 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
DEATH PENALTY: SPECIFICATION MAY BE AMENDED, WHEN. State v Lomax, No. 5-97-024 (6th Dist. Ct. Apps., Sandusky Co., 6-26-98). The grand jury indicted Tazwell Lomax on six counts: prior-calculation-and-design aggravated murder with three specifications, to wit: that the offense was committed to escape detection, that the offense was committed during a robbery, and that the offense was committed during a rape; aggravated murder during attempted rape, with the same three specifications; aggravated murder during aggravated robbery, with the same specifications; voluntary manslaughter; rape; and aggravated robbery. Before trial, the count alleging aggravated murder during a rape, the count alleging rape, and all rape specifications were dismissed (presumably at the State's request, although the opinion fails to say). A three-judge panel found the defendant guilty of aggravated murder during an aggravated robbery; the aggravated robbery specification; and the separate count of aggravated robbery. The panel found the defendant not guilty of prior-calculation-and-design aggravated murder; not guilty of the escaping detection specification to the felony aggravated murder count; and not guilty of voluntary manslaughter (go figure). The Defendant then moved to be sentenced to life, because part of the specification had been omitted from the indictment. The specification charged that the murder had been committed during the course of aggravated robbery but failed to include the language that the defendant was the principal offender or, if not the principal offender, committed the murder with prior calculation and design. The defendant argued that he had no notice that he was facing the death penalty. The State moved to amend the indictment but the trial court denied the motion. The State moved for leave to appeal, which the Sandusky Court of Appeals granted. The appellate court reversed and remanded, ordering the trial court to amend the indictment. Citing State v. Biros (1997), 78 Ohio St. 3d. 426 the Sandusky County Court of Appeals dismissed the defendant's argument that he had no clue he might be eligible for the death penalty. As the defendant was the only participant, the court said, he obviously knew he was being charged as a principal offender. The court remanded for a sentencing hearing. SENTENCING: PROBATION FOR OFFENSE COMMITTED BEFORE S.B. 2 REVOKED AFTER S.B. 2, ORIGINAL SENTENCE APPROPRIATE. State v. Proctor, No. 682 (7th Dist. Ct. Apps., Carroll Co. , 6-24-98). On October 25, 1995, Michael Proctor, having been convicted of a fourth-degree-felony receiving stolen property, was sentenced to eighteen months but placed on probation. On April 5, 1996, the probation department requested probation revocation, as Proctor was awaiting trial on new charges of theft and breaking and entering. Proctor was convicted of those charges on June 12, 1996. On August 9, 1996, the court revoked the defendant's probation and reimposed the original sentence. The defendant appealed, arguing he was entitled to be sentenced under S.B. 2 to six to twelve months. The Carroll County Court of Appeals affirmed the trial court. Although the sentence was suspended, the appellate court said, the sentence was "imposed" before the effective date of S.B. 2. Appellant, therefore, was unentitled to the benefits of S.B. 2. SENTENCING: COURT MUST MAKE FINDINGS. State v. Brooks, No. 97APA11-1543 (10th Dist. Ct. Apps., Franklin Co., 8-18-98). Joseph M. Brooks was convicted of felonious assault for "causing or attempting to cause serious physical harm to Terry Poling by means of a deadly weapon, to wit: a car door." The opinion gives no additional facts. The court imposed a sentence of five years; the minimum sentence for the offense was two years. R.C. 2929.14(B) provides that when a defendant has not previously served a prison term, the court should impose the minimum sentence unless the court finds on the record that the shortest prison term will demean the seriousness of the offender's conduct or will inadequately protect the public from future crime. In the instant case, the court said only "I know - everything that's been said this morning I knew before we came in here. I heard the trial, I've weighed the factors." Although the appellate court agreed that a trial court need not parrot the statutory language, the appellate court held that a trial court must make some findings. The court reversed and remanded the case for re-sentencing with appropriate findings. PROBATION: COURT CANNOT ADD CONDITIONS UNLESS PROBATIONER HAS VIOLATED ORIGINAL CONDITIONS.,p> State v. Slone, No. 98AP-14 (10th Dist. Ct. Apps., Franklin Co., 9-1-98) Having entered a guilty plea to one count of failing to support dependents, R.C. 2919.21, a fourth degree felony, Timothy Slone was sentenced to eighteen months but placed on five years probation. The terms of probation included community service, random drug screening, and payment of both past-due and future support. Eight moths later, the court held a hearing on the probation department's request to add an additional condition, that the defendant be required to seek treatment at the Southwest Mental Health Center. The court said at the hearing that the hearing was not a probation revocation hearing. The court imposed the additional condition and the defendant appealed. The Franklin County Court of Appeals reversed, holding as follows: In the absence of a probation violation, the court had no authority to add terms and conditions to appellant's probation. The court remanded with instructions to the trial court to delete the additional condition. |
