Ohio Criminal Appeals Lawyer Blog

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.

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

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.

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 Ohio Supreme Court disbarred Ohio attorney Joseph Norman Williams from the practice of law. Williams is serving life in prison because he was convicted of raping a nephew. During the disciplinary inquiry, Williams maintained he was innocent of the crimes for which he was convicted. The Ohio Supreme Court stated "we conclude that permanent disbarment is the only appropriate sanction for an attorney convicted of raping a child." Read the decision 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

Today, in State v. Lester, 2011-Ohio-5204, the Ohio Supreme Court modified what constitutes a "final appealable order." Since State v. Baker, 2008-Ohio-3330, was decided by the Ohio Supreme Court, a final appealable order had to set forth the guilty plea, the jury verdict, or the finding of the court upon which the conviction is based, the sentence, the signature of the judge, and it had to be entered on the journal by the clerk of court.

Today the Ohio Supreme Court says that a final appealable order has to set forth "the fact of conviction," the sentence, the judge's signature, and the time stamp indicating the entry upon the journal by the clerk. State v. Lester, 2011-Ohio-5204.

The OSC also held that "a nunc pro tunc judgment entry issued for the sole purpose of complying with Crim.R. 32(C) to correct a clerical omission in a final judgment entry is not a new final order from which a new appeal may be taken." Id. at ¶ 20.

With today's decision the Ohio Supreme Court avoided an onslaught of imprisoned defendants seeking a second shot at "justice." Many sentencing entries, at least in the jurisdiction of the Second District Court of Appeals, stated a defendant "was convicted of" or "having been convicted of" instead of setting forth "the guilty plea, the jury verdict, or the finding of the court upon which the conviction is based."

Read the decision in State v. Baker, 2008-Ohio-3330, here, and the decision in State v. Lester, 2011-Ohio-5204, 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

Getting out of a plea is hard. I have been able to get three pleas reversed on appeal as you can see here.

In order to get a plea reversed, you have to find something that was done incorrectly at your plea hearing. Mistakes happen and it is possible. But today the Ohio Supreme Court made it harder for a defendant to get out of his plea as you can read in State v. Barker, 2011-Ohio-4130.

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 Ohio Supreme Court held that R.C. 2907.05(A)(4) - which prohibits a person from having sexual contact with a person under thirteen, prohibits a person to cause a person under thirteen to have sexual contact with another, and prohibits two or more persons to have sexual contact when one of the persons is under thirteen - is a strict liability offense when it comes to the age of the person under thirteen, and an offense that requires a mental state of "purpose" when it comes to the sexual contact. Read all about it in State v. Dunlap, 2011-Ohio-4111.

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

Black's Law Dictionary defines "stare decisis" as "The doctrine of precedent, under which it is necessary for a court to follow earlier judicial decisions when the same points arise again in litigation." Stare decisis gives some uniformity and predictability to the law. The problem in Ohio is that the Ohio Supreme Court will decide whether stare decisis applies, thereby defeating the purpose of stare decisis.

When the Court of Appeals for Cuyahoga County heard Steven Johnson's appeal, the Court saw that he was convicted of violating R.C. 2923.13(A)(3). The Court of Appeals found Johnson's situation to be identical to that of Howard Clay who had been convicted of violating R.C. 2923.13(A)(3). State v. Clay, 2008-Ohio-6325. In Clay's case, the Ohio Supreme Court decided on September 17, 2008, that R.C. 2901.21(B) applied to R.C. 2923.13(A)(3) and that the mental state of recklessness was required for proof of a violation of R.C. 2923.13(A)(3). Naturally, the Court of Appeals in Johnson's case applied what the Ohio Supreme Court stated in the Clay case and reversed Johnson's conviction.

But today the Ohio Supreme Court changed its mind and reversed the Court of Appeals' decision in the case of State v. Johnson, 2010-Ohio-6301. It states that "our use of R.C. 2901.21(B) has been imprecise." Now the Court says that R.C. 2901.21(B) does NOT apply to R.C. 2923.13(A)(3) at all and so the mental state of recklessness is NOT required for proof of a violation of R.C. 2923.13(A)(3).

So what is the law, you ask? It is what the Ohio Supreme Court says it is. We'll know when we get their decision.

Check out the oral argument in State v. Clay here, and the Ohio Supreme Court decision in Clay here.

Check out the Court of Appeals decision in State v. Johnson here.

Check out the oral argument in State v. Johnson here, and the Ohio Supreme Court decision here.

"We therefore hold that void sentences are not precluded from appellate review by principles of res judicata and may be reviewed at any time, on direct appeal or by collateral attack. We further hold that although the doctrine of res judicata does not preclude review of a void sentence, res judicata still applies to other aspects of the merits of a conviction, including the determination of guilt and the lawful elements of the ensuing sentence. The scope of an appeal from a resentencing hearing in which a mandatory term of postrelease control is imposed is limited to issues arising at the resentencing hearing."

Read the decision in State v. Fischer, 2010-Ohio-6238, here, or listen to the oral argument 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

The Ohio Supreme Court defined what "criminally" means in State v. Chappell, 2010-Ohio-5991. The question was "whether the state may use violations of federal criminal law to prove that a person possesses items to use the items criminally in violation of R.C. 2923.24." The Supreme Court of Ohio held that "in accordance with the plain and ordinary meaning of the term 'criminally,' as the term is used in R.C. 2923.24(A), the purpose to use an item criminally can arise from an intended violation of federal law."

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.

