Ohio Dui - Cleveland Attorney Avery H. Fromet » Issues on Appeal

The Importance of Pleading No-Contest

afromet — Wed, 18 Jan 2012 14:09:35 +0000

In Ohio, there are three forms of pleading in traffic or criminal cases, guilty, not guilty and not guilty by reason of insanity. For purposes of this blog entry, I will not be discussing the third. But, the reader should be aware of the issues involved in entering a plea of guilty or no contest.

A plea of “guilty” is a complete admission of guilt, Crim.R. 11(B)(1). A plea of no contest indicates that, while you are not admitting guilt, you do not dispute the charge. In most instances, a no contest plea prevents any conviction being used in a civil action. This is most prevalent in traffic accident cases where the defendant is charged with causing the accident. By pleading no contest, the defendant can adjudicate the traffic case and prevent their plea from being used in a subsequent civil law suit for damages.

In the case of an OVI your plea takes on a much important role. The nature of your plea determines your rights on appeal. An example of this issue was illustrated in the recent case of State v. Ramsey, 2012 Ohio 134. In the case, the defendant was arrested for OVI. He filed several pre-trial motions which were all denied. Subsequently, he entered a plea guilty to a lesser and charge and then appealed the lower court’s denial of his motions.

The appellate court refused to rule on his appeal reasoning the “A plea of guilty is a complete admission of guilt...A defendant who enters a plea of guilty waives the right to appeal all nonjurisdictional issues arising at prior stages of the proceedings, although the defendant may contest the constitutionality of the plea itself. Ross v. Common Pleas Court of Auglaize Cty. (1972), 30 Ohio St.2d 323, 285 N.E.2d 25. "Thus, by entering a guilty plea, a defendant waives the right to raise on appeal the propriety of a trial court's suppression ruling." State v. McQueeney, 148 Ohio App.3d 606, 774 N.E.2d 1228, 2002 Ohio 3731, ¶13.

Therefore, once a defendant pleads guilty they waives all appealable issues other than the plea itself. Therefore, be forewarned, if your intent is to appeal the findings of the lower court, an entry of no contest will preserve that right as it is not a complete admission of guilt but merely an admission to the facts.

Enhancement and the Right to Counsel

afromet — Tue, 20 Dec 2011 14:38:04 +0000

As many who follow this blog are aware, the sentence for an OVI can not be enhance unless the prior conviction was “counseled.” Therefore, if one is convicted of a subsequent OVI, the court can not sentence a defendant to the enhanced penalties unless the defendant was properly enlightened as to their rights when they pled in the prior OVI. The courts use criminal rule 44(B) as the criteria. This rule requires the court to fully outline the defendant’s constitutional rights prior to taking their plea. If the prior court properly outlines the defendant’s rights, as set forth in Rule 44(B), the defendant is said to be properly “counseled” even if the defendant pleads without being represented by an attorney.

A recent Second Appellate District Court (Montgomery County) case has enhanced a court’s duties as it relates to the explanation of these rights. In the case of State v. Gross, 2011 Ohio 6490, the court stated that merely telling the defendant has a right to counsel is insufficient.

The court began its synopsis of the case by stating, “Courts are to indulge every reasonable presumption against the waiver of a fundamental constitutional right, including the right to counsel. The waiver must affirmatively appear in the record, and the State bears the burden of overcoming presumptions against a valid waiver.”

The court went on, “For a waiver of the right to counsel to pass constitutional muster, it must be knowing, intelligent and voluntary...At the core of Crim. R. 44(B) is the offender's inability to obtain counsel. The trial court in a criminal case must inquire fully into the circumstances surrounding an accused's inability to obtain counsel...In order to ensure that a waiver of counsel is made knowingly, intelligently and voluntarily, the trial court must make sufficient inquiry to determine whether a defendant fully understands and intelligently relinquishes that right.”

The court further explained, “To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive that right does not automatically end the judge's responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused's professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.”

The court concluded, “A sketchy or minimal inquiry touching upon only some of the factors enumerated ...will not adequately establish an effective waiver of counsel.”

In the prior case, the court used a written outline to explain the defendant’s constitutional rights. In its outline, the court merely explained to the defendant that he had a right to counsel and asked if he wished to waive that right. The defendant answered affirmatively. The lower court stated this was insufficient and refused to enhance the defendant’s sentence for the subsequent OVI for which he was charged. The state appealed. The Second Appellate Court agreed with the lower court using the reasoning set forth above. As the court stated, “...The fact that an accused may tell him that he is informed of his right to counsel and desires to waive that right does not automatically end the judge's responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter.”

