Ohio Criminal Appeals Lawyer Blog

The State appealed a trial court's ruling on a motion to suppress evidence. The prosecutor filed an electronic version of the suppression hearing (an audio or video recording) but failed to have a paper transcript created. The Court of Appeals for Montgomery County stated that it had discretion, based on former Appellate Rule 9, to review the electronic version of the motion to suppress hearing, but it chose not to. Instead, the Court of Appeals presumed the regularity of the proceedings below and affirmed the ruling of the trial court.

In the newly amended version of Appellate Rule 9, at B(1), it states, "It is the obligation of the appellant to ensure that the proceedings the appellant considers necessary for inclusion in the record, however those proceedings were recorded, are transcribed in a form that meets the specifications of App. R. 9(B)(6)."

Read the decision in State v. Watson, 2011-Ohio-5213, 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

In Ohio Courts of Appeal there will be three judges deciding your appeal. What if two of the appellate judges get it wrong? You lose! The majority opinion is what decides your fate. Even if the dissenting judge makes a well reasoned opinion based on the facts and law. You still lose. And do you think the Ohio Supreme Court is going to fix it? Think again. The OSC is not into "error correction."

That appears to be what happened to Thomas Ricks who was on trial for aggravated murder and other crimes. Ricks, aka "Peanut," was a "shooting suspect" along with his co-defendant Gipson. Gispson did not testify at Ricks' jury trial, but the prosecutor had a cop testify that Gipson identified Ricks as "Peanut." Hearsay right? Oh no, the prosecutor argued, it is just to show why the cop did what he did. Yeah, right. And the trial judge allowed it over objection. The judge told the jury they did not hear that Gipson identified Ricks as "Peanut" for the truth of the matter asserted. The judge said, just because you heard that Gipson identified Ricks as Peanut does not "necessarily mean that that was Peanut ... but they are really brought in for the purpose to explain this officer or that department's investigation, why they were doing what they were doing."

The dissenting judge wrote a well-reasoned opinion in which he showed how the other two appellate judges got it wrong in three different ways. They used the wrong standard of review, they erred by affirming the actions of the trial judge, and the prosecutor committed prosecutorial misconduct by getting this damaging hearsay before the jury and then argued it as substantive evidence of guilt. Read the reasoning by the majority in paragraphs 59 to 69 and then the dissenting opinion from paragraph 103 to 135 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

To timely appeal from a Sentencing Entry that meets the requirements of a Final Appealable Order, you need to file a Notice of Appeal within 30 days pursuant to Appellate Rule 4. Otherwise you would have to ask permission to appeal by filing a Motion for Delayed Appeal pursuant to Appellate Rule 5. You have to set forth your reasons for being late. The Court of Appeals could turn you down.

But there is still hope for those convicted years ago who never appealed from their Sentencing Entries. If your Sentencing Entry does not meet the requirements of a Final Appealable Order, you could ask for the Sentencing Entry to be corrected so it meets the requirements of a Final Appealable Order. THEN you could file a timely Notice of Appeal from that and have your appeal.

That is what happened in the Lucas County Case of James D. Lawson. Lawson was convicted in 1994. He never appealed. But he never had a Final Appealable Order either since the 1994 Sentencing Entry did not set forth how he was convicted. Lawson requested in 2009 that the Sentencing Entry be fixed so it was a Final Appealable Order. It was fixed and Lawson filed a timely Notice of Appeal from that fixed Entry - the first Final Appealable Order in his case!

The State filed a motion to dismiss the appeal. The State argued that Lawson's appeal was untimely but the Court of Appeals said the Notice of Appeal was timely filed within 30 days of the fixed Termination Entry. The State argued res judicata and that Lawson could have raised the issues he raises now back in 1994. No he could not, says the Court of Appeals, because he did not have a Final Appealable Order to appeal from. The State argued the doctrine of "laches" (his delay prejudiced the State), but the Court of Appeals said there was nothing Lawson could have appealed from until 2010 when he got his first Final Appealable Order in his case.

Were you sentenced years ago and now want to appeal? Maybe you can if you never had a Final Appealable Order. Read the decision in State v. Lawson, 2011-Ohio-4683, 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

Did you lose your appeal in the last 90 days? Don't know what to do? Think your criminal appeal lawyer may have done a bad job? One option you have when you lose an appeal in one of the district courts of appeal in Ohio is to file an application for reopening your appeal pursuant to Ohio Appellate Rule 26(B). Through Rule 26(B) you would raise issues that your appellate counsel failed to raise. The court of appeals will decide whether to reopen your appeal. Maybe your appellate counsel missed a winning issue. Maybe the lawyer who handled your criminal appeal did not get all the transcripts they should have gotten. Maybe, just maybe, the lawyer you hired to do your appeal handed the job to a paralegal, law clerk, or someone else and it was that person that missed an issue that should have been raised in your appeal. A Rule 26(B) application is one option you have when you lose your appeal, but it has to be filed "within ninety days from journalization of the appellate judgment unless the application shows good cause for filing at a later time." Maybe you should have a criminal defense lawyer who has experience in doing criminal appeals in Ohio look over your case.

