Friday, September 28, 2012

"Eligible Offender" instead of "First Offender" (9 28 12)

Due to Senate Bill 337 (SB 337), there has been a change to the expungement law in Ohio. The new law for sealing a record of conviction or bail forfeiture in Ohio became effective today, September 28, 2012. Now your eligibility depends on whether you are an "eligible offender" instead of a "first offender." An "eligible offender" is defined in Ohio Revised Code Section 2953.31(A). Generally, an "eligible offender" has no more than one felony conviction, no more than two misdemeanor convictions, or no more than one felony and one misdemeanor conviction. The statute describes when multiple convictions are to be considered as one. And the same waiting periods that applied in the old law apply in the new law (three years for a felony, one year for a misdemeanor).

With the change to Ohio’s expungement law, more individuals may be eligible to have their criminal record sealed than before. And individuals who previously were not eligible to have their criminal records sealed may be eligible now.

Contact my office today if you want to discuss whether you are an "eligible offender."

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 27, 2012

Convictions reversed due to ineffective assistance of trial counsel (9 27 2012)

When Jason A. Harper was being interviewed by a Vinton County Sherriff’s Deputy, the Deputy asked him if he committed the crime they were investigating. Harper became silent and told the Deputy that "I cannot lie to you. I will not answer that question."

A Vinton County prosecutor interpreted that to be a confession, and the prosecutor tried to use it against Harper during his trial. The prosecutor referenced it during opening statement, during direct examination of the Deputy (twice), and during closing argument. Harper’s counsel never objected.

On appeal, Harper claimed that he was denied the effective assistance of counsel since his lawyer did not object to the State’s use of this assertion of his right against self-incrimination. Two of the judges on the Fourth District Court of Appeals for Vinton County agreed. They determined that Harper was prejudiced by his counsel’s failure to object since the use of this "confession" throughout the trial undermined their confidence in the outcome of Harper’s trial.

The third appellate judge disagreed. Judge Harsha believed that there was no "reasonable probability" of a different outcome based on the evidence that was presented at trial. State v. Harper, 2012-Ohio-4527.

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, September 25, 2012

County prosecutors have limited authority (OSC 9 25 2012)

Today the Ohio Supreme Court decided the case of State v. Desmond Billingsley, 2012-Ohio-4307. It decided that a Portage Prosecutor was not bound by an alleged plea deal a Summit County Prosecutor made with Billingsley. The OSC stated "a county prosecuting attorney does not have authority to enter into a plea agreement on behalf of the state with respect to crimes committed wholly outside his or her county." And the Court stated "a county prosecuting attorney lacks apparent authority to enter into plea agreements on behalf of the state with respect to crimes committed wholly outside of the prosecuting attorney’s county."

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 23, 2012

The prosecutor should have appealed (9 18 2012)

In Delaware County a defendant was charged with OVI and other crimes.  Her motion so suppress was granted.  Instead of appealing the decision on the motion to suppress, the prosecutor filed a motion to reconsider.  The trial court reconsidered and reversed itself.  The defendant appealed.  The Fifth District Court of Appeals for Delaware County stated that “In Ohio, a trial court has no authority to reconsider a final judgment in a criminal case.”  And “a motion for reconsideration of a final judgment is a nullity.”  Reversed and remanded.  State v. Webb, 2012-Ohio-4238.

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.

Friday, September 21, 2012

Escape conviction was based on insufficient evidence (9 21 2012)

To be guilty of "escape" in violation of R.C. 2921.34(A)(1), one must break or attempt to break the detention that the person knows they are under, or they are reckless in regard to whether they are under detention. So you need "detention" in order to escape from detention. Antonio Tensley showed up for his motion to suppress hearing and he did not know his bond had been revoked. The Hamilton County Judge told him to go sit in the jury box until the sheriff could come and take him away. Instead, Tensley split. The Hamilton County Prosecutor charged him with Escape because Tensley did not wait for the sheriff to arrest him. Tensley was convicted at trial, but the escape conviction was reversed on appeal because the First District Court of Appeals determined that Tensley was not "under detention" when he took off from the courtroom. State v. Tensley, 2012-Ohio-4265.

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.

Warning!!! I will try to win your appeal. (9 21 2012)

The first question any convicted defendant should ask is whether they want to appeal. If the defendant wins on appeal, they may face more potential punishment than what they already received. For example, if a defendant enters a plea agreement with the State, they usually do so because they are promised something less than what they could have in terms of punishment. Do you really want to get your plea vacated on appeal? You may not get the same deal next time or if you are convicted after a trial, the judge is not bound by the previous plea agreement. What if you are convicted after a trial and are sentenced to five years in prison when you faced twenty? You should consult with your appellate lawyer to determine what you face if you should win on appeal.

Risks of winning on appeal is one of the first topics that should be covered by a criminal appeals lawyer. When my clients on appeal decide they want to take the risk(s) by winning the appeal, I do everything I can to help them achieve their goal. Just know that sometimes you should be careful what you wish for.

Contact me if you need an Ohio 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.

