Archive | July, 2012

Ohio Murderer Denied Post-Conviction Relief on Ineffective Assistance of Counsel Grounds

A convicted murderer was denied post-conviction relief by the Meigs County Common Pleas Court.

Paula Rizer had been previously convicted of murder in the shooting death of her husband, Kenneth Rizer, Sr. at the couple’s home.  Rizer was charged with aggravated murder in the death and was eventually convicted of murder during a trial in January 2010.

The defendant filed the petition for post-conviction relief asserting that her counsel was ineffective in not objecting to the testimony of an expert witness who opined that she was not suffering from battered wife syndrome at the time she killed her husband.  The expert had relied, in part, upon inconsistencies in the defendant’s statements.

The court said, “Even if some of [the expert’s] testimony was objectionable and a failure to object could be determined to fall below an objective level of reasonable representation, defendant has failed to prove that . . . the failure to object prejudiced the defense so as to deprive the defendant of a fair trial.”


If you have questions about this issue, or if you need an Ohio Criminal Defense Lawyer for your Ohio criminal appeal or other post-conviction matter, please visit the  Appeals Section of J. Adam Engel, LLC.




Ohio Supreme Court to Review Penalties for Sex Offender Notification Statute

Appeal to Watch on the Sexual Offender Registration Issue:  State v. Howard.  The docket and all briefs are available on the Supreme Court web page.  The case was reported below at 195 Ohio App.3d 802, 2011-Ohio-5693.

This issue in this case involves the sex offender notification statute.  The defendant was convicted for failure to notify, in violation of R.C. 2950.05(A) and (F)(1).   In September 2000, the defendant had been convicted of rape and designated a habitual sex offender.   Pursuant to the Adam Wash act, the defendant was reclassified a Tier III sex offender.

In 2010, the defendant was charged with failure to notify, a felony of the first degree, for failing to provide notice of his change of residence address to the sheriff.

As a result of later Ohio Supreme Court decisions, the defendant’s reclassification as a Tier III sex offender was rescinded and his original classification as a habitual sex offender and the community-notification and registration orders attending that classification were reinstated.

The issue deals with the penalty.  When the original classification and registration requirements are applied, the conviction for failure to notify is a felony of the fifth degree.  The Adam Walsh Act changed the penalty to a Felony of the First Degree.  The court of appeals held that the trial court erred when it convicted the defendant of a first-degree felony instead of finding him guilty of a fifth degree felony.

In its brief, the state argues that “A violation of the registration requirements is a new, separate offense. And the newincreased penalties in R.C. 2950.99 are not being retroactively applied when the offender’s criminal conduct occurs after the effective date of the statute.”

In response, the defendant argues “Under the former R.C. 2950.99 that was in effect when [the defendant’s] duty to notify of a change in residence address first arose in September, 2000, a failure to comply with this dutywould result in a fifth degree felony. R.C. 2950.99, as amended in 2007, increased the penalty for a failure to notify from a fifth degree felony to a first degree felony, creating a new liability.”


If you have questions about this issue, or if you need an Ohio Criminal Defense Lawyer for your Ohio criminal appeal or other post-conviction matter, please visit the  Appeals Section of J. Adam Engel, LLC.


Ohio Supreme Court Allows Public Access to Case Records in Criminal Prosecution

The Ohio Supreme Court issued an opinion about public records in criminal prosecutions.  The court held that public access to court records would not result in publicity that could lead to the inability of a defendant to receive a fair trial.

The case is State ex rel. Vindicator Printing Co. v. Wolff, No. 2012-Ohio-3328. (July 25, 2012).

Facts:  In July 2010, a grand jury returned a 73-count indictment charging seven persons, including current and former public officials, and three organizations with felony and misdemeanor charges, including engaging in a pattern of corrupt activity, conspiracy, perjury, bribery, money laundering, tampering with records, disclosure of confidential information, conflict of interest, filing a false financial-disclosure statement, and soliciting or accepting improper compensation.

