11th District Criminal Case Update

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Wow, 36 opinions released this week. Talk about triggering my procrastination reflex.  After a few days of putting it off, here are the criminal case decisions from that pile:

State v. Noling, 2011-P-18
Noling was tried and sentenced to death for a double homicide in the mid-1990s.  We’ll skip over a whole lot of appeals, and I’ll let you turn to Google for plenty of media coverage over the years about his possible innocence and allegations of perjury and coerced confessions.  Here he’s asking for a new trial based on a couple previously undisclosed witness statements and a cigarette butt from the scene that might point to a different culprit.  The question here is whether he was “unavoidably prevented” from discovering that evidence before now.  The trial court said he could have found it earlier.  The appellate court wasn’t so sure and sends it back so the court can hear from more of the players involved.  Rice, O’Toole.  Grendell dissents.

State v. Gibbs, 2012-G-3123
In 2005, Gibbs pled to 6 counts of Gross Sexual Imposition for offenses that occurred in the late 80s and got 12-30 years in prison.  In 2012 he filed a motion to withdraw his guilty plea, which the trial court denied.  On appeal, his appointed attorney filed an Anders brief – which basically means his attorney told the appellate court he didn’t really have any good arguments.  The appellate court reviews the case themselves and, not surprisingly, agrees with the attorney.  Rice, Cannon.  O’Toole dissents, opining that there was an arguable issue and the appeal was not frivolous.

State v. Little, 2012-L-093
Little pled to 2 counts of Robbery after chasing a couple of people around downtown Willoughby with a knife.  He scored one wallet and 12 years in prison.  The court didn’t make the necessary findings for consecutive sentences. so it reconvened the parties two days later to cover that base.  Little argues that the record doesn’t show that he was present for that second day.  But it does, or at least there isn’t any evidence that he wasn’t there, so his sentence is upheld.  Rice, Grendell.  Wright concurs.

State v. Champlin, 2013-A-0021
Champlin thinks the victim raped his sister and gets in a fight.  At some point, the victim’s head hits the concrete.  After going to bed that night, he never regained consciousness and died a week later.  A jury finds Champlin guilty of murder and he gets 15 to life.  He argues that the indictment lists the date of the Murder as the date of the altercation, rather than the date the victim died.  The Court says the date of the altercation is the date he caused the death.  And even if it wasn’t, the date is close enough.  Champlin also says that the victim’s refusal to get medical attention was an independent, intervening cause of his death, but that argument doesn’t go anywhere.  Cannon, Wright, O’Toole.

State v. Grega, 2013-A-0043
Grega got 3 years for Robbery and appealed.  While the appeal was pending he filed a bunch of pro se motions for various forms of relief.  The trial court denied them, saying it lacked jurisdiction while the appeal was pending.  The State concedes that this was wrong and the Court sends the motions back to the trial court.  Rice, Grendell, Wright.

Lacy v. Brigham Sloan, Warden, 2013-A-0064
Lacy filed a habeas corpus petition pro se, but got a lot of the procedural requirements wrong.  The court dismisses it.  Rice, Grendell.  O’Toole dissents because pro se petitioners should get a little leniency, and the better course is to let him fix the errors.

State v. Suarez, 2013-G-3167
A juror might have been sleeping, but Suarez’s lawyer didn’t push the issue and there’s no proof that Suarez was prejudiced.  Grendell, Cannon, Wright.

State v. Birdsong, 2013-L-003
Birdsong got eight and a half years for Engaging in a Pattern of Corrupt Activity (Ohio’s version of the federal Racketeer Influenced and Corrupt Organizations Acto) and a number of other counts, all based on a bunch of check frauds.  He argued that the state didn’t prove this was an “enterprise” under RICO.  The Court doesn’t agree with his weight and sufficiency arguments, and RICO charges don’t merge with the underlying offenses for sentencing.  Rice, Cannon, Grendell.

