11th District Criminal Case Update

Not only am I a week behind, but the court released a huge pile of opinions last week to finish out the quarter.  I’ll gloss over most of them, and hope that the court only releases a small batch tomorrow.  The most notable case was a big defense win in an aggravated murder case last week, so I’ll start with that one.  Later we’ll examine (but not too closely) how not to “hang out” at Burger King.

State v. Weimer, 2014-Ohio-2882
Trial attorney Aaron Baker sets up a juicy softball, appellate attorney Russ Bensing knocks it out of the park.  Bensing already did a big write-up of the case on his own blog, so rather than rehashing I’ll just send you to his blog.

State v. Spears, 2014-Ohio-2695
An interesting Anders case.  The appellate attorney filed an Anders brief, which basically means he couldn’t find any viable issues.  The court reviews the plea, the sentence, and the effectiveness of Spears’s lawyer anyways, and finds everything in order.  The interesting part is the dissent, which notes there might be an issue both with the voluntariness of the plea and with the sentence imposed.  She would have appointed a new appellate attorney to review the case again.  Cannon, Grendell.  O’Toole dissents.

State v. Kuscsik, 2014-Ohio-2697
Kuscsik was busted for cooking meth and charged with Illegal Manufacture and Illegal Assembly.  He argues that the weight of the evidence doesn’t swing towards guilt, and that there wasn’t sufficient evidence.  The Court examines all the testimony and says there was.  Rice, Cannon, Grendell.

State v. Wolf, 2014-Ohio-2698
Wolf tried to pass over a double yellow, and the lady he was passing turned into him.  He appeals the traffic ticket on weight and sufficiency of the evidence.  Affirmed.  Cannon, Grendell, Wright.

State v. Stone, 2014-Ohio-2699
Stone appeals consecutive sentences for a couple counts of Rape and Gross Sexual Imposition.  The line “conduct occurring over a period of time with his minor daughter, who was only eight when her father’s conduct came to light” tells you all you need to know about the facts.  The sentencing judge made all the findings he needed to, and the Court upholds the sentence.  O’Toole, Cannon, Wright.

State v. Jarrells, 2014-Ohio-2703
Jarells got 8 years for a felony OVI and a pursuit that involved stop sticks to blow out his tires when he wouldn’t pull over.  He pled to the OVI and failure to comply with order or signal of police officer, so the appeal just argues that he shouldn’t have gotten the 8 years.  The Court says the sentence was proper.  O’Toole, Cannon, Wright.

State v. Rose, 2014-Ohio-2705
Rose asks the court pro se for permission to file an appeal after missing the deadline.  He doesn’t do it right, so it’s dismissed.  The dissent would have given him some wiggle room for being pro se.  Wright.  Grendell, O’Toole concur in part and dissent in part.

State v. Raia, 2014-Ohio-2707
A win goes to Ravenna attorney Frank Cimino.  Raia was hanging out in Burger King with his legs spread and his junk blowing in the wind, causing one of the offended ladies to comment, “the mouse is back out of the house.”  I’m not sure what that means.  Raia’s Public Indecency charge was raised to a second degree misdemeanor because of his two prior convictions for the same thing.  The trial court wouldn’t let him cross-examine the store manager about a prior sworn statement, and wouldn’t let him cross-examine the two women about their sexual orientation and possible bias towards men. This violates the Sixth Amendment’s  Confrontation Clause, and Raia gets a new trial.  The dissent agrees with the error but would have found it harmless.  Wright, Cannon.  Rice concurs in part and dissents in part.

State v. Coleman, 2014-Ohio-2708
Coleman appeals his Robbery conviction by challenging the manifest weight and sufficiency of the evidence.  Conviction affirmed.  Cannon, Grendell, Wright.

State v. Alexander, 2014-Ohio-2710
Twenty years after his conviction for Aggravated Murder, Alexander is still firing pro se appeals at the court.  His issues were already ruled on, or are way too old, or are just not really issues.  Affirmed.  O’Toole, Cannon, Wright.

