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2019

AMCJO Bench Book

A QUICK REFERENCE GUIDE FOR MUNICIPAL & COUNTY COURT JUDGES AMCJO BENCH BOOK COMMITTEE AMCJO JUDICIAL PRACTICE & PROCEDURE COMMITTEE

TABLE OF CONTENTS Introduction ...... 2 Bonds ...... 3 ...... 14 Fingerprint Requirements...... 17 Felony Arraignments ...... 18 Non-Citizen Procedures ...... 20 Rule 4(E) Hearing-Out of county warrants ...... 22 Extradiction ...... 24 by the Pro Se Defendants ...... 25 Pretrial Motions: A Procedural Guide to Types, Authorities and Remedies...... 26 Speedy Trial ...... 33 Search Warrants ...... 36 Warrantless Procedures ...... 40 Recusal/Disqualification of Judge ...... 42 Assigned and Acting Judges ...... 46 Sealing Records ...... 49 Judicial Notice ...... 52 Contempt of Court ...... 54 Mental Condition of The Defendant ...... 56 Sovereign Citizens ...... 58 Domestic Violence ...... 60 Victim Rights ...... 73 Misdemeanor Sentencing ...... 75 Trial Preparation ...... 82 Summoning Jurors ...... 85 Jury Examination and Selection ...... 88 Jury and Verdict ...... 93 Small Claims ...... 98 Media in The Courtroom ...... 102 Dormant Judgments and Revivor ...... 104 Replevin ...... 107 Order For Examination of Judgment Debtor (“Debtor’s Exam”) ...... 111 Writ of Execution/Levy of Personal Property/Attachment ...... 113

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Judgment Liens on Real Property ...... 116 Appointment of Trustee to Avoid Garnishment of Personal Earnings ...... 118 Vexatious Litigators ...... 120

INTRODUCTION

For many years, Judge Lee McClelland chaired the Bench Book Committee and served as editor and compiler of all the content and forms submitted by municipal and county judges throughout the State of Ohio. In 2016, Judge Mel Kemmer undertook the current revision of the Bench Book in conjunction with the Judicial Practice and Administration Committee. Our thanks are extended to the following judges for making the continuation of the Bench Book possible. Judge Lee McClelland- Past Chairman Judge Mel Kemmer- Bench Book Committee Chairman Judge Deborah Nicastro- Judicial Practice and Administration Committee Chairperson

Pinkey Carr Toni Eddy Harry Field William Grimm Robert Hart Thomas Januzzi

DISCLAIMER

This Bench Book does not purport to define best practices for municipal and county court judges; does not constitute a comprehensive discussion of topics discussed; and may not be considered an authoritative statement on any topic discussed. The AMCJO’s purpose in creating this Bench Book is to give judges a quick reference for select topics and a starting point for more exact research.

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BAIL BONDS

SCOPE

At the time of the writing of this article in 2018, bail bonds and pretrial detention are being vigorously debated in Ohio, but no statutory changes have been made. This article was originally published in 2010 and reflects the current law regarding this subject. If pending legislation is adopted, this article will be updated.

REFERENCES

Ohio Constitution Article I § 9 ORC Chapter 2937 Ohio Criminal Rules 46 and 47

OHIO RULES OF CRIMINAL PROCEDURES CONTROL

Citizens in Ohio enjoy a constitutional right to bail and are denied this right only in capital cases, or in felony cases where the defendant likely poses a substantial risk to public safety.

Although numerous provisions in the Ohio Revised Code address the determination of bail in various ways, the Ohio Supreme Court makes clear that the provisions of the Ohio Rules of control in the event of conflict. State v. Silcott (1990), 50 Ohio St.3d 110, 552 N.E.2d 926.

THE BASICS OF BAIL AND RECOGNIZANCE BONDS

AVAILABLE FORMS OF BAIL 1. Ohio Constitution: Art. I § 9: Bail; Cruel and unusual punishments a. All persons shall be bailable by sufficient sureties, EXCEPT: i. For a person who is charged with a capital offense where the proof is evident or the presumption great ii. For a person who is charged with a felony where the proof is evident or the presumption great and where the person poses a substantial risk of serious physical harm to any person or to the community. b. Where a person is charged with any offense for which the person may be incarcerated, the court may determine at any time the type, amount, and conditions of bail. c. Excessive bail shall not be required; nor excessive fines imposed; nor cruel and unusual punishments inflicted. d. The General Assembly shall fix by law standards to determine whether a person who is charged with a felony where the proof is evident or the presumption great poses a substantial risk of serious physical harm to any person or to the community e. Procedures for establishing the amount and conditions of bail shall be established pursuant to Article IV, Section 5(b) of the Constitution of the state of Ohio. 2. Criminal Rules: a. Personal recognizance of the accused or an unsecured bail bond. Crim. R. 46(A)(1). b. 10% Bail bond: Secured by the deposit of ten percent (10%) of the amount of the bond in cash. Ninety percent (90%) of the ten percent (10%) is returned upon compliance with all bond conditions. Crim. R. 46(A)(2). c. Surety Bond: Secured by real estate or securities, or the deposit of cash, at the option of the

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defendant. Crim. R. 46(A)(3). 3. Ohio Revised Code: a. The deposit of cash by the accused or by some other person for him. R.C. 2937.22(A). b. The deposit by the accused or by some other person for him in form of bonds issued by the U.S., Ohio, or a political subdivision thereof with a face amount equal to the sum set by the court or magistrate. R.C. 2937.22(B). c. Surety Bond: The written undertaking by one or more persons to forfeit the sum of money set by the court or magistrate, if the accused is in default for appearance, which shall be known as a recognizance. R.C. 2937.22(C).

ADDITIONAL CONDITIONS THE COURT CAN PLACE UPON BAIL: 1. Conditions set out under Crim. R. 46(B) a. Placing the accused in the custody of a designated person or organization agreeing to supervise the person. b. Placing restrictions on the travel, association, or place of abode of the accused during the period of release. c. Placing the accused under a house arrest or work release program. d. Regulating or prohibiting the person’s contact with the victim. e. Regulating the person’s contact with parties involved in the case to prevent their intimidation, harassment, or injury. f. In an alcohol or drug related case, requiring a defendant to get treatment. g. Catch-all: “Any other constitutional condition considered reasonably necessary to ensure appearance or public safety.” 2. State v. Sheldon, 2005-Ohio-2686 (6 Dist.) – Trial court abuses its discretion when it forfeits a bond based on the behavior of the defendant as opposed to the failure to appear in court and there is lack of failure to have the “body” of the defendant in court. Bond conditions cannot be enforced by forfeiture of bond. Bail forfeiture was unavailable as a remedy for presentence releasee's failure to comply with condition of bail requiring her to undergo drug testing because drug testing and treatment are expressly additional bail conditions under Crim. R. 46(B)(6)&(7). (Note—This is a troublesome case!)

FACTORS TO CONSIDER IN DETERMINING THE TYPES, AMOUNT, AND CONDITIONS OF BAIL 1. Factors set out by Crim. R. 46(C): a. The nature and circumstances of the crime charged. b. The weight of the against the defendant. c. The confirmation of the defendant’s identity. d. List of factors tending to show the defendant is unlikely to abscond: i. His family ties ii. Employment iii. Financial resources iv. Character v. Mental condition vi. Length of residence in the community vii. Jurisdiction of residence viii. Record of convictions ix. Record of appearance at court proceedings x. Record of flight to avoid prosecution. xi. Whether the defendant is on probation, a community control sanction, parole, post-release control, or bail. 2. The RC establishes additional factors to be considered in cases involving violence R.C. 2903.212

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(menacing and stalking).

DEFINITIONS

1. Personal recognizance Bond: Crim. R. 46(A)(1): shall be released upon the personal recognizance of the accused in the amount set by the court. 2. Unsecured bail bond: Crim. R. 46(A)(1): unsecured bail bond in the amount set by the court. 3. 10% bond: Crim R. 46(A)(2): bail bond secured by the deposit of ten percent of the amount of the bond in cash, in the amount set be the court. Ninety percent of the deposit shall be returned upon compliance with all conditions of the bond 4. Surety Bond: a. Crim. R. 46(A)(3): surety bond, a bond secured by real estate or securities as allowed by law, or the deposit of cash, at the option of the defendant, in the amount set by the court. b. Black’s Law Dictionary: a person who is primarily liable for the payment of another's debt or the performance of another's obligation. (8 Ed. 2004) 1482. 5. Cash-only Bond Prohibited: a. Judge may not specify that bond be posted as "cash only." Once the amount of bail is set, “and the accused exercises his constitutional right to enlist a surety to post bail… the clerk of courts must accept a surety bond to secure the defendant's release...." State ex rel. Jones v. Hendon (1993), 66 Ohio St.3d 115, 118, 609 N.E. 2d 541; State ex rel. Baker v. Troutman (1990), 50 Ohio St. 3d 270, 553 N.E. 2d 1053. b. “Cash-only” Bonds-where the entire bond is ordered to be paid in cash – violate the Ohio Constitution sec 9 article 1 and Crim. R. 46 and is not authorized by either Crim. R. 46 or R.C. 2937.222. Smith v. Leis, 106 Ohio St. 3d 309, 2005 Ohio 5125, 835 N.E.2d 5 (1 Dist.) (Hendon and Troutman, approved and followed) [herein referred to as Leis #1] c. R.C. 2937.22: Hearing on bail; Grounds for denying bail d. Post-Leis cases: i. Trial court did not act in conformity with the Crim. R. ii. 46(A) and abused its discretion by “using the term ‘not 10%’ rather than ‘cash only,’ the trial court was seeking to do indirectly what it could not do directly. "Cash only" bail conditions are unconstitutional under Section 9, Article I of the Ohio Constitution.” Smith v. Leis, 2005-Ohio-6090 (1 Dist.). iii. The crux of the issue was the type of bail imposed by the court. Bail at “$500,000, no 10%” was an odd phrase to make sure the bail did not fall under Crim. R. 46(A)(2). The bail should have been written as “$500,000 under Crim. R. 46(A)(3). The “10% option” in Crim. R. 46(A)(2) is applicable only if the court specifically authorizes it. Trial court, when setting bail, should be more specific. Trial courts have discretion to set the type and amount of bail. It would cause less confusion, however, if the trial courts did not use the phrase "no 10%" and simply referred to the subsection of Crim.R. 46(A) under which they intended to set bail. If the trial court does not authorize the ten percent option, it is not available, just as an OR bond is not available unless designated by the court. Smith v. Leis, 165 Ohio App.3d 581, 587-588, ¶18-22, 2006-Ohio-450 (1 Dist.). 1. Suggested “nomenclature when setting bonds: a. an “OR bond” is a personal recognizance under Crim.R. 46(A)(1); b. a “ten percent bond” is just that—the defendant may post ten percent of the set amount, under Crim.R.46(A)(2); 2. “straight bond” is under Crim.R. 46(A)(3) and may be posted by a surety, real estate, securities, or cash, at the defendant’s option; or 3. a combination of “straight plus ten percent” gives the defendant the option of any method under Crim.R. 46(A)(2) and (A)(3). Obviously, there is no such bond 5 | P a g e

as a “cash-only bond,” because the defendant is specifically given the option of choosing the method under the“straight bond” option.” ¶23Appeal dismissed as moot. Smith v. Leis, 111 Ohio St.3d 493, 2006-Ohio-6113 (1 Dist.). 6. filed for excessive bond. Transcript indicated the a. trial court referred to bond as “cash only”, however, the journal entry b. contained no such limitation. SINCE, the trial court speaks only through its journal and the journal contained no such “cash only” limitation, the bond can be posted in any manner permitted by Crim. R. 46. Floyd v. Leis, 2009-Ohio-1369 (1 Dist.). c. The judge expressly sets the amount of relator's bail “bond” at “$25,000.00 Ten Percent”. Court held that the provisions of Crim.R. 46(A)(2) do not violate the "bailable by sufficient sureties" requirement of Section 9, Article I of the Ohio Constitution. The Supreme Court states in Leis “if we had intended to authorize cash-only bail when [it] amended Crim.R. 46, [it] would have so provided with appropriate language." (citing Leis #1, at ¶71). The general legality of Crim.R. 46(A)(2) was not technically before the court in Leis #1, however, this Court could not “envision that the Supreme Court would state such a broad holding if there was any doubt as to the constitutionality of the "ten percent cash" requirement.” State ex rel. Williams v. Fankhauser, 2006-Ohio-1170, ¶21-25 (11 Dist.).

MISDEMEANORS.

1. The Role. a. Situations where the police can obviate the need to set bail. i. In a misdemeanor case where there is a warrant for the defendant’s arrest, unless the warrant instructs otherwise, the officer can choose to issue a summons if it appears “reasonably calculated to ensure the defendant’s appearance.” Crim. R. 4(A)(2). ii. In a misdemeanor case where the officer is empowered to arrest without a warrant, he can issue a summons in lieu of making an arrest if it appears “reasonably calculated to ensure the defendant’s appearance.” Crim. R. 4(A)(3). iii. After effecting a misdemeanor arrest (with or without a warrant), the arresting officer or the officer in charge of the detentions facility is allowed to release the defendant after issuing a summons as long as it appears “reasonably calculated to assure the defendant’s appearance.” Crim. R. 4(F). [Potential conflict with 4(A)(2) and R.C. 2935.15 indicating the warrant controls unless the issuing court prohibits the issuance of a summons. Does this mean that if the warrant contains a specific bond amount but does not contain the language i.e. “SUMMONS PROHIBITED” that the defendant may be released on a summons by the arresting officer or the jailer?]. b. The police role in setting bail. i. The sheriff is empowered to enter into recognizance with sureties to keep the peace or to appear at the succeeding term of the court. R.C. 311.07. ii. In a misdemeanor case—provided the crime does not involve assault upon a police officer— if neither the court, magistrate, or clerk is available, the police are permitted to fix bail based on a bail schedule fixed by the judge or magistrate. R.C. 2937.23. [What if they are available? Conflict with Crim. R. 46(D) requiring the setting of bonds? Also Crim. R. 46(A) indicating the court sets bail]. iii. Requires the police to permit the posting of bail if a bail amount is specified in an . Crim. R. 4(E). 2. The Clerk’s Role. a. The clerk and deputy clerk can set bail: In a misdemeanor case not involving assault on a police officer, the clerk can set bail based on a schedule devised by the judge or magistrate. R.C. 2937.23. b. If the defendant is charged with a misdemeanor and arrested on a warrant, if the issuing court is not in session and the magistrate unavailable, he can be taken before the clerk or deputy clerk

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and admitted to bail. RC 2935.13. 3. The Court’s Role a. The Court has the discretion to release the accused without bail. i. “The personal recognizance of the accused or an unsecured bail bond” are recognized as forms of bail available to the court. Crim R. 46(A)(1). ii. If the defendant has appeared initially based on a summons, absent good cause, a recognizance bond is the preferred type of bail. Crim. R. 46(D). [What is a recognizance bond—is it entirely free, or does it involve a promise of forfeiture, i.e. forfeiture of the accused’s freedom?] iii. In a misdemeanor, the court can authorize the defendant to sign a recognizance. R.C. 2937.281. [The RC implies, however, in R.C. 2937.22 that a recognizance involves a promise of forfeiture—this appears to be lacking under the Rules]. iv. The court can release the accused on his own recognizance if the court is under the opinion that under all the circumstances, the accused will appear as required. R.C. 2937.29. b. The Court is to establish a bond schedule, apparently to facilitate the release of those charged with minor crimes. i. The court is required to establish a bail bond schedule covering all including traffic offenses. Also, the court must establish a rule allowing the payment of bond by credit card, so long as no service charge is made against the court. Crim. R. 46(G). ii. In misdemeanor cases, the amount of bail can be set by a schedule devised by the court or magistrate, or it can be endorsed on the warrant. The amount listed on the warrant is controlling. R.C. 2935.15. iii. R.C. 2903.212 and 2919.251 also refer to bond schedules but involve some felony along with misdemeanor offenses. These provisions also say these schedules “may” be established, thus indicating they are not required.

