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Vacation means the Fifth District Summary has fallen behind.  Three trials in the next two weeks means it may fall a little more behind.  Sorry for the inconvenience.  If you have an issue with pre- or post-indictment delay in bringing prosecution you should really read Jenkins.  The rest are, of course, enjoyable as well.  To the cases...

State v. Colopy is an appeal from the Licking County Common Pleas Court.  The Fifth affirms the denial of Colopy's Motion to Suppress Evidence resulting from an "inventory search" of her vehicle.  Colopy was present when her co-defendant shop lifted.  No stolen items found on Colopy.  Nevertheless, police track down her vehicle in the parking lot and find the tag is expired.  Officer decides he's going to impound the vehicle when Colopy declines to give consent to search.  During the search, officers discover a can of Red Bull that is, "warm and was unusually heavy."  The can (which was searched) contained drugs.  The inventory was a valid search as was opening the can because Health PD has a policy of opening all packages found inside a car during an inventory and the officer considered the can of Red Bull a package.

State v. Fogle comes from the Licking County Municipal Court.  Fogle was convicted of Domestic Violence for biting his wife's finger as she wagged it in his face while telling him she was breaking up with him, cheating on him and, by the way honey, please roll me some cigarettes.  First, Fogle claims the jury was not properly impaneled when the verdict was returned (this seems to be a problem in Licking County Municipal Court).  While the written transcript fails to mention the jury's return, the video shows the jury was present when the verdict was read.  Next, Fogle claims ineffective assistance of counsel based on trial counsel's failure to object to the absence of the jury.  See assignment of error number one for the result of number two.  Finally, Fogle claims the conviction is against the weight of the evidence.  In a he said, she said battle royale (complete with divorce pending) such as this one, the Fifth isn't going to overturn a verdict.  Affirmed.

State v. Marshall comes from the New Philadelphia Municipal Court.  Marshall was convicted of violating a civil protection order.  Following a bench trial, the court sentenced Marshall to 180 days in jail (ouch).  Marshall appeals raising weight and sufficiency arguments as well as arguments that hearsay evidence was improperly admitted and a child witness was not competent to testify.  Marshall claims he didn't know Danford (the protected person) was nearby.  Marshall admits he was at the gas station next to the domestic violence shelter Danford was staying at, but denies he knew she was staying there.  The Fifth doesn't buy it.  Turning to the hearsay statement and competency issues, the Fifth finds error, but further finds it harmless.  Which is interesting in light of the fact that the Fifth says, "[c]learly the statement was presented on a pivotal issue of the case and was offered for the truth of the matter asserted."  Despite the fact that the testimony was objected to, the Fifth conducts a harmless error analysis and finds the error in admitting the testimony was just that.  So improperly admitted evidence on a "pivotal issue" is harmless error.  Ok.

State v. Brown comes out of Richland County Common Pleas Court where Brown, pro se appeals the trial court's denial of a motion for resentencing.  Brown claims failure of the jury verdict to specifically state the level of offense.  Brown claims his sentence is, therefore, void.  The Fifth disagrees.

State v. Hagedorn reverses the decision of the Stark County Common Pleas Court.  The trial court applied SB10 to Hagedorn's registration.  The Fifth finds his registration requirements expired on May 7, 2007.  Being before SB10 took effect, reclassification of Hagendorn was improper.  Reversed.

State v. Wood appeals the Stark County Common Pleas Court in another SB10 classification and affirming the trial court this time.  First, Wood claims his classification is illegal because it was essentially a retroactive resentencing.  The Fifth rejects the argument finding SB10 classification is civil in nature and arises by operation of law.  Next, he argues he should not be classified because he was married to the alleged victim and as a step-parent should not be classified (Wood was convicted of kidnapping a six year old, there is no indication in the opinion that this was, in fact, a sex offense).  Because the "guardian", "person in loco parentis", ect. language isn't included in the statute, the legislature intentionally excluded it and he should not receive the benefit.  Wood's third assignment of error was not raised in the trial court level, so it is reviewed for plain error.  The Court conducts plain error analysis and rejects the claim.  Finally, Wood claims his classification is improper because the trial court never determined whether he was community notification exempt.  The statutory language being permissive and Wood having never requested a hearing, Wood cannot argue the trial court abused its discretion in not holding a hearing or explicitly making the determination.  Affirmed.

State v. Lambert appeals the Licking County Municipal Court's conviction on OVI and Failure to Control after a jury trial.  Lambert raises two assignments of error.  First, she claims the jury was not properly impaneled before the verdict was read.  The issue was not objected to by trial counsel, so plain error analysis applies.  Because the trial court asked Lambert if she wanted the jury polled, the Fifth presumes the jury was present when the verdict was read and overrules the first assignment of error.  Second, she claims ineffective assistance of trial counsel for failing to object to inadmissible evidence, inflammatory remarks by the prosecutor and acceptance of the verdict.  First, regarding the alleged hearsay, the persons making the statements testified, so no problem with the officers testifying to what they said.  Because the evidence was so overwhelming, the possibly inflammatory, improper remarks were not prejudicial.  Finally, because there was no error in the rendering of the verdict, no IAC for failing to object.  Affirmed.

Out of Guersey County Common Pleas Court comes State v. Hodge, an appeal from conviction for discharging a firearm at a prohibited premises and improper handling of a firearm in a motor vehicle.  Primarily, Hodge, a juvenile at the time of the offense, argues his sentence is disproportionate to sentences for similar crimes.  He even presented two cases where these charges resulted in a misdemeanor and a juvenile adjudication respectively.  The Fifth notes neither entry was moved into the record.  Further, the Court finds the sentence is not inconsistent.  Hodge next argues he was improperly sentenced based on his race, gender, religion or ethnicity.  Nothing about that in the record, though, so you know how far it gets.  Finally, he argues he should have received the minimum sentence.  But because the trial court considered the necessary factors, this argument also fails.

State v. Jenkins comes out of the Stark County Common Pleas Court raising speedy trial concerns for a fourteen year delay in brining Jenkins to trial.  Jenkins raises two assignments of error related to the speedy trial issue, failure of the trial court to consider his untimely motion to suppress statements and ineffective assistance of counsel.  After a lengthy discussion of how a defendant would show pre-indictment delay to be prejudicial (and finding no pre-indictment delay prejudice in this case), the Fifth agrees with Jenkins that the post-indictment delay was improper.  In conducting the Barker v. Wingo analysis, the Court focuses the bulk of its opinion on the reason for the delay.  The Court cites, with approval, United States v. Wilson for the position that failure to track down a defendant is "passive wrongdoing" attributing the delay to the State rather than the defendant who, in this case, moved to Texas.  Further, the Court, finds the statute of limitations was not tolled by Jenkin's relocation to Texas.  Repeatedly, the Court notes the State failed to make any attempt at finding Jenkins during the fourteen year period the case was pending.  This is a fantastic case for anyone who has a significant delay in brining a case to trial.

