Ohio Criminal Appeals Lawyer Blog

Searching for a criminal defense lawyer for your appeal or other post-conviction matter?

Wed, 16 May 2012 11:11:59 -0500

Searching for a lawyer is tough. Of course it is not that they are hard to find. Every six months more lawyers are admitted to the practice of law in Ohio. But how do you pick the right one to handle your case?

I have a topic on my blog called "Choosing a lawyer on appeal" and you can check out those tips under "Topics" (second topic down).

But what do defendants want in a lawyer? Many potential clients probably look for two things. One is cost. The other is quality. And they probably end up combining the two to get to a question like this: "Who is the best criminal appeal lawyer I can afford?"

Did you know that lawyers cannot make that easy for you in their advertising? Well, they are not supposed to. According to the Ohio Rules of Professional Conduct, Rule 7.1, a lawyer cannot make "misleading" or "nonverifiable" claims.

For example, a lawyer cannot claim to charge legal fees that are "cut-rate" or "lowest" or "giveaway" or "below cost" or "discount" or "special." These claims are considered to be misleading (see comment 4 to Rule 7.1).

And a lawyer cannot claim to be "the best criminal appeal lawyer" or the "top criminal appeal lawyer" or the "best criminal defense lawyer in Ohio." The lawyer cannot make "self-laudatory claims" like these because the claims are nonverifiable (see Comparison to former Ohio Code of Professional Responsibility under Rule 7.1).

So you probably will not find that advertisement that claims "best criminal defense lawyer for your appeal at rock-bottom prices." But what can you do? These are the factors I think you should consider when trying to find the "right" criminal defense lawyer for your appeal. Good luck!

Contact me if you need a Dayton area Criminal Defense Lawyer for your Ohio criminal appeal or other post conviction matter.

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

State was too late to classify defendant as a sexual predator

Mon, 14 May 2012 23:09:06 -0500

A Henry County man was convicted of 2001 of gross sexual imposition. In 2003 a sexual offender classification was held. In 2011 the trial court classified the defendant as a sexual predator. The Court of Appeals for the Third Appellate District of Henry County reversed for two reasons. One, the trial court was divested of jurisdiction to classify the defendant as a sexual predator due to the unexplained delay in making the ruling. Two, the trial court lacked jurisdiction because the defendant had completed his sentence. State v. Miller, 2012-Ohio-2132.

Contact me if you need a Dayton area Criminal Defense Lawyer for your Ohio criminal appeal or other post conviction matter.

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

Abused as a child, now to serve 80 years

Wed, 09 May 2012 21:55:50 -0500

An evaluation of Andrew Keith showed he was abused when he was a child. Now 29, he will be 109 when he gets out of prison if he serves his entire sentence. He pleaded guilty to child pornography charges and was sentenced in U.S. District Court as you can read here.

Contact me if you need a Dayton area Criminal Defense Lawyer for your Ohio criminal appeal or other post conviction matter.

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

Judge could not increase sentence on remand

Thu, 03 May 2012 18:03:07 -0500

A Cuyahoga County judge sentenced a defendant for GSI and Rape. On the rape count, the judge imposed a sentence of three years, but he imposed an aggregate sentence of five years. On appeal the GSI counts were merged with the Rape count. So on remand the judge still wanted the defendant to serve five years in prison. But the judge was stuck. An increase from three years on the rape to five years on the rape would either be considered vindictive or an illegal imposition of a "sentencing package." The Court of Appeals for Cuyahoga County decided to modify the sentence on the rape count from five years to three years based on the idea that the judge improperly used a "sentencing package" which you cannot do in Ohio per State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824. In Ohio there is no "sentencing package." Instead, sentences are imposed for each individual offense. State v. Quinones, 2012-Ohio-1939.

Contact me if you need a Criminal Defense Lawyer for your Ohio criminal appeal or other post conviction matter.

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

Failure to impose mandatory license suspension

Thu, 03 May 2012 10:27:46 -0500

Sometimes trial courts fail to impose mandatory driver's license suspensions on defendants. Today the Ohio Supreme Court said such a failure makes that part of the sentence void (and only that part). And re-sentencing is limited to imposition of the mandatory license suspension. The Court found that "a mandatory driver's license suspension is akin to post-release control." And so the Court is treating the failure to impose a mandatory license suspension like it does a failure to impose post-release control. Read the decision in State v. Harris, 2012-Ohio-1908, here.

Contact me if you need a Criminal Defense Lawyer for your Ohio criminal appeal or other post conviction matter.

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

Rule 29 = Beyond a Reasonable Doubt

Wed, 02 May 2012 16:03:45 -0500

A Hamilton County defendant moved for a "motion for judgment of acquittal" pursuant to Ohio Criminal Rule 29(A). The trial judge denied the motion stating that the standard was something less than "beyond a reasonable doubt." And the judge denied the motion. On appeal, the First District Court of Appeals for Hamilton County reversed the conviction and remanded the case for a new trial because the standard for a Rule 29 and "beyond a reasonable doubt" are the same thing, and it was error for the trial judge to apply the wrong standard in a bench trial. State v. Zou, 2012-Ohio-1911.

