Ohio Criminal Appeals Lawyer Blog

The Fourth District Court of Appeals for Gallia County says that a trial judge abuses his discretion when he considers an improper sentencing factor in sentencing a defendant. The Court of Appeals reversed the sentence of a man convicted of aggravated robbery because the judge used the fact that a deadly weapon was used as a factor justifying a stiffer sentence for aggravated robbery. But to charge aggravated robbery as this defendant was charged, there had to be a deadly weapon. So the judge abused his discretion in enhancing the sentence based on the deadly weapon which was an element of the offense for which the defendant was convicted. Read the decision in State v. Sims, 2012-Ohio-238, 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.

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Judge Rastatter took guilty pleas from a defendant on one count of rape and two counts of gross sexual imposition. Then Judge Rastatter maxed and stacked the defendant (maximum sentences on each count, all to be served consecutively with each other).

On appeal, the defendant's appointed appellate counsel argued it was plain error for Judge Rastatter to max and stack the defendant's prison terms without making required findings of fact. Judicial findings were required before the decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, by R.C. 2929.14(E)(4). That section was declared unconstitutional by the Ohio Supreme Court. After Foster, the only check on Ohio Judges was the "abuse of discretion" standard of review for sentences that were not "contrary to law."

House Bill 86 amended R.C. 2929.14 to put judicial fact finding back between heavy-handed judges and maximum, consecutive sentences. But the requirement for judicial fact finding did not apply to this defendant's case as you can read here in State v. Ford, 2011-Ohio-5203. His only hope was to argue abuse of discretion or to try to get out of his plea. He did neither and his sentence was affirmed on appeal.

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.

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A felony of the first degree used to bring a sentence of 3, 4, 5, 6, 7, 8, 9, or 10 years in prison. But H.B. 86 amended R.C. 2929.14 so that a conviction for a Felony of the First Degree can bring a sentence of 3, 4, 5, 6, 7, 8, 9, 10, OR 11 years in prison.

Judges are given more options on F3s. It used to be that a trial judge could sentence an offender in Ohio to 1, 2, 3, 4, or 5 years in prison on a conviction for a third-degree felony. Now there are two categories of F3s in Ohio. For violations of certain offenses, a trial judge can sentence an offender to 12, 18, 24, 30, 36, 42, 48, 54, or 60 months. In the second category of F3s (those offenses that do not fit into the first category), the sentencing options are 9, 12, 18, 24, 30, OR 36 months.

See the amended version of R.C. 2929.14 for more details.

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

Judge Rastatter has been reversed by the Court of Appeals again for abusing his discretion in sentencing. An "abuse of discretion" is not easy to show. A judge's decision is an abuse of discretion if it is "grossly unsound, illegal or unsupported by the evidence."

The Second District Court of Appeals for Clark County agreed with Supreme Court Justice Lanzinger who has written "It will take a courageous judge not to 'max and stack' every sentence in multiple-count cases."

Judge Rastatter maxed and stacked the sentence for Martin Nichols even though Nichols had no prior record, Nichols showed "true genuine remorse," and the victims did not suffer more than other victims of these offenses would be expected to suffer. The Court of Appeals said Rastatter failed to consider the rehabilitation of the defendant which he was required to consider by law.

The Court reversed Nichols' sentence and remanded the case to Judge Rastatter to try again as you can read here. Another time the Court of Appeals did that, Rastatter imposed the same maxed and stacked prison term that the Court of Appeals reversed 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 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 trial judge cannot impose both a prison term and community control (probation) for the same offense. When a judge does so, the sentence is void and contrary to law. A Meigs County judge made this mistake as you can read in State v. Michael Francis, Meigs County Appeal No. 10CA2, 2011-Ohio-4497. Because the sentence was void, the judge should have applied the lower standard for Francis's motion to withdraw his plea even though the motion to withdraw his plea was filed after Francis was sentenced in error.

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 forty-two year old Springfield man appealed his sentence after his conviction for two counts of unlawful sexual conduct with a minor for sexual acts he engaged in with two fifteen year old girls. The trial judge imposed four year prison terms on each count to run consecutively for a total prison term of eight years. Two court of appeals judges affirmed the sentence because, "pursuant to Foster, a trial court is not required to make findings or give reasons for the sentences that it imposes; the court is vested with the full discretion to impose whatever prison term it chooses within the statutory range" and "it is a matter solely within the discretion of the sentencing court as to whether sentences shall run consecutively or concurrently."

The dissenting judge determined that the trial judge abused his discretion in imposing consecutive prison terms. Here is what the dissenting judge wrote about the current state of Ohio's sentencing law.

"The Supreme Court did unfortunate damage to the sentencing policies the General Assembly adopted in S.B. 2 when, in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, the court said that judges are 'free' to impose any sentence within the available range, and, in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, that the power to impose consecutive sentences is 'inherent' in the court. Judges have read those holdings as authorization to put aside the statutory policies on sentencing and instead to enforce their own subjective views." 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

There is a lot of buzz about H.B. 86. Word of H.B. 86's passage is spreading through Ohio's prison population faster than water through a sieve. But before inmates get too excited, the tough reality is that "A statute is presumed to be prospective in its operation unless expressly made retrospective." R.C. 1.48. The General Assembly has "no power to pass retroactive laws." Section 28, Article II, of the Ohio Constitution. And if a punishment is reduced by amendment of a statute, the punishment shall be imposed according to the statute as amended IF THE PUNISHMENT HAS NOT ALREADY BEEN IMPOSED (if you were not already sentenced). R.C. 1.58. House Bill 86 does not expressly state that it is retrospective. In fact, Section 3 of H.B. 86 states that the amendments to 2925.03 (drug trafficking) applies to "a person who commits an offense involving ... cocaine ... on or after the effective date of this act and to a person to whom division (B) of section 1.58 of the Revised Code makes the amendments applicable." Section 3 also states that the 2925.03 which was "in existence prior to the effective date of this act shall apply to a person upon whom a court imposed sentence prior to the effective date of this act for an offense involving ... cocaine. The amendments to ... 2925.03 ... that are made in this act do not apply to a person upon whom a court imposed sentence prior to the effective date of this act for an offense involving ... cocaine."

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.

The disparity between sentences for powder cocaine and crack cocaine have been the topic of much debate for several years. Read articles here or here or here. Ohio has finally done away with the disparity with House Bill 86 which eliminates separate sentences for crack versus powder cocaine.

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.

There is a difference between prison and jail. Here you can read a general discussion of prison versus jail. The Sixth District Court of Appeals for Lucas County just modified a sentence so that a defendant who is to serve 180 days for a misdemeanor conviction consecutive to three years for a felony conviction will serve the 180 days in a jail and the three years in a prison. The Lucas County trial judge who sentenced the defendant erred by ordering all the time to be served in prison. This defendant may regret getting what he wished for on appeal since inmates often say that prison is a more pleasurable place to be than jail. 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.

The Eighth District Court of Appeals in Ohio just denied the State's appeal of a sentence which the State called "wimpy." For a fifth degree felony, the defendant was sentenced to just 45 days in jail and ordered to pay $1500 in restitution. The State complained that the sentence did not do enough to punish the offender because he had a lengthy criminal record. But the State failed to raise the defendant's record at sentencing and so the Court of Appeals determined that the State waived the argument and the Court of Appeals found the trial judge did not abuse his discretion in sentencing the defendant as you can read here.