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.

“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.

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.

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.

Recently, the Tenth Appellate District Court saw fit to address several issues that are the subject of controversy in Ohio.  Interestingly, the court discussed these issues in spite of the fact that the defendant failed to file appropriate pre-trial motions or raise the issues during trial.

 
The case, State v. Curtis, 2011 Ohio 3298, involved issues of proper blood draw procedures, compliance with the mandates of The Ohio Administrative Code and the controversy surrounding, O.R.C.2945.75(B), the right to introduced certified copies of judgment entries in lieu of live testimony from the convicting court.

 
During its discussion of these issues, the court noted that the defendant failed to bring them to the attention of the lower court by way of pre-trial motions or raise the issues during trial and, as a result, severally restricted the defendant’s arguments relating to those issues and shifted the burden to the defendant rather than the state.

 
In the defendant’s first assignment of error the defendant asked the court to reverse his conviction for OVI as his conviction was based upon unreliable blood evidence.  The facts of the case are compelling as the blood sample was not refrigerated as required, an uncertified laboratory performed the test, the “chain of custody” was questioned, and the blood was drawn more than three hours after the incident.

 
The court began its analysis by stating that the defendant’s failure to objection to the introduction of the test by a pre-trial motion, waived the state’s requirement to lay a foundation for its admissibility.  Having said, that, the court, nonetheless, opined regarding the admissibility of the evidence notwithstanding the defendant’s failure to address the issue in the lower court.

 
The court stated, “…the three-hour time limit set forth in R.C. 4511.19(D)(1)(b) and referenced by appellant, we point out that this requirement is set forth in the statutory provision that addresses offenses involving “per se” violations…In  Newark v. Lucas (1988), 40 Ohio St.3d 100, the court found where the test results are not dispositive to a determination of guilt or innocence, such as in a situation involving an alleged “impaired” violation, the fact that the blood was withdrawn outside the statutory time frame does not diminish the probative value of the results in a prosecution for an “impaired” violation.”

 
In summary, the court found that the three hour rule only applies to prosecutions founded on a chemical test and does not apply to prosecutions based upon impaired driving only.

 
The defendant went on to argue the test’s admissibility due to the fact that chain of custody requirements were not met.  The court stated, “…when an accused challenges the admissibility of a chemical test based upon a failure to comply with an Ohio Department of Health regulation, the state need only demonstrate substantial compliance…Moreover, once the state has demonstrated substantial compliance, the burden shifts back to the accused to show that he was prejudiced by less than strict compliance. State v. Plummer (1986), 22 Ohio St.3d 292, 295.”  After citing evidence presented at trial, the court was satisfied that the state had substantially complied.

 
Finally, the defendant argued his procedural and substantive due process rights were abridged when the court permitted certified copies of his prior convictions to be admitted without requiring oral testimony by representatives of the lower courts.  Again, the court reiterated that the defendant failed to address this constitutional issue at trail, but nonetheless addressed this issue.  The defendant argued that O.R.C. 2945.75(B)(2), which permits the introduction of certified court records in lieu of actual testimony, is unconstitutional as it “shifts the burden of proof and relieves the prosecution of its burden of proving all of the elements of appellant’s prior convictions beyond a reasonable doubt.”

 
The court said, “In conducting a substantive due process analysis, we must determine whether appellant has invoked a “fundamental” liberty interest, which would then trigger “strict scrutiny” review….under strict scrutiny review, a law will be invalidated unless the state demonstrates that the law is narrowly tailored to serve a compelling state interest. In the instant case, appellant has failed to identify the “fundamental” interest he asserts has been violated by R.C. 2945.75(B)(2). Thus, we analyze this under a “rational basis” review.”

 
“Under rational basis review, the statute will be upheld if it is reasonably related to a legitimate governmental interest. Id. at ¶25, citing Am. Assoc. of Univ. Professors, Cent. State Univ. Chapter v. Cent. State Univ., 87 Ohio St.3d 55, 1999 Ohio 248.”  The court went on, “Appellant has not presented an argument as to how this subsection of the statute would fail under a rational basis review and we fail to see how R.C. 2945.75(B)(2) implicates appellant’s constitutional rights. Like R.C. 2945.75(B)(1), which appellant has not challenged, R.C. 2945.75(B)(2) permits the State to make a prima facie showing as to appellant’s prior convictions. However, it does not relieve the State of its burden of proof nor shift the burden of proof to the accused….it allows the accused the opportunity to rebut the record…”

The court denied the defendant’s argument.

 
So, what do we learn from such a case?  First, is the importance of setting forth, by way of pre-trial motions and during trial, any potential issue on appeal.  Second, properly set forth, on the record, the basis for your argument, stating with specificity, the factual grounds for your argument.  A failure to do either of these severally handicaps the defendant’s appellate arguements.