TRAFFIC OFFENSES

1. All traffic offenses are to be included on the required misdemeanor bond schedule. Crim. R 46(G). 2. Traffic offense under the R.C.’s bond provisions. a. The accused’s driver’s license may be posted as bond for traffic offenses other than R.C. 4511.19 (OVI), 4511.20 (Willful or wanton disregard), 4511.251 (Street racing) and 4513.36 (Resisting an officer). R.C. 2937.221. b. AAA Bonds: For traffic related offenses (excluding OVI, drug related traffic offenses, or leaving the scene), the court must accept as a bond a certificate issued by a surety as provided in R.C. 3929.141 (dealing with automobile clubs like AAA). R.C. 2937.281.

FELONIES

1. It is the court that determines the amount of bail, if any. Crim. R. 46. a. The court and no other institution is responsible for making bail determinations. Crim. R. 46(A), (B), (C), & (E). b. There is no provision contained in Crim. R. 46(G) for devising bail schedules for felonies as it does for misdemeanors. c. The RC similarly vests the judiciary with the exclusive power to make bail determinations in felony cases. d. The court is authorized to develop bail schedules in misdemeanor cases. R.C. 2935.15. However, the Menacing by Stalking offense covered under R.C. 2903.212 and RC 2919.251 will constitute a felony on the second offense. A bail schedule is apparently authorized for that offense.

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e. Either the judge or the magistrate is required to set bail in a felony case. R.C. 2937.23. 2. A recognizance in a felony case is required to be signed by both the defendant and a surety. R.C. 2937.281. It appears that under the RC, the defendant cannot be released on his own recognizance in a felony case. R.C. 2937.29 (indicating a totality of thecircumstances test for determining if the defendant can be so released, does raise ambiguity).

OFFENSES INVOLVING ACTUAL OR POTENTIAL VIOLENCE.

1. Note—The Rules of Criminal Procedure make no explicit distinction between violent and non-violent offenses. 2. The RC imposes additional factors for the court to consider in dealing with defendants who might pose a threat of violence to the public if released. 3. When the victim is not a family or household member of the defendant’s, and the defendant is charged under R.C. 2903.21 (Aggravated menacing—M1), 2903.211 (Menacing by stalking—M1/F5 old/F4 new), 2903.22 (Menacing—M4), or 2911.211 (Aggravated trespassing—M1), these additional factors must be considered under certain circumstances. (R.C. 2903.212(A)). a. The defendant was subject to the terms of an order issued under R.C. 2903.213 (Motion for protective order), 2933.08 (Mayor’s court order to keep the peace), or 2945.04 (Orders to prevent intimidation). –OR— b. The defendant has a prior conviction for a form of menacing or Aggravated Trespass involving the same victim involved in the current case. 3. The factors to consider are as follows: a. Whether the person has a history of violence toward the complainant or a history of other violent acts. b. The mental health of the person. c. Whether the person has a history of violating the orders of any court or governmental entity. d. Whether the person is potentially a threat to any other person. e. Whether setting bail at a high level will interfere with any treatment or counseling that the person is undergoing. f. A court with jurisdiction over the Menacing or Aggravated Trespass offenses is permitted to devise a bond schedule governing these offenses. RC 2903.212(B). The schedule must require the judge to consider all the factors listed under (B)(2). 4. The RC imposes additional factors as well when the defendant is charged with a domestic violence or related offense. a. R.C. 2919.251(B) requires special factors be considered when a person is charged under R.C. 2919.25 (Domestic violence—M1/M3/F5) or 2903.11 (Felonious Assault—F2), 2903.12 (Aggravated assault—F4/see code for affect of other circumstances), 2903.13 (Assault—M1/see code for affect of other circumstances), 2903.211 (Menacing by stalking—M1/F5 old/F4 new) and 2911.211 (Aggravated trespassing—M1/see code for effect of other circumstances) involving a member of the defendant’s family or household. These special factors (herein, the 2919.251(A) factors) must be considered when: i. The defendant was already subject to a protective order OR ii. The defendant has already been convicted of a domestic violence offense. b. The factors to be considered are as follows: i. Whether the person has a history of domestic violence toward the complainant or a history of other violent acts. ii. The mental health of the person. iii. Whether the person has a history of violating the orders of any court or governmental entity. iv. Whether the person is potentially a threat to any other person. v. Whether the person has access to deadly weapons or a history of using deadly weapons. 8 | P a g e

vi. Whether the person has a history of abusing alcohol or any controlled substance. vii. Severity of the alleged violence, including, but not limited to: 1. Duration 2. Serious physical injury 3. Sexual assault 4. Strangulation 5. Abuse during pregnancy 6. Abuse of pets viii. Forcible entry to gain access to alleged victim ix. Separation or termination of the relationship recently occurred or is pending. x. Exhibition of obsessive or controlling behavior including, but not limited to: 1. Stalking 2. Surveillance 3. Isolation of the victim xi. Person has expressed suicidal or homicidal thoughts xii. Any information contained in the complaint and any police reports, affidavits, or other documents accompanying the complaint. c. The court is permitted to set a bond schedule for the offenses covered by R.C. 2919.25, 2919.27 (protection order or consent agreement), 2909.06 (criminal damaging or endangering), 2909.07 (criminal mischief), 2911.12 (burglary), 2911.211 (aggravated trespass), or violation of a existing or former municipal ordinance or law substantially similar to these sections. R.C. 2919.251(A)(1). d. A person is required to appear for the setting of bail if they have committed any act of violence against a family member or household member, and if any of the following factors apply: R.C. 2919.251(A). i. The arresting officer indicates in a police report any of the following: ii. The officer observed on the alleged victim objective manifestations of physical harm. iii. The officer reasonably believes that the offender had in his possession a deadly weapon iv. The officer reasonably believes that the offender presents a credible threat of serious physical harm to the alleged victim or any other person if released on bail before trial. R.C. 2919.251(A)(2)(a)-(c); See also, H.B. 29, eff. 8-26-05 (requiring that a person appear before the Court for the setting of bail if the Court is required under existing law to consider specific factors in setting the person's bail or if the arresting officer indicates in a document one of the several specified circumstances) e. The person may appear in front of the Court by video conferencing equipment. R.C. 2919.251(D)(1). f. Waiver of appearance is permissible if the Court finds that a personal or Video appearance is impracticable, and the offense charged is a misdemeanor. If the Court waives the appearance, it must release the person on bail set in accordance with its schedule for bail. R.C. 2919.251(D)(2). 5. Ohio law allows for preventative detention (denial of bail). R.C. 2937.222 covers the applicable procedures. a. On the prosecutor’s or court’s motion, there will be a hearing to determine whether an accused person charged with aggravated (but not capital) murder, murder, a 1st or 2nd degree felony, a violation of R.C. 2903.06 (Aggravated vehicular homicide), a violation of R.C. 2903.211 (Menacing by Stalking) that is a felony, or a 4th degree felony OVI shall be denied bail. R.C. 2937.222(A). i. A continuance on the state’s motion, except for good cause, cannot exceed three (3) days (since the accused is detained during this period). ii. A motion for continuance by the accused should not exceed five (5) court days unless the motion waives in writing this five-day limit and states a specific period for which the accused seeks a continuance. b. The accused has the right to present evidence, and then the burden of proof is on the state to

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show that: i. The proof is evident or the presumption great that the accused is guilty; ii. The accused poses a substantial risk of serious physical harm to any person in the community; and iii. That no release conditions will reasonably assure the safety of that person and the community. c. The judge can reopen the hearing at any time before trial if information that has a material bearing on whether bail should be denied is discovered, and a court of common pleas gaining jurisdiction can either continue the county/municipal court’s order or hold its own hearing. d. The judge cannot deny bail unless there is clear and convincing evidence to support the preventative detention. R.C. 2937.222(B). e. The court is to consider the following factors in deciding if bail is appropriate for the defendant under this section: R.C. 2937.222(C). i. The nature/circumstance of the offense, including whether it involves violence, alcohol or a drug of abuse. ii. The weight of the evidence against the accused. iii. The history and characteristics of the accused, including but not limited to: character, physical/mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, substance abuse history, and criminal history. 1. Whether at the time of the offense the accused was on probation, parole, etc. 2. The nature and seriousness of the danger to any person or the community that would be posed by the person’s release. f. If bail is denied, the court should take steps as outlined to bring about a speedy resolution of the matter: R.C. 2937.222(D)(a)-(d). i. Give the appeal priority on its calendar; ii. Liberally modify or dispense with formal requirements iii. Decide the appeal expeditiously iv. Promptly enter its judgment affirming or reversing the order denying bail 6. There is no constitutional right to bail in a capital case. Ohio Const. Art. I §9. R.C. 2725.19 prevents an Ohio Court from releasing on a petition for habeas corpus a defendant already committed by a judge under a warrant specifically charging a capital crime.

FORFEITURE AND RELEASE OF BAIL:

FORFEITURE 1. The magistrate or clerk of the court adjudging forfeiture shall: R.C. 2937.36. a. For each bail—deal with/distribute/account the sum deposited as if it were imposed as a fine for the offense charged, as long as he can satisfy accrued costs in the case out of the fund before doing so. R.C. 2937.36(A). b. For securities deposited—sell the security and apply proceeds of the sale, less costs or brokerage fees (as in cases of forfeited bail). R.C. 2937.36(B). i. Sale shall be either by public sale, advertised in the same manner as sale on chattel execution, or an over the counter transaction through any state or national bank that does so using the securities market. R.C. 2937.36(B). ii. Notice to depositor—by the clerk, through ordinary mail to the depositor at his address of record. R.C. 2937.36(B). iii. Redemption—clerk will not proceed with the sale if within ten (10) days of mailing the notice, the depositor redeems the security by either, having the defendant show in open court, or Posting the amount set in the recognizance in cash, to be dealt with as forfeited cash bail.

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c. As to recognizance: i. Notify accused and each surety by ordinary mail at the address in their affidavits or qualification or on the record of the case of: the default of the accused, and the adjudication of forfeiture, and require each of them to show cause on or before a date in the notice—not less than twenty (20) or more than thirty (30) days from the time the notice is mailed—why judgment should not be entered against each of them for the penalty stated in the recognizance. R.C. 2937.36(C). See supra (A)(1)(a). ii. If good cause—by producing the accused in court or otherwise—is not shown, the court or magistrate shall enter judgment against the sureties or either of them who are notified, in an amount not exceeding the penalty of the bond, which was set in the adjudication of forfeiture; and award execution therefore as in civil cases. iii. Proceeds of the sale—received by the clerk or magistrate and distributed as on forfeiture of cash bail. 2. Surety—magistrate or court of record inferior to the court of common pleas, may proceed to judgment against a surety on a recognizance, and levy on his personal property, notwithstanding that the bond may exceed the monetary jurisdictional limitations in civil cases. R.C. 2937.37. a. Jurisdiction—attaches from the mailing of the notice specified R.C. 2937.36, notwithstanding that such surety may not be within the territorial jurisdiction of the court. b. Levy on real property—made only through issuance, return, and levy made under certificate of judgment issued to the clerk of the court of common pleas pursuant to R.C. 2329.02. i. Note—“After judgment has been rendered against surety . . . , the court or magistrate, on the appearance, surrender, or re-arrest of the accused on the charge, may remit all or such portion of the penalty as it deems just.” R.C. 2937.39. Ohio courts of appeal have held this to mean that the trial court should perform a balancing test, considering such things as:i. A balance between the ultimate appearance of the defendant against inconvenience and delay to prosecution, the expenses incurred by the state, and the willfulness of the violation. State v. Patton (1989), 69 Ohio App.3d 99 (6 Dist.). ii. Whether the bond surety failed to follow their duty to conduct a reasonable investigation of the accused’s background, State v. Am. Bail Bond Agency (1988), 129 Ohio App. 3d 708 (10 Dist.). iii. Whether the surety failed to take the necessary and routine steps to ensure the accused appearance; and iv. A balance between “the reappearance of the accused and the efforts expended by the surety to effectuate the reappearance against the inconvenience, expense and delay suffered by the state and any other factors the court finds relevant.” Gartland v. Garcia (2003), 153 Ohio App.3d 523 (7 Dist.).

RELEASE OF BAILIFF 1. Bail of any type that is deposited under R.C. 2937.22 - 2937.45, or Crim. R. 46 by a person other than the accused shall be discharged and released, and sureties on recognizances shall be released, in any of the following ways: R.C. 2937.40(A). a. Early surrender of the accused—a surety on a recognizance or the depositor of cash or securities as bail for an accused can surrender the accused before the appearance date. This occurs: R.C. 2937.40(A)(1). i. Delivery—by delivery of the accused into open court,” or ii. Issuance of a warrant and return—if the surety or depositor, by written request, asks the clerk of the court to issue to the sheriff a warrant for the arrest of the accused, and the sheriff then indicates on the return that he holds the accused in jail. b. Appearance of the accused—in accordance with the terms of the recognizance or deposit and the entry of judgment. R.C. 2937.40(A)(2). c. Payment—after default, of the sum fixed in the recognizance or the sum fixed in the order of

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forfeiture, if it is less. R.C. 2937.40(A)(3). 3. Deductions—court shall not deduct any amount from the cash or securities, or declare forfeited and levy or execute against pledged property, where: R.C. 2937.40(B). a. Cash or securities have been deposited as bail by a person other than the accused and the bail is discharged and released pursuant to R.C. 2937.40(A), or b. Property has been pledged by a surety on recognizance and the surety on recognizance has been released pursuant to R.C. 2937.40(A). 4. Accused conviction or guilty —except upon express approval of the person who deposited the cash or securities or the surety, the court will not apply any of the deposited cash or securities, or declare forfeited and levy or execute against property pledged for a recognizance, for the satisfaction of any penalty, fine, or court costs. See “Bond Warning” form for “express approval” by person who deposited the bond. 5. Appearance—upon the appearance of the accused in accordance with the terms of the recognizance or deposit and the entry of judgment by the court or magistrate, the following will occur: R.C. 2937.40(C). a. Bail—discharged and released to the accused, and b. Property pledged—discharged. 6. Ohio driver’s or commercial driver’s license—if deposited as bond, may be forfeited and otherwise handled as provided in R.C. 2937.221. R.C. 2937.40(D). 7. Discharge of bail—magistrate or clerk of the court shall return deposited cash or securities to the depositor, but may require presentation of an issued original receipt as a condition to the return (subject to R.C. 2937.40(B) or (C)). R.C. 2937.41. a. Discharged recognizance—magistrate or clerk of the court shall endorse the satisfaction on the recognizance and transmit to the county recorder the notice of discharge provided for in R.C. 2937.26 (subject to R.C. 2937.40(B) or (C)).

