Saturday, October 8, 2011

Failure to provide written transcript results in loss for Appellant (10 8 11)

The State appealed a trial court’s ruling on a motion to suppress evidence. The prosecutor filed an electronic version of the suppression hearing (an audio or video recording) but failed to have a paper transcript created. The Court of Appeals for Montgomery County stated that it had discretion, based on former Appellate Rule 9, to review the electronic version of the motion to suppress hearing, but it chose not to. Instead, the Court of Appeals presumed the regularity of the proceedings below and affirmed the ruling of the trial court.

In the newly amended version of Appellate Rule 9, at B(1), it states, "It is the obligation of the appellant to ensure that the proceedings the appellant considers necessary for inclusion in the record, however those proceedings were recorded, are transcribed in a form that meets the specifications of App. R. 9(B)(6)." State v. Watson, 2011-Ohio-5213.

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.

Wednesday, October 5, 2011

What if two of the three appellate judges get it wrong? (10 5 2011)

In Ohio Courts of Appeal there will be three judges deciding your appeal. What if two of the appellate judges get it wrong? You lose! The majority opinion is what decides your fate. Even if the dissenting judge makes a well reasoned opinion based on the facts and law. You still lose. And do you think the Ohio Supreme Court is going to fix it? Think again. The OSC is not there for "error correction."

 

That appears to be what happened to Thomas Ricks who was on trial for aggravated murder and other crimes. Ricks, aka "Peanut," was a "shooting suspect" along with his co-defendant Gipson. Gispson did not testify at Rick’s jury trial, but the prosecutor had a cop testify that Gipson identified Ricks as "Peanut." Hearsay right? Oh no, the prosecutor argued, it is just to show why the cop did what he did. And the trial judge allowed it over objection. The judge told the jury they did not hear that Gipson identified Ricks as "Peanut" for the truth of the matter asserted. The judge said, just because you heard that Gipson identified Ricks as Peanut does not "necessarily mean that that was Peanut ... but they are really brought in for the purpose to explain this officer or that department’s investigation, why they were doing what they were doing."

 

The dissenting judge wrote a well-reasoned opinion in which he showed how the other two appellate judges got it wrong in three different ways. They used the wrong standard of review, they erred by affirming the actions of the trial judge, and the prosecutor committed prosecutorial misconduct by getting this damaging hearsay before the jury and then argued it as substantive evidence of guilt. Even if you agree with the dissenting judge’s reasoning from paragraph 103 to 135 and disagree with the majority in paragraphs 59 to 69, Ricks still lost. State v. Ricks, 2011-Ohio-5043.

 

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.

 

A Day Late and an Appeal Short (10 5 2011)

The Ninth District Court of Appeals for Medina County dismissed an appeal because it was untimely. The Notice of Appeal had to be filed by January 10, 2011, but it was not filed until January 11, 2011. Appellate Rule 4 states that a Notice of Appeal must be filed "within thirty days of the later of the entry of judgment or order appealed."

The case was briefed, oral argument was requested by both parties and was set for June 2, 2011. The Ninth District Court of Appeals decided on September 30, 2011, that it did not have jurisdiction to hear the case because the Notice of Appeal was filed a day too late.

There is no indication in the decision why it took the Court of Appeals eight months to figure out the Notice of Appeal was filed late (or how many tax dollars were wasted since counsel was appointed for the Defendant/Appellant, the Prosecutor’s Office defended the appeal, and the Court of Appeals apparently heard oral argument on the case). Read the decision here.

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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