The 11th released 5 new criminal opinions this week. One win for the defense.
State v. Zimmerman, 2013-G-3146
Zimmerman pled to a felony OVI and a misdemeanor Driving in Violation of a License Restriction. He was sentenced the same day to 3 years in prison plus another 120 days of mandatory time on the OVI and 6 months concurrent on the misdemeanor. He filed a motion to withdraw his plea, arguing that the court didn’t have jurisdiction to impose the misdemeanor sentence. That’s wrong, and the court denies the motion. He appeals because the court didn’t give him a hearing on the motion. For a post-sentence motion to withdraw a plea, the court doesn’t have to. It also didn’t help that he waited 16 months to file the motion to withdraw his plea. Grendell, Rice, Wright.
State v. Johnson, 2014-G-3179
Johnson appeals pro se from the trial court’s denial of a motion to suppress evidence in her theft case. The case isn’t actually over yet, so there’s no final appealable order. Appeal dismissed. Grendell, Rice, Wright.
State v. Galloway, 2013-L-60
The ugly side of panty raids. Galloway appeals his burglary conviction on manifest weight and sufficiency grounds, arguing mistake of fact, specifically that he thought he had permission to go into the house. Even though he used to sleep in the house when his cousin rented there, he hadn’t actually spoken to her in 8 months. The court thinks that he should have made some effort to actually confirm that his cousin still lived there after that amount of time. The opinion also notes that he didn’t have his cousin testify that she ever actually did give him permission. Taking the lacy lingerie and claiming he thought it was something he dropped didn’t help his credibility any. He gets 3 years, consecutive to a two-year sentence in a different case for a couple other break-ins. Grendell, Cannon, Wright.
State v. Flaningan, 2013-P-33, 34
A fight near Kent State leads to conviction for assault and resisting arrest after a bench trial. Flaningan’s attorney waived the jury, Flaningan did not. He didn’t sign the jury waiver and the court didn’t address him about the waiver in open court or have him acknowledge the waiver. That makes the waiver not knowing, voluntary or intelligent, and Flaningan will get a new trial. Grendell, Rice, Wright.
State v. Hoegler, 2013-P-75
Hoegler’s car goes left of center a couple times while a cop is following him. The resulting traffic stop leads to an OVI. Hoegler appeals the denial of his motion to suppress the stop because the dashcam doesn’t show the car go left of center. But it also doesn’t show the car not going left of center. That makes it all about the officer’s testimony, and if the trial court finds a witness credible the appellate court will almost always go with that. Hoegler also argues that the court should have put its findings on the record. But court said it believed the cop’s testimony, and that’s enough. O’Toole, Grendell, Rice.
That’s all for the criminal cases this week. There were also four civil opinions and a domestic case involving spousal support.
Ohio’s 11th District Court of Appeals covers Northeast Ohio, including Lake County, Geauga County, Ashtabula County, Trumbull County and Portage County.