Ohio Criminal Appeals Lawyer Blog

Trial counsel was ineffective when he failed to object as the trial judge sentenced the defendant to separate prison terms for rape and gross sexual imposition, and for rape and two counts of attempted rape. The Second District Court of Appeals determined that a count or rape should have been merged with a count of gross sexual imposition because the act constituting gross sexual imposition was not committed with a separate animus but was committed during the act of rape. The Appellate Court also determined that two counts of attempted rape should have been merged with the rape count because there was no intervening acts between the attempted rapes and rape and there was no specific risk of injury from each attempt at rape. The case was remanded for re-sentencing. Another interesting thing about this case is that the Court of Appeals determined that trial counsel should have filed a motion to suppress illegally obtained statements to police, but it did not matter anyway. Read the Second District Court of Appeals decision here.

Today the Second District Court of Appeals reversed the two year prison sentence imposed by one trial judge and remanded the case for re-sentencing by a different trial judge. The prosecutor failed to live up to his side of the plea agreement because, at the plea hearing, the prosecutor agreed to recommend community control with inpatient treatment. But when it came time for sentencing, the prosecutor aggressively cross examined a doctor who testified that the defendant needed treatment instead of prison and then the prosecutor failed to recommend inpatient treatment as he promised he would. The Court of Appeals found the defendant's trial counsel failed to provide the effective assistance of counsel when he failed to object to the prosecutor's conduct and thereby breached his duty to his client as you can read by clicking here.