 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
SEARCH AND SEIZURE: EXIGENT CIRCUMSTANCES RELIEVE POLICE FROM KNOCK AND ANNOUNCE REQUIREMENT. State v. Ensehusis, No. 05COA0042, (9th Dist. Ct. Apps., Wayne Co., 2-15-06), 2006 Ohio 651. Having been convicted of drug possession, Ra Aku Ensehusis appealed the trial court's overruling his motion to suppress evidence. Police arrived at Ensehusis' home to execute a search warrant. An unknown person in front of the home required significant restraint, resulting in significant noise. As the officers had lost the advantage of surprise, they feared evidence would be destroyed and entered without knocking. The trial court overruled the defendant's motion to suppress and the appellate court affirmed. Exigent circumstances, the court said, justified entering without knocking. The court affirmed the conviction. [Ed. Note: On May 22, 2006, the United States Supreme Court decided Brigham City, Utah v. Stuart et al.,No 05-502. Officers approached a home without a warrant. Through the window, they saw a "melee." They entered without knocking, although they did shout "police." No one heard them. The court held the entry reasonable, referring to injury to another as being an exigent circumstance.] TRIAL PROCEDURE: ONLY CHIEF JUSTICE CAN FIND TRIAL JUDGE BIASED. State v. Woods, No. 05CA 46 (5th Dist. Ct. Apps., Richland Co., 3-23-06), 2006 Ohio 1342. Dekek Woods left a grocery store pushing a cart of groceries for which he had not paid. A store employee followed him and asked to see his receipt. Without responding, Woods put the groceries in his car and pulled away, hitting an employee. The employee fell from the hood of the car and suffered injuries to her face and knees. Woods was convicted of aggravated robbery and sentenced to a non-minimum term of imprisonment pursuant to R.C. 2929.14. On appeal, the defendant claimed the judge had been biased against him because the judge, according to appellant, dismissed a juror for racial reasons and made inappropriate remarks. The Richland County Court of Appeals observed that only the Chief Justice of the Ohio Supreme Court may decide whether a trial judge is biased. However, an appellate court may rule on whether a judge acted properly. The judge told the jury "The defendant is African-American and most of you are not...However, nobody is going to play the race card in this courtroom and escape... It has nothing to do with the case... Give me a sign that you can handle the case on the evidence and the law and nothing else." Appellant failed to object to the above and the appellate court found no error. JURY MATTERS: DISMISSING FOR CAUSE. State v. Woods, supra. Appellant also claimed the trial judge improperly dismissed a juror, James Jackson, apparently black, although the opinion is silent, for cause. After a colloquy between the court and Mr. Jackson, in which Mr. Jackson accused the judge of "singling him out to question about a family member having been involved in a crime." Mr. Jackson was apparently an equal-opportunity-offender, as he seemed to also dislike the defense attorney and the prosecutor. He interrupted their questions, asked them questions, accused them of calling him a liar, and told the court and defense counsel that he disliked their remarks about race. Finally, Mr. Jackson announced he wanted no part of the case because someone, probably the court, had treated him, Mr. Jackson, unfairly. Saying that Mr. Jackson had a chip on his shoulder bigger than himself, the court granted the prosecutor's motion to dismiss Mr. Jackson. Defense counsel objected. The Appellate court agreed with the trial court. SENTENCING: REMAND AFTER STATE V. FOSTER (2006) 109 Ohio St. 3d 1. State v. Woods, supra. Because the trial court sentenced the defendant under the statutes found unconstitutional in State v. Foster (2006), 109 Ohio St.3d 1, 2006 Ohio 856, the court remanded the case for re-sentencing. The court quoted the following language from Foster, "trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences." The appellate court remanded the case for a new sentencing hearing. SENTENCING: REMAND AFTER STATE V. FOSTER (2006) 109 Ohio St. 3d 1. State v. Tuttle, No. 05-COA 018 (5th Dist. Ct. Apps., Ashland Co. 4-20-06), 2006 Ohio 1957. Jimmy Tuttle Jr. entered guilty pleas to aggravated robbery, abduction, and petty theft. The trial court imposed sentences greater than the minimum for each offense and ordered them to run concurrently. The opinion fails to report whether the court made findings under R.C. 2929.14 (B)(1). However, the court of appeals reversed and remanded for re-sentencing, saying "appellant's 'more than the minimum' sentences are based upon an unconstitutional statute that is deemed void." SENTENCING: NO FINDINGS, NO FOUL. State v. Seward, No. 05CA2864, (4th Dist. Ct. Apps., Ross Co. 4-24-06), 2006 Ohio 2058. Lisa Seward was convicted of possession of cocaine. On August 3, 2005, the court imposed a maximum twelve-month sentence, to run consecutively to a prison term she was already serving. The court failed to make findings under R.C. 2929.13(B)(1), that community control was insufficient, and findings to support the consecutive sentence. The Ross County Court of Appeals affirmed. On February 27, 2006, the Ohio Supreme Court decided State v. Foster (2006), 109 Ohio St. 3d 1, 2006 Ohio 856. Under Foster, the Ross County Court of appeals said, a court may impose any sentence authorized for the offense, without making any findings or stating any reasons. Therefore, although at the time of sentencing, Ohio law required the court to make findings, the trial court, by failing to follow the law, sentenced correctly. SENTENCING: NO REMAND UNDER R.C. 2953.08(G)(2)(b). State v. Summers, No. 05CA008784, (9th Dist. Ct. Apps., Lorain Co., 5-3-06), 2006 Ohio 2178. Joyce Summers entered guilty pleas to two counts of endangering children. The trial court imposed maximum, consecutive sentences. On appeal, appellant argued that the sentences were "unjustified" under R.C. 2929.14(C), requiring the offense be the worst form or the offender be likely to re-offend. The opinion fails to report whether the trial court made the findings. However, the appellant argued not that the court failed to make the findings but that the sentences were "unjustified." The appellant asked that the case be remanded under R.C. 2953.08(G)(2)(b), allowing an appellate court to remand if it finds a sentence "contrary to law." The appellate court held that R.C. 2953.08(G)(2)(b) was unavailable as the Ohio Supreme Court declared it unconstitutional. The court also held that, as R.C. 2929.14(C) is unconstitutional, it fails to provide a cause of action. The court affirmed the sentence. [Ed. Note: It is impossible to tell from the opinion whether this is a case of "no findings, no foul" or whether the appellate court is holding that the Ohio Supreme Court rendered it impossible to do what it said was necessary, to wit: remand for re-sentencing.] SENTENCING: RAISE IT OR WAIVE IT. State v. Duffield, No. 22634, (9th Dist. Ct. Apps., Summit Co., 4-12-06), 2006 Ohio 1823. A jury convicted Daniel Duffield of murder, involuntary manslaughter, and three counts of endangering children, all relating to the beating death of an infant who, with her mother, lived with Duffield. On March 1, 2005, the court sentenced the defendant consecutively. Among other things, the defendant argued on appeal that his case should be remanded for re-sentencing under State v. Foster. The Summit County Court of Appeals held that appellant had failed to preserve the error. The United States Supreme Court decided Blakely v. Washington (2004), 542 U.S. 296, the appellate court said, before the trial court sentenced appellant. As appellant failed to raise the issue at trial, he failed to preserve the issue for appeal. The court affirmed the conviction and sentence.
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