Ohio Criminal Appeals Lawyer Blog

Today the Second District Court of Appeals reversed a conviction for felonious assault because the defendant waived his right to a jury trial in the judge's chambers and not in open court. Jury waivers are addressed by Criminal Rule 23(A), Revised Code Section 2945.05, and the Ohio Supreme Court decision in State v. Lomax, 114 Ohio St.3d 350, 2007-Ohio-4277.

Everything about the waiver was valid in this case except it was not done "in open court." Today's Second District decision in State v. Burnside, 2010-Ohio-1235, indicates that all the trial judge had to do was have the defendant acknowledge the jury waiver in open court before conducting the bench trial. But no acknowledgment was sought by the trial court and so Burnside's conviction was reversed and he gets another bite at the apple (although whether this is a good thing for Burnside remains to be seen since he received probation (community control sanctions) after his bench trial conviction for felonious assault - a second degree felony that could result in a prison term of up to eight years).

Read the decision here. Check out my warnings about winning your appeal here.

Ohio Courts of Appeal generally will not publish the full names of certain victims or juveniles accused of crimes (although they inexplicably publish full birth dates even when unnecessary). This generally includes adult and child victims of sex crimes, victims who are minors, and juvenile offenders. The Courts have their reasons for protecting these identities and the Eighth District Court of Appeals states that they are following their own policies.

But these days it is not enough to have the Courts of Appeal use initials in their opinions to protect identities. Nowadays, many counties provide public access to all the documents filed in appeals. These include the Appellant's Merit Brief, Appellee's Answer Brief, and Appellant's Reply Brief. So if the Courts of Appeal are going to be successful at concealing the names of these special victims or juvenile offenders, they will need a little help from the litigants - starting with the Appellant.

The Courts of Appeal Judges - you know, the ones who will be deciding your client's case - are sensitive to this issue. A little responsible editing by Defendants/Appellants may go a long way in gaining the respect of the Court and focusing the Court on the real issues in the case.

Generally speaking, jurisdiction is the power of a court to hear a case, and venue is where the case should be heard once jurisdiction is established. Morrison v. Steiner, 32 Ohio St.2d 86, 87. Revised Code Section 2901.12(A) states that "[t]he trial of a criminal case in this state shall be held in a court having jurisdiction of the subject matter, and in the territory of which the offense or any element of the offense was committed."

The prosecution has to prove "venue" (that the crime - or any element of the crime - took place in the territory covered by the trial court) in every criminal case, unless the defendant waives this requirement. So in most every criminal case that goes to trial, you will hear the prosecutor ask one or usually several witnesses whether the location of the crime was in the city or township of _____, and in ______ County in the State of Ohio.

The prosecutor in the case of State v. Gonzalez, 2010-Ohio-982, simply failed to do so. The prosecutor asked the victim for the address where the sexual imposition took place, and the victim did not know the address. The prosecutor failed to ask any other witnesses. Not only that, but there was no circumstantial evidence in the record form which the trial court could determine venue.

Therefore, Third District Court of Appeals reversed the conviction and "dismissed" Gonzalez. Read the case by clicking here.

Lisa M. Davis of Miamisburg pleaded guilty to first degree felony involuntary manslaughter on February 12, 2010. Today Judge Dennis J. Langer sentenced her to 10 years in prison, the maximum prison term available for a first degree felony. Court records alleged her daughter died of "blunt force injuries of her abdomen." Read the Dayton Daily News Article here or watch the news story here.

Montgomery County Common Pleas Judge Timothy N. O'Connell sentenced Cordell Mitchell, Jr., to life in prison with parole eligibility in 32 years. Mitchell pleaded guilty on February 3, 2010, to charges related to the murder of social worker Stephen Branham. Read the Dayton Daily News article here.

Many convicted defendants will qualify for an appointed lawyer for their appeal. This article printed in today's Dayton Daily News points out how low appointed fees are and starts out by asking whether you'd want your loved one represented by a low-paid lawyer.

In my experience, fees for appointed counsel on appeal are even lower than those at the trial level and requests for "extraordinary fees" are granted more frequently at the trial level than on appeal. So do you want your loved one represented by an appointed attorney on appeal? Many families have no choice since they simply cannot afford to hire a private lawyer. But if you can afford to hire a private lawyer for the appeal, you may want to do so.

Montgomery County pays $50.00 per hour up to $1500.00 for appeals from felony convictions. That amounts to just 30 hours of work. I was appointed to this appeal in Montgomery County and I spent 48.9 hours on the case. When I do appeals, I put in as much time as it takes to give my clients the best chance to win. I won the appeal and the defendant's prison term was shortened by 10 years. Since I spent 48.9 hours on the appeal, I made just $30.50 an hour, before taxes and expenses. And Montgomery County pays significantly more for appointed appeals than the other counties within the Second District.

If the lawyer appointed to your appeal has the goal of winning your appeal despite the low fees, then you should probably stick with that lawyer. But how many appointed lawyers can win a felony appeal in just 20 or 30 hours? Or how many appointed lawyers will go beyond those fee limits knowing that their hourly fee is shrinking with each extra hour of effort?

If you want to stick with your appointed lawyer on appeal, then good luck to you. I hope one of the good ones was appointed to your case. But just remember how stifling the appointed fees are for appeals in Ohio. If you can afford a private lawyer, you may want to consider retaining one to give yourself the best chance to win on appeal. Here is a link to my tips for choosing a lawyer for your appeal.

Aggravated assault in violation of R.C. 2903.12(A)(2) requires the causation of physical harm with a deadly weapon or dangerous ordnance. But in Wendy Hinzman's case, the trial judge failed to instruct the jury as to what constitutes a deadly weapon or dangerous ordnance. The Eighth District Court of Appeals speculated that a high-heeled shoe might meet the definition of "deadly weapon," but decided that the jury could not have known that since the trial judge did not provide them with the legal definition of "deadly weapon." The aggravated assault conviction was reversed and the case was remanded for a new trial on that charge as you can read by clicking here.

That is not what the Ohio Supreme Court said. In State v. Speer, 2010-Ohio-649, the OSC said "[a] hearing impairment by itself does not render a prospective juror incompetent to serve on a jury" (¶ 26). But the OSC also said that "the trial court's paramount duty is to ensure that the accused is afforded a fair trial" (¶ 29).

I would argue that a person with a hearing impairment such that they cannot perceive voice inflections cannot be jurors in criminal trials where any witnesses will testify. The OSC stated in Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, that "[t]he underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view the witnesses and observe their demeanor, gestures, and voice inflections, and use these observations in weighing the credibility of the proffered testimony" (emphasis added).

It would follow that jurors must also be able to observe voice inflections in determining the credibility of each witness. In State v. Speer, a hearing impaired juror had to read lips and read a transcript when a recording was played. Therefore, the OSC determined that Speers did not receive a fair trial.

Since observing voice inflections plays into the assessment of a witnesses' credibility, how could a person who cannot observe voice inflections sit as a juror in a case where the most important consideration is that the accused gets a fair trial?

Read the Ohio Supreme Court's decision in State v. Speer here and watch the oral argument here.

Shannon N. Smith was found guilty of voluntary manslaughter and tampering with evidence in the stabbing death of Robert Takach, II. Read the Dayton Daily News story here or the story at whiotv.com by clicking here.

She was sentenced to ten years as you can read here.