FAILURE TO APPEAR AS A SEPARATE CRIMINAL OFFENSE

1. If the release on his/her own recognizance was in connection with a felony charge or pending appeal after the conviction of a felony, failure to appear is a felony of the fourth degree. R.C. 2937.99(B). 2. If the release was on his/her own recognizance in connection with a misdemeanor charge or for appearance as a witness, failure to appear is a misdemeanor of the first degree. R.C. 2937.99(C). a. Case Authority i. "The legislature criminalized a defendant's failure to appear when he is released pursuant to R.C. 2937.29 [on a recognizance bond], but not his failure to appear when he is released on other types of bond." State v. Fusik, 2005-Ohio-1056, ¶11 (4 Dist.). ii. Defendant was required to post two (2) bonds; one $10,000, 10% and one unsecured recognizance with $5000 sum. (Defendant had multiple felony cases and the case is not clear if the bonds were on the same charge or difference charges.) Since defendant executed separate bonds and one of those was a recognizance bond, the posting of which was a condition of defendant's release, he may be charged with and sentenced for the offense of failure to appear, a violation of R.C. 2937.29 and 2937.99. State v. Tucker, 2005 WL 2300241, (5 Dist.). iii. "Bail forfeiture may only be had when a defendant fails to appear before the court. The Court may add other conditions of bail, but forfeiture is not available to support these conditions. Since drug testing and treatment are expressly additional conditions pursuant to Crim. R. 46(B)(6) or (7), forfeiture is an unavailable remedy for their breach." State v. Sheldon, 2005-Ohio-2686 (6 Dist.). iv. See also Ohio Op. Atty. Gen. 87-016, syl. (1987). “Although Ohio law provides procedures for bringing a person before the court after a failure to appear when released on a form of bail other than a release on personal recognizance pursuant to R.C. 2937.29, there is no authority to arrest such person for a separate offense of failure to appear similar to that provided in R.C. 2937.43 or to impose penalties 12 | P a g e

analogous to those set forth in R.C. 2937.99. When a person has been released on a form of bail other than a release on personal recognizance, the court is limited to the forfeiture of bail proceedings set forth in R.C. 2937.35 - .39 for failure to appear, but a writ of capias may be issued to secure that person’s appearance.”

NOTES

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MISDEMEANOR ARRAIGNMENTS

SCOPE

Identify the defendant 1. Advise the defendant of rights, pleas, and penalties 2. Identify counsel or inquire whether defendant is waiving right to counsel 3. Read or waive reading of the complaint 4. Acknowledge service of the complaint 5. Accept plea or set case for further proceedings

REFERENCES

1. Criminal Rules 10, 5, 7 2. Traffic Rule 8 3. Ohio Revised Code Sections a. 2937.02 through 2937.06 b. 2937.08 c. 2937.10 through 2937.13 d. 2937.15

ADVISEMENT OF RIGHTS AND PLEAS

ADVISEMENTS

1. Defendants may be advised of their rights and the possible pleas by general announcement if multiple defendants are appearing for . 2. A court shall not accept a plea of guilty or no contest without first informing the defendant of the effect of the available pleas. 3. A defendant shall be advised of and understand his or her rights before entering a plea. 4. Advise those charged with certain traffic offenses that upon conviction, a record of the conviction must be sent to the Ohio Bureau of Motor Vehicles where it will become a part of your driving record.

RIGHTS 1. Defendant or defendant’s attorney have the right to read the complaint or a copy of the complaint 2. Defendant has the right to be informed of the nature of the charge against him or her, and to have the charge explained if he or she does not understand the nature of the charge. 3. Defendant has the right to a lawyer, and the right to a reasonable continuance in the proceedings to obtain a lawyer, even though the defendant may eventually intend to plead guilty or no contest. 4. Defendant has the right to have a lawyer assigned to represent him or her if unable to employ counsel, except in minor misdemeanor or non-jailable offense cases. 5. If defendant will be represented by court appointed counsel, a fee may be imposed. 6. Defendant has the right not to make any statement, and that any statement made may be used against him or her. 7. Defendant has the right to a trial by the court and if charged with an offense that carries a possible jail sentence, the right to a trial by jury. There is no right to a for a minor misdemeanor or non- jailable offense. 8. A demand for a jury trial must be made in writing and filed with the clerk of the court not less than ten days before the date set for trial, or on or before the third day following receipt of notice of the date set for trial, whichever is later. 14 | P a g e

9. At any trial, the prosecution will have the burden to prove the defendant’s guilt beyond a reasonable doubt. 10. The defendant will have the following rights: a. To cross-examine the witnesses against him or her b. Not to testify against himself or herself c. To subpoena any witnesses, he or she may have in his or her own defense. d. Defendant has the right to have the court fix a reasonable bail or bond.

PLEAS

1. Guilty -The plea of guilty is a complete admission of guilt as to each and every element of the offense. Upon a plea of guilty, the defendant will be found guilty and the court will proceed with sentencing. By entering a guilty plea, the defendant is waiving certain rights a. The right to a trial either to the court or a jury b. The right to confront and cross examine witnesses against the defendant c. The right to have the prosecution prove guilt beyond a reasonable doubt d. The right to confront and cross-examine the witnesses against the defendant e. The right not to testify against himself or herself F. The right to subpoena witnesses and to compel their attendance in defendant’s own defense. 2. Not Guilty-The plea of not guilty is a complete denial of the charge and it puts in issue all of the essential elements of the crime charged. a. Determine if defendant is waiving the right to a speedy trial. b. Upon a plea of not guilty, the case will be set for further proceedings. 3. No contest-The plea of no contest is not an admission of guilt but is an admission of the truth of the facts alleged in the complaint. a. A plea of no contest will not be used against the defendant in any later civil or criminal proceeding. b. Upon a plea of no contest, the case may be heard and disposed of at arraignment. 4. Not guilty by Reason of Insanity a. Must be made in writing. b. May be joined with plea of not guilty. c. Not available in traffic cases.

PROCEDURES

1. Indicate style of case for the record (judge or prosecutor may read) 2. Confirm that defendant received the complaint or a copy of the complaint 3. Confirm that defendant understands his or her rights 4. Confirm that defendant understands the available pleas 5. Answer any questions regarding rights or pleas available 6. Advise the defendant of the nature of the charges and the possible maximum penalties for each 7. Inquire whether defendant wishes to hire or obtain counsel a. If yes, inquire whether he or she can afford to hire counsel. b. If yes, continue case until counsel can be present, but not beyond 30 days. c. If no, inquire into financial ability. Refer to public defender’s office, if available, and continue arraignment. Otherwise, appoint counsel. d. If no, remind defendant of possible penalties. 8. The more severe the penalties, the more important this becomes. If a defendant intends to proceed without an attorney on an offense jailable by more than 6 months, a waiver of counsel must be made in writing. 9. Confirm that he or she wishes to proceed without an attorney. 10. Ask defendant to state his or her plea

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11. Confirm that the plea is made knowingly, voluntarily and intelligently a. No threats or other coercion b. No promises made that are not on the record c. Defendant is competent and not under the influence of alcohol or drugs.

NOTES

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FINGERPRINT REQUIREMENTS

SCOPE

This article discusses the court’s obligation to order the fingerprinting of the defendant

REFERENCES

ORC §109.60

CLASSIFICATION OF OFFENSES FOR WHICH FINGERPRINTS ARE REQUIRED.

1. All felonies 2. Arrest for suspicion of any felony 3. Escalating misdemeanors: misdemeanor on the first offense and felony on a subsequent offense 4. Misdemeanors defined in ORC 109.572(a)(1)(a)

WHEN FINGERPRINTS ARE TAKEN

1. Immediately upon arrest if arrested and taken into custody. 2. Initial appearance if not taken by sheriff upon arrest. The court shall order fingerprints to be taken by the sheriff or chief of police within 24 hours of initial appearance. 3. At sentencing, the court shall inquire whether fingerprints were taken under 1 or 2 above. If not, the court shall order that prints shall be taken within 24 hours. 4. If defendant is found not guilty or the charges are dismissed, fingerprints and description shall be returned to the accused upon his or her request. 5. Section 109.60(a) does not apply to a violation of a city ordinance unless the officers have reason to believe that the violator is a past offender or the crime is one constituting a misdemeanor on the first offense and a felony on subsequent offenses, or unless it is advisable for the purpose of subsequent identification. ORC 109.60(b).

NOTES

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FELONY ARRAIGNMENTS

SCOPE

1. Identify the defendant 2. Advise the defendant of rights and penalties for offense charged 3. Identify or appoint counsel; inquire whether defendant is waiving right to counsel 4. Read or waive reading of the complaint 5. Acknowledge service of the complaint 6. Set case for if requested

REFERENCES

1. Ohio Criminal Rules a. 5 - Procedures b. 44 – Right to Counsel c. 46 – Bond 2. Ohio Revised Code a. 2929.14 - Penalties b. 2929.31 – Organizational Penalties

ADVISEMENT OF RIGHTS AND PENALTIES

1. Identify the defendant and the case number 2. Permit the defendant or defendant’s attorney to read the complaint or a copy of the complaint 3. Inform the defendant of the charge against him by a. Summarizing the complaint b. Advising of the possible penalties (ORC 2929.14) 4. Notify of possible enhancements if set forth in the complaint 5. Advise the defendant of the right to an attorney and the right to a reasonable continuance to hire an attorney. Advise the defendant of the right to have an attorney appointed to represent him or her if unable to afford counsel. 6. Advise the defendant of the right to make no statement and that any statement made may be used against the defendant. 7. Advise the defendant of the right to a preliminary hearing in this court. At the hearing, the prosecution must establish to believe that the felony charged was committed, and that it was committed by the defendant. 8. Advise the defendant that he or she will not be entering a plea of guilty or not guilty at this appearance or at a preliminary hearing. 9. Advise the defendant of the right to have the court fix a reasonable bail or bond. 10. Determine if the defendant wants a preliminary hearing. A. If a preliminary hearing is waived, obtain written documentation of the waiver, and order the case bound over to the common pleas court with appropriate bail established. B. If a preliminary hearing is requested, a hearing must be scheduled. C. The preliminary hearing will not be held if the defendant is indicted. 11. Time limits for hearing a. If defendant is in custody, a hearing shall be held within a reasonable time, but no later than ten consecutive days following arrest or service of summons. b. If the defendant is not in custody, a hearing shall be held no later than fifteen consecutive days following arrest or service of summons.

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c. With defendant’s consent and for good cause, time limits may be extended. In the absence of such consent by the defendant, time limits may be extended only as required by law, or upon a showing that extraordinary circumstances exist and that delay is indispensable to the interests of justice. 12. Determine if accompanying misdemeanors should be consolidated with the felony offense for further proceedings. EXCEPT upon good cause shown, any misdemeanor, other than a minor misdemeanor, arising from the same act or transaction involving a felony shall be bound over or transferred with the felony case. Crim. R. 5(b)(4)(d). 13. Establish bond and appropriate conditions pursuant to Crim. R. 46.

NOTES

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NON-CITIZEN PROCEDURES

SCOPE

This article discusses the advising of a non-citizen defendant on the possibility of deportation, exclusion, or denial of naturalization prior to accepting pleas

REFERENCES

ORC§ 2943.031 which sets forth the requirement and the minimum statutory language.

REQUIREMENT

Prior to entering a plea of guilty or no contest to a criminal complaint, the court is required to advise a non-citizen defendant of the immigration consequences of his plea. The advisement is also required in pretrial diversion hearings in which the court does not immediately accept the plea. State v. Kona, 1016-Ohio-7796 (Ohio supreme court slip opinion)

IMPLEMENTATION

1. The minimum advisement must be enunciated to the defendant at the time he enters, and the court, accepts his plea of guilty or no contest. 2. Logically, then, the apparent appropriate moment to engage in the warning is at the plea hearing described in Crim. R 11. 3. ORC 2943.031 effectively grafts an additional warning requirement onto Crim. R. 11. State v Francis, 104 Ohio St. 3d 490, 820 N.E.2d 355, 2004-Ohio-6894. The statutory language set forth in ORC 2943,031 is as follows:

“If you are not a citizen of the United States, you are hereby advised that conviction of the offense to which you are pleading guilty (or no contest when applicable) may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.”

4. Much like the colloquy applying to Crim. R. 11 generally, the court must include in the plea colloquy, a discussion about the consequences of the plea relating to citizenship, deportation, exclusion from admission (or re-admission) to the United States, or the denial of naturalization. 5. Additional time – upon request of the defendant, the court shall allow additional time to consider the appropriateness of the plea.

EXCEPTIONS

The statute provides for two exceptions to the requirement of advisement of rights set forth therein, both of which address the defendant’s statement that he is a citizen: 1. The defendant enters a plea of guilty on a written form and states that he is a citizen. 2. The defendant states orally on the record that he is a citizen.

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CONSEQUENCES FOR FAILURE TO ADVISE THE DEFENDANT AS REQUIRED BY ORC 2943.031

1. Upon motion of the defendant, the court shall set aside the judgment of conviction if the court failed to provide the advisement, and a. The advisement is required, and b. The defendant shows he is not a citizen, and c. His conviction may result in deportation, exclusion from admission to the united states, or denial of naturalization and d. The defendant demonstrates prejudice. 2. In the absence of a record demonstrating the court provided the advisement, the defendant shall be presumed not to have received the advisement. 3. Hearing or Findings of Fact and Conclusion of Law. There is no specific requirement that the court hold a hearing or issue findings of fact and conclusions of law upon the motion of a defendant made pursuant to ORC 2943.031. The Ohio Supreme Court, however, has held that it is sometimes difficult for an appellate court to review the record to determine whether an abuse of discretion occurred when no hearing was held or conclusions of law were not filed. State v Francis, 104 Ohio St. 3d 490, 820 N.E.2d 355, 2004-Ohio- 6894. Thus, the better practice, depending upon the specific circumstances, may be to hold a hearing and issue findings of fact and conclusions of law in support of your decision. 4. Timeliness. The timeliness of the motion is just one of the factors the trial court should consider when exercising its discretion in considering whether to grant the motion. 5. Substantial compliance. A trial court shall review a defendant’s motion to withdraw his plea under this section by applying a “substantial compliance” standard. Strict compliance is not required if the reviewing court determines, under the totality of the circumstances, that the defendant subjectively understood the implications of his plea and the rights he was waiving. The appellate court reviews the trial court’s decision to grant or deny a motion to withdraw a plea under this section by applying an “abuse of discretion” standard.