Alternate jurors sit during the trial in case there is a problem with one of the sitting jurors. But pursuant to Ohio Revised Code Section 2313.37(C) and Ohio Criminal Rule 24(G)(1), alternate jurors are generally not permitted to be present with the sitting jury as the sitting jury deliberates.

In State v. Downour, an Oregon, Ohio, Municipal Court Judge allowed an alternate juror to be with the sitting jury - over objection - while it deliberated. The Sixth District Court of Appeals affirmed the conviction because "there is not one scintilla of evidence in the record showing that the alternate juror actively participated, in any way, during those deliberations."

But today the Ohio Supreme Court decided that once the criminal defense lawyer objected to the presence of the alternate juror during deliberations, it was incumbent upon the State to show that the presence of the alternate juror during deliberations did not prejudice the defendant. And it found "[n]othing in the record indicates that the state established the absence of prejudice."

The Ohio Supreme Court reversed Downour's conviction and remanded the case for a new trial. Read the Sixth District Court of Appeals opinion here. Watch the oral argument before the Ohio Supreme Court here. Read the Ohio Supreme Court decision here.

[Please note Downour was spelled Dounour for oral argument.]

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.

This is an old case but the issue comes up all the time so I thought I would blog about it now.

Court costs may be assessed against even an indigent defendant. That is what the Ohio Supreme Court said in State v. Threatt, 2006-Ohio-905. The Ohio Supreme Court also said, "an indigent defendant must move a trial court to waive payment of costs at the time of sentencing. Otherwise, the issue is waived and costs are res judicata." Ouch! If you represent indigent defendants at trial, make it a habit to ask the trial court to waive costs. Read the decision in State v. Threatt, 2006-Ohio-905, here.

A statute of limitations provides a limit as to how long the State has to commence a criminal prosecution against a defendant. The Ohio Supreme Court has stated that the purpose of the SOL is "to discourage inefficient or dilatory law enforcement." In Ohio, R.C. 2901.13 states the limits on State prosecutions. For example, the State is barred from commencing a prosecution against a defendant for most felonies after six years. But what if the defendant just hides in Alaska for six years? R.C. 2901.13(G) states that the limitations period "shall not run during any time when the accused purposely avoids prosecution."

The Ohio Supreme Court just made life easier for the State (again). In a case in which an accused fled the jurisdiction to avoid prosecution for molesting his girlfriend's daughter, the OSC ruled that the statute of limitations was also "tolled" (did not run) on the prosecution of the accused for the molestation of her brother too, even though her brother did not report the abuse to anyone until after the statute of limitations had run.

The Ohio Supreme Court held that "R.C. 2901.13(G) tolls the statute of limitations for all offenses committed by an accused during the time when the accused purposely avoids prosecution for any offense." But read the well-reasoned dissent here. Or review the oral argument here.

Plea bargains have been reached in Ohio courts forever. And defendants have not been complaining. What if you were facing a felony of the second degree and the State was willing to let you plead to an amended charge which was a felony of the fifth degree? Would you take the deal? Maybe. There are several factors for you and your lawyer to consider. But in the case of State v. Rohrbaugh, the Third District Court of Appeals took it upon itself to reverse a case where the State amended a charge and allowed the defendant to plead to the amended charge. The Third District pointed out that the Ohio Constitution and Criminal Rule 7 both require an indictment in a felony case. And Rule 7(D) states you cannot amend the crime charged if a change is made to the name or identity of the crime. So when the Third District Court of Appeals saw that the State amended a charge to which the defendant pled - and no waiver of the defendant's right to an indictment was made - there was an "obvious defect" that required reversal. But the Ohio Supreme Court reversed the decision of the Court of Appeals and held that "a defendant may plead guilty to an indictment that was amended to change the name or identity of the charged crime when the defendant is represented by counsel, has bargained for the amendment, and is not prejudiced by the change." Read the Third District Court of Appeals decision here, or the Ohio Supreme Court decision here.

Sexual abuse charges are tough to defend. What do you do if a child (or former child) is sitting on the witness stand telling a judge or jury that you did x, y, and z to them? At least you get to confront the witness accusing you of these horrific things, right? At least your attorney gets to ask them questions, right? Well, maybe not.

Nowadays child victims are often interviewed by a social worker who is trained to get information out of the child for use against you at your trial. They do it one-on-one so the child is not intimidated. They make the environment nice and cozy for the child for optimal disclosure of details about the alleged abuse while police and CSB workers watch behind a one-way mirror or over closed circuit tv. And then if the child is not available to testify against you at trial, the State just uses the recording of that cozy interview at your trial to get the conviction and get you locked in a cage for most of your life.

What about the Confrontation Clause? Not a problem, says the Ohio Supreme Court. The OSC today held that "statements made to interviewers at child-advocacy centers that are made for medical diagnosis and treatment are nontestimonial and are admissible without offending the Confrontation Clause." Which statements are those? Oh, you know, the statements like "he did x, y, and z to me." The ones that can get you convicted and locked up. Read the decision in State v. Arnold, 2010-Ohio-2742, by clicking here or review the oral argument by clicking here.

The Ohio Supreme Court held today that a trial court errs when it imposes court costs on a defendant, pursuant to former R.C. 2947.23, in the sentencing entry where it failed to inform the defendant at the sentencing hearing that court costs would be imposed. The Court cites Criminal Rule 43(A) which requires that the defendant be present at sentencing and every other stage of his trial. And the Court found that the defendant was harmed because "he was denied the opportunity to claim indigency and to seek a waiver of the payment of court costs before the trial court." In cases such as this, the case is remanded to the trial court to give the defendant the opportunity to request a waiver of the court costs. Read the decision in State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 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

That is not what the Ohio Supreme Court said. 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.