Probable Cause to Arrest for Underage Drinking

afromet — Sat, 26 Nov 2011 16:48:49 +0000

Readers of this blog should be familiar with several articles I’ve written regarding probable cause to arrest. Basically the term is defined as follows: “Probable cause to arrest without a warrant exists where, based on the totality of the circumstances, an officer possesses sufficient information to cause a reasonable and prudent person to believe that a suspect is committing or has committed a criminal offense, Texas v. Brown (1983), 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L. Ed. 2d 502; Illinois v. Gates (1983), 462 U.S. 213, 230-232, 103 S.Ct. 2317, 76 L. Ed. 2d 527.

But what if the alleged offender is less than 21. According to the First Appellate District (Hamilton County), probable cause to arrest requires less evidence of impairment. In the case, State v. Carroll, 2008 Ohio 6832, the defendant, who was 18, was stopped for speeding. While addressing the defendant, the officer smelled alcohol on the defendant’s breath, and observed that his eyes were glassy and bloodshot. The defendant admitted consuming beers earlier. The officer had the defendant exit his vehicle and perform field sobriety tests. The defendant passed all three tests.

The lower court granted the defendant’s motion to suppress stating that the officer lacked probable cause to arrest the defendant as there was no evidence of impairment. The appellate court argued impairment is not relevant and reversed and remanded the case.

The court’s analysis of the case began with a citation of R.C. 4511.19(B)(3) which prohibits anyone under 21 years old from driving with a blood alcohol content (BAC) of.02 or higher, “regardless of actual impairment.”

The court went on to say “Field sobriety tests can reveal physical impairment that sometimes accompanies a higher BAC...In determining what constitutes probable cause to arrest for an underage driving under the influence of alcohol (DUI) offense, an officer must look for less obvious indicators of alcohol consumption when assessing an underage drinking driver because these indicators are naturally more subtle than the indicators in a per se offense with a higher prohibited blood alcohol content level. Common sense can and should play a role in an arresting officer's probable-cause determination in an underage DUI case, given that the prohibited per se limit is so minimal. However, an officer should not look for "slight indicators of impairment" when deciding whether to arrest for a violation of R.C. 4511.19(B)(3), since impairment is not at issue.” Therefore, the fact that the defendant passed all three field sobriety tests was irrelevant.

The appellate court quoted the lower court and, in relevant part, found that 18-year-old had been speeding, that he had smelled of alcohol, that he had glassy and bloodshot eyes, and that he had admitted to drinking a couple of beers a few hours earlier. Under the circumstances, the court found that the office had probable cause to arrest the defendant therefore, stating that the results of field sobriety tests has no relevance in determining probable cause to arrest a minor for OVI.

The Burden of Showing Substantial Compliance

afromet — Wed, 26 Oct 2011 01:09:24 +0000

Past blogs have discussed the term “substantial compliance.” The term is used contextually in at least the area of adherence to the requirements for the Ohio Administrative Code as relates to chemical testing and in conformity with the requirements of NHTSA for Field Sobriety testing. While it is a term used in at least two areas of OVI judicial procedure, a definitive definition of the term has alluded Ohio courts.

A recent Third Appellate District case has come closer to defining what is meant by “Substantial Compliance.” The case, State v. Kitzler, 2011 Ohio 5444, involved an attempt by the defendant to suppress field sobriety tests. While the officer testified as to the administration of the test and his training and education regarding field sobriety tests, the prosecution failed to introduce into evidence the applicable standards required.

In its opinion, the court stated, “It is only logical that in order to prove substantial compliance with a given standard, there must be at minimum some evidence of the applicable standard for comparative purposes. Accordingly, where the suppression motion raises specific challenges to the field sobriety tests, the state must produce some evidence of the testing standards, be it through testimony or via introduction of the NHTSA or other similar manual or both.”

The court went on to state “...the State did not meet its burden of proof as to the field sobriety tests and they should have been suppressed.”

Therefore, this court has set forth a three part axiom to prove substantial compliance:

1. The state must introduce evidence of the administration of the test,
2. The state must introduce evidence of the officers training and education sufficient to show the officer’s competence in administering the test, and
3. The state must introduce evidence of the applicable standard that must be met.

Only when this three part test is proven will the state meet its burden of substantial compliance.

The “Senior Operator”

afromet — Wed, 21 Sep 2011 15:31:41 +0000

If you are a regular reader of this blog, you will remember my discussion of mandatory record keeping relating to breath testing equipment, as required by the Ohio Administrative Code (OAC) and The Ohio Department of Health (ODH).

