Friday, September 30, 2011

Police cannot prolong your detention until a drug sniffing K-9 arrives (9 30 11)

Police love drug dogs. Canines can be used to sniff out contraband on your person, in your luggage, or in your vehicle. And the great thing for the cops is that they don’t have to worry about your Constitutional Rights with a drug dog. Why? Because the fact that the canine is sniffing around you or your luggage or your vehicle does not amount to a "search" and so the Fourth Amendment is not implicated.

When police stop you in your vehicle for some legitimate purpose, they can have a drug dog walk around your stopped vehicle as an extra bonus. If the dog "alerts," the officer has probable cause to search your car. But the police cannot make you stay there until their drug dog arrives on the scene. The dog has to do his thing before the cop is done with dealing with whatever traffic violation that caused the stop in the first place.

A Champaign County man was stopped for speeding in Goshen Park. The traffic stop would normally take about fifteen minutes, but the K-9 unit did not get there for almost thirty minutes. The drug dog indicated that there were drugs in the car and heroin was found on the rear floor. The man filed a motion to suppress and lost so he pled "no contest" to the drug charge and appealed.

The Second District Court of Appeals for Champaign County determined there was no justifiable reason to hold the defendant at the scene of the traffic stop past the time it took to write him a ticket for speeding. The defendant was being held at the scene illegally when the drug dog arrived and so the drugs that were found should have been suppressed. State v. Haynes, 2011-Ohio-5020.

Contact me if you need an Ohio Criminal Appeal 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.

Court costs must be imposed at the sentencing hearing (9 30 2011)

The Ohio Supreme Court held today that a trial court errs when it imposes court costs on a defendant, pursuant to former R.C. 2947.23, in the sentencing entry where it failed to inform the defendant at the sentencing hearing that court costs would be imposed. The Court cites Criminal Rule 43(A) which requires that the defendant be present at sentencing and every other stage of his trial. And the Court found that the defendant was harmed because "he was denied the opportunity to claim indigency and to seek a waiver of the payment of court costs before the trial court." In cases such as this, the case is remanded to the trial court to give the defendant the opportunity to request a waiver of the court costs. State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954.

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.

 

 

 

 

 

 

 

 

 

 

 

Thursday, September 29, 2011

Defendant’s Right to be Present was Violated (9 29 11)

Do you have a right to be physically present when you are sentenced?  A Richland County defendant had to be re-sentenced by the Richland County Court of Common Pleas.  Probably to save the expense of having the defendant transported just so he could be re-sentenced, the trial court re-sentenced the defendant via video conference.  Defendant’s criminal defense lawyer objected but the re-sentencing was completed.  On appeal the Court of Appeals for Richland County found that the trial judge erred by re-sentencing the defendant by video.  The re-sentencing violated the defendant’s right to be present in violation of Section 10, Article I of the Constitution of Ohio, and Ohio Criminal Rule 43(A).  Now the defendant has to be re-sentenced yet again.  State v. Gray, 2011-Ohio-4570.

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.

Court costs and community service warning (9 29 2011)

The Fourth District Court of Appeals for Athens County reversed the "court costs" part of a defendant’s sentence because the trial court failed to warn the defendant that failure to pay court costs could result in the defendant having to do community service to pay off the court costs. This notice to the defendant is required by R.C. 2947.23(A)(1). A dissenting judge believes that the issue is not ripe for review since the defendant has not been ordered to do community service to pay off his court costs yet. State v. Hawk, 2011-Ohio-4577.

Contact me if you need an Ohio Criminal Appeal Attorney 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 25, 2011

Trial Judge Erred by limiting cross examination (9 25 2011)

During a bench trial in the Dayton Municipal Court, a Dayton criminal defense attorney tried to question the alleged domestic violence victim on cross examination about a prior inconsistent statement she made. The prosecutor objected and judge sustained the objection.

On appeal, the Montgomery County Court of Appeals reversed and remanded. The Dayton criminal defense lawyer did not have to make a proffer of the evidence that was excluded during cross examination (Evid.R. 103(A)(2)), "asking a witness about a prior inconsistent statement does not involve extrinsic evidence of that prior inconsistent statement" and therefore Evid.R. 613(B), and nothing in Criminal Rule 16 required the defense to turn over a prior inconsistent statement they could use in cross examination of a prosecution witness (and there was no case management plan requiring that witness statements had to be turned over by both sides). State v. Clifford Pierce, 2011-Ohio-4873.

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.

