Recent Blog Posts

Criminal Sex Offenses: Importuning, Fifth Degree Felony

ZachMayo — Wed, 02 May 2012 19:23:00 GMT

Question:

My son is 21 years old and unfortunately got involved with a friend texting an underage girl. His friend asked this girl if she had a friend for my son..not sure how much sexual communication took place but I am aware the communication did occur. Then they met in person and discovered they were undercover police. He is now charged with importuning. He has 2 DUI convictions and marijuana possession. What is he looking at if convicted? Just as a side note, his father and I do NOT support this behavior.

Answer:

Under the Adam Walsh Act, which became Ohio law in 2008, importuning is a first tier sex offense under O.R.C. § 2950.01(E)(1)(a). You may refer to O.R.C. section 2950 in general for questions about Ohio's sex offender statutes. This means that if convicted as charged, he would be subject to annual registration for 15 years and cannot live within 1,000 feet of several statutorily defined areas (such as schools). However, there are no community notification cards sent for this tier.

In addition to tier 1 sex offender status, a fifth degree felony subjects him to the potential of up to 1 year in prison and up to a $2,500 fine. He is also likely to be placed on probation, which can be from 2-5 years. While it is unlikely he will receive the maximum penalties, it is possible. His prior offenses will likely be a factor in any offer and/or recommendation the prosecutor makes in this case.

I highly suggest consulting with a criminal defense attorney. As I indicated, long after any incarceration or probation is done, he can be subjected to registering annually as a sex offender for 15 years.

Judicial release with a 4 year sentence for Felonious Assault in Ohio?

Zach Mayo — Mon, 05 Mar 2012 22:37:00 GMT

Question:

Should we file for judicial release again or wait? He was convicted of felonious assault and sentenced to 4 years. He has served 2 years and 2 months. Filed for Judicial Release twice but denied without hearing.

He was a first time offender. There was a fight between he and his sister's boyfriend. There have been no issues during time served. Previously he was a model citizen. He worked, owned his own home, and was the caregiver for mother. He was also a role model & backbone for the family. Lawyers have been hired twice to file judicial release. They all say it is promising yet keep being denied from the judge. His mother is getting close to age 90 and the family is trying hard to keep everything going for him. Should we file for judicial again.. spending more money just to be denied again or is there even the most slight chance if judicial filed again may get him out..or just wait out the 4 yr term.

Answer:

It's important to remember that judicial release is always discretionary for a judge. Having said that, with the limited facts at hand it does appear that he is a good candidate for judicial release. That's why the attorneys are saying it's "promising." It can take a few attempts to get judicial release so don't get discouraged.

As you may know, an inmate with a sentence less than 5 years may file for judicial release after 6 months of incarceration. The sentence was 4 years but the judge could have sentenced up to 8 years for felonious assault. Keeping this in mind, the judge likely gave a 4 year sentence so that judicial release could happen at some point.

At our office, we usually advise people not to file for judicial release more than twice a year or within 6 months of a denial. You don't state how long it has been since the last filing/denial, but there is still plenty of time to try with nearly 2 years pending on his sentence.

While I understand the legal costs can be daunting, hiring a firm with experience in writing and arguing motions for judicial release usually gives the best chance of winning. Another option would be to apply for a public defender. An affidavit of indigency should be available at the correctional facility and he may complete that form to begin the process of getting a public defender.

If you decide to retain more counsel or he applies for a public defender, make sure the next request includes family letters indicating that he is a caregiver for a sick parent, letters from a future employer, and an address of a positive environment that he will live at upon release. Make sure he is doing everything he can to become a better person in prison; go to AA meetings, anger management classes, etc. Show the judge that he should be out because he's a better, rehabilitated person now and under no circumstances that he's just "tired of being locked up" or that "his family misses him."

Can two counts of felonious assault be dropped on an involuntary manslaughter sentence?

Zach Mayo — Tue, 21 Feb 2012 19:31:00 GMT

Question: I have a friend that is incarcerated in an Ohio Prison. He was convicted of Inv. Mansl. and 2 counts of fel. assult. sentenced to 20 years. He has served 7 of that so far. He didn't have a trial, waived his rights, plead no contest and took a plea aggrement. At the time he was covering for his then girlfriend that was pregnant at the time with his child. We since have found out that she aborted the child right after he was sentenced. He says that he is pretty sure he knows who commited this crime. There also has been some inconsistancies with the case and some things were never brought to the judges attention. How can I go about helping his either 1, get his sentenced reduced or 2, get some sort of release or new trial?

