March 16^th, 2012 2^nd District Decisions.  There were only two relevant decisions released this past week.  They are included below. 

State v. Boykin  2012 Ohio 1090

Defendant was convicted at jury trial of Felonious Assault.  Defendant was appointed counsel which he fired and asked for new counsel on the date of the final pretrial.  New counsel was granted and the trial was continued.  New counsel was appointed and a second final pretrial was held.  On the day of trial Defendant tried to ask for a new attorney and the judge denied his request.  Defendant then made numerous statements about wanting to fire counsel and represent himself.

Defendant appeals his conviction citing two errors:

1.       The Trial Court erred in not letting him represent himself.

a.       “the constitutional right of self representation is waived if not timely and unequivocally asserted.” State v. Cassano 96 Ohio St. 3d 94.  The decision in the current case quotes the exchange between Defendant and Judge Hall.  COURT OF APPEALS- finds that the request was not timely and was not unequivocal. 

2.       The Trial Court erred in not granting a new trial based on juror misconduct.

a.       Defendant claims that the trial court should have granted a new trial because after the trial his brother told him that he knew juror number 12 and that juror number 12 probably knew Defendant.  Juror misconduct must be affirmatively proven and there was no evidence provided of actual knowledge or any bias. 

MORAL OF THE STORY:  If you click on the title of this case you can read the opinion.  I suggest reading the exchange between Judge Hall and Defendant and believe that it seemed pretty unequivocal to me.  Apparently saying “ill represent myself” isn’t unequivocal enough. 

State v. Callahan 2012 Ohio 1092

Defendant was convicted by a jury of Aggravated Burglary and sentenced to 8 years.  Defendant went over to his ex-girlfriend’s house and kicked in the door and assaulted her and her new boyfriend.   Further background shows that the Defendant won a motion to suppress his statements at the police station.  Defendant also beat the State’s attempt to amend the indictment in the middle of trial from listing the new boyfriend as victim to ex-girlfriend and/or new boyfriend.  Ex-girlfriend also had a restraining order against Defendant.  Defendant claims three errors:

1.       Manifiest Weight -  Defendant contends that the jury should have believed his side of the story that he was invited over to the apartment and that he broke down the door because he was worried for his exgirlfriends safety. 

a.       He testified to all that and jury could have believed it if they wanted but didn’t.

2.       Sufficiency – same as above

3.       Trial court erred in refusing to instruct the jury of the lesser included of Burglary.

a.       Defendant contends that the trial court should have instructed the jury of the lesser included offense of Burglary.  The State concedes that burglary is a lesser included of aggravated burglary.  However, the Court of Appeals finds that based on Defendant’s theory of defense of permission to be on premises he wouldn’t be guilty of burglary either and that the evidence was clear that new boyfriend was assaulted. 

MORAL OF THE STORY:  If someone has a restraining order against you the court probably won’t believe that you were invited and needed to kick down the door. 

March 9^th, 2012 – 2^nd District Court of Appeals decisions.

The second district released 10 decisions this week.  Seven of them were in criminal cases. 

State v. Anderson   2012 Ohio 957

Decisions of Court of Appeals based on an Ander’s brief filed by appellate counsel and an independent review of the record by the Court of Appeals.  Defendant pled guilty to two counts of felony 4 non-support of Dependents (failure to pay child support).  Defendant was sentenced to 18 months of prison on each count to run consecutively for a total period of 36 months.  The prison time was stayed on condition that Defendant completes up to 5 years of probation.   The terms of probation required Defendant to pay child support, to start paying off arrearages, attend seek work program until he maintained steady employment, and meet with his probation officer.  Defendant continued to not pay child support, did NOT attend the classes, and failed to meet with his probation officer a couple of times.  Therefore, a probation revocation was filed and Defendant was found to have violated the terms of his probation. The trial court found because this was Defendant’s fourth conviction for non-support that prison was its only option and therefore sentenced him to 36 months of prison. 

DECISION:  No merits to this appeal

MORAL OF THE STORY:   none

 State v. Cunningham  2012 Ohio 959

Appeal of a community control (probation) condition.  In March 2011 Defendant plead guilty to one count of felony 5 Theft for stealing metal poles from a Dayton Public School storage facility.  Defendant was sentenced to up to 5 years of probation with one condition being to stay away from all Dayton Public School property by at least 1000 feet.  Defendant appeals citing that this term is overbroad. 

