Ohio Criminal Appeals Lawyer Blog

Criminal defense lawyers argued before Ohio's Supreme Court that Revised Code Section 4511.19(A)(2) is unconstitutional because it criminalizes a suspect's refusal to take chemical tests after being stopped for DUI/OVI. Hoover's criminal defense attorneys argued that the section violated the Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution.

But the Ohio Supreme Court, by a 4 to 3 vote, disagreed today as you can read here. Watch the oral argument by clicking here.

What if your criminal defense lawyer files an "Anders Brief" in your appeal? This is what the Seventh District Court of Appeals said about Anders Briefs in a decision you can read by clicking here, 2009-Ohio-5075:

"It is well settled that an attorney appointed to represent an indigent criminal defendant on his or her first appeal as of right may seek permission to withdraw upon a showing that the appellant's claims have no merit." State v. Odorizzi (1998), 126 Ohio App.3d 512, 515, 710 N.E.2d 1142. "To support such a request, appellate counsel must undertake a conscientious examination of the case and accompany his or her request for withdrawal with a brief referring to anything in the record that might arguably support the appeal." Id. The reviewing court must then undertake a full examination of the proceedings to determine whether the case is wholly frivolous. Id."

Most Courts of Appeal that are not the Seventh District cite the case of Anders v. California (1967) 386 U.S. 738, which you can read by clicking here.

An "Anders Brief" may not be harmful if there are absolutely zero "non-frivolous" issues in your case that can be raised in your appeal. But what if your appointed lawyer is wrong? What if they do not take the time because they are underpaid on appointed appeals? What if the Court of Appeals does not have the time or resources to scour the record to come up with arguments on your behalf? What can you do if you have nobody advocating for you on appeal?

The Court of Appeals will generally give you some time to file your own brief, but being that inmates generally do not have law degrees, experience filing appeals, or unrestricted access to the outside world, you may have a hard time coming up with a winning brief. If you do not get the brief done in the allotted time, you might be able to have the appeal reopened with an Appellate Rule 26(B) application to reopen the appeal. That is what the defendant did in the case you can read by clicking here, 2008-Ohio-443. He lost his appeal but the Court of Appeals said there were "reasonable grounds" for the appeal. That is after the Court had dismissed his first appeal pursuant to Anders.

The Second District Court of Appeals has said the proper way to deal with an Anders dismissal is to appeal to the Ohio Supreme Court or do an application to reopen the appeal as you can read by clicking here, 2001-Ohio-1701. The Court would not address the defendants arguments in a petition for postconviction relief because the defendant had not "employed the proper vehicle to raise the argument."

You are in a tough spot if an Anders Brief is filed in your direct appeal. Having the appointed attorney on appeal means you were indigent to begin with. And if your family cannot foot the bill for a private lawyer who is experienced with doing criminal defense appeals you may be out of luck. You could try the local or state public defender but you already have your appointed lawyer so they might not help.

Anders Briefs should be a rare thing but one attorney in the 12th District filed 10 that were dismissed this year and 49 in about a four year span. In the Second District there have been about 34 cases dismissed pursuant to Anders this year. If you have an Anders Brief filed in your case but you thought you had some valid arguments on appeal, all I can do is wish you the best of luck if you cannot hire a lawyer to look over the record for you.

Today the Ohio Supreme Court in State v. Cargile, 2009-Ohio-4939, ruled that even though Cargile involuntarily entered the jail, he voluntarily conveyed drugs into the jail. The drugs were in the cuff of his pants when he was arrested for two robberies. The State failed to get their convictions on the robberies so all they had was their illegal conveyance of drugs onto the grounds of a detention facility for which Cargile got two years. The Ohio Supreme Court said Cargile did not have to take the drugs with him and he could have told officers about the drugs when asked. So instead of a minor misdemeanor for possessing 2.1 grams of marijuana, Cargile got hit for a third degree felony illegal conveyance of a prohibited item onto the grounds of a detention facility.

The Ohio Supreme Court said, "we hold that a person who is taken to a detention facility after his arrest and who possesses a drug of abuse at the time he enters the facility meets the actus reus requirement for a violation of R.C. 2921.36(A)(2)" as you can read by clicking here and you can watch the oral argument by clicking here.

Make sure your criminal defense lawyer on appeal is aware of the exhaustion doctrine.

Did you know most appeals do not win in State court? Just last week I counted about 42 losses in criminal defense appeals in Ohio and just 16 cases in which there was a reversal of some kind. So if you have some time to kill in prison, you want to be sure your criminal defense lawyer on appeal plans ahead for your possible day in the federal courts on a petition for a writ of habeas corpus.

