Ohio Criminal Appeals Lawyer Blog

That is not what the Ohio Supreme Court said. In fact, the Ohio Supreme Court said the opposite in State v. Speer, 2010-Ohio-649. The OSC said "[a] hearing impairment by itself does not render a prospective juror incompetent to serve on a jury" (¶ 26). But the OSC also said that "the trial court's paramount duty is to ensure that the accused is afforded a fair trial" (¶ 29).

I would argue that a person with a hearing impairment such that they cannot perceive voice inflections cannot be jurors in criminal trials where any witnesses will testify. The OSC stated in Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, that "[t]he underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view the witnesses and observe their demeanor, gestures, and voice inflections, and use these observations in weighing the credibility of the proffered testimony" (emphasis added).

It would follow that jurors must also be able to observe voice inflections in determining the credibility of each witness. In State v. Speer, a hearing impaired juror had to read lips and read a transcript when a recording was played. Therefore, the OSC determined that Speers did not receive a fair trial.

Since observing voice inflections plays into the assessment of a witnesses' credibility, how could a person who cannot observe voice inflections sit as a juror in a case where the most important consideration is that the accused gets a fair trial?

Read the Ohio Supreme Court's decision in State v. Speer here and watch the oral argument here.

Today the Ohio Supreme Court took the "opportunity to provide guidance on the proper manner in which the court of appeals should remand cases after finding errors committed in sentencing on allied offenses."

From the syllabus of the Court:

"1. The state retains the right to elect which allied offense to pursue on sentencing on a remand to the trial court after appeal.

2. Upon finding reversible error in the imposition of multiple punishments for allied offenses, a court of appeals must reverse the judgment of conviction and remand for a new sentencing hearing at which the state must elect which allied offense it will pursue against the defendant.

3. Because R.C. 2941.25(A) protects a defendant only from being punished for allied offenses, the determination of the defendant's guilt for committing allied offenses remains intact, both before and after the merger of allied offenses for sentencing."

Watch the oral argument by clicking here and read the decision by clicking here.

I wrote about post-release control here.

Imposing the correct period of post-release control has been difficult in too many instances in Ohio. As a result, there are several cases decided by the Ohio Supreme Court which deal with how to handle a case where post-release control was either not imposed at all or not correctly imposed pursuant to Section 2967.28.

Today the Ohio Supreme Court ruled that (and this is from the Syllabus of the Court which is consistent with what is stated in the opinion you can read by clicking here, State v. Singleton, 2009-Ohio-6434), "[f]or criminal sentences imposed prior to July 11, 2006, in which a trial court failed to properly impose postrelease [sic] control, trial courts shall conduct a de novo sentencing hearing in accordance with decisions of the Supreme Court of Ohio." That is right, a whole new sentencing hearing must be held under the remedy established by the Court which applies to any sentence imposed prior to July 11, 2006. It is as if the sentencing never took place just because the trial judge messed up on the post-release control.

The second part of the Court's holding today is that "[f]or criminal sentences imposed on and after July 11, 2006, in which a trial court failed to properly impose postrelease [sic] control, trial courts shall apply the procedures set forth in R.C. 2929.191." R.C. 2929.191 allows the trial court to prepare and issue a correction to the judgment of conviction instead of having to have a new sentencing hearing.

Read the Ohio Supreme Court's decision in State v. Singleton, 2009-Ohio-6434, by clicking here or watch and/or listen to the oral argument by clicking here.

In a 4 to 3 vote (which is often the score in criminal appeals decided by the Ohio Supreme Court lately), the Ohio Supreme Court ruled that "[t]he warrantless search of data within a cell phone seized incident to a lawful arrest is prohibited by the Fourth Amendment when the search is unnecessary for the safety of law-enforcement officers and there are no exigent circumstances."

Read the decision in the case of State v. Antwaun Smith, 2009-Ohio-6426, here and watch the oral argument here.

Today the Ohio Supreme Court decided not to hear an appeal by the Montgomery County Prosecutor's Office. Darnell Jones had been convicted of possession of between 100 and 500 grams of cocaine and he was sentenced by Judge A. J. Wagner to 4 years in prison and about $3,500.00 in mandatory fines. He pleaded "no contest" after his motion to suppress had been denied by the trial court.

On appeal to the Second District Court of Appeals, Jones had his conviction and sentence reversed and the case was remanded to the trial court on January 9, 2009, 2009-Ohio-61. But the Montgomery County Prosecutor filed a Notice of Appeal in the Supreme Court of Ohio on February 25, 2009. The Ohio Supreme Court hears a case like this only if it decides to, and it decided to hear this one on June 30, 2009. Oral argument was held in the Ohio Supreme Court on November 3, 2009, and you can see that argument by clicking here.

