 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
JURY WAIVER: DATE OF FILING IRRELEVANT AS LONG AS FORM IS FILED AND MADE PART OF THE RECORD. State v. Gibson, No. C-980327 (1st Dist. Ct. Apps., Hamilton Co., 2-5-99). Rodriguez Gibson was charged with inciting to violence and aggravated rioting. Alonzo Davenport killed two Cincinnati police officers, Dan Pope and Ron Jeters, and then killed himself. On the day of Davenport's funeral, a riot erupted. Gibson attacked cars and urged others to do the same. The crowd chanted "You got one, we got two." At trial on February 17, 1998, Gibson signed a jury waiver form. He was convicted and he appealed. The jury waiver form remained unfiled until December 10, 1998. On November 12, 1998, the trial court, pursuant to App R. 9(E), had filed an entry including the (at that time, still unfiled) jury waiver and ordered that the waiver be made effective nunc pro tunc to February 17, 1998. Appellant argued on appeal that the trial court had been without jurisdiction on February 17, 1998 to try him without a jury because the waiver form was unfiled until December 10, 1998. The Hamilton County Court of Appeals rejected that argument. The statute, R.C. 2945.05, requires that the waiver be filed and made part of the record. The statute says nothing, the court reasoned, about when the waiver must be filed. The court affirmed the convictions. SENTENCING: ERROR FOR COURT TO CONSIDER THE BIBLE IN DETERMINING SENTENCE. State v. Arnett, No. C-980172, C-980173 (1st Dist. Ct. Apps., Hamilton Co., 2-5-99) James Arnett pleaded guilty to ten counts of rape and one count of pandering obscenity. The victim in all cases was his girlfriend's daughter. The court imposed a fifty-one year sentence. In addition to the statutory sentencing factors, the judge turned to her Bible, finding the following verse at Matthew 18:6 : "Whoso shall offend one of these little ones which believe in me, it were better for him that a millstone were hanged about his neck, and that he were drowned in the depth of the sea." The Hamilton County Court of Appeals in a 2-1 decision reversed. "[A] court cannot use religion as a factor in imposing a sentence." The court remanded for resentencing. SENTENCING: COURT MUST MAKE THE REQUIRED FACTUAL FINDINGS. State v. Fitzmorris, No. 98AP-340 (10th Dist. Ct. Apps. Franklin Co., 12-1-98) The trial court sentenced Billy Fitzmorris to the maximum sentence of five years for robbery, consecutive to two years for burglary. Fitzmorris had been caught in the act of burgling an apartment. Trying to escape, he commandeered a jeep, pulling the male driver out, and fled. After a chase, the car became stuck in a snowdrift and the police captured Fitzmorris. Fitzmorris entered guilty pleas to robbery and burglary. Having been sentenced to the maximum sentence, he appealed. To impose the maximum sentence, the trial court was required to find that the defendant committed the worst form of the offense or that he posed the greatest likelihood of committing future crimes. The trial court also failed to find that the defendant met the statutory requirements for imposing a consecutive sentence. The trial court said the following: "Well, let the record reflect that the court has reviewed the pre-sentence investigation. I'm incorporating the findings in the PSI into my sentencing decision here. I mean the potential for violence here, the potential for serious injury not just to you, but to the law enforcement people, the victim of the robbery, all of the people driving around out there on I-270, is just totally inexcusable, and it's the sentence of the court on count one, the burglary, that you spend two years with the Ohio Department of Rehabilitation and corrections. "On count two, which is the robbery, it's the sentence of the court that you spend five years with the Ohio Department of Rehabilitation and Correction. Those are going to be consecutive to each other. ***Mr. Fitzmorris, you need to be punished for what you did, there's going to come a time when they will let you out. You need to figure out how you will deal with your addiction problem. They will probably put you on post-release control so you will be supervised, when you're out and hopefully they can help you deal with your problem." The Franklin County Court of Appeals reversed and remanded for resentencing, instructing the trial court to make the necessary findings of fact. SENTENCING: COURT CANNOT BAN A DEFENDANT FROM THE COUNTY. State v. Jerido, No. 1997CA00265 (5th Dist. Ct. Apps., Stark Co., 5-26-98). Arnetha Jerido was charged with robbery for stealing $293.52 worth of razor blades from a convenience store. The state amended the charge to petty theft and the defendant entered a no contest plea. The court sentenced the defendant to 180 days in jail, but suspended all but 30 days. In the sentencing entry, the court also banned the defendant from Stark County. Although the defendant resides in Cuyahoga County, she has relatives in Stark County. She appealed the sentence. The Stark County Court of Appeals reversed. As banishment is absent from the possible sentences under the statutes, the court said, a court cannot banish a defendant from the county. SEXUAL PREDATOR: JURISDICTION State v. McIntire, No. 97CA006946 (9th Dist. Ct. Apps., Lorain Co., 12-16-98) Michael McIntire was adjudicated a delinquent for committing what would have been a sexual offense if he had been an adult. While under commitment to the Department of Youth Services and after he had turned eighteen, he was convicted in Stark County of two counts of assault. In October, 1997, McIntire was to be paroled and intended to move into Lorain County. The day before McIntire was to be released, the Lorain County Prosecutor filed a request to have him declared a sexual predator. The Lorain County Court declared McIntire a sexual predator and he appealed. The Lorain County Court of Appeals reversed, saying the following: Even a perfunctory reading of R.C. 2950.09(c) reveals that the Lorain County Court of Common Pleas did not have jurisdiction to proceed in this case. R.C. 2950.09(c)(1) specifically states that the sexual predator recommendation "shall" be sent "to the court that sentenced the offender." If the General Assembly had intended to give jurisdiction to the court of the county in which the soon-to-be-paroled person chooses to live, the court continued, it would have done so. |
