Tuesday, September 29, 2009

Anders Briefs put defendants in a tough spot (9 29 2009)

What if your criminal defense lawyer files an "Anders Brief" in your appeal? This is what the Seventh District Court of Appeals said about Anders Briefs in 2009-Ohio-5075:

"It is well settled that an attorney appointed to represent an indigent criminal defendant on his or her first appeal as of right may seek permission to withdraw upon a showing that the appellant’s claims have no merit." State v. Odorizzi (1998), 126 Ohio App.3d 512, 515, 710 N.E.2d 1142. "To support such a request, appellate counsel must undertake a conscientious examination of the case and accompany his or her request for withdrawal with a brief referring to anything in the record that might arguably support the appeal." Id. The reviewing court must then undertake a full examination of the proceedings to determine whether the case is wholly frivolous. Id."

Most Courts of Appeal that are not the Seventh District cite the case of Anders v. California (1967) 386 U.S. 738.

An "Anders Brief" may not be harmful if there is absolutely zero "non-frivolous" issues in your case that can be raised in your appeal. But what if your appointed lawyer is wrong? What if they do not take the time because they are underpaid on appointed appeals? What if the Court of Appeals does not have the time or resources to scour the record to come up with arguments on your behalf? What can you do if you have nobody advocating for you on appeal?

The Court of Appeals will generally give you some time to file your own brief, but being that inmates generally do not have law degrees, experience filing appeals, or unrestricted access to the outside world, you may have a hard time coming up with a winning brief. If you do not get the brief done in the allotted time, you might be able to have the appeal reopened with an Appellate Rule 26(B) application to reopen the appeal. That is what the defendant did in 2008-Ohio-443. He lost his appeal but the Court of Appeals said there were "reasonable grounds" for the appeal. That is after the Court had dismissed his first appeal pursuant to Anders.

The Second District Court of Appeals has said the proper way to deal with an Anders dismissal is to appeal to the Ohio Supreme Court or do an application to reopen the appeal as you can in 2001-Ohio-1701. The Court would not address the defendant's arguments in a petition for postconviction relief because the defendant had not "employed the proper vehicle to raise the argument."

You are in a tough spot if an Anders Brief is filed in your direct appeal. Having the appointed attorney on appeal means you were indigent to begin with. And if your family cannot foot the bill for a private lawyer who is experienced with doing criminal defense appeals you may be out of luck. You could try the local or state public defender but you already have your appointed lawyer so they might not help.

Anders Briefs should be a rare thing but one attorney in the 12th District filed 10 that were dismissed this year and 49 in about a four year span. In the Second District there have been about 34 cases dismissed pursuant to Anders this year. If you have an Anders Brief filed in your case but you thought you had some valid arguments on appeal, all I can do is wish you the best of luck if you cannot hire a lawyer to look over the record for you.

Contact me if you need a Dayton criminal defense lawyer for your appeal or other post-conviction matter by going to my Web site www.robertalanbrenner.com and filling in the "contact me" form.

Thursday, September 24, 2009

knowing conveyance of drugs onto the grounds of a detention facility by an inmate (9 24 09)

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. 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).”

Contact me if you need a Dayton Criminal Lawyer for your appeal or other post-conviction matter by going to my Web site www.robertalanbrenner.com and filling in the "contact me" form. Visit www.ohiocriminaltriallawyer.com if you need an experienced Dayton Criminal Defense Lawyer to represent you in the trial court.

Sunday, September 13, 2009

Burglary Conviction Reversed (7 13 2009)

The Sixth District Court of Appeals reversed a second degree felony burglary conviction because the State failed to prove that “any person other than an accomplice of the offender is present or likely to be present” as required by Ohio Revised Code Section 2911.12(A)(2).  If no person is present or likely to be present, burglary under (A)(3) is a felony of the third degree which carries a potential prison term which is a full three years shorter than its second degree felony alternative.

In this case, the State indicted the defendant for the F2 version under section (A)(2) but then it failed to present sufficient evidence to the jury that anyone was present or likely to be present at the time of the burglary (that did not stop the jury from convicting, however).  The Sixth District Court of Appeals determined that the victim, who went back to work after lunch at noon and did not return until six in the evening was not “likely to be present” because the State never presented evidence of when the burglary took place.  If the burglary had taken place between 3:30 PM and 5:30 PM, the conviction may have been upheld since the homeowner testified that those two hours are the window in which he usually gets home from work.  State v. Mitchell, 2009-Ohio-3393.

This case cited a case I got reversed on appeal for a similar reason as you can read in State v. Frock, 2006-Ohio-1254.

Contact me if you need a Dayton criminal defense lawyer for your appeal or other post-conviction matter by going to my Web site www.robertalanbrenner.com and filling in the “contact me” form.
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