Ohio Criminal Appeals Lawyer Blog

Trial judge erred by ruling no prima facie case was made

Fri, 03 Feb 2012 09:57:03 -0500

James Russell won his appeal again. This time it was an appeal from a Batson hearing. The last time I appealed Russell's case, the Second District Court of Appeals ruled that a Batson hearing should have been held as you can read here. On remand the trial judge held a Batson hearing but decided that the defense had not made a prima facie case (the first step in the Batson analysis). Russell appealed from that decision. Today the Second District Court of Appeals for Montgomery County ruled that the trial judge erred in ruling that a prima facie case had not been made. The Appeals Court held that the quantum of proof required for a finding that a defendant has made a prima facie case is minimal and Russell met that burden in this case. Read the decision in State v. Russell, 2012-Ohio-422, 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.

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An element of an offense cannot be used to elevate the sentence

Tue, 24 Jan 2012 20:39:45 -0500

The Fourth District Court of Appeals for Gallia County says that a trial judge abuses his discretion when he considers an improper sentencing factor in sentencing a defendant. The Court of Appeals reversed the sentence of a man convicted of aggravated robbery because the judge used the fact that a deadly weapon was used as a factor justifying a stiffer sentence for aggravated robbery. But to charge aggravated robbery as this defendant was charged, there had to be a deadly weapon. So the judge abused his discretion in enhancing the sentence based on the deadly weapon which was an element of the offense for which the defendant was convicted. Read the decision in State v. Sims, 2012-Ohio-238, here.

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Attaching a GPS device to a vehicle is a "search," SCOTUS rules

Mon, 23 Jan 2012 10:44:23 -0500

Today the Supreme Court of the United States held that attaching a GPS device to a vehicle and using that GPS device to monitor the movements of the vehicle constitutes a "search" under the Fourth Amendment. Read the decision in United States v. Jones, here.

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"commissary is one of the most important issues for inmates"

Mon, 23 Jan 2012 09:48:58 -0500

Check out this Dayton Daily News article published today on Ohio prison commissaries. Taxpayers do not pay for items inmates buy there and proceeds are used to purchase items to benefit inmates in common areas. These items "help to keep the inmate population engaged in positive activities." Read the full article here.

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Trial court erred in ordering payment of court costs

Fri, 20 Jan 2012 11:51:16 -0500

As I wrote previously on this blog (as you can read my post about State v. Joseph, 2010-Ohio-954, here), a trial court that fails to impose court costs at the sentencing hearing errs by imposing them in the sentencing entry. Today the Second District Court of Appeals for Montgomery County reversed the imposition of court costs because the trial judge imposed them in the sentencing entry after failing to inform the defendant about court costs at the sentencing hearing. The matter is remanded so that the defendant can have the opportunity to request a waiver of the court costs.

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Mistrial upheld on appeal

Fri, 20 Jan 2012 11:33:03 -0500

During closing arguments in a trial for conveying drugs of abuse into a detention facility, the assistant prosecutor committed prosecutorial misconduct by stating in front of the jury that there had been plea negotiations. Not only that, but the assistant prosecutor informed the jury about the contents of those plea negotiations - that the defense had suggested a possession charge. The trial judge declared a mistrial stating that the defendant was deprived of a fair trial. The judge also stated that the case was "dismissed." The court of appeals upheld the mistrial but because the trial judge did not expressly state that the case was "dismissed with prejudice," the court of appeals presumed it was a dismissal without prejudice leaving the door open for a possible retrial. Read the decision in State v. Hunter, 2012-Ohio-189, here.

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Waiver of counsel needs more than a signature

Thu, 19 Jan 2012 20:49:04 -0500

Defendant/Appellant Geno Battaia asked for and was appointed a lawyer to represent him when he was charged with criminal damaging and disorderly conduct. Battaia proceeded to secretly record every conversation his appointed criminal defense lawyer had with him and then he filed a grievance against his lawyer before his trial date. On his trial date Battaia decided to represent himself. The trial judge had Battaia sign a waiver of counsel, refused Battaia's request for a continuance, and found him guilty after a bench trial. On appeal Battaia was represented by a lawyer who successfully argued that the trial judge failed to engage Battaia in any meaningful colloquy about the rights he was giving up by waiving counsel. The Court of Appeals said "a talismanic statement by the court that the waiver [of counsel] is valid does not make it so." Read the decision in City of Parma v. Geno Battaia, 2012-Ohio-173, here.

