Ohio Criminal Appeals Lawyer Blog

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.

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.

The case of State v. Burkholder, 2009-Ohio-5526, is a good example of why you should not go it alone on appeal. Barry Burkholder was apparently indigent but he did not send a notarized affidavit of indigency to the Second District Court of Appeals. So the Court of Appeals informed him that he would not get a criminal defense lawyer for his appeal. Instead, Barry tried to go it alone, but he basically sent an incoherent letter making conclusory allegations without getting a transcript made of the proceedings in the trial court. The Court of Appeals said its hands were tied as you can read by clicking here.

I mentioned elsewhere on this site that your best bet is to get a good criminal defense lawyer for your appeal. Here's an example of why. The State actually appealed - in the case you can read by clicking here - to the Eighth District Court of Appeals. When the State appealed on one issue, the defense decided to cross appeal on another issue. But the defendant filed his cross appeal one day late. Just one day. So the Court of Appeals said that it lacked jurisdiction to hear the cross appeal and dismissed it instead. Get yourself a good criminal defense lawyer on appeal to give yourself the best possible chance at winning your appeal. You cannot win your cross appeal on the merits if the Court of Appeals does not have jurisdiction to consider it at all.

The title "Criminal Defense Attorney" or "Criminal Defense Lawyer" is a misnomer and is sometimes used as a weapon against those who represent the legal interests of the accused. Have you ever heard "how can that lawyer defend him?" or "as a criminal defense lawyer, I could not defend her." Or how about "how can those criminal defense lawyers sleep at night defending those people?"

Well, as a criminal defense lawyer representing the legal interests of criminal defendants on appeal, I have never defended the actions of any of my clients. I am not in favor of and I do not "defend" rape, murder, child molestation, burglary or even shoplifting or jaywalking. I have never claimed on appeal that the crime for which the person was convicted should not be a crime.

But those who could never see themselves as criminal defense lawyers best understand that what "criminal defense lawyers" do is vital to our justice system. The Constitution of the United States requires that the criminally accused receive the effective assistance of counsel. And so does the Ohio Constitution. So if you want to lock someone up for the rest of their lives or "fry" them (for those in favor of the death penalty), you better hope the accused has the effective assistance of counsel or the conviction and/or sentence will not stand up to scrutiny by reviewing courts.

I do not see myself as defending criminals or crimes. What I do as the lawyer for the accused is aggressively assert the legal rights of the accused (be they innocent or guilty). I challenge the State's case. The State builds a wall (their case) and the counsel for the accused tries with all their might to knock it down. Only when the wall is still standing after the accused was afforded the effective assistance of counsel can we know a conviction and/or sentence is "valid."

As a lawyer representing the accused on appeal, trying to knock down walls is my job. I am not going to cop out and claim "I am just doing my job" because I chose this job. This job is an important one. If your calling is to be a prosecutor, go do that. But if your interest is in making sure our legal system is as fair as possible, join the "dark side" and become a "criminal defense lawyer," although that title is a misnomer.

What if your criminal defense lawyer files an "Anders Brief" in your appeal? This is what the Seventh District Court of Appeals said about Anders Briefs in a decision you can read by clicking here, 2009-Ohio-5075:

"It is well settled that an attorney appointed to represent an indigent criminal defendant on his or her first appeal as of right may seek permission to withdraw upon a showing that the appellant's claims have no merit." State v. Odorizzi (1998), 126 Ohio App.3d 512, 515, 710 N.E.2d 1142. "To support such a request, appellate counsel must undertake a conscientious examination of the case and accompany his or her request for withdrawal with a brief referring to anything in the record that might arguably support the appeal." Id. The reviewing court must then undertake a full examination of the proceedings to determine whether the case is wholly frivolous. Id."

Most Courts of Appeal that are not the Seventh District cite the case of Anders v. California (1967) 386 U.S. 738, which you can read by clicking here.

An "Anders Brief" may not be harmful if there are absolutely zero "non-frivolous" issues in your case that can be raised in your appeal. But what if your appointed lawyer is wrong? What if they do not take the time because they are underpaid on appointed appeals? What if the Court of Appeals does not have the time or resources to scour the record to come up with arguments on your behalf? What can you do if you have nobody advocating for you on appeal?

The Court of Appeals will generally give you some time to file your own brief, but being that inmates generally do not have law degrees, experience filing appeals, or unrestricted access to the outside world, you may have a hard time coming up with a winning brief. If you do not get the brief done in the allotted time, you might be able to have the appeal reopened with an Appellate Rule 26(B) application to reopen the appeal. That is what the defendant did in the case you can read by clicking here, 2008-Ohio-443. He lost his appeal but the Court of Appeals said there were "reasonable grounds" for the appeal. That is after the Court had dismissed his first appeal pursuant to Anders.

