Friday, March 29, 2013

Sometimes all we win is a dissenting vote (3 29 2013)

As a Dayton Criminal Defense Lawyer who handles criminal trials and appeals, I know too well that all we win on appeal sometimes is a dissenting vote. But one dissenting vote will not win your appeal.

Judge Carr of the Ninth District Court of Appeals for Summit County reminded her colleagues that "we are bound to defend the liberties of even the most despised members of society, for it is in their cases that our freedoms are most at risk." She warned against the temptation in criminal cases "to let the end justify the means." And she told her colleagues on the court that they must try to resist that temptation because it is their duty to "guard zealously the constitutional rights of individuals against overzealous police practices."

At issue in the case was whether an affidavit used to obtain a search warrant lacked sufficient indicia of probable cause. The police were investigating acts of criminal mischief. Since an officer surmised that the defendant had gone "online" to obtain the address of one victim of an act of criminal mischief, the police could get a search warrant to search all devices in the defendant’s home that was capable of accessing the internet.

Judge Carr, in her dissenting opinion, argued that such a violation of the privacy rights of the defendant and his family was not warranted to obtain "mere evidence" of an act of criminal mischief when the value of the piece of evidence was minimal. State v. Castagnola, 2013-Ohio-1215.

Contact me today if you need a Dayton Criminal Defense Lawyer for your trial, appeal or other post-conviction matter by going to my Web site www.robertalanbrenner.com and filling in the "contact me" form.



Friday, March 1, 2013

Defendants have the right of allocution at sentencing (3 1 2013)

Pursuant to Ohio Criminal Rule 32(A)(1), a trial judge must give a defendant the right to speak before being sentenced. This Rule applies to both felony and misdemeanor cases. A Dayton Municipal Court Judge failed to address the defendant before imposing sentence on her and so the matter had to be remanded for a new sentencing hearing. State v. Harris, 2013-Ohio-716.

Contact me today if you need a Dayton Defense Lawyer for your trial, appeal or other post-conviction matter by going to my Web site www.robertalanbrenner.com and filling in the "contact me" form.



Don’t sleep on the chance to object to a sleeping juror remaining on the panel (3 1 2013)

A Dayton Defense Lawyer noticed that a juror was sleeping in the courtroom of Judge Christopher D. Roberts in the Dayton Municipal Court. The Dayton Criminal Defense Attorney brought it to the judge’s attention and he was backed up in his claim by the Bailiff and Court Reporter. Apparently the juror was sleeping for most of the afternoon session. The Dayton Defense Lawyer did not request to have the juror removed at that time, and the judge let the juror stay on the case. The Dayton Defense Lawyer then moved to have the juror removed just before final instructions were given to the jury (the prosecutor and trial judge do not agree this happened). The judge overruled the request and let the juror stay on the panel. On appeal, the defendant argued that the judge erred in letting the juror who missed part of the trial to stay on the jury. The Court of Appeals disagreed. The Appeals Court ruled that if the defendant wanted the juror off the jury, a motion had to be made at the time the issue came up. The trial judge has broad discretion in handling a sleeping juror and that discretion was not abused here. State v. Harris, 2013-Ohio-716.

Contact me today if you need a Dayton Criminal Defense Lawyer for your trial, appeal or other post-conviction matter by going to my Web site www.robertalanbrenner.com and filling in the "contact me" form.



A defendant must be present for sentencing (3 1 2013)

Ohio Criminal Rule 43(A) states that a defendant must be present for every stage of his criminal proceeding and trial. This includes the sentencing hearing. Therefore, it is error for the Sentencing Entry to include a sentence (or component of a sentence) that is different than what was imposed at the sentencing hearing. That is what happened in the recent case of State v. Williams, 2013-Ohio-726, and the case was remanded to the trial court for re-sentencing.

Contact me today if you need a Dayton Criminal Defense Lawyer for your trial, appeal or other post-conviction matter by going to my Web site www.robertalanbrenner.com and filling in the "contact me" form.



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