Tuesday, June 28, 2011

Failure to merge allied offenses was plain error (6 28 11)

The Tenth District Court of Appeals reversed a sentence for robbery and theft convictions because the trial court committed plain error when it failed to merge them for purposes of sentencing. The Court of Appeals applied State v. Johnson, 2010-Ohio-6314 and determined that the defendant could commit the robberies and thefts with the same conduct. And since the robberies and thefts were committed with a single act with a single animus (state of mind), they were allied offenses of similar import that should have been merged. State v. Taylor, 2011-Ohio-3162.

Contact me if you need a Dayton 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. Visit www.ohiocriminaltriallawyer.com if you need an experienced Dayton Criminal Defense Lawyer to represent you in the trial court.



Thursday, June 23, 2011

"Labeling" did not justify stop (6 23 11)

The State appealed after a Cuyahoga County trial judge granted a defendant’s motion to suppress evidence found on his person after police stopped a van in which he was riding. Police stopped the van because an officer saw a man walk up to the van, make "hand to hand contact" with someone in the van, and then walk away. The police had a hunch a drug transaction had just taken place and they stopped the van. But it takes more than a hunch to justify a stop of a vehicle. The trial judge did not believe the officer could see what was exchanged or that anything was exchanged between the men. The officer testified that there was a "hand to hand" transaction, but labeling behavior this way is not enough to justify a stop for Fourth Amendment purposes. The trial judge found, and the Court of Appeals agreed, that the officer lacked "specific and articulable facts to support his reasonable belief that a crime may be occurring." The stop and search violated the Fourth Amendment and the Court of Appeals affirmed the trial court’s decision to grant the defendant’s motion to suppress. State v. Carmichael, 2011-Ohio-2921.

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. Visit www.ohiocriminaltriallawyer.com if you need an experienced Dayton Criminal Defense Lawyer to represent you in the trial court.



Tuesday, June 21, 2011

Efficient justice may not be so efficient (6 21 2011)

The Delaware County Municipal Court apparently figured it could save a bunch of time by informing all the defendants in a group about the rights they were giving up by pleading guilty or no contest. One defendant in the audience on August 11, 2003, who was sitting behind the court railing was informed with everyone else that he may face deportation, exclusion from the U.S., or denied naturalization if he pleads guilty or no contest and he is not a U.S. citizen. This attempt at being efficient with the court’s time backfired in one case. Mateo Zabala made a motion to withdraw his plea since he was not addressed personally about the warnings required by R.C. 2943.031. The trial judge denied the motion. The Fifth District Court of Appeals for Delaware County reversed the trial judge and said that a defendant must be personally addressed and the trial judge must make sure the defendant fully understands the immigration consequences of his plea before accepting the plea. The case was sent back to the trial court. State v. Zabala, 2011-Ohio-2947.

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.  Visit www.ohiocriminaltriallawyer.com if you need an experienced Dayton Criminal Defense Lawyer to represent you in the trial court.

Trial Judge erred when he denied a motion to seal the record of a misdemeanor conviction (6 21 2011)

When faced with a motion to seal the record of a conviction, a trial judge must make findings as required by R.C. 2953.32(C). Instead, a Perry County trial judge denied a motion to seal a record of a misdemeanor conviction simply because it was a serious case. When the defendant was 18 years old he had a car accident that killed his 18 year old passenger. Even though the defendant was a first offender and no criminal proceedings were pending against him when he moved to have his conviction sealed, the trial judge thought sealing the conviction would minimize the seriousness of the offense. The Fifth District Court of Appeals said this was not a proper analysis by the trial judge and the trial judge had to "make the necessary findings required by R.C. 2953.32 and weigh the interests of the parties to the expungement and cannot deny the motion for expungement because of the nature of the offense." State v. Poole, 2011-Ohio-2956.

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.  Visit www.ohiocriminaltriallawyer.com if you need an experienced Dayton Criminal Defense Lawyer to represent you in the trial court.

 

 

 
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