Ohio Criminal Appeals Lawyer Blog

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.

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

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.

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

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.

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

Today the Second District Court of Appeals decided State v. Hamby, 2011-Ohio-4542. The Court of Appeals reversed and remanded for the trial court to fix sentencing errors made by the trial court. First, Criminal Rule 32(C) requires that the judgment of conviction shall set forth the manner of conviction. In Hamby's case, the trial court indicated he had pled guilty but Hamby was convicted by a jury. Second, the trial court disapproved of transitional control for Hamby at sentencing and in the sentencing entry. This was plain error since the determination about transitional control must come near the end of a defendant's sentence, and it must be based a defendant's behavior during his prison term. Finally, the trial court sentenced Hamby to several terms of post-release control but terms of PRC must be served concurrently with each other. The Court of Appeals ordered the trial court to indicate that the terms of PRC must be served concurrently.

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

Transitional control is a good thing for inmates (and the rest of society) because it can help them with the transition from prison to the community. Ohio Revised Code Section 2967.26(A)(1) provides that at least three weeks prior to placing an inmate into a Transitional Control Program, the DRC must notify the trial judge. At that point the trial judge may disapprove of the transfer to transitional control. The DRC would give the trial court information like how the inmate has done in prison, what disciplinary problems they have had (if any), any participation in school or vocational training or other rehabilitative programs. Then the trial judge could make a decision as to whether she would want to prevent this positive experience. Some trial judges just cannot wait and disapprove of transitional control at the defendant's sentencing hearing. That is jumping the gun a little bit since the judge has no idea how the defendant will do in prison. The Second District Court of Appeals for Montgomery County just removed disapproval language from a sentencing entry as you can read here. The judge will just have to wait until they are notified by DRC about their desire to place an inmate into a Transitional Control Program before they can deny this opportunity.

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

A defendant was convicted of rape and sexual battery that covered the same conduct and then he was sentenced to prison time on all counts. On appeal we argued that the offenses should have been merged since they are allied offenses of similar import. The Court of Appeals decided the trial court must determine whether the offenses were committed separately or with a separate animus. On remand, the offenses were merged pursuant to State v. Johnson, 2010-Ohio-6314.

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.

James Russell was convicted in 2005 of felony murder, aggravated robbery, evidence tampering, grand theft of a motor vehicle, abuse of a corpse and firearm specifications, in the death of Philip Troutwine. His first conviction was reversed in 2008 because a verdict form for "having weapon under disability" was inadvertently given to the jury. He was retried and again convicted in 2009.

Today the Second District Court of Appeals reversed his convictions in the second trial because the trial judge mishandled an issue under Batson v. Kentucky (1986), 476 U.S. 79. Russell's criminal defense lawyer was about to raise a Batson issue when the trial judge cut her off and announced that there was no Batson issue. The convictions are reversed and the case is remanded so the trial court can conduct a proper tripartite Batson analysis as you can read here.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private attorney. Otherwise, contact your county or state public defender to see if they can help.

A Trotwood, Ohio, neighbor was convicted of criminal mischief in violation of R.C. 2909.07(A)(1) because he wrote a note on an 8x10 piece of paper, placed it on top of his neighbor's trash container, and covered it with a stick so the note would not blow away. The neighbors got the note which was less than flattering and of course they contacted the cops. The neighbor who left the note was charged with criminal mischief which required that he "move, deface, damage, destroy, or otherwise improperly tamper with the property of another." He was found guilty by Judge James L. Manning at a bench trial. But the Second District Court of Appeals reversed and vacated the conviction because they agreed with me that leaving a piece of paper on top of a trash container does not qualify as criminal mischief as you can read here.

A fifth degree felony (carrying a penalty of up to 12 months in prison and a $2500 fine) was just reduced to a fourth degree misdemeanor (carrying a penalty of up to 30 days in jail and a $250 fine) because I successfully argued on appeal that the State failed to prove an essential element of the offense of breaking and entering. The State was required to prove that the structure the defendant broke into was "unoccupied." The Second District Court of Appeals agreed with me that the State failed to meet their burden and instead imposed a conviction for criminal trespassing in violation of Revised Code Section 2911.21 (a fourth degree misdemeanor). Since the defendant was sentenced to the maximum 12 months on the B&E, his sentence will essentially be reduced to the maximum 30 days for the criminal trespass. Judge Fain points out that this is an "unsatisfactory result" and he urges in a concurring opinion that the General Assembly fix this problem in the law that allowed me to help this defendant on appeal. Read the decision by clicking here. If you need help with an appeal, contact me by clicking here.

Another of my wins on appeal. 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 were 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 that it would not have mattered anyway. Read the Second District Court of Appeals decision here. If you need help with an appeal, contact me by clicking here.

At the sentencing hearing, the trial judge stated that a term of post-release control did not apply to this aggravated murder case. Then in the Sentencing Entry the judge ordered the defendant to serve five years of post-release control. Both of these positions were incorrect and the Second District Court of Appeals reversed the sentence and remanded the case to the trial court so the defendant could be sentenced to the correct three year term of post-release control. Read the decision by clicking here.

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) (right of allocution).  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.