As a result of pre-trail publicity, the judge ordered that all filings in the case “shall be under seal with the exception of filings that are clearly procedural and cannot possibly implicate Defendants’ concern about receiving a fair trial.”  The judge issued a supplemental order in which he explained that his “filing under seal protocol” was based on the “significant media coverage” that the criminal cases had attracted and his obligation “to balance the right of the defendants to a fair trial and the right of the public to be informed of these proceedings through the media or through personal examination of the record.”  The judge was concerned with whether “fair and impartial potential jurors can be found . . . i.e., potential jurors without preconceived notions of how this case should be decided that they cannot set aside due to pretrial publicity.”

A newspaper and television station submitted to the judge and the Mahoning County clerk of courts requests to inspect and copy filings and documents submitted to the court in the criminal cases, including those that had been filed under seal.  When relators were not provided access to some of the requested records, they filed a motion for an order vacating the sealing orders. The maintained some records under seal and continued a protocol in which the state would submit to defense counsel, prior to filing, any document that “can be reasonably expected to trigger a concern on the part of  defense counsel that publication of the document will prejudice the impaneling  of an impartial jury.”

The newspaper and television station filed for a writ of mandamus to compel the judge to release all records filed with the clerk of courts in the underlying criminal cases and a writ of prohibition to prohibit him from presumptively closing any proceedings or sealing any documents filed with or otherwise provided to the court.

The newspaper and television station claimed entitlement to the sealed records based on the Rules of Superintendence, the Public Records Act, the United States and Ohio Constitutions, and the common law.  The Ohio Supreme Court decided the case based on the Rules of Superintendence, which provide for public access to court records.  Under these Rules, “[c]ourt records are presumed open to public access.”  The court explained that “to qualify as a case document that is afforded the presumption of openness for court records, the document or information contained in a document must merely be ‘submitted to a court or filed with a clerk of court in a judicial action or proceeding’ and not be subject to the specified exclusions.”

The Ohio Supreme Court rejected the claim that access the the records would substantially prejudice the defendants’ right to a fair trial. The court said:  “There was not clear and convincing evidence to establish that the  prejudicial effect of pretrial publicity generated by public access to the [records] would prevent them from  receiving a fair trial.”  The court added:  “the constitutional right of the defendants to a fair trial can be protected by the traditional methods of voir dire, continuances, changes of venue, jury instructions, or sequestration of the jury.”


If you have questions about this issue, or if you need an Ohio Criminal Defense Lawyer for your Ohio criminal appeal or other post-conviction matter, please visit the  Appeals Section of J. Adam Engel, LLC.



Appeals Court Upholds Search of Person Running Down the Street in High Crime Area

The Twelfth District Court of Appeals has upheld the search of a suspected drug dealer observed running in a high crime area.

The case is State v. Jimenez, 2012-Ohio-3318.

The defendant was convicted of possession of heroin.  He argued that the evidence obtained against him was seized in violation of the Fourth amendment.

The facts are that a Franklin Police Officer Cotton was patrolling an area with a high rate of crime and drug activity.  During this patrol, the officer observed the defendant running “very hard” down a sidewalk.  He was wearing baggy jeans, a white t-shirt and did not appear to be exercising or running recreationally or being chased by anyone.  The officer recognized the defendant as a known drug trafficker.

The Defendant was stopped and patted down.  During the pat-down, the officer saw that the defendant’s pants contained a side cargo pocket that was “gaping open.”  Inside this pocket, “there was a fragment of a yellow plastic grocery bag tied into a bundle.  The bag appeared to be from the Dollar Store, which was approximately three blocks from their location.  The bag was partially transparent and Cotton saw four gel caps inside the bundle.  Cotton testified that he immediately believed this bundle and gel caps contained illegal drugs because this is a common way to package heroin and cocaine.  Cotton seized the bundle and gel caps and arrested appellant.  A subsequent test revealed that the gel caps contained heroin.”

The court concluded that, based on the totality of the circumstances, the officer had reasonable suspicion to conduct an investigatory stop.