PRACTICAL CONSIDERATIONS

1. The court should develop a procedure to ascertain if the defendant is or is not a citizen prior to accepting the plea. Relying of visual observations is highly inaccurate. The procedure may be as simple as asking the defendant in every case if he/she is a citizen or providing some written pre-plea or plea form where the question of the defendant’s citizenship is submitted. 2. It is advisable for the court to both advise the defendant orally in court and request the defendant to sign a written document that recites the statutory language. 3. Additionally, the court may choose to conduct a discussion with the defendant to assure that he is cognizant of the consequences of the plea and to assess the defendant’s English speaking skills. Further, the court may choose to ask the defendant if he discussed the immigration consequences of the plea with his lawyer or wishes to discuss the consequences with a lawyer if unrepresented, and to afford the defendant time to do so.

NOTES

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RULE 4(E) HEARING-OUT OF COUNTY WARRANTS

SCOPE

This article discusses the procedure upon arrest where the warrant is issued by a court not in the same county as the arresting agency.

REFERENCES

Crim. R. 4 sets forth the procedure to apply by either a local law enforcement officer or, where applicable, the court upon the arrest of the person. As opposed to requirements that permit the defendant to challenge the arrest and resist the extradition, the purpose of a Crim. R. 4 hearing is essentially a bond hearing.

TWO DISTINCT PROCEDURES APPLY DEPENDING ON WHERE THE ARREST OCCURRED.

ARREST IN THE COUNTY OR IN AN ADJOINING COUNTY Where the arrest warrant is issued by a court in the county or by an adjoining county, no special procedure applies. The law enforcement agency shall apply the provisions set forth in Crim. R. 4 (e)(1)(a) or (b). In most instances, the law enforcement agency may deliver the arrested person to the court that issued the warrant and avoid a hearing in court.

ARREST OUTSIDE OF THE COUNTY OR ADJOINING COUNTY

Where the arrest warrant is issued by a court remote from the county or adjoining county, the defendant is entitled to a hearing. The primary purpose of the hearing is to assure that the person is not held unreasonably long without bail and to ensure his right to communicate with a person of his choice. 1. Where the arrest warrant states that it was issued before an initial appearance or the warrant is silent in that regard, the court, at the hearing, shall apply the procedures required by Crim. R. 46 regarding bail. 2. Where the arrest warrant states that it was issued after an initial appearance, or failure to appear at the initial appearance, the court shall apply the procedures set forth in Crim. R. 4(e)(1)(c)(i) and 4(e)(1)(c)(iii) ARE as follows: 3. Crim. R. 4(e)(1)(c)(i). Bond stated in the warrant. Where the warrant provides for the posting of bail, the person shall be permitted to post the bail established by the warrant. The posting shall be by a sum of cash or secured bail bond as contained in the warrant. The bond shall require that the arrested person appear at the court where the warrant was issued at a time and place certain. 4. Crim. R. 4(e)(1)(c)(iii). Circumstances other than bond stated. Where the warrant is: a. Silent about bond, b. Requires the arrested person to be held without bond, c. The arrested person chooses not to post bail, or d. The arrested person chooses not to waive the procedures otherwise required, then under these circumstances, the arrested person shall be brought before the court without unnecessary delay. i. The arrested person shall not be removed from that county until ii. The arrested person has been given an opportunity to consult with an attorney or person of the arrested person’s choice, and iii. To post bail to be determined by the court. Bail to be determined by the court shall not be inconsistent with the directions of the issuing court as contained in the warrant, or after consultation with the issuing court. iv. In the circumstance where the warrant is silent regarding bail or the warrant states that the arrested person be held without bail the court may permit the arrested person to post bail, hold the arrested person without bail, or consult with the warrant issuing court on the issue of bail.

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5. Waiver. The defendant may waive the hearing and consent to his immediate release to the agency that caused the warrant to issue. a. In this case the court is not involved or notified. b. The arresting law enforcement officer is entrusted to assure the defendant is presented with a written waiver form to sign and is also informed orally of its content. c. The form must notify the defendant of the relevant provisions of the rule. The officer must represent that the waiver was read to the defendant and that he signed in the officer’s presence. d. The defendant may further waive the hearing in court if the defendant delays his waiver until he arrives in court for the hearing. E. Upon signing the waiver, the person shall be delivered to the court that issued the warrant.

RESPONSIBILITY TO TRANSPORT THE DEFENDANT

An opinion by the Ohio Attorney General, 1979 Ohio Op. Atty. Gen. 2-328 (1979) sets forth the responsibility for which agency is to transport the Defendant. 1. The arresting officer shall deliver the person to court for the initial appearance if within the county or adjoining county. 2. If the accused is incarcerated in the county jail for failure to post bond, the sheriff of the county of arrest shall transport the accused for the bail hearing. 3. It the accused is to be released to a court that issued the warrant and the court is not in the county or adjacent county, the political subdivision that issued the warrant is responsible to transport the accused.

NOTE

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EXTRADICTION

SCOPE

This article discusses extradition which is the surrender by one state of a person accused or convicted of a crime to another state.

REFERENCES

1. Extradition was authorized in the U. S. Constitution in Article IV. The Federal Extradition Act of 1793 implemented the authorization. 2. In 1926, the National Criminal Extradition Act was promulgated and adopted in Ohio as ORC Chapter 2963. 3. Since the Act involves the exchange of persons between states, the application of any extradition is subject to and limited by the extradition clause of the U.S. Constitution, Acts of Congress, and state law.

OHIO STATUTORY PROCEEDINGS

1. In Ohio, extradition proceedings are governed by ORC Chapter 2963. ORC 2963.09 describes the procedure applicable to a court of record after a person is arrested upon a warrant initiated by a state other that Ohio. 2. The statute provides that the person shall be forthwith taken before a judge of a court of record in this state. The judge shall: a. Inform the person of the demand made upon him for his surrender and of the crime charged. b. That the person has the right to demand and procure counsel. An indigent prisoner is entitled to court appointed counsel. Helton v. Tehan, 15 Ohio Misc. 367 (1968) c. That the person or attorney may choose to apply for a writ of habeas corpus. The judge shall fix a reasonable amount of time for which the person may make the application for the writ. d. Should the person apply for the writ, a hearing shall be set. e. Notice shall be provided of the time and place of the hearing to the person, the prosecuting attorney of the county in which the arrest is made, and the accused is in custody, and to the agent of the demanding state. 3. Waiver. Any person arrested in Ohio is subject to an extradition proceeding because of a demand by another state, may waive the requirement that the governor sign a warrant for his arrest and all other extradition proceedings. a. The waiver must be executed in the presence of a judge of any court of record in this state. b. The written waiver must state that the person consents to the return to the demanding state. c. Prior to executing the document, the judge must, in open court, inform the person of his right (1) to the issuance of the governor’s warrant and, (2) to file for a writ of habeas corpus under ORC 2963.09. d. When such person consents to the waiver, the person shall be delivered to the office of the governor. Finally, the judge shall direct the custodian of the person to deliver the person to the accredited agent of the demanding state along with a copy of the waiver.

NOTES

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PLEAS BY THE PRO SE DEFENDANTS

CONSIDERATIONS IN ACCEPTING PLEAS FROM SELF-PRESENTED DEFENDANTS

1. Ensure defendant fully understands the possible penalties; and if he/she is competent to represent him/herself. The court should inquire of the defendant: a. How much and level of education received b. Previous experience in the criminal justice system or trial c. Knowledge of the law and rules relative to trial d. Explain possible penalty/sentence for each offense if there’s a finding of guilt. 2. Advise the defendant if allowed to proceed without an attorney, he or she does not have a constitutional right: a. To receive a personal instruction from the trial judge on courtroom procedure b. To have the judge take over the duties for a pro se defendant that would normally be attended to by an attorney, such as preparation of motions, framing questions which comply with the rules of evidence, selecting a jury, preparing or subpoenaing witnesses. c. To have the trial interrupted due to the defendant’s confusion or frustration 3. Where there is Improper courtroom trial conduct which is not in conformity with the rules and laws governing trials, the judge may revoke permission to proceed without an attorney. 4. Final inquiry: a. Do you understand what was explained to you relative to proceeding to trial without a lawyer, and b. Is it still your desire to proceed without an attorney?

APPOINTMENT OF COUNSEL TO ASSIST PRO SE DEFENDANT

1. The court reserves the right to appoint an attorney to serve as standby counsel to assistant the pro se defendant during trial. a. The pro se defendant may consult with standby counsel during the course of the trial b. Even with standby counsel, the pro se defendant has the right to proceed to trial alone, making presentations or arguments that are appropriate and consistent with the law and rules governing the trial and proper courtroom decorum. 2. If the court is not convinced the defendant can competently represent himself/herself, or make a competent decision regarding representation, the inquiry should terminate, and the court should make a record as to why the defendant will not be allowed to waive his/her right to counsel. Reasons for non- waiver may include: a. Lack of competence b. Disruptive behavior of the defendant.

NOTES

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PRETRIAL MOTIONS: A PROCEDURAL GUIDE TO TYPES, AUTHORITIES AND REMEDIES

SCOPE

This article provides procedural outline of law to identify types of motions, their respective legal authorities, and the available remedies. It is an overview of how to organize thoughts and research toward more substantive annotated and updated sources such as Katz, Ohio Arrest, ; Weiler & Weiler, Ohio Driving under the Influence Law; and Markus & Dickinson, Ohio Trial Handbook.

Topics Covered 1. Motions to Suppress 2. Motions in Limine 3. Administrative License Suspension Appeals 4. Regulation of Discovery 5. Authorities and Remedies Overview

REFERENCES

Each type of motion has its own distinctive set of authorities and remedies. It is important to direct research to the particular set of authorities and remedies for that type of motion as outlined below. References herein are to the Ohio Criminal Rules (although there are often similar Ohio Traffic Rules on point) and to the Ohio Evidence Rules.

TIMING OF PRETRIAL MOTIONS – CRIMINAL RULE 12(C)

1. Any matter capable of being determined without trial may be filed as a pretrial motion. 2. Certain issues must be raised before trial: a. Defects in the institution of prosecution b. Defects in the complaint other than jurisdictional or to charge an offense c. Motions to suppress d. Requests for discovery e. Requests for severance 3. Criminal Rule 12(d) – all pretrial motions, except as provided in Cr 7(e) and Cr 16(f), shall be made within 35 days after arraignment or seven days before trial, whichever is earlier. The court may, in the interest of justice, extend the time. 4. Criminal Rule 7(e) – motions for bill of particulars shall be made within 21 days of arraignment but no later than 7 days before trial. 5. Criminal Rule 16(f) – if the prosecutor designates certain evidence as non-disclosable or for counsel only, and if the defendant objects, the court is required to hold an in camera hearing (with counsel) 7 days before trial. Therefore, the defendant must file such objection more than 7 days before trial. 6. Criminal Rule 12(h)- it is considered a waiver of defenses or objections for failure to timely raise such. The court may, for good cause shown, grant relief from such waiver. State v. Wade, 53 Ohio St. 2d 182 (1978) 7. Extending time for pretrial motions is a matter of judicial discretion. Justification for doing so may include newly discovered or disclosed evidence or newly engaged counsel. Considerations include the sufficiency of the reason for delay and the time remaining before trial to resolve the issue.

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COMMON STRUCTURE AND ANALYSIS OF PRETRIAL MOTIONS

CRIMINAL RULE 47 SETS FORTH THE REQUIREMENTS FOR ANY MOTION

1. In writing unless the court permits it to be made orally 2. Must state with particularity the grounds (facts) upon which it is made 3. Must set forth the relief (remedy) sought 4. Must be supported by a memorandum containing citations of authority (law)

COMPLIANCE WITH PARTICULARITY REQUIREMENT

1. Boilerplate pleading is permitted so long as it puts the other party on notice of the issues. State v. Shindler, 70 Ohio St. 3d 54 (1994). 2. It is not necessary to have an exhaustive recitation of facts in the motion. The standard is notice pleading rather than fact pleading. State v. Codeluppi, 139 Ohio St. 3d 165 (2014). 3. If the claims in the motion are general, then the response may also be general. State v. Johnson, 137 Ohio St. 3d 847 (12th district 2000).

COMMON STEPS IN ANALYSIS OF ANY MOTION

1. What type of motion is it? Label on motion does not govern. Type is determined by authority relied upon and remedy sought. 2. What is the authority? 3. What are the elements to be proven under that authority? 4. What facts are relevant to those elements? 5. What remedy or remedies are available to the court?

NEED FOR HEARING

1. Criminal Rule 12(f) provides that a court may adjudicate a motion based on briefs, affidavits, proffers of testimony, and exhibits, a hearing, or other appropriate means. 2. If there are factual issues, an evidentiary hearing is appropriate. If there are factual issues, the court is required to state its essential findings of fact on the record. 3. If there are only legal issues based on agreed facts, the court may hear oral argument or require briefs. 4. Whether by hearing or otherwise, both parties must be given an opportunity for input before the court decision. 5. The Ohio Rules of Evidence do not apply to hearings regarding the admissibility of evidence. Evidence rule 101(c)(1).

BURDEN OF PROOF

1. The party in opposition to the admission of certain evidence must raise that objection to put the court and other party on notice. 2. Except for an arrest or search conducted pursuant to a warrant, the party offering the evidence must prove the admissibility of the evidence. See Katz, Ohio Arrest, Search and Seizure Chapter 27.

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MOTIONS TO SUPPRESS

OVERVIEW

Suppression of evidence is a case law created remedy for certain, but not all, violations of rules regarding the obtaining and handling of evidence. Case law recognizes two types of evidence gathering/handling that are subject to suppression: 1. Evidence obtained in violation of constitutional protections. 2. Evidence obtained in noncompliance with certain statutory and administrative rules regarding OVI cases.

CONSTITUTIONAL ISSUES INCLUDE:

1. 4th Amendment Arrest, Search and Seizure 2. 5th Amendment Compulsory Self-Incrimination; Miranda 3. 6th Amendment Right to Counsel

FRUITS OF THE POISONOUS TREE (DERIVATIVE EVIDENCE)

1. There must be a connection between the constitutional violation and the evidence obtained, i.e. The evidence must be derivative. Wong Sun V. U.S., 371 u.s.471 (1963). 2. Even if the evidence is derivative, there is an exception if the prosecution can prove inevitable discovery. Nix v. Williams, 467 U.S. 431 (1984). See Katz, Ohio Arrest, Search and Seizure Chapter 29.

GOOD FAITH

Given that the purpose of the exclusionary rule is to deter police misconduct in obtaining evidence, the good faith of the police establishes an exception to applying the remedy of suppression. U.S. V. Leon, 468 U.S. 897 (1984). Good faith is an objective standard as to what a reasonable officer could be expected to rely upon. Massachusetts v. Sheppard, 468 U.S. 981 (1984). See Katz, Ohio Arrest, Search and Seizure Chapter 28.

