Fifth District Summary Week of November 3, 2014

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State of Ohio v. Russel Hale: Mr. Hale was sentenced to nine months each for two counts of Aggravated Trafficking in a State Penal Institution. For one of the counts he was to pay $1,000 fine and a $5,000 fine for the other. Additionally, he was sentenced to six years in a State Penal Institution for one count of Engaging in a Pattern of Corrupt Activity.

In his appeal he argued that his trial counsel provided ineffective assistance of counsel by failing to submit an affidavit of indigency to waive mandatory fines. The failure to file an affidavit of indigency prior to sentencing may constitute ineffective assistance of counsel if the record shows a reasonable probability that the trial court would have found Defendant indigent and relieved him of the obligation to pay the fine had the affidavit been filed.

The appellate court sustained this assignment of error. They found a reasonable probability that the trial court would have found Hale indigent and unable to pay the mandatory fine for his felony drug offense had defense counsel filed an affidavit of indigency prior to sentencing. Mr. Hale did state he was unable to pay the mandatory fine. In his affidavit submitted in support of appointment of counsel it was indicated that his only source of income was Social Security Disability. Additionally his counsel made numerous assertions at the sentencing hearing regarding defendant’s employment prospects, financial assets, health and financial obligations.

State of Ohio v. Anthony L. Kilbarger: Mr. Kilbarger was stopped by Ohio State Troopers after they received a call from a truck driver who reported that a white pickup attempted to drive in between him and another truck, straddling both lanes. He also said he observed the pick-up truck dropping to speeds as low as 35 m.p.h before speeding up to 70 m.p.h. and cutting off other drivers. One of the troopers reported that Mr. Kilbarger was “without a doubt, noticeably impaired” due to a number of factors: Years of experience on road patrol and as an “APAD instructor;” the strong odor of an alcoholic beverage on appellant’s breath; appellant’s slurred speech, glassy, red eyes and flushed cheeks; appellant’s “lethargic maneuvers;” appellant’s untruthful statements about his alcohol consumption; his extremely poor performance on the standardized field sobriety test; and appellant’s unsteadiness on his feet. She testified that Mr. Kilbarger was hammered. Mr. Kilbarger submitted to a breath test at the station and the result came in at a .201.

Mr. Kilbarger testified on his own behalf at trial and admitted he had prior OVI convictions and described himself as an alcoholic. He stated that he drank 11-12 beers and two vodka drinks evenly spaced from noon to 8:15pm, that he was 5’11”, weighed 210 lbs, and had nothing to eat the entire day. He testified that after he was stopped by the trooper but before the trooper reached his vehicle he drank and swallowed approximately 9 ounces of mouth wash from a full bottle of “Scope” in the console of his vehicle. He also testified that he had a titanium coil in his head from a brain aneurysm in 2005 that caused him sometimes to be “not functional” in that he falls down, and has difficulty thinking, reasoning, and reacting. He further stated that he and heart trouble and GERD (gastro esophageal reflux disease). Finally he testified that alcohol played no role in the physical difficulties readily apparent in the videotape of the stop. He said his driving wasn’t as erratic as the trucker said, and blamed it on his use of a Bluetooth while driving. Regarding his performance on the field sobriety tests, he said he was “confused” about the trooper’s instructions.

At trial Mr. Kilbarger called an expert who testified that based on the appellant’s height and weight, the brain coil, the GERD, the aneurysm, the self-reported 11 beers and vodkas, plus 9 ounces of scope mouthwash, the breath test should have been less than .020 to as high as .133 and the 9 ounces of scope would elevate the result to .149. He stated that under no circumstances could Mr. Kilbarger have tested a .201. The expert described his method of arriving at a breath alcohol concentration as “retrograde extrapolation.”

The trial court ruled that the expert could not testify about retrograde extrapolation and the general reliability of the breath testing instrument, but could testify as to the effect of the GERD, consumption of Scope, and what appellant would have to consume to reach a .201 result. The expert then testified on behalf of Mr. Kilbarger that he should have tested at a .08 or below and to get a .201, appellant would have had to consume 14.6 to 21.4 light beers.