State v. Clay comes to us from Stark County Common Pleas Court as well.  Clay raises three assignments of error following his convictions after jury trial for burglary, retaliation and menacing by stalking.  In his first assignment of error, Clay claims the trial court abused its discretion by admitting into evidence the CW's written statement and Clay's prior misdemeanor convictions for trespass and assault against the CW.  The Fifth finds the statement was hearsay.  The only valid exception the Fifth could find is prior recollection recorded.  But under that rule the written statement is still inadmissible unless moved into evidence by the adverse party.  The Fifth then, in some brilliant legal maneuvering, finds that, because the CW was declared adverse by the trial court, she became aligned with the defense and the prosecution became the adverse party (even though the prosecution is the party who called her to the stand).  The Court then addresses the admission of the prior misdemeanor convictions and finds their admission proper as a pattern of conduct.  Next, Clay argues the trial court committed plain error by not giving a limiting instruction on the CW's statement.  We all know how well plain error analysis goes for criminal defendants.  Finally, Clay argues there was insufficient evidence to convict.  But when you consider that detailed, written statement by the CW and don't weigh the credibility of any of the witnesses, there is certainly enough to convict.  Affirmed.

Stark County was popular a couple weeks ago.  State v. Turnbow is out of the Common Pleas Court and appeals the resentencing after improper imposition of three years as opposed to five years of post-release control as part of his original sentence (imposed in 2004).  After conducting a new sentencing hearing, the trial court reduced Turnbow's original sentence by one year and imposed the proper amount of post-release control.  The State of Ohio is the appellant.  The case law being clear that a de novo sentencing hearing is proper, the reduction is okie dokie and the new sentence is within the proper range.  Affirmed.

And finally, from Stark County comes a writ of habeas corpus filed pro se in Hill v. Cook.  Mr. Hill is in Madison Correctional and the Fifth doesn't have jurisdiction over that area.  The Fifth also doesn't bother to give Mr. Hill a clue that Madison County is in the Twelfth District, but hey, they're not there to give advisory opinions, right?

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.

Six criminal decisions this week from the Fifth District with one win for the good guys (for those that haven't figured it out yet, we're a criminal defense firm, so that would mean a win for the defendant).  Five Civil, Five Domestic and Two Juvenile decisions as well.  Busy week.  But we do criminal here, so criminal cases….Away!

Mt. Vernon v. Young is an appeal from a DUI conviction after denial of a Motion to Suppress Evidence.  Based on an anonymous tip (that described Young and the vehicle she would be driving), the arresting officer tracked down and stopped Young for a headlight violation.  The officer noticed a moderate odor of alcohol, slurred speech and confusion coming from Young.  Young raised three assignments of error.  First, she alleged no reasonable suspicion to stop her vehicle.  Despite cruiser photos depicting the vehicle having two working headlights, the Court finds the headlight violation sufficient to justify the stop of Young (the officer said she must have turned on her high beams).  Second, she claims the breath test was not conducted in substantial compliance with the regulations promulgated by the Ohio General Assemble and Department of Health.  Based on the officer's testimony that he usually begins the twenty minute observation period after arrival at the station, the Court dismisses the video evidence showing Young put something in her mouth during the observation period and affirms the denial of suppression of the test.  Finally, she claims the search of her vehicle (that uncovered two bottles of vodka) was illegal.  The Court, analyzing whether there was error in denying suppression of the bottles, determines any error was harmless.  Judgment affirmed.

State v. Brewster is an appeal raising manifest weight and sufficiency assignments after conviction following a bench trial in the Coshocton County Common Pleas Court for one court of insurance fraud.  The Fifth finds the evidence insufficient because, under the terms of Brewster's policy, he paid the same deductible under the collision and comprehensive aspects of his policy.  The insurance company paid the policy despite believing he was making false statements.  Therefore, Brewster did not receive any benefit from his false statement.

State v. Rothe comes from the Fairfield County Common Pleas Court following a jury trial and convictions on several counts of a twelve count indictment.  Rothe raises two assignments of error.  First, he claims the sentence is unconstitutional.  Second, he claims the consecutive sentences for aggravated burglary and felonious assault are improper because the offenses are allied.  The Court uses Kalish to find the sentence is not contrary to law and is not an abuse of discretion.  Turning to the allied offense argument, the Court finds the elements of the offense sufficiently dissimilar that separate penalties may be imposed.

From the Richland County Common Pleas Court comes State v. Hopkins, an appeal from a conviction for Failure to Comply (F3).  On appeal, Hopkins claims the trial court should not have entered a finding of guilt on the F3, but rather should have reduced the charge because Hopkins created no risk of harm to anyone but himself.  That is sufficient according to the Fifth (and other districts).  In this scenario, this enhancement makes no sense to me.  If you’re going to run from the police, there is almost no scenario where you won't cause a substantial risk of physical harm to yourself; the officer can always try to ram you off the road.  In order to keep my head from exploding, the Fifth adds in the two other vehicles that happened past the appellant traveling the opposite direction during the initial stages of the pursuit.

A return to Richland County brings us to State v. Caudill where Caudill was convicted, after a bench trial, of Burglary (F4) and Negligent Assault (M3) in the Common Pleas Court.  A custody battle gone wrong, Caudill arrived at the CW's home claiming it was his day to have custody and refusing to leave without his children.  After forcing entry and removing the boys from the house, Caudill placed them in his vehicle.  While the CW, leaning into Caudill's vehicle, was reassuring the boys everything would be ok, Caudill started to drive off at a high speed, the CW was caught in the door of the car and dragged about 100 feet.  Caudill was indicted for Burglary (F2), Felonious Assault (F2) and Aggravated Menacing (M1).  Upon his conviction, Caudill raises weight and sufficiency arguments to his convictions.  Regarding the Burglary (F4) conviction, Caudill claims, without citing authority, that he had a privilege to force entry into the house because his children were inside.  No, says the Fifth, you can't force your way into someone's house to take your children away in this scenario.  Caudill also claims the State failed to prove, on the Negligent Assault count, that he deviated from the standard of care in failing to perceive his actions caused a risk of harm to the CW.  Not so, says the Fifth.  If your rear car door is open and a person is leaning in, you really shouldn't be putting the car in reverse and stamping on the gas pedal.  Some might say Caudill is lucky he's not on a brown bus heading to Orient, Ohio.  Others may say, hell no, those are my kids and I will run over a thousand grandpas to get to them.  The Fifth seems to fall into the former category.