Contact me if you need a Criminal Defense Lawyer for your Hamilton County criminal appeal or other post conviction matter.

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

Tanning your kids' hide could be child endangering

Wed, 02 May 2012 13:27:50 -0500

Did your parent ever threaten to "tan your hide" when you were a kid? Did they ever do it? "Tanning your hide" these days could be considered a form of child abuse in Ohio. But Patricia Krentcil of New Jersey is accused of putting a whole new meaning to "tanning your hide." She is the mom accused of putting her five year old daughter in a tanning booth. By the looks of Krentcil, one could see where the alarm comes from. If Patty tans her daughter's hide like she has done her own, that would likely qualify for a child endangering charge if they lived in Ohio. According to Ohio Revised Code Section 2919.22(A), no parent ... shall create a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support. A quick search of the case law from the United States reveals no case of child endangering by tanning (at least no case that made it to the appellate stage).

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

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

Officer lacked reasonable articulable suspicion

Fri, 27 Apr 2012 23:32:24 -0500

Police must have a reasonable articulable suspicion to conduct field sobriety tests on a driver. The Sixth District Court of Appeals for Lucas County held that a Maumee Municipal Court Judge erred by denying a defendant's motion to suppress evidence. A Whitehouse police officer pulled over the defendant because he had a headlight that was not working. The officer let the defendant get out of his car to check out the headlight. The light came on when the driver struck it with his hand. But the officer did not let him drive away. Instead, she kept chatting with the driver and decided that a "slight odor" of alcohol was emanating from him and his eyes were bloodshot and glassy. When the officer ran his license, she discovered a four year old OVI conviction. The officer offered the driver the opportunity to take a PBT. But he refused so the officer administered field sobriety tests and determined he failed. The trial court denied his motion to suppress, but the Court of Appeals decided that the police officer lacked the necessary reasonable articulable suspicion and the motion to suppress should have been granted. State v. Stricklin, 2012-Ohio-1877.

Contact me if you need a Dayton Criminal Defense Lawyer for your appeal or other post conviction matter.

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

"Justice is not advanced by bending the rules to afford the prosecution a better chance to obtain a conviction" - Judge Grady

Fri, 27 Apr 2012 22:16:21 -0500

Judge Grady dissented when Damien Brown's convictions were affirmed on appeal. Brown was convicted of killing his girlfriend Marquita Brown. Damien and Marquita were in a closed room with no eyewitnesses when the gun went off that killed her. So how could the prosecutor possibly "know" what happened? Well, they don't. But they sure believe they do, and they had to convince a jury to convict Damien so they could get their "justice." So what could they do to prove that Marquita's death was no accident?

They had Marquita's sister testify that Damien choked Marquita in the spring of 2010, they produced a voice mail message where Damien threatened to burn down Marquita's apartment, police testified that Damien threatened to burn down her apartment, another woman had filed a DV charge against Damien years earlier, and Margene Robinson, a domestic violence "expert" testified regarding "common misconceptions about domestic violence."

So how did any of this show what took place in the room when Marquita died? It showed a "propensity to engage in such other conduct, which is inadmissible pursuant to Evid.R. 404(A)." The State used character evidence to get the jury to convict, which was improper. Judge Grady knows it, but the other two judges voted to affirm for some reason.

Well, at least Damien can hang this quote in his prison cell. Sometimes when you don't get justice, all you have is a nice quote. State v. Brown, 2012-Ohio-1848, paragraph 67.

"Justice is not advanced by bending the rules to afford the prosecution a better chance to obtain a conviction." - Judge Grady.

Contact me if you need a Dayton Criminal Defense Lawyer for your appeal or other post conviction matter.

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

Robbery conviction reversed for lack of force simultaneous to theft

Thu, 26 Apr 2012 11:36:37 -0500

Rayalen and Jamille were romantically involved. In fact, Rayalen thought they still were when he was trying to hug Jamille in a Cleveland bar. She pushed him away since Jamille thought she kicked him to the curb the previous week. So when Rayalen hugged her again and started rubbing up on her, she of course called 9 1 1. Jamille says "I'm calling to have you arrested" so Rayalen snatched the phone from her hand and left. Later that night he left her phone on her front porch.

So what did the Cuyahoga County prosecutor do with this (former) lovers' spat? Charged Rayelen with gross sexual imposition and robbery (use of force or threaten the use of force against another in attempting or committing a theft offense or in fleeing immediately after the attempt or offense in violation of 2911.02(A)(3)). After a bench trial, Rayalen was acquitted of GSI but found guilty of robbery.

But the Eighth District Court of Appeals for Cuyahoga County stopped the madness by reversing the robbery conviction. First, the Court of Appeals said that the force necessary for robbery is limited to "situations involving actual or potential harm to the victim." And the force must be simultaneous to the theft. So the force of hugging and rubbing up on Jamille would not count. And the "force" necessary to snatch the cell phone "does not constitute the type of force that elevates a theft to a robbery" as you can read in State v. Griggs, 2012-Ohio-1837.