OVI STATUTORY AND ADMINISTRATIVE ISSUES

1. RC 4511.19(D)(1)(b) – Chemical tests for content of alcohol or drugs may be admitted if sample is taken within 3 hours of operation of the vehicle. The bodily substance shall be analyzed in accordance with methods approved by the director of health. 2. Ohio Administrative Code Chapter 3701-53: Administrative regulations re blood, breath and urine testing. See Appendix B, Weiler & Weiler, Ohio Driving Under the Influence Law. 3. RC 4511.19(D)(4)(b) – Results of field sobriety tests conducted in substantial compliance with testing standards in effect at the time of the tests, including those standards of the national highway traffic safety administration (NHTSA), are admissible. 4. NHTSA periodically publishes both instructor and student handbooks with the current standards. The edition in effect at the time of the test, not the edition under which the officer was trained, should be referenced in evaluating compliance. 5. The “may be admitted” language of RC 4511.19 D1b (chemical tests) and D4b (field sobriety tests) has been held to require admittance of such evidence if administratively compliant, subject only to issues regarding that particular test or testing device. Cincinnati v. Ilg, 141 Ohio St. 3d 22 (2014); State v. Boczar, 113 Ohio St. 3d 148 (2007).

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6. Challenges to statutory and administrative compliance must be raised by a motion to suppress or are waived. Defiance v. Kretz, 60 Ohio St. 3d 1 (1991); State v. French, 72 Ohio St. 3d 446 (1995). 7. Compliance should be evaluated with a substantial compliance standard as opposed to a strict compliance standard. De minimis variations, i.e., those which do not affect the reliability of the test, may be ignored. State v. Burnside, 100 Ohio St. 3d 152 (2003). See Weiler & Weiler, Ohio Driving Under the Influence Law Chapters 7, 8 and 9.

NON-OVI STATUTORY VIOLATIONS AND THE REMEDY OF SUPPRESSION

1. The Ohio Supreme Court has repeatedly held that rule or statutory violations that are not constitutional violations do not have suppression as a remedy. Examples include: a. Criminal Rule 41 non-fundamental errors in search warrants. See State v. Downs 51 Ohio St. 3d 47 (1977) and State v. Wilmoth, 22 Ohio St. 3d 251 (1986). b. RC 4511.19 (D)(3) failure to give required advice of right to an additional OVI test. See State v. Myers 26 Ohio St. 2d 190 (1971) and Hilliard v. Elfrink 77 Ohio St. 3d 155 (1996). c. RC 2935.03 exceeding territorial arrest jurisdiction. See Kettering v. Hollon, 64 Ohio St. 2d 232 (1980), State v. Weideman, 94 Ohio St. 3d 501 (2002), and State v. [Adam] Jones, 121 Ohio St. 3d 103 (2009). d. RC 2935.20 denying immediate right to counsel upon arrest. See Fairborn v. Mattachione, 72 Ohio St. 3d 345 (1995) [denied before breath test] e. RC 2967.15 violation of requirement for parole officer to incarcerate in the county of arrest. See State v. Thompson, 33 Ohio St. 3d 1 (1987). f. RC 5502.61 exceeding subject matter jurisdiction of liquor control agents. See State v. Droste, 83 Ohio St. 3d 36 (1998). 2. However, if the statutory violation is also a constitutional violation, then suppression is the appropriate remedy. See State v. [Kenon] Jones, 88 Ohio St. 3d 430 (2000) which involved a custodial arrest for a minor misdemeanor in violation of RC 2935.26, held also to be an unreasonable seizure under the 4th Amendment.

MOTIONS IN LIMINE

1. Motions in Limine (Latin for “at the start”) is the method used to obtain a pretrial ruling on the admissibility of evidence at an anticipated trial. It is a preferable method to raise an objection to anticipated evidence in that it allows fuller argument and consideration and it avoids any prejudice from the subject matter being introduced at trial. 2. Motions in Limine are distinguished from motions to suppress in that Motions in Limine rely on rules of evidence for authority rather than constitutional principles. Such rules of evidence are found not only in the Ohio Rules of Evidence but also in statutes such as in RC Chapter 2317. There are also evidentiary statutes or paragraphs as part of particular substantive laws, e.g., RC 2925.51 regarding laboratory evidence of drug analysis

3. The Ohio Rules of Evidence have separate Articles dealing with distinct evidentiary issues. They are:

a. Article I – General Provisions b. Article II – Judicial Notice c. Article III – Presumptions d. Article IV – Relevancy and its Limits e. Article V – Privileges [to be governed by statute or common law] f. Article VI – Witnesses including Competency and Impeachment g. Article VII – Opinions and Expert Testimony h. Article VIII – Hearsay

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i. Article IX – Authentication and Identification j. Article X – Contents of Writings, Recordings and Photographs k. Article XI – Miscellaneous 4. Exclusion of the evidence is not the only remedy available to the Court as some evidentiary rules mandate how or by whom evidence is to be presented (conditions precedent) rather than directing an absolute prohibition. 5. Traditionally, the Court’s rulings on Motions in Limine are not final but subject to change at trial. It is necessary for the party filing the motion to preserve any such objection at trial. A proposed amendment to Evidence Rule 103, to be effective July 1, 2017 may make such trial preservation unnecessary.

ADMINISTRATIVE LICENSE SUSPENSION APPEALS

OVERVIEW

Administrative license suspensions and appeals therefrom are governed by ORC Sections 4511.191, 4511.192 and 4511.197.

1. RC 4511.191 – Authority and circumstances authorizing administrative license suspensions. 2. RC 4511.192 – Directives to law enforcement officer re notice to driver and to BMV 3. RC 4511.197 – Appeal procedure and issues on appeal 4. Also see Weiler & Weiler, Ohio Driving Under The Influence Law Chapter 6.

APPEAL

1. Appeal may be filed at initial appearance on the underlying traffic case or within 30 days after the initial appearance. 2. Territorial jurisdiction is the same as the traffic charge. 3. Although ALS appeals have been held to be civil procedures, it is practical and common for courts consider them as part of the procedure for the traffic case as there are issues in common. 4. An appeal does not operate as an automatic stay of the suspension. The Court may, at its discretion, grant a stay. 5. Issues on Appeal – RC 4511.197. “The scope of the appeal is limited to determining whether one or more of the following conditions have not been met:” a. The officer had reasonable grounds to believe the driver had violated either OVI or Physical Control. (Probable cause for arrest) b. The driver was placed under arrest. c. The officer requested the driver to submit to one or more chemical tests. d. The officer advised the driver of the administrative consequences of taking and of refusing the chemical tests. e. Either of the following responses are made by the driver: i. The driver refused the chemical test or tests requested by the officer ii. The test(s) showed a prohibited level of alcohol or drugs in the substance tested. 6. Possible Other Issues in ALS Appeals – Although the legislature limited an appeal to specifically named issues in RC 4511.197, many courts have granted appeals based on noncompliance with RC 4511.191 and 4511.192 requirements. In response, the BMV has modified its ALS Appeal form 2261 and will terminate administrative license suspensions on these expanded grounds as well as the statutory grounds.

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TIME OF EFFECT OF ADMINISTRATIVE LICENSE SUSPENSION

1. RC 4511.191 (B) – Suspension begins at the time of arrest if refusal or if the test results are known at that time (e.g. breath tests) 2. For later determined limits violations (e.g. blood, urine), BMV has entered those on its records when it receives the results but usually shows the beginning date of the suspension as the date of arrest. While such administrative issue is not the concern of the courts for calculating termination date of the suspension, due process would require the driver be notified of the limits administrative suspension before being subject to a driving under an administrative license suspension charge under RC 4511.14.

REMEDY

1. The remedy in an ALS appeal is limited to the restoration of driving privileges. 2. Granting an ALS appeal does not also automatically exclude the evidence from trial. There must be either constitutional or specifically recognized other grounds for grant of a motion to suppress evidence. 3. Granting an ALS appeal does not preclude the Court from imposing a court pretrial license suspension under RC 4511.196 or a court suspension upon conviction of the underlying traffic offense.

REGULATION OF DISCOVERY

OVERVIEW - AUTHORITY

1. In 2010, the rule regarding criminal discovery was substantially amended to provide for open discovery. Annotations prior to 2010 should be closely examined for continued applicability under the new provisions. 2. Discovery in criminal and traffic cases is governed by Criminal Rule 16 which contains the following paragraph contents: a. Purpose of discovery rules b. Prosecutor provided discovery c. d), e), f) Exceptions and procedure re Prosecutor disclosure d. Perpetuation depositions e. Defendant provided discovery f. Witness lists g. Exceptions for work product and privileged material h. Expert witness disclosure requirements i. Regulation options of the Court j. Timing of motions

SCOPE OF MATERIAL

1. CR 16 (B) and (H) list the specific categories of anticipated evidence disclosable. 2. The prosecution is required to disclose information in the possession of the government agencies involved in the prosecution, not just the material physically in the possession of the local prosecutor’s office. Cincinnati v. Ilg, 141 Ohio St. 3d 22 (2014). 3. Timing of Discovery Demands a. Defendant shall make demand within 21 days of arraignment or 7 days before trial, whichever is earlier. b. Once the Defendant makes a discovery demand, there is an automatic duty on the defense to provide reciprocal discovery without specific demand by the prosecution. CR 16 (H).

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c. A public records request made by or on behalf of the defendant entitles the prosecution to reciprocal discovery. State v. Athon, 136 Ohio St. 3d 143 (2013). 4. Motions to compel shall be made no later than 7 days before trial. 5. Remedies a. The Court may enforce this rule even without a separate motion to compel. Lakewood v. Papadelis, 32 Ohio St. 3d 1 (1987). b. By rule, the Court’s options include “to permit the discovery or inspection, grant a continuance, prohibit the party from introducing in evidence the material not disclosed, or it may make such order as it deems just under the circumstances”. CR 16 (L). 6. Factors in deciding the appropriate sanction include: a. Whether the violation was willful b. Whether foreknowledge would have benefitted the other party c. Whether the other party was prejudiced by the lack of disclosure d. If there are effective less severe sanctions e. State v. Breedlove, 2013-Ohio-425 (11th District Ct. App.), appeal not allowed 138 Ohio St. 3d 1448 (2014); Lakewood v. Papadelis, supra.

REFERENCES  Markus & Dickinson, Ohio Trial Practice (2016 Edition), Chapter 17.  Weiler & Weiler, Ohio Driving Under the Influence Law, (2016-2017 Edition) Chapter 5.

APPEAL OF PRETRIAL MOTION RULINGS

1. There are two applicable exceptions to the general rule that pretrial orders are not final and appealable when made. a. In ALS appeals decided against the driver, the driver may appeal within 30 days of the ALS decision. State v. Williams, 76 Ohio St. 3d 290 (1996). b. Criminal Rule 12 (K) gives the prosecution a right to appeal, with proper certification, any order suppressing or excluding evidence or from an order directing the disclosure of evidence. Note the use of the term “excluding” which could include rulings on both motions in limine and on discovery regulation as well as on motions to suppress. 2. For all other situations, it will be necessary to preserve the issue at trial or plea hearing for the pretrial decision to be appealable.

NOTES

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SPEEDY TRIAL

SCOPE

In Ohio, a criminal defendant’s right to a speedy trial is guaranteed by the Sixth Amendment to the U.S. Constitution and by Article I, Section 10 of the Ohio Constitution. The term “speedy trial” is defined in R.C. 2945.71, and the remedy for a violation of this right is set forth in R.C. 2945.73.

OHIO TIME LIMITS

The statutory time limit within which a defendant must be brought to trial depends on whether the defendant is in jail awaiting trial. R.C. 2945.71(E) requires that each day a defendant is held in jail in lieu of bail on the pending charge must be counted as three days. The time limits commence upon the arrest of the defendant or the service of summons upon the defendant.

MISDEMEANORS R.C. 2945.71(B)

1. Minor—30 days 2. Third or Fourth Degree—45 days (15 if defendant is in jail on this charge) 3. First or Second Degree—90 days (30 if defendant is in jail on this charge) 4. Unclassified a. jail not possible: safest course is to use the minor misdemeanor limit b. jail possible: if the maximum jail is 60 days—45 days; if maximum jail is more than 60 days—90 days

FELONIES R.C. 2945.71(C)

1. Preliminary hearing must be held within 15 days after arrest if defendant is not in jail on the charge and 10 days if he is. Weekends and holidays are included in the count. 2. Trial must be held within 270 days after arrest

MULTIPLE CHARGES, SAME TRANSACTION, WHETHER FELONY OR MISDEMEANOR, O.R.C. 2945.71 (D)

1. The highest level of offense controls the time limit 2. Subsequent charges made against an accused are subject to the same speedy trial limits as the original charges if the subsequent charges arose from the same facts as the original charges. 3. However, the State is not required to bring the accused to trial within the same time limit as the original charge in two situations: a. Where the additional charges arise from facts distinct from those supporting the original charge b. Where the State was unaware of the facts supporting the subsequent charge at the time of filing the original charge

REMEDY FOR VIOLATION OF SPEEDY TRIAL RIGHTS, OR.C. 2945.73.

The remedy is a discharge of the defendant, which is a bar to future prosecution based on the same conduct. A dismissal is not a bar unless it is specified to be “with prejudice”. The remedy for not holding a preliminary hearing within the time limits is dismissal of the case. The burden of proof is on the defendant to show that the defendant was not brought to trial within the applicable time limits. The burden then shifts to the state to establish that the defendant’s right to a speedy trial was not violated.

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WAIVER OF SPEEDY TRIAL LIMITS

Waiver of Speedy Trial Limits must be: 1. made knowingly, voluntarily and intelligently and either in writing or on the record in open court. 2. A waiver only applies to the pending charge(s), not to subsequent charges arising out of the same set of circumstances. 3. A defendant may withdraw a waiver of speedy trial rights, in which case the State must bring the defendant to trial within a reasonable time. This involves a consideration of whether constitutional standards, as opposed to statutory time limits, were violated.

EXTENSIONS OF THE STATUTORY TIME LIMITS

Extensions of the statutory time limits are governed by R.C. 2945.72. The time within which an accused must be brought to trial (or preliminary hearing and trial in the case of felony) may be extended only by the following: 1. The time the accused is unavailable due to other criminal proceedings, confinement, or extradition proceedings. 2. Any period during which the accused is mentally incompetent or physically incapable of standing trial. 3. Any period of delay necessitated by the accused’s lack of counsel. 4. Any period of delay resulting from the neglect or improper act of the accused. 5. Any period of delay necessitated by reason of a plea in bar or abatement, motion, proceeding or action on the part of the accused. 6. Any period resulting from a removal or pursuant to law. 7. Any period during which the trial is stayed pursuant to an express statutory requirement, or pursuant to an order of another court competent to issue such an order. 8. The period of any continuance granted either on the motion of the accused, or the period of any reasonable continuance otherwise granted. 9. Any period during which an appeal is filed pursuant to R.C 2945.67, such as the appeal of the granting of a motion to dismiss or a motion to suppress evidence.