After traveling North a bit, we come to State v. Foy from the Stark County Common Pleas Court.  A pro se appeal from the trial court's denial of a Motion for Re-Sentencing.  Foy's fourteen year sentence for Aggravated Robbery with Firearm Specification, Having Weapons Under Disability and Carrying a Concealed Weapon were previously affirmed by the Fifth.  More specifically, Foy claims, under State v. Pelfrey that the verdict forms were defective for failing to state the level of the offense.  The Fifth, without ever addressing the merits of his claim, finds the matter should have been raised on direct appeal, it was not and, therefore, res judicata bars his claim now.  I bet Foy really hates Latin right about now. 

Typically we don’t summarize Ohio Supreme Court Cases, but we'll make an exception for the monumental decision rendered by the Court this week.

State v. Bodyke was decided by the Ohio Supreme Court Wednesday.  The Court found S.B. 10 (aka The Adam Walsh Act), violates the doctrine of separation of powers.  Because persons convicted of sexual offenses pre-S.B.10 were entitled to a hearing on their classification, courts, both trial and appellate, have made determinations on the proper level of threat a person poses to the community.  When the legislature made S.B. 10 retroactive, it took away from the judiciary the power it had over those cases.  Under S.B. 10, the Attorney General (a part of the Executive Branch), makes a new determination based on offense of conviction, which "tier" an offender is placed in.  The determination by the Executive Branch upsets final judgments and usurps judicial power.

If you are subject to the oppressive mandates of sex offender registration, contact our office for a free consultation to determine if this monumental decision can be of assistance to you.

The Orient, in this case, is not eastern Asia.  In Ohio, all prison inmates are processed through Central Reception Center in Orient, Ohio.  But, for Client, a funny thing happened on his way there: the jury followed the law.

Client was accused of Failure to Comply with an Order or Signal of a Police Officer.  In lay terms, a deputy sheriff attempted to stop him and cite him for speed.  He was accused of not stopping and leading the deputy on a high speed chase through a city.  Several hours later, he was arrested at his residence.  He had an odor of alcohol.  He was also charged with Operating a Vehicle Under the Influence.

The participants in the case all strongly believed a jury would convict Client.  Preliminary discussions were centered on the length of the penalty, not whether the State could prove its case.  Other persons in the Courthouse agreed: Client would be convicted; it was only a matter of time.

We focused our defense on identity.  Because the driver of the vehicle succeeded in escaping from the officer, no person was ever seen in the vehicle.  At least, that is what the deputy said in his report.  However, at trial, the deputy testified that, during a turn, traveling at speeds in excess of 35 m.p.h., at midnight, he was able to see into the car and make a 100% certain identification of Client.  The jury didn't believe the testimony of the officer beyond a reasonable doubt.

Another witness placed Client near the vehicle earlier in the evening.  However, the witness also placed a number of other people near the vehicle.   By focusing the defense on the most suspect issue, we were able to direct the jury to the location of doubt.  Many attorneys will employ a "shotgun" defense attacking everywhere all the time.  We have found the most success with a targeted attack.  First, the jury finds credibility in a person who can admit the flaws in his argument (conceding elements we are not attacking).  Second, we are able to focus the jury's discussion on the issue we find most beneficial to our case.

I was most impressed with the jury in Client's case.  Though some of them believed he probably had been the driver of the vehicle, the obeyed the law.  It is illegal for a jury to convict a person if the jury, "thinks he did it," or believes, "he probably did it."  The jury must be convinced beyond a reasonable doubt.  They must rely on the decision-making skills they use in the most important of their affairs.  The jury followed the law and entered a verdict of not guilty in the case.  I am proud of their dedication to the rule of law.

Fifth District Summary for the week of 5/24/10 includes seven criminal decisions.  If you haven’t figured it out by now, we don't summarize the civil cases.  Sue me.

State v. King is an appeal from Guernsey County Common Pleas Court.  King was indicted for two counts of involuntary manslaughter (F1) with felonious assault and child endangerment as the underlying felonies, one court of involuntary manslaughter (F3) with assault as the underlying offense, one count of child endangerment (F3) and one count of felonious assault (F2).  King was convicted of Child Endangerment (F3), acquitted on Involuntary Manslaughter with Felonious Assault as the underlying charge and the jury hung on the remaining charges.  The Court overrules a sufficiency of evidence assignment of error.  It is interesting the Child Endangering conviction stands; the Fifth basically says if your child might be sick, you better take him to the hospital or else it is child endangering.  The Court also shoots down an argument claiming inconsistency in the verdicts.

State v. Morris is an appeal from denial of Morris's application to seal the record of his conviction in the Licking County Common Pleas Court.  Morris claims his prior conviction for OVI in another state should not preclude him from have his felony vandalism conviction sealed.  It does.

From Perry County Common Pleas Court comes State v. Chatfield.  Chatfield isn't happy that his attorney's oral motion for a continuance to further investigate the case was denied and claims the trial court erred when it refused his request for a mistrial.  A continuance being in the sound discretion of the trial court, Chatfield’s assigned error is overruled.  The denial of a motion for mistrial is also reviewed for abuse of discretion.  In this case, a mistrial was requested when 404(B) evidence was introduced; the 404(B) evidence was appropriate and probative of modus operandi.  Enjoy your 84 months Mr. Chatfield.

State v. Bloom assigns error to the Fairfield County Municipal Court in a prosecution and conviction for OVI.  Mr. Bloom's Motion to Supress was denied and he entered a no contest plea.  The trial court believed the officer when he claimed Bloom drove over a curb, so the Court will too.  The motion was properly denied and the assignments of error are denied as well.

State v. Colon is an appeal alleging a denial of speedy trial rights from Stark County Common Pleas Court.  The trial court applied the tolling provisions of R.C. 2945.72 to the period permitted by R.C. 2941.401 and ruled Colon's failure to reply to the State's demand for discovery tolled time.  First, the Fifth finds the tolling provisions do apply and then further finds failure to respond to a discovery request is a tolling event.  The Court then does the math and says the plea took place on "day" 178.  Ouch.

State v. Cartier comes out of Delaware County Common Pleas Court.  Cartier claims his statutory speedy trial rights were violated.  Cartier doesn't get to use the triple-count provision of R.C. 2945.71 when filing a demand for disposition under 2941.401.  Creative argument, but the Fifth says no dice.