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Watch out for facebook

Thu, 19 Jan 2012 20:28:35 -0500

In yet another example of why you should not use facebook, a prison guard lost his job at Lebanon Correctional Institution (LCI) after he posted a comment about Governor Kasich on his facebook account. The guard explained that it was a post he made in jest in a discussion about Senate Bill 5. Read about the guard's misfortune here.

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Backpage.com Escort Sting nabs "Johns"

Wed, 18 Jan 2012 19:56:34 -0500

Self proclaimed "Escorts" advertise their services on http://dayton.backpage.com
and police set up a fake ad. Three men who responded to the fake ad were nabbed after they offered the cop money for services. The men face soliciting charges as you can read here.

Ohio Revised Code Section 2907.24(A) states that "no person shall solicit another to engage with such other person in sexual activity for hire." The offense of soliciting is a third degree misdemeanor.

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Fourth Amendment and abandoned property

Tue, 17 Jan 2012 13:56:12 -0500

The Fourth Amendment protects you from the government, but not when it comes to abandoned property. The Ohio Supreme Court stated the obvious today when it said "[a] warrantless search of abandoned property does not violate the Fourth Amendment because any expectation of privacy is forfeited upon abandonment." The OSC took the case to reinstate the convictions and sentence of one Dennis Gould who had been sentenced to a couple life terms for sex crimes. The Court of Appeals had reversed the convictions because it believed Gould had not abandoned the hard drive that contained incriminating evidence. The Ohio Supreme Court says that Gould did abandon the hard drive as you can read in State v. Gould, 2012-Ohio-71, here.

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"Question first, Mirandize later"

Fri, 13 Jan 2012 21:53:35 -0500

Two out of three Judges on the Second District Court of Appeals followed the United States Supreme Court decision in Missouri v. Seibert (2004), 542 U.S. 600, because a defendant was subjected to custodial interrogation before Miranda warnings were administered and then - once the "cat was out of the bag" - she was transported to the police station where she waived her Miranda rights and confirmed what she already admitted pre-Miranda. Though the detective elicited more detail in the second interview, the content of the interrogations was the same, it was the same detective both times, and the second interview was "merely a continuation of the pre-Miranda interview initiated by Detective Smith at the crime scene." Read the decision in State v. Yvonne D. Cook, 2012-Ohio-111, here.

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Watch out for lawyers appointed by judges - will they give you the best representation?

Tue, 10 Jan 2012 12:37:41 -0500

Not only are court appointed counsel poorly paid, they may have to keep the judge happy to get future appointments.

The Honorable Richard S. Sheward of Franklin County told a lawyer that he could "rest assured I am not going to appoint you to any more cases for this kind of nonsense. You appealed it for nothing, that is what you did." So what kind of lawyers will the Honorable Richard S. Sheward appoint to cases in the future? Well his re-election video (you can see here) claims that Honorable Richard S. Sheward "delivers firm and fair justice." It would stand to reason that Sheward will appoint lawyers who do not stand in the way of his "firm and fair justice." If lawyers are made to satisfy judges, no matter how unreasonable they may be, is the lawyer going to do the best job possible for the client or do they have to make sure to keep the judges happy so they can be appointed to future cases?

In the case of State v. Tina Blay, the Honorable Richard S. Sheward made several comments to appointed counsel. He asked appointed counsel "did you go to law school?" When the appointed counsel told the judge that "I am being yelled and screamed at" the Honorable Richard S. Sheward asked "your feelings are hurt?" and later he asked if the appointed counsel could give him an amount of restitution "or would that also hurt your feelings?"

