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Ohio Supreme Court Holds That Attorney Is Required for Resentencing Hearing

The Ohio Supreme Court has held that a defendant is entiled to an attorney at a resentencing hearing. The court explained that “a resentencing hearing is a critical stage of a criminal proceeding to which the right to counsel attaches.”

The case is State v. Schleiger, Slip Opinion No. 2014-Ohio-3970.

In this case, an appellate court determined that the trial court did not properly impose postrelease control. Therefore, the case was remanded to the trial court for resentencing.

At the resentencing hearing, the court offered to appoint counsel for the defendant, who had represented himself during the appeal. The defendant told the court that he wanted to represent himself.

The trial court then imposed the same sentence, this time including the statutorily requiredthree years of mandatory postrelease control upon release from prison.

The Right to Counsel is guaranteed by the Sixth Amendment ot he United States Constitution. A defendant is entiled to counsel during “Critical Stages”
of criminal proceedings.

In Gardner v. Florida, 430 U.S. 349, 358, (1977), the U.S. Supreme Court explained that sentencing is a critical stage of the proceedings, and stated that “[t]he defendant has a legitimate interest in the character of the procedure which leads to the imposition of sentence even if he may have no right to object to a particular result of the sentencing process.”

The Ohio Supreme Court reasoned that “a resentencing hearing held for the limited purpose of properly imposing statutorily mandated postrelease control is a critical stage of a criminal proceeding.” This is because the terms of postrelease control are a part of the actual sentence.

The court explained that an attorney may be useful at the resentencing hearing:

counsel’s presence assures that the court complies with the directives of the statute, that it does not exceed the scope of the hearing, that the defendant understands the imposition of postrelease control, and that issues are properly preserved for appellate review.

In this case, however, the trial court acted appropriately in resentencing the defendant without an attorney because the defendany knowingly, intelligently, and voluntarily waived his right to counsel.

Justice Lanzinger wrote a dissenting opinion. Justic Lanzinger believes that “An attorney is unnecessary at this stage of proceedings because at most, the court is” correcting a prior decision. “The hearing is not de novo and is limited to the performance of a ministerial act.”



Defendant Who Wins An Appeal Cannot Receive Harsher Sentence Motivated By Retaliation Or Vindictiveness

An Ohio Court of Appeals has held that a defendant who wins an appeal cannot then receive a harsher sentence motivated by retaliation or vindictiveness by the trial judge.

The case is State v. Seymour , 2014-Ohio-72.

In 2011, the defendant was sentenced to 13 years in prison after pleading guilty to seven counts in the Butler County Court of Common Pleas. The indictment included one count of domestic violence, one count of aggravated burglary, two counts of assault, one count of grand theft, one count of failure to comply with an order or signal of a police officer, and one count of violating a protection order.  The aggravated burglary conviction accounted for six years of that prison term.

The court of appeals reversed part of his sentence in 2012, holding that the domestic violence, aggravated burglary, and violating a protection order offenses were “allied offenses of similar import that should have been merged” for a single sentence.

The case was sent back to the Common Pleas Court for resentencing.  The state chose to proceed under the aggravated burglary charge.  The court imposed a seven year sentence on this count – one year more than the prior sentence.

The Defendant again appealed.  He alleged that the trial court violated his due process of law when, motivated by retaliation or vindictiveness for a defendant’s successful appeal, the court resentenced him to a harsher sentence.

The court of appeals agreed.  The court noted that there is a presumption that an enlarged sentence was the product of vindictiveness by the trial court.  The court explained:

Although a court may still impose an enhanced sentence on remand, it must demonstrate that the enhanced sentence was not motivated by vindictiveness toward the defendant for exercising his rights. Thus, in order to ensure that a nonvindictive rationale supports the enhanced sentence . . . whenever a judge imposes an increased sentence after a successful appeal, there is a presumption of vindictiveness that can be rebutted only by objective information in the record justifying the increased sentence.

In this case, the defendant was entitled to a new sentencing hearing because the same trial judge presided over both sentencing hearings, but failed to explain the rationale for the enhanced sentence. At the new hearing, if the trial court decides to impose a harsher sentence than the sentence imposed originally, then the trial court must affirmatively state the reasons for imposing the harsher sentence. Those reasons may come to the judge’s attention from a variety of ways, including a new presentence investigation, the defendant’s prison record, or other sources.