Finally, State v. Williamson comes from Canton Municipal Court.  Mr. Williamson's motion to suppress was denied and he appeals the denial after his no contest plea to Possession of Marijuana.  Williamson was the passenger in a vehicle that was stopped by officers who had been called to the scene because of "an altercation with a possible weapon involved."  Williamson has a handgun in the vehicle and he disclosed that as well as his carry conceal permit.  Both driver and passenger are removed from the vehicle.  Driver is placed face down on the ground in front of the vehicle and passenger (Williamson) is placed in a cruiser.  The officers find the gun (sans holster) and an empty holster under the passenger seat.  They then search the rest of the car and find a jacket; inside the jacket they find a baggie of marijuana.  The Fifth analyses SCOTUS precedent going back to Chimel v. California, determines the driver of the vehicle was not under arrest and had the ability to access the vehicle and therefore a search of the vehicle was necessary for officer safety.

Mr. Graber was recklessly riding his motorcycle with a video camera strapped to his helmet.  Let me be clear: Mr. Graber’s actions were unconscionable.  He could have killed himself or other people.  He should be cited for his actions.  There is no doubt about this crime, the whole thing is on video tape and Mr. Graber admits he was not riding in a responsible way.

But Mr. Graber has become the victim of an irate cop’s childish vendetta.  Trooper Joseph David Uhler was off duty when he saw Mr. Graber’s irresponsible riding.  Tpr. Uhler took it upon himself to draw his service weapon and order Mr. Graber to stop and exit his motorcycle.  That’s right, a guy in plain clothes pulled a gun on Mr. Graber and ordered him off the motorcycle.  Mr. Graber posted the video of Tpr. Uhler’s aggressive and possibly illegal actions on YouTube.  When law enforcement discovered the video, the State Trooper’s office obtained a search warrant for his house and confiscated two desktop computers, two laptop computers and Mr. Graber’s video camera.  Mr. Graber is being charged with felony wiretapping!  What?  According to news reports, Maryland is a two party consent state, so any audio recording must be made with permission of all parties to the conversation.

And Mr. Graber isn’t the first victim of overzealous police attempting to suppress citizens’ rights to protect themselves.  In April, a Massachusetts man was arrested for similar conduct when he was stopped on his bicycle for riding too far into the lane of travel.  Notwithstanding cyclists’ rights to use the roads, the police have gone too far.  According to Carlos Miller, police all over the nation are attempting to forbid citizens from protecting themselves.

I advise all friends, family and clients to record interaction with law enforcement.  Most people have cell phones.  Most cell phones have the ability to record audio and video.  I also advise people to obtain a digital voice recorder and keep it with them at all times.  Why, you may ask, do we need to be so paranoid about our interactions with law enforcement?  Maybe it’s because I have seen law enforcement officers plot against an innocent woman in order to rid them of responsibility for a fender-bender.  Maybe it’s because I have seen too many videos of law enforcement using excessive force on handcuffed persons.  Just run a YouTube search for police brutality and you will find hundreds of links to not only citizen video, but new accounts of the beatings, taserings and illegal conduct of law enforcement.  Or look in the Ottwa Hills, Ohio conviction of Officer Thomas White for shooting a man in the back. newspapers and see the

When law enforcement has been using technology against citizens for decades, why are they now so afraid the citizens are also using it?  Could it be because, when the recording is made by law enforcement, they have control over it?  They have the ability to turn the video and audio on and off with the flick of a switch on their lapels.  They have the ability to review the recordings after the incident and delete them if it doesn’t support their version of the facts.  Law enforcement officers thrive on control.  They are trained from the first moment at the academy to maintain total control of every situation.  They are trained to control the content of their reports.  Video and audio recording by citizens removes the truth from the control of the officers.  I hope lawyers representing these citizens fight tooth and nail to prevent the government from establishing a pattern of this illegal over reaching.

Fifth District Summary for the week of May 17, 2010 includes five criminal cases.  Not as fun as the last two weeks, but State v. Fenderson has a nice summary of evidence put on in an NGRI defense.  It provides a nice blueprint of areas to make sure to have your psychiatrist hit in order to present the most thorough case possible.

The first, State v. Nichols, is an appeal from the Fairfield County Municipal Court’s denial of Nichols’s Motion to Suppress and Motion for Expert at State’s Expense.  The Court finds, even through the NHTSA manual wasn’t introduced, the totality of the circumstances supported a finding of probable cause to arrest.  Further, the Fifth finds, even in the absence of the FSTs, sufficient evidence was submitted to support the Court’s finding of guilt upon the No Contest Plea.  In overruling Nichol’s second assignment of error, the Fifth applies an abuse of discretion standard to the assignment of error and finds Nichols failed to demonstrate a particularized need for expert assistance.

In State v. Jones, the Fifth affirms convictions in the Licking County Common Pleas Court for two counts of Unlawful Sexual Conduct with a Minor (F3) and two counts of Sexual Imposition (M3).  Jones claims his convictions for USCM violate Double Jeopardy or are allied offenses and should have merged for sentencing.  The Fifth finds the acts of digital penetration and cunnilingus are separate and distinct, therefore convicts for both are not allied offenses and the sentences need not be merged.

State v. Swick also comes from the Licking County Common Pleas Court.  Swick appeals her conviction for Assembly of Chemicals for the Manufacture of Meth (F3).  Swick first appeals the acceptance of her guilty plea.  She claims she was not advised of her right to a unanimous jury verdict.  Overruled.  In her second assignment of error, Swick claims she was denied equal protection because her co-defendant’s indictment was amended to make her eligible for community control sanctions.  She claimed, for the first time on appeal, the State treated her differently because she was married to the “chef” of the meth.  Under a plain error analysis, the Fifth finds no evidence Swick was prejudiced by improper considerations in the State’s decisionmaking.

Out of Richland County Common Pleas Court comes State v. Fenderson, an appeal from a conviction and sentence for Murder.  Fenderson raises one assignment of error: the conviction is against the manifest weight of the evidence because the affirmative NGRI defense was proven by a preponderance and not rebutted.  The fifth finds the evidence of Fenderson’s sanity was in conflict, therefore, it will not disturb the jury’s decision to believe the State’s experts over the defense expert.

Finally, the Holmes County Common Pleas Court denied sealing of the record in State v. Stotler prompting Mr. Stotler to appeal.  Because the trial court failed to hold a hearing on Stotler’s Motion, the Fifth reverses and remands for a hearing.

State v. Wise is a decision reversing the Coshocton Municipal Court's conviction for underage consumption.  Wise raised two arguments.  First, he claimed the officer lacked reasonable suspicion to stop a group of young persons after curfew.  The Fifth finds the officer had reasonable suspicion to stop the group because he knew one of the members was only 16 and when they saw the officers, the group "began walking away at a fast pace."  The Fifth, however, finds insufficient evidence to support a finding that Wise was under the influence at the time the officer saw him.  I think the panel may even gone so far as to say there was no probable cause to arrest, but that issue was never raised by Wise.

