11th District Criminal Appeals Update State v. Green, 2015

Hello strangers!  It’s been awhile.  I’ve been rebuilding and reorganizing my web site, but seeing as it’s been a light few weeks in the 11th it’s a good time to get back at it.  I’ll start off with one from the 8th District, because it’s mine, and I won, and I’m the boss around here so I can do that sort of thing.

State v. Green, 2015-Ohio-4078, Cuyahoga County
Several years ago, Green’s boyfriend perped on her two daughters.  He went to prison.  He got out.  She invited him back into the home.  He did it again, and Green lands two consecutive three-year sentences for Child Endangering.  The trial court is supposed to make certain findings before imposing consecutive sentences, one of which could be the defendant’s “history of criminal conduct.”  That’s what the court found here – except that she doesn’t have a criminal history.  The court either a) imputed the boyfriend’s criminal history to her, or b) interpreted the word “history” to include “the present.”  The Court sends it back for resentencing, because a) you can’t be held criminally responsible for a crime you didn’t commit, and b) the dictionary.  E.A. Gallagher, Blackmon.  S.C. Gallagher dissents, opining that “[t]he majority’s conclusion that ‘criminal conduct must be limited to conduct wherein an adjudication has been made that an individual has, in fact, committed a crime’ is judicial legislation, reading modifiers into statutes where none exist.”

The Prosecutor ran with that line and has asked the Ohio Supreme Court to take this one, claiming that you don’t have to actually commit a crime to engage in criminal conduct.  But at least they didn’t argue against the dictionary.

State v. Armstrong, 2016-Ohio-526, Portage County
Armstrong pled guilty to Murder.  Straight Murder only carries one possible penalty – life in prison, with parole eligibility after 15 years.  The court sentenced him to life without possibility of parole after 15 years.  This was likely a typo, as the judge stated the law correctly at the plea hearing.  The Court sends it back for correction.  Cannon, Rice, Grendell.

State v. Main, 2016-Ohio-527, Portage County
Main is serving  twelve years in prison after entering a guilty plea to multiple counts of pandering sexually oriented matter involving a minor.  He filed a pro se appeal of that sentence 22 days late, claiming he wasn’t advised of the 30 day deadline.  Unfortunately he signed a paper at his plea hearing saying he understood the 30 day deadline.  Appeal dismissed.  Cannon, Rice, Grendell.

State v. Lusane, 2016-Ohio-267, Portage County
Lusane was convicted of OVI offenses with five prior OVIs.  That makes this time around a felony, and he ended up with eight years in prison.  In any kind of case that relies on prior convictions for enhancement, those prior convictions must not be “constitutionally infirm” or they don’t count.  For example, if he pled to any of the prior 5 without a lawyer, that one doesn’t count – and that would drop his current charge to a misdemeanor.  In this case, he claims the municipal court in one of his priors didn’t hold a plea hearing that conformed to the rules.  The courts have already held that the only constitutional infirmity that matters is not having a lawyer, so his conviction stands.  He also argues that adding a Repeat Offender specification lets the State punish him twice for the same conduct, but that argument has been laid to rest before.  Wright, Cannon.  O’Toole dissents, because even though SCOTUS has addressed constitutional infirmity in this type of situation, they only analyzed the United States Constitution.  The Ohio Constitution actually offers more protection, and that’s what this case should be measured under.  “Depriving a citizen of his or her freedom is a serious matter. All possible due process should be afforded a citizen when faced with this prospect.”