Answer: You will need to retain a good criminal defense lawyer in your area. You should look for one who does a lot of post-conviction work. I would look to the Ohio Association of Criminal Defense Lawyers at www.OACDL.com.

Second, to get a new trial there will need to be "newly discovered evidence." This window will not open if he himself decides to change his story and he knew this info since the beginning. What he will likely need is a witness to recant their testimony or a new witness to come forward with new evidence.

That said, there is still another option. In a few years he will be eligible for judicial release. Those sentenced to more than 10 years are eligible after serving 10 years. If he has a good record from prison he at the very least has a chance to be granted judicial release. Keep in mind that there are a number of factors a judge considers and the prosecutor may still object to release. Again, this will require an experienced defense attorney from the area.

What can I expect at a first appearance for misdemeanor theft?

Zach Mayo — Mon, 20 Feb 2012 22:45:00 GMT

Question: I was caught stealing $70 worth of stuff at Walmart. The cops came I got arrested I am 16 , they gave me a court date what will happen at court they told me that it was misdemeanor theft.

Answer: Your first court date will be an arraignment. If you retain an experienced criminal defense attorney that practices regularly in your area, he or she may be able to file initial paperwork that will waive your appearance and enter a not guilty plea on your behalf. However, juvenile court procedure does vary between jurisdictions. If you cannot afford to or do not have time to retain counsel before arraignment, you will have to appear on your own to enter your not guilty plea. At that time, you can also request a public defender should you choose to go that route. You will then need to fill out an affidavit stating your income.

Also, Walmart may send you what is called a "civil demand letter." If they do this, the letter will most likely be from a lawyer or law office stating that you need to pay several hundred dollars or you will be sued. These letters can be misleading and confusing. It is important that you talk to an attorney before paying any money.

If you are looking to retain a good criminal defense lawyer I suggest a member of the Ohio Association of Criminal Defense Layers at www.OACDL.com.

Big Brother is Stealing Your Computer

Brian G. Jones, Esq. — Sun, 29 Jan 2012 21:00:00 GMT

In a post-9/11 world, the immortal words of Benjamin Franklin become ever more salient: "They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety." The people of this fine nation have forgotten the place from whence we came. Private corporations inbed programs deep within our devices to track each keystroke we enter. Now, the Federal Government wants to force SOPA and PIPA down our throats. Fortunately, the populous rose up and demanded those measures be put aside. Unfortunately, Supreme Court rulings gutting the Fourth Amendment continue unabated. Boarder searches are some of the most egregous examples of over reaching, constituional violations I have ever heard of.

It goes a little like this: Bob is a traveler. It doesn't matter where he is going, except that it must be out of the United States--even between the US and Canada. It doesn't matter his purpose of travel. It doesn't matter that Bob was born in the United States and by all accounts is an upstanding, flag-waiving, awesome American with no criminal history and no connections to illegal activities of any kind. Bob passes through security at the airport and the Traffic Safety Adminstration seizes his computer, his tablet and his smart phone. The devices are searched immediately and, if nothing incriminating is found immediately, the devices are seized to be returned at the convenience of the United States government.

The Ninth Circuit Court of Appeals has ruled the way Bob has been treated is permissible under the United States Constitution. Even typing those words gives me chills. Law enforcement has gone entirely over the edge. America has crucified the idea of freedom in the name of the false diety of safety. Multi-billionares have come riding to the aid of law enforcement with an array of devices that are not only unnecessary to preserve national security, but come at a cost to the overall health of the nation by their exorbitant price tags.

Criminal defense lawyers across the nation are battling the illegal searches of their clients. The conservative courts continue to expand the exceptions to the Fourth Amendment's warrant requirement. If you're faced with a situation where your personal property has been illegally seized, you should call the Delaware Ohio Criminal Defense Attorneys at The Law Office of Brian Jones. As warriors for the people, we will pursue every legal avenue available to uphold the United States and Ohio Constitutions against the illegal actions of police and prosecutors.

If you must travel outside the United States and you must have data with you, our criminal defense attorneys suggest the following measures to ensure the security of your data from illegal search and disclosure of your company secrets to rival corporations and the breach of confidential information about your clients.