Today the United States Court of Appeals for the Sixth Circuit decided a case originating in Michigan which made it to the Sixth Circuit on a petition for a writ of habeas corpus. The Court discussed the exhaustion doctrine and stated "[a] federal court may not grant a writ of habeas corpus unless the applicant has exhausted all available remedies in state court. 28 U.S.C. 2254(b)(1)(A)." The Court went on to explain how each claim must have been "fairly presented" to the state courts and that "[f]air presentation requires that the state courts be given the opportunity to see both the factual and legal basis for each claim." Read the case by clicking here.

Make sure you hire a criminal defense attorney for your appeal that will have your future in mind and who understands the importance of the exhaustion doctrine.

I get letters now and then from inmates who want me to do their appeal (I assume for free because they don't talk about where the money is coming from to pay my legal fees), and they start out by telling me they are "innocent." Maybe that is supposed to persuade me to take on their case. But what does innocence have to do with appealing a criminal conviction or sentence?

There is no "assigned error" on appeal that says, "please reverse my client's conviction because he is innocent." It does not exist on direct appeal. What you argue instead is how the conviction is "against the manifest weight of the evidence" or that the conviction it is not based upon "sufficient evidence." It is all about "evidence," not "innocence."

Haven't we all heard about people released from prison because it turned out they were innocent? What stopped them from being convicted? Nothing! There was sufficient evidence and their conviction was not against the manifest weight of the evidence. Sometimes there are eye witnesses and even "confessions."

Innocent people are sometimes convicted and guilty people sometimes go free. So what does guilt or innocence have to do with it?

Innocence has nothing to do with the direct appeal. The guilty and innocent have the same tools at their disposal on appeal. What you have to raise are legal issues that can win a reversal of your conviction or sentence. Maybe there are none. Then you lose your appeal. But if there are reversible errors you can point out to the Court of Appeals, you could get your conviction or sentence reversed - whether you actually did the crime or not.

It is not about "innocence" or guilt on direct appeal, so don't bother telling me you are "innocent."

(But check out R.C. 2953.21 regarding petitions for postconviction relief where "actual innocence" is relevant.)

The best practice for a criminal defense lawyer on appeal is to ask their client whether they want to appeal. If the defendant wins on appeal, they may face more potential punishment than what they already received. For example, if a defendant enters a plea agreement with the State, they usually do so because they are promised something less than what they could have in terms of punishment. Do you really want to get your plea vacated on appeal? You may not get the same deal next time or if you are convicted after a trial, the judge is not bound by the previous plea agreement. What if you are convicted after a trial and are sentenced to five years in prison when you faced twenty? You should consult with your appellate lawyer to determine what you face if you should win on appeal.

Discussing the risks of winning on appeal is one of the first things you should do with your criminal defense appeal lawyer. When my clients on appeal decide they want to take the risk(s) by winning the appeal, I do everything I can to help them achieve their goal. Just know that sometimes you should be careful what you wish for.

Two Ohio convictions were reversed this week because prosecutors tried to prove their cases even when their "victims" did not show up to testify at trial. But even prosecutors have to follow the law. Hearsay is not admissible as stated in Ohio Evidence Rule 802. And the "Confrontation" Clauses of the United States and Ohio Constitutions require an accuser to come to court to make their accusations. This gives the accused the chance to cross examine them to test their claims.

Ohio's Eleventh District Court of Appeals reversed a conviction out of Portage County because the State had an officer testify about what the alleged criminal damaging victim told him. The defense lawyer objected and the trial judge characterized the defense lawyer's objection as "ludicrous." That's reassuring, isn't it? Read the case by clicking here.

Ohio's Twelfth District Court of Appeals reversed a conviction out of Butler County because the defense lawyer failed to object when a neighbor and officer gave crucial testimony about an alleged burglary. The failure to object constituted the ineffective assistance of trial counsel as you can read by clicking here.

The Eighth District Court of Appeals in Ohio just denied the State's appeal of a sentence which the State called "wimpy." For a fifth degree felony, the defendant was sentenced to just 45 days in jail and ordered to pay $1500 in restitution. The State complained that the sentence did not do enough to punish the offender because he had a lengthy criminal record. But the State failed to raise the defendant's record at sentencing and so the Court of Appeals determined that the State waived the argument and the Court of Appeals found the trial judge did not abuse his discretion in sentencing the defendant as you can read here.