Monday, March 26, 2012

"Anders Brief" Rejected (3 26 2012)

When a criminal defense attorney does an "Anders" or "no-merit" brief, it is like they have stepped out of the role of "advocate" and more into the role of "judge" of the defendant’s appeal. They have reviewed the case and decided that anything they could possible raise as an alleged error is "wholly frivolous." Counsel has decided that there is not one assertion that they could make on behalf of the client that has "arguable merit."

But the criminal defense lawyer is not supposed to be the final arbiter of the issue. The Second District Court of Appeals is one court that examines the record and determines whether the appeal truly is wholly frivolous.

Today the Second District Court of Appeals for Greene County rejected an Anders Brief that was filed by an appointed Greene County criminal defense lawyer. The Court found that there was a non-frivolous issue regarding whether a search by police violated the Fourth Amendment. The Court did not say the issue would "win" on appeal, but it said that the issue is not "wholly frivolous" and therefore it must be briefed. Another criminal defense attorney will be appointed to raise this issue or any other "non-frivolous" issues that can be found in the record. State v. Roberson, 2012-Ohio-1237.

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.

"Contrary to Law," IAC and Merger (3 26 12)

Sentences are "contrary to law" when they do not follow the dictates of the law. If a sentence is supposed to be "mandatory" by law, the sentence is "contrary to law" if a non-mandatory sentence is imposed. The same is true if there is no legal basis for a "mandatory" sentence for a conviction but a mandatory sentence is imposed anyway. If a trial judge does not follow the guidelines set forth in the Ohio Revised Code, their sentences may be reversed because they are contrary to law.

The Second District Court of Appeals for Greene County just reversed sentences on six counts against a defendant who was convicted in Greene County. The sentences on all those counts were "contrary to law." The State argued on appeal that the defendant was not "prejudiced" by the errors and/or the errors were harmless. But the Ohio Supreme Court has stated in State v. Kalish, 2008-Ohio-4912, that a sentence that is contrary to law "cannot stand."

The Court of Appeals also found that the criminal defense lawyer failed to provide the effective assistance of counsel at the trial level when he failed to remind the judge at the sentencing hearing that the judge had already decided at the plea hearing that two counts would merge. The trial judge did not merge those counts at sentencing. Finally, the Court of Appeals ordered that the trial judge conduct a hearing on remand into whether any of the other counts should have been merged. State v. Williams, 2012-Ohio-1240.

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, March 17, 2012

Affidavit of Indigency in Ohio (3 17 2012)

Click here for Ohio’s Financial Disclosure/Affidavit of Indigency form with instructions. This and many other valuable resources are located at the Ohio Public Defender’s web site.

Contact me if you need a Dayton, Ohio, Criminal Defense 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.

Twelfth District Rules New Sentencing Guidelines are not Retroactive (3 7 2012)

House Bill 86 (2011 Am.Sub.H.B. No. 86) changed many things regarding sentencing. But the bill does not apply to those who were sentenced before the effective date, says the Twelfth District Court of Appeals for Clermont County. A Clermont County defendant was sentenced before the effective date of H.B. 86, but his sentence was reversed in part and the case was remanded for an allied offenses sentencing error. Then he was re-sentenced after the effective date of H.B. 86. On appeal from that re-sentencing, the defendant argued that the new law should apply. But the Court of Appeals said there is nothing in the language of H.B. 86 or in its legislative history that would indicate that the new law should apply to this defendant. State v. Craycraft, 2012-Ohio-884.

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, March 12, 2012

Trial Judge Erred by Reducing Sentence on Remand (3 12 12)

Before you appeal your conviction or sentence you may want to ask, should I appeal?  What are the dangers in appealing?  Could things get worse for me if I appeal?  You have to consider the possible bad result you could get by appealing a decision.  The Eighth District Court of Appeals for Cuyahoga County stuck it to Eric Smith to the tune of one year in prison when he appealed to complain about his eight year prison term.  Smith was originally sentenced to ten years in prison but on appeal a year one gun spec was tossed out and the case was remanded so the trial judge could vacate the gun spec which would give Smith a nine year prison term.  Instead, the trial judge conducted a full re-sentencing hearing and decided to sentence Smith to eight years in prison due to his good behavior and things he was doing well while in prison.  Still not happy with that, Smith appealed again but this time the Court of Appeals pointed out that the trial judge had no authority to re-sentence Smith.  The trial judge was only supposed to vacate the gun specification.  The Court of Appeals remanded the case again but with orders for the trial judge to reinstate Smith’s original prison term less the one year for the gun spec.  Smith’s appeal cost him a year in prison.  Maybe the trial judge will still be in a good mood when Smith is able to seek judicial release.  State v. Smith, 2012-Ohio-926.

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.

Saturday, March 3, 2012

Appeal was not "moot" due to collateral consequences (3 3 2012)

An appeal from a domestic violence conviction was not "moot" even though the fines were paid and the time was served before the appeal was decided. That is because there were "collateral consequences" to the conviction. For example, a misdemeanor conviction for domestic violence can be used to enhance subsequent domestic violence convictions. City of Solon v. Erik Bollin-Booth, 2012-Ohio-815.

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 court had jurisdiction to hear motion for new trial (3 3 12)

While an appeal was pending on unrelated matters, Phillip Lawrence filed a motion for leave to file a delayed motion for a new trial. Lawrence is serving time in the Warren Correctional Institution. The prosecutor argued that the trial judge should deny the motion since the trial court was without jurisdiction to hear the motion while the appeal was pending. The Second District Court of Appeals for Montgomery County decided that the trial court did have jurisdiction. State v. Lawrence, 2012-Ohio-837.

Lawrence was convicted in the death of Antonne Pollard which occurred back in 2000. Lawrence is now claiming he found a witness to the shooting while serving time in prison and this fellow inmate says that Lawrence was not the shooter.

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.


Friday, March 2, 2012

Appeal dismissed as moot (3 2 2012)

You can request a "stay" or request to have your appeal put on the "fast track" (well, a little bit faster than an appeal that is not put on the accelerated calendar). You have to be aware of that especially when the sentence is relatively short. Today a Clark County man had his appeal dismissed as "moot" because he already served his sentence by the time the Second District Court of Appeals for Clark County was ready to decide the case, and the only thing he was challenging on appeal was his sentence. The Court of Appeals dismissed his appeal as moot in State v. Richmond, 2012-Ohio-842.

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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