Bever v. State is an appeal from the Stark County Common Pleas Court's rejection of Bever's objections to the application of the Adam Walsh Act.  The standard arguments are raised and rejected.

State v. Kienzle comes from the Tuscarawas County Common Pleas Court who convicted Kienzle of Assault on a Police Officer.  Kienzle raises weight and sufficiency arguments as well as claiming "other acts" evidence was improper.  The Court rejects appellant's arguments.  This is an entertaining story starting with a cop jumping on a speeding four-wheeler and then falling off, but not before threatening to shoot the helmeted man driving.

State v. Renicker also comes from Tuscarawas County Common Pleas Court.  This is the second time the Fifth has heard Mr. Renicker's case.  The first time, Renicker argued the culpable mental state for the serious physical harm element of aggravated robbery should be recklessness.  The Fifth agreed, but said the error was harmless.  Then OSC decided Colon I.  Renicker then filed a Motion to Vacate his sentence in the trial court; that motion was denied.  The Fifth decides the failure to allege the proper mental state was not structural or plain error because the error did not effect the trial (Renicker did not file a transcript of the trial for consideration on appeal).  Because there is no evidence of structural error, the Fifth conducts a plain error analysis and finds no plain error.  The assignment of error is overruled.

State v. Britton is an appeal from a murder conviction in Delaware County.  Britton raises two assignments of error.  In the first, Britton claims it was error to allow hearsay testimony into evidence.  The victim said it was Britton who stabbed him and that he did it for revenge.  These statements were testified to by responding officers, the victim's neighbors and were included in the 9-1-1 tape played for the jury during trial.  First, the Fifth determines the statements were non-testimonial using the primary purpose test.  Because there was an ongoing emergency, the primary purpose of the statements was related to that emergency, not for later use in a criminal prosecution.  The Fifth then decides the admission of the statements does not violate the evidence rules because they were either present sense impressions or excited utterances.  In Britton's second assignment of error, he argues the murder and felony murder convictions should have merged with aggravated murder and the two aggravated burglary charges should have merged.  Hooray for the rule of law but too bad for Britton...the total aggregate sentence of 30 to life need not change even after the matter is remanded for resentencing.

Finally, State v. Stevenson is an appeal from the Perry County Common Pleas Court on convictions for illegal manufacture of drugs and assembly of chemicals for the illegal manufacture of drugs.  Stevenson's first assigned error claims the charges are allied offenses and conviction for both is a double jeopardy violation.  The Fifth applies Cabrales and finds the offenses are allied and do not have a separate animus.  The Fifth overrules Stevenson's assigned error that other acts evidence should have been excluded.  In a trial for assembly of chemicals for the manufacture of drugs (meth), evidence of persons bringing those chemicals (pseudoephedrine) to the defendant is admissible.  Stevenson's third assigned error is ineffective assistance of counsel for failing to file a motion to suppress on an executed search warrant.  The Fifth first finds the failure to timely file the motion was ineffective, but goes on to find no prejudice based on the record presented.

State v. Wise is a decision reversing the Coshocton Municipal Court's conviction for underage consumption.  Wise raised two arguments.  First, he claimed the officer lacked reasonable suspicion to stop a group of young persons after curfew.  The Fifth finds the officer had reasonable suspicion to stop the group because he knew one of the members was only 16 and when they saw the officers, the group “began walking away at a fast pace.”  The Fifth, however, finds insufficient evidence to support a finding that Wise was under the influence at the time the officer saw him.  I think the panel may even gone so far as to say there wasn’t probable cause to arrest, but that issue was never raised by Wise.

Bever v. State is an appeal from the Stark County Common Pleas Court's rejection of Bever's objections to the application of the Adam Walsh Act.  The standard arguments are raised and rejected.

State v. Kienzle comes from the Tuscarawas County Common Pleas Court who convicted Kienzle of Assault on a Police Officer.  Kienzle raises weight and sufficiency arguments as well as claiming "other acts" evidence was improper.  The Court rejects appellant's arguments.  This is an entertaining story starting with a cop jumping on a speeding four-wheeler and then falling off, but not before threatening to shoot the helmeted man driving.

State v. Renicker also comes from Tuscarawas County Common Pleas Court.  This is the second time the Fifth has heard Mr. Renicker's case.  The first time, Renicker argued the culpable mental state for the serious physical harm element of aggravated robbery should be recklessness.  The Fifth agreed, but said the error was harmless.  Then OSC decided Colon I.  Renicker then filed a Motion to Vacate his sentence in the trial court; that motion was denied.  The Fifth decides the failure to allege the proper mental state was not structural or plain error because the error did not effect the trial (Renicker did not file a transcript of the trial for consideration on appeal).  Because there is no evidence of structural error, the Fifth conducts a plain error analysis and finds no plain error.  The assignment of error is overruled.

State v. Britton is an appeal from a murder conviction in Delaware County.  Britton raises two assignments of error.  In the first, Britton claims it was error to allow hearsay testimony into evidence.  The victim said it was Britton who stabbed him and that he did it for revenge.  These statements were testified to by responding officers, the victim’s neighbors and were included in the 9-1-1 tape played for the jury during trial.  First, the Fifth determines the statements were non-testimonial using the primary purpose test.  Because there was an ongoing emergency, the primary purpose of the statements was related to that emergency, not for later use in a criminal prosecution.  The Fifth then decides the admission of the statements does not violate the evidence rules because they were either present sense impressions or excited utterances.  In Britton's second assignment of error, he argues the murder and felony murder convictions should have merged with aggravated murder and the two aggravated burglary charges should have merged.  Hooray for the rule of law but too bad for Britton…the total aggregate sentence of 30 to life need not change even after the matter is remanded for resentencing.

Finally, State v. Stevenson is an appeal from the Perry County Common Pleas Court on convictions for illegal manufacture of drugs and assembly of chemicals for the illegal manufacture of drugs.  Stevenson's first assigned error claims the charges are allied offenses and conviction for both is a double jeopardy violation.  The Fifth applies Cabrales and finds the offenses are allied and do not have a separate animus.  The Fifth overrules Stevenson's assigned error that other acts evidence should have been excluded.  In a trial for assembly of chemicals for the manufacture of drugs (meth), evidence of persons bringing those chemicals (pseudoephedrine) to the defendant is admissible.  Stevenson's third assigned error is ineffective assistance of counsel for failing to file a motion to suppress on an executed search warrant.  The Fifth first finds the failure to timely file the motion was ineffective, but goes on to find no prejudice based on the record presented.