GRANTING OF CONTINUANCES

1. Granting of a continuance must be recorded by the trial court in its journal entry. 2. The journal entry must identify the party to whom the continuance is chargeable. a. Periods of time not otherwise tolled by a defense continuance must be counted against the state, if not so recorded as indicated above. See State v. Pickens, (1983) WL 6855, 3 (Ohio App. 6th Dist.) and b. Journal entries purporting to toll the speedy trial time must be filed prior to the expiration of that time if they are to be effective. State v. Mincy, 2 Ohio St.3d 6 (1982). 3. The Journal Entry must indicate briefly the underlying reasons necessitating the continuance. 4. If the trial court is acting sua sponte, the journal entry must so indicate and must set forth the reasons justifying the continuance. a. A continuance that is granted on the state’s motion or by the trial court sua sponte must be reasonable in order to extend the statutory speedy trial limit. State v. Berner, 2002-Ohio-3024. i. Reasonableness is determined by examining the purpose and the length of the continuance. State v. Lee, 48 Ohio St.2d 208 (1976). ii. This is on a case by case basis. State v. Saffell, 35 Ohio St.3d 90 (1988). iii. A defendant’s failure to object and assert his basis for a contrary conclusion is evidence that the reasonableness of a continuance cannot be seriously challenged. State v. Lee, 48 Ohio St.2d 208, 209 (1976). 5. Miscellaneous reasons for granting a continuance: a. Court docket congestion State v. Berner, 2002-Ohio-3024). b. Unavailability of witnesses State v. Davis, WL 1293055 (Ohio App. 4 Dist., 2002).

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c. Conflict in schedule of counsel State v. Graham, WL 689252 (Ohio App 7 Dist.,1999). d. Any other request that is judged by reasonableness.

ILLUSTRATION

FOR PURPOSES OF ILLUSTRATING THE ABOVE PRINCIPLES ASSUME THE FOLLOWING FACTS: 1. An accused is arrested on March 1st on a charge of criminal trespass, a misdemeanor of the 4th degree and is taken to jail. 2. He is arraigned on March 3, being represented by the public defender. He is granted an OR bond and released from jail on that date. 3. His attorney enters his appearance, a not guilty plea and a request for a pretrial conference on March 9th. 4. The court sets the pretrial conference for March 19th. 5. Because of a scheduling conflict for defense counsel, he files a motion on March 18th for a continuance of the pretrial. The motion is granted and the pretrial is rescheduled for April 30th. 6. On April10th the State files a motion for a continuance of the pretrial due to the unavailability of the arresting officer. The pretrial is therefore continued until May 18th. 7. Because no plea agreement is reached at the pretrial, the matter is set for trial on June 5th. 8. On June 4th the defendant files a motion for discharge, alleging that his speedy trial rights have been violated. HOW DO YOU RULE?

ANALYSIS 1. First, the relevant time limit must be ascertained. Because the charge is a 4th degree misdemeanor, the appropriate time limit is 45 days pursuant to R.C. 2945.71(B). 2. Next, the delay between the date of arrest (March 1st) and the date of arraignment (March 3d) amounts to 3 days. [NOTE: Obviously the elapsed time is only two days, but because the defendant is given jail time credit for all three of those days it is a safer policy to count this time as three days.] However, because the defendant was incarcerated during that time each day counts as three days, making a total of nine days for speedy trial purposes. This leaves 36 days remaining in the time limit. 3. The defendant filed a motion for a pretrial conference on March 9th. The period of time between the arraignment and this motion, six days, is chargeable to the State, thereby leaving 30 days within which to bring the defendant to trial, 4. The period between the filing of the motion for a pretrial conference (March 9th) and the pretrial conference (March 19th) amounts to 10 days, and is chargeable to the defendant pursuant to R.C. 2945.72(E) and/or (H). Accordingly, there remains 30 days for the trial. 5. The period of delay resulting from the defense motion for a continuance of the pretrial, i.e. from March 19th to April 30th, amounts to 42 days, but this delay is chargeable to the defendant pursuant to R.C. 2945.72(E) and/or (H). Again, as of April 30th there remains 30 days within which to try the defendant. 6. Next is the delay occasioned by the continuance of the pretrial requested by the State to May 18th. This is a period of 18 days and is chargeable to the State. Therefore, there are 12 days of the speedy trial limit remaining as of May 18th. 7. The trial date of June 5th is 18 days after May 18th, or six days past the time limit. Accordingly, defendant’s motion for discharge should be granted.

NOTES

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SEARCH WARRANTS

WHO MAY REQUEST A SEARCH OR TRACKING DEVICE WARRANT? CRIM.R. 41(A) 1. Prosecuting Attorney 2. Law Enforcement Officer - Note: Crim.R. 2(J) defines a law enforcement officer as having the authority to arrest. Consider whether particular agents meet this requirement.

WHICH COURT MAY ISSUE A WARRANT? CRIM.R. 41(A)(1) 1. A judge of a court of record in which the property to be searched, or person or property to which a tracking device is to be installed, is located. 2. Note: A tracking device warrant may authorize use of the device to track the movement of a person or property within or outside the territorial jurisdiction of the court, or both. Crim.R. 41(A)(2).

WHAT MAY BE THE SUBJECT OF A WARRANT? CRIM.R. 41(B)

1. Evidence of the commission of a crime. 2. Contraband, fruits of crime, or things criminally possessed. 3. Weapons or other things by means of which a crime has been committed or reasonably appears about to be committed.

REQUIREMENTS FOR THE AFFIDAVIT CRIM.R. 41(C)

1. The affidavit for a must: a. Be sworn before the judge; b. Name or particularly describe person or place to be searched; c. Name or describe property to be searched and/or seized; d. State substantially the offense in relation the property; e. State factual basis for Affiant's belief that such property is there located.

2. The affidavit for a tracking device warrant must: a. Be sworn before a judge b. Name or describe the person to be tracked or particularly describe the property to be tracked c. state substantially the offense in relation thereto d. state the factual basis for the affiant's belief that the tracking will yield evidence of the offense. 3. The affidavit may also be communicated to the judge by reliable electronic means by an applicant who is placed under oath and swears/affirms the affidavit communicated.

NOTE: THIS PROVISION OF CRIM. R. 41 BECAME EFFECTIVE 7-1-10 AND A STAFF NOTE TO RULE STATES THE FOLLOWING:

“The revisions to Crim. R. 41 now permit an applicant for a search warrant to be in communication with a judge by reliable electronic means. The concept of reliable electronic means is seen as broad enough to encompass present communication technologies as well as those that may be developed over the next decades. Nothing in these revisions is intended to lessen the requirement that the judge confirm the identity of the applying law enforcement officer, that the judge is satisfied that probable cause for a warrant exists, and that an appropriate record for subsequent review is created.”

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EXAMINATION OF AFFIANT BY JUDGE IS PERMISSIBLE

1. Before ruling on a request for a warrant, the judge may demand other and further evidence before issuing the warrant. The judge may require the Affiant to appear personally and may examine under oath the Affiant and any witnesses s/he may produce. Crim.R.41(C); R.C. 2933.23. 2. Such testimony is admissible at a hearing on a motion to suppress if taken down by a court reporter or recording equipment, transcribed and made part of the affidavit. 3. Oral recorded testimony should be included in the affidavit by reference.

REQUIREMENT OF PROBABLE CAUSE

1. The finding of probable cause may be based upon hearsay in whole or in part. Crim.R.41(C) 2. The totality of circumstances must be considered in determining whether probable cause exists. The "basis of knowledge" and "past reliability" of informants need not be established. The judge must "make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him/her, including the veracity and basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." 3. The statement of a victim or witness to a crime is presumed to be reliable and, thus, may serve as the basis for probable cause absent a showing the individual is unreliable. 4. Unlike information received from police-informants, who themselves are involved in criminal activity, or informants who remain anonymous, information received from known ordinary citizens which is based upon their personal knowledge is presumed to be credible and reliable. 5. Unsupported conclusory statements do not establish probable cause. There must be sufficient facts for the judge to make an independent determination of probable cause. 6. The information must not be stale. The proof must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time. 7. Variables to consider include how perishable the item to be seized is and whether the information in the affidavit relates to a single isolated incident or a protracted ongoing criminal activity. 8. In determining whether probable cause exists, the judge may not consider information that is not supported by oath or affirmation or that is not made part of the affidavit. 9. Exception for Methamphetamine Manufacturing Premises-Revised Code Section 2933.33 authorizes a warrantless search of premises if law enforcement officer has probable cause to believe the premise is used for the illegal manufacture of methamphetamine. R.C. 2933.33.

FOURTH AMENDMENT PARTICULARITY REQUIREMENT

1. Search warrants must describe, with particularity, the place to be searched and the persons or things to be seized. 2. The place to be searched is sufficiently described ―if the description is such that the officer with a search warrant can with reasonable effort ascertain and identify the place searched. 3. Regarding the person or item to be seized, the search warrant must enable the officer to identify the persons or items to be seized. 4. The specific description on the face of the warrant of the place and person to be searched must be justified by facts set forth in the affidavit. 5. “All persons” warrants: A search warrant authorizing the search of all persons on the premises does not violate the Fourth Amendment requirement of particularity if the supporting affidavit shows probable cause that every individual on the subject premises will be in possession of, at the time of the search, evidence of the kind sought in the warrant.

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NIGHTTIME WARRANTS

Warrants are required to be executed during the daytime unless authorized by the court upon a showing of reasonable cause (Crim. R. 41(C)(2) or urgent necessity (R.C. 2933.24). Daytime is from 7:00 a.m. to 8:00 p.m. (Crim. R. 41(F).

THE KNOCK AND ANNOUNCE REQUIREMENT

1. A law enforcement officer executing the search warrant must give notice of his intention to execute the warrant and then be refused admittance before he legally may break down a door or window to gain entry to execute the warrant. R.C. 2933.231(A)(3). 2. The affidavit may include a request to waive the knock-and-announce requirement. Under R.C. 2933.231(B), the affidavit must contain all of the following: 3. A statement that the affiant has good cause to believe that there is a risk of serious physical harm to the individuals who will execute the warrant if they knock-and-announce; 4. The facts upon which the affiant's belief is based, including, but not limited to, the names of all known persons who the affiant believes pose the risk of serious physical harm; 5. A statement verifying the address of the building to be searched as the correct address in relation to the criminal offense underlying the request for the search warrant; 6. NOTE: FAILURE TO COMPLY WITH THE RULE DOES NOT REQUIRE SUPPRESSION OF THE EVIDENCE SEIZED.

ANTICIPATORY SEARCH WARRANTS

1. A court can issue a warrant based upon an affidavit showing that probable cause exists that at some future time, but not presently, certain property subject to a search warrant will be located at a specific place. 2. The affidavit must show that the evidence to be seized is on a sure and irreversible course to the place to be searched. 3. The warrant should specify a triggering event that must occur before the officer may execute the warrant to establish that the evidence is at the place when the warrant is executed. 4. For Example: In a controlled delivery the triggering event is simply delivery of the package containing contraband to the specific place.

WHEN MUST WARRANT BE EXECUTED?

1. A search warrant must be executed within three days, excluding the day the warrant was issued, Saturdays, Sundays, and legal holidays. Crim.R.41(C) and Crim.R.45(A). 2. A tracking device shall be installed within 10 days and shall specify the time that the device may be used, not to exceed 45 days. NOTE: THE COURT MAY, FOR GOOD CAUSE SHOWN, GRANT ONE OR MORE EXTENSIONS OF TIME THAT THE DEVICE MAY BE USED, FOR A REASONABLE PERIOD NOT TO EXCEED 45 DAYS EACH.

THE RETURN WITH INVENTORY-CRIM. R.41(C) & (D)

SEARCH WARRANT RETURNS

1. must designate a judge to whom it shall be returned.

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2. the officer taking property under a warrant shall give from the person whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken or shall leave a copy and receipt at the place from which the property was taken. 3. the return shall be made promptly and shall be accompanied by a written inventory of any property taken. 4. the inventory shall be made in the presence of the applicant for the warrant and the person from whose possession or premises the property was taken., if they are present, or in the presence of at least one credible person other than the applicant for the warrant or the person from whose possession or premises the property was taken and shall be verified by the officer. 5. the judge shall, upon request, deliver a copy of the inventory to the person from whom or from whose premises the property was taken and to the applicant for the warrant. 6. property seized under a warrant shall be kept for use as evidence by the court which issued the warrant or by the law enforcement agency which executed the warrant.

TRACKING DEVICE WARRANTS

1. the officer executing a tracking device warrant shall enter onto the warrant the exact date and time the device was installed and the period during which it was used. 2. the return shall be made promptly after the use of the tracking device has ended. 3. within 10 days after the use of the tracking device has ended, the officer executing a tracking device warrant must serve a copy of the warrant on the person who was tracked or whose property was tracked. 4. Service may be accomplished by delivering a copy to the person who, or whose property, was tracked; or by leaving a copy at the person's residence or usual place of abode with an individual of suitable age and discretion who resides at that location and by mailing a copy to the person's last known address. 5. Upon the request of a prosecuting attorney or a law enforcement officer, and for good cause shown, the court may authorize notice to be delayed for a reasonable period.

DELIVERY OF PAPERS TO CLERK

The issuing judge must file with the clerk a copy of the return, inventory, and all other papers in connection therewith. Crim. R.41(E).

NOTE: A GOOD PRACTICE IS TO FILE THE AFFIDAVIT, SEARCH WARRANT, RETURN AND INVENTORY ONCE THE RETURN AND INVENTORY ARE BROUGHT BACK TO THE JUDGE.

WARRANT TO INSPECT PROPERTY

1. A warrant to conduct an inspection of property shall issue only upon probable cause to believe that conditions exist upon such property which are or may become hazardous to the public health, safety, or welfare. 2. Upon completion of the inspection, the officer must complete a report of the conditions and file a copy of the report with his agency headquarters.

SEALING AFFIDAVITS

Courts have inherent power to seal affidavits supporting search warrants.

NOTES

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WARRANTLESS ARREST PROCEDURES

SCOPE

This article discusses the procedure for determining probable cause and issuing a warrant when the offender is arrested without a warrant

REFERENCES

ORC §§2935.03, 2935.05, 2935.08, 2935.081, 2935.10, AND 2935.24

ARREST WITHOUT A WARRANT

1. ORC §2935.03 permits a law enforcement officer to arrest and detain an offender until a warrant is obtained. 2. State v. Hoffman, 2014-Ohio-4795, a judicial officer or clerk may not base a decision to sign an arrest warrant on the complaint alone but must have more facts to support a finding of probable cause. 3. Where an arrest warrant is sought, an affidavit setting forth sufficient facts to establish probable cause must be provided with each felony and misdemeanor complaint. A separate probable cause affidavit is not necessary for each charge, but the single affidavit must set forth the probable cause for each offense charged.

