11th District Criminal Appeals Update In Willoughby, OH 44094

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donkey carrying supplies in front of a white backgroundI’ve got a few weeks to catch up on, and there are an assload of opinions.  I put that in italics because that makes it an erudite Latin term.

State v. Johns, 2015-Ohio-2455, Trumbull County
Johns was charged with two Aggravated Robberies, two Kidnappings and Rape, along with a Weapons Under Disability charge for a prior felony.  He beat the robberies and one kidnapping at trial, but the other three counts stuck.  He argues manifest weight and sufficiency, but a rape kit, DNA and the testimony of the two victims were plenty.  He keeps his 28 year sentence and Tier III sex offender registration.  O’Toole, Cannon, Wright.

State v. Noling, 2015-Ohio-2454, Portage County
Noling, on Death Row, filed an application for DNA testing.  The trial court denied it.  He appeals that denial, but he’s got the wrong place – you’ve got to appeal that right to the Ohio Supreme Court.  Which, in fact, he’s also done.  Appeal dismissed.  Rice, Grendell, O’Toole.

State v. Schmidt, 2015-Ohio-2450, Portage County
Schmidt pled guilty to robbing a bank and got seven years and a $200.00 fine to be paid within ten years.  Four years later he wants to withdraw his plea, and his main argument is that the court improperly considered facts not in evidence – for example, stating that he “scared the life out of the tellers” and that he took advantage of his family.  The court decides that those things aren’t findings, merely the judge’s expressions of disappointment in Schmidt.  O’Toole, Cannon, Grendell.

State v. Bolden, 2015-Ohio-2613, Lake County
Bolden seeks a writ of habeas corpus for immediate release from prison.  Habeas petitions are very technical things, and he doesn’t attach all the right documents.  Also, he named the Lake County Sheriff in the petition, but he’s in prison in a different county.  His petition is dismissed.  Per curiam.

State v. Snowden, 2015-Ohio-2611, Trumbull County
Snowden caught two years in prison for a felony OVI – one year for the OVI, one year for a “repeat OVI offender” specification.  His primary argument is that the sentence is unconstitutional.  The prosecutor can effectively double his sentence just by choosing to add a specification to his charge, with no need for any additional proof.  Districts are split on the issue, with the 8th deciding that “if two statutes ‘prohibit identical activity, require identical proof, and yet impose different penalties, then sentencing a person under the statute with the higher penalty violates the Equal Protection Clause.’”State v. Klembus, 8th Dist. Cuyahoga No. 100068, 2014-Ohio-3227.  This court adopts the 12th District’s view that this was only a single OVI charge, not two separate charges like in Klembus, and the General Assembly intended to allow cumulative punishments.  I didn’t think the legislature could overwrite equal protection, but I don’t wear the robes.  Cannon, Grendell.  O’Toole dissents.

State v. LaChance, 2015-Ohio-2609, Portage County
LaChance pled guilty to his eleventh OVI (with a repeat offender specification) and got a Breaking and Entering dismissed.  The court gave him six years (three on the OVI, three on the specification), and ordered him to pay about $15,000 in restitution for the Breaking and Entering.  The Court holds that he can’t be ordered to pay restitution on a charge that was dismissed – and further, even though he didn’t object at sentencing, it was plain error.  A win for Stow attorney Chris Wells.  Rice, Wright, O’Toole.

State v. Jackson, 2015-Ohio-2608, Lake County
Jackson sold heroin to a confidential informant at a bus terminal in Willowick. The cops tried to nab him and he led them on a high-speed chase, eventually hitting another car and causing the other driver serious injuries.  The court gave him five years.  He appeals the length of his sentence.  Nothing much to see here. Wright, Rice, O’Toole.

State v. Rose, 2015-Ohio-2607, Lake County
A win for Lake County Public Defender Vanessa Clapp. Rose piled a shopping cart full of merchandise and bolted out of a store. He fought with the security guard who tried to stop him, and told his buddy to run the guard over with his minivan. A jury found him guilty of three counts of Receiving Stolen Property and one count of Robbery. One of those counts was for a stolen license plate, for which the detective offered hearsay testimony and trial counsel didn’t object. The Court finds the failure to object to be ineffective assistance of counsel, as it is both hearsay and the only evidence of that charge. That count gets overturned. Cannon, Rice. Grendell dissents.

In re: Application of Wells, 2015-Ohio-2606, Lake County
Only sort of criminal, but it’s one of mine.  Wells has old convictions for Drug Abuse and Possession of Criminal Tools in separate cases. Both are felonies, so neither is eligible for expungement. The Drug Abuse – generally considered to be more serious – creates a disability barring him from owning a firearm. The Criminal Tools charge, being less serious, does not.  Wells applied for relief from that disability, which was granted.  He is now able to own a firearm. He then applied for a concealed carry permit. Typically, a felony conviction will bar one from getting a permit. But, if a court has granted relief from disability, then that will allow a person to get a permit.  The Drug Abuse, therefore, doesn’t prevent Wells from his CCW. The Criminal Tools conviction never created a disability – it alone never prevented him from getting a firearm. Therefore, there was no disability to be relieved.  Therefore, it still prevents him from getting his CCW. This leaves him in the absurd situation where he would be allowed to get his permit with the more serious conviction, but not allowed to get his permit with the less serious conviction.  The essence of my argument was, “that’s dumb.” The essence of the opinion is, “well, that’s how the law is written.” Rice, Wright. O’Toole dissents.