One of the requirements relate to standard periodic testing required of the breath testing devise and those qualified to administer a breath test using a certified devise. This testing must be performed by an individual designated as a “Senior Operator” by the Ohio Administrative Code. The qualifying criteria for a senior operator is as follows:

1. Must be a high school graduate or taken a General Education Development Test“ (GED), and
2. Be a certified law enforcement officer sworn to enforce section 4511.19...of the Ohio Revised code or equivalent statute or ordinance, and
3. Demonstrate a competency to maintain or care for and perform instrument checks by successfully completing a basic senior operator, upgrade or conversion training course for the approved instrument for they are seeking the permit.

The ODC further requires a yearly renewal of that permit by successfully completing an in-service course for the applicable device, including review of self-study materials furnished by the ODH.

A recent lower case decision relating to these requirements demonstrates the necessity to be thorough in the investigation of any per se violation. The case, State of Ohio v. O’Dell, 164 Ohio Misc.2d 36proves the fallacy inherent in thinking that the institutions of government always to their job.

The defendant filed a Motion to Suppress arguing that the state failed to substantially comply with the OAC in the maintenance of the breath testing device. The officer who testified was the arresting officer and claimed he was a senior operator which qualified him to administer a breath test using the BAC Datamaster. During his testimony, the trooper testified the director of the ODH did not give him any self-study materials prior to his most recent renewal. The trooper further testified that had not taken any refresher course relating to the BAC Datamaster.

The court, in its opinion, outlined the various requirements set forth by the OAC relating to the requirements prior to the renewal of a Senior Operator’s Permit and the failure to comply with these requirements. The court concluded its discussion by stating:

“Words and phrases in laws and rules must have meaning. Even if the director of health chose to ignore his own rules by not requiring [the trooper] to complete an in-service course and review self-study materials provided by the director, the court cannot ignore the rules, which was not followed in this case.”

The reader is cautioned that this cases arises from the Franklin County Municipal Court and, while this court is highly respected in the state, its opinion only influences cases within the jurisdiction of that court. While American jurisprudence evolves from historical court opinion, other local or appellate courts may not agree with the opinion expressed by the Franklin County Municipal Court. But, having knowledge of this decision may impact on any OVI per se case.

Specificity in Court Ordered Limited Driving Privileges

afromet — Tue, 13 Sep 2011 15:05:32 +0000

Ohio’s statutes are replete with driving limitations for violations of 4511.19 (DUI/OMVI), driving under suspension violations, certain drug convictions under Ohio’s criminal statute, Title 29, and other miscellaneous statutory violations. Some limitations are greater than others, some statutes calling for an absolute ban on any privileges for a period of time, others granting limited privileges based upon factors such as prior violations of the same statute.

But, issues can arise regarding a court’s description of those privileges. R.C. 4510.021(A) requires a court, when granting limited driving privileges, to "specify the purposes, times, and places of the privileges...”

An issue relating to this statute arose in Warren County (12th Appellate District). The case, State v. Butler, 2011 Ohio 4565, involved a defendant’s violation of Ohio drug law. The defendant incurred a three year suspension of his driving privileges. After the three year suspension expired, the defendant made his application for limited privileges. The lower court granted privileges permitting the defendant to drive between 6:00 a.m. and 7:00 p.m., Monday through Saturday. The entry further prohibited the defendant from consuming alcohol while driving or in the 12 hours preceding his driving, and from operating a vehicle while under the influence of any drug of abuse.

The state appealed claiming the court failed to comply with R.C. 4510.021(A) as it failed to specify the purpose, times and places of the privileges. The appellate court agreed with the state and remanded the case back to the lower court for further proceedings to correct the entry.

Therefore, it is vitally important that the court properly comply with the statute to save everyone time and expense. To properly comply the entry should:

1. State the times and days the applicant may drive, and
2. State the purpose or purposes for which the privileges are being granted, and
3. State where the applicant may drive.

A typical entry by most court’s may read as follows: “The defendant may drive between the hours of _____ am to ____pm for work, medical, and religious purposes and to comply with court and probation orders and  appearances.”  Is this specific enough to comply with R.C. 4510.021(A)?  Only time and jurisprudence will tell.