OBTAINING AN ARREST WARRANT FOR A PERSON ARRESTED (IN CUSTODY) WITHOUT A WARRANT

1. To obtain an arrest warrant for a person arrested without a warrant for a felony or misdemeanor offense, a probable cause affidavit form and a complaint with warrant form must be submitted to a judicial officer, i.e. judge or magistrate or deputy clerk. 2. In State v. Hobbs, 2012-Ohio-3886, police officers can no longer act as deputy clerks to sign arrest warrants. Although Hobbs did not address the issue of officers acting as deputy clerks to attest to signatures of complaining witnesses and others, a better procedure is available through ORC §2935.081 which authorizes police officers to administer oaths. 3. Due to the Supreme Court decision in and State v. Hoffman, the judicial officer or deputy clerk may not base a decision to sign an arrest warrant on the complaint alone but must have more facts to support a finding of probable cause. 4. Misdemeanor Cases: In misdemeanor cases, the person arrested without a warrant must be brought before a judge or magistrate “without unnecessary delay” and an affidavit filed (ORC §2935.05). “Without unnecessary delay” has not been defined but in practice is 24 to 48 hours. A judicial officer must determine probable cause and issue a warrant (ORC §2935.08) if such an affidavit is filed.

OBTAINING A SUMMONS IN LIEU OF AN ARREST WARRANT

1. Upon the request of the prosecutor or his representative, i.e. an authorized law enforcement officer, the judge, magistrate or chief deputy clerk will issue a summons in lieu of an arrest warrant in a misdemeanor case. a. In order to obtain a summons in accordance with Ohio Criminal Rule 4 and ORC §2935.10, you must submit the Complaint (in the form of an affidavit) with the Summons attached to the judge, magistrate or clerk. 40 | P a g e

b. The police officer may serve the defendant with the Summons containing notice of time, date and place to appear and release the defendant on bond before the Summons is signed. 2. The Complaint and Summons must be filed with the Clerk’s Office as soon as possible after the court is in session. 3. Citations in lieu of Summons a. In minor misdemeanor cases, Ohio Criminal Rule 4.1 permits a law enforcement officer to issue a citation. b. The citation shall: contain the name and address of the defendant; describe the offense charged; give the numerical designation of the applicable statute or ordinance; state the name of the law enforcement officer who issued the citation; and order the defendant to appear at a stated time and place. No summons need be issued by a judicial officer where the citation procedure is used.

NOTES

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RECUSAL/DISQUALIFICATION OF JUDGE

SCOPE This article discusses voluntary recusal of a judge and Affidavits of Disqualification.

REFERENCES Ohio Code of Judicial Conduct, Rule 2.11 ORC Chapter 2701

CODE OF JUDICIAL CONDUCT

1. A judge is disqualified whenever the judge’s impartiality might reasonably be questioned. 2. A judge should timely disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification. Code of Judicial Conduct, Commentary to Rule 2.11 3. Disqualification under the Code – Rule 2.11 a. A judge shall disqualify himself in a proceeding in which the judge’s impartiality might reasonably be questioned, including, but not limited to instances where: i. The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts concerning the proceeding; ii. The judge knows that the judge, the judge’s spouse or domestic partner1, or a person within the third degree of relationship2 to either of them, or the spouse or domestic partner of such a person is any of the following: 1. a party to the proceeding, or an officer, director, general partner, managing member, or trustee of a party. acting as a lawyer in the proceeding 2. has more than a de minimis3 interest that could be substantially affected by the proceeding 3. likely to be a material witness in the proceeding b. The judge, while a judicial candidate, has made a public statement, other than in a court proceeding, judicial opinion, or opinion, that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy. c. The judge meets any of the following criteria: i. served as a lawyer in the matter in controversy or was associated with a lawyer who participated substantially as a lawyer in the matter during such association ii. served in governmental employment, and in such capacity participated personally and substantially as a lawyer or public official concerning the particular matter, or has

1 Domestic partner is defined as a person with whom another person maintains a household and an intimate relationship, other than a person to whom he or she is legally married. Code of Judicial Conduct Terminology. 2 The following persons are persons within the third degree of relationship: great-grandparent, grandparent, parent, uncle, aunt, brother, sister, grandchild, great-grandchild, nephew and niece. Code of Judicial Conduct Terminology 3 De minimus is defined as an insignificant interest that could not raise a reasonable question regarding the judge’s impartiality. Code of Judicial Conduct Terminology 42 | P a g e

publicly expressed in such capacity an opinion concerning the merits of the particular matter in controversy iii. was a material witness concerning the matter iv. previously presided as a judge over the matter in another court d. Under this rule, a judge is disqualified whenever the judge’s impartiality might reasonably be questioned regardless of whether any of the specific provisions of Rule 2.11 apply. Comment 1 to Rule 2.11 e. A judge’s obligation not to hear or decide matters in which disqualification is required applies regardless of whether a motion to disqualify is filed. Comment 2 to Rule 2.11 4. Waiver of Disqualification – Rule 2.11 (former Canon 3(F)) a. A judge subject to disqualification, other than personal bias or prejudice concerning a party, party’s lawyer, or personal knowledge of fact, the parties and lawyers, may disclose on the record the basis of the judge’s disqualification and may ask the parties and their lawyers to consider outside the presence of the judge and court personnel, whether to waive disqualification. If, following the disclosure, the parties and lawyers agree without participation by the judge or court personnel, that the judge should not be disqualified, the judge may participate in the proceeding. The agreement shall be incorporated into the record of the proceeding. Rule 2.11 (C) b. A judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis. Comment 5 to Rule 2.11

DISQUALIFICATION OF MUNICIPAL OR COUNTY COURT JUDGE UNDER THE OHIO REVISED CODE

1. Any party to the proceeding or the party's counsel may file an affidavit of disqualification with the clerk of the court in which the proceeding is pending, if a judge of a municipal or county court allegedly is: RC 2701.031(A) a. Interested in a proceeding pending before the judge, b. Related to or has a bias or prejudice for or against a party to a proceeding pending before the judge or to a party's counsel, or c. Otherwise is disqualified to preside in a proceeding pending before the judge. NOTE: A MOTION TO RECUSE IS NOT THE PROPER VEHICLE FOR SEEKING THE DISQUALIFICATION OF A MUNICIPAL OR COUNTY COURT JUDGE. STATE V. LEWIS (2001), 2001-OHIO-1460 (OHIO APP. 2 DIST.). 2. Affidavit of Disqualification – RC 2701.031(B) a. Shall be filed with the clerk of the court in which the proceeding is pending; b. Not less than seven (7) calendar days before the day on which the next hearing in the proceeding is scheduled; and shall include all of the following: i. The specific allegation on which the claim of interest, bias, prejudice, or disqualification is based and the facts to support each of those allegations; RC 2701.031(B)(1) ii. The jurat of a notary public or another person authorized to administer oaths or affirmations; RC 2701.031(B)(2) iii. A certificate indicating that a copy of the affidavit has been served on the judge of the municipal or county court against whom the affidavit is filed and on all other parties or their counsel; RC 2701.031(B)(3) iv. The date of the next scheduled hearing in the proceeding or, if there is no hearing scheduled, a statement that there is no hearing scheduled. RC 2701.031(B)(4).

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NOTE: IF THE AFFIDAVIT IS NOT TIMELY, THE MOVANT SHOULD PRESENT FACTS IN THE AFFIDAVIT SHOWING WHY TIMELY FILING WAS NOT POSSIBLE. STATE FARM MUTUAL AUTOMOBILE INS. CO. V. BERMAN, 2005-OHIO-2437 (OHIO APP. 10 DIST. 2005); BEDFORD V. LACEY (1985), 30 OHIO APP.3D 1 (8 DIST.).

3. When an affidavit of disqualification is presented to the clerk of court for filing, a. The clerk shall enter the fact of the filing on the docket in that proceeding and shall provide notice of the filing of the affidavit to one of the following: RC 2701.031(C)(1) b. The presiding judge of the court of common pleas of the county; RC 2701.031(C)(1)(a) c. If there is no presiding judge of the court of common pleas of the county, a judge of the court of common pleas of the county. RC 2701.031(C)(1)(b). 4. The clerk of court shall not accept an affidavit of disqualification if: RC 2701.031(C)(2) a. It is not timely presented for filing or b. It does not include the requirements contained in RC 2701.031(B)(2)-(4): i. Notarization – RC 2701.031(B)(2) ii. Certificate of service on judge and all other parties or their counsel – RC 2701.031(B)(3), and iii. Date of the hearing or a statement that there is no hearing scheduled – RC 2701.031(B)(4) 5. Acceptance of Affidavit of Disqualification – RC 2701.031(D) a. If the clerk of courts accepts an affidavit of disqualification, the affidavit deprives the municipal/county court judge against whom the affidavit was filed of any authority to preside in the proceeding until the common pleas judge rules on the affidavit. RC 2701.031(D)(1). b. Exceptions: i. The municipal/county court judge may preside if, based on the scheduled hearing date, the affidavit was not timely filed. RC 2701.031(D)(2). ii. The municipal/count court judge may determine a matter that does not affect a substantive right of any of the parties. RC 2701.031(D)(3). 6. If the common pleas judge denies the affidavit pursuant to RC 2701.031(E) and a second or subsequent affidavit of disqualification regarding the same judge and the same proceeding is filed by the same party or by counsel for the same party, the municipal/county court judge against whom the second or subsequent affidavit is filed may preside in the proceeding prior to the ruling by the common pleas judge on the second or subsequent affidavit. RC 2701.031(D)(4). 7. Ruling on Affidavit of Disqualification by Common Pleas Judge – RC 2701.031(E) a. R.C. 2701.031(E) grants the common pleas court with the sole authority to rule on the disqualification of a municipal court judge because of bias rendering appeals courts without jurisdiction to consider the issue. State v. Jones, 2008-Ohio-6994 (11 Dist.) (citing Beer v. Griffith, 54 Ohio St.2d 440; State v. Hunter, 2002-Ohio-7326 (9 Dist.); State v. Nichols, 2008-Ohio-3324 (4 Dist.); Hardy v. Hardy, 2008-Ohio-1925; and State v. Tripp, 2007-Ohio-1630 (3 Dist.)). b. If the common pleas judge determines that the interest, bias, prejudice or disqualification alleged does not exist, the judge shall issue an entry denying the affidavit of disqualification. c. If the common pleas judge determines that the interest, bias, prejudice or disqualification alleged does exist, the judge shall issue an entry that: i. Disqualifies the municipal/county court judge against whom the affidavit was filed, and ii. Designates another municipal/county court judge or a common pleas judge to preside in the proceeding in place of the disqualified judge.

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IMPORTANT CASE HOLDINGS

A. A trial court’s judgment may not be voided on the basis that the trial court was or should have been disqualified. State v. Ramos, 88 Ohio App.3d 394 (9 Dist., 1993). B. Alleged errors of law or procedure are legal issues subject to appeal and are not grounds for disqualification. State v. Black, 85 Ohio App.3d 771 (1 Dist., 1993). C. A municipal court judge does not erroneously enter orders in a case after an affidavit of prejudice was filed in an eviction action, inasmuch as the only orders entered after the affidavit was filed were to certify the case to the common pleas court because the defendant's counterclaim exceeded the municipal court's monetary jurisdiction; the court is thereby merely fulfilling its duty under RC 1901.22(E) and Civ. R. 13(J). Natl. Church Residences of Worthington v. Timson, 78 Ohio App.3d 798 (10 Dist., 1992). D. R.C. 2701.031 provides the exclusive means by which a litigant may claim that a municipal court judge is biased and prejudiced. State v. Hunter, 151 Ohio App.3d 276 (9 Dist., 2002) (citing Walker v. J.W. Automotive, 2001 WL 726803 (2 Dist., 2001). E. R.C. 2701.031 sets forth the process for seeking removal of a county court judge and provides the exclusive means by which a litigant can assert that a county court judge is disqualified to preside over the proceedings. Hrina v. Segall, 2001-Ohio-3281 (7 Dist. 2001). F. The Court of Appeals has no authority to render a decision with regard to disqualification of municipal court judges. State v. Gaines, 2006-Ohio-3750 (9 Dist., 2006) (citing Nicolaci v. Littlejohn, 55 Ohio App.3d 147 (1 Dist., 1989)); Clemons v. Hafner, 2005-Ohio-4503 (7 Dist., 2005). G. When municipal court judges voluntarily recuse themselves without an affidavit of prejudice being filed, R.C. 2701.031 does not permit the presiding judge to appoint a substitute judge. Rather, the Chief Justice of the Supreme Court of Ohio has the sole authority to assign a replacement judge. Coleman v. Ohio Supreme Court Chief Justice, 2008-Ohio-5878 (8 Dist.) (citing State ex rel. Kline v. Carroll, 2002-Ohio- 4849). H. A judge does not formally disqualify himself without a journal entry. State v. Hartman, 2007-Ohio-6555 (3 Dist.).

NOTES

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ASSIGNED AND ACTING JUDGES

SCOPE

This article discusses the procedure for appointment of assigned and acting judges.

REFERENCES

1. Municipal Courts – RC 1901.121 2. County Courts – RC 1907.141 3. Rules of Superintendence for the Courts of Ohio, Rule 17 [Supr. Rule] 4. Supreme Court of Ohio Guidelines for Assignment of Judges [ SCGAJ]

DEFINITIONS - SCGAJ 1.1

1. Sitting Judge – Any person currently holding judicial office by election or gubernatorial appointment 2. Assigned Judge – Any sitting or retired judge whom the Chief justice assigns to serve temporarily in another court. 3. Acting Judge – Any person appointed by the presiding judge to serve in that court during the temporary absence of a sitting judge. 4. Retired Judge – Any formerly sitting judge who left office voluntarily or due to mandatory retirement age and in good standing.

WHEN USED?

1. Overburdened docket – RC 1901.121 (D); 1907.141 (D) 2. Vacancy – death, removal, suspension – RC 1901.121 (A)(1); 1907.141 (A)(1) 3. Recusal or disqualification – RC 1901.121 (A)(1); 1907.141 (A)(1) 4. Temporary absences – illness, vacation, CLE, family emergency – RC 1901.121 (A)(2)(b) or 1907.141 (A)(2)(b) for assigned judges; RC 1901.121 (A)(2)(a) or 1907.141 (A)(2)(a) for acting judges

ASSIGNED JUDGES

WHO MAY ASSIGN? – SCGAJ 5.1

1. All assignments are made over the signature of the Chief Justice of the Ohio Supreme Court 2. Assignments are administered through the Judicial Assignment Program: a. Diane Hayes, Judicial Assignment Specialist 614-387-9415 b. [email protected] 3. All requests must be submitted online through the IGOR program. Instructions for submission are on the OSC website.

