 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
PLEAS: PROSECUTION CANNOT PROMISE TO ALLOW DEFENDANT TO WITHDRAW A GUILTY PLEA. State v. Aponte, No. 99AP-695, 99AP-695 (10th Dist. Ct. Apps., Franklin Co., 8-30-01). The Franklin County Grand Jury indicted Asualdo Aponte for felonious assault, having a weapon while being under disability, and failing to comply with an order of a police officer. A written plea agreement provided the defendant would plead to those charges and to additional offenses of felonious assault, WUD, and vandalism, charged by way of information. The agreement provided that the defendant would testify at a grand jury against other persons. If the prosecutor decided the defendant had complied with the agreement, "the defendant shall then be allowed to withdraw his previously entered guilty pleas." Having been granted bond, the defendant fled. A year later, after being arrested on a capias, the defendant filed a motion to withdraw his guilty plea. The trial court denied the motion and the defendant appealed. The Franklin County Court of Appeals affirmed. However, the court granted the appellant's application for reconsideration under App. R. 26. The court found that appellant's first appellate counsel had provided ineffective assistance for failing to argue that appellant's guilty plea was involuntary. As the plea was induced by an unfulfillable promise, the court held, the plea was involuntary. It is not a prosecutor but a court who decides whether a defendant will be allowed to withdraw a guilty plea. Therefore, the prosecutor had no authority to promise the defendant he would be allowed to withdraw his guilty pleas. The court reversed and remanded with orders to allow the defendant to withdraw his pleas. SENTENCING: SENTENCING PACKAGE DOCTRINE: COURT MAY ON REMAND INCREASE SENTENCES ON RELATED OFFENSES WHEN AN OFFENSE IS VACATED ON APPEAL. State v. Couturier, No. 00AP-1293 (10th Dist. Ct. Apps., Franklin Co., 9-13-01). Henry Couturier was convicted in 1999 for one count of felonious assault, three counts of corrupting a minor, and one count of corrupting another with drugs. Couturier, infected with HIV, had sex with a "thirteen-year-old victim," of unspecified gender. Couturier infected the victim with HIV. The trial court sentenced the defendant to five years for felonious assault, nine months for corrupting another and fifteen months on the three merged counts of corrupting a minor. The Franklin County Court of Appeals reversed, holding the state had failed to prove that the defendant "'knowingly' tried to use HIV to harm anyone else." In its opinion, the appellate court said, "The trial court may wish to revisit the appropriate sentence on the remaining four charges for which appellant still stands convicted." On remand, the trial court separated the previously merged corrupting a minor charges and imposed consecutive-seventeen-month sentences. The court imposed a consecutive-seventeen-month sentence for corrupting another with drugs. The total sentence was five years, eight months; the original total sentence was seven years. The defendant appealed, arguing it violated the double jeopardy clause and the due process clause to impose separate sentences for three counts of corrupting a minor when the trial court had found after the first trial that the offenses merged. The appellate court applied something it called the "sentencing package doctrine." The essence of this "doctrine" is that a trial court decides the total number of years the court feels is an appropriate punishment for a defendant's conduct. A trial court might impose a lesser sentence on one offense because the court imposes another sentence on another count. If one count is reversed on appeal, however, the remaining sentences might, in the trial court's opinion, be insufficient punishment for the defendant's conduct. Thus, a trial court may impose greater sentences for convictions that remain viable, to more closely approximate the punishment the court believes appropriate. Although the appellate court held a trial court could increase a sentence, the court disagreed that the trial court could "unmerge" merged counts. Offenses either merge or not, regardless of the total sentence. Therefore, the appellate court reversed and remanded, again, for resentencing. SENTENCING: FACTORS JUSTIFYING MAXIMUM SENTENCE NEED NOT BE FOUND BY JURY. State v. Robinson, (2d Dist. Ct. Apps., Montgomery Co., 2-8-02). Edward Robinson was convicted of involuntary manslaughter and sentenced to the maximum ten-year term. Because the trial court neglected to make the appropriate finding, the appellate court reversed. On remand, the court imposed the same sentence. This time on appeal the defendant argued that the case of Apprendi v. New Jersey (2000) 530 U.S. 466, requires that sentencing factors allowing for a maximum sentence be included in the indictment and found by a jury. The Montgomery County Court of Appeals rejected that argument and affirmed the sentences. APPEAL: APPELLATE COURT HAS DISCRETION TO REVIEW LEGAL ISSUES AT BEHEST OF STATE, ALTHOUGH THE TRIAL COURT'S RULINGS ON THOSE ISSUES ARE NOT FINAL ORDERS. State v. Streight, No. 2-01-23 (3d Dist. Ct. Apps., Auglaize Co., 2-14-02). Thomas Streight was charged with domestic violence and aggravated menacing in Auglaize County Municipal Court. The charges arose from an argument with his ex-wife, Janet Marvin, about