Today the Ohio Supreme Court decided by a 4-3 vote that it was mistaken in accepting the appeal. Therefore the decision of the Second District Court of Appeals stands. The Second District Court of Appeals, as you can read by clicking here, decided that police could not look into the Aldi shopping bag Jones had left in the motel room without probable cause or a search warrant. The Court of Appeals ruled that the cocaine in the bag should have been suppressed by Judge Wagner at Jones' suppression hearing. Police saw Jones walk out of the motel room with the bag and then Jones put the bag back into the room. The Second District decided the police could enter the motel room but could not look into the bag.

Supreme Court Justices Lundberg Stratton, O'Connor, and Cupp, disagree with the reasoning of the Court of Appeals so they would have heard this case in the Ohio Supreme Court to make it "right." But as Justices Moyer and O'Donnell pointed out during oral argument, this case did not raise any new issues of law the Supreme Court had to address and the prosecutor agreed. The role of the Ohio Supreme Court is not to "fix" what it thinks the Courts of Appeals do "wrong." And that is really what the Montgomery County Prosecutor wanted the Supreme Court to do here. Right or wrong, the decision of the Second District Court of Appeals in this case stands and Darnell Jones walks.

According to the Ohio Supreme Court's decision in State v. Robinson, 2009-Ohio-5937, "the damaging of a single private telephone or cellular telephone disrupts public services in violation of R.C. 2909.04(A)(3) if the conduct substantially impairs the ability of law-enforcement officers, firefighters, rescue personnel, emergency-medical-services personnel, or emergency-facility personnel to respond to an emergency or to protect and preserve any person or property from serious physical harm." Read the decision by clicking here and view the oral argument by clicking here.

The United States Supreme Court in Herring v. New York stated that a defendant has a right to make a closing argument. But in State v. McCausland, 2009-Ohio-5933, the Ohio Supreme Court ruled today that the trial court does not commit reversible error when no closing argument is made by a defendant who neither requests closing argument or objects when the trial court goes on to the next step in the proceeding instead of offering an opportunity for closing argument. If a defendant (or their criminal defense attorney) wants to make a closing argument, they better say something about it on the record or their right to make a closing argument will be waived as you can read by clicking here. Watch the oral argument before the Ohio Supreme Court by clicking here.

Today the Ohio Supreme Court decided a case on sealing of criminal records. Here is the syllabus by the Court: "[w]hen an applicant with multiple convictions under one case number moves to seal his or her criminal record in that case pursuant to R.C. 2953.32 and one of those convictions is exempt from sealing pursuant to R.C. 2953.36, the trial court may not seal the remaining convictions." Read the Ohio Supreme Court's decision in State v. Futrall, 2009-Ohio-5590, by clicking here. Watch the oral argument in the Ohio Supreme Court by clicking here. See Ohio's Ninth District Court of Appeals decision by clicking here.

Criminal defense lawyers argued before Ohio's Supreme Court that Revised Code Section 4511.19(A)(2) is unconstitutional because it criminalizes a suspect's refusal to take chemical tests after being stopped for DUI/OVI. Hoover's criminal defense attorneys argued that the section violated the Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution.

But the Ohio Supreme Court, by a 4 to 3 vote, disagreed today as you can read here. Watch the oral argument by clicking here.

Today the Ohio Supreme Court in State v. Cargile, 2009-Ohio-4939, ruled that even though Cargile involuntarily entered the jail, he voluntarily conveyed drugs into the jail. The drugs were in the cuff of his pants when he was arrested for two robberies. The State failed to get their convictions on the robberies so all they had was their illegal conveyance of drugs onto the grounds of a detention facility for which Cargile got two years. The Ohio Supreme Court said Cargile did not have to take the drugs with him and he could have told officers about the drugs when asked. So instead of a minor misdemeanor for possessing 2.1 grams of marijuana, Cargile got hit for a third degree felony illegal conveyance of a prohibited item onto the grounds of a detention facility.

The Ohio Supreme Court said, "we hold that a person who is taken to a detention facility after his arrest and who possesses a drug of abuse at the time he enters the facility meets the actus reus requirement for a violation of R.C. 2921.36(A)(2)" as you can read by clicking here and you can watch the oral argument by clicking here.

In State v. Hunter, the Court decided that the Foster decision did not eliminate the repeat violent offender add-on time from former 2929.01(DD) as you can read by clicking here. Watch the oral argument by clicking here.

And in State v. Lester, the Court held that aggravated robbery in violation of R.C. 2911.01(A)(1) which contains the element of brandishing, displaying, using, or indicating possession of a deadly weapon, does not require the mental state of recklessness because "strict liability" is to be applied to that element as you can read by clicking here. And you can watch the oral argument by clicking here.

Today in State v. Johnson, 2008-Ohio-69, the Ohio Supreme Court held that R.C. 2929.13(F) "does not require a sentencing court to impose consecutive sentences for multiple rape convictions." The Twelfth District Court of Appeals had read the code section to mean that mandatory time meant that the defendant could not be ordered to serve his life terms concurrently. Read the decision of the Ohio Supreme Court by clicking here and view the oral argument by clicking here.