The Fifth released two decisions in criminal cases on May 3, 2010.  Here are the summaries:

State v. Hill is an appeal from the Ashland County Common Pleas Court claiming Hill’s sentence imposes an unnecessary burden on the State of Ohio because it is expensive to house people in the State prison system.  The burden, however, is very necessary according to the Fifth because of Hill’s extensive, and violent, criminal history (among other reasons) and the sentence is upheld.

State v. Taylor comes from the Richland County Common Pleas Court.  Taylor claims his conviction is based on insufficient evidence.  Not so says the Fifth.  Taylor claims there was no physical harm because his baby momma didn’t have any marks on her.  The Fifth says it’s up to the jury if there are no marks on the complaining witness.

Fifth District Decisions for the Week of April 26, 2010.  Several sordid tales in this grouping…

State v. Fegley comes to you from the Richland County Common Pleas Court.  Fegley challenges the weight of the evidence in his conviction on forty counts consisting of Breaking and Entering, Theft, Possession of Criminal Tools and Engaging in a Pattern of Corrupt Activity.  Overruled says the Fifth.  The co-defendant had all sorts of valuable information and he said Fegley was in on those criminal acts.

City of New Lexington v. Stanley appeals a conviction for OVI in Perry County Municipal Court.  Stanley raises four assignments of error.  The first two assignments of error pertain to the prosecution’s failure to disclose exculpatory material.  Stanley claims the trial court abused its discretion when it failed to entertain a motion on the prosecution’s failure to produce exculpatory evidence.  Stanley claims the State’s failure to obtain names addresses and statements from the bystanders who were nearby when he crashed his truck violates the prosecutor’s obligation under Brady v. Maryland.  Because Stanley’s attorney cites no authority in support of his position and the Fifth fails to find anything on its own, the Fifth decides the prosecutor has no obligation to conduct such an investigation.  Additionally, nothing stopped Stanley from conducting his own investigation into those people.  Stanley’s third and fourth assignment of errors claim the trial court erred in denying his motion to suppress eyewitness identification and the fruits of Stanley’s arrest.  First, the Fifth addresses Stanley’s assertion that the arresting officer lacked probable cause; the Fifth says, the crash, the reliable eye witness’s subjective belief of Stanley’s intoxication, Stanley’s inability to stand upright, slurred speech and admission of “a couple” beers equals probable cause.  The Fifth also finds the show-up identification was proper considering it occurred minutes after the initial meeting and Stanley was still wearing the clothes the eyewitness had originally described, so there was no substantial likelihood of misidentification.

State v. Striblin is an appeal from the Muskingum County Common Pleas Court’s refusal to allow Striblin to withdraw his guilty plea to one count of Possession of Crack Cocaine (F3) and Vandalism (F5).  The Fifth reviews the law on withdraw of pleas, but decides Striblin just had a change of heart.  Not a legitimate basis.

State v. Reedy is an appeal from the Muskingum County Municipal Court raising five assigned errors.  First, denial of Reedy’s Motion to Suppress his Confession was proper.  When your attorney says, don’t go confess and you do it anyway, you’re Motion will be properly denied.  The Court further finds Reedy’s conviction was not against the weight or sufficiency of the evidence.  Reedy then argues it was an abuse of discretion to exclude evidence that the detective believed no offense had been committed.  It wasn’t; an officer’s opinion as to whether the law was broken is improper evidence because it is irrelevant.  Despite the trial court’s repeated reference to the sexual acts occurring in a church, the sentence was not an abuse of discretion.  This one is quite the sordid tale, but does not result in a reversal of Reedy’s conviction or sentence.

State v. Roseborough comes from the Ashland County Common Pleas Court where the State appeal’s the trial court’s grant of a new trial to Ms. Roseborough.  It was not an abuse of discretion for the trial court to grant Roseborough’s post-conviction petition.  It was not error for the trial court to compel the State to comply with the Defense’s properly issued Request for Production of Documents.  A post-conviction petition is civil a civil proceeding but there is no mention of civil discovery in 2953.21.  However, because the trial court properly granted the petition, any error in granting the discovery request was harmless.  Judge Gwinn dissents claiming trial counsel’s performance was not ineffective so the grant of the petition was an abuse of discretion.

State v. Valko is an Anders from an OVI conviction in Guersney County.  Of interesting note, Valko claims the cruiser video does not actually portray what happened during the stop.  Huh?

State v. Whetstone is an appeal from the Licking County where the appellant claims he has no final appealable order.  He’s right!  Send it back down for a new plea and sentencing hearing.

State v. Broyles is an appeal of another Richland County Common Pleas conviction after a jury trial on one count each of burglary (F2) and tampering (F3).  After giving three different reasons he was in the victim’s house when she arrived home (the first to the vic during the initial confrontation prior to fleeing the scene and the last claiming he had been sexually satisfying her for weeks), Broyles challenges the weight of the evidence.  Incredibly, that goes well.  The Court finds Broyles should not have been convicted of the F2 burglary, but rather the F3.  Yay!

State v. Coe comes from the Stark County Common Pleas Court.  Mr. Coe claims (1) the weight and sufficiency of the evidence do not support the jury’s guilty verdict, (2) err in the admission of hearsay testimony, (3) prosecutorial misconduct, (4) improper jury instructions, (5) err in allowing the jury to hear a tape recording during deliberations when it was never moved into evidence and (6) his conviction violates the double jeopardy clauses.  Because the co-defendants were the only persons able to identify Coe, he claims the evidence was insufficient and the weight of the evidence weighed against conviction on the element of identification.  Not so says the Fifth.  The second assignment of error (admission of hearsay) concerns Coe’s MySpace messages.  The trial court’s limitation of the evidence to photos and messages written by Coe did not constitute an abuse of discretion.  The claimed prosecutorial misconduct was vouching for witness credibility, generating sympathy for the elderly victims and introducing photos of the victim’s injuries; none of the instances were objected to.  Plain error analysis, no error.  Coe claims the charge on participating in a criminal gang was incorrect, but it wasn’t.  Finally, Coe claims a tape played for the jury during deliberations was never admitted into evidence, except that it was admitted into evidence.

If you feel it is proper to educate your kids on responsible use of alcohol, you’ll want to read the Fifth District Summary for the week of April 19, 2010.  State v. Shustar details a parent’s responsibility to “supervise” their children while they are consuming alcohol and it defines what “supervise” means in the Fifth District.  Three judgments for the defense out of a total of five cases seems extraordinary.  But then you read the opinions and wonder if they will do much good for the defendants involved.

We start with a victory for the good guys in State v. Slager out of Delaware County.  Mr. Slager was sentenced for theft and receiving stolen property for the same John Deere Lawn mower.  Theft and receiving the same property are allied offenses of similar import.  The matter is remanded to the trial court for further proceedings with instructions to merge the offenses for sentencing.  Further, the trial court is instructed to recalculate the jail time credit.  Appellant and Appellee dispute a difference of five days.