Take a dummy computer: if your company is financially capable of doing so, purchase a computer strictly for international travel. The computer should have no modifications from the factory settings and contain no data not provided by the factory. When law enforcement sees there is absolutely nothing of value on your device, they will be less likely to seize it. Even if they do, at least the government isn't accessing your company's private information.
Upload data to secure servers: the internet is available in most places around the world. Once you reach your final destination with your dummy computer, you can access the information using a program such as GoToMyPC or other Virtual Private Network (VPN). All of the information remains on your secure computer or server that remains in the United States protected, for now, by the Fourth Amendment.
If you are unable to purchase a computer for international travel, you can still use the VPN method to keep your data secure from illegal searches and seizure. Load the data necessary for your trip onto the VPN or email the data to yourself if the volume is appropriate for that method. Cloud based storage systems, like DropBox.com also provide a method of data trasportation and allow avoidance of these guys at the border crossing.

If you would like additional information or advice on how to maintain your information securely internationally, call The Law Office of Brian Jones for a consultation.

Prosecutorial Misconduct

Brian G. Jones, Esq. — Sun, 22 Jan 2012 16:45:00 GMT

Prosecutorial misconduct is a catch-all phrase courts and lawyers use to describe a variety of ways prosecutors cheat to obtain the convictions they desire. With pressure on front line prosecutors from their supervisors and pressure on elected prosecutors from political parties and corrupt political action committees like Mothers Against Drunk Driving, convictions have become more important to most prosecutors than justice. Even in the ultra-conservative state of Texas, journalists are speaking out against the gross abuses of power by prosecutors.

Prosecutors use a variety of tricks to obtain convictions of innocent people. Discovery violations are the most frequent. Some prosecutors make plea offers contingent on waiving the right to receive and review discovery. Many offices will disclose only some of the evidence they intend to use at trial against an accused person. The most egregous will encourage witnesses to alter their accounts of alleged events in order to solidify their cases. Joe D'Ambrosio was released from death row because Cuyahoga County Prosecutors hid evidence that proved he was not the murderer. Not only did an innocent man spend over two decades on death row, the real killer went free! Prosecutors are required by rule and by Constitution to disclose the evidence they intend to use against an accused. A skilled central Ohio criminal defense attorney from The Law Office of Brian Jones will make sure prosecutors don't cheat you out of the discovery you're entitled to receive and review.

Another popular trick in the prosecutor community is illegal introduction of evidence. The Ohio Rules of Evidence and the Ohio Constitution work together to permit the admission of relevant, reliable evidence and exclude irrelevant, unreliable evidence. Often prosecutors will simply fail to disclose evidence they know will be excluded until the moment they attempt to introduce it to the jury. When the improper evidence is disclosed, many prosecutors will attempt to introduce it to the jury even when the Court has specifically ordered them not to do so. If you intend to fight the accusations against you, you need an attorney who understands the rules of evidence and knows how prosecutors try to game the system to obtain convictions at all costs. Delaware Ohio criminal defense Attorney Brian Jones lead his law school class in Evidence, attends seminars on the subject annually and has been frequently requested to speak on evidence topics by Thompson-West Legal Education Centers, the Marion County Bar Association and the Ohio Association of Criminal Defense Lawyers

When you're facing criminal charges, your finances, freedom and future are at stake. You can't afford a criminal conviction when the costs are thousands of dollars in fines and court-costs, lengthy jail sentences and the black mark of a conviction on job applications and credit reports for the rest of your life. Prosecutors have tunnel vision with their eyes for conviction at all costs. Call a skilled Ohio criminal defense attorney from The Law Office of Brian Jones for a free consultation and learn how we will assert your rights and protect you from the illegal actions of police and prosecutors.

Great Results from Following Our Advice

Brian G. Jones, Esq. — Wed, 18 Jan 2012 17:59:00 GMT

While this citizen may not be a client of The Law Office of Brian Jones, he certainly has followed our advice. Law enforcement hates when you follow the advice of a skilled criminal defense attorney. The Columbus Ohio criminal defense attorneys in our office would advise any citizen to follow the example of this fine citizen--with hilarous results.

What is the speedy trial time after indictment for a third degree felony?

ZachMayo — Tue, 17 Jan 2012 22:28:00 GMT

What is time frame for trial after an indictment if already arrested and out on bail on felony 3 in Ohio? Arrested on April 13th and released on bond on April 15th from municipal court. Transferred to common pleas court and indicted on Oct 24th.

