 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
SENTENCING: COURT MUST MAKE THE FINDINGS REQUIRED BY STATUTE. State v. Gonzalez, No. 1-98-84 (3rd Dist. Ct. Apps., Allen Co., 6-30-99). Christopher Gonzalez was convicted and sentenced to maximum consecutive prison terms for two counts of domestic violence. The trial court said the following: "Based upon the facts of these two counts, and considering your past criminal history, and specifically the fact that these victims have been victims of domestic violence committed by you in the past, I'm going to sentence you on each count to twelve months in the Ohio Correctional Facility." The "finding" required to impose a maximum sentence, however, is that the offender "committed the worst forms of the offense" or that the offender poses "the greatest likelihood of committing future crimes." The court reversed and remanded for the court to make the appropriate findings. [Ed. Note: The Ohio Supreme Court in State v. Edmonson (1999) 86 Ohio St. 3d 324, reached a similar conclusion. Essentially the Ohio Supreme Court said that the trial court must make the various findings required by the sentencing statutes exactly as provided in the statutes. Recitations of evidence supporting the findings, the court said, is neither necessary nor sufficient to constitute a "finding." For unknown reasons, trial judges across the state continue making the mistake of giving reasons rather than making findings. Judges need only, The Ohio Supreme Court says, repeat the language of the finding required by the statutes, as it is written in the statute, to wit: "I sentence you to (a maximum sentence) because I find you committed the worst form of the offense[.]" or "I sentence you to (sentence greater than the minimum) because I find that the shortest prison term will demean the seriousness of your conduct." TRAIL PROCEDURE: DISMISSAL OVER PROSECUTOR'S OBJECTION; CRIM. R. 48(B); MOOTNESS. State v. Mobley, No. C-980868 (1st Dist. Ct. Apps., Hamilton Co., 9-3-99) The state appealed from the trial court's dismissing an indictment charging Ernest Mobley with possession of heroin. Mobley had been convicted and sentenced to serve twelve months. The appellate court reversed that conviction because of a jury instruction. On remand, the trial court dismissed the indictment because Mobley had "served his maximum sentence." The state appealed, raising two assignments of error: that the court provided insufficient reasons under Crim. R. 48(B) for its dismissal and that the dismissal was error. The appellate court agreed on both grounds. Crim. R. 48(B) requires a court to state its reasons for dismissing an indictment over the state's objection. The trial court's reasons were insufficiently detailed to satisfy the rule. Assuming the trial court relied upon the doctrine of mootness, the appellate court continued, the trial court erred. The mootness doctrine, the appellate court said, assumes the existence of a conviction. Moreover, the court continued, the Ohio Supreme Court in State v. Golston (1994) 71 Ohio St. 3d 613, held the mootness doctrine inapplicable to felony convictions even if a defendant has served the entire sentence. The court reversed and remanded the case for trial. CONFIDENTIAL INFORMANT: DISCLOSURE UNNECESSARY, WHEN. State v. Deleon, No. 17330 (2d Dist. Ct. Apps. Montgomery Co., 1-29-99). The state appealed from the trial court=s order to reveal the identity of a confidential informant. While driving his car in Dayton, Travis Eskew was shot. He survived but was unable to identify his assailant. Two witnesses, Tashia Benson and Anthony Brown, similarly described the man who shot Eskew. Neither witness, however, identified anyone from five photo spreads. A confidential informant told police that Deleon had admitted the shooting. The police showed Benson a photo spread containing Deleon's photo. Benson selected Deleon's photo but wanted to see him in person. Brown identified Deleon at a lineup. Benson had been unable to attend the lineup. At the hearing on a motion to suppress identification, however, Benson testified that Deleon was definitely not the person who shot Eskew. The defendant had also filed a motion to reveal the identity of the confidential informant. The defendant claimed he needed to know the identity of the informant because of the "obvious danger that the jury will impermissibly speculate that the confidential informant clearly identified Mr. Deleon as the suspect, thereby bolstering the weight they give to otherwise shaky testimonial evidence." The trial court denied the motion to suppress identification but granted the motion to reveal the informant's identity. The state appealed and the Montgomery County Court of Appeals reversed. The court distinguished State v. Williams (1983) 4 Ohio St. 3d 74 and State v. Brown (1992) 64 Ohio St, 3d 649, as the informant in each of those cases significantly participated in the crime. The Montgomery County court continued as follows: "In our view, there is no reason whatsoever for the jury to be informed of the existence of the confidential informant. It is immaterial why police officers chose to show Benson a fifth photo spread containing Deleon's photograph. *** "[T]he state is cautioned that any reference to the existence of the confidential informant, in the presence of the jury, would likely be grounds for a mistrial." The court reversed and remanded for trial. SEXUAL PREDATOR: HEARING MUST BE HELD BEFORE DEFENDANT RELEASED FROM PRISON. State v. Jones, No. 97CA00233 (5th Dist. Ct. Apps., Stark Co., 8-2-99). Gary Jones entered a guilty plea to GSI, the victim being a young boy. The court sentenced him to two years, which he served. After the defendant was released, the trial court held a sexual predator hearing. The defendant claimed the court lacked jurisdiction but the trial court disagreed and found the defendant to be a sexual predator. The Stark County Court of Appeals reversed. The statute says the hearing must be held before the defendant is released from prison, the court said, and the statute means what it says. The court reversed. [Ed. Note: The Ohio Supreme Court in State v. Brewer (1999) 86 Ohio St. 3d 160, reached a similar conclusion] SEARCH AND SEIZURE: MERE EVIDENCE; R.C. 2933.21; CRIM. R. 41. State v. Sheryl Jefferson, No. 17695 (2d Dist. Ct. Apps., Montgomery Co., 8-6-99). The state appealed form the trial court's granting the defendant's motion to suppress evidence seized pursuant to a search warrant. The police received a tip that Sheryl Jefferson had failed to report that Frederick Melton lived with her as she collected welfare benefits to which she was unentitled. The police obtained a search warrant allowing them to seize any documents, clothing, or personal items tending to show that Frederick Melton was residing in Sheryl Jefferson's Section 8 apartment. The trial court granted the defendant's motion because, the court said, R.C. 2933.21 granted judges the substantive right to issue warrants to search for items used or intended to be used to commit a crime and did not allow courts to issue warrants to seize "mere evidence." Although Crim. R. 41 allows seizing evidence of crime, the trial court continued, the substantive statute controls over the procedural rule. The Montgomery County Court of Appeals reversed the trial court. R.C. 2933.21(F), the appellate court said, "provides that the enumeration of certain property and material should not affect or modify other laws for search and seizure." The United States Constitution, United States Supreme Court cases, Crim. R. 41, and Ohio Supreme Court cases, said the Montgomery County Appellate court, all provide that warrants may issue for "mere evidence." The court reversed and remanded for trial.
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