Ohio Criminal Appeals Lawyer Blog

R.C. 2919.27 prohibits the reckless violation of a protection order. It is usually a misdemeanor of the first degree. But if the defendant previously pleaded guilty or was convicted of violating a protection order, violating a protection order is a felony of the fifth degree. The parties in this case stipulated to five facts and submitted the case to the trial judge for a decision. But the parties did not stipulate to the fact that the defendant was previously convicted of violating a protection order. Since the trial judge could not take judicial notice of the prior conviction, the Second District Court of Appeals reversed the fifth degree felony conviction and remanded the case for re-sentencing as a first degree misdemeanor.

Facing a fifth degree felony means you are facing 6, 7, 8, 9, 10, 11, or 12 months in prison and a fine of up to $2,500. A first degree misdemeanor allows the trial court to sentence a defendant to up to 180 days in jail and impose a fine of up to $1,000.

Read the decision in 2010-Ohio-288 by clicking here.

Jose De Jesus Rios was sentenced to four years in prison and ordered to pay $105,000.00 by Greene County Judge Stephen A. Wolaver. Rios pleaded guilty to racketeering, drug trafficking, and money laundering charges. Read the Dayton Daily News story by clicking here.

Walter N. Polus had been convicted of burglary, B&E, and assault, and he was sentenced on November 27, 2006. He was sentenced to 3 years of community control (probation). Well, he violated his community control and was sentenced to 6.5 years in prison.

He was appointed a lawyer for his appeal and his appointed lawyer filed an Anders Brief about two months after the notice of appeal was filed. Seven months after that, the Sixth District Court of Appeals noticed a possible issue, allowed the first lawyer off the case and appointed another one to raise the issue the Court found. Five months after the second lawyer was appointed, the second lawyer filed a brief raising the one issue the Court told him to raise. Finally, more than three months after that, the Sixth District Court of Appeals reversed the sentence and remanded the case for re-sentencing specifically telling the trial court that sentencing Polus to prison was not an option.

What if you were Polus and the only reason you were in prison was because of this one case? The trial court erred by placing Polus on community control without telling him what specific prison term he faced if he violated the terms of his community control. Without informing him of the specific prison term he faced, the trial court could not send him to prison for the violation as the Ohio Supreme Court told us in State v. Brooks, 2004-Ohio-4746.

Read the first Sixth District decision here and the recent one here.

(I cannot tell from the record if Polus would have been out of prison "but for" the missed issue (and maybe he would not have been), but when something like this happens it makes you wonder how many inmates are inmates due to issues missed on appeal.)

Today the Ohio Supreme Court took the "opportunity to provide guidance on the proper manner in which the court of appeals should remand cases after finding errors committed in sentencing on allied offenses."

From the syllabus of the Court:

"1. The state retains the right to elect which allied offense to pursue on sentencing on a remand to the trial court after appeal.

2. Upon finding reversible error in the imposition of multiple punishments for allied offenses, a court of appeals must reverse the judgment of conviction and remand for a new sentencing hearing at which the state must elect which allied offense it will pursue against the defendant.

3. Because R.C. 2941.25(A) protects a defendant only from being punished for allied offenses, the determination of the defendant's guilt for committing allied offenses remains intact, both before and after the merger of allied offenses for sentencing."

Watch the oral argument by clicking here and read the decision by clicking here.