 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
JUVENILES: MANDATORY BINDOVER PROVISIONS CONSTITUTIONAL. State v. Kelly, No.14-98-26 (3d Dist. Ct. Apps., Union Co., 11-18-98). Seventeen-year-old Justin Kelly broke into a storage barn belonging to his employer, Grandview Construction Company, owned by Thomas Hampton. Kelly stole a rifle and a van. Mr. Hampton's son, Aaron Hampton, saw Kelly and followed him. Kelly fired at Aaron Hampton. Two officers pursued Kelly, who fired at them. Eventually Kelly put the gun down and surrendered. A complaint was filed in juvenile court containing ten delinquency allegations. Among the acts charged were attempted murder and aggravated robbery, which provide for a mandatory transfer to adult court, and seven charges not subject to mandatory bindover. The juvenile argued that the mandatory bindover provision in R.C. 2151.26(B) is unconstitutional. The court held the statute constitutional and also bound over the juvenile for trial on all ten charges in adult court. Appellant entered pleas of no contest and was sentenced to unspecified terms. On appeal, Kelly argued that the mandatory bindover provision is unconstitutional. The Union County Court of Appeals rejected appellant's void-for-vagueness argument, based on the case of People's Rights Organization v City of Columbus (1998), 152 F.3d 522, because the ordinance at issue in that case uses language different from that used in R.C. 2151.26(A)(3). Appellant next argued that a juvenile has a constitutional right to an amenability hearing conducted in accordance with Kent v United States (1996), 383 U.S. 541. The Union County Court of Appeals rejected that argument, holding that the General Assembly may statutorily eliminate consideration of the factors enumerated in Kent v United States, supra. The court also rejected equal protection arguments, holding that gun-toting criminals were unentitled to the protections of a suspect class. Finally, the defendant argued that R.C. 2151.26(B) conflicted with the modern courts amendment and violated the doctrine of separation of powers. Wrong. The Union County Appellate Court held that Juvenile Courts are not Art IV courts but special courts, the jurisdiction of which has always been defined by the General Assembly. The court affirmed the defendant's convictions. ARGUMENT: PROSECUTOR MAY NOT COMMENT ON DEFENDANT'S SILENCE AFTER MIRANDA WARNINGS EVEN IF DEFENDANT HAD NOT BEEN ARRESTED. State v. Van Meter, No. 7-98-02, (3d Dist. Ct. Apps., Henry Co., 11-25-98) Russell Van Meter was accused of rape and gross sexual imposition. The defendant took the stand and the prosecutor asked why he did not deny the allegations immediately when questioned by police. The defendant was convicted and he appealed. The holding in Doyle v Ohio (1976), 426 U.S. 610, is that a defendant's post-arrest, post-Miranda-warnings, silence may not be used against him. In the instant case, Van Meter was not under arrest. Nevertheless, the Henry County Court of Appeals reversed his conviction, saying the following: Although here the defendant was not under arrest, as were the defendants in Doyle, the reading of the Miranda rights is all that is necessary to trigger the implied promise that the exercise of those rights will not be used to show guilt. The court reversed and remanded for retrial. SENTENCING: COURT MAY NOT TOLL RUNNING OF TIME ON COMMUNITY CONTROL. State v. Griffin, No. C-980142, (1st Dist. Ct. Apps. Hamilton Co., 12-11-98) On January 20, 1998, Shawn Griffin entered a no contest plea to a fifth-degree-felony charge of possessing cocaine. The court suspended his driver's license for five years, ordered him to serve six months in the Hamilton County Justice Center (concurrent to an eleven year sentence the court had previously imposed on an unrelated charge), and ordered three years of community control. On April 2, 1998, the court entered an ex parte order tolling the community control sanction "under provision granted in Section 2951.07 O.R.C. *** as the defendant is in Ohio Department of Corrections." The defendant appealed and the Hamilton County Court of Appeals reversed. Although R.C. 2951.07 provides "if the probationer is confined in any institution for the commission of any offense whatever, the probation ceases to run until such time as the probationer is brought before the court for its further action," the Hamilton County court said, the trial court erred by relying on that section because "probation" and a "community control sanction" are different. Community control is governed by R.C. 2929.15, 2929.16, 2929.17, or 2929.18. Nothing in those sections allows for tolling a community control sanction. A community control sanction is a sentence. The appellate court said the following: We assume the court intended the original community control sentence entered on February 12, 1998, to run concurrently with his jail [sic] time (the eleven years)*** The appellate court held that the tolling order was a modification of sentence which the court had no authority to do without appellant's having violated his community control sanction. The appellate court reversed.
APPEAL: DEFENDANT FILING MOTION FOR DELAYED APPEAL MUST SHOW A REASONABLE EXPLANATION FOR FAILING TO PERFECT APPEAL. State v. Newman, No. 98AP-458 (10th Dist. Ct. Apps., Franklin Co., 12-3-98). Derrick S. Newman filed a motion to file a delayed appeal under App. R. 5(A) of a conviction in 1995 of an unspecified crime. He claimed he had failed to pursue a direct appeal because he was ignorant of the law. Former App. R. 5(A) required movants to state "good cause" why they failed to pursue timely appeals. Several years ago, the good cause requirement was eliminated because some people thought it would "save time" to decide all delayed appeals on the merits. The Franklin County Court of Appeals denied Newman's motion, saying the following: Although App. R. 5(A) has been amended to delete requirements that appellant set forth reasons that would support his appeal, this court has recognized that the rule does not operate to permit unlimited access to appellate courts. The rule does not relieve the moving party from demonstrating a reasonable explanation for failure to perfect a timely appeal. The court continued as follows: While an unrepresented defendant may be unaware of his appellate rights for a period of time, something more than being in the status of a pro se litigant must be demonstrated to justify failing to appeal for more than three years following conviction. Judges Bowman, Tyack, and Lazarus denied the motion for leave to file a delayed appeal. PLEAS: MOTION TO WITHDRAW GUILTY PLEA UNDER CRIM. R. 32.1 SUPPORTED ONLY BY MOVANT'S SELF-SERVING AFFIDAVIT FAILS TO ENTITLE MOVANT TO A HEARING. State v. Anderson, No. 17040 (2d Dist. Ct. Apps., Montgomery Co., 11-20-98) Nine and a half years after entering a guilty plea to an unspecified charge, Dwain Anderson filed a motion to withdraw his guilty plea. Anderson claimed his lawyer promised him he would serve no more than nine years. The trial court overruled the motion without a hearing. The Montgomery County Court of Appeals affirmed, saying the following: The state argues that a motion to withdraw a guilty plea, pursuant to Crim. R. 32.1, is essentially a petition for post-conviction relief ***. Therefore, the state argues, Anderson's motion is both time-barred and unsupported by any evidence other than Anderson's own self-serving affidavit. We find it unnecessary to determine whether a motion to withdraw a guilty plea, pursuant to Crim. R. 32.1, constitutes a petition for post-conviction relief *** The rule that a prisoner is only entitled to a hearing on a petition for post-conviction relief when the petition is supported by evidence other than the petitioner's own self-serving affidavit is judge-made.*** It is designed to balance the petitioner's interest*** against the undue burdens *** upon the judicial system if an evidentiary hearing were required in every case. In our view, it is a salutary rule that applies with equal force in cases involving motions to withdraw a guilty plea. The court affirmed the trial court. |
