 | Written and Edited by Joyce S. Anderson, Former Chief Counsel Appellate Division, Franklin County
RIGHT TO COUNSEL: HYBRID REPRESENTATION REVERSIBLE ERROR. State v. Litten, No 89235, (8th Dist. Ct. of Apps., Cuyahoga Co.). Harold Litten was charged with twelve drug charges. Before trial, he began complaints of one who thinks he knows more than his lawyer. He asked to represent himself but refused to sign the waiver. He said he wanted counsel to assist him, but that he wanted to make his own decisions, file his own motions, etc. The original trial judge recused himself. The newly assigned judge allowed the defendant to have hybrid-representation. Defense counsel questioned some witnesses; the defendant gave the closing argument. Despite the defendant's receiving exactly what he asked for, the Cuyahoga County Court of Appeals reversed. There was no waiver of the defendant's right to counsel, and even if there had been, the court said, it would be invalid because the defendant did not represent himself but engaged in hybrid-representation. According to the Cuyahoga County Court of Appeals, the Ohio Supreme Court prohibited hybrid representation. [Ed. Note: It's not clear that the Ohio Supreme Court case of State v. Martin, 103 Ohio St. 3d 385, prohibits hybrid-representation under all circumstances. However, trial judges need to know that they are doing a defendant no favor by allowing hybrid representation and, if a judge allows it, the judge is likely to get reversed.] The court reversed and remanded for retrial. MOTION TO SUPPRESS EVIDENCE: MUST BE HELD BEFORE TRIAL. State v. Litten, supra. For unstated reasons, the judge who actually conducted the trial decided to hold the suppression hearing during trial. The appellate court held that doing so violated the defendant's right to present evidence in a pre-trial motion to suppress the fruits of a search. The court reversed and remanded for a suppression hearing and, "if necessary," a retrial. [Ed. Note: The court appears to be assuming that, if the evidence is suppressed, the state will be unable to proceed to a trial.] HEARSAY: EVID. R. 807, COMPETENCY FINDING REQUIRED EVEN IF DECLARANT DECEASED. State v. Silverman, No. 22097, (2d Dist. Ct. App., Montgomery Co., 2-15-08). Doron Silverman was charged with two counts of rape by fellatio, the victim being his three-year-old son. The child made statements to his aunt and another private person. The defendant confessed. Before the state indicted the defendant, his wife, Heather, set fire to their home with the victim and his three-month-old sister inside. The children died. At trial, the court admitted the statements of the victim under Evid. R. 807. The trial court held that the requirement of finding the declarant competent is inapplicable when the declarant is dead. The defendant was convicted and he appealed. While observing that its opinion conflicted with the opinion in State v. Meadows, Scioto Apps., No. 99CA2651, 2001 Ohio 2510, the Montgomery County Court of Appeals held that State v. Said (1994), 71 Ohio St. 3d 473, requires a finding that the child is competent to testify before statements can be admitted under Evid. R. 807. The court reversed and remanded for retrial. SENTENCING: POST-RELEASE CONTROL. State v. Schmitt, No 10-07-13, (3d Dist Ct. of Apps., Mercer Co., 3-10-08). Steven Schmitt pled guilty to felonious assault and received a four-year sentence. However, the trial court failed to notify him of post-release control. The defendant filed a motion for judicial release, which the court refused. At the hearing, however, the court, at the request of the prosecutor, notified the defendant of post-release control. The defendant appealed, claiming that, because the state had failed to appeal the first sentence, the court could not impose post release control now. The court rejected that argument, saying the sentence without notification of post release control had been void. A court may always correct an invalid sentence. However, because the court at the hearing on the motion for judicial release failed to hold a full sentencing hearing, the court reversed and remanded for the trial court to re-sentence the defendant properly. SENTENCING: POST-RELEASE CONTROL, CORRECTION TOO LATE. State v. Lemieux, No 89678, (8th Dist. Ct. Apps., Cuyahoga Co., 3-20-08). Robert Lemieux pled guilty to felonious assault and was sentenced to an unspecified term. The day before he was to be released, the state filed a motion to correct the sentence to reflect the imposition of the mandatory period of post-release control. The court issued an entry imposing post-release control. The defendant appealed. As the court failed to conduct a de novo sentencing hearing, the Cuyahoga County Court of appeals held, the entry imposing post-release control was void, as was the original sentencing entry. As the defendant was now out of prison, however, he was no longer subject to re-sentencing. The appellate court remanded and ordered the trial court to vacate the post-release control.
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