Ohio Criminal Appeals Lawyer Blog

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."

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.

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.