The evidence presented at the suppression hearing established that appellant was running “very hard” down a sidewalk, wearing baggy jeans and a white t-shirt, and did not appear to be exercising or running recreationally.  Moreover, the area in Franklin in which appellant was detained is a high crime area that is known for drug activity.  Cotton is an experienced police officer and has received specialized drug training.  Further, Cotton was informed by his colleagues and an informant that appellant was involved in drug trafficking.  Cotton testified that as he approached appellant in his vehicle, he was able to view his face and he immediately recognized appellant as a known drug trafficker.  In light of these circumstances, we find that Cotton possessed reasonable suspicion of criminal activity to detain appellant.

The court also held that the pat-down was proper for officer safety reasons, and that the seizure of the drugs was proper under the plain view doctrine.



Ohio Supreme Court Holds that Mistrial is Not Automatically Required When Juror Does Research

A judge incorrectly declared a mistrial after learning that a juror had done outside research during deliberations.

The case is State v. Gunnell, Slip Opinion No. 2012-Ohio-3236.

This case is notable because it has been tried and then reversed by the court of appeals on three separate occasions.

The defendant, along with co-defendants, was convicted of murder in connection with a robbery in Clark County.  The initial conviction was reversed.

During a retrial, the jury asked the court to define a word in the instructions.  The court did not respond to the jury’s request.  One of the jurors was later found with two pieces of paper, one of which contained a definition of the word and the other a printout of legal analysis of the charges.  Counsel for the defendant agreed that a curative instruction would be an appropriate response.  Over defense counsel’s opposition, and without examining the juror about the degree of  her prejudice, if any, the trial judge declared that the juror had been “irreparably tainted” and declared a mistrial.

The defendant moved to preclude retrial on double jeopardy grounds, asserting that there had been no manifest necessity for a mistrial.  The trial court denied that motion and scheduled the case for retrial. The defendant was, again, convicted at a third trial.

According to the court, “the key issue in this case is whether the trial court acted unreasonably in addressing juror misconduct and in determining that a manifest necessity existed for a mistrial.  If so, double jeopardy is implicated and bars retrial.”

The law on mistrials is that there is a wide range of possible justifications for declaring a mistrial and that the question of whether a manifest necessity exists is more easily answered in some cases than in others.  When a mistrial is predicated on juror misconduct, the trial court finding of manifest necessity will be usually be upheld, but, the court noted, the caselaw establishes that a reviewing court must be satisfied that the trial judge did not act irrationally or irresponsibly.  In other words, “a trial judge’s determination of possible juror bias should be given great deference only upon the appellate court’s  satisfaction that the trial judge exercised sound discretion in determining whether juror  bias existed and whether it could be cured.”

In terms of this case, the court noted that “the mere specter of bias is [not] a manifest necessity that warrants mistrial. In fact, quite the opposite is true.”  Although it was error for the juror to conduct outside research, “it was also error for the judge to make no more than a limited inquiry of the juror—an inquiry that merely established the misconduct, not any prejudice from it.”

As a result, declaring a mistrial was an error.  Under the Double Jeopardy Clause, once a jury has been impaneled, a defendant cannot be re-tried for the same offense unless a mistrial is declared for proper reasons.  Because the original mistrial was improper, the Double Jeopardy Clause barred the third trial, and the conviction at that trial was vacated.


A Juror Yelling Out the word “Guilty!” in the Jury Room is not Grounds for Mistrial

A Discharged juror who told the other members of the jury that the defendant was guilty was not cause for a mistrial, says the The Ohio Fifth Appellate District.

The case is State v. Johnson, 2012-Ohio-3227.

The Defendant was charged with felonious assault with a repeat violent offender specification.

During voir dire, a break was taken prior to the impaneling of the jury. Before the break, the trial court gave the usual admonitions to the jury, and specifically stated, “Do not form or express any opinion on the case,” as well as “Do not discuss the case among yourselves or with anyone else.”

However, one juror yelled out the word “Guilty!” in the jury room. No potential juror told the court, when questioned, that the statement had affected their ability to fairly decide the case.

