This is my third installment on the Beck Law Office, L.L.C. blog and I welcome any and all feedback, good or bad so that I may improve.
State
v. Williams 2012 Ohio 725
Defendant
pro se from his conviction and sentence for one count of speeding (87mph in a
65) in Xenia Municipal Court. Defendant
was sentenced to a $100 fine and a six month license suspension. Defendant claims multiple errors all of which
are denied. The only one worth
mentioning is that Defendant contends that the trial court erred in suspending
his license. The trial court may suspend
a person’s driver’s license upon a finding of reckless driving. Defendant was clocked by a State Highway
Patrol airplane pilot who testified that he observed the Defendant driving 87
miles per hour in a 65 and weaving in and out of traffic to pass other
vehicles. Court of Appeals finds this is
enough for recklessness.
MORAL
OF THE STORY: Not so much of a moral but
we do learn from this case what testimony an airplane pilot for the State
Highway Patrol should testify to about how he verified the distance between the
mile markers to make sure his calibrations and math is correct.
State v. Chambers 2012 Ohio 726
Defendant appeals his the imposition of post-release
control on his 2005 conviction for 1 count of Rape of a child under 13 and
Felonious Assault. Defendant was
sentenced to life with the eligibility of parole on the Rape and a consecutive
8 year sentence on the Felonious Assault.
Defendant was later resentenced to add post-release control. Counsel filed an Anders brief citing that there were no grounds for appeal. Court agrees and finds no grounds
MORAL OF STORY:
None that I can see. Just another
Post-Release Control loss.
State
v. Baker 2012
Ohio 729
Defendant appeals the trial court’s denial of his
Motion for Intervention in Lieu of Conviction on his charge of Carrying a
Concealed Weapon. Defendant and two
friends went to a club. When Defendant
was leaving the club he was confronted by security for urinating in the parking
lot. Defendant and security guards got
in argument and Defendant was taken into custody. During the scuffle Defendant kept trying to
reach into his front pocket. After being
taken into custody Defendant was patted down and security found a loaded
handgun and bag of marijuana. Defendant
filed for Intervention in Lieu of Conviction pursuant to O.R.C. 2951.041. The State objected and the Court held a
hearing where it ruled that he was not eligible for Intervention and even if he
was the court is exercising its discretion and denying Defendant’s
request.
COURT OF APPEALS DECISION: Review of a denial for Intervention is under
an “Abuse of Discretion” standard which means that the decision was
unreasonable. A decision is unreasonable
if there is no sound reasoning process that would support that decision. Because the Trial Court said that it was
denying the motion because he kept reaching for the gun that was good enough to
support the denial.
MORAL OF THE STORY:
Even when the Trial Court erred in finding Defendant he wasn’t eligible
and he in fact was eligible as long as the Court hedges its bet and says it
would have denied it anyway it won’t survive appeal.
State
v. Parsons 2012 Ohio 730
Defendant appeals pro se from the trial court’s
denial of his “Motion to Correct Void Judgment or Sentence.” Defendant’s
complaint is that the trial court failed to merge his Kidnapping charge with
his 4 counts of Felonious Assault. COURT OF APPEALS: Defendant failed to raise the issue on direct appeal and therefore his argument is waived.
MORAL OF THE STORY: Always consider merger when there are multiple counts.
State
v. Margin 2012 Ohio 732
Defendant appeals his conviction and sentence for 1
count of Felonious Assault and his sentence for 6 years in prison. Defendant Defendant offers three assignments
of error:
1. Trial
court erred in failing to convict him of the lesser included offense of
Aggravated Assault
2. Manifest
weight
3. Insufficient
Evidence to establish a conviction for Felonious Assault
The notable issue is the lesser included
argument. Defendant was working through
Labor Ready which would send individuals to a work site and if they were able
to return to Labor Ready before six p.m. on the same day would be paid for the
work. If they didn’t make it back in
time they could get paid the next day.
October 19th, 2010 Defendant was sent by Labor Ready to work
at a construction site. He returned
after six p.m. and Labor Ready was closed.
Flemingson was the person in charge of Labor Ready that night and as he
was walking out after locking up was confronted by Defendant. Defendant demanded Flemingson reopen and pay
him for the work. Flemingson refused to
reopen and told Defendant to come back tomorrow. Defendant became angry and attacked
Flemingson. Flemingson suffered facial
fractures, concussion, bruises, shoulder strain, and a back strain.
Defendant’s offered no defense and did not offer any
evidence. However, Defendant claims that
he should be guilty of Aggravated Assault because he acted under “the influence
of sudden passion or sudden fit of rage caused by provocation of the victim.” Provocation, to be serious, must be
reasonably sufficient to bring an extreme stress and the provocation must be reasonably
sufficient to incite or to arouse the Defendant into using deadly force. State v. Crawford 2008 Ohio 4008.
DECISION:
Defendant failed to provide any evidence that the victim provoked the
response. The Court of Appeals goes on
to state that as a matter of fact it appears that the reason for the assault
was very petty. The Defendant also claims
that there was no evidence to establish serious physical harm and the Court
held facial fractures, concussion, and strains are serious enough.
