Ohio Criminal Appeals Lawyer Blog

R.C. 2919.27 prohibits the reckless violation of a protection order. It is usually a misdemeanor of the first degree. But if the defendant previously pleaded guilty or was convicted of violating a protection order, violating a protection order is a felony of the fifth degree. The parties in this case stipulated to five facts and submitted the case to the trial judge for a decision. But the parties did not stipulate to the fact that the defendant was previously convicted of violating a protection order. Since the trial judge could not take judicial notice of the prior conviction, the Second District Court of Appeals reversed the fifth degree felony conviction and remanded the case for re-sentencing as a first degree misdemeanor.

Facing a fifth degree felony means you are facing 6, 7, 8, 9, 10, 11, or 12 months in prison and a fine of up to $2,500. A first degree misdemeanor allows the trial court to sentence a defendant to up to 180 days in jail and impose a fine of up to $1,000.

Read the decision in 2010-Ohio-288 by clicking here.

Judges must merge allied offenses of similar import even when the defendant pleads guilty and the sentence is agreed to beforehand. In the case of State v. Day, the Second District Court of Appeals for Greene County determined that Judge Campbell erred when he failed to merge an aggravated burglary conviction with a burglary conviction which were based on the same facts. Read the decision by clicking 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.

The defendant in the decision on appeal you can read by clicking here was convicted of aggravated burglary and felonious assault because he trespassed into his ex-girlfriend's home and threw her out a second floor window. He was also convicted of a Repeat Violent Offender Specification because he had previously been convicted of involuntary manslaughter and aggravated robbery back in 1979. The trial judge sentenced him in the recent case to maximum consecutive terms including 10 years on the RVO Specification. But the trial judge found him guilty of the RVO Specification under 2929.14(D)(2)(b) which required that the offender have three or more convictions of first or second degree offenses of violence within twenty years. Because the State failed to prove the RVO Specification under 2929.14(D)(2)(b), the Second District Court of Appeals reversed and vacated the 10 year term for the RVO Specification.

After a defendant in Greene County (county court located in Xenia, Ohio) pleaded guilty to several counts of rape and gross sexual imposition, he was sentenced to 40 years in prison.  But the defendant was not informed that he faced mandatory prison time before he pleaded guilty.  Instead, he was informed that he would be eligible for community control sanctions if he was granted judicial release.  Since the defendant was not eligible for judicial release while serving time for the rape charges which carried mandatory prison time, Ohio's Second District Court of Appeals reversed the plea and sentence and remanded the case to the trial court as you can read by clicking here.

On remand, this defendant had his sentence cut in half as you can read here or here.

Ohio's Second District Court of Appeals reversed the aggravated murder and aggravated robbery convictions of Aaron Whitfield when it found that his statement to police should have been suppressed because he was in custody for Miranda purposes but not given his Miranda Rights. At the suppression hearing, only Whitfield and the detective that conducted the interview testified. But since the detective met Whitfield in the interview room at the police department, only Whitfield testified about how he got there.

Whitfield testified that four armed officers met him at his home and told him they needed to talk to him about the 2004 slaying of Nasru Fashions owner Mamadou Njie.  The officers handcuffed Whitfield behind his back and took him in the back of a cruiser to the interview room where he met the interviewing detective.  The handcuffs were removed at the interview room and he was not told he was under arrest.  When Whitfield asked the detective if he was being charged, the detective said "no."

The Second District Court of Appeals found that Whitfield was "in custody" for purposes of Miranda and should have been given his Miranda Rights.  The detective testified about the interview and a videotape of a portion of the interview had been played for the jury.  The Second District reversed Whitfield's convictions based on the Miranda violation and remanded the case for a new trial.

State v. Whitfield, 2009-Ohio-293 (The Miranda issue is at paragraphs 53-118)

On remand, the defendant reached a deal where he pleaded to lesser charges and was sentenced to 16 years (which is a whole lot better than the 23L he was sentenced to before I won his appeal).  Read a news story by clicking here.

Ohio's Second District Court of Appeals reversed the decision of the trial court which overruled the defendant's motion to suppress evidence.  The Court of Appeals found that the defendant was arrested and the arrest was not supported by probable cause.  Therefore, any contraband found after the illegal arrest should have been suppressed.  Click here for the decision.

