Ohio Criminal Appeals Lawyer Blog

The Fourth District Court of Appeals for Gallia County says that a trial judge abuses his discretion when he considers an improper sentencing factor in sentencing a defendant. The Court of Appeals reversed the sentence of a man convicted of aggravated robbery because the judge used the fact that a deadly weapon was used as a factor justifying a stiffer sentence for aggravated robbery. But to charge aggravated robbery as this defendant was charged, there had to be a deadly weapon. So the judge abused his discretion in enhancing the sentence based on the deadly weapon which was an element of the offense for which the defendant was convicted. Read the decision in State v. Sims, 2012-Ohio-238, here.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private criminal defense lawyer. Otherwise, contact your county or state public defender to see if they can help.

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Montgomery County trial judge Mary Wiseman abused her discretion when she refused to grant a one-day continuance to allow the defense to secure the testimony of a "potentially important defense witness." The Second District Court of Appeals for Montgomery County reversed the convictions and remanded the case for a new trial in State v. Fairman, 2011-Ohio-6489. The Court of Appeals cited the factors to be considered when ruling on a motion for a continuance. Those factors were identified in Ungar v. Sarafite (1964), 376 U.S. 575, 589. Read the decision in State v. Fairman, 2011-Ohio-6489, here.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private criminal defense lawyer. Otherwise, contact your county or state public defender to see if they can help.

Contact me 24/7 by sending an email to ohiocriminalappealslawyer@gmail.com

During a bench trial in the Dayton Municipal Court, a Dayton criminal defense attorney tried to question the alleged domestic violence victim on cross examination about a prior inconsistent statement she made. The prosecutor objected and the Honorable Daniel G. Gehres sustained the objection.

On appeal, the Montgomery County Court of Appeals reversed and remanded. The Dayton criminal defense lawyer did not have to make a proffer of the evidence that was excluded during cross examination (Evid.R. 103(A)(2)), "asking a witness about a prior inconsistent statement does not involve extrinsic evidence of that prior inconsistent statement" and therefore Evid.R. 613(B), and nothing in Criminal Rule 16 required the defense to turn over a prior inconsistent statement they could use in cross examination of a prosecution witness (and there was no case management plan requiring that witness statements had to be turned over by both sides). Read the decision in State v. Clifford Pierce, 2011-Ohio-4873, here.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private criminal defense lawyer. Otherwise, contact your county or state public defender to see if they can help.

Contact me 24/7 by sending an email to ohiocriminalappealslawyer@gmail.com

Judge Rastatter has been reversed by the Court of Appeals again for abusing his discretion in sentencing. An "abuse of discretion" is not easy to show. A judge's decision is an abuse of discretion if it is "grossly unsound, illegal or unsupported by the evidence."

The Second District Court of Appeals for Clark County agreed with Supreme Court Justice Lanzinger who has written "It will take a courageous judge not to 'max and stack' every sentence in multiple-count cases."

Judge Rastatter maxed and stacked the sentence for Martin Nichols even though Nichols had no prior record, Nichols showed "true genuine remorse," and the victims did not suffer more than other victims of these offenses would be expected to suffer. The Court of Appeals said Rastatter failed to consider the rehabilitation of the defendant which he was required to consider by law.

The Court reversed Nichols' sentence and remanded the case to Judge Rastatter to try again as you can read here. Another time the Court of Appeals did that, Rastatter imposed the same maxed and stacked prison term that the Court of Appeals reversed as you can read here.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private criminal defense lawyer. Otherwise, contact your county or state public defender to see if they can help.

Contact me 24/7 by sending an email to ohiocriminalappealslawyer@gmail.com

A Clark County teacher seduced a 16 year old student and engaged in sex acts with her. He pled guilty to four counts of sexual battery. Clark County Judge Rastatter and the prosecutor were disturbed by the fact that the teacher's victim loved her offender and she wanted to be with him when he gets out of prison. In order to destroy any hope or plan the victim had to be with her offender, Judge Rastatter sentenced the former teacher to fifteen years in prison. The Second District Court of Appeals reduced the prison term from fifteen to five years for reasons stated in the decision you can read here.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private criminal defense lawyer. Otherwise, contact your county or state public defender to see if they can help.

Defendants may sometimes think that judges have a God complex. A defendant in the Youngstown Municipal Court told the judge, "You're not God" and the judge gave him 60 days for contempt. The defendant told the judge, "You're not God" and the judge made it 6 months in jail. The defendant told the judge, "You're not God. I don't fear you" and the judge made it one year in jail. The defendant said, "Everybody will see that tape now" and the judge made it 18 months in jail for contempt. If the municipal court judge really thought he was God he was in for a rude awakening when an even higher power - the Seventh District Court of Appeals for Mahoning County - ruled that the trial judge abused his discretion in sentencing the defendant to 18 months in jail for contempt. Read the decision here.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private criminal defense lawyer. Otherwise, contact your county or state public defender to see if they can help.

