Ohio Criminal Appeals Lawyer Blog

Harry Bobo was convicted in 2002 of unlawful sexual conduct with a minor and was placed on community control (probation). In 2008 the trial judge found that Bobo violated terms of his community control because Bobo failed to report to his community control officer (probation officer). Even though the State presented no witnesses or evidence, the trial judge found that Bobo violated terms of his community control and sentenced Bobo to 12 years in prison! The Court of Appeals for Cuyahoga County reversed and remanded in 2010-Ohio-3405. On remand, the trial judge held a second hearing on the issue, found Bobo violated the terms of his community control and sentenced him to 12 years in prison. Bobo had to appeal again. The Court of Appeals reversed the judgment of the trial court and ordered Bobo discharged in 2011-Ohio-4503. The Court of Appeals pointed out that "the law of the case doctrine dictates that insufficient evidence was presented to prove that Bobo violated community control." The Court stated that the doctrine "provides that the decision of a reviewing court in a case remains the law of the case on the legal questions involved for all subsequent proceedings in the case at both the trial and reviewing levels.

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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If you are put on probation (community control) in Ohio, you may have your community control revoked if you violate any conditions of your community control. But you must be afforded due process of law before your probation can be revoked. Based on the United States Supreme Court decision in Gagnon v. Scarpelli (1973), 411 U.S. 778, a defendant must be provided written notice of the claimed violations, disclosure of the evidence against him, an opportunity to be heard and to present witnesses and documentary evidence, the right to confront and cross examine adverse witnesses, a neutral and detached hearing body, and a written statement by the factfinder of the evidence relied upon and the reasons for the revocation.

The Eighth District Court of Appeals of Cuyahoga County just reversed a trial judge who abruptly called for a probation revocation and hearing and appointed defense counsel on the spot ("Mr. Defendant, meet your Ohio criminal defense lawyer"). The court of appeals found that the defendant had not received even "minimal due process at his community control violation hearing." But one court of appeals judge dissented and you can read both sides of the debate 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.

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.)