Ohio Supreme Court holds that Postrelease Control Can’t Be Imposed Sentence When Judge Fails To Impose At Sentencing

The Ohio Supreme Court has held that when a judge fails to properly impose statutorily mandated postrelease control as part of a defendant’s sentence, the postrelease-control sanction is void.

The case is State v. Hold croft, Slip Opinion No. 2013-Ohio-5014.

In 1999, the Defendant was found guilty of aggravated arson and arson, pursuant to a jury verdict.   The trial judge imposed a prison term of ten years for Holdcroft’s aggravated-arson offense and a prison term of five years for Holdcroft’s arson offense. The trial court ordered that the prison terms be served consecutively.

The issue in this case arose because the trial court notified Holdcroft that a postrelease-control sanction (a/k/a parole) would be imposed, but it failed to state the duration of the sanction and did not state whether it was part of the sentence for aggravated arson, arson, or both offenses.

At a resentencing hearing, the trial court also imposed a mandatory term of five years of postrelease control.

The Ohio Supreme Court first asserted that the trial court could not resentence the Defendant in order to impose postrelease control once the defendant has served his entire sentence of incarceration.  The court said:  “[W]hen a judge fails to properly impose statutorily mandated postrelease control as part of a defendant’s sentence, the postrelease-control sanction is void.”

The court emphasized the importance of finality to an offender in setting forth the rules for review of sentences:


First, when a sentence is subject to direct review, it may be modified; second, when the prison-sanction portion of a sentence that also includes a void sanction has not been completely served, the void sanction may be modified; and third, when the entirety of a prison sanction has been served, the defendant’s expectation of interest in finality in his sentence becomes paramount, and his sentence for that crime may no longer be modified. Put another way, either the defendant or the state may challenge any aspect of a sentence so long as a timely appeal is filed.  . . . But once the time for filing an appeal has run, Ohio courts are limited to correcting a void sanction. And once the prison-sanction portion of a sentence for a crime has been fully served, the structure of Ohio felony sentencing law and the defendant’s legitimate expectation in finality in his sentence prevent a court from further modifying the sentence for that crime in any way. A trial court  does not have the authority to resentence a defendant for the purpose of adding a term of postrelease control as a sanction for a particular offense after the defendant has already served the prison term for that offense. Although it is true that some other sanctions (such as restitution) may yet be outstanding, a sentence served is a sentence completed.





Blue Book Value of a Car is Not Sufficient Basis for Restitution Order

The Second District Court of Appeals in Montgomery County has held that an award of restitution for Unauthorized Use of a Motor Vehicle cannot be simply based on the Blue Book value of the car.

The case is State v. Kennedy, 2012-Ohio-5215.

The Defendant was charged with grand theft auto.  As part of a plea deal, he pled no contest to a lesser-included misdemeanor offense of Unauthorized Use of a Motor Vehicle.

The pre-sentence investigation report contained the following in the victim impact statement under the heading “Economic Loss”: “$1,660.  This amount represents the Kelly Blue Book value of [the victim’s] 2000 Ford Taurus.  This information has been verified.”

Based on this information, the trial court ordered the Defendant to pay restitution in the amount of $1,660.

The court reversed the order of restitution.  The court said,

In the case before us, we do not know where the information concerning the amount of the victim’s loss came from other than that it may have come from the “Kelly Blue Book,” and it “has been verified.”  Elsewhere in the pre-sentence investigation report, it is stated that the victim “stated he never returned the vehicle.” 

The court noted possible problems with relying on the Blue Book Value of the car.  In particular, the court noted that the “Blue Book values depend upon the condition of the vehicle.”  In this case, the trial judge did not hear any evidence about the condition of the vehicle and the pre-sentence investigation report included statements that the car “didn’t work,” and “was a piece of junk.”

The court was also concerned that due process rights were violated because the defendant “never had an opportunity to rebut this at a hearing, although the pre-sentence investigation report quotes him as saying that ‘the victim and her friend took the vehicle while he was in jail and junked the car.’”

Because the restitution order was not supported by “competent and credible evidence at a hearing.” The matter was remanded for a new restitution hearing.



Life Imprisonment with Possible Parole for Juvenile is Not Cruel and Unusual Punishment

An Ohio Appeals Court, in reviewing a criminal appeal from a conviction, has determined that a sentence of life in prison with the possibility of parole for an offense committed when the defendant was a juvenile does constitute cruel and unusual punishment.

The case is State v. Bokeno, 2012-Ohio-4218.

