Ohio Criminal Appeals Lawyer Blog

So said a Cuyahoga County Common Pleas Judge to the lawyers in a murder trial as you can read by clicking here. The Eighth District Court of Appeals reversed the convictions of Arif Majid and remanded the case for a new trial because the trial record showed that a juror was clearly sleeping a number of times during trial. The Court of Appeals said the sleeping juror violated Majid's right to due process.

Ohio Revised Code Section 2929.18(A)(1) concerns orders of restitution. The section clearly states that "[i]f the court decides to impose restitution, the court shall hold a hearing on restitution if the offender, victim or survivor disputes the amount."

A defendant sentenced in Wood County, Ohio, disputed the restitution ordered at their sentencing on a theft offense. The trial judge failed to hold a hearing so the Sixth District Court of Appeals reversed and remanded the case as you can read by clicking here.

The Ohio Supreme Court reversed the second conviction of David B. Clinkscale because a juror was replaced during the deliberations of the guilt phase as you can read here. The OSC's opinion is significant for all capital defendants because, as the dissent complains, it "charts a new course for this court in capital cases." Capital cases have always received special treatment, but this decision errs on the side of the defendant instead of the usual other way around. The defense in Clinkscale did not object to the replacement of the juror for three weeks, the defense did not follow through with the requirements of Appellate Rule 9(C) by creating a statement to fill in what happened when the judge replaced the juror off the record, and lastly the defense only expressed speculation that the replaced juror would have hung the jury. Nevertheless, the OSC by a 4 to 3 vote reversed because capital cases must be conducted with a "strict level of care." Watch the oral argument held on March 10, 2009, by clicking here.

The Seventh District Court of Appeals reversed a guilty plea made in the Mahoning County Common Pleas Court because it was not made knowingly, voluntarily and intelligently as you can read by clicking here. Criminal Rule 11 requires certain things of the trial judge before a guilty plea can be accepted. Criminal Rule 11(C)(1)(c) states that judges must inform defendants of the following before their plea is accepted.
1. The defendant is waiving her right to a jury trial
2. To confront witnesses against her
3. To compulsory process for favorable witnesses
4. To require the State to prove their guilt beyond a reasonable doubt.
5. And her privilege against compulsory self incrimination.
A trial judge in Mahoning County failed to comply with numbers three and four as listed above and so the Court of Appeals reversed the guilty plea and remanded the case back to the trial court.

Two defendants had their prison sentences reduced dramatically this week due to sloppy prosecutions and attentive appellate lawyers. At issue were the verdict forms. As Ohio Revised Code Section 2945.75(A)(2) clearly states, "A guilty verdict shall state either the degree of the offense of which the offender is found guilty, or that such additional element or elements are present. Otherwise, a guilty verdict constitutes a finding of guilty of the least degree of the offense charged."

In Gallia County, a defendant was sentenced to 10 years in prison because she possessed enough crack cocaine to make her conviction a first degree felony. But the verdict form only stated that the jury was finding her guilty of "possession of drugs" in violation of Section 2925.11(A). The least degree of that offense at the time was a third degree misdemeanor which carries a maximum of 60 days in jail. From 10 years to 60 days is not bad from the defendant's point of view and you can read the decision by the Fourth District Court of Appeals by clicking here.

In Summit County, a defendant had his prison sentence reduced from 10 years to (at most) 1 year due to a typo. The verdict form in that case - which was also a crack cocaine case - read that "we, the Jury, find the Defendant Guilty of the offense of POSSESSION OF CRACK COCAINE ... in the amount exceeding ten one hundred (100) grams." The problem is that it was supposed to read "one hundred grams" to support the conviction for the first degree felony. The Ninth District Court of Appeals decided the jury may have convicted the defendant of possessing less than one gram of crack cocaine as you can read by clicking here.

The lesson? For prosecutors it is to check the verdict forms and then re-check them a few times. And for defense lawyers on appeal it means the verdict forms should be checked and re-checked to see if this issue should be raised on appeal.

The Fourth District Court of Appeals just reversed convictions for "harassment by inmate" because the defendant's appointed counsel raised the issue of competency before trial commenced and the trial court failed to hold a hearing on the matter. Ohio Revised Code Section 2945.37(B) clearly states that a hearing must be held on the issue of the defendant's competence to stand trial if it is raised before the commencement of trial. The defendant raised the issue at the 11th hour since his trial was scheduled to start in just thirty minutes, and the trial court cited the fact that the "county is suffering an economic hardship at this time" in denying the defense motion for a continuance for a competency determination. But the Fourth District relied on the clear language of 2945.37(B) in reversing the convictions and remanding the case for a new trial after a competency hearing is held as you can read by clicking here.

Ohio Revised Code Section 2929.11(B) states that sentences for felonies shall be "consistent with sentences imposed for similar crimes committed by similar offenders." Recently I won an appeal for a Greene County man convicted of sexually abusing a child as I wrote here. He had been sentenced to 40 years. On remand after he won on appeal he was sentenced to 20 years. So it is interesting to note that a Licking County man was recently sentenced to 3 years for sexually abusing two minors as you can read by clicking HERE. That is the minimum possible time he could have been sentenced to prison since he was convicted of first degree felony rape of a child. On appeal, one count of first degree felony rape was reversed but that still leaves him with a count of first degree felony rape (carrying up to ten years in prison), three counts of third degree felony gross sexual imposition (each carrying up to five years in prison), and four counts of unlawful sexual conduct with a minor (each carrying up to eighteen months in prison). That is a total possible sentence of 31 years. The Licking County man will be re-sentenced June 23, but with one less rape conviction there is no indication his sentence will go up. Granted the Greene County man was convicted of more charges, but 20 years vs 3 years is hardly consistent.