Thursday, September 20, 2012

Felony DV conviction reduced to a Misdemeanor DV conviction (9 20 2012)

Timothy Tate was on trial for domestic violence against his girlfriend. He had two prior convictions for DV against the same victim. Before trial, Tate’s lawyer stipulated to the authenticity of the prior convictions. But two judges on the Eighth District Court of Appeals ruled that stipulating to the "authenticity" of the prior convictions did not relieve the State of its burden of proving the convictions beyond a reasonable doubt. To do so, the State must present a certified copy of the prior judgment AND evidence that the defendant is the same person that was previously convicted. The Court of Appeals determined there was plain error because the State failed to prove an element of the offense of F5 DV. Judge Frank D. Celebrezze dissented because he believes by stipulating the "authenticity" of the prior convictions, he was stipulating to the fact that he was the one previously convicted. State v. Tate, 2012-Ohio-4276.

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.

Escape conviction reversed (9 20 2012)

Lawrence Jackson was about to be arrested. The police secured Jackson with zip ties while the executed a search warrant on a known drug house. While the officers searched the house, one detective cried out "bingo, bingo" as if he’d found something. Instead of sticking around to see what the detective found, Jackson threw himself through a large glass window, but he did not get away. Even though his hands were zip-tied behind his back when he tried to get away, the Eighth District Court of Appeals for Cuyahoga County determined that Jackson was not detained and so the conviction for escape could not stand. State v. Jackson, 2012-Ohio-4278.

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.

State failed to present sufficient evidence of "force or threat of force" (9 20 2012)

Both L.R.F. and T.H. were under 13 years of age when L.R.F. (10) asked T.H. (6) to "go down on him." T.H. did. That’s not rape in violation of Ohio Revised Code Section 2907.02(A)(2), because L.R.F. did not purposely compel T.H. to perform fellation on him by force or threat of force. The Eighth District Court of Appeals for Cuyahoga County would not judge this case with a "more relaxed" definition of force to help the State keep their adjudication of L.R.F. as delinquent for committing "rape" on T.H. The Court of Appeals determined that the fact that L.R.F. threatened to tell on T.H. for something else she had done – if T.H. did not comply – did not meet the level of "force" required by the rape statute. In re L.R.F., 2012-Ohio-4284.

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 in dismissing a case as a "full judgment of acquittal" (9 20 2012)

Trial judges may dismiss cases in the "interests of justice" pursuant to Ohio Criminal Rule 48(B). A Franklin County Judge dismissed the felonious assault case against Noor M. Elqatto after the jury deadlocked and the judge declared a mistrial. The judge dismissed the case and granted Elqatto a "full judgment of acquittal." The State appealed since it wanted to try to convict Elqatto again. The Court of Appeals for the Tenth Appellate District reversed saying that a "full judgment of acquittal" was not appropriate in the case because sufficient evidence for conviction had been presented at trial to sustain a conviction, and it was a simply a dismissal of the case without prejudice (and not an acquittal). State v. Elqatto, 2012-Ohio-4303.

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.

"Plain feel" only works if the trial judge believes the officer (9 20 2012)

A Detective was investigating Thomas Smith, Sr., for heroin trafficking. The Detective confronted Smith who was acting nervous and touching the left side of his coat pocket. The Detective conducted a pat-down of Smith to make sure he did not have any weapons. During the pat-down, the Detective felt something in Smith’s coat pocket. The "plain feel" doctrine allows an officer to retrieve contraband they feel during a pat-down only if it is "immediately apparent" to the officer that he is feeling contraband. The Detective testified that he immediately knew what he was feeling was heroin. But the trial court did not believe him. So the trial judge granted the motion to suppress the evidence against Smith (which turned out to be about 30 bundles of heroin). The Eighth District Court of Appeals affirmed because a reviewing court is required to accept the factual determinations of a trial court "unless they are clearly erroneous." State v. Smith, 2012-Ohio-4292.

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 19, 2012

Did your lawyer file an "Anders Brief?" (9 19 2012)

My lawyer filed an "Anders Brief."  Now what do I do?

An "Anders Brief"? What is that? If a lawyer was appointed to represent you on appeal from your criminal conviction or sentence, they may decide to file a "No Merit" brief pursuant to the case of Anders v. California, 386 U.S. 738 (1967). In Anders, a lawyer was appointed to represent Charlie Anders on his appeal from his conviction for drug possession, reviewed the case and decided there was "no merit" to the appeal. Instead of arguing on behalf of Charlie Anders, the appointed lawyer filed a letter stating that he could find no merit to Anders’ appeal.

The appointed lawyer’s letter stated, "I will not file a brief on appeal, as I am of the opinion that there is no merit to the appeal. I have visited and communicated with Mr. Anders, and have explained my views and opinions to him. . . . [H]e wishes to file a brief in this matter on his own behalf."

The SCOTUS decided that the lawyer’s "bare conclusion" was not enough. It found that Anders was not afforded "counsel acting in the role as an advocate." An appointed appellate lawyer must "support his client’s appeal to the best of his ability."

