Ohio Criminal Appeals Lawyer Blog

Criminal Rule 32 requires trial judges in Ohio to inform defendants of their appellate rights at sentencing. The Eighth District Court of Appeals reversed the sentence in State v. Hunter, 2010-Ohio-657, because the trial judge failed to inform Hunter at his sentencing hearing of his rights regarding appeal. The Eighth District remanded the case for re-sentencing so that Hunter could be sentenced again and be informed of his rights regarding a possible appeal. At that point the clock would begin to run and Hunter would be able to file a timely notice of appeal as required by Ohio Appellate Rule 4.

In Edwards v. Arizona (1981), 451 U.S. 477, at 484-485, the Supreme Court of the United States said that when a suspect properly asserts his right to counsel before or during custodial interrogation pursuant to Miranda v. Arizona (1966), 384 U.S. 436, and the Fifth Amendment to the Constitution of the United States, "a valid waiver of [his right to have counsel present during custodial interrogation] cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his [Miranda] rights." The cops' only hope would be that the defendant changes his mind and initiates further communication with them. Id. at 484-485.

But today the Supreme Court of the United States put a cap on that protection of the defendant because acquiring "voluntary confessions" is an "unmitigated good" that is "essential to society's compelling interest in finding, convicting, and punishing those who violate the law." In Maryland v. Shatzer (2010), 559 U.S. ___, the SCOTUS said the prohibition on further police attempts to interrogate a suspect like Edwards lasts for just fourteen days. The Justices figure that once the suspect is released from the "Miranda custody" and returns to his "normal life" for fourteen days, the "protective umbrella" of Edwards has served its purpose and the suspect is again fair game.

This is true even for those who are imprisoned based on a previous conviction. The SCOTUS reasoned that a prisoner is not constantly subject to Miranda-type custody when they are living their "normal life" in the general prison population. An inmate is only subject to "Miranda custody" or "interrogative custody" when they are "removed from the general prison population and taken to a separate location for questioning." Once they are released into the general population again, they are living their "normal lives" and the State can try to interrogate the "prisoner suspect" every fourteen days until the prisoner quits asserting his right to have counsel present during custodial interrogation.

The Eleventh District Court of Appeals of Ohio reversed a conviction for public intoxication because the defendant was intoxicated on private property. The trial court reasoned that the private property was "public" because it was accessible to the public. But the Court of Appeals said that such reasoning "would render virtually all private property public." Read the decision by clicking here.

As I tell my new clients, criminal defense appeal lawyers are not magicians or miracle workers. Your appeal can only be won on direct appeal if there is reversible error in the record. Maybe the police violated the defendant's constitutional rights and the motion to suppress should have been granted. Maybe the prosecutor overcharged the case or failed to prove a specific element of a crime and the judge should have granted your motion for acquittal. Perhaps the trial judge incorrectly overruled defense objections during trial, or the trial judge erred when giving the jury instructions or at sentencing. Or maybe the defense lawyer fell asleep for much of the trial or there was juror misconduct which impacted the case.

To win on direct appeal the reversible error has to be in the record (there are other avenues you can pursue for errors that occurred off the record). So the trick to winning your direct appeal is not to pull a rabbit out of a hat. And it surely is not to "trick" the appellate judges.

The "trick" to winning on appeal is to get an experienced criminal appellate lawyer who is hard working and thorough. You want a lawyer that will comb over the record and be able to recognize the reversible error(s). You want an appellate lawyer who can clearly present the error(s) to the appellate judges so they will agree that reversible error occurred. Losing appeals is easy. Winning appeals is hard work. So you want a hard working and experienced appellate lawyer who will try to win your appeal.

But even the best criminal appeal lawyer will lose the direct appeal if there is no reversible error in the record. If the police did their job properly and respected the constitutional rights of the accused, if the prosecutor was reasonable in filing the charges and proved every element of each offense, if the judge knew what she was doing and followed the law during trial, and if the defense counsel provided the effective assistance of counsel, there is nothing anyone can do. After all, even the best criminal appeal lawyers are not magicians or miracle workers.

Jason Overman was accused of holding a baby's hand in boiling water. He said it was an accident. Overman was indicted on March 9, 2009. He pleaded guilty to one count of child endangering. Child endangering is a felony of the second degree if serious physical harm results. The maximum prison term for a second degree felony is 8 years in prison. Overman was sentenced to 8 years in prison today as you can read by clicking here or here.