Juvenile Adjudication can be Used to Enhance DUI Offense

afromet — Tue, 06 Sep 2011 19:22:47 +0000

Since the establishment of the Ohio Juvenile Court System, we have been taught that “convictions” as a juvenile are sealed and not opened resulting from a conviction as an adult. The reason is that judgments under the juvenile system “adjudicate” juveniles as a delinquent or unruly child depending upon the seriousness of the offense and are not considered “convictions.” Thus juvenile adjudications are considered civil, not criminal, in nature.

This changed in 1996 when the Ohio legislature passed R.C. 2901.08, permitting the use of juvenile offenses for purposes of enhancement of subsequent charges. Although juvenile proceedings are considered “civil’ in nature, an offender’s juvenile adjudication for OVI-type cases can be used against him under the law, State v. Hanning, 89 Ohio St.3d 86, 89, 728 N.E.2d 1059.

A recent Delaware County Court of Appeals case argued the constitutionality of the statute. In the case, State v. Adkins, 129 Ohio St.3d 287, 2011 Ohio 3141, the defendant argued 1) the application of the statute was an unconstitutionally retroactive and 2) the statute impermissibly permits a civil dispositionas a basis for criminal enhancement as an adult.

The court denied the defendant’s first argument saying that the law is not retrospective. It applies only to offenses after the effective date of the statute. The current offense is the case that triggered the look back rule, not the juvenile adjudication. Therefore, the statute is not respective in nature.

Further, the court opined that the statute is not unconstitutionally retroactive. Using the reasoning in Miller v. Hixson, 64 Ohio St. 39, 59 N.E. 749, the court stated, “The retroactivity clause [of the Ohio Constitution] nullifies those new laws that ‘reach back and create new burdens, new duties, new obligations, or new liabilities not existing at the time [the statute becomes effective].’ The court continued its reasoning, [The defendant’s] contention that an additional burden - an enhancement on a future charge - is placed upon the juvenile adjudication is unavailing. [The defendant] is not being punished for a previous juvenile adjudication; he is being punished for a current offense.”

Therefore, when looking back for enhancement purposes, whether 6 or 20 years, a court may include any prior juvenile adjudications.

Appealing a Conviction

afromet — Thu, 01 Sep 2011 15:15:13 +0000

“I just had my trial and the jury was wrong. I want to appeal!” Most practioners hear this outcry many times during their careers. But appealing an adverse verdict to the court of appeals, based upon the evidence only, is more difficult than one thinks. Recently, I presented an article in this blog regarding the burden required when filing an appeal relating to an error of law, i.e., the court instructs the jury incorrectly, prejudicial error is permitted in trial, etc. But what happens when a defendant wants to appeal the verdict itself? Contrary to lay opinion, the court of appeals is not a place where a defendant will get a new trial.
This point is best illustrated in a recent case originating from Senaca County. This case, State v. Matthews, 2011 Ohio 4329, involved the defendant’s conviction for driving under the influence, physical control under R.C. 4511.194(A)(2). The defendant appealed claiming “The jury verdict of guilty on the charge… of physical control of a vehicle were against the manifest weight of the evidence…”
The court, in its opinion, stated:
“An appellate court’s function when reviewing the weight of the evidence is to determine whether the greater amount of credible evidence supports the verdict. In reviewing whether the trial court’s judgment was against the weight of the evidence, the appellate court sits as a “thirteenth juror” and examines the conflicting testimony. In doing so, the appellate court must review the entire record, weigh the evidence and all of the reasonable inferences, consider the credibility of witnesses, and determine whether in resolving conflicts in the evidence, the factfinder clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.”
The key statement to glean from the court’s opinion is whether the “…factfinder clearly lost its way and created such a miscarriage of justice…” As is clear, the appellate court does not “retry” the case. Its function is to determine, in reviewing the facts in the case, if there was a manifest miscarriage of justice – a very high burden to overcome.

Ineffective Assistance of Counsel

afromet — Sun, 07 Aug 2011 14:19:13 +0000

Many of my readers contact me, post-conviction, to complain about their attorney’s performance while representing them. Of course, this outrage comes from the fact that the outcome was not of their liking – mostly convictions. A number asked whether the fact they had a “bad” lawyer can be used to appeal their conviction.

In past blogs, I’ve discussed what, in my opinion, is the appropriate due diligence required of any attorney practicing DUI defense in Ohio (See “What Should You Expect from Your Attorney?, June 19, 2009). But, if one appeals based upon ineffective assistance of counsel, what burden must be overcome to be successful?

The decision cited by most courts relating to this issue is Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. The decision was adopted by the Ohio Supreme Court in State v. Bradley, 42 Ohio St. 3d 136 and, most recently used in the Ohio Second Appellate District in State v. Sparks, 2011 Ohio 3868. In that case, the Appellant argued ineffective assistance of counsel based upon the attorney’s stipulation to prior DUI convictions.