If appointed counsel finds that the appeal is "wholly frivolous," he must notify the court and file a motion to withdraw. Along with his motion to withdraw, appointed counsel must file a brief "referring to anything in the record that might arguably support the appeal." A copy of this brief must be provided to the defendant and the defendant must be provided a chance to file his own brief. The appeals court is the one who decides whether the appeal is wholly frivolous. If it is, then appointed counsel will be permitted to withdraw. If the court finds that the appeal is not "wholly frivolous" (if any legal point is arguable on its merits), another lawyer must be provided to the defendant.

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.
 

 

 

 

Need a criminal defense lawyer for your appeal? (9 19 2012)

Choosing a lawyer is hard. The yellow pages are full of lawyers. How do you know which one to pick? Will a lawyer be better because he or she pays more on advertising? You could ask a friend who they used on their criminal appeal, but how many of us have friends who had a good lawyer on their criminal appeal? How about a lawyer on television or a billboard? Those are things that can be bought too. Is a lawyer better because they pay more on advertising? Not necessarily so you better be cautious.

If you don’t have a trusted friend who knows that a certain criminal appeals lawyer will do a good job on the appeal, you will have to do your best with what you have – your common sense. Maybe you should ask the following questions.

Does the lawyer limit their practice to certain areas of the law or is the lawyer trying to wear too many hats (and trying to keep up on developments in too many areas)? Is there any way for you to tell that the lawyer is current in the area of criminal law or are you just hoping they are? Who is going to work on your case? A front man you meet or staff hired by this person you will never see? Does the lawyer have a track record to show they know how to win an appeal or can’t they show you cases they have won on appeal in the past?

Choosing the right professional is always a challenge and choosing a lawyer might be the hardest of all. But choose wisely because you may not know how good your choice was until it is too late.

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 Abused its Discretion when it denied a post-sentence motion to withdraw a plea (9 19 2012)

A Mahoning County defendant was on EMHA or electronically monitored house arrest and he violated terms of his EMHA.  The defendant was indicted on one count of F2 Escape in violation of R.C. 2921.34(A)(1) for violating the terms of his EMHA.  He pled guilty to the charge with the assistance of counsel.  Later, again with the assistance of counsel, he learned that he could not be guilty of Escape as a matter of law for violating terms of his EMHA.  See State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548.  So he filed a motion to withdraw his plea to the escape charge.  The trial court denied the motion.  The Seventh District Court of Appeals for Mahoning County reversed because allowing the plea to stand would be a “manifest injustice.”  The Court of Appeals reversed the trial court’s decision and vacated the escape conviction.  State v. Williams, 2012-Ohio-4262.

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, September 18, 2012

How do you appeal a conviction or sentence in Ohio? (9 20 2012)

My suggestion? Hire a lawyer. If you cannot afford one, contact the local or state office of the public defender. Appeals are not something I would recommend you do yourself.

Make sure a "notice of appeal" is filed on time. To do this, your attorney will consult Ohio Appellate Rules 3 & 4. Those say that, generally speaking, a notice of appeal must be filed "within thirty days of the later of entry of the judgment or order appealed from." It must be filed "with the clerk of the trial court."

If you are out of time since the thirty days has passed, your attorney will consult Appellate Rule 5 about delayed appeals. But at this point you will need the permission of the court of appeals. Much better to get your notice of appeal filed on time.

Again, I would say you should get your criminal defense lawyer to file the notice of appeal and/or get a lawyer to do your appeal. Click here for the Ohio Appellate Rules.

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 13, 2012

House Bill 86 added a new consideration to the purposes of felony sentencing (9 13 2012)

Ohio judges are required to consider the two primary purposes of felony sentencing when crafting a sentence for a defendant. Those main purposes are "to protect the public from future crime by the offender and others and to punish the offender."

H.B. 86 added another requirement. While attempting to achieve the goals noted above, the judges must use "the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources."  State v. Lebron, 2012-Ohio-4156.

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.

 

 

 

Consecutive sentences reversed for re-sentencing (9 13 2012)

The effective date of House Bill 86 was September 30, 2011. For those sentenced on or after that date, trial judges must make findings required by R.C. 2929.14(C)(4) before consecutive prison terms may be imposed. A Cuyahoga Couty judge failed to make the required findings and so the consecutive sentences were reversed and the case was remanded for resentencing. State v. Wilson, 2012-Ohio-4159.

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.



Findings must be made before consecutive sentences are imposed (9 13 2012)

H.B. 86 amended R.C. 2929.14(C)(4) to require trial judges to make findings before they impose consecutive sentences on defendants who are sentenced on or after September 30, 2011. First the judge must find that "consecutive service is necessary to protect the public from future crime or to punish the offender AND THAT consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public, AND THAT the court also finds any of the following:

a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Ohio Revised Code, or was under post-release control for a prior offense.

b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender’s conduct.

c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

Once consecutive prison terms are imposed, a reviewing court will look at whether the findings made by the trial court are clearly and convincingly not supported by the record. R.C. 2953.08(G)(2). The Eighth District Court of Appeals modified a sentence because the consecutive sentences were not supported by the record. State v. Lebron, 2012-Ohio-4156.

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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