But the fun doesn’t stop there!  State v. Shustar is another win for the defense reversing and entering final judgment in a Coshocton County Municipal Court case.  Ms. Shustar served alcohol to her two children, both of whom were underage.  When the kids went to see friends, they eventually encountered a law enforcement officer who smelled alcohol.  The case was tried to the bench on stipulated facts and the trial judge entered a finding of guilty.  The Fifth District sustained Ms. Shustar’s only assignment of error: The Conviction was Not Supported by Sufficient Evidence.  The court finds the amendment in the statutory language from “accompany” to “supervise” is controlling and, in a case of first impression, finds the parent must supervise for the entire time the juvenile is under the influence.  The Court finds the evidence submitted was that Ms. Shustar was present while her children were drinking the alcohol and, by the time they encounter The Man, they were no longer “under the influence.”

State v. Scott comes from Guernsey County and affirms the trial court’s conviction and sentence after a jury trial on Breaking and Entering and Theft charges.  Mr. Scott testified in a narrative at his trial and claims his counsel’s failure to ask him questions constitutes ineffective assistance of counsel.  Not so, according to the Fifth.  His testimony supported his “I don’t remember what happened defense.”  As for the conviction being against the sufficiency and weight of the evidence, it wasn’t. 

The Court then reverses and remands the trial court’s dismissal of an SB10 petition in State v. Henthorn out of Ashland County.  The State moved, pursuant to Civ. R. 12(B)(1), (2), (4), (5) and (7).  The petitioner failed to respond to the State’s motion to dismiss and the trial court granted the motion.  The trial court concluded appellant’s petition requested declaratory judgment that SB10 is unconstitutional and dismissed for failure to join the Attorney General as a party.  The Court finds the petition is a proper vehicle to challenge SB10’s constitutionality.  The Court then notes that it, as well as, “[v]irtually every Appellate District in the State has upheld the Adam Walsh Act against the identical challenges raised by Appellant.”  We’re not saying, we’re just sayin’.

The Fifth also decided State v. Cassidy, an appeal from the Stark County Common Pleas Court’s dismissal of an SB10 petition.  At the time of his plea in 1991, Mr. Cassidy was not classified as a sexual offender.  He was classified as such in 1998.  In one quick paragraph, the Court says, we’ve heard and overruled these arguments before, and we’re doing the same again.  Good luck with the Supreme Court.

The State of Ohio killed my client today, his name was Darryl Durr.    This was not the first time I have had a client executed, and probably will not be the last.  I guess what was so bothersome about today, is that it does not seem to be a big deal anymore, it comes around once a month in Ohio, kind of like the full moon, and no one pays attention.  When I am at my office in NM instead of here, the only way I know there is an execution is if I put it on the calendar. 

It used to be that we, as defense attorneys would at least be reminded by our colleagues on the listserves that another Ohio death row inmate was executed, but not even a mention anymore.  If it had not been my client, I would not have know.  Let us do whatever we can to keep these executions from coming common place, even if Ohio is trying to make it that way.  I ask you to at least say to one other person today, “Ohio Killed another one today”.  Maybe it will make that person think about it.  Ohio is becoming like Texas, and it greatly saddens me.

My thanks to all the colleagues that have sent notes of encouragement to me today.  It was appreciated. 

I will share one thing about this case, and that is that I was overwhelmed with the support I got from lawyers “who did not have a dog in the fight”  ACLU lawyers Carrie Davis and James Hardiman with the help of Jeff Gamso picked up Darryl’s DNA challenge and ran with it.  There was some good lawyering going on there, with no benefit for themselves, just a belief that what happened to Darryl was wrong.

And as a private practitioner doing this work- -it is hard.  But the Federal PD CHU —Carol Wright, David Stebbins and Allen Bohnert and paralegal Shannon gave me great assistance and support over this last week.  And Kim Rigby from the State PD also jumped in and ran with Darryl’s DNA litigation over the last nine months.  It was greatly appreciated by Darryl and me.

So I say to you, my defense colleagues—Ohio killed another one today, it was my client, and his name was Darryl Durr.

Kate McGarry*

McGarry Law Office

On April 12, 2010, the Fifth District Court of Appeals released seven decisions in criminal cases. 

State v. Robb is an appeal from the Tuscarawas County Court of Common Pleas Affirming the conviction for Unlawful Sexual Conduct with a Minor and the trial court’s decision to allow the State to introduce a note allegedly written by Robb.  Robb argues it was error for the trial court to allow his conviction to stand on the testimony of the complaining witness.  The Fifth dismisses his argument finding the evidence sufficient to support the conviction.  According to the complaining witness, Robb wrote a note confessing to his actions.  In order to authenticate the note, the State introduced a letter written to an ex-girlfriend.  During his testimony, Robb admitted the signature on the letter was his.  The Fifth says this is sufficient to authenticate the letter, which the jury may then compare with the note. (Farmer, Edwards, Gwin)

State v. Snyder is an appeal from the Licking County Common Pleas Court affirming the trial court’s denial of Snyder’s petition for post-conviction relief.  Snyder raises nine assignments of error.  In his first assignment of error, Snyder claims the trial court erred by failing to separately address his second petition for post-conviction relief.  The second petition contained revised arguments contained in the first petition according to the Court.  Therefore, the trial court did not err in failing to separately address that petition.  The Fifth then addresses Snyder’s eight other assignments of error together and find the trial court did not err in failing to grant an evidentiary hearing to Snyder as his claims were barred by res judicata. (Delaney, Gwin, Hoffman)

State v. Williams also comes from the Licking County Common Pleas Court.  The trial court denied his motion to suppress oral and written statements and his consecutive sentence totaling seven years.  First, the Court addresses the sentencing issue.  Williams’s sentence was not contrary to law and was not an abuse of discretion.  No error.  Williams drove himself to the sheriff’s department, was told he was free to leave at any time and was not advised the statements would be used against him.  After he confessed to the crimes the detectives wanted him to, they placed him under arrest.  Once at the county jail, Williams wrote letters to the victim and his family further confessing his actions.  Whoops.  Judgment affirmed. (Delaney, Gwin, Hoffman)

