 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
TRIAL PROCEDURE: COURT MAY CLOSE COURTROOM, WHEN. State v. Whitaker, No. 83824 (8th Dist. Ct. App., Cuyahoga Co. 9-23-04) 2004 Ohio 5016. Stacy Whitaker had been evicted from her apartment because she failed to pay her rent. Having come back to the building, either to collect belongings or talk to friends, she was asked to leave. Whitaker was displeased. She threatened to burn the building down. Two days later, a fire that started in Whitaker's former apartment burned the apartment building and a nearby house. The Cuyahoga County Grand Jury indicted Whitaker for arson. During defense counsel's questioning of the detective who investigated the case, Detective McCarthy, the prosecution objected and asked to have the testimony taken in private. Federal officials were investigating the manager of the property in connection with a "house-flipping" scheme. Defense counsel's questions were about to evoke details about that investigation. The trial court decided, and defense counsel agreed, to hear the rest of the testimony in the jury room. Whitaker was convicted and she appealed. A different defense attorney on appeal argued that the trial court erred in closing the trial and that defense counsel was ineffective for failing to object. Although observing that counsel had waived the right to raise error as counsel had agreed to the procedure, the court also held that the trial court acted properly. Closing a public trial rests within the discretion of the trial court, said the appellate court. The trial court in the instant case abided by the requirements of Waller v. Georgia (1984), 467 U.S. 39 in deciding to move the trial to the jury room. Those requirements, the appellate court continued, are that the party seeking closure must have an interest that overrides the interest in a public trial, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closure, and the court must make adequate findings to support the closure. As the father of the person being investigated was in the courtroom, and as the court and parties discussed the situation thoroughly and the court heard only brief testimony in private, the appellate court said, the trial court acted within its discretion. Because the court acted properly, the appellate court continued, counsel had no reason to object and counsel's objecting would have had no effect on the outcome of the trial or appeal. The court affirmed the conviction. EX POST FACTO: ESCAPE; FAILING TO REPORT TO PAROLE OFFICER. State v. Douglas, No. 83743, 83769 (8th Dist. Ct. Apps., Cuyahoga Co. 7-8-04) 2004-Ohio-3605 The state appealed from the trial court's dismissing indictments against John Douglas for failing to report a new address as a sexually oriented offender and for escape, based on his failing to report to his parole officer. Having been convicted in 1989 of two counts of rape, Douglas was paroled in November of 2000. In 2002, the Cuyahoga Grand Jury indicted him for failing to report his new address and escape. The trial court, relying on State v. Thompson, No. 78919, 2002 Ohio 6478, dismissed both counts. In Thompson, the Cuyahoga County Court of Appeals had held that a person could not be charged with escape for failing to report to his parole officer after March 17, 1998, when the escape statute was amended to include failing to report to a parole officer, if he had committed his original crime before March 17, 1998. However, the Ohio Supreme Court, when the trial court dismissed the indictments, had already reversed Thompson in State v. Thompson (2004), 102 Ohio St.3d 287, 2004 Ohio 2946. Additionally, the Cuyahoga County Court of Appeals held that its opinion in State v. Thompson had never applied to failing to report as a sexually oriented offender. That statute provided when adopted that it applied to all persons determined to be sexually oriented offenders, regardless of when they committed their original crimes. The court reversed and remanded for trial. PROBATION: COMMUNITY CONTROL MAY NOT BE REVOKED AFTER TERM EXPIRES, EVEN IF PROCEEDINGS INITIATED BEFORE TERM EXPIRES. State v. McKinney, No. 03COA083 (5th Dist. Ct. Apps., Fairfield Co., 7-26-04), 2004 Ohio 4035. On March 18, 1998, Brian McKinney was convicted of complicity to commit involuntary manslaughter and sentenced to three years in prison. On June 22, 1998, the court granted judicial relief, placing McKinney on community control, to expire on June 22, 2003. On May 28, 2003, the state filed a motion to revoke McKinney's community control on the grounds he had possessed and used drugs. After holding a probable cause hearing on May 30, 2003, the trial court scheduled a final hearing for June 26, 2003, which was continued to August 4, 2003. New defense counsel requested a continuance until September 4, 2003. On September 4, 2003, counsel moved to dismiss, claiming the court lacked jurisdiction to revoke the defendant's community control, as it had expired. The court overruled the motion and revoked the community control on October 10, 2003. The trial court distinguished Davis v. Wolfe (1992), 92 Ohio St.3d 549, in which the Ohio Supreme Court held that jurisdiction to revoke probation ends when the probationary period ends, by