MORAL OF THE STORY: Always keep in mind the jury instruction
definition of serious physical harm. (5)
"Serious physical harm to persons" means any of the following:
(a) Any mental illness or condition of
such gravity as would normally require hospitalization or prolonged psychiatric
treatment;
(b) Any physical harm that carries a
substantial risk of death;
(c) Any physical harm that involves some
permanent incapacity, whether partial or total, or that involves some
temporary, substantial incapacity;
(d) Any physical harm that involves some
permanent disfigurement or that involves some temporary, serious disfigurement;
(e) Any physical harm that involves acute
pain of such duration as to result in substantial suffering or that involves
any degree of prolonged or intractable pain.
Defendant was convicted in 2005 of sexual battery and classified as a sexually oriented offender. January 1st, 2008 Defendant was reclassified as a Tier III registrant. Defendant was indicted in 2010 for failure to notify of change of address, a felony of the third degree. Defendant filed to dismiss based on Bodyke. Motion to Dismiss was denied and Defendant plead no-contest to one count of attempted failure to notify as a fourth degree felony. Counsel filed an Anders brief stating that there are no appealable issues. The Court of Appeals independently reviewed and agreed. Appeal dismissed.
MORAL OF THE STORY: The record in this case is not real clear if Bodyke helps or not. Trial counsel should always make sure to set
up the record for appellate review.
State
v. Smith 2012 Ohio 733
Counsel filed an Anders brief citing no issue for appeal and Court of Appeals
agreed.
State
v. Peterson 2012 Ohio 735
Defendant appeals her conviction and sentence
after being found guilty at a bench trial of one count of Assault, a
misdemeanor of the first degree, and her sentence of 180 days in jail with 150
suspended. November 8th, 2010
Wright, 4 months pregnant, went to Davis’, father of the unborn child,
apartment to visit him. Wright testified
that she knocked on the door for about a minute before the next door neighbor,
Defendant, came out and called her a bitch and told her to stop banging on the
door. At that time words were exchanged
and Defendant punched Wright in the face.
Two other people came out of Defendant’s apartment and sprayed Wright
with mace and then all three started kicking Wright. Wright went to the doctor and was checked out
and treated for her injuries. Defendant
challenged manifest weight and sufficiency without specifically pointing to any
reason why the evidence was lacking.
Defendant also challenged her sentence as unfair.
COURT OF APPEALS: Held the sentence was fair because she only received
30 days she could have gotten more.
MORAL OF THE STORY: I struggle to find a moral in this
story. It did come out from testimony
that Defendant’s niece was fooling around with Davis so I guess the moral is
Hell hath no fury like a woman scorned.
Defendant appeals his conviction from a guilty plea for one count of Breaking and Entering, felony of the fifth degree, and one count of Vandalism, felony of the fifth degree due to damage over $500. Defendant claims that the trial court erred in failing to grant his request to merge the two counts as “allied offenses of similar import”. Defendant was caught breaking into a carry-out where he pried open an exterior door and smashed the glass from an interior door to go in and steal cigarettes. He claims that the two doors were the only causes for vandalism and that those were damaged as part of the Breaking and Entering.
ANALYSIS:
The Ohio Supreme Court simplified the test for “allied offenses” with
their holding in State v. Johnson 128
Ohio St. 3d 153. The test to determine
if two or more offenses are “allied” is to look at the conduct of the
accused. O.R.C. 2941.25 the court must
determine prior to sentencing whether the offenses were committed by the same
conduct. If so they are allied.
DECISION:
If the only damage done was to the two doors then yes they would be
allied however, Defendant fails to mention in his appeal that there were also
numerous computers and other items damaged inside the building as he was
ransacking the place to steal the cigarettes.
Therefore, no allied offenses because they were damaging things that
weren’t necessary to commit the crime.
MORAL OF THE STORY: Don’t get carried away when committing a
crime. If you do you may get sentenced
twice as hard.
State
v. Peagler 2012 Ohio 737
Defendant appeals her sentence after
being convicted of driving under suspension, failure to control, and operating
a vehicle under the influence (OVI or DUI).
Defendant was sentenced to 180 days in jail with 177 suspended. Defendant was given an opportunity to do the
three days in a drivers intervention program (3 day DUI course) instead of jail
but declined and requested to serve the jail instead. Defendant now appeals and appellate counsel
cites the felony sentencing guidelines.
COURT OF APPEALS holds you can’t appeal because she got three days in jail after she asked for the jail and if you are going to appeal cite the right statute.
COURT OF APPEALS holds you can’t appeal because she got three days in jail after she asked for the jail and if you are going to appeal cite the right statute.
MORAL OF THE STORY: Don’t cite statutes that in no way apply
unless you are trying to be persuasive and it’s tough to be persuasive if there
is another statute that applies to what you are trying to accomplish. Other question is why are we doing bench
trials on OVI’s.
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