Wilson v. State is an appeal from the Stark County Common Pleas Court’s decision to deny his petition contesting reclassification raising five assigned errors.  The Court addresses the First, Second and Fourth Assignments together.  The Court addresses together and finds SB10 does not violate separation of powers (First Assignment), does not violate the ex post facto and retroactivity clauses (Second Assignment) and does not violate the Double Jeopardy clause (Fourth Assignment).  The Court then disposes of Wilson’s contract clause argument in summary fashion.  Finally, Wilson argues SB10 violates his substantive due process rights because there is no statutory standard of proof to meet before reclassification takes place.  The Court disposes of that argument in summary fashion as well by following the long standing precedent that the consequences of AWA classification are civil, not criminal. (Wise, Edwards, Farmer)

State v. Barnett is an appeal from the Muskingum County Common Pleas Court raising four assignments of error following a guilty plea to one count of aggravated burglary and one count of rape.  Barnett’s first assignment of error claims the indictment contained no mens rea element for the Aggravated Burglary charge.  The Court says the mens rea is purposely (“with purpose to commit any offense”) and the guilty plea waives this argument anyway.  Barnett then claims his plea was not knowingly, voluntarily and intelligently entered because the trial court did not advise him that, if he went the trial, the jury would have to reach a unanimous verdict.  The Ohio Supreme Court and a variety of district courts, including the Fifth, have all said there is no need to inform of jury unanimity, so the Court overrules Barnett’s second assignment of error.  Barnett’s Double Jeopardy argument in the third assignment of error claims rape and aggravated burglary are allied offenses.  The Court says, first, the guilty plea waives that challenge, but, further, rape and aggravated burglary are not allied offenses.  The fourth assigned error claims ineffective assistance of counsel in allowing Barnett to plead to a defective indictment, failing to ensure full advice of trial rights and agreeing to a sentence in violation of Barnett’s Double Jeopardy rights.  Because none of those were found to be errors in assignments one, two and three, they also fail in number four.  Judgment affirmed.  (Hoffman, Edwards, Farmer)

State v. Newberry is an appeal from the Tuscarawas County Common Pleas Court.  The Court finds Newberry’s sentence is not contrary to law and is not an abuse of its discretion thus dismissing Newberry’s only assigned error.  (Hoffman, Edwards, Farmer)

State v. Carnes affirms the judgment of the Licking County Common Pleas Court denying his Motion to Continue.  According to the Court, Carnes’s newly hired counsel failed to file a written motion to continue.  Further, Carnes had already been granted a continuance of his trial date.  Finally, the case had been pending for ten months and there is nothing in the record indicating any valid reason for his failure to retain counsel.  Judgment affirmed.  (Hoffman, Gwin, Delaney)

Two decisions this week in the criminal arena...

State v. Martin is an appeal from a Holmes County Municipal Court after a jury trial resulted in an acquittal on an OVUI charge and the Court admonishing and disagreeing with the jury’s decision in open court and then entering a finding of guilty on the remaining failure to control charge.  Martin’s challenges of the trial court’s finding of guilt are overruled.  Martin argued the only issue presented to the jury was whether or not she was driver.  Because the jury acquitted her of the OVUI, Martin claims the trial court’s decision that she was the driver is inconsistent.  Verdicts don’t have to be consistent says the Fifth.

The second case, State ex rel. Buoscio v. Judge James DeWeese is a petition for writ of mandamus.  Relator, Buoscio, filed a motion with the Richland County Common Pleas Court on September 2, 2008.  After the writ was filed, the trial court ruled on the motion (March 11, 2010).  The writ is moot, costs to relator.  How is that fair?

Here’s your weekly dose of the Fifth for the opinions released on March 29, 2010.

State v. Steiner is an appeal from the Holmes County Common Pleas Court raising manifest weight challenge to appellant’s conviction and arguing a prison sentence imposes an unnecessary burden on the state’s resources.  The Court shoots down appellant’s manifest weight challenge.  When you haggle over the price of an eighth in front of an undercover agent and then sell that eighth all on an audio recording, arguing the marijuana was a gift at trial is not going to fly with the Fifth.  As for appellant’s second assigned error, the Fifth finds trafficking in a small amount of marijuana warrants an eleven month sentence if you have two prior theft offenses and prison would create the least impact on state and local resources.

State v. Pollock comes to us from the Muskingum County Common Pleas Court.  The court affirms Pollock’s conviction for receiving stolen property over manifest weight, ineffective assistance of counsel challenges as well as a challenge against having Pollock’s wife testify against him.  The court finds the weight and sufficiency of the evidence adequate to support Pollock’s conviction.  Pollock claims his counsel was ineffective for not invoking the spousal privilege to prevent his wife from testifying against him at trial.  The Court finds counsel failed to properly object to the testimony of the wife.  However, because there was no objection to her testimony, the Court conducts a plain error analysis and finds the outcome would not have been different, so no ineffective assistance of counsel.

In State v. Mathews, Mathews challenges his sentence after a plea in the Muskingum County Common Pleas Court.  Mathews had agreed to a recommended six month sentence, but the trial court imposed an eight month sentence.  The Court analyses the case in light of Kalish and finds the sentence is not contrary to law and the trial court did not abuse its discretion.  Affirmed.

State v. Reed finds the Fifth District affirming Reed’s convictions in the Fairfield County Common Pleas Court.  On appeal, Reed first claims his plea was not knowing, voluntary and intelligent.  Because Reed failed to raise the issue on direct appeal or in any motion filed in the trial court, the Fifth overrules the assigned error.  Next, Reed claims he was denied due process because his mental illness prevented him from complying with community control sanctions.  The Fifth finds Reed’s no contest plea to new crimes, failure to appear and answer to additional crimes, failure to report to his probation officer, admission to using cocaine and violation of a no contact order is sufficient to meet the State’s burden to prove a violation of community control sanctions by a preponderance of the evidence.  Oh and, by the way, the appeal was untimely filed.  Affirmed.

State v. Wilson is an appeal from the Fairfield County Municipal Court convicting Wilson of assault after a bench trial.  When Wilson brought beer to his terminally ill mother’s house, Moneypenny shoved him back and prevented him from entering.  A struggle ensued and Wilson’s hand ended up around Moneypenny’s throat.  Wilson claims the trial court erred in allowing hearsay evidence into the trial, the evidence was insufficient to support a conviction and the weight of the evidence was inadequate to support a conviction.  The Fifth first finds the trial court did not abuse its discretion in allowing Moneypenny to testify about what Wilson’s mom said.  The Fifth says, because this was a bench trial, any possible error was lessened.  The Fifth further finds the statement was not offered for its truth, but rather to explain Moneypenny’s conduct, so it was not hearsay.  The Fifth then turns to the weight and sufficiency arguments.  Wilson raised self defense at trial, so the Fifth quickly disposes of the elements of the crime of assault.  The Court then finds Wilson had no reasonable belief he needed to defend himself because Moneypenny didn’t push him until he tried to push his way into the house with beer.  Affirmed.