 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
ARGUMENT: IMPROPER FOR PROSECUTOR TO ARGUE THAT DEFENSE COUNSEL IS TRYING TO MISLEAD OR CONFUSE JURY OR IS "CREATING SMOKE" ETC. State v. Hill, No. C-971098 (1st Dist. Ct. Apps., Hamilton Co., 2-19-99). Robert Hill was charged with possession of cocaine and having a weapon while being under disability. During closing argument, the prosecutor said the following: "[defense counsel] is going to try to put smoke up in the air;" and "[defense counsel is trying] to create smoke." The court held the remarks denigrated defense counsel, saying the following: Although prosecutors are given wide latitude in closing arguments, we have consistently held that the latitude afforded the prosecution does not extend so far as to permit the prosecution to denigrate the role of defense counsel. Here, the prosecutor's comments suggested that defense counsel had intentionally sought to deceive the jury and, therefore, they were clearly improper. As the trial court had sustained the objection and instructed the jury to disregard the remarks, however, and considering the evidence, the appellate court held the error harmless. The appellate court modified the sentence because of a different issue, but otherwise affirmed the conviction. POST-CONVICTION PETITIONS: S.B.4 TIME LIMITS: SUMMARY DISMISSAL: FINDING OF FACTS AND CONCLUSION OF LAW UNNECESSARY. State v. Beaver, No. 97-T-0205 (11th Dist. Ct. Apps., Trumbull Co., 11-20-98) Richard Darnell Beaver was charged with murder. The court, upon request of defense counsel, instructed on felonious assault (The opinion fails to explain this unusual instruction.) The first jury acquitted Beaver of murder and was unable to agree on felonious assault. A second jury on October 16, 1995, convicted Beaver of felonious assault and the court of appeals affirmed the conviction. On October 16, 1996, Beaver filed a petition for postconviction relief, claiming his counsel asked for an instruction on the lesser included offense in the first trial without his permission. The trial court found the petition untimely, but addressed the merits anyway. The court dismissed the petition and the defendant appealed. He claimed the court's findings of facts and conclusions of law were insufficient and also argued the court should have granted the petition. The Lorain County Court of Appeals held that the trial court should have dismissed the petition as untimely. About the trial court's addressing the merits, the appellate court said the following: Although the effort is commendable, the court should have summarily dismissed the petition without addressing its merits. Discussing the reason the General Assembly adopted S.B. 4, setting time limits, the court continued as follows: It is manifestly unfair to allow prisoners to take advantage of their own inordinate delay; therefore, the General Assembly corrected the problem by striking the limitless provision in a 1995 amendment. However, the court continued: It is sometimes the policy of this court to address the assignments of error, even where there is a catastrophic procedural mistake, on the theory that it is better to resolve a postconviction appeal on its merits *** It would contradict the clear mandate by the General Assembly that untimely petitions not be heard if, on appeal, we engage in a gratuitous legal discussion of the issues raised therein. Finally, the court held that Findings of Fact and Conclusions of Law are unnecessary when a court dismisses a petition because it is untimely.
COUNSEL; TRIAL COURT MUST RESPECT DEFENDANT'S RIGHT TO REPRESENT HIMSELF. State v. Bailey, No. 73849 (8th Dist. Ct. Apps. Cuyahoga Co., 3-4-99) The defendant was charged with breaking and entering, theft, receiving stolen property, vandalism, and failure to comply with a lawful order, among other related charges. On November 7, 1997, the defendant filed a motion to remove his appointed counsel, listing several other attorneys as possible replacements. If the court refused to remove current counsel, the defendant continued, he wanted to represent himself. The court overruled the motion without further inquiry. While represented by the same lawyer, the defendant went to trial on an unspecified date. He was convicted and he appealed. The Cuyahoga County Court of Appeals reversed. Although the defendant had asked to have other counsel appointed, the court said, he also asked to represent himself. The trial court, the appellate court held, should have let him represent himself. The court reversed and remanded for retrial. SECURITIES LAW: DEFINITION OF SALE. State v. Mong, No. 98CA0043 (5th Dist. Ct. Apps., Licking Co., 12-1-98). Theodore Mong II formed a company called Liberty Bell. He collected money from investors, with the expressed purpose of pooling the money and loaning it to others. He promised the investors that he would return the money plus 12% interest, in two years. He collected 1.5 million dollars, but returned only $143,000. When Mong took money from the investors, he told them their money was guaranteed by government bonds. He gave investors promissory notes in exchange for the money. Mong was convicted of seventy nine counts of violating securities law, one count of receiving stolen property, and one count of engaging in corrupt activity. On appeal, he claimed that what he did was not a "sale" under the securities laws, R.C. 1707.01(C)(1). That section provides as follows: "Sale" has the full meaning of "sale" as applied by or accepted in courts of law or equity, and includes every disposition, or attempt to dispose, of a security or an interest in a security. "Sale" also includes a contract to sell or exchange, an attempt to sell, an option of sale, a solicitation of a sale, a solicitation of an offer to buy, a subscription, or an offer to sell directly or indirectly, by agent, circular, pamphlet, advertisement, or otherwise. The court affirmed the conviction. SENTENCING: STATUTORY CONSTRUCTION; CONSECUTIVE SENTENCES; RIGHT TO APPEAL. State v. Harris, No. 98AP-197 (10th Dist. Ct. Apps., Franklin Co., 12-1-98) Christopher Harris entered guilty pleas on two counts of aggravated vehicular assault. He was sentenced to twelve months on each count, to be served consecutively. On appeal, Harris argued that R.C. 2953.08(C) prevents a trial court from imposing consecutive sentences when the total exceeds the maximum prison term allowed for the most serious offense of which a defendant is found guilty. That section provides as follows: (C)In addition to the right to appeal a sentence granted under division (A) or (B) of this section, a defendant who is convicted of or pleads guilty to a felony may seek leave to appeal a sentence imposed upon the defendant on the basis that the sentencing judge has imposed consecutive sentences under division (E)(3) or (4) of section 2929.14 of the Revised Code and that the consecutive sentences exceed the maximum prison term allowed by division (A) of that section for the most serious offense of which the defendant was convicted. Upon filing of a motion under this division, the court of appeals may grant leave to appeal the sentence if the court determines that the allegation included as the basis of the motion is true. The court held that the statute applies only to determining whether a defendant may seek leave to appeal but contains no implication that an appeal would succeed and no implication that a court is prevented from imposing sentences that exceed the maximum sentence for the most serious offense. The court affirmed. |
