 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
SENTENCING: COURT CANNOT COMPEL DEFENDANT TO TESTIFY AT SENTENCING HEARING. State v Sanders, No. 75398 (8th Dist. Ct. Apps., Cuyahoga Co., 04-13-2000). Stephen Sanders was convicted of two counts of kidnapping and one count of aggravated robbery. The defendant and two other men kidnapped the owner of a store that sold pagers and the owner's girlfriend. The men waited outside the store. When the owner, Firas Essa, and his girlfriend, Angela Jelovic, left the store, two to of the men, Sanders and Damien Cleveland, pointed guns at them. Essa offered his wallet and car. The robbers refused his offer. Using handcuffs belonging to his father, Cleveland Detective Clarence Sanders, Stephen Sanders handcuffed Essa. Sanders then put his gun down and started to tape Angela Jelovic's hands with duct tape. Essa grabbed the gun. Jelovic ran. Essa tried to shoot Sanders but the gun failed to fire because, although the gun was loaded, no bullet chambered. The robbers ran away. The jurys having convicted the defendant of all charges, the court moved to the sentencing hearing. The court found that the kidnapping and robbery, under the circumstances of this case, were separate. Although the defendant had remained silent during trial, the court administered an oath during sentencing and questioned the defendant. The defendant said he was the look-out. The court told him he had until Monday to "come closer to the truth." On Monday, the defendant recanted, saying he was trying to say anything he thought might bring a lighter sentence. The court imposed three consecutive five - year sentences. The defendant appealed. Rejecting the appellant's claims that the sentencing was vindictive, the court nevertheless held that the trial court erred in compelling the defendant to testify. The court reversed and remanded for a new sentencing hearing.
SENTENCING: OUT-OF-STATE CONVICTION MAY NOT JUSTIFY CONSECUTIVE SENTENCE. State v Phelps, No. 77100, (8th Dist. Ct. Apps., Cuyahoga Co., 8-31-2000). Richard Phelps entered a guilty plea to burglary. The trial court sentenced him to serve two years, consecutive to a one - to - fifteen year sentence Phelps is currently serving in West Virginia . Phelps appealed the sentence. The Cuyahoga County Court of Appeals reversed. R.C. 2929.41 (A) and 2929.14 (E) (4), the court held, prohibit imposing a sentence consecutively to a sentence for an out - of - state conviction. Section 2929.14 (E) (4) provides as follows: If multiple prison terms are imposed on an offender for conviction of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and the danger the offender poses to the public. The appellate court held that the "plain meaning of the words 'multiple offender' means two or more offenses committed in Ohio. An Ohio Court may not use an out - of - state offense or conviction to meet the 'multiple offenses' criterion of R.C. 2929.14 (E) (4)." The court remanded for re-sentencing.
OATH: NO PARTICULAR FORM NECESSARY FOR YOUNG WITNESSES. In Re Slone, No. 18405 (2nd Dist. Ct. Apps., Montgomery Co., 12-22-2000). Robert Slone was adjudged a delinquent child, arising from accusations that he raped a seven - year - old boy. The trial court questioned the victim to determine competence. The court said, "I'm going to allow him to testify, you have to tell us the truth, okay?" The victim responded "okay" Slone's fourteen - year - old friend testified that he witnessed Slone twice perform fellatio on the victim and also witnessed other sexual activity. The victim testified about the two instances of oral sex but denied other sexual activity. The Juvenile Court found the state had proved the two allegations of oral sex but had failed to prove other allegations. The court adjudicated Slone delinquent and Slone appealed. On appeal, he claimed that the trial court had failed to swear the victim before the victim testified. Although R.C. 2317.30 provides that a witness must be sworn to tell the truth, the appellate court said, no specific form is required. In State v Frazier (1999) 61 Ohio St. 3d 247, the appellate court continued, the Ohio Supreme Court held that trial courts have flexibility when dealing with young children. The instant victim's promise to tell the truth, the Montgomery County Court of Appeals said, satisfied the requirement of an oath. The court affirmed the adjudication. SEARCH AND SEIZURE: CONSENT. State v Walker, No. 18233 (2nd Dist. Ct. Apps., Montgomery Co., 12-15-2000). The state appealed from the trial court's granting the defendant's motion to suppress evidence. At 2:25 a.m., Dayton police officers stopped Renier Walker for speeding. Because Walker smelled of alcohol, the officers asked him to get out of his car. Walker admitted he had "had a few beers." The officer saw bulges in Walker's pockets. Having obtained Walker's consent to be patted down, one officer touched what he immediately believed to be crack cocaine. The rock of crack was in a plastic bag shoved into the back of Walker's pants. The officer arrested Walker and removed the crack. The trial court granted the defendant's motion to suppress. The trial court found the consent to a pat-down to be involuntary. The trial court said it was involuntary because it was given during an investigation of a DUI for which the officers lacked reasonable suspicion. The Montgomery County Court of Appeals reversed. Because the police stopped the defendant for a traffic offense, the court said, they could ask for permission to search him. Although the appellate court agreed that the pocket bulges failed to justify a pat-down, the court held that the officers needed no suspicion of another offense to ask for consent to search. The court remanded for trial.
APPLICATION FOR REOPENING APPEAL- NO GOOD CAUSE FOR DELAY, WHEN. State v Jells, No. 54733 (8th Dist. Ct. Apps., Cuyahoga Co., 04-26-2000). Reginald Jells was convicted of aggravated murder and sentenced to death. The appellate court affirmed his conviction on May 1, 1989. On March 1, 1999, Jells filed in the common pleas court an application to reopen his appeal under App. R. 26. Jells claimed his appellate counsel had been ineffective for failing to raise several assignments of error. Current counsel claimed that Jells could not file within the ninety days because current counsel had been appointed only recently by the federal court to pursue habeas. The trial court denied the application and the appellate court affirmed, saying the following: This court has held that "lack of counsel or misplaced reliance does not exonerate the defendant from ensuring that the application is timely filed." State v Sizemore, (1998), 126 Ohio App. 3d 143. The opinion fails to remark upon the defendant's filing an application to reopen an appeal under App. R. 26 in the trial court. At the end of the opinion, the appellate court simply says that the application to reopen is denied. |