You will want to refer to Ohio Revised Code section 2945.71(C)(2). Generally, a person with a pending felony must be brought to trial within 275 days of their arrest. However, this time is tolled (doesn't count for speedy trial purposes) when the case is pending. The case was pending until the preliminary hearing was held or the case was dismissed for future indictment. The speedy trial calculation will also depend on any days you were held in jail because each day would then count as 3 days.

You should contact a criminal defense attorney that practices regularly in your area. That person will be in a better position to properly determine any speedy trial issue, the calculation of days, and how to handle your case from that point forward.

Theft Charge and What Else?

Zach Mayo — Tue, 20 Dec 2011 18:59:00 GMT

Question:

My friend lives in the basement of a tattoo parlor, you get to his room by going through the tattoo shop. He had me wait in the tattoo shop while he went down stairs to get a jacket. We were drunk n while he was down stairs I put on rubber gloves n grabed a small tattoo gun part n was gonna act like a tattoo artist when he walked up he took to long n with out thinking put the small metal part in my pocket n gloves. They costed less then 20$ combined but I walked put with my friend not thinking about the gloves n tool in my pocket. We got stoped n searched by a police officerwhile walking home n he charged me with petty theft n I had to go to jail over night. I have no prior record are there any othe Charges I could be facing ? He also gave me mayors court for the under age.

Answer:

Theft is the most likely charge a prosecutor would seek. There are other less severe charges that may be offered at pre-trial such as unauthorized use of property, attempted unauthorized use of property etc. Another possibility is receiving stolen property, though that is probably unlikely in your situation.

However, I agree with the assessment that you have good facts for your case as you have stated them. I also recommend seeking a criminal defense attorney for assistance or ask for a public defender if you're unable to retain counsel.

Juvenile Sexual Battery and Adult Charges

Zach Mayo — Thu, 08 Dec 2011 17:43:00 GMT

Question:

A minor committed sexual battery multiple times with another minor within the family (a step-sister) over a period of several years. There was no intercourse however. The reason it would likely be considered battery is not because it was forced but because the victim has been proven to be mentally challenged. The activity has not occurred since they are both adults. The minor that was the victim made the family aware but the family chose not to press charges & dealt with it within the family. Both of them are now adults. It has been about 12-13 years since the last occurrence. Can the minor who did this act now be charged even though they are an adult now? If so would he be charged as a minor or adult? Who initiates the charges if necessary since the woman is still mentally challenged?

Answer:

This is a very complicated questions with several issues. Ohio case law says that sexual conduct between two minors does not result in statutory rape charges due to Constitutional issues. Further, there is very little case law regarding the involvement of a mentally handicapped person in this type of scenario. I believe you are correct that it becomes sexual battery due to the mental capacity of the victim though.

Adults can be charged with crimes they committed as a minor. However, as you may have seen in the news lately, the statute of limitations on sexual crimes varies and can be a big obstacle for prosecutors. If the statute of limitations has passed the prosecutor would be barred from charging the accused.

As far as charges, the prosecutor could elect to charge the accused as either a minor or an adult. This would depend on the age of the accused at the time the conduct occurred. But it is most likely that the person would be charged as an adult. These charges could be brought by the victim but, it may help in this case to have the family involved considering the circumstances.

Ultimately, this will likely come down to whether the statute of limitations even allows charges to be filed. You should consult an attorney in your area if you want a definitive answer to this issue.

Underage Possession of Alcohol in Ohio

Zach Mayo — Wed, 07 Dec 2011 18:39:00 GMT

Question:

I was stopped for carelessly speeding 7mph over on the freeway. I idiotically had a bottle of liquor that was half gone from last night at a friends house (which I did not drink) sitting on the passenger side which I did not think much about at the time (yes very stupid). I was not drinking nor under the influence at the time since I was going to a Thanksgiving luncheon. The policeman did not breathalyze me or arrest me but gave me a citation for Minor in Possession and the court date then let me go. Today, I went to court, and was told that I was being charged for "Consumption of an alcoholic beverage under the age in an motor vehicle" which could be punishable by jail and a large fine.

This is my first offense ever. I'd like to know if the public defender(attorney) can help.

Answer:

The charge you are facing is a First Degree Misdemeanor. In Ohio, this is punishable by up to a $1,000 fine and up to 180 days in jail. Since jail time is possible, you would be eligible for a public defender. However, you have to request one and fill out an affidavit of indigency with the court.