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

Ohio Appellate Rule 9 states that transcripts must be certified for their accuracy or correctness. Under section A, a "counsel" may type or print portions of a video transcript but the "counsel" must certify that the pages are an accurate transcription of what is on the video. Under section B, if a "reporter" (court reporter) prepares the transcript, the reporter must certify that the transcript is correct.

Today a "pro se" Appellant lost her appeal in a case where the court reporter did not transcribe the voir dire. The pro se Appellant attached additional pages of transcription to her brief. The pages were not certified for their accuracy or correctness by the reporter and so the Court of Appeals could not rely on them.

Read paragraph ten of the Greene County Court of Appeals 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.

Previously I warned you about appealing and the dangers you face if you decide to appeal. Read my blog entry on that topic here. A recent case makes my point.

Back in 2008 I won an appeal for Quintin A. Howard. I was able to get him out of his plea. On remand he received a lesser sentence as you can read here. Well a co-defendant of his, Michael A. Minkner had another attorney on appeal and Minker did not raise the issue(s) I raised in Howard's appeal so Minker was stuck with a longer prison term.

If you do not raise issues you could raise on direct appeal, you are generally precluded from raising them later by "res judicata." Minker lost a couple appeals until finally someone noticed that post-release control was not properly imposed on him. He was re-sentenced pursuant to R.C. 2929.191 to fix the PRC. While in front of the trial judge, the State, Minker, and the judge all agreed that Minker's sentence should be reduced by a year. Minker was still not happy with that and so he appealed from that decision.

Problem is, the trial judge had no authority to reduce Minker's sentence at that point - only to fix the PRC problem. On appeal, the Second District Court of Appeals reversed the new sentence. The old, year-longer, sentence remains in effect. Read the decision in State v. Minker, 2011-Ohio-3106, here.

Think before you appeal. You may do yourself more harm than good by appealing.

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.

A Summit County trial judge sentenced a man to an aggregate seven year prison term on March 12, 2008. But the trial judge failed to properly sentence the defendant to postrelease control. So the case was remanded to the trial judge who corrected the postrelease control problem. But the trial judge also decided to triple the defendant's aggregate prison term. The Ninth District Court of Appeals for Summit County just ruled that the trial judge exceeded their authority in re-sentencing on anything other than the postrelease control. The aggregate seven year term remains. The Ninth District based its decision on the Ohio Supreme Court's decision in State v. Fischer, 2010-Ohio-6238. Read the Ninth District's decision here.

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

The Second District Court of Appeals has adopted a new local rule. Local Rule 2.24 requires prosecutors who decide they are going to concede an error raised by a Defendant/Appellant to notify the administrator of the Court of Appeals so the case does not sit around another few months before a decision is rendered. Defendants/Appellants should take note of this rule so they can help move things along in a case where the State concedes an error in an Answer Brief.

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.

Besides appealing to the Ohio Supreme Court and/or doing an application for reconsideration in the Court of Appeals, Ohio Appellate Rule 26(B) allows you to file an "application for reopening" your appeal "within ninety days from journalization of the appellate judgment unless the applicant shows good cause for filing at a later time." You argue in the application that your appellate counsel provided ineffective assistance of counsel on appeal when she failed to raise winning arguments (assuming there are any). App. R. 26(B)(5) states that "[a]n application for reopening shall be granted if there is a genuine issue as to whether the applicant was deprived of the effective assistance of counsel on appeal." Common sense would tell you to carefully read the appellate rules and hire an experienced criminal appeals lawyer. If you decide that is me, contact me by completing the Contact Me form on the Contact Me page.

"Affirmed and Remanded." That is something you don't see everyday. Usually you see "Affirmed" or "Reversed and Remanded" when you appeal a criminal conviction or sentence. But in this case the Eighth District Court of Appeals overruled the defendant/appellant's arguments but noticed an error the defendant's lawyer did not notice. At the sentencing hearing, the trial judge sentenced the defendant to ten years in prison. But the sentencing entry stated that the defendant was sentenced to eleven years in prison. Certainly the defendant can be grateful that the Court of Appeals caught the error. Read the decision by clicking here.

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.

Ohio Courts of Appeal generally will not publish the full names of certain victims or juveniles accused of crimes (although they inexplicably publish full birth dates even when unnecessary). This generally includes adult and child victims of sex crimes, victims who are minors, and juvenile offenders. The Courts have their reasons for protecting these identities and the Eighth District Court of Appeals states that they are following their own policies.

But these days it is not enough to have the Courts of Appeal use initials in their opinions to protect identities. Nowadays, many counties provide public access to all the documents filed in appeals. These include the Appellant's Merit Brief, Appellee's Answer Brief, and Appellant's Reply Brief. So if the Courts of Appeal are going to be successful at concealing the names of these special victims or juvenile offenders, they will need a little help from the litigants - starting with the Appellant.

The Courts of Appeal Judges - you know, the ones who will be deciding your client's case - are sensitive to this issue. A little responsible editing by Defendants/Appellants may go a long way in gaining the respect of the Court and focusing the Court on the real issues in the case.

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.

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.