State v. Imondi, 2015-Ohio-2605, Lake County
It’s a good week for the Lake County Public Defender – Vanessa Clapp gets another win, and it’s a good one.  Herbert called a family meeting with his wife and son.  Words were spoken.  F-bombs were dropped.  Struggles ensued.  Two different versions of events were offered at trial.  Herbert argues that the judge should have instructed the jury on self-defense.  The State argues that he has to admit doing the act to claim self-defense.  The Court holds that the defendant is allowed to present alternative defenses – i.e., “I didn’t do it, but if I did, it was self-defense.”  That’s a big deal in some cases.  The Court also holds that it was error for the trial court to instruct the jury that Herbert’s flight from the scene was indicative of guilt.  Herbert “fled” to the police station, which the Court notes “is simply not the destination of one with a guilty conscience.”  Wright, Rice, O’Toole.

State v. Sergent, 2015-Ohio-2603, Lake County
Sergent pled guilty to three counts of Rape of his minor daughter. He and the State agreed to recommend three consecutive eight-year prison terms, for a total of 24 years. Five months later, he asked to file a delayed appeal.  The State opposed it, but the Court allowed it. His appellate counsel filed an Anders brief, claiming the appeal was wholly frivolous.  The Court reviewed the record, found that there might be an issue, and appointed new appellate counsel.  The Court finds that even with an agreed sentence, the trial court has to make all the right findings before imposing consecutive sentences. The trial court didn’t, so the case gets sent back.  The win goes to Westlake attorney Michael Maloney. The Court also noted a conflict on the issue, and sua sponte certified the conflict to the Ohio Supreme Court.  Rice, Cannon, Wright.

State v. Hancovsky, 2015-Ohio-2602, Lake County
A hat trick for Vanessa Clapp!  It was closing time after Ladies Night at the Willoughby Brewing Company, so the cops were on high alert.  Hancovsky was opening all four doors of his car and blasting the stereo.  Cop said to turn it down, Hancovsky didn’t.  The cop said Hancovsky was unsteady, slurring, and had bloodshot glassy eyes.  In other words, he cut-and-pasted the same stock line every cop puts into every DUI police report ever.  When questioned, Hancovsky said he had a CCW and a gun in his center console.  He gets charged with Improperly Handling Firearms in a Motor Vehicle.  Hancovsky called two witnesses at trial, both of whom testified that, although he was giving the officer a hard time, he was not intoxicated.  Not only does the Court throw out the search of the car, but it actually overturns on both manifest weight and sufficiency – a very rare win!  O’Toole.  Grendell concurs with concurring opinion.  Cannon concurs in part and dissents in part with opinion.

State v. Wright, 2015-Ohio-2601, Lake County
State v. Wright, 2015-Ohio-2600, Lake County
Wright got seven years for his sixth OVI in twenty years.  He raises the same issue as Snowden, above.  Same result.  He also tries to get the court to disregard one of the prior convictions, claiming he didn’t have an attorney.  The Court finds that he probably did.  Cannon, Wright, O’Toole.

State v. Spragling, 2015-Ohio-2598, Ashtabula County
Spragling got his community control revoked for failing to participate in the Jail Treatment Program.  He argues he shouldn’t have to.  He’s sort of right – now he doesn’t have to, he gets prison instead.  Wright, Rice, O’Toole.

State v. Curry, 2015-Ohio-2597, Ashtabula County
Curry, pro se, wants to withdraw his 2008 guilty plea to OVI. Pro se or not, it’s not going anywhere.  Rice, Cannon, O’Toole.

State v. Rose, 2015-Ohio-2907, Lake County
Rose got eleven years for Aggravated Robbery plus three more for being a Repeat Violent Offender. He appeals the extra three years pro se.  Also not going anywhere. O’Toole, Grendell, Wright.

State v. Jones, 2015-Ohio-2906, Lake County
It must have been pro se week in Lake County. Jones goes it alone to get his court costs waived. Denied.  Cannon, Wright, O’Toole.

State v. Courie, 2015-Ohio-2894, Ashtabula County
You don’t see too many of these.  Courie appeals his conviction for Unlawful Sexual Contact with a Minor. (Ok, that part we see a lot of.)  One of the jurors was a retired Ohio State Highway Patrol officer, has extensive ties to police agencies, his wife is a probation officer, and, most importantly, is good friends with the lead detective on the case. The court should have allowed defense counsel to dismiss him for cause. This is a good one to keep in mind when half your jury pool is cops, wives of cops, family of cops, employees of cops, and/or BFFs of cops. In other words: most of my trials. The win goes to Jefferson attorney Michelle French. O’Toole. Grendell concurs in judgement only. Rice dissents.