The public defender should at least be able to negotiate with the prosecutor on your behalf and protect your Constitutional rights. Make sure you ask for a court appointed attorney and schedule time to discuss your case with them.

$20 Petty Theft

Zach Mayo — Wed, 23 Nov 2011 22:41:00 GMT

Question: On 9/18/2011 I was stopped right before I walked out with $20 in merchandise in my purse. The lady said "Step in to this office, we need to search you for suspicious activity." I walked in to the office she asked me if I knew why I was in there, and instead of playing dumb, I was honest. She said please empty your purse and I did. She called the police to check me for warrants and everything came back clean. No police came but I filled out a paper and they took my picture. I was informed that they were pressing charges and they let me go. 2 weeks later I received a civil demand for $200, I have paid $100. My court date is November 29th, my most recent charge was Persistent Disorderly Conduct in December of 2009. I plan on just going and pleading guilty, how likely is jail time? No lawyer.

Answer: "Petty" theft is not insignificant. It is a first degree misdemeanor carrying penalties of up to 6 months in jail and up to $1,000 in fines. Not to mention you will have a theft charge on your record for all potential employers to see. The civil demand is separate and we usually advise our clients to ignore it. The retail store cannot ask for $200 when the item cost only $20 and was recovered. They are usually only allowed to request 3 times the amount lost.

It's hard to guess as to what Judge Gormley or Judge Sunderman will give as a sentence. There are many factors they take into consideration. Your best bet is to get an attorney who can either 1) negotiate a plea deal lowering the potential penalties and your possibility for jail time or 2) effectively advocate on your behalf for the lowest penalties. If you qualify for a public defender you should ask for one to be appointed. If not, retain one of the many fine Delaware area attorneys. You need to act fact though considering you have a court appearance in just over a week.

Expungement of a misdemeanor conviction

Zach Mayo — Wed, 23 Nov 2011 21:22:00 GMT

Can an unauthorized use of property misdemeanor from 2006 be expunged? There was no jail time and no trouble with the law since.

You will want to refer to ORC 2953.32. Ohio is a "one shot" jurisdiction when it comes to expunging your record. This means that you may only have an eligible charge expunged if it is 1) your first conviction 2) you have no other convictions since/no charges pending and 3) one year has elapsed since the final disposition (for a misdemeanor, or three years for a felony).

You will most likely need an attorney if you want to pursue an expungement of your record. There is likely to be a hearing on the motion and there is no guarantee you will be granted the expungement even if you are indeed eligible.

Fifth District Summary for the Week of 11/22/2011

Brian Jones — Tue, 22 Nov 2011 17:55:00 GMT

State v. Holland: Here we have a small victory for Mr. Holland. He was convicted of two manufacturing of drugs related charges. However, the trial court imposed, as part of his seven year sentence, that he not be considered or released on transitional control. In this short opinion, the Court agreed, citing their recent holding in State v. Spears.

State v. Kemery : Let this case be a reminder to pissed off husbands who are no longer permitted to contact their wife or soon to be ex-wife due to a civil protection order ("CPO"). Mr. Kemery was found to have violated his CPO because he invited his ex-in laws to forward an email in which he made several disparaging remarks about their daughter. Because he intended for his ex-wife to receive the harmful remarks he was in violation. While even the trial court noted this was a technical violation, it is still a violation of the CPO. I'm sure Mr. Kemery spent three days in jail brooding about the pitfalls of modern communication.

State v. Fields: It should come as no surprise that the newly enacted H.B. No. 86, which modified many crime's sentences when it took effect on September 30, 2011, that it would not be applied retroactively. The Court even points out that the legislators who wrote the bill explicitly said that they did not want the Bill to be applied retroactively. Thus, since appellant was sentenced on November 9, 2009, the new provisions regarding crack and powder cocaine do not apply to him.

Brian G. Jones, Esq. to Present Expert Witnesses on a Budget for West Legal Education

Brian Jones — Tue, 15 Nov 2011 18:56:00 GMT

Brian G. Jones, Esq. will demonstrate how you can confront and cross examine the government's expert witness on a tight budget. From requesting funds for your own expert from the court (and getting them!), to preparation and ultimately the cross examination itself, Brian Jones will show you how you can attack the credibility of any expert witness and put doubt in a jury's mind.

Click here to sign up and participate in this webinar!