 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
SPEEDY TRIAL: WAIVERS FOR ALL CHARGES ARISING FROM SAME FACTS INEFFECTIVE. State v. Carter, No. 97APA08-976 (10th Dist. Ct. Apps., Franklin Co., 3-1-98). Kelly Carter appealed his conviction for having a weapon while being under disability. A complaint was filed charging Carter with felonious assault, arising from an incident on January 10, 1995. He was arrested on March 14, 1995. On March 24, 1995, the complaint was dismissed and the defendant was indicted on one count of felonious assault with a deadly weapon and a harm specification. The defendant requested a continuance on May 5, 1995. The court continued the case until August 8, 1995. The entry, signed by defense counsel but not by defendant, said the following: "Defendant waives the right to a speedy trial for the period of this continuance as to the pending charge or charges as well as any subsequent, additional charge or charges which may arise from the same set of facts and circumstances as the initial charge." On July 14, 1995, the defendant was reindicted on felonious assault, a harm specification and a firearm specification, arising from the same incident. The state on August 9, 1995, requested a nolle prosequi on the first indictment. On September 12, 1995, the state requested a continuance. The entry contained the same language quoted above. The defendant sought another continuance. The entry contained the same waiver language. The above entries were approved by defense counsel, but not by defendant. Several more continuance entries contained the same waiver language. Finally, trial was set for March 10, 1997. On January 28, 1997, the state reindicted the defendant again for felonious assault, with harm and firearm specifications, and a charge of having a weapon while being under disability, also with harm and firearm specifications. On April 2, 1997, the trial court, upon the state's request, entered a nolle prosequi of the second indictment. The defendant, on April 18, 1997, filed a motion to dismiss for failing to provide the defendant a speedy trial. The trial court denied the motion and the defendant was convicted of WUD. The jury was unable to reach a verdict on felonious assault. Citing State v. Adams (1989), 43 Ohio St.3d 67, the Franklin County Court of Appeals reversed appellant's conviction. Essentially, the appellate court held that the language that the defendant was waiving his speedy trial rights for any charges that arose from the same incident meant nothing at all. The court vacated the WUD conviction. JUVENILE: COURT MUST APPOINT GUARDIAN AD LITEM WHEN A POSSIBLE CONFLICT WITH PARENT EXISTS. In Re: David Sappington, No. 16063 (2nd Dist. Ct. Apps., Montgomery Co., 10-31-97). Seventeen year old David Sappington pleaded guilty to four counts of gross sexual imposition. Having been found delinquent, he was committed to the Ohio Department of Youth Services for a minimum term of 24 months and a maximum term not to exceed his attaining the age of 21. When the charges were filed against him, David lived in Dartmouth Hospital. At his first appearance in juvenile court, he was unrepresented by counsel but accompanied by his father and representatives from Dartmouth Hospital and the South Community Mental Health Center. The following colloquy occurred: THE COURT: "***David Sappington, do you wish to talk to an attorney first of all?" A: "Yes" THE COURT: "Okay. Are you going to hire one or --" A: "I don't have any money." THE COURT: "I know you don't have any money. I, but --" [Father]: "Are you sure you want to talk to an attorney at this point?" A: "Well, I'm pleading guilty, but do I need one?" [Father]: "I don't think so, David." A: "I don't need one then." THE COURT: "Are you sure[,] son?" A: "Yes." THE COURT: "You understand. All right. Just wanted to double check for you before you go on." A: "Okay." David's father told the court that David had suffered from psychological problems most of his life. He threatened and abused his mother, resulting in charges of domestic violence two years before the instant offenses. He had been placed in three foster homes during his life, but each time he was removed from those homes because he was violent. South Community Mental Health Center transferred him to Dartmouth Hospital. David's father asked the magistrate to commit David until he was 21 because the father feared David would become ineligible otherwise for treatment through South Central after his eighteenth birthday. A representative from Dartmouth Hospital told the court that David suffered from several mental illnesses, including schizo affectiveness, bipolar disorder, attention deficit disorder, and post-traumatic stress. David argued on appeal that a conflict of interest existed between him and his father. The court agreed and held that R.C. 2151.281(A) required the trial court to sua sponte appoint a guardian ad litem for David. R.C. 2151.281(A) provides in pertinent part as follows: "(A) The court shall appoint a guardian ad litem to protect the interest of a child in any proceeding concerning an alleged or adjudicated delinquent child or unruly child when either of the following applies: *** (2) The court finds that there is a conflict of interest between the child and the child's parent, guardian, or legal custodian." Functionally similar portions of Juv.R. 4(B) read: "(B) Guardian ad litem; when appointed. The court shall appoint a guardian ad litem to protect the interests of