Tuesday, January 24, 2012

An element of an offense cannot be used to elevate the seriousness of an offense (1 24 2012)

The Fourth District Court of Appeals for Gallia County says that a trial judge abuses his discretion when he considers an improper sentencing factor in sentencing a defendant.  The Court of Appeals reversed the sentence of a man convicted of aggravated robbery because the judge used the fact that a deadly weapon was used as a factor justifying a stiffer sentence for aggravated robbery.  But to charge aggravated robbery as this defendant was charged, there had to be a deadly weapon.  So the judge abused his discretion in enhancing the sentence based on the deadly weapon which was an element of the offense for which the defendant was convicted.  State v. Sims, 2012-Ohio-238.

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.

Monday, January 23, 2012

Attaching a GPS device to a vehicle is a "search," SCOTUS rules (1 23 12)

Today the Supreme Court of the United States held that attaching a GPS device on a vehicle and using that GPS device to monitor the movements of the vehicle constitutes a "search" under the Fourth Amendment. Read the decision in United States v. Jones here.

 
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.



Saturday, January 21, 2012

Waiver of counsel needs more than a signature (1 21 2012)

Defendant/Appellant Geno Battaia asked for and was appointed a lawyer to represent him when he was charged with criminal damaging and disorderly conduct. Battaia proceeded to secretly record every conversation his appointed criminal defense lawyer had with him and then he filed a grievance against his lawyer before his trial date. On his trial date Battaia decided to represent himself. The trial judge had Battaia sign a waiver of counsel, refused Battaia’s request for a continuance, and found him guilty after a bench trial. On appeal Battaia was represented by a lawyer who successfully argued that the trial judge failed to engage Battaia in any meaningful colloquy about the rights he was giving up by waiving counsel. The Court of Appeals said "a talismanic statement by the court that the waiver [of counsel] is valid does not make it so." City of Parma v. Geno Battaia, 2012-Ohio-173.

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, January 18, 2012

Can a sentencing judge change the sentence he imposed? (1 18 2012)

Not if the final order has been issued.  A trial judge had sentenced Jack Carlisle to three years of prison time for kidnapping and sexually assaulting a child.  Carlisle was granted an appeal bond and he stayed out of prison for a couple years while his case made it through the reviewing courts.  Once he exhausted all his legal avenues to no avail, Carlisle asked the sentencing judge to reconsider and the sentencing judge vacated its original sentence and sentenced Carlisle to five years probation (community control).  The Ohio Supreme Court said the trial judge could not do that.  “Absent statutory authority, a trial court is generally not empowered to modify a criminal sentence by reconsidering its own final judgment.”  State v. Carlisle, 2011-Ohio-6553.

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.



Fourth Amendment and abandoned property (1 18 2012)

The Fourth Amendment protects you from the government, but not when it comes to abandoned property.  The Ohio Supreme Court stated the obvious today when it said “[a] warrantless search of abandoned property does not violate the Fourth Amendment because any expectation of privacy is forfeited upon abandonment.”  The OSC took the case to reinstate the convictions and sentence of one Dennis Gould who had been sentenced to a couple life sentences for sex crimes.  The Court of Appeals had reversed the convictions because it believed Gould had not abandoned the hard drive that contained incriminating evidence.  The Ohio Supreme Court says that Gould did abandon the hard drive.  State v. Gould, 2012-Ohio-71.

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.
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