Ohio Criminal Appeals Lawyer Blog

House Bill 86 became effective on September 30, 2011. A Franklin County defendant was convicted of abduction in 2009. The penalty for abduction under 2905.02(A)(1) or (2) or in some cases under 2905.02(B) was effectively reduced by H.B. 86 because it reduced the maximum penalty for many F3's - including abduction as an F3 (from 5 years to 3 years). But could a Franklin County defendant benefit from this reduction even though he was convicted well before the effective date of the new law?

The defendant in 2009 was placed on community control sanctions. Therefore he was facing a prison sentence that "may" be imposed. Therefore, it was not imposed yet when H.B. 86 became effective. Since his sentence was "not already imposed," the defendant benefitted from the reduction in H.B. 86 because of R.C. 1.58(B). That sections states:

"If the penalty, forfeiture or punishment for any offense is reduced by a reenactment or amendment of a statute, the penalty, forfeiture, or punishment, IF NOT ALREADY IMPOSED, shall be imposed according to the statute as amended." R.C. 1.58(B) (emphasis added).

As a result, the 4 year prison term that the judge imposed upon the revocation of the defendant's community control was contrary to law as you can read in State v. Nistlebeck, 2012-Ohio-1765.

Contact me if you need an Ohio Criminal Defense Lawyer for your Franklin County appeal or other post conviction matter.

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

House Bill 86 (2011 Am.Sub.H.B. No. 86) changed many things regarding sentencing. But the bill does not apply to those who were sentenced before the effective date, says the Twelfth District Court of Appeals for Clermont County. A Clermont County defendant was sentenced before the effective date of H.B. 86, but his sentence was reversed in part and the case was remanded for an allied offenses sentencing error. Then he was re-sentenced after the effective date of H.B. 86. On appeal from that re-sentencing, the defendant argued that the new law should apply. But the Court of Appeals said there is nothing in the language of H.B. 86 or in its legislative history that would indicate that the new law should apply to this defendant at his re-sentencing. Read the decision in State v. Craycraft, 2012-Ohio-884, 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 took guilty pleas from a defendant on one count of rape and two counts of gross sexual imposition. Then Judge Rastatter maxed and stacked the defendant (maximum sentences on each count, all to be served consecutively with each other).

On appeal, the defendant's appointed appellate counsel argued it was plain error for Judge Rastatter to max and stack the defendant's prison terms without making required findings of fact. Judicial findings were required before the decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, by R.C. 2929.14(E)(4). That section was declared unconstitutional by the Ohio Supreme Court. After Foster, the only check on Ohio Judges was the "abuse of discretion" standard of review for sentences that were not "contrary to law."

House Bill 86 amended R.C. 2929.14 to put judicial fact finding back between heavy-handed judges and maximum, consecutive sentences. But the requirement for judicial fact finding did not apply to this defendant's case as you can read here in State v. Ford, 2011-Ohio-5203. His only hope was to argue abuse of discretion or to try to get out of his plea. He did neither and his sentence was affirmed on appeal.

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

"Judicial Release" is Ohio's form of early release from prison. Let's say a trial judge sentences you to 2 or 5 or 10 (or more) years in prison. You can come back to the trial court - when you become an "eligible offender" - and ask to be let out of prison early and placed on community control. This is all covered in R.C. 2929.20.

How do you do it? You have to file a motion for judicial release (or the trial court can do it on its own motion). Although it was last revised before the effective date of House Bill 86, the Ohio Public Defender's pro se packet can give you some guidance (but remember this is based on the law before H.B. 86! -- who is an "eligible offender" has changed). Here is a link to the OPD's self-help packet.

You have to be realistic about your chances of getting judicial release. Look at the crime(s) you were convicted of. Consider that you are asking the trial judge who may have nailed you on sentencing day to now let you out early. Why is the trial judge going to change his/her mind now? Maybe they will, but just be realistic about your chances.

