 | Written and Edited by Joyce S. Anderson, Former Chief Counsel Appellate Division, Franklin County
PLEAS: ABUSE OF DISCRETION FOR COURT TO REFUSE TO ACCEPT PLEA AFTER BOTH PARTIES HAVE RESTED, WHEN. State v. Grega, No. 2007-CA-7, (2d Dist. Ct. Apps., Clark Co., 2-15-08), 2008 Ohio 610. Nathaniel Grega and Kizzy Holley robbed a K-Mart. Grega was indicted as an accomplice. Holley accepted a plea bargain of a one-year sentence for pleading to a reduced felony and testifying against Grega. Grega refused the same offer. At Grega's trial, after both parties rested but before closing arguments, the parties agreed that Holley would plead as charged in exchange for an agreed sentence of four years. The trial court refused to accept the plea because, the court said, "He still thinks he's innocent." The jury returned a guilty verdict and the court sentenced Grega to eight years. On appeal, appellant argued the court abused its discretion by refusing to accept the Alford plea. The Clark County Court of Appeals agreed with the defendant. The appellate court deduced from the court's colloquy with the defendant that the sole reason the court declined to accept the plea was that the defendant declined to admit his guilt. The appellate court found that to be an insufficient reason and remanded the case, ordering the court to accept the plea bargain. INEFFECTIVE ASSISTANCE OF COUNSEL: FAILING TO OBJECT TO FAILING TO PROVE VENUE. State v. Grega, supra. The defendant also argued that his attorney was ineffective for failing to object to the state's having neglected to prove venue. The appellate court rejected that argument. There is a Derr Road, the court said, in Clark County. The defendant was charges with robbing the "A K-Mart on Derr Road." Had defense counsel objected, the court continued, the state would have moved to reopen its case to prove venue and the court would have allowed the state to do so. Therefore, the appellate court held, the appellant had failed to prove prejudice. SUFFICIENCY OF EVIDENCE: PROOF OF INTENT TO MANUFACTURE METHAMPHETAMINE. State v. Paris, No 06-CA-134, (2d Dist. Ct. of App., Clark Co., 2-1-08), 2008 Ohio 430. An Ohio State Patrol Trooper stopped a truck for speeding. The driver said he was Josh Mitchell and that he did not have his Tennessee driver's license with him. A computer check failed to verify that information. When the passenger exited the truck at the trooper's request, pills and a drivers license for a "Jonathan Paris" fell to the ground. The driver then admitted he was Paris and that his driver's license had been suspended. The troopers arrested Paris for speeding, operating a vehicle without a valid license, and giving a false name. An inventory in anticipation of towing the truck revealed 1,392 pills containing pseudoephedrine. The trooper charged Paris with a violation of R.C. 2925.041, Possession of Chemicals Used to Manufacture a controlled Substance with Intent to Manufacture a Controlled Substance. A jury returned a guilty verdict and Paris appealed. He argued on appeal that the state had failed to prove that he intended to manufacture a controlled substance. The Clark County Court of Appeals disagreed. The state argued that the number of pills in the defendant's possession was sufficient evidence that he intended to manufacture methamphetamine. The appellate court declined to rule on that point, saying only it had found no authority to support it. However, the court found that additional evidence, combined with the quantity of pills supported the conviction. The pills were purchased at different stores and had been removed from their cardboard containers, leaving only the blister packs. The court held the evidence sufficient to infer that the defendant did not intend to take the pills for his own allergies. The court affirmed the conviction. STATE'S APPEAL: TRIAL COURT'S REDUCING DEGREE OF FELONY APPEALABLE BY STATE WITH LEAVE ONLY. State v. Clements, No 07- CA 22, (5th Dist. Ct. Apps., Licking Co., 1-7-08), 2008 Ohio 30. The Licking County Grand Jury indicted Todd Clements for failing to register as a sex offender, in violation of R.C. 2950.05(B)(E)(2) and 2950.99(A)(1)(b)(i), as third degree felonies. The prior offense supporting the crime as a third degree felony was an attempt to violate R.C. 2950.05. The trial court accepted the defendant's argument that a conviction of an attempted violation of R.C. 2950.05 was not a prior conviction of R.C. 2950.05, and ordered the indictment amended to charge a fourth degree felony. The state filed an appeal under R.C. 2945.67 and Crim. R. 12(J), alleging that the state had an appeal as of right because the trial court had "dismissed" part of the indictment. The Licking County Court of Appeals disagreed. Reducing the degree of the offense, the court reasoned, did not "dismiss" the count. Therefore, the court held, the State would have been required to seek leave to appeal under APP. Rule 5(C), within the 30 day limit. The court dismissed the appeal and remanded for proceedings consistent with the opinion. DISCOVERY: DISMISSING INDICTMENT ABUSE OF DISCRETION FOR STATE'S FAILING TO PROVIDE DISCOVERY BEYOND THAT REQUIRED BY RULES. State v. Jenkins, No. 06-CA-12, (4th Dist. Ct. of Apps., Meigs Co. 12-31-07), 2007 Ohio 7180. The State appealed the trial court's dismissing an indictment alleging that Stephen Jenkins knowingly obtained, possessed, or used a controlled substance, crack cocaine, along with the specification that the amount of crack cocaine involved was one gram or less, and two specifications regarding forfeiture of property derived directly or indirectly from the commission of the felony drug offense. The State filed a notice, pursuant to R.C. 2925.51, of a laboratory report from James R. Smith, forensic specialist for the Ohio Bureau of Criminal Identification and Investigation; a copy of a notarized statement identifying Mr. Smith and stating that he is an employee of the BCI laboratory that issued the report; a notarized statement outlining Mr. Smith's education, training, and experience; and a statement that Mr. Smith's regular duties included analyzing controlled substances. The statement also indicated that the scientifically accepted tests Mr. Smith employed were performed with due caution, and the evidence was handled in accordance with established and accepted procedures while in BCI's custody. The notice provided that the substance tested by BCI was weighed and analyzed, and amounted to 0.79 grams of cocaine. The notice also advised the Defendant that he could demand Mr. Smith's testimony by serving a demand upon the prosecuting attorney within seven days from his or his attorney's receipt of the report. The notice was served upon the Defendant by ordinary mail on September 11, 2006. On October 27, 2006, the Defendant filed a number of motions, including a demand for discovery requesting the items set forth in Crim.R. 16(B)(1), as well as additional documents. He also filed motions to suppress, a request for a bill of particulars, requests for additional discovery, and a demand for the appearance of Mr. Smith. On October 31, 2006, the State filed an answer to discovery and a bill of particulars. The answer to discovery listed the witnesses the State intended to call, including Mr. Smith. It also included an additional copy of the laboratory report and the affidavit provided previously. At a preliminary hearing, the trial court dismissed the indictment because the state had failed to provide unspecified discovery. The State appealed and the Meigs County Court of Appeals reversed. The appellate court remarked that it was unclear what the trial court believed the state should have supplied. However, the court observed that, whatever it was, it was beyond the requirements of Crim. R. 16, because the state had satisfied Crim. R. 16. The appellate court also observed that the case of Lakewood v. Papadelis (1987), 32 Ohio St.3d 1, requires a trial court to impose the least serious sanction that will enforce the discovery rules. The Meigs County Court said, "A trial court commits reversible error justifying reinstatement of the original charges where it orders disclosure beyond the requirements of Crim.R. 16, and orders dismissal for failure to comply with such an order. State v. Hall (1991), Delaware App., No. 90-CA-36, 1991 Ohio App. LEXIS 1678." The appellate court held that the trial court had abused its discretion and remanded for trial. |
