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Case Update

Can you claim ineffective assistance of counsel when you're not entitled to one?  The 5th District addresses that weird question in State v. Dunlap.  Dunlap filed a motion in 2014 to vacate his 2012 plea to domestic violence.  When that got denied, he appealed, one of his arguments being that the lawyer who handled the motion to vacate rendered ineffective assistance by failing to call his trial counsel as a witness during the hearing on the motion to vacate.  But while a defendant is entitled to appointed counsel for a pre-sentence motion to vacate a plea, the courts have held that a defendant isn't entitled to appointed counsel for a post-sentence motion. 

From this, the Dunlap court decides that a post-sentence motion isn't a "critical stage" of the proceedings, because relief is "allowable only in extraordinary cases."  Since it's not a critical stage, counsel isn't required, and "we therefore will not recognize a claimed error based on ineffective assistance regarding counsel's performance in presenting said motion to the trial court."

That doesn't sound right, but in fact there are a number of cases holding that you don't have the right to the effective assistance of counsel where you don't have a right to appointed counsel.  That usually arises in cases involving discretionary appeals.  It's applicability in Ohio is questionable, since counsel is always assigned to a discretionary appeal in the Supreme Court if the defendant's indigent.  And note that the Dunlap opinion doesn't indicate whether counsel was retained or appointed, and whether that should matter.  

Winning a post-conviction relief petition is hard enough as it is, and it's a lot harder if the court simply adopts the findings of fact and conclusions of law prepared by the prosecutor and delivered ex parte to the judge, without the defendant being given notice or the opportunity to respond.  The 1st District finds that to be a bit over the top - a violation of the defendant's procedural due process rights is the way they put it - and reverses in State v. Pickens

A defendant gets charged with a bunch of misdemeanor counts, the prosecutor realizes it's bogus, and dismisses the case, whereupon the defendant moves to seal the records of his arrest.  No problem, right?  Problem:  according to the 5th District's decision in State v. Dye, if the dismissal was without prejudice, the records can't be sealed until the statute of limitations expires. 

I'd heard about the decision when it came down, and thought it was goofy, but RC 2953.52(B)(2)(a)(ii) plainly says that the expiration of the statute of limitations, in the event of a dismissal, is a requirement for sealing the records.  It doesn't make a lot of sense, because the prosecutor could still refile charges even if the original ones were sealed.  But you're going to have to look to the legislature to solve this problem.

Speedy trial time doesn't start to run until the defendant is arrested, as long as the State uses ordinary diligence in executing the arrest warrant.  The 1st District decides that didn't happen in State v. Jackson.  Warrants were issued for Jackson's arrest on a bad checks charge, and the detective spent the next 30 days trying to locate her, without success. 

But that's where the effort stopped.  No further attempt was made to find her until four years later, even though she was sitting in an Ohio prison for eighteen months of that time.  The court finds this to be a violation of Jackson's constitutional right to speedy trial. 

Of special note here is that one of the four factors spelled out in the Supreme Court's decision in Barker v. Wingo is prejudice to the defendant.  Here, the panel holds that the State's failure to exercise due diligence in executing the warrant, coupled with the lack of justification for the delay, creates a presumption that Jackson was prejudiced, and the State has the burden of overcoming that.

Good news/bad news for the defendant in State v. Ventura.  The bad news is that the 1st District finds his conviction for misdemeanor domestic violence isn't against the weight of the evidence.  The good news is that it vacates his sentence, because there was an 84-day delay between the finding of guilt and the imposition of sentence. 

CrimR 32(A) says that "sentence shall be imposed without unnecessary delay," and the appellate courts have construed that to mean that if there's an unnecessary delay, no sentence can be imposed. The judge had given as a reason for the delay the fear that jail overcrowding would result in the sheriff releasing Ventura before the completion of his sentence, but the court notes that there was no evidence of overcrowding in the record, and that the Ohio statutes don't permit a sheriff to release an inmate because of overcrowding:  the sheriff has to transfer him to a jail in another country.

When I read the headnote of Mayfield Heights v. Durr, I figured it was just another case of an appellate attorney screwing up:  the 8th District affirmed a conviction for child endangering, finding that the failure to file a transcript or a statement of proceedings doomed consideration of the sufficiency argument.

But then I read the dissent, which makes a pretty compelling case that (a) no transcript was necessary, because the facts were undisputed and the only issue was one of law, and (b) Durr wasn't guilty.  (The majority opinion makes no mention of the facts.)  The basis of the child endangering charge was that Durr, a daycare worker, had taken the children to a Chuck E. Cheese, and miscounted the children for the return trip, resulting in one child being left behind for 16 minutes until the error was discovered.  Nobody disputed that, and the dissent makes a good argument that this constitutes nothing more than negligence, which isn't sufficient for conviction.

Well, I guess the wedding's off.  In State v. Hower, the 2nd District upholds a two-year no-contact order between the defendant and his fiancée.   


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