The appeals court noted that the granting of a mistrial is necessary when a fair trial is no longer possible. The Due Process Clause of the Fourteenth Amendment to the United States Constitution requires that a defendant accused of a state criminal violation shall be tried before a panel of fair and impartial jurors. The law is clear that a jury is obligated to decide a case solely on the evidence, and any communication or contact outside the courtroom or jury room about the matter at trial between a juror and another person, and any independent inquiry or experiment by a juror concerning the evidence or the law, constitutes juror misconduct. In addition, juror misconduct includes a juror forming an opinion as to guilt or innocence before all the evidence is presented.

However, a new trial is not required every time a juror has been placed in a potentially compromising situation. In this case, the Fifth District concluded that a mistrial was not necessary.  The trial court told the jurors about the juror’s removal. The trial judge instructed the jury that “in the United States system of justice there is a presumption of innocence, and a person accused of a crime is presumed innocent until proven guilty beyond a reasonable doubt, and the burden is on the prosecution to prove each and every element of the offense beyond a reasonable doubt, and at this point in time that presumption of innocence exists.”  He also told the jury that he had concluded “that all of you understand that these individuals are innocent until proven guilty, and that [the] Juror’s behavior and comment has not influenced you in any way, shape or form with respect to these proceedings; may be as to your opinion of him but not to these proceedings.”



Ohio Court Appears Uncomfortable Reviewing Explicit Facebook Messages

Need a good chuckle?  Check out this entertaining opinion from the Twelfth District Court of Appeals on Monday.  It is fun to watch the judges try to “translate” an explicit Facebook chat into polite, publishable, and formal English.  The court’s grasp of the obvious here, despite the generation gap between the judges and the Defendant and victim, is also fun and impressive.

The case is State v. Paul, 2012-Ohio-3205.


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Twelfth District Splits on Whether Restitution in Misdemeanor Case Limited to $500

A decision from the Twelfth District Court of Appeals raises an interesting issue about restitution.

The case is State v. Hipsher, 2012-Ohio-3206.

In this case, the defendant was convicted of burglary, a fourth-degree felony, and receiving stolen property, a first-degree misdemeanor.  At a restitution hearing, the victim testified that the items stolen from her residence was worth $6,000, based upon her research on eBay.  At the conclusion of the hearing, the trial court ordered restitution in the amount of $6,000.

The Defendant argued that because the only charge relating to unlawful possession of the victim’s property was a misdemeanor, the trial court could only order restitution in an amount less than $500. This is because a misdemeanor conviction of receiving stolen property under the statute applicable in this case involves the possession of stolen property with a value of less than $500.

The Twelfth Distrcit had previously held that when a defendant is convicted of the misdemeanor charge of receiving stolen property “the amount of restitution to be paid to the victim of the offense must be less than $500.”  State v. Stiles, 12th Dist. No. CA2011-01-003, 2011-Ohio-4173, ¶ 7.

The court in this case concluded, however, that the $6000 restitution figure was permissible because the defendant was convicted of both a misdemeanor and a felony; a felon can be ordered to make restitution to the victim of the offender’s crime in an amount based on the victim’s economic loss.

The interesting aspect of the case is the concurring opinion of Judge Robin Piper.  Judge Piper would apparently over-rule the prior opinions and permit a victim to receive full restitution regardless of whether or not the crime charged is a misdemeanor or felony.


Lycurgus Group Statement on Penn State

A quick break from Ohio appeals.

The Lycurgus Group has released a statement on the Penn State Freeh Report.

The key idea:

The Freeh Report on the sexual abuse allegations at Penn State has underscored the fact that schools sometimes face athletics-related problems that internal staff and procedures are not equipped to handle.  The Lycurgus Group believes that the Report illustrates the need for schools to be increasingly aware that internal investigations conducted by objectively credible people may be subject to conflict of interest criticism. While such criticism is often unfair — institutions are unlikely to risk excellent reputations for any single student, faculty member, or staff member – it remains an avoidable fact.





Ohio Criminal Appeals Blog Publicly Launched

J. Adam Engel, LLC has officially announced the launch of this Ohio Criminal Appeals blog.

We hope that this Ohio Criminal Appeals Blog will be helpful to attorneys and non-attorneys alike.