Ohio Criminal Appeals Lawyer Blog

How to check a lawyer's record on appeal.

2010-03-11T23:35:03Z

It is important for you to know how to check a lawyer's record on appeal before you hire him or her. How many appeals have they handled? How many have they won? How many have they lost? From looking at the opinions of the Court of Appeals, does it look like the lawyer put a lot of work into trying to win the appeals they lost?

You can search for Court of Appeals decisions by a lawyer's name or Supreme Court Number (you should try both ways to make sure you do not miss anything). Let's use Appeal Lawyer Robert Alan Brenner as an example. I practice in the Second District. When you go to the web site (for which there is a link at the end of this paragraph), pick "Second District Court of Appeals" under "Source," pick "Anytime" under "Decided," enter "Brenner" in the "Full text" search area, make sure "Topics/Issues" is checked and click "Submit." You can see every case I handled in the Second District Court of Appeals that made it to a decision. Some of those are not my cases since "Brenner" will pull up some miss-hits, but you get the idea. Check each case by clicking on its link to confirm you found the attorney you were looking for. Here is the link to the web site.

Make sure you check a lawyer's history when you are considering hiring them. Or you could just trust what the lawyer tells you. You know, how great they are, how they can handle your situation, how much experience they have with your kind of case, etc. But if I were you, I'd run a search.

And do not forget that you do not know who is actually doing the appellate work in these cases. Just because a particular lawyer's name is on a decision does not mean they reviewed the transcript and the rest of the record, did the research, or even wrote the brief. Word has it that a popular local firm uses a lawyer outside of Ohio for their appellate work. As I have said elsewhere on this site, I do all the appellate work myself on all the cases I handle. And since I am located in this area, I can go to the clerk's office myself, view the evidence myself, and even visit important landmarks related to the case.

Aggravated Assault Conviction Reversed

2010-03-04T20:20:42Z

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.

The Hearing Impaired Cannot be Jurors in Ohio Criminal Trials

2010-03-04T01:47:12Z

That is not what the Ohio Supreme Court said. In fact, the Ohio Supreme Court said the opposite 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 Smith sentenced to ten years

2010-03-03T22:34:43Z

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.

Ohio Criminal Rule 32(B) regarding the right to appeal

2010-02-25T21:57:29Z

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.

Public Intoxication Requires a "Public Place"

2010-02-22T21:30:19Z

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.

Criminal Defense Appeal Lawyers are not Magicians or Miracle Workers

2010-02-17T03:23:10Z

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 sentenced to the maximum

2010-02-04T17:51:27Z

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.

Fifth Degree Felony Violation of a Protection Order Reversed

2010-01-29T19:09:51Z

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 sentenced in Xenia

2010-01-15T04:01:15Z

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.

Serving time because his lawyer missed an issue on appeal?

2010-01-08T18:51:32Z

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.)

State v. Whitfield, 2010-Ohio-2

2010-01-05T22:18:53Z

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.

Criminal Rule 41 & R.C. 2933.21, State v. Jacob, 2009-Ohio-7048

2009-12-31T00:23:06Z

The Second District Court of Appeals of Montgomery County, Ohio, reversed a trial court's decision overruling a motion to suppress evidence that was seized in California based on a warrant issued by the Miamisburg, Ohio, Municipal Court. As the Court of Appeals pointed out, Criminal Rule 41 allows judges to issue warrants to search and seize property within the court's territorial jurisdiction, and Revised Code Section 2933.21 states that a judge may "within his jurisdiction" issue warrants to search a house or place. Since California is not within the jurisdiction of any Ohio court, the warrant was invalid and no reasonable police officer could rely on it in conducting the search and/or seizure of evidence. Read the case by clicking here.

Greene County Judge Campbell erred when he failed to merge allied offenses of similar import

2009-12-30T18:54:03Z

Judges must merge allied offenses of similar import even when the defendant pleads guilty and the sentence is agreed to beforehand. In the case of State v. Day, the Second District Court of Appeals for Greene County determined that Judge Campbell erred when he failed to merge an aggravated burglary conviction with a burglary conviction which were based on the same facts. Read the decision by clicking here.

Revised Code Section 2929.191 applies to sentences imposed on and after July 11, 2006

2009-12-22T22:38:47Z

I wrote about post-release control here.

Imposing the correct period of post-release control has been difficult in too many instances in Ohio. As a result, there are several cases decided by the Ohio Supreme Court which deal with how to handle a case where post-release control was either not imposed at all or not correctly imposed pursuant to Section 2967.28.

Today the Ohio Supreme Court ruled that (and this is from the Syllabus of the Court which is consistent with what is stated in the opinion you can read by clicking here, State v. Singleton, 2009-Ohio-6434), "[f]or criminal sentences imposed prior to July 11, 2006, in which a trial court failed to properly impose postrelease [sic] control, trial courts shall conduct a de novo sentencing hearing in accordance with decisions of the Supreme Court of Ohio." That is right, a whole new sentencing hearing must be held under the remedy established by the Court which applies to any sentence imposed prior to July 11, 2006. It is as if the sentencing never took place just because the trial judge messed up on the post-release control.

The second part of the Court's holding today is that "[f]or criminal sentences imposed on and after July 11, 2006, in which a trial court failed to properly impose postrelease [sic] control, trial courts shall apply the procedures set forth in R.C. 2929.191." R.C. 2929.191 allows the trial court to prepare and issue a correction to the judgment of conviction instead of having to have a new sentencing hearing.

Read the Ohio Supreme Court's decision in State v. Singleton, 2009-Ohio-6434, by clicking here or watch and/or listen to the oral argument by clicking here.