The Defendant was convicted on multiple sexual offenses against four minor victims.  At the time of the commission of these acts, the defendant was under the age of 18.  However, he was not indicted until he was over the age of 21.  Because one of the victims was under the age of ten at the time of the rape, the trial court sentenced the defendant to life imprisonment with the possibility of parole after 20 years.

The defendant argued that his life sentence with the possibility of parole after 20 years is a violation of his due process rights and his right to be free from cruel and unusual punishment.  He also argued that that he should not be arbitrarily tried and punished as an adult for crimes he committed while under the age of 18.

The court noted that the Ohio Supreme Court has previously addressed some of these issues in State v. Warren, 118 Ohio St.3d 200, 2008-Ohio-2011:

In Warren, the Court determined that a defendant’s due process rights were not violated by the imposition of a mandatory term of life imprisonment for rape of a victim under the age of 13 when the defendant was a juvenile at the time of the offense but was not prosecuted until he had passed the age of 21. 

However, since that decision the United States Supreme Court decided Graham v. Florida, 560 U.S. ___, 130 S.Ct. 2011 (2010).  In Graham, the Supreme Court held that the Constitution’s prohibition against cruel and unusual punishments prohibits the state from sentencing a juvenile to a life sentence without the possibility of parole for a non-homicide offense.  The Graham Court said that if it a state imposes a sentence of life for a non-homicide conviction, the state “must provide [the offender] with some realistic opportunity to obtain release.”  Applying Graham to this case, the court found that the Constitution was not violated because the defendant has the possibility of parole after 20 years.


Appeals Court Reverses Conviction Because Plea Not Knowing and Voluntary

An Ohio court of appeals has found that a guilty plea was not voluntary when a defendant was not clearly informed of the possible penalties.

The case is State v. Black, 2012-Ohio-3774.

The defendant was indicted on ten charges, including aggravated robbery with a gun specification, kidnapping, and felonious assault.  He negotiated a plea bargain with the prosecutor.  He was to plead guilty to seven of the charges, and te remaining charges would be dismissed.

Before a court can accept a plea, a judge must strictly comply with the requirements of informing the defendant of his constitutional rights.  The defendant must also be informed of the nature of the charges and the maximum penalty.

The court concluded that the trial judge did not “conduct a guilty plea proceeding which fully or substantially complied with” the legal requirements.  This was in part because the “Defendant was not aware of the maximum possible penalty that he faced.  This is based on the maximum penalty not  being conveyed in court, and the penalty’s failure to appear in the written plea of guilty form.”

The appeals court also noted that “There is also a question of whether The Defendant fully understood the nature of the charges he pled to.”  The problem was the failure of the defendant counsel to adequately explain the charges to the defendant.  The court said:

the record does not reflect that defense counsel told the court he went over the entry of guilty plea form with the defendant before he signed it or that The Defendant had read the guilty plea form.  The Defendant’s trial counsel only affirmatively answered that he felt his efforts in representing The Defendant met the requirements of representation as set forth in the guilty plea form.  This question is ambiguous and the answer cannot be taken to mean that The Defendant’s counsel affirmatively stated that The Defendant had read the guilty plea form or that counsel had reviewed the law and facts with The Defendant.  Further, The Defendant never states to the trial court that he reviewed the law or facts with his counsel or that counsel reviewed the guilty plea form with him.  Based on the totality of these circumstances, we cannot find sufficient evidence that The Defendant understood the nature of the charges he plead to.

The case was remanded to the common pleas court for a trial.


Court Can’t Sentence Defendant to Spend Every Christmas in Solitary

An Ohio Appeals Court has vacated a sentence that required a convicted murderer to spend the anniversary of his crime in solitary confinement.

The case is State v. Creel, 2012-Ohio-3550.

The defendant was convicted multiple charges, including murder.  The victim, who was mentally ill, had recently married the defendant’s niece and lived next door to the defendant in an abandoned house.  On December 24, 2009, the defendant took out a rifle and shot the victim while he stood in the window of his house.   The victim was shot in the forehead and died on Christmas Day at Akron City Hospital.

The defendant was sentenced to a total of twenty years to life in prison.  The trial court ordered that the defendant spend every December 25th in solitary confinement during his term of incarceration.

The court concluded that the portion of the sentence requiring the defendant to spend the anniversary of the killing in solitary confinement was error.  (The State conceded that the trial court erred.)

Under Ohio law, courts are not authorized to impose solitary confinement as punishment.  Only the Legislature can fix punishments, and solitary confinement is not listed among the punishments available to judges for criminal convictions.  The appeals court said, “The [trial] court had no statutory authority to impose such a condition.”


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.