The state consolidated three OVI counts. The first two counts were from a single case and were for “impaired driving” and “per se high-tier result.” The third count was from a later case regarding the same incident and was for a “per se low-tier result”. The parties also stipulated that Mr. Kilbarger had five prior convictions for OVI and specifications for having 5 or more OVI convictions in the last twenty years were added to each count.

In his appeal, Mr. Kilbarger raised three assignments of error. First he contended that the trial court improperly permitted the three counts of OVI to be tied together, because it was prejudicial to introduce evidence from the other joined case. Second he asserted that the trial court improperly prevented his expert from testifying about retrograde extrapolation as it relates to the time of driving. Third he claimed that his due process was violated when the jury heard about his 5 prior convictions. He argued that he was willing to stipulate to the prior convictions but they should not have been revealed to the factfinder as prior convictions of OVI.

The Court of appeals overruled all three assignments of error. For the first assignment of error they point to an Ohio statute that states that per se and impaired counts can be tried together, and that the state may present evidence on both offenses in a single trial.

In regards to the second assignment of error, the appellate court stated that the admissibility of evidence, including expert testimony, is a matter within the sound discretion of the trial court. The rules of evidence allow for the admission of scientific testimony, but it does not mandate such admission. Mr. Kilbarger was essentially arguing that being prevented from presenting a defense was a due-process violation. However, the court of appeals noted that he was not deprive of the right to present a defense. The trial record showed that his expert testified exhaustively as to his opinion that Mr. Kilbarger’s blood and breath alcohol content was considerably lower than the test indicated. A reviewing court cannot disturb evidentiary decision in the absence of an abuse of discretion resulting in material prejudice In this case, the appellate court found that an expert not being permitted a fourth opinion a fourth time regarding the same issue did not rise to the level necessary to indicate prejudice or an abuse of discretion.

Finally for the third assignment of error the court noted that where the existence of a prior offense is an element of a subsequent crime, the state must prove to the jury the prior conviction has been established beyond a reasonable doubt in order to find the defendant guilty on the second offense. Because the prior convictions was an essential element of the crime and had to be proved beyond a reasonable doubt, Mr. Kilbarger’s history of OVI convictions was relevant and admissible to the jury.

State v. Casey P. Hakes: Mr. Hakes was charged with improperly handling firearms in a motor vehicle. An officer had discovered a firearm in a pocket on the back of the front passenger’s seat of Mr. Hake’s vehicle after stopping him for erratic driving. On appeal, Mr. Hakes argued the unavailability of a witness denied him the right to confront the witness. The witness he was speaking of was his brother Tyler Hakes who was in the passenger seat during the traffic stop. During the opening statement, the defense counsel argued that Casey Hakes did not have any knowledge that the firearm was in the vehicle, and his brother would testify he had placed the firearm in the vehicle unbeknownst to him. The judge appointed Tyler counsel after he was informed in his chambers that the State was contemplating charging Tyler. After receiving counsel, Tyler invoked his Fifth Amendment privilege against self-incrimination. The essential conflict on appeal was between Tyler’s Hakes’ right to invoke his Fifth Amendment privilege versus Casey Hakes’ right to confront his accusers and present witnesses on his behalf.

The court had to employ plain error analysis. In order to prevail under a plain error analysis, the appellant bears the burden of demonstrating that the outcome of the trial clearly would have been different but for the error. Plain error is only found under exceptional circumstances and is only to prevent a manifest miscarriage of justice. Casey Hakes argues that the trial court’s inquiries and efforts were insufficient as to why Tyler Hakes was invoking his Fifth Amendment privilege and that such an inquiry would have proved his fears of self-incrimination were groundless. The appellate court disagreed and found no plain error. The testimony showed that the state prosecutor was concerned with Tyler’s role in providing Casey the weapon after Casey testified that he had received it as a gift from him. This was sufficient reasoning to invoke his Fifth Amendment privilege.