State v. Court, 2014-Ohio-2712
Pro se request to file an appeal after the deadline.  She did it right!  But she appeals the forfeiture of some property she was using to deal cocaine.  Forfeiture of property is a civil penalty, not a criminal penalty, and the Appellate Rules only allow delayed appeals in criminal, delinquency, and serious youth offender cases.  Appeal dismissed.  The dissent says that the penalty may be civil in form, but it’s criminal in nature, so it should be considered a criminal case.  The dissent would also like to have had a transcript to review the forfeiture for proportionality to the crime.  Grendell, Rice.  O’Toole dissents.

State v. Baker, 2014-Ohio-2873
The trial court threw out evidence of Baker’s blood sample, which showed .095 grams of alcohol/100 ml.  The trooper didn’t put the sample in the fridge.  You’ve got to follow the procedure or the results aren’t reliable.  The Court affirms, and it’s a win for Ashtabula attorney William Bobulsky.  The dissent argues that the trooper substantially complied with the procedure and disagrees with the majority’s analysis of precedent.  Cannon, O’Toole.  Grendell dissents.

State v. Beckwith, 2014-Ohio-2877
Bar drama leads to a broken jaw, missing tooth, plates in the face and a conviction for Felonious Assault for the guy doing the damage.  He argues prosecutorial misconduct in the line of questioning the prosecutor directed at some of the witnesses, but the Court doesn’t agree.  The manifest weight of the evidence argument doesn’t go anywhere either.  Rice, Wright, O’Toole.

State v. Brown, 2014-Ohio-2878
Brown appeals from her conviction for Conspiracy to Commit Aggravated Murder.  She argues an ineffective trial attorney, weight of the evidence and harshness of her sentence.  The evidence showed her paying $4,000 for a hit and, after she thought the deed was done, giving  instructions for disposing of the body.  Affirmed.  O’Toole, Rice, Wright.

State v. Harrison, 2014-Ohio-2880
Harrison appeals consecutive sentences totalling 9 1/2 years for Pandering Sexually Oriented Matter Involving a Minor and related charges.  The trial court made all the necessary findings, so the sentence is upheld.  Cannon, Grendell, Rice.

State v. McFarland, 2014-Ohio-2883
McFarland appeals the length of his sentence on two counts of Sexual Battery on a ten year old victim.  Affirmed, partially because it was a joint recommendation: McFarland initally agreed to the twelve years as part of the plea deal.  As an interesting side note: he initially missed his deadline to appeal, filed his motion for leave to file a delayed appeal pro se, and it was granted.  Kudos to him for getting it right.  Maybe he’ll take some solace in his victory over the next decade.  Cannon, Grendell, Rice.

State v. Cornelison, 2014-Ohio-2884
Cornelison got 2 1/2 years for each of three counts of Robbery.  He appeals his sentence.  That’s upheld.  He also argues that the trial court improperly imposed court costs because it forgot to advise him that he could be made to perform community service if he couldn’t pay.  The State concedes the error, and the Court modifies the sentence to state that Cornelison can’t be forced to do community service if he doesn’t pay.  Rice, Cannon, Grendell.

State v. Plevyak, 2014-Ohio-2889
Plevyak was convicted of three count of Gross Sexual Imposition.  He argues that the State should not have been allowed to introduce evidence of “other acts” – instances of similar bad conduct other that the instances in the charges.  In most cases the Rules of Evidence disallow “other acts” evidence, but there are exceptions.  Here the Court finds that the other acts were “inextricably intertwined” with the evidence of the charges.  O’Toole.  Cannon concurs with concurring opinion.  Wright concurs in judgment only.

State v. Rachel, 2014-Ohio-2891
Rachel got 16 years for a home invasion, complete with duct taping an old lady, getting caught and stabbed by the old lady’s son, the old lady escaping and then chasing him out of the house with a broom.  He filed a pro semotion to file a delayed appeal, which was denied for being 5 years late.  Now he files a pro se appeal to correct his sentence.  But his sentence is correct.  Cannon, O’Toole.  Grendell concurs in judgment only.