Fifth district Summary a few days late this week.Here's a hint: it will be next week too cause
I'm goin on vacation!Then again, how
can I move forward with my recreation knowing there are criminal decisions to
be summarized?In anticipated
retribution for my neglect of the summary last week, the Fifth released eleven criminal
decisions the week of June 7, 2010.A few sentencing reversals this week, but otherwise a lot of affirmations. To
the decisions…
State
v. Swinderman is from Tuscarawas
County Common Pleas Court.Swinderman's Motion to Suppress was denied
and he appeals.Cops are getting
smart.The search incident to arrest
turns into an inventory search mid-stream.It's never good when things switch mid-stream.Searches of a vehicle incident to arrest are
illegal, but inventory searches aren't.So even if the original search was illegal, the subsequent inventory
search wasn't.Huh?Affirmed.
State
v. Thomas is an appeal from the Delaware County Municipal Court affirming
in part and vacating in part the sentence.Williams was arrested and charged with this OVI while another was
pending in Elyria, Ohio.He then pled to the Elyria OVI.After pleading guilty to the Delaware OVI, the trial court found he had
one prior in the last six years and imposed a five year license
suspension.Can't do that, says the
Fifth.The prior must be an arrest and
conviction before the instant offense occurs.Reversed in part.
State
v. Ramey comes from Delaware
as well, but this time from the Common
Pleas Court.Ramey alleges errs in the weight of the evidence and ineffective
assistance of counsel.In arguing the
weight of the evidence, Ramey claims he acted in self defense.The Fifth finds he was not in fear of his
life because, in his own words, he said to the victim, "I bet you won't" smack
me again.The party went downhill from
there.Ramey also argues ineffective
assistance of counsel claiming failure of his trial attorney to inform him of a
plea offer and for arguing no duty to retreat to support the affirmative
defense of self defense.Because there's
nothing in the record indicating there was a plea offer made and not
communicated, the first prong of the ineffective assistance argument
fails.Trial counsel was successful in
arguing self defense in three of the four felonious assault counts, so not
ineffective in his arguments.Affirmed.
State
v. Black alleges a failure to properly calculate jail time credit by the Richland County Common Pleas Court.Black was released prior to a decision being
rendered in the case, so it is moot and dismissed.
State
v. Michael comes from Tuscarawas
County Common Pleas Court.Michael claims improper denial of bail and
error in denial of Michael's witnesses from testifying at the bond hearing.The Fifth first finds the trial court
complied with the requirements of R.C. 2937.222 in denying bail.Further, it was not improper for the trial
court to quash Michael's subpoenas to the victims to testify at the bond
hearing.Affirmed.
State
v. Cramer is a pro se appeal from
the Licking County Common Pleas
Court after the trial court denied Cramer's
post-dispositional motion to withdraw guilty plea.Cramer claims his trial counsel told him he'd
be eligible for judicial release after six months.Not with an aggregate sentence of eighteen
years though.Also troublesome is that
Cramer waited nearly three years to file for judicial release.Hmmm…Affirmed.
I think Mr. Cramer and Mr. Toops got together and prepared
litigation strategy.Unfortunately for
Mr. Toops, he hitched his wagon to the wrong horse, State v.
Toops also affirms the trial court's denial of his motion to withdraw
guilty plea.Toops entered a guilty plea
after negotiations with an agreed five year sentence.He then filed three different motions to
withdraw his plea.All were denied.He then failed to comply with App. R. 16 and
reference locations in the record where error may be found.Finally, Toops alleges five assignment of
errors which, as reprinted by the Fifth are largely incoherent.Nevertheless, being the troopers they are,
the Fifth analyses his allegations which, according to the Fifth amount to a
claim of improper denial of his motion to withdraw plea for manifest injustice
based on trial counsel's ineffectiveness.Trial counsel wasn't ineffective, so no manifest injustice, so denial of
motion to withdraw plea was proper.Affirmed.
State
v. Jennifer Body is not a fictional opinion based on a bad slasher flick
from 2009.Rather, it is a claim that
the Coshocton County Municipal Court's conviction of Body for domestic violence
was against the manifest weight of the evidence.It wasn't because the investigating officer
and complaining witness told a story completely different from the defendant
and her witness.Unfortunately for Body,
the trier of fact determines credibility and, in this case, mommy and the cop
carry the day.And that movie was a
crime too.Affirmed.
State
v. Aleshire comes out of Licking
County Common Pleas Court where the Fifth affirms
in part, reverses in part and remands Aleshire’s conviction for rape, unlawful
sexual conduct with a minor and importuning.This is the third time around for the Fifth on this case.After several motions to withdraw pleas, a
reversal and then reconsideration by the Ohio Supreme Court, more motions to
withdraw pleas, the issue before the Fifth currently is whether the trial court
was correct in its finding that it lacked jurisdiction to hear Alshire's most
recent motion: for a new trial.Because
he entered a guilty plea, the trial court did not have jurisdiction to
entertain a motion for a new trial.But
Aleshire also filed a Memorandum Contra or in the Alternative Motion to
Withdraw Plea.The court never
considered the issues in the Motion to Withdraw Plea, so it’s back to the trial
court yet again.Affirmed in part,
reversed in part and remanded.
State
v. Looman is out of Richland
County Common Pleas Court after conviction and
sentence on Failure to Register.Looman
raises four assignments of error.The
Court treats one and four together and finds the trial court erred when it
sentenced Looman to a mandatory three year sentence.The sentence constituted an illegal,
retroactive application of SB10 to Looman as he was adjudicated a sexual
predatory under Megan's Law.The Court
then overrules Looman's argument that the documents to support his duty to
register was hearsay under a plain error analysis and find the weight and
sufficiency of the evidence adequate.Finally, the Court rejects ineffective assistance of counsel arguments
for trial counsel's failure to object to the hearsay evidence but sustains the
same argument insofar as it applies to sentencing.
Finally, State v. Murphy comes
from the Ashland County Common
Pleas Court after imposition of sentence upon a
finding of violation of community control sanctions.Murphy argues his twelve month prison
sentence for possession of prescription narcotics imposes an unnecessary burden
on state resources.The Fifth finds the
trial court has absolute discretion to impose a sentence within the statutory
range and did not abuse that discretion here.
