Friday, November 30, 2012

Could the new expungement law help me?

This is what a Champaign County appellant is likely asking herself today. She filed an application to have her criminal record sealed. And she filed her application before the new expungement law – S.B. 337 – took effect (also referred to as the sealing of record of conviction or bail forfeiture section). So the Second District Court of Appeals decided her case under the old law. It used to be you had to be a "first offender" to have your record sealed. Not anymore. Under the new law – which took effect on September 28, 2012 – you have to be an "eligible offender" as that is defined in R.C. 2953.31(A). While the Appellant may be eligible to have her record sealed under the new law, she was not a "first offender" and so her application was denied under the old law. That decision was affirmed on appeal in State v. Porter, 2012-Ohio-5541.

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.



Miranda was not required during bicycle stop (11 30 12)

Dayton police officers saw a man riding his bicycle without lights which they believed was a minor misdemeanor in violation of a Dayton City ordinance. They stopped the man and asked if he had any weapons. The man admitted he did and he was subsequently charged with carrying a concealed weapon. The man moved to suppress the gun since he was not read his Miranda Rights before he admitted having the weapon. But a routine traffic stop is not a custodial situation and Miranda warnings are only required for custodial interrogation. And the Second District Court of Appeals has held that an officer may ask any person stopped during a traffic stop if they are armed because of the legitimate concern for the safety of the officers. State v. Brown, 2012-Ohio-5532.

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, November 16, 2012

An accused is entitled to a fair trial even during a bench trial (11 16 12)

There is a presumption that a judge at a bench trial only considers relevant, admissible evidence. On the other hand, "the fact that a defendant forgoes a jury trial is hardly an excuse to give the state free rein to admit any and all evidence on the presumption that the trial court will separate the wheat from the chaff. Although an accused is not entitled to a perfect trial, he is entitled to a fair trial." The Second District Court of Appeals for Montgomery County reversed a conviction after a judge at a bench trial improperly allowed evidence of prior convictions over defense objections. State v. Hubbs, 2012-Ohio-5313.

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.


Tuesday, November 13, 2012

failure of Appellant to comply with Appellate Rule 9 may be waived by Appellee (11 13 12)

Appellate Rule 9 states that it is the obligation of the Appellant to make sure that all the necessary proceedings for appeal are transcribed. The rule also states that the transcriber shall certify the transcript as correct. A Geauga County Appellant failed to meet their obligations regarding the transcript. A disc labeled "Exhibit 1" was transmitted from the trial court, but the Court of Appeals could not get it to play. The Court of Appeals disregarded the disc. A partial transcript was attached to the Appellant’s Brief, but it was not certified as correct and there was no indication who transcribed it. The Court of Appeals for the Eleventh District stated that "there was a total lack of compliance with App.R. 9." Nevertheless, the Appellee stated in their brief that "the partial transcript of proceedings attached to Appellant’s brief includes all of the testimony necessary to decide the Assignment of Error and Issue Presented for Review." The Court of Appeals took that as a waiver by the Appellee of any defects in the transcript. The Court went on to decide the appeal in Appellant’s favor. State v. Lisac, 2012-Ohio-5224.

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, November 9, 2012

Restitution was awarded without due process (11 9 12)

For a restitution order to stand, there must be a due process ascertainment that the amount of restitution bears a reasonable relationship to the loss suffered.  An order of restitution in the Montgomery County Common Pleas Court was reversed today by the Second District Court of Appeals. The defendant objected to the restitution order at the sentencing hearing and that objection preserved the issue for appeal. The Appeals Court found that the "Blue Book" value of the car involved in the crime was not enough to satisfy due process. The Court found the award was not "based on competent and credible evidence at a hearing." A concurring judge stated that once the defendant objected to the restitution amount, a hearing was required by Ohio Revised Code Section 2929.18(A)(1). State v. Kennedy, 2012-Ohio-5215.

Contact me if you need a Dayton 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.


the state retained a defendant’s property without complying with the law governing forfeiture (11 9 12)

The First District Court of Appeals for Hamilton County ruled that a trial court erred when ruling on a defendant’s motion seeking the return of property seized from his person and vehicle when he was arrested. Because the prosecutor did not follow the law regarding forfeiture, the trial court "should have ordered the civil-forfeiture filing time extended and provided North with the procedural protections afforded by the civil-forfeiture statute." State v. North, 2012-Ohio-5200.

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, November 8, 2012

Judge abused his discretion with blanket policy (11 8 12)

A Cuyahoga County judge had a blanket policy regarding probation violations. He told a defendant that he was being placed on community control, but if he violated his community control sanctions he was going to prison and the judge would "run it wild." The judge said he sends all probation violators to prison. On appeal the defendant argued that the judge abused his discretion by refusing to use his discretion. The Court of Appeals for the Eighth Appellate District determined that the trial court denied the defendant his right to due process in two respects – the judge failed to act with a neutral and detached attitude toward the defendant and the judge failed to adequately explain the reasons it was revoking the defendant’s community control as required by Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). State v. Groce, 2012-Ohio-5171.

Contact me if you need a Criminal Defense Lawyer in Dayton 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, November 7, 2012

State v. Billiter, 2012-Ohio-5144 (11 7 12)

The Ohio Supreme Court has held that "if a trial court improperly sentences a defendant to a term of postrelease control and the defendant subsequently pleads guilty to violating the terms of that postrelease control, the defendant is not barred by principles of res judicata from collaterally attacking his conviction as void."  State v. Billiter, 2012-Ohio-5144.