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

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

Conviction for aggravated robbery of "bystander" reversed

Thu, 26 Apr 2012 10:06:43 -0500

Three men robbed a father and his son outside a home near Cleveland. The mother had already started toward the home before the bad guys showed up in a stolen vehicle to point guns at the three. They demanded items from the father and the son handed over $22. One defendant was convicted of the aggravated robbery of all three, but the Court of Appeals for Cuyahoga County determined that the mother was just a bystander to the robbery. There was insufficient evidence to sustain a conviction for aggravated robbery with her as a victim. Nothing was taken or requested of her, so that conviction was reversed as you can read in State v. Parks, 2012-Ohio-1832.

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

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

Penny story gets BAC Test Results Tossed

Mon, 23 Apr 2012 22:55:09 -0500

How can you get the BAC test results kicked after you blow a .120? Get the trial judge to believe your story that you had a penny in your mouth in the 20 minutes before the BAC test was administered. A Knox County man convinced a Mount Vernon Municipal Court Judge that - while he was handcuffed and in the back of the police cruiser and while the police officer was distracted - he used his hands that were cuffed behind his back to pull a penny out of his back pocket, place it on the back seat of the cruiser, get his face down to the penny and lap it up with his tongue. He claims he spit the penny out once they arrived at the station. The judge apparently bought this story and the State failed to present any evidence that the presence of this penny did NOT prejudice the BAC test, so the results were kicked, as you can read in State v. McLeod, 2012-Ohio-1797.

Here you can read how the penny in the mouth trick will not fool the Breathalyzer test.

Contact me if you need a Springfield, Ohio Criminal Defense Lawyer for your appeal or other post conviction matter.

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NOT!!! for the purpose of medical diagnosis or treatment

Mon, 23 Apr 2012 22:02:38 -0500

The State has this really neat trick for getting around the rule that hearsay is not admissible in court in child sexual abuse cases. Evidence Rule 803(4) states that statements "made for the purpose of medical diagnosis or treatment" may come in. The State just sticks some social worker who knows how to "forensically" interview a child between the child and real medical personnel. That way, any evidence that the social worker can get out of the child can be used against the accused even if the child later recants - if the statements are determined to have been for the purpose of medical diagnosis or treatment (but can't that lead to innocent people being convicted, you ask?). But this neat little trick has limits too. The Third District Court of Appeals for Logan County upheld a trial court's ruling that statements made by a four year old complainant were not made "for the purpose of medical diagnosis or treatment." The social worker in this case did not play the game well enough. The social worker was employed by a children's services agency charged with determining whether protective services are warranted. And you know who the social worker contacted at the end of the interview? The police! And who didn't they contact? You guessed it - medical personnel. Because nothing in the interview showed that the interview was for the purpose of medical diagnosis or treatment, the Third District Court of Appeals for Logan County affirmed the trial court's ruling suppressing this interview as you can read in State v. Goings, 2012-Ohio-1793.

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

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

Moot gets the boot

Mon, 23 Apr 2012 21:19:36 -0500

A Wayne County man was convicted in the Wayne County Municipal Court of fourth-degree misdemeanor criminal trespass. The man had a bench trial and was convicted. He was ordered to pay $125 in fines and courts. The $125 was ordered to be paid from the bond he had posted. The defendant did not object. Then he appealed. But by then his appeal was moot. His appeal from his misdemeanor conviction was moot because he voluntarily paid his fine and there is no indication that the defendant would suffer some collateral disability or loss of civil rights from the judgment or conviction. The defendant failed to request a stay of execution of his sentence. His appeal was dismissed by the Court of Appeals of the Ninth Judicial District as you can read in State v. Reed, 2012-Ohio-1788, here.

Contact me if you need a Dayton Criminal Defense Lawyer for your appeal or other post conviction matter.

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

Ambiguities in criminal proceedings are to be construed against the State

Mon, 23 Apr 2012 08:56:50 -0500

The Twelfth District Court of Appeals for Warren County reversed a Kettering man's conviction for speeding and the forfeiture of his driver's license on speedy trial grounds. The defendant filed a notice of his refusal to waive his rights to a speedy trial. On the same day, his hearing date was set outside the speedy trial time. The error was later noticed and the hearing date was changed to a date within the speedy trial time, but court records did not prove that the defendant received notice of this new date. The docket was "manifestly ambiguous" about whether the notice was sent or mailed or returned or what happened to it. The Court of Appeals noted that the trial court could have attempted notice by certified mail or personal service. But it did not and the defendant swore he did not get the notice. Therefore, the defendant's conviction was vacated and he was discharged as you can read in State v. Adams, 2012-Ohio-1802.

Contact me if you need a Criminal Defense Lawyer for your Warren County appeal or other post conviction matter.

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