Judge Richard S. Sheward failed to hold a timely hearing when appointed counsel objected to the amount of restitution, and the Honorable Richard S. Sheward was reversed on appeal in State v. Tina Blay, 2010-Ohio-4749. When it came back to his court, Judge Sheward was not happy about the appeal (which had merit according to the Tenth District Court of Appeals).

Judge Sheward told appointed counsel that "this is a court-appointed case" and the appointed counsel "tries to do everything the hard way." Judge Sheward set up a hearing date on the restitution issue beyond the thirty days Blay had to file a timely Notice of Appeal. What if Blay failed to file a notice of appeal and Judge Sheward decided not to have the hearing? Blay would be out of time to file an appeal and would have to ask permission from the Court of Appeals to have an appeal. So Blay filed a Notice of Appeal, won on appeal, and the matter was remanded for a hearing on the restitution issue.

On remand, the Honorable Richard S. Sheward "used the restitution hearing to issue a barrage of berating and belittling remarks towards appellant's counsel. He unabashedly expressed his irritation with appellant's counsel." As a result of using the opportunity to berate and belittle Blay's counsel instead of conducting a meaningful hearing on the restitution issue, the Honorable Richard S. Sheward denied Blay "a meaningful opportunity to be heard on the issue of restitution" and denied Blay due process. Read the decision reversing the Honorable Richard S. Sheward a second time in this case in State v. Tina Blay, 2012-Ohio-62.

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LaMarr Wilder's killer acted in self defense, Court of Appeals Rules

Fri, 06 Jan 2012 23:18:34 -0500

After the trial judge heard the testimony and ruled that the person who stabbed LaMarr Wilder to death during a fist fight did not act in self defense, three judges on the Fourth District Court of Appeals decided that the killer acted in self defense. The Court of Appeals pointed out that LaMarr Wilder was about 5' 10" and 240 pounds, but at least one article points out that the person who stabbed him to death was about 6' 2" and 250 pounds (as you can read here). LaMarr Wilder was allegedly punching C.J, as he was known in court records, and C.J. was unable to get up. C.J. was able, however, to get out the pocket knife he was carrying, unfold it, and stab LaMarr Wilder until Wilder's femoral artery was severed. The Court of Appeals said you cannot blame C.J. for not using his fists since he was not in a fist fight before. But C.J. figured out how to use his knife. And the Court of Appeals pointed out that C.J. stopped using his knife once Wilder was no longer able to punch him. Read the decision reversing C.J.'s adjudication of delinquency here, 2011-Ohio-6892.

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Can a sentencing judge change the sentence he imposed?

Thu, 22 Dec 2011 12:40:58 -0500

Not if the final order has been issued. A trial judge had sentenced Jack Carlisle to three years of prison time for kidnapping and sexually assaulting a child. Carlisle was granted an appeal bond and he stayed out of prison for a couple years while his case made it through the reviewing courts. Once he exhausted all his legal avenues to no avail, Carlisle asked the sentencing judge to reconsider and the sentencing judge vacated its original sentence and sentenced Carlisle to five years probation (community control). The Ohio Supreme Court said the trial judge could not do that. "Absent statutory authority, a trial court is generally not empowered to modify a criminal sentence by reconsidering its own final judgment." Read the decision in State v. Carlisle, 2011-Ohio-6553, here.

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Appeal Reopened

Mon, 19 Dec 2011 14:35:12 -0500

Today the Second District Court of Appeals granted an application to reopen an appeal because the Defendant/Appellant "has established a genuine issue as to whether he has a colorable claim of ineffective assistance of counsel on appeal." Defendant/Appellant made a colorable claim on three separate issues. And the appeal on these new issues will proceed "as an initial appeal pursuant to App.R. 26(B)." Having an appeal reopened does not mean you will ultimately prevail in your new appeal, but it gives the Defendant/Appellant a second chance to win their appeal. If you believe your appellate lawyer did not provide the required effective assistance of counsel on appeal, maybe you should consider an Appellate Rule 26(B) application to reopen your appeal as one of your options.

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