The Second District Court of Appeals has said the proper way to deal with an Anders dismissal is to appeal to the Ohio Supreme Court or do an application to reopen the appeal as you can read by clicking here, 2001-Ohio-1701. The Court would not address the defendants arguments in a petition for postconviction relief because the defendant had not "employed the proper vehicle to raise the argument."

You are in a tough spot if an Anders Brief is filed in your direct appeal. Having the appointed attorney on appeal means you were indigent to begin with. And if your family cannot foot the bill for a private lawyer who is experienced with doing criminal defense appeals you may be out of luck. You could try the local or state public defender but you already have your appointed lawyer so they might not help.

Anders Briefs should be a rare thing but one attorney in the 12th District filed 10 that were dismissed this year and 49 in about a four year span. In the Second District there have been about 34 cases dismissed pursuant to Anders this year. If you have an Anders Brief filed in your case but you thought you had some valid arguments on appeal, all I can do is wish you the best of luck if you cannot hire a lawyer to look over the record for you.

I get letters now and then from inmates who want me to do their appeal (I assume for free because they don't talk about where the money is coming from to pay my legal fees), and they start out by telling me they are "innocent." Maybe that is supposed to persuade me to take on their case. But what does innocence have to do with appealing a criminal conviction or sentence?

There is no "assigned error" on appeal that says, "please reverse my client's conviction because he is innocent." It does not exist on direct appeal. What you argue instead is how the conviction is "against the manifest weight of the evidence" or that the conviction it is not based upon "sufficient evidence." It is all about "evidence," not "innocence."

Haven't we all heard about people released from prison because it turned out they were innocent? What stopped them from being convicted? Nothing! There was sufficient evidence and their conviction was not against the manifest weight of the evidence. Sometimes there are eye witnesses and even "confessions."

Innocent people are sometimes convicted and guilty people sometimes go free. So what does guilt or innocence have to do with it?

Innocence has nothing to do with the direct appeal. The guilty and innocent have the same tools at their disposal on appeal. What you have to raise are legal issues that can win a reversal of your conviction or sentence. Maybe there are none. Then you lose your appeal. But if there are reversible errors you can point out to the Court of Appeals, you could get your conviction or sentence reversed - whether you actually did the crime or not.

It is not about "innocence" or guilt on direct appeal, so don't bother telling me you are "innocent."

(But check out R.C. 2953.21 regarding petitions for postconviction relief where "actual innocence" is relevant.)

The best practice for a criminal defense lawyer on appeal is to ask their client whether they want to appeal. If the defendant wins on appeal, they may face more potential punishment than what they already received. For example, if a defendant enters a plea agreement with the State, they usually do so because they are promised something less than what they could have in terms of punishment. Do you really want to get your plea vacated on appeal? You may not get the same deal next time or if you are convicted after a trial, the judge is not bound by the previous plea agreement. What if you are convicted after a trial and are sentenced to five years in prison when you faced twenty? You should consult with your appellate lawyer to determine what you face if you should win on appeal.

Discussing the risks of winning on appeal is one of the first things you should do with your criminal defense appeal lawyer. When my clients on appeal decide they want to take the risk(s) by winning the appeal, I do everything I can to help them achieve their goal. Just know that sometimes you should be careful what you wish for.

My suggestion? Hire a lawyer. If you cannot afford one, contact the local or state office of the public defender. Appeals are not something I would recommend you do yourself.

Make sure a "notice of appeal" is filed on time. To do this, your attorney will consult Ohio Appellate Rules 3 & 4. Those say that, generally speaking, a notice of appeal must be filed "within thirty days of the later of entry of the judgment or order appealed from." It must be filed "with the clerk of the trial court."

If you are out of time since the thirty days has passed, your attorney will consult Appellate Rule 5 about delayed appeals. But at this point you will need the permission of the court of appeals. Much better to get your notice of appeal filed on time. Click here for an example of the danger in missing the thirty day limit (and the other side of the argument in the dissent).

Again, I would say you should get your criminal defense lawyer to file the notice of appeal and/or get a lawyer to do your appeal. If you want to check out the Ohio Appellate Rules you can click here.

In Ohio's Second Appellate District, it is not unusual for an appeal to take a year from the notice of appeal to a decision.  So if you or your client is serving a "short" sentence, you should look into "suspending execution of the sentence" (getting a stay) and getting on the accelerated calendar if you think you could win the appeal.

Ohio's Appellate Rule 8 deals with suspension of execution of a sentence pending review on appeal.  It explains how a stay must be sought in the trial court before asking the court of appeals. App R 8(B).  And local rules should be consulted for how to get your appeal on the "accelerated" calendar.  For example, in Ohio's Second Appellate District, Rule 2.8(B) explains what you need to do to request that your appeal be expedited for review.