saying that the state had initiated proceedings before the probationary period ended. [Ed. Note: The trial court's reasoning is unclear as, according to the discussion of Davis in McKinney, it appears that the state initiated revocation proceedings in Davis before the probationary period expired also]. The Fairfield County Court of Appeals reversed. The court disagreed with the state's interpretation of State v. Yates (1991), 58 Ohio St.3d 78, in which the Ohio Supreme Court said, "Because the State failed to initiate probation revocation proceedings during the original probation period Y the trial court lost its jurisdiction to impose the suspended sentence once the term of probation expired." The state argued that meant if the state had initiated proceedings before the term expired, the court would have retained jurisdiction. The appellate court said the holding in Yates was that the court loses jurisdiction after the term expired. The converse of the court's remark regarding when revocation proceedings begin is not necessarily true. The court ordered the defendant discharged. PROBATION: COURT CAN NOT BOTH IMPOSE SENTENCE AND EXTEND PROBATION. State v. Spencer, No. 03CAC11061 (5th Dist. Ct. Apps., Delaware Co., 6-14-04). On November 11, 2002, Bill Spencer entered guilty pleas in the Delaware Municipal Court to DUI and driving without a valid operator's license. The court sentenced him to two consecutive 180 day sentences, suspending 90 days of each sentence and placed Spencer on probation for five years. Spencer served 180 days of his sentence. Police arrested Spencer for an unspecified violation. On July 8, 2003, Spencer's having admitted a probation violation, the trial court ordered appellant to serve 45 days in the Delaware County Jail on his original sentence and be returned to probation. Spencer served the 45 days. On October 9, 2003, Spencer was rearrested and charged with a second probation violation. Counsel for appellant moved the trial court to discharge appellant on double jeopardy and jurisdictional grounds, arguing the trial court lost jurisdiction over appellant after it terminated his probation by imposing the 45 day jail sentence on July 8, 2003. After the trial court denied appellant's request, the trial court found appellant had violated the conditions of his probation and terminated probation. The trial court sentenced appellant to the remaining 135 days of his original sentence. Spencer appealed. The Delaware County Court of Appeals agreed with the defendant. Under R.C. 2951.09, the appellate court said, a trial court that revokes probation and imposes part of the original sentence loses jurisdiction to extend probation. SENTENCING: CONSECUTIVE SENTENCES FOR FIREARM SPECIFICATIONS REQUIRED, WHEN. State v. Bates, No. 03-AP-893 (10th Dist. Ct. Apps., Franklin Co., 8-10-04). Robert Bates, while sitting in his car, argued with Moussa Thiam, who was standing outside Bates' car. Bates then shot and killed Mr. Thiam. The jury's having returned guilty verdicts on murder and two firearm specifications, discharging a firearm from a vehicle and displaying, brandishing, indicating possession of or using a firearm during the commission of an offense, the court sentenced the defendant to a fifteen-years-to-life term and five years for discharging a firearm from the car and three years for using the firearm during the offense. The defendant argued on appeal that the firearm specifications should merge. The Franklin County Court of Appeals disagreed. The sentencing statutes, the court said, have been amended to require separate sentences under the circumstances of this case. If an offender is convicted of a felony that includes the element of purposely or knowingly causing the death of or harm to another, a firearm specification under R.C. 2941.146 and a firearm specification under R.C. 2941.141, 2941.144 or 2941.145, the trial court must impose a five-year mandatory prison term under R.C. 2929.14(D)(1)(c) in addition to "a prison term under division (D)(1)(a) of [2929.14] relative to the same offense, provided the criteria specified in that division for imposing an additional prison term are satisfied * * * ." R.C. 2929.14(D)(1)(c); State v. Dixson, Hamilton App. No. C-030227, 2004 Ohio 2575, at P39 [holding that a defendant convicted of felonious assault and firearm specifications under R.C. 2941.141, 2941.145, and 2941.146 must be sentenced to mandatory prison terms pursuant to R.C. 2929.14(D)(1)(a) and (D)(1)(c)]. Further, under R.C. 2929.14(E)(1)(a), an offender must serve a prison term imposed under 2929.14(D)(1)(a)(ii) or (D)(1)(a)(iii) and a prison term imposed under 2929.14(D)(1)(c) consecutively. R.C. 2929.14(E)(1)(a) ("If both types of mandatory prison terms are imposed, the offender shall serve any mandatory prison term imposed under either division consecutively to any other mandatory prison term imposed under either division"); State v. Gresham, Cuyahoga App. No. 81250, 2003 Ohio 744, at P14 ("It is clear that the legislature intended to cumulate the mandatory prison terms contained in R.C. 2941.141, on the one hand, and R.C. 2941.146, and to require them to be served consecutively to one another and to the prison terms for the base offense.").
|
