11th District Criminal Appeals Update

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It seems to be OVI week in the 11th district criminal appeals update, and one of them is a win.  The rest are all pro sepetitions for writs, and spoiler alert: they don’t win.

State v. Kneier, 2015-Ohio-3419, Portage County11th district criminal appeals update
A cop pulled Kneier over for driving “on top of” the fog line a few times, and ended up charging him with an OVI.  Kneier wins his motion to suppress the stop and anything after because just touching or even driving on the white line is not enough to allow a cop to pull you over – you must be over the white line.  As in tennis, the line is in.  Beyond that, even if you do cross the line you’re still ok if you’ve “ascertained that such movement can be made with safety.”  The State appeals the suppression and the Court upholds it.  Pepper Pike attorneys William Carlin and Mark Biggerman preserve the victory.  Rice, Wright, O’Toole.

State ex rel Elder v. Honorable Richard L. Collins, Jr., 2015-Ohio-3418, Lake County
Elder applies pro se for a Writ of Prohibition, asking the Court to vacate his conviction for Failure to Comply with Order or Signal of Police Officer. He argues that the trial court had no jurisdiction to impose sentence because there was no probable cause to charge him and because the court didn’t give him credit for speedy trial time.  These are issues that could have been – and should have been – raised on appeal, so a Writ is not the proper avenue. Per Curiam.

Turner v. Judge Eugene A. Lucci, 2015-Ohio-3417, Lake County
Turner v. Charles Coulson, Prosecutor, 2015-Ohio-3416, Lake County
Turner v. Charles Coulson, Prosector, 2015-Ohio-3415, Lake County
Turner v. Maureen Kelly, Clerk of Courts, 2015-Ohio-3414, Lake County
Turner files a bunch of petitions pro se for Writs of Mandamus and Habeas Corpus based on various issues.  Writs need to be filed in the name of the State, not the individual – this is why all the cases involving writs start with “State ex rel…”. He didn’t write “State ex rel” in the captions, he didn’t include his address, and he didn’t include all the other required paperwork.  His petitions are all dismissed, but the Court reviews his arguments anyways and finds that one is moot and the others should be handled by appeals.  Writs are for when there is no other remedy.  Per Curiam.

State v. Brocker, 2015-Ohio-3412, Portage County
While Brocker was sitting in the front seat of a police cruiser getting a speeding ticket, the cop asked if he’d had anything to drink.  He argues that he wasn’t read his Miranda warnings, so his subsequent admission should have been suppressed.  The Court affirms because he was sitting in the front seat and not handcuffed, therefore he had not been “taken into custody or otherwise deprived of his freedom of action in any significant way.”  Case law is pretty overwhelming on this point, but the state of the law still bugs me.  Next time you get pulled over and placed in the front seat of a cop car, go ahead and try to get out and leave.  After you pull the taser darts out of your ass, come back and tell me whether you were really “free to leave” and not “in custody.”  Wright, Rice.  O’Toole dissents, noting that the trial court didn’t make findings of fact, so there are issues of credibility that need to be determined.

State v. Tackett, 2015-Ohio-3411, Ashtabula County
Tackett previously appealed his felony OVI sentence and lost.  He asked the Ohio Supreme Court to take it, but they declined.  He now appeals his sentence again.  He filed his appeal pro se, then had an attorney appointed.  The attorney didn’t find any issues, so she filed an Anders brief and asked to withdraw.  Tackett then filed a pro se brief, arguing that his sentence was still wrong and that the trial court should have granted his motion for judicial release.  You can’t re-appeal an issue you already lost on, and you can’t appeal the denial of judicial release, so he stays put.  Wright.

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