The Eighth District Court of Appeals for Cuyahoga County found that there was "overwhelming evidence" to convict Almichael Woods of attempted murder, felonious assault, improperly discharging a firearm into a habitation, participating in criminal gang activity, and carrying a concealed weapon. He was sentenced to an aggregate term of seventeen years, but the court of appeals reversed his convictions and remanded his case for a new trial.

Why? Because the trial judge erred by closing the courtroom during the testimony of one witness. The right to a public trial is "a fundamental constitutional guarantee under the Sixth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution." And before closing a courtroom a trial judge must meet a four-pronged test that was set forth by the United States Supreme Court in Waller v. Georgia (1984), 467 U.S. 39, 46.

The trial court in this case failed to meet any of the four factors set forth in Waller as you can read here.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private criminal defense lawyer. Otherwise, contact your county or state public defender to see if they can help.

The Eighth District Court of Appeals ruled that a Cuyahoga County Trial Court abused its discretion by allowing "other acts" testimony in a trial for kidnapping and gross sexual imposition (GSI). Ohio Evidence Rule 404(B) prohibits the use of other acts evidence to prove the defendant has the propensity to commit the kind of crime for which he is on trial. There are some exceptions which allow the use of other acts evidence, but the Court of Appeals said none of those exceptions applied in this case. The Eighth District reversed the defendant's convictions and remanded the case for a new trial as you can read here.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a Dayton based criminal defense lawyer. Otherwise, contact your county or state public defender to see if they can help.

Brandon Anderson was on trial for murder and identification of the shooter was important to the State's case. Tobias Epps testified for the State but failed to testify that he positively identified Brandon Anderson as the shooter. After Epps finished testifying at trial, he conferred with one of the State's investigating officers. The officer and Epps then went to the assistant prosecutor. The prosecutor asked to recall Epps to the witness stand and the judge allowed it over Anderson's objection. The Court of Appeals for Hamilton County determined that the trial judge abused his discretion in allowing the State to recall the witness. The second time Epps testified, he positively identified Anderson as the shooter, and he was the only witness to do so. The Court of Appeals reversed and remanded for a new trial. State v. Anderson, Hamilton County Appellate No. C-0903238, 2010-Ohio-6234.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private attorney. Otherwise, contact your county or state public defender to see if they can help.
10:05 PM 9/11/2011

A defendant pleaded "no contest" to a fourth degree misdemeanor charge of reckless operation of a vehicle. The trial judge suspended his driver's license for five years when the maximum license suspension for a fourth degree misdemeanor is three years. The court of appeals noted that the trial judge had a duty to "apply the law as written" and that a judge's sentence is void when they try to impose a sentence greater than that allowed by law. The court of appeals reversed and remanded the case as you can read here.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private attorney. Otherwise, contact your county or state public defender to see if they can help.

A Cuyahoga County Judge abused their discretion when they refused to accept a plea agreement reached by the Defendant and the State. Although trial judges may use their discretion to accept or refuse plea agreements, they abuse their discretion by rejecting a plea agreement based on a blanket policy they created. For example, in this case the trial judge had a blanket policy of refusing to accept plea agreements in any case where a trial date has already been set. It must go something like, "sorry we already put a date on the calender for trial and so I won't accept the plea agreement reached by the State and Defendant which is beneficial to both parties and would save the taxpayers thousands of dollars. Nope, we have the trial date so we have to have a trial based on my policy. After all, I am the Judge." Read the Court of Appeals decision here.

The decision to grant or deny a defendant's motion to continue his trial is left to the "sound discretion" of the trial judge. The Sixth District Court of Appeals determined that a Lucas County Judge abused her discretion in denying a request for a continuance in State v. Packer, 2010-Ohio-2627.

Packer was representing himself as he faced obstruction of justice and nonsupport of dependents charges and a week before trial he sought Psychiatric care due to serious emotional problems he was having. The doctor prescribed two drugs and those drugs impaired Packer's ability to defend himself. He requested a continuance, but the trial judge denied his request since she felt it was just a "delay tactic" and Packer was just "trying to delay the inevitable."

When Packer did not show for trial the next day, the judge even allowed the State to put on seven witnesses with no defense present whatsoever (now there's justice for you). Thankfully, the Sixth District Court of Appeals reversed on appeal because the trial judge's attitude in denying the requests for a continuance on day one was "unreasonable, arbitrary or unconscionable." Read the decision by clicking here.