Sunday, September 11, 2011

Allowing the State to recall a witness was an Abuse of Discretion (9 11 2011)

Brandon Anderson was on trial for murder and identification of the shooter was important to the State’s case. Tobias Epps testified for the State but failed to testify that he positively identified Brandon Anderson as the shooter. After Epps finished testifying at trial, he conferred with one of the State’s investigating officers. The officer and Epps then went to the assistant prosecutor. The prosecutor asked to recall Epps to the witness stand and the judge allowed it over Anderson’s objection. The Court of Appeals for Hamilton County determined that the trial judge abused his discretion in allowing the State to recall the witness. The second time Epps testified, he positively identified Anderson as the shooter, and he was the only witness to do so. The Court of Appeals reversed and remanded for a new trial. State v. Anderson, Hamilton County Appellate No. C-0903238, 2010-Ohio-6234.

Contact me if you need an Ohio 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.



The Ohio Supreme Court defined what "criminally" means (9 11 11)

The Ohio Supreme Court defined what "criminally" means in State v. Chappell, 2010-Ohio-5991. The question was "whether the state may use violations of federal criminal law to prove that a person possesses items to use the items criminally in violation of R.C. 2923.24." The Supreme Court of Ohio held that "in accordance with the plain and ordinary meaning of the term ‘criminally,’ as the term is used in R.C. 2923.24(A), the purpose to use an item criminally can arise from an intended violation of federal law."

Contact me if you need an Ohio 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.

Saturday, September 10, 2011

Prosecutor’s "race-neutral" explanation need not be shared by judge (9 10 11)

A Batson challenge begins when a criminal defense lawyer makes a prima facie case that the prosecutor exercised a peremptory challenge based on a potential juror’s race. The burden is then on the prosecutor to come up with a "race neutral" explanation for why they struck that juror. The trial judge must determine whether the prosecutor is being honest about the race-neutral explanation, or is just trying to come up with some excuse for removing the potential juror based on race. But the trial judge does not have to agree with the prosecutor’s race-neutral reason. That is what happened in the case of State v. Antonio Greene, Montgomery County Appellate No. 24307, 2011-Ohio-4541. The prosecutor’s race-neutral explanation was that the potential juror had a brother who had been convicted of a crime seven years earlier. The prosecutor told the judge he was concerned that the juror would be biased against the prosecution, even though the juror said he would not be. The trial judge did not believe the juror would have been biased against the State, but at the same time the trial judge believed that the prosecutor was not using this race-neutral reason as a pretext for striking the juror on the basis of race. Even though the judge had a different view of the potential juror’s ability to sit as a juror, the judge found the prosecutor to be credible in making the race-neutral explanation. Therefore, the Second District Court of Appeals for Montgomery County overruled Greene’s argument on appeal that the trial judge erred in denying the Batson challenge.

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.



Thursday, September 8, 2011

Warning! The Final Sentencing Decision is up to the Judge! (9 8 2011)

Use caution when you enter a plea agreement with the State. Even if the State agrees to recommend (to the Judge at sentencing) a sentence of "no more than four years," do not think that protects you from being sentenced to a lot more than that. The Judge still has the final say in what you are sentenced to.

That is what happened to David Liskany in Greene County, Ohio. Liskany pleaded guilty to charges that could have landed him in prison for 21 years and could have resulted in him having to pay fines of up to $40,000. The plea agreement was that the prosecutor would recommend a sentence of four years or less. But Liskany was sentenced to 16 years! Some deal.

Liskany tried to get out of his plea, but the trial judge would not let him and the Second District Court of Appeals affirmed that decision. However, Liskany’s sentence was reversed and the case was remanded for re-sentencing since the first time around it looked like the trial judge may have been persuaded by a letter written by a Deputy Sheriff which recommended Liskany get a long sentence.

So Liskany is stuck with his plea and he faces up to 21 years in prison. Judge Michael A. Buckwalter could sentence Liskany to much more than 4 years on remand as long as he claims he is not doing it based on the Sheriff Deputy’s letter.

The lone dissenting judge would have let Liskany out of his plea because the "promise" by the prosecutor to recommend a sentence of no more than 4 years induced Liskany into the plea. A plea he is now stuck with. State v. Liskany, 2011-Ohio-4456.

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.

 

 

 

 

Wednesday, September 7, 2011

Father’s Conviction for Domestic Violence Against Son Reversed (9 7 11)

Some parents believe they must resort to corporal punishment to discipline their children. The Ohio Supreme Court "has recognized that a parent is not prohibited from using corporal punishment when disciplining his or her child." And "a child does not have any legally protected interest which is invaded by proper and reasonable parental discipline."

The Third District Court of Appeals for Union County just reversed a father’s conviction for domestic violence with his son as the supposed victim. The Court of Appeals found that the trial judge failed to consider the "Hart" factors as laid out in State v. Hart (1996), 110 App.3d 250. And the trial judge failed to consider evidence presented at trial.

It was enough for the trial judge that, in the judge’s opinion, the father just "flew off the handle" and hit his son. State v. Christopher Luke, 2011-Ohio-4330.

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.





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