There is no "right" to judicial release. It is totally up to the trial court. Totally. And maybe you would get it if you had Judge A, but you are stuck with Judge B, or vice versa. And you cannot appeal if you are denied. So it is REALLY up to the trial court.

When do you become an "eligible offender"? That depends on what kind of sentence you are serving. If an inmate was sentenced to all non-mandatory time in prison, they may have to serve 10 or 55 or 83 percent of their prison term before they can ask for judicial release - depending on the length of your prison term. If you served mandatory time, you may have to wait longer. One unfortunate thing about judicial release is that the clock on when you become an eligible offender does not start to run until you are "delivered to a state correctional institution." But what about all your jail time credit you earned in the county jail?

How many times can you ask for judicial release? There is no limit indicated in R.C. 2929.20, but the trial court can shut you down for good. If the trial court denies your motion for judicial release without conducting a hearing and it denies your motion "with prejudice," you cannot again ask for judicial release. If the court grants you a hearing on your motion and then denies your motion, you cannot again ask for judicial release. So you have to be wise about when to ask. Check out R.C. 2929.20(D).

Getting out early sounds good, but you still have to go through a sentencing judge to get there. Good luck.

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 felony of the first degree used to bring a sentence of 3, 4, 5, 6, 7, 8, 9, or 10 years in prison. But H.B. 86 amended R.C. 2929.14 so that a conviction for a Felony of the First Degree can bring a sentence of 3, 4, 5, 6, 7, 8, 9, 10, OR 11 years in prison.

Judges are given more options on F3s. It used to be that a trial judge could sentence an offender in Ohio to 1, 2, 3, 4, or 5 years in prison on a conviction for a third-degree felony. Now there are two categories of F3s in Ohio. For violations of certain offenses, a trial judge can sentence an offender to 12, 18, 24, 30, 36, 42, 48, 54, or 60 months. In the second category of F3s (those offenses that do not fit into the first category), the sentencing options are 9, 12, 18, 24, 30, OR 36 months.

See the amended version of R.C. 2929.14 for more details.

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

House Bill 86 offers new hope to many Ohio inmates who were previously ineligible for judicial release. Judicial release is a way that an "offender" (prison inmate) can have his nonmandatory sentence reduced by the trial judge. House Bill 86 provides new guidelines as to when you can request judicial release. It used to be that you could not request judicial release if your "stated prison term" was greater than 10 years.

But now you can file a motion for judicial release if your aggregated nonmandatory prison term or terms is more than 10 years. If none of your prison term included mandatory time, you can file for judicial release if you have served one-half of your prison term. Or if part of your prison term included mandatory time, you must complete the mandatory time and then wait at least five years before filing for judicial release, even if you have passed the ½ mark in your prison term.

If your aggregated nonmandatory time is MORE THAN 5 years but NOT MORE THAN 10 years, you have to serve at least 5 years at the prison OR if part of your prison term was mandatory, you have to wait until 5 years after the mandatory portion of your sentence is served.

If your aggregated nonmandatory prison term or terms is 5 YEARS, you have to serve at least 4 years at the prison BUT if part of your prison term was mandatory, you have to wait at least 4 years after the mandatory time is served.

If your aggregated nonmandatory prison term is AT LEAST 2 years but LESS THAN 5 years, you have to wait at least 180 days after you are delivered to the prison OR if part of your prison time was mandatory, you have to wait at least 180 days after the mandatory time is served.

If your nonmandatory prison term is LESS THAN 2 years, you can file 30 days after you are delivered to the prison OR 30 days after your mandatory time is served if you had to serve mandatory time.

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

*Some inmates are excluded from judicial release eligibility. Offenders who held public office when they committed certain offenses are not eligible.

House Bill 86 expands what it means to be an "eligible offender" for the purposes of judicial release. Previous to when H.B. 86 will take effect, an "eligible offender" was one that was serving a "stated prison term" of ten years or less. Anyone that was sentenced to an aggregate prison term of more than ten years was just not eligible for judicial release.