The court properly quoted the two-pronged test, using the Stickland court, as follows: “To reverse a conviction based on ineffective assistance of counsel, it must be demonstrated that trial counsel’s conduct fell below an objective standard of reasonableness and that his errors were serious enough to create a reasonable probability that, but for the errors, the result of the trial would have been different…Hindsight is not permitted to distort the assessment of what was reasonable in light of counsel’s perspective at the time, and a debatable decision concerning trial strategy cannot form the basis of a finding of ineffective assistance of counsel,” State v. Mitchell, Montgomery App. No. 21957, 2008 Ohio 493.

Using the criteria, the court reasoned, “By stipulating to a prior conviction, the prosecutor was relieved of his obligation to prove a prior, but this was not the focus of the defense and was not controverted. The stipulation may well have been a matter of trial strategy. We cannot conclude that defense counsel’s stipulation to one of Spark’s previous convictions fell below an objective standard of reasonableness, or that the outcome of the trial would have been otherwise had defense counsel not so stipulated. There is no showing on this record that the prosecutor was unable to establish a prior conviction absent the stipulation.”

In other words, the court found there was ample evidence of Spark’s prior convictions. Therefore, even had his attorney NOT stipulated to the prior convictions, there was sufficient evidence before the court regarding his prior convictions and, as such, the attorney’s failure, if any, was not so erroneous as to cause a different outcome.
So, if one wishes to argue his attorney was ineffective, they must show:

1. That the attorney’s actions fell below the standard that is reasonable, AND

2. That, the actions of the attorney were so serious as to create a reasonable probability that the outcome of the trial would have been different.

So, the basis of an appeal for ineffective assistance counsel can not be based upon a reflection of an attorney’s strategy during trial as the higher court will not use hindsight to determine the appropriateness of the attorney’s strategy. While strategy might not have been successful, if reasonable, the court will not remand based upon that fact.

The Appeal – The Error Must Be Prejudicial

afromet — Thu, 28 Jul 2011 12:14:44 +0000

If you are a reader of this blog, you know that many of my topics dealt with the appeal. On many occasions I emphasized the importance of protecting the record, being sure the motion that is filed has specificity, etc. But, to most, the appeal itself is a bit confusing. What must one “prove” to win an appeal? The purpose of this entry is not to explain, in detail, the process, but to explain the burden.
Broken down, the appeal requires the showing of: 1) the error in law made by the lower court, and 2) that the error was prejudicial. Therefore, one not only must show that the lower court made an error in interpreting the law but that the error materially affected the outcome of the trial.
A prime example of that issue arose recently in the case of State v. Hunter, 2011 Ohio 3654, a Franklin County Court of Appeals (10th Appellate District) case . In the case Hunter was stopped for having his high beam lights activated in violation of law. When the trooper approached the vehicle, he noticed that the defendant’s eyes were glassy. At that time, Sanders informed the officer that he was carrying a concealed weapon under permit. The trooper had Sanders exit the vehicle and had Sanders perform field sobriety tests. Sanders failed three of the four tests. The defendant was transported to jail and given a breathalyzer test, the results being of the legal limit. As a result, the defendant was charged with two counts of OVI and also charged with a felony – improper handling of a firearm in a motor vehicle.

During the trial on the OVI charges, the prosecutor introduced the defendant’s felony conviction which the defendant, on appeal, claimed was irrelevant and prejudicial. In other words, the defendant claimed the introduction of the felony conviction was made merely to inflame the jury, thus prejudicing the defendant’s right to a fair trial.
The 10th District Court of Appeals took the defendant’s appeal under advisement. The appellate court, in its opinion, opined that, notwithstanding the introduction of the felony conviction, the evidence was so overwhelming the introduction of the conviction was not prejudicial.
To quote the court, “We conclude that appellee provided overwhelming evidence to support appellant’s conviction for OVI per se. Thus, even assuming it was error to admit the evidence of appellant having a permit to carry a concealed weapon and possessing a weapon at the time of these offenses, we fail to find that but for the error the outcome of the appellant’s trial would clearly have been otherwise…”
So, when appealing any lower court decision, the appellant must be aware of the double burden that must be overcome. The appellant must show:
1. The lower court made an error of law, and2. The error was so prejudicial as to materially affect the outcome of the trial.
So remember, just because the lower court made an error does not guarantee you will win your appeal.