a child or incompetent adult in a juvenile court proceeding when: *** (2) The interests of the child and the interests of the parent may conflict." The court held that the facts should have alerted the magistrate to a potential conflict between David and his father so that the magistrate should have appointed a guardian ad litem. The court reversed and remanded for rehearing. STATUTORY CONSTRUCTION: MURDER AND INVOLUNTARY MANSLAUGHTER BY CAUSING TERMINATION OF PREGNANCY, CONSTITUTIONAL. State v. Coleman, No. 97APA06-795, (10th Dist. Ct. Apps., Franklin Co., 12-23-97). Wayne Coleman was accused of purposely causing the termination of another's pregnancy and causing the termination of another's pregnancy while committing felonious assault, arising from an incident of domestic violence. Appellant filed a pretrial motion to dismiss, claiming the statutes were unconstitutional. His motions having been overruled, he entered a no contest plea to involuntary manslaughter and felonious assault. On appeal, the defendant argued the statutes were overbroad and constituted cruel and unusual punishment. The defendant claimed that the government had no interest in protecting the unborn because of Roe v. Wade (1973), 410 U.S.113. The Franklin County Court of Appeals rejected the argument summarily, observing that the court in Roe v. Wade had itself said the state has an interest in protecting potential life. A statute is overbroad if it prohibits conduct that must be allowed under the constitution. "There is simply no fundamental right," the Franklin County Court of Appeals said, "to cause harm to another, whether living or not living." Finally, the defendant argued it was cruel and unusual punishment to punish him for what a woman and her doctor could do with impunity. Citing People v. Davis (1994), 872 P. 2d 591, the court said "Roe gave women a fundamental right to terminate a pregnancy; however, that right does not translate into a fundamental right of a third person to use violent conduct to deprive the pregnant woman of her choice." The court affirmed the conviction. FALSIFICATION: FEDERAL "EXCULPATORY NO" RULE APPLIED. HOWEVER, UNITED STATES SUPREME COURT REJECTED "EXCULPATORY NO" DOCTRINE. State v. Marshall, No. 97CA52 (5th Dist. Ct. App., Fairfield Co., 2-25-98). Michael Marshall was accused of raping Wendy Emmert. While being interviewed by police, Marshall denied any sexual conduct. When informed that DNA testing would be conducted, he continued to deny having sex with the victim. After DNA testing showed semen to have come from Marshall, he was charged with rape. At trial he admitted he had lied to the police. He admitted having sex with Ms. Emmert, but claimed it was consensual. The jury acquitted Marshall. Police then charged Marshall with falsification. Marshall filed a motion to dismiss, asserting the charge should be dismissed because of the federal so-called "exculpatory no" rule. The trial court overruled the motion and Marshall was convicted. The Fairfield County Court of Appeals reversed. Relying upon State v. Bailey (1994), 71 Ohio St.3d 443, in which the Ohio Supreme Court specifically declined to decide whether Ohio should adopt the federal "exculpatory no" doctrine, the Fairfield court said, "It appears to us the Ohio Supreme Court would recognize the 'exculpatory no' exception." The "exculpatory no" exception, applied in many lower federal courts, means that a suspect questioned by police who falsely denies guilt cannot be charged with the federal equivalent of falsification. The Fairfield appellate court reversed Marshall's conviction. [Ed. Note: The court failed to mention Brogan v. United States (1998), 118 S.Ct. 805. Deciding Brogan a month before the Fairfield County Court of Appeals decided Marshall, the United States Supreme Court rejected the "exculpatory no" exception and held that a suspect who falsely denies guilt may be charged under the federal falsification statute]. SENTENCING: FACTORS TO CONSIDER; POSITION OF TRUST IN COMMUNITY. State v. Radcliff, No. 97APA08-1054, 1056 (10th Dist. Ct. Apps., Franklin Co., 3-17-98). Mathew Radcliff stole tools from his uncle, and Radcliff and his girlfriend, Angela Riggs, stole electronic items, including a laptop computer belonging to a ten-year-old mentally disabled boy, from Ms. Riggs's mother, Deborah Moore. Radcliff entered guilty pleas to a fifth-degree-felony theft charge and a first-degree misdemeanor theft. The court sentenced Radcliff to a maximum twelve months on the felony and ordered restitution of $850.00, and six months on the misdemeanor and ordered restitution of $900.00. The defendant appealed his sentence. The worksheets used by Franklin County judges list factors to consider to impose a prison sentence despite a presumption against prison time. Those factors are listed in R.C. 2929.12(B). Among them is R.C. 2929.12(B)(3) as follows: "The offender held a public office or position of trust in the community, and the offense related to that office or position." Apparently, the court's worksheet omits the phrase "in the community." The trial court said that the defendant was in a "position of trust" to his victims. The appellate court held this to be error. Fortunately, the trial court had also found that other factors in R.C. 2929.12(B) applied, specifically the mental condition of the victim and the offender's relationship to the victim. The appellate court, therefore, held the trial court's error harmless and affirmed the conviction. |
