals Lawyer Blog

Jason Overman was accused of holding a baby's hand in boiling water. He said it was an accident. Overman was indicted on March 9, 2009. He pleaded guilty to one count of child endangering. Child endangering is a felony of the second degree if serious physical harm results. The maximum prison term for a second degree felony is 8 years in prison. Overman was sentenced to 8 years in prison today as you can read by clicking here or here.

R.C. 2919.27 prohibits the reckless violation of a protection order. It is usually a misdemeanor of the first degree. But if the defendant previously pleaded guilty or was convicted of violating a protection order, violating a protection order is a felony of the fifth degree. The parties in this case stipulated to five facts and submitted the case to the trial judge for a decision. But the parties did not stipulate to the fact that the defendant was previously convicted of violating a protection order. Since the trial judge could not take judicial notice of the prior conviction, the Second District Court of Appeals reversed the fifth degree felony conviction and remanded the case for re-sentencing as a first degree misdemeanor.

Facing a fifth degree felony means you are facing 6, 7, 8, 9, 10, 11, or 12 months in prison and a fine of up to $2,500. A first degree misdemeanor allows the trial court to sentence a defendant to up to 180 days in jail and impose a fine of up to $1,000.

Read the decision in 2010-Ohio-288 by clicking here.

Shannon N. Smith was found guilty of voluntary manslaughter and tampering with evidence in the stabbing death of Robert Takach, II. Read the Dayton Daily News story here or the story at whiotv.com by clicking here.

Jose De Jesus Rios was sentenced to four years in prison and ordered to pay $105,000.00 by Greene County Judge Stephen A. Wolaver. Rios pleaded guilty to racketeering, drug trafficking, and money laundering charges. Read the Dayton Daily News story by clicking here.

Walter N. Polus had been convicted of burglary, B&E, and assault, and he was sentenced on November 27, 2006. He was sentenced to 3 years of community control (probation). Well, he violated his community control and was sentenced to 6.5 years in prison.

He was appointed a lawyer for his appeal and his appointed lawyer filed an Anders Brief about two months after the notice of appeal was filed. Seven months after that, the Sixth District Court of Appeals noticed a possible issue, allowed the first lawyer off the case and appointed another one to raise the issue the Court found. Five months after the second lawyer was appointed, the second lawyer filed a brief raising the one issue the Court told him to raise. Finally, more than three months after that, the Sixth District Court of Appeals reversed the sentence and remanded the case for re-sentencing specifically telling the trial court that sentencing Polus to prison was not an option.

What if you were Polus and the only reason you were in prison was because of this one case? The trial court erred by placing Polus on community control without telling him what specific prison term he faced if he violated the terms of his community control. Without informing him of the specific prison term he faced, the trial court could not send him to prison for the violation as the Ohio Supreme Court told us in State v. Brooks, 2004-Ohio-4746.

Read the first Sixth District decision here and the recent one here.

(I cannot tell from the record if Polus would have been out of prison "but for" the missed issue (and maybe he would not have been), but when something like this happens it makes you wonder how many inmates are inmates due to issues missed on appeal.)

Today the Ohio Supreme Court took the "opportunity to provide guidance on the proper manner in which the court of appeals should remand cases after finding errors committed in sentencing on allied offenses."

From the syllabus of the Court:

"1. The state retains the right to elect which allied offense to pursue on sentencing on a remand to the trial court after appeal.

2. Upon finding reversible error in the imposition of multiple punishments for allied offenses, a court of appeals must reverse the judgment of conviction and remand for a new sentencing hearing at which the state must elect which allied offense it will pursue against the defendant.

3. Because R.C. 2941.25(A) protects a defendant only from being punished for allied offenses, the determination of the defendant's guilt for committing allied offenses remains intact, both before and after the merger of allied offenses for sentencing."

Watch the oral argument by clicking here and read the decision by clicking here.

The Second District Court of Appeals of Montgomery County, Ohio, reversed a trial court's decision overruling a motion to suppress evidence that was seized in California based on a warrant issued by the Miamisburg, Ohio, Municipal Court. As the Court of Appeals pointed out, Criminal Rule 41 allows judges to issue warrants to search and seize property within the court's territorial jurisdiction, and Revised Code Section 2933.21 states that a judge may "within his jurisdiction" issue warrants to search a house or place. Since California is not within the jurisdiction of any Ohio court, the warrant was invalid and no reasonable police officer could rely on it in conducting the search and/or seizure of evidence. Read the case by clicking here.

Judges must merge allied offenses of similar import even when the defendant pleads guilty and the sentence is agreed to beforehand. In the case of State v. Day, the Second District Court of Appeals for Greene County determined that Judge Campbell erred when he failed to merge an aggravated burglary conviction with a burglary conviction which were based on the same facts. Read the decision by clicking here.

I wrote about post-release control here.

Imposing the correct period of post-release control has been difficult in too many instances in Ohio. As a result, there are several cases decided by the Ohio Supreme Court which deal with how to handle a case where post-release control was either not imposed at all or not correctly imposed pursuant to Section 2967.28.

Today the Ohio Supreme Court ruled that (and this is from the Syllabus of the Court which is consistent with what is stated in the opinion you can read by clicking here, State v. Singleton, 2009-Ohio-6434), "[f]or criminal sentences imposed prior to July 11, 2006, in which a trial court failed to properly impose postrelease [sic] control, trial courts shall conduct a de novo sentencing hearing in accordance with decisions of the Supreme Court of Ohio." That is right, a whole new sentencing hearing must be held under the remedy established by the Court which applies to any sentence imposed prior to July 11, 2006. It is as if the sentencing never took place just because the trial judge messed up on the post-release control.

The second part of the Court's holding today is that "[f]or criminal sentences imposed on and after July 11, 2006, in which a trial court failed to properly impose postrelease [sic] control, trial courts shall apply the procedures set forth in R.C. 2929.191." R.C. 2929.191 allows the trial court to prepare and issue a correction to the judgment of conviction instead of having to have a new sentencing hearing.

Read the Ohio Supreme Court's decision in State v. Singleton, 2009-Ohio-6434, by clicking here or watch and/or listen to the oral argument by clicking here.

Post-release control is what people might generally understand to be "parole." By statute, trial judges must impose post-release control at sentencing. Ohio Revised Code Section 2967.28 clearly states that a period of post-release control must be either five years, three years or "up to" three years

If the judge is sentencing a defendant for a felony that is a sex offense, the judge must sentence the defendant to a five year term of post release control.

If the judge is sentencing a defendant for a felony of the first degree, the judge must sentence the defendant to a five year term of post release control.

If the judge is sentencing a defendant for a felony of the second degree that is not a sex offense, the judge must sentence the defendant to a three year term of post release control.

If the judge is sentencing a defendant for a felony of the third degree (not including felony sex offenses because those get five years of post release control as stated above) and in the course of committing that third degree felony the defendant either threatened physical harm or caused physical harm to a person, the judge must sentence the defendant to a three year term of post release control.

For any other felony not listed above, the trial judge must sentence the defendant to a term of post release control of up to three years and the parole board will determine if a period of post release control is "necessary for that offender."

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.

Pinson has since been indicted as you can read by clicking here.

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!

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.