State v. Weimer/Baker, 2013-L-022
Weimer’s attorney (Baker) does an immense amount of work on his client’s murder case.  The trial court chops his bill nearly in half, despite the fact that Baker pointed out that he didn’t even bill all his expenses, did not ask the court for funds for any experts, did all the case investigation himself, has a history of fair, accurate and un-inflated bills, and generally worked his ass off on the case.  The county caps attorney fees on Aggravated Murder at $6,000.  The trial court gave him a little more than that, so the Court holds that the trial court didn’t abuse its discretion by paying him right around what he could have made in high school mowing lawns for his neighbors.  Interestingly, the Court notes that “Baker has not challenged the propriety of the adopted fee schedule. He has simply asserted that the trial court abused its discretion.”  Is this a hint that there’s room to challenge the decades-old fee schedules themselves?  One can hope.  Cannon, Grendell.  O’Toole dissents because there is no way to determine what discretion the trial court used when it cut his fees without giving a reason or hearing.

State v. Burrell, 2013-L-024
Burrell didn’t get along with his attorney and asked for a new one on the day of trial.  Defendants are entitled to a free lawyer, not the free lawyer of their choice, and Burrell’s was not ineffective.  Grendell, Rice, Wright.

State v. Meyers, 2013-L-042/043
A concealed carry permit doesn’t let you have a gun in your car with you while you’re drunk.  He’s convicted for Improperly Handling Firearms in a Motor Vehicle and Using Weapons While Intoxicated.  He gets a new trial because the judge instructed the jury on an older version of the statute.  Cannon, Rice, Wright.

State v. Burnett, 2013-L-053
Another Anders brief.  Burnett pled guilty, so there’s not much to appeal as far as the conviction goes.  Grendell, Rice.  O’Toole dissents because he could still appeal the sentence.

State v. O’Neil, 2013-L-068
O’Neil appeals to his 36-month prison sentence after pleading guilty to Attempted Felonious Assault.  The only arguments are that the court abused its discretion and didn’t consider all the sentencing factors in the right way.  Usually this argument amounts to: the defendant said he’s sorry but the court didn’t believe him enough.  These are even tougher to win than manifest weight and sufficiency arguments, and O’Neil is no exception.  Rice, Grendell, Wright.

State v. Arkenburg, 2013-L-087
Another sentencing appeal.  Arkenburg got the maximum of 8 years for Burglary.  Pretend I cut-and-pasted what I just typed for O’Neil.  O’Toole, Grendell, Rice.

State v. Pifer, 2013-P-032
Pifer was convicted on two counts of Felonious Assault.  He claims his attorney should have tried to assert self defense.  The burden of proving self defense is on the defendant, and there wasn’t much proof of it here, so his attorney was not ineffective for choosing a better strategy.  Cannon, Rice, Wright.

State v. Vanderpool, 2013-P-040
Vanderpool was convicted of Domestic Violence and raises a manifest weight argument on appeal.  Once again, refer back to O’Neil.  Rice, Grendell, Wright.

State v. Stephenson, 2013-P-044
Kidnapping with a firearm specification.  Another manifest weight argument, another conviction affirmed.  Wright, Cannon, O’Toole.

State v. Schrock, 2013-P-064
Schrock pled no contest to an OVI after being forbidden from challenging the reliability of the ever unpopular Intoxilyzer 8000.  He made it clear he only pled no contest because he intended to join in with a group of other cases attempting to bring this issue in front of the Ohio Supreme Court.  Unbeknownst to him, the Ohio Supreme Court had decided not to hear those cases – in one case five days prior, and in two others on the same day as his no-contest plea.  Therefore his plea on that basis could not have been “knowing, intelligent and voluntary.”  O’Toole, Rice, Wright.

State v. Whitacre, 2013-T-045
Unlawful Sexual Conduct with a Minor.  Appeal on manifest weight.  You know the drill.  Cannon, Wright, O’Toole.

State v. Weaver, 2013-T-066
Weaver was designated a Repeat Violent Offender and given an additional 3 mandatory years on top of the other 9 years for Robbery.  He alleges that the RVO statute is unconstitutionally void for vagueness.  The Court says it’s not because a person of common intelligence can decipher R.C. 2929.14(B).  It’s probably a really interesting legal discussion, but at this point, I just want to get up out of my office chair.  Cannon, Grendell, Wright.