Upon remand, the State did not pursue prosecution.

Another guilty plea reversed by Ohio's Second District Court of Appeals.  This time because the trial judge made a promise he could not fulfill.  The defendant pleaded guilty to trafficking in heroin in an amount equal to or greater than 250 grams.  This charge required that the defendant be sentenced to 10 years.  But the trial judge promised the defendant that he would be sentenced to no more than 7 years if he pleaded guilty.  He was sentenced to 7 years of mandatory prison time.  The Court of Appeals found that the guilty plea was void and remanded the case to the trial court.  Click here for the full decision.

On remand this defendant was sentenced to 6 years of NON-mandatory time.

Ohio's Second District Court of Appeals reversed and vacated convictions for having a weapon under disability and carrying a concealed weapon because the State failed to produce sufficient evidence to support the charges at trial.  The defendant had been sentenced to six and a half years.  Read the full decision by clicking here.

Ohio's Second District Court of Appeals (Champaign County, county court located in Urbana) reversed guilty pleas to a second degree felony and two fourth degree felonies because the trial court failed to substantially comply with Criminal Rule 11(C)(2)(a).  The trial court failed to inform the defendant that he was NOT eligible for community control (probation) as required.  Click here for the full decision.

On remand the defendant received a sentence that was two years shorter than the sentence he received before his guilty plea was reversed on appeal.

Ohio's Second District Court of Appeals (Court of Appeals for Clark County (Springfield Municipal Court in Springfield, Ohio)), reversed a sentence because the trial judge failed to "address the defendant personally and ask if he or she wishes to make a statement in his or her own behalf or present any information in mitigation of punishment" as required by Criminal Rule 32(A).  Because the trial court failed to comply with this "mandatory duty," the case was remanded for resentencing.  This is the link to the full decision.

Ohio's Second District Court of Appeals reversed convictions for two counts of rape and seven counts of gross sexual imposition because the State never differentiated between these counts.  This was a violation of the defendant's right to Due Process of Law.  In the indictment, the charges were identical and nothing in the bill of particulars differentiated the counts.  Finally, nothing in the testimony of the complainant differentiated one count from another so convictions for those counts were reversed as you can see in the full decision by clicking here.

So said Ohio's Second District Court of Appeals.  Police collected drugs and drug paraphernalia in a dorm room after Resident Assistants discovered marijuana after a search they were conducting before Homecoming.  While the search by the Resident Assistants did not implicate the Fourth Amendment (since they were acting solely as private citizens), the police violated the Fourth Amendment when they entered the dorm room without a warrant to retrieve the contraband the Resident Assistants collected.  Upon remand, the charges were dismissed by the State.  You can see the decision by clicking here.

Ohio's Second District Court of Appeals reduced a burglary conviction from a second degree felony under Ohio Revised Code Section 2911.12(A)(2) to a third degree felony under (A)(3) which essentially took three years off the defendant's sentence (the defendant had been sentenced to the maximum for the burglary).  The defendant would be released three years earlier after his win on appeal because the State failed to prove that anyone was "present or likely to be present" during the burglary as required by section (A)(2).  Read the full opinion by the Second District Court of Appeals, Clark County (county court located in Springfield, Ohio), here.

The Second District Court of Appeals of Ohio (Court of Appeals for Clark County (county court located in Springfield, Ohio)), reversed an aggravated murder conviction because police failed to "scrupulously honor" the defendant's assertion that he did not want to talk to them.  The United States Supreme Court has stated that once a suspect cuts off questioning by police, that request must be "scrupulously honored" by the police.  Michigan v. Mosley (1975), 423 U.S. 96.  It wasn't here because after the defendant cut off questioning, one of the officers told him that a co-defendant was trying to lay the blame on him and that this was his chance to help himself out.  Based on those statements by the officer, the defendant changed his mind about talking and incriminated himself in the shooting.  The Second District Court of Appeals reversed his conviction and remanded the case stating that the trial court erred by overruling his motion to suppress the incriminating statements.  Click here for the full opinion.