when he would return their children to her custody after a visitation period. Ms. Marvin tried to remove the children from Streight's car. Streight grabbed her and pushed her away. Ms. Marvin called the police, who arrested Streight. At trial, the Municipal Judge instructed on disorderly conduct as a lesser included offense of Domestic Violence and Aggravated Menacing. The court also instructed that it was an affirmative defense if the defendant believed that using force was necessary to protect his visitation rights. The jury acquitted the defendant of domestic violence, aggravated menacing, and disorderly conduct as a lesser included offense of aggravated menacing. The jury returned a guilty verdict to disorderly conduct as a lesser-included offense of domestic violence. The state filed a motion for leave to appeal, under R.C. 2945.67(A), contesting the court's giving the instruction. The appellate court concluded that it had discretion to hear a state=s appeal in a case that results in a not-guilty verdict so long as the judgment itself is not appealed. AFFIRMATIVE DEFENSES: NO RIGHT TO RESORT TO FORCE TO PROTECT VISITATION RIGHT. State v. Streight, supra. The trial court gave the instruction the defendant requested, that it was an affirmative defense to domestic violence that the force was necessary to protect the defendant's right of visitation with his children. The trial court, according to the appellate court, apparently analogized the situation to R.C. 2919.23(C). That statute specifically provides that it is an affirmative defense to interfering with custody, if the defendant reasonably believes that his conduct was necessary to preserve the child's health or safety. If the General Assembly had intended to provide a defense to domestic violence if the defendant reasonably believed the force were necessary to protect the defendant's right of visitation, the Auglaize County Court of Appeals said, the General Assembly would have so provided in R.C. 2919.25, domestic violence. Moreover, the court continued, resort to force is unreasonable absent a showing that a child's health or safety is at risk. Therefore, the appellate court sustained the state's assignment of error, but affirmed the "verdict, judgment, and sentence" as the defendant "cannot twice be put in jeopardy, State v. Hamilton (1994), 97 Ohio App. 3d 648." JURY WAIVER: MUST BE BOTH FILED AND DISCUSSED IN OPEN COURT. State v. Dominijanni, No. WD-01-002 (6th Dist. Ct. Apps., Wood Co., 7-20-01). Anthony Dominijanni was convicted in a bench trial of one count of intimidating a witness, in violation of R.C. 2921.04(B). The opinion gives no underlying facts. On appeal, the defendant argued the trial court lacked jurisdiction to decide the case without a jury. Although the defendant had signed a jury waiver form, which had been filed with the clerk, no colloquy about the waiver appears on the record. Ohio Revised Code section 2945.05 requires both a signed, filed jury waiver and provides that, "Such waiver of trial by jury must be made in open court after the defendant has been arraigned and has had the opportunity to consult with counsel." The court reversed and remanded for retrial. DISRUPTING PUBLIC SERVICE: APPLIES TO A PRIVATE TELEPHONE, WHEN. State v. Yoakum, No. 01CA005 (5th Dist. Ct. Apps., Holmes Co., 1-17-02). Carl Yoakum and Lou Ann Nash had, for seven years, been, in the words of the court "exclusive paramours." The couple lived separately and had two sons, seven-year-old Kyle and two-year-old Nicholas. At 4:30 p.m. on October 16, 2000, Yoakum arrived at Ms. Nash's house to discuss a problem. Ms. Nash and the children were preparing to leave in Ms. Nash's car. When Yoakum arrived, however, Ms. Nash took the children inside. The couple argued and their seven-year-old son said he was going to call 911. Yoakum threatened the child and threw a cordless telephone against the wall, disabling the phone. Yoakum grabbed Ms. Nash and emptied her purse. Ms. Nash fled to her mother's nearby house, where her mother called 911. The grand jury indicted Yoakum on one count of disrupting public services in violation of R.C. 2909.04(A)(1). The indictment alleged that Yoakum "did purposely by any means or knowingly by damaging or tampering with any property, interrupt or impair telephone service being used for public service or emergency communication...." At a bench trial, the defendant moved to dismiss the indictment at the end of the state's case, arguing the state had failed to prove that the telephone was a "public service" being used for emergency communication. The trial court convicted the defendant of disrupting public services. The Holmes County Court of Appeals affirmed. The court rejected the appellant's argument that a private telephone is outside the reach of the statute. Ohio Revised Code 2909.04(A)(1) provides: "(A) No person, purposely by any means or knowingly by damaging or tampering with any property, shall do any of the following: Although the cordless phone and the wiring inside the house was private property, the appellate court said, the telephone was connected, by a telephone jack, to outside public telephone lines. Appellant also argued that the state had to prove that a 911 call was in progress to prove that Yoakum "interrupted" public service. The appellate court disagreed. The court affirmed the conviction.
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