Ohio Criminal Appeals Lawyer Blog

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