Ohio Criminal Appeals Lawyer Blog

So says Ohio's Second District Court of Appeals in State v. Paquettee, 2009-Ohio-1961.  Paquette was convicted of pandering obscenity involving a minor but the State did not produce the images he created at trial.  On appeal, Paquette argued his conviction should be reversed because the photographs were not produced at trial.  But the Second District said the statute prohibits the creation or reproduction of the images, not the possession, and the conviction could be sustained on the testimony of the victim as well as a recorded phone call about the photographs.

In 2007 the Fifth District Court of Appeals stated that the prosecution need not produce the actual photographs in order to support a conviction for violating R.C. 2907.323(A)(1) - illegal use of a minor in nudity oriented material.  State v. Merritt, 2007-Ohio-480, paragraph 40.

The Ohio Supreme Court said yes in State v. Moore, 90 Ohio St.3d 47, 2000-Ohio-10.  But the Ohio Supreme Court said that the officer has to be "a person qualified to recognize the odor."  The Ohio Supreme Court said an officer is qualified if he is "trained and experienced in the detection of marijuana."  If he is, the search is reasonable under the Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution.

This week, Ohio's Fifth District Court of Appeals said a loaded gun found in a car should have been suppressed where an officer searched the car only because he claimed he smelled marijuana.  State v. Birdsong, 2009-Ohio-1859.  While the officer testified at the suppression hearing that there was a strong distinct odor of burnt marijuana, he did not testify about any training or experience he had in detecting marijuana.  It is unclear from the Court's opinion whether he lacked such training or if the prosecutor just failed to ask.  But the officer never found any drugs or drug paraphernalia.

New York v. Belton, 453 U.S. 454, had been read to allow a complete search of the passenger compartment of an automobile as a reasonable search under the Fourth Amendment whenever any occupant of the car was arrested for any reason. This was true even if that occupant was secured in the back of a police car before the search was conducted. State v. Murrell, 94 Ohio St.3d 489, 2002-Ohio-1483. But not anymore!

Today in Arizona v. Gant, the SCOTUS reigned in Belton to allow an unlimited search of the passenger compartment of a car if an occupant of the car was arrested in only two circumstances.  One is if the occupant still has access to the passenger compartment of the car (to prevent the occupant from getting a weapon or hiding evidence).  Two is if the officers have a reasonable belief that evidence might be found in the car that relates to the reason the occupant was arrested (for example, a search for drugs if the occupant was arrested for drug dealing from the car).

Ohio's Second District Court of Appeals recently struggled with this very issue.  In State v. Williams, 2009-Ohio-1627, the Second District said it was bound to follow the Ohio Supreme Court's interpretation of Belton and allow a search incident to the arrest of a recent occupant of a car who had an outstanding warrant for his arrest (the car was stopped for littering).  Today's decision by the Ohio Supreme Court appears to give Williams solid grounds for an appeal to the Ohio Supreme Court.

Technology in the courtroom has changed how business is done. In several Ohio Counties, like Montgomery County located in Ohio's Second District, you won't find the traditional court reporter recording the events in the courtroom. Instead, the proceedings are videotaped.

The Appellant (the party initiating the appeal) has the duty of providing the complete record for the appeal. That includes a written transcript.  Appellate Rule 9(A) states that the "videotape ... constitutes the transcript" when the proceedings are recorded by videotape. And Rule 9(A) states that, "When the transcript of proceedings is in the videotape medium, counsel shall type or print those portions of such transcript necessary for the court to determine the questions presented, certify their accuracy, and append such copy of the portions of the transcripts to their briefs."

So far in 2009, two appeals have been lost before they got started because the attorneys attached portions of transcript to their briefs but failed to "certify their accuracy" as required by Rule 9(A) and as explained at the end of Rule 9(B).  Don't let this happen to you or your client.

You may be aware that the US and Ohio Constitutions bestow the right to counsel upon an accused (fn1). But do you know how to invoke your right to counsel? Imagine you are in custody and being interrogated by police after they gave you your Miranda Rights. The US Supreme Court has said that police cannot question you if you invoke your right to counsel unless a lawyer for you is present. But how do you invoke that right?

The US Supreme Court has said that "maybe I should talk to a lawyer" is not good enough (fn2).  Ohio's Second District Court of Appeals has said that asking "may I find representation?" is not good enough either (fn3).  And Ohio's Tenth District Court of Appeals has held that "where's my lawyer" was not enough to invoke the right to counsel (fn4). 

"I want a lawyer" seems to be required.  So the next time you are in custody and being interrogated by police, and if you want a lawyer present, you may want to tell them "I want a lawyer" and say nothing more.  Repeat it, if necessary.  "I want a lawyer."  "What?"  "I want a lawyer."  "Let me clarify what you are saying here because we need you to be honest with us and tell us your side of the story so we can help you out."  "I want a lawyer."

fn1
Constitution of the United States, Amendment VI, Constitution of Ohio, Article I, Section 10

fn2
Davis v. United States, 512 U.S. 452

fn3
State v. Knight, 2008-Ohio-4926, paragraph 112

fn4
State v. Williams, 2003-Ohio-7160, paragraph 50 (which includes a great collection of examples)

My suggestion? Hire a lawyer. If you cannot afford one, contact the local or state office of the public defender. Appeals are not something I would recommend you do yourself.

Make sure a "notice of appeal" is filed on time. To do this, your attorney will consult Ohio Appellate Rules 3 & 4. Those say that, generally speaking, a notice of appeal must be filed "within thirty days of the later of entry of the judgment or order appealed from." It must be filed "with the clerk of the trial court."

If you are out of time since the thirty days has passed, your attorney will consult Appellate Rule 5 about delayed appeals. But at this point you will need the permission of the court of appeals. Much better to get your notice of appeal filed on time. Click here for an example of the danger in missing the thirty day limit (and the other side of the argument in the dissent).

Again, I would say you should get your criminal defense lawyer to file the notice of appeal and/or get a lawyer to do your appeal. If you want to check out the Ohio Appellate Rules you can click here.

In Ohio's Second Appellate District, it is not unusual for an appeal to take a year from the notice of appeal to a decision.  So if you or your client is serving a "short" sentence, you should look into "suspending execution of the sentence" (getting a stay) and getting on the accelerated calendar if you think you could win the appeal.

Ohio's Appellate Rule 8 deals with suspension of execution of a sentence pending review on appeal.  It explains how a stay must be sought in the trial court before asking the court of appeals. App R 8(B).  And local rules should be consulted for how to get your appeal on the "accelerated" calendar.  For example, in Ohio's Second Appellate District, Rule 2.8(B) explains what you need to do to request that your appeal be expedited for review.

Montgomery County Judge Michael L. Tucker sentenced Mark Anthony Nolan to 20 years to life in prison after Nolan pleaded guilty to charges related to the beating death of an employee of a local community college as you can read by clicking here.