House Bill 86 changes that and makes most inmates eligible for judicial release. You are not eligible for judicial release if all of your prison time is mandatory time or if you held public office when you committed certain felony offenses. But for other inmates, judicial release is possible.

Amendments to Section 2929.20 indicate when an inmate may file a motion for judicial release. There are guidelines for those serving less than two years of non-mandatory time, two years to less than five years of non-mandatory time, five years of non-mandatory time, more than five years but not more than ten years of non-mandatory time, and even for those whose non-mandatory time is more than ten years. You may want to consult a lawyer before making a motion for judicial release.

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.

There is a lot of buzz about H.B. 86. Word of H.B. 86's passage is spreading through Ohio's prison population faster than water through a sieve. But before inmates get too excited, the tough reality is that "A statute is presumed to be prospective in its operation unless expressly made retrospective." R.C. 1.48. The General Assembly has "no power to pass retroactive laws." Section 28, Article II, of the Ohio Constitution. And if a punishment is reduced by amendment of a statute, the punishment shall be imposed according to the statute as amended IF THE PUNISHMENT HAS NOT ALREADY BEEN IMPOSED (if you were not already sentenced). R.C. 1.58. House Bill 86 does not expressly state that it is retrospective. In fact, Section 3 of H.B. 86 states that the amendments to 2925.03 (drug trafficking) applies to "a person who commits an offense involving ... cocaine ... on or after the effective date of this act and to a person to whom division (B) of section 1.58 of the Revised Code makes the amendments applicable." Section 3 also states that the 2925.03 which was "in existence prior to the effective date of this act shall apply to a person upon whom a court imposed sentence prior to the effective date of this act for an offense involving ... cocaine. The amendments to ... 2925.03 ... that are made in this act do not apply to a person upon whom a court imposed sentence prior to the effective date of this act for an offense involving ... cocaine."

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.

Just last summer the Ohio Supreme Court held that "a police officer's unaided visual estimation of a vehicle's speed is sufficient evidence to support a conviction for speeding in violation of R.C. 4511.21(D) without independent verification of the vehicle's speed if the officer is trained, is certified by [a certified organization], and is experienced in visually estimating vehicle speed." Barberton v. Jenney, 2010-Ohio-2420. I posted a blog entry here.

But one of the great things that H.B. 86 does is add section (C)(1) to R.C. 4511.091 which states, "No person shall be arrested, charged, or convicted of a violation of any provision of divisions (B) to (O) of section 4511.21 or section 4511.211 of the Revised Code or a substantially similar municipal ordinance based on a peace officer's unaided visual estimation of the speed of a motor vehicle, trackless trolley, or streetcar."

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.

Sentencing Reform coming to Ohio.

H.B. 86 takes effect on September 30, 2011 as you can read here

Summary of H.B. 86 by the Ohio Criminal Sentencing Commission

Governor Kasich signs crime overhaul law as you can read here.

Governor Kasich signs criminal justice reform legislation on June 29, 2011, as you can read here.

The Effective Date of a bill in Ohio -- in which no effective date is specified in the bill text -- is generally 90 days after the governor signs the bill.

Governor Kasich Statement, to sign HB 86

Legislative Detail: OH House Bill 86 -- 129th General Assembly

Am. Sub. H. B. No. 86 As Enrolled

Read the Dayton Daily News article here.

State Rep. Ross McGregor Announces House Concurrence on Criminal Sentencing Reform Bill

The Columbus Dispatch article.

ACLU and earned credit in H.B. 86.

Bill Analysis of Am. Sub. H.B. 86 (as passed by the House).

Justice Reinvestment Web site

Judicial Impact Statement from the OJC

Opposition from the President of the Ohio Prosecuting Attorneys Association

WOSU coverage on All Sides with Ann Fisher

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.