Fifth District Summary for the Week of October 4, 2011

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State v. Sandy: This appeal of two convictions for receiving stolen property arises out of Ashland Co. You know your case is D.O.A. when the Court notes in the first paragraph of the facts that “the only time the appellant is not committing offenses is when he’s locked up.” Sandy appeals only the five-year sentence of community control, arguing that the trial court abused its discretion and that a two-year sentence was more appropriate. This case is noteworthy for two reasons. First, because of Sandy’s argument as to why the sentence was an abuse of discretion; he argues that there is no way he can successfully complete a half decade of community control and that imposition of such a sentence is setting him up for failure. Second, Sandy actually asked for five years of community control so that he had the “chance to prove them wrong so that [he] could make it.” Here’s an idea, don’t ask for five years of community control and then appeal it when the court gives it to you. Sandy’s assignment of error was overruled.

State v. Wyrick: This appeal arises out of Delaware County after Wyrick was denied a change in plea after sentencing. However, not even a fantastic lawyer and his amazing law clerk could overcome the record. While Wyrick contends that there were several aspects of his sentence he did not understand, and that his first criminal defense lawyer in Delaware did not properly advise him, the trial court found his testimony to lack credibility. The Fifth District agreed and Wyrick’s well written appeal was denied.

State v. Agosta: This case arises out of convictions for abusing harmful intoxicants in Fairfield County. How does one get convicted of abusing harmful intoxicants you may ask? Well, it’s not hard when an officer discovers one passed out behind the wheel at a stop sign with an air canister in your lap. And it gets weirder. The Fifth District doesn’t rule on Agosta’s assignments of error because of a very serious error: the Court was delivered a trial transcript but the judgment entry indicates Agosta entered a plea of guilty. Rut-roh. Hopefully, the trial court can figure this one out on remand.

State v. Smith: This vehicular homicide case arises out of Stark County. Smith appealed her conviction on the grounds that her license suspension was inappropriately imposed and that the trial court was wrong in not granting a mistrial and acquittal. The facts of this case are more interesting than the analysis, as Smith ran over an acquaintance in a Speedway parking lot. The victim then, while being treated, said that “the bitch pretty much ran me over.” Officers also had a good time trying to arrest Smith. They had to kick in the door after someone claimed that she didn’t live there. Luckily for Smith, the trial court did improperly impose her license suspension at the wrong hearing. Further, she was only sentenced to 18 months. The Court overruled her other assignments of error.

State v. Hall: This search and seizure case arises out of Stark County. Some officers were trying to canvas a neighborhood to search for clues in a band robbery. They encountered Hall, recognized him from previous encounters, and decided to see if he had any useful information. Feeling that he had no other option, Hall consented to a Terry pat-down. He also is said to have consented to searches of his pockets after the officer felt a lump in his pants. Of course, that lump turned about to be crack cocaine. The Court found his consent to be valid and thus, his conviction stands. Hopefully, Hall’s attorney made him write 1000 times on the black board “I will not consent to searches of my person.”

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