“Probation conditions must be reasonably related to the statutory ends of probation and must not be overbroad.”  State v. Talty 103 Ohio St. 3d 177

How to determine reasonableness of conditions:

1.       Reasonably related to rehabilitating the offender

2.       Has some relationship to the crime committed.

3.       Relate to conduct which is criminal or reasonably related to future criminality.

DECISION:  The condition is overbroad because of the 1000 feet requirement.  Defendant should be barred from entering all Dayton Public School facilities but the 1000 feet requirement is to strict and has no relation to rehabilitation. 

MORAL OF THE STORY:  Object at the imposition of the community control sanction to preserve the ability to argue it was over broad in the future.  Court’s often use the same terms in every case without tailoring them to the individual needs of the Defendant. 

State v.  Dudley   2012 Ohio 960

Appeal by the State of the trial court’s grant of Defendant’s Motion to Suppress Evidence. 

January 2011 Defendant was stopped for window tint violation.  Upon approaching the Officer smelled an odor of burnt marijuana.  Officer asked Defendant out of the car.  Defendant was very compliant.  Officer ran a search through LEADS (database of warrants and traffic information) and confirmed that Defendant was valid and had no warrants.  Defendant consented to search which revealed nothing.  Officer continued detention and searched car and found marijuana seeds.  Officer asked Defendant if he had any drugs on him and Defendant handed over two small bags of weed, minor misdemeanor (non jail-able amount).  Officer patted down Defendant again and found crack cocaine. 

TRIAL COURT:  found that the stop was fine but the continued detention after finding the weed was longer than necessary and therefore the second search was bad and all evidence should be suppressed.  “ The mere fact that a police officer has an articulable and reasonable suspicion to stop a motor vehicle does not give that police officer “open season” to investigate matters not reasonably within the scope of his suspicion.”

COURT OF APPEALS:  We disagree and the Officer was not required to take the word of the Defendant and was justified in performing the second search after the drugs were handed over.  Therefore, the crack comes in. 

MORAL OF THE STORY:  Apparently the Court of Appeals believes Defendant’s will lie.  I wonder if this may have come out differently if the record (which may have but I am not sure) at the trial court made very clear that there was no reason to search the second time since the Officer’s suspicion was unreasonable since he already patted Defendant down and found nothing.  State v. Chatton is a much better analysis which wasn’t cited in the appeal decision

State v. Hess  2012 Ohio 961

Defendant appeals from his conviction and sentence for Perjury, Grand Theft, and 7 counts of Insurance Fraud.  Defendant claims four errors.

1.       That his plea of guilty was not knowingly and voluntarily entered

2.       Defendant should have been permitted to withdraw his plea

3.       The Court erred when it overruled his Motion to Suppress

4.       The Court erred when it overruled his Motion to Dismiss

The two areas worth mentioned are with regards to 3 and 4. 

COURT OF APPEALS:  Defendant waived his ability to challenge the denial of the motions when he plead guilty. 

MORAL OF THE STORY:  If your going to appeal plead no contest at least.  With the recent decisions over the past few years from the 2^nd district I always strongly consider going forward with the trial to make a better record for appeal.  There are risks associated with this as well but it allows you to build a record to use for the appeal.

State v. Taylor 2012 Ohio 963

This is a very unusual case with numerous mistakes in procedure made at the trial court level that Court of Appeals says were mistakes but not important.  I believe the issues in this appeal are so odd that it is very unlikely that it would be repeated.  The most notable issue was that the trial court failed to provide notice of potential federal firearms disqualification when Defendant pled no-contest to Domestic Violence.  The Court then tried to allow Defendant to withdraw his plea because of this and then later disallowed his withdraw because 18 USC 933(g)(9) does not permit withdrawal for failure to give notice of the potential disqualification. 

MORAL OF THE STORY:  Even when the court makes a mistake that it made a mistake it may not be a mistake (confusion in that statement intended)

State v. Thomas 2012 Ohio 964

Defendant appeals for his sentence and conviction following a jury trial for Aggravated Robbery with deadly weapon, Weapons Under Disability, 2 counts of complicity to commit Aggravated Robbery, 2 counts complicity to commit Felonious Assault, all six counts containing firearms specs.  Defendant was convicted of all counts. 

Defendant claims that trial counsel was ineffective for rambling, failing to ask meaningful questions at trial, and forgetting Defendant’s name in closing argument.

APPEALS:  To win on ineffective assistance of counsel Defendant must show 1. That trial counsel’s performance fell below a reasonable level and 2. that he would have won if counsel wasn’t ineffective.

DECISION:  Defendant failed to establish the second prong, that he would have won or something would have changed with a non-ineffective attorney. 

MORAL OF THE STORY:  Remember your clients name.

State v. Young  2012 Ohio 965

Pro se appeal regarding post-release control.  No merits to this appeal.