State of Ohio v. Frank Morris, Jr.: In 1996, Mr. Morris was convicted of domestic violence and was represented by counsel. He later filed a motion to withdraw plea through different counsel in 2004. He argued that he was not aware that he would be prohibited from owning or possessing a firearm, and that such affected his ability to obtain employment. However, the trial court denied his motion to withdraw plea. In 2005, he filed a motion to reconsider through a third attorney who ended up withdrawing as counsel. In 2013, he filed a Petition for Post-Conviction Relief and the trial court denied it finding that he had failed to meet the requirements of post-conviction relief because it was not timely and all the issues had been previously ruled on. Finally, Mr. Morris appealed the trial court denying his motion for relief from judgment. In his motion he claimed ineffective assistance of counsel because his attorney failed to advise him that he would be prohibited from carrying a firearm. However, res judicata, barred him from raising an issue in a petition for post-conviction relief if he or she could have raised the issue on direct appeal. They noted that in order to survive preclusion by res judicata a petitioner must bring new evidence that would render the judgment void or voidable and also show that he could not have appealed the claim based upon the original information contained in the original record. Mr. Morris made the same argument in his Motion to Withdraw his plea, which was previously considered fully and denied by the trial court. Therefore the appellate court found no error in the denial of Mr. Morris’s motion for relief from judgment

State of Ohio v. Shane Roush: Mr. Roush filed a pro se motion to correct the trial court’s sentencing for the offenses of attempted aggravated murder and felonious assault. He did not argue this on direct appeal. In his motion, he argued that the trial courts sentence was void and illegal because it imposed mandatory prison terms for the charges that were not authorized by statute. The appellate court agreed that the statute for attempted murder provides a range of possible sentences rather than the fixed sentences for murder and aggravated murder. However, they did not find the trial court’s sentencing to be illegal because even though they stated they were imposing a mandatory sentence, it was still within the range of possible sentencing for attempted murder. Furthermore, since Mr. Roush did not raise this claim on direct appeal the motion was barred by res judicata.

State of Ohio v. Shane W. Brown: Police officers were told by a burglary suspect, that the stolen property was traded to Mr. Brown in exchange for heroin. The suspect was eventually charged with burglary and the police obtained a search warrant for Mr. Brown’s residence in order to locate the property from the burglary. Mr. Brown was charged with aiding and abetting possession of heroin, aiding and abetting trafficking in heroin in a school zone, aiding and abetting possession of a Schedule IV drug with prior felony drug offence, and aiding and abetting receiving stolen property. The counts of possession and trafficking in heroin both contained forfeiture specifications. The Jury found Mr. Brown guilty on all counts and forfeiture specifications and the trial court sentenced him to seven years in prison. Mr. Brown was also arrested for returning a vehicle to a seller that he test drove with a damaged bumper. When the police searched him they found Alprazolam prescription pills and $3,597.00. He was indicted on one count of possession of a Schedule IV drug and was found guilty. The two cases were jointly tried and the judge held that both sentences were to be served concurrently.

Mr. Brown filed a direct appeal raising issues of ineffective assistance and merger. The appellate court denied his ineffective assistance claim but did conclude that his convictions for possession and trafficking in Alprazolam should have been merged as allied offenses. Following Remand the trial court issued a resentencing entry.

In the meantime, Mr. Brown filed a Petition to Vacate or Set Aside Judgment of Conviction and Sentence for both cases. The trial court issued a judgment entry overruling appellant’s motion without a hearing finding the petition to be untimely and barred by res judicata. Mr. Brown appealed because the judge who denied the petition and was in fact the assistant prosecutor who prosecuted the case. He argued that the trial court abused its discretion in denying his post-conviction petition. The appellate court disagreed noting that a petition for post-conviction relief will be granted only where the denial or infringement of constitutional rights is so substantial as to render the judgment void or voidable. It does not provide a petitioner a second opportunity to litigate his or her conviction, nor is the petitioner automatically entitled to an evidentiary hearing on the petition.

The appellate court found that Mr. Brown’s arguments were limited and failed to address his failure to comply with a requirement that the petition be filed within 180 days after the date the trial transcript is filed in the court of appeals. They also stated that even if his arguments were to reach the merits they are barred by res judicata.

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