Ohio Criminal Appeals Lawyer Blog

Ohio Appellate Rule 13(D) states:

"Documents presented for filing shall contain an acknowledgment of service by the person served or proof of service in the form of a statement of the date and manner of service and of the names of the persons served, certified by the person who made service. Documents filed with the court shall not be considered until proof of service is endorsed on the documents or separately filed."

From my experience, lots of Ohio lawyers do not follow this rule. Nothing is ever done about it, but you would think lawyers could follow rules of procedure. Think again.

Most of the time I am served with a document filed by the State, I am always served with a file-stamped copy. Service with a file-stamped copy is prima facie evidence that Rule 13(D) was violated. Rule 13(D) indicates the "proof of service" is supposed to be "certified by the person who MADE service" and include the name of the "persons SERVED" (as in past tense). And this makes sense. The "proof of service" is not a "promise of service." It is supposed to make lawyers play fair.

But would prosecutors violate rules? Say it ain't so. Recently I received in the mail an Answer Brief that was filed four days earlier. The post-mark is three days after the filed date. The "Certificate of Service" claims that a copy was sent to me before the brief was filed. And it was signed by a prosecutor. How could the prosecutor certify to the court that they mailed me something when it was not mailed until three days later?

This gives the State a slight advantage. Appellate Rule 18(A) states that my Reply Brief must be filed ten days after service of the State's Answer Brief. And Appellate Rule 14(C) states that three days shall be added to the prescribed period when service is done by mail. So normally I would have thirteen days from the date the State files its Answer Brief to file the Reply Brief. But if the State files the Answer Brief and then holds on to it for a few days before mailing it, I have less time to complete the Reply Brief than I would have if the State followed the rules and actually mailed a copy to me before they filed their Answer Brief (as they certified they did).

Sure I can still get the Reply Brief done and of course I would have solid ground to request an extension of time to file the Reply Brief if I needed one. But it is amazing how many Ohio lawyers are unable or unwilling to follow the rules.

China Arnold, who was convicted of killing her baby girl in a microwave, is appealing her conviction and sentence to the Second District Court of Appeals. Today was oral argument day but Arnold's attorney, Jon Paul Rion of Rion, Rion And Rion, apparently fainted while Judge James A. Brogan was asking a question. Rion is apparently okay and argument is re-scheduled. News camera's were there and you can see footage here or here.

Elsewhere in this blog I have mentioned how the "law" does not always comport with common sense (sometimes, common sense would be what non-lawyers would think of a situation). For example, it is hard to imagine that the children who are supposed to be financially supported by both parents are not "victims" of the non-custodial parent who fails to meet their support obligations. Instead, the law says, the "victim" is the Child Support Enforcement Agency (non-lawyers would say "give me a break") and the custodial parent the CSEA is supposed to hand the money to (minus some).

Who the victim is in a felony non-support of dependents case was at issue in State v. Sorrell, 2010-Ohio-1618, because Sorrell sought "ILC" or intervention in lieu of conviction. But ILC is not available to defendants whose victims were under thirteen at the time of the offense, pursuant to R.C. 2951.041(B)(7), and Sorrell's application for ILC was denied because a couple of the kids he was not supporting were under thirteen as he racked up almost 30k in arrears.

Not to worry Mr. Sorrell, because your kids are not your "victims" under Ohio law so your denial of ILC is reversed and the case is remanded "for further proceedings consistent with [the] opinion" as you can read by clicking here. The "victims," the CSEA and the mom, were both above thirteen and so Mr. Sorrell could still qualify for ILC on remand.

Bottom line? Don't give up on winning your appeal just because common sense is against you. The law may be on your side.

The Eighth District Court of Appeals reversed a conviction for aggravated assault because the trial judge incorrectly instructed the jury on how to handle the felonious assault charge and the aggravated assault charge. Felonious assault requires a person to either cause serious physical harm to another or to cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordnance. R.C. 2903.11.

Aggravated assault is an "inferior degree" of felonious assault because the elements are the same except the jury must find that the act was committed because the person "while under the influence of sudden passion or in a sudden fit of rage" committed the act and the sudden passion or sudden fit of rage was "brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force." R.C. 2903.12.

The jury instructions were wrong because the trial judge told the jury to only consider aggravated assault if they found the defendant "not guilty" of committing felonious assault. The problem is that a finding of "not guilty" on felonious assault is inconsistent with a finding of "guilty" of aggravated assault and, as the Ninth District Court of Appeals has stated, "an inconsistent response to the same count requires reversal." State v. Bosley (Oct. 7, 1992), 9th Dist. No. 15547. Read the decision in State v. Ruppart, 2010-Ohio-1574, by clicking here.