Judge of the Court of Appeals 11th District Candidates

Another big group this week, but a bunch involved pro se appellants who either missed a deadline or messed up the paperwork.

State v. Straw, 2015-Ohio-1059
Straw appeals his consecutive sentences for three counts of Gross Sexual Imposition.  He was sentenced in 2009, and the judge didn’t make the findings required by R.C. 2929.14 before making the sentences consecutive.  Unfortunately those requirements weren’t added to the statute until House Bill 86 took effect in 2011, and it’s not retroactive.  Cannon, Rice, Wright.

State v. DiNardo, 2015-Ohio-1061
Score one for the angry ex-wife.  DiNardo dropped his kid off at school and waited for her to pick up a cell from from her mother and return.  Meanwhile, DiNardo’s ex-wife, who apparently works at the school, sees the van and calls 911 to report an “unwanted guest” who “would not leave.”  Cops show up, find out he has a concealed carry permit, and see a gun sitting on his center console.  Arguments ensue.  The presence of the gun and the 911 call lead to a “code red” school lockdown.  DiNardo drives around the parking lot while cops yell at him and draw their weapons.  He ends up convicted of having a deadly weapon in a school zone, among a few related charges.  His biggest argument is that the 911 call was destroyed before trial.  Testimony at trial is that nobody requested it, so after 90 days they erase it.  The dispatcher is also supposed to “type verbatim as closely as possible” what the caller is saying.  The Court upholds the verdict because there was no evidence that the recording was “materially exculpatory.”  Rice, Wright.

O’Toole dissents, pointing out that the recording would have proved some of the testimony false: the 90-day policy only applies when there is no case pending, the defense did request evidence, and the ex-wife’s testimony about an unwanted guest who wouldn’t leave was false – he was never asked to leave and was simply waiting in a normal parking spot for his daughter.  Quote of the opinion: “If others overreact, should you have to pay the consequences?”

State v. Smith, 2015-Ohio-1063
Burglary, Theft and Receiving Stolen Property can merge as allied offenses (meaning the judge can only impose sentence on one of them) if they’re all part of the same act.  In many cases they are.  In this case they aren’t, because the Burglary was from breaking into the house, but the stolen car was parked outside in the driveway.  The quote of the opinion is the suggestion that things might have been different if the car had been parked in the living room.  Wright, Cannon.  O’Toole dissents, and would have held that all the thefts were part of the same animus.

State v. Lowe, 2015-Ohio-1064
State’s appeal of a motion to suppress evidence.  There is a 4th Amendment exception that allows entry into a home while in “hot pursuit” of a suspect.  The cops were looking for Lowe, but it wasn’t a “hot pursuit”.  Simply having identified a suspect earlier in the day doesn’t grant a continuing right to barge into that person’s home.  The suppression is upheld.  Quote of the opinion: “[a]t that time [the officer] saw Jason on the porch dancing in the window and giving him the finger.”  To answer your next question: yes, he later got tased.  Rice, Cannon, Wright.