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.



trial judges must notify defendants that they may have to do community service (11 7 12)

Trial judges must include court costs in all sentences in criminal cases pursuant to Ohio Revised Code Section 2947.23(A). Often judge overlook the requirement that they inform the defendant that the defendant could be ordered to perform community service if they fail to pay the court costs. That is what happened in the Hamilton County case of State v. Reynolds, 2012-Ohio-5153. The case had to be remanded back to the trial court so the defendant could be properly notified about the community service he may be ordered to perform if he ever fails to pay the court costs.

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, November 5, 2012

Beware of deadlines to file your appeal (11 5 12)

Ohio Appellate Rule 4(A) states that a notice of appeal must be filed within 30 days of the entry of judgment or order appealed from. Ohio Appellate Rule 5(A) allows you to make a motion for a delayed appeal in which you are asking the court of appeals for permission to have an appeal even though you missed the 30-day deadline. The Eleventh District Court of Appeals for Trumbull County just denied a defendant’s request to file a delayed appeal. He first tried to request the delayed appeal in May of 2012, but he did not follow the requirements of Rule 5(A) so the court of appeals dismissed the matter. He tried again and followed the requirements. The defendant explained that he was not informed of his right to appeal, he was not informed of the time limits for filing an appeal, he was not informed of his right to court-appointed counsel, and he lacks legal knowledge since he is not a lawyer. Too bad, says the court of appeals. Ignorance of the law is no excuse. The Eleventh District found that the defendant did not file for a delayed appeal until nearly two years, and such a delay was evidence, to them, "that appellant was not diligent in taking the proper steps to protect his own rights." The court of appeals overruled his motion for leave to file a delayed appeal. State v. Crites, 2012-Ohio-5127.

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.



Sentencing Entry incorrectly sentenced defendant to mandatory time (11 5 12)

A Portage County defendant got his appeal reopened pursuant to Appellate Rule 26(B) because his appellate lawyer failed to argue that his sentencing entry incorrectly stated he faced mandatory prison time when he did not. Once his appeal was reopened, he won his appeal and the Eleventh District Court of Appeals for Portage County remanded the matter for the trial court to issue a corrected sentencing entry. At the sentencing hearing, the trial judge did not impose mandatory prison time. But the sentencing entry stated he was sentenced to mandatory prison time. This error was prejudicial to the defendant since, among other things, he would NOT be able to seek judicial release while serving mandatory prison time, but he could seek judicial release if the time was not mandatory. State v. Sawyer, 2012-Ohio-5119.

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.



Trial court erred in vacating plea (11 5 12)

Usually it is the defendant who tries to vacate his plea. But in case out of Belmont County, the defendant appealed when the trial judge vacated his plea. The defendant benefitted from a plea deal with the State which knocked a third degree felony to a fourth degree felony. Once the trial judge became aware that the victim and her family were not happy about the plea (or misunderstood the effect of the plea), the trial judge vacated the plea. The defendant appealed trying to get the plea reinstated. The Seventh District Court of Appeals agreed the plea should be reinstated since the trial judge had already accepted the plea and there was no authority in the law for the judge to vacate a plea they already accepted (not to mention it brought up Double Jeopardy concerns). State v. Heslop, 2012-Ohio-5118.

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, November 1, 2012

Judgment Entries of prior convictions of Domestic Violence must comply with Criminal Rule 32(C) (11 1 12)

If you have previously pled guilty to or were convicted of domestic violence, you face an increased level of the offense the second time around. If you committed two or more prior DV offenses, then the level of the offense is increased again. R.C. 2919.25. Today the Ohio Supreme Court recognized that there are a number of ways the State may prove a prior conviction of DV. The defendant may admit to the prior offense or stipulate to it, for example. But the Ohio Supreme Court held that if the prosecution decides to use judgment entries from the prior offenses to prove the prior convictions, those judgment entries must comply with Ohio Criminal Rule 32(C) (Rule 32(C) states that "A judgment of conviction shall set forth the plea, the verdict, or findings, upon which each conviction is based, and the sentence. Multiple judgments of conviction may be addressed in one judgment entry. If the defendant is found not guilty or for any other reason is entitled to be discharged, the court shall render judgment accordingly. The judge shall sign the judgment and the clerk shall enter it on the journal. A judgment is effective only when entered on the journal by the clerk." State v. Gwen, 2012-Ohio-5046.

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.


You have no standing to object to the State’s use of your lawfully obtained DNA profile to solve other crimes (11 1 12)

Dajuan Emerson was accused of rape in 2005, and the State lawfully obtained a DNA sample from him. The State made a "DNA profile" from the sample and put it into the Combined DNA Index System (or CODIS). Emerson was acquitted of the rape, but Emerson never tried to have his DNA profile expunged. Later Emerson’s DNA profile was used to tie him to a 2007 homicide. He was convicted of the homicide after his motion to suppress the DNA evidence was overruled. The OSC decided Emerson had no reasonable expectation of privacy in the DNA profile kept and used by the State. The OSC said it was akin to the retention and use of a fingerprint database. State v. Emerson, Slip Opinion No. 2012-Ohio-5047.

Contact me if you need a Dayton 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.



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