Ohio Criminal Appeals Lawyer Blog

has peeled away an important protection enjoyed by those accused of crimes for years.    Michigan v. Jackson, 475 U.S. 625, protected defendants by holding that "if police initiate interrogation after a defendant's assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police interrogation is invalid" (page 636).  Basically, defendants were off limits - without the protection of their counsel -  after arraignment and the government's chance to get the isolated defendant to say things that would be used against them would end.

Not anymore.  In Montejo v. Louisiana, by a five to four vote, the Supreme Court overruled Michigan v. Jackson.  The majority complained that the rule of Michigan v. Jackson interfered with the State's efforts to "obtain voluntary confessions" which efforts the majority called an "unmitigated good."  The majority figures that police can be trusted to properly advise defendants of their Miranda rights and if the defendant waives those rights, including the right to counsel, then the cops are good to go.  Basically, the Montejo case takes the counsel out of the Sixth Amendment Right to Counsel.  The majority noted that "any suspect subject to custodial interrogation has the right to have a lawyer present if he so requests."  But the defendant will face that question without the assistance of counsel now and "if he so requests" is not so cut and dry as I wrote here.

Criminal Rule 11(B)(2) states that a "plea of no contest ... is an admission of the truth of the facts alleged in the indictment, information, or complaint."  Ohio's Eighth District Court of Appeals just reversed a "no contest" plea and remanded the case to the trial court because the defendant and his counsel believed he could dispute the facts and plead "no contest."  The defendant faced drug charges, two of which contained a "schoolyard specification" (which enhance the charge if the offense is committed within 1,000 feet of a school).

The defendant wanted to plead "no contest" but only if the State could prove the schoolyard specification after an evidentiary hearing.  The State put on two witnesses to show the drug offenses occurred within 1000 feet of a school.  The trial court stopped the defendant from disputing the State's evidence with his own witness because the "no contest" plea was a plea to the facts as the State presented them.

The Court of Appeals for the Eighth District said the trial court should have realized that the defendant did not understand the effect of his no contest plea and should have withdrawn the no contest plea.  Since the trial court accepted the no contest plea and found the defendant guilty, the Court of Appeals reversed and remanded the case back to the trial court.  The Court of Appeals for the Eighth District determined that the defendant had not entered his "no contest" plea knowingly, voluntarily, or intelligently as you can read by clicking here.

In golf, a "mulligan" is a do-over.  Hit it in the water?  Take a mulligan and hit another one.  A  do-over is what a defendant gets after his guilty plea is reversed.  The Eighth District Court of Appeals of Ohio just reversed a conviction on a guilty plea since the trial judge failed to inform the defendant of the potential fine that accompanied his plea of guilty to one count of rape with a sexual violent predator specification.  The Eighth District found that the trial court failed to substantially comply with the requirements of Criminal Rule 11(C) when it failed to mention anything about the potential fine.  Read the full decision by clicking here.  So if you have pleaded guilty and are wishing you could take a "mulligan," one thing your lawyer should check is if you faced a potential fine and whether you were informed of that fine before you pleaded guilty.

Ohio's Eighth District Court of Appeals reversed a "compelling prostitution" conviction because the State failed to present sufficient evidence that the prostitute was "compelled" to engage in sexual activity for hire as required by Ohio Revised Code Section 2907.21(A)(1).  The evidence showed that the prostitute did not always give the defendant all the money she earned, nothing would happen to the prostitute when she failed to give the defendant all the money she earned , and - instead of compelling her to engage in sexual activity for hire - the defendant simply asked her if she would prostitute for him and she agreed.  Click here to read the full decision.