REQUEST FOR ASSIGNMENT – SCGAJ 2.4

1. By administrative judge addressed to the Chief Justice emailed to the above address. 2. If a multi-judge court, including a certification of unavailability of another sitting judge 3. Including reason for request 4. Including type and length of assignment

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WHO MAY BE ASSIGNED? – SCGAJ 4.1 AND 4.2

1. Sitting judges of other courts 2. Retired judges registered with the Ohio Supreme Court as available for assignment. A directory is available from the Ohio Judicial Conference. 3. Sitting and retired municipal and county court judges may be assigned to any municipal or county court. 4. Sitting and retired Common Pleas and Court of Appeals judges may be assigned to any municipal or county court, with municipal or county court experience or a special CLE requirement. - Superintendence Rule 17(B) 5. Requests for a specific judge may be made only in situations of anticipated temporary absences, never for recusals or other situations. Common practice is for the sitting judge or staff to contact the judge desired to be assigned to confirm availability and willingness and then ask OSC for formal assignment. – SCGAJ 2.5 6. When assigned, the guideline title is “Assigned Judge” or “Retired Assigned Judge” but such are commonly referred to as visiting judges (VJs).

SCOPE OF APPOINTMENT – SCGAJ 2.2 AND 5.2

1. Vacancy, suspension, removal – indefinite time until position is filled or suspension ends. 2. Overburden – not to exceed 6 months for a sitting judge or 3 months for a retired judge. Renewable 3. Recusal or disqualification – indefinite time for the duration of the case or conflict situation. 4. Temporary absence – two options a. For specific dates b. Blanket periods for as needed (e.g. 1/1/2017 to 3/31/2017). Not to exceed 6 months for sitting judges or 3 months for retired judges. Renewable.

ACTING JUDGES

WHO MAY APPOINT? – RC 1901.121(A)(2)(A), (B) OR (C);1907.141 (A)(2)(A), (B) OR (C)

1. The presiding (not administrative) judge of the court in which there will be a temporary absence. 2. The Chief Justice neither appoints nor approves acting judges. IGOR is not used. Acting Judges are required to register with the Supreme Court and subject to some judicial CLE requirements

WHO MAY BE APPOINTED? – RC 1901.121 (B) AND (C); 1907.141 (B) AND (C) (SEE CHART)

1. Census population of at least 25,000 in the court’s territory – Territorial attorney resident with at least 6 years practice experience or a retired judge. 2. Census population of under 25,000 in the court’s territory – If there is no territorial resident who qualifies as above, an attorney or retired judge meeting those same qualifications as above residing in a contiguous court’s territory. 3. Magistrates – It is questionable whether a court’s magistrate may be appointed as an acting judge. There are two Ohio Attorney General opinions that say it is improper (1990 OAG 089 and 2001 OAG 009) in that one cannot hold both positions at the same time. Those courts who do appoint magistrates as acting judges have the magistrate take a leave of absence while serving as an acting judge. Such procedure could be confusing to litigants as to the finality of the magistrate/acting judge’s decision.

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SCOPE OF APPOINTMENT

1. As specified by the presiding judge. 2. May be for the entire term of the presiding judge; should be renewed for subsequent terms.

AUTHORITY OF ASSIGNED AND ACTING JUDGES – SUPERINTENDENCE RULE 17 (E)

1. Both assigned and acting judges have the same full adjudicatory authority of the sitting judge. The sitting judge need not approve and cannot overrule any case procedural or dispositional decision. Final decisions of assigned and acting judges are appealable to the court of appeals. 2. Neither an assigned nor an acting judge may remove or appoint officers of the court.

NOTES

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SEALING RECORDS

BACKGROUND

1. Statutory remedy, very structured. State v. Boykin, 138 Ohio St.3d 97 (2013) 2. Enacted in 1974, amended at least nineteen times 3. Many annotations are outdated due to subsequent legislation 4. Application date determines applicable law. State v. LaSalle, (2002) 96 Ohio St.3d 178 5. Terminology: Expungement vs. Sealing. Expunge (RC 2953.37) – to destroy, delete, or erase so the record is permanently irretrievable.” The term “expungement” is incorrect and misleading. Sealed records are not destroyed, deleted, erased, or permanently irretrievable.

TWO TYPES OF SEALING

1. ORC 2953.31 et seq. – Convictions 2. ORC 2953.51 et seq. – Dismissals

COMMON CONSIDERATIONS-LEVELS OF INQUIRY

1. May the Court seal? a. Eligibility of offender b. Eligibility of offense c. Timeliness of application 2. Should the Court seal? a. Discretionary findings b. Common Steps c. Mandatory procedure d. Eligibility determination e. Discretionary findings with mandatory language f. Administrative action

SEALING OF DISMISSALS (RC 2953.51 – 2953.60)

DEFINITION INCLUDES

1. Dismissals without prejudice after expiration of [ORC 2953.52(B)(2)(a)(ii)] 2. Not guilty findings and no bills [RC 2953.52(A)]

STEPS

1. Mandatory procedure 2. Application. No fee is specified in the statute and several appellate decisions have held that no fee should be charged for a sealing of a dismissal/not guilty finding. 3. Court will set a hearing date. a. Necessity for hearing. State ex rel. Cincinnati Enquirer v. Lyons, (2014) 140 Ohio St. 3d 8. b. Purpose of hearing c. Public notice d. Eligibility of offender and offense e. Consider any objections

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f. Testimony optional 4. Court will notify prosecutor of application and hearing date. a. Prosecutor will file written objections before hearing b. Failure to file written objections is not a waiver. State v. Hamilton, (1996) 75 Ohio St.3d 636 5. Eligibility determination by court staff [RC 2953.52 (B)(2)(a) and (b) a. Verify dismissal b. If dismissed without prejudice, verify expiration of statute of limitations c. Applicant’s conviction record is immaterial st d. All dismissal cases are eligible, including traffic. State v. Pankey, 2012-Ohio-936 (1 Dist.) e. Verify entire case has been dismissed i. 2953.61 (A) Time considerations ii. 2953.61(B) Exceptions f. Verify there are no pending criminal charges (not including traffic) 6. Discretionary findings with mandatory language [RC 2953.52(B)(2)(c) and (d)] 7. Weigh interest of applicant against needs of government a. Government needs must outweigh applicant’s interest b. In the public interest is no longer a standard 8. Rehabilitation not material in dismissal sealing

ADMINISTRATIVE ACTION IF SEALING IS GRANTED [RC 2953.52(B)(3) AND (4); RC 2953.53

1. Order to seal all official records 2. Notice to Ohio BCI&I and any public agency the Court has reason to believe has a reference 3. Copies to prosecutor and applicant

EFFECT OF SEALING OF DISMISSAL

1. Official record only. See suggested disclaimer in following form examples. 2. Record is hidden, not destroyed. See 2953.53(D) 1-4 for limited access 3. Divulging restricted information is a criminal offense for a public employee. R.C. 2953.35.

SEALING OF CONVICTIONS (RC 2953.31 -2953.36)

STEPS

1. Mandatory procedure a. Application with $50 filing fee. Fee is per application, not per case or per offense. [RC 2953.32 (C)(3)] b. Court will set a hearing date. [RC 2953.32(B)] i. Necessity for hearing. State ex rel. Cincinnati Enquirer v. Lyons, (2014) 140 Ohio St. 3d 8 ii. Purpose of hearing 1. Public notice 2. Determine eligibility of offender and offense 3. Consider any objections 4. Testimony optional c. Court will notify prosecutor of application and hearing date. [RC2953.32(B)] d. Prosecutor will file written objections before hearing i. Failure to file written objections is not a waiver. State v. Hamilton (1996) 75 Ohio St.3d 636. 2. Eligibility determination by court staff [RC 2953.32 (C)(1)(a) and (b)]

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a. “Eligible offender” – record of applicant b. Sealable offense – nature and identity of conviction c. Timeliness of application – ripeness d. Eligible offender [2953.31 (A)] i. Number of convictions ii. Not more than one felony iii. Not more than one felony and one misdemeanor iv. Not more than two misdemeanors (can be of the same offense) 3. Counting convictions [RC 2953.31(A)] a. Two or more offenses committed at the same time shall be considered as one b. Two or three offenses committed within a three month period charged or resolved together [presumed to be] considered as one unless if not in the public interest c. Minor misdemeanors are not counted d. Most traffic offenses are not counted but see 2953.31(A) exceptions th e. Uncounseled convictions are counted. State v. Fedor, 2011-Ohio-5485 (10 Dist.)

NON-SEALABLE OFFENSES (RC 2925.36)

1. Subject to mandatory prison term 2. Certain listed sex offenses 3. RC 4507, 4510, 4511, and 4549 including bail forfeiture 4. Offense of violence as specifically listed in ORC 2901.01 (A)(9)] if a felony or a first degree misdemeanor, not including 2903.13, 2917.01, 2917.31 5. Felonies of the first or second degree 6. Involving victim under 18 if felony or first degree misdemeanor except 2919.21 (nonsupport).

TIMELINESS – WAITING PERIOD

1. For misdemeanors, one year after the offender’s final discharge; for felonies, three years a. Final discharge is not a defined term b. Not the sentencing date c. Active compliance. State v. Aguirre 2014-Ohio-4603 (Ohio Supreme Court), e.g. restitution, community service, payment of fines, is the minimum requirement for final discharge. (Failure to pay costs does not prevent final discharge.) Individual courts should establish by local rule the event of final discharge for those on reporting or non-reporting probation/community control. It can be, but not necessarily is, the end of the supervision or the community control period. 2. Multiple offenses (RC 2953.61) a. Can cause delay – e. g. felony and misdemeanor b. Can cause ineligibility if one offense is non-sealable (State v. Futrall (2009) 123 Ohio St.3d 498; State v. Pariag (2013) 137 OhioSt.3d 81; State v. K.J., 2014- Ohio-3472 (10 Dist.) c. Note distinctions between 2953.31 “same time” and2953.61 “same act”

NOTES

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JUDICIAL NOTICE

SCOPE

This article discusses taking judicial notice of facts.

REFERENCES

Ohio Rule of Evidence 201 Ohio Criminal Rule 27 Ohio Civil Rule 44.1

TAKING JUDICIAL NOTICE

1. Judicial notice is the acceptance of a fact as true without the necessity of formal proof. 2. A court can take judicial notice of either adjudicative or legislative facts. 3. Evidence Rule 201 covers judicial notice of adjudicative facts. a. Adjudicative facts are those that would be determined by the finder of fact, i.e. facts that relate to the parties. b. By way of example, this could include: i. Scientific laws and facts, i.e. the boiling point of water; the tendency of water to find its own level. ii. Geographical facts, i.e. the location of a road within the jurisdiction of the court iii. General historical and political matters iv. Winter in Ohio can produce ice and snow.Because of Ohio winters, many Ohioans vacation in Florida in winter. 4. Legislative facts are those that are used by the court in its legal reasoning. In general, this includes: i. The meaning of English words and phrases. ii. Federal and state laws and administrative regulations, or the lack thereof, including foreign states and nations. iii. Local ordinances and rules of court. iv. Judicial decisions 5. Ohio Civil Rule 44.1 (which also applies to criminal cases, see Crim.R. 27) requires a court to take judicial notice of rules of the Ohio Supreme Court and the decisional, constitutional and public statutory law of Ohio. The rule also provides the method for a party to plead if they intend to rely upon a municipal ordinance, local rule or administrative regulation or the laws of other states or foreign countries. 6. When requested by a party and provided with the necessary information, a court is required to take judicial notice of a fact that is so universally known that it cannot reasonably be disputed, either because it is: a. Generally known within the territorial jurisdiction of the court, or b. capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. 7. If requested, a party is entitled to an opportunity to be heard on the propriety of taking judicial notice. If no notice is given, a party may make its request after the court has taken judicial notice. 8. In civil cases, the jury should be instructed that it must conclusively accept any fact judicially noticed by the court. In criminal cases, the jury should be instructed that it may, but need not, accept a fact judicially noticed by the court.

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9. A court may take judicial notice sua sponte and at any time in the proceeding, including after the submission of evidence by the parties.

NOTES

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CONTEMPT OF COURT

SCOPE

This article discusses the statutory procedures relevant to contempt of court.

REFERENCE

ORC Chapter 2705

DEFINING CONTEMPT

1. Definition of “Contempt of Court”: An act or omission that interferes with the administration of justice, by conduct that: a. Disregards judicial orders; b. Shows disregard and disrespect for the authority and dignity of the law; or c. Embarrasses, impedes, or obstructs the court in performing its functions. 2. Purpose of contempt proceedings: a. To ensure the unimpeded and effective administration of justice b. To secure the dignity of the court; and c. To affirm the fundamental supremacy of the law 3. Contempt is characterized by two elements a. Location of the act – indirect or direct contempt b. A threat to the administration of justice – imminent or subsequent 4. Two types of contempt: a. Civil b. Criminal

PROCEDURE

1. Determine whether the act is an interference with the administration of justice. If so, it is an act of contempt; if not, is isn’t. 2. Determine whether the contempt is direct or indirect. a. Direct—act occurs in the presence of the judge or so near to the court as to obstruct the due and orderly administration of justice. b. Indirect—act occurs outside the presence of the court. 3. Determine whether the act rises to the level of a “Summary Contempt”—R.C. 2705.01. a. The conduct severely threatened the integrity of the court and its proceedings such that immediate action by the judge is necessary, AND b. The act was committed in open court, AND c. The act was committed in the judge’s presence and immediate view. 4. Procedural safeguards—R.C. 2705.03 a. A charge in writing filed with the clerk of the court b. An entry of the charge made on the journal; AND c. Accused has been given an opportunity to be heard, by himself or counsel 5. Determine whether the contempt is civil or criminal: a. Civil—purpose is remedial or coercive—jail the contemnor until he complies with the order. R.C. 2705.06 b. Criminal—purpose is punitive—R.C. 2905.05(A): i. 1st offense—Up to 30 days in jail and/or up to $250 fine

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ii. 2nd offense—Up to 60 days in jail and/or up to $500 fine iii. 3rd offense—Up to 90 days in jail and/or up to $1000 fine

MISCELLANEOUS

1. Burden of proof: 2. In criminal contempt—beyond a reasonable doubt 3. In civil contempt—preponderance of evidence 4. Rules of evidence: 5. Apply in indirect contempt proceedings 6. Do not apply in direct contempt proceedings. Evid. R. 101(C)(4) 7. Do not apply in summary contempt because the judge has personal knowledge of the act and no further evidence is required 8. If you cannot determine whether the act in question is indirect, direct or summary contempt, treat the matter as indirect or direct as opposed to summary because the procedural safeguards are greater.

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MENTAL CONDITION OF THE DEFENDANT

COMPETENCE TO STAND TRIAL

Competence to Stand Trial — “A defendant is presumed to be competent to stand trial. A person is not competent to stand trial if the person cannot understand the nature and objective of the proceedings against the person or assist in the person’s defense. R.C. 2945.37(G).

WHAT TO DO IF THERE IS A SUGGESTION THAT THE DEFENDANT IS NOT COMPETENT TO STAND TRIAL.

2. Typically, this issue is raised before trial. The court should order an evaluation of the defendant’s present mental condition pursuant to R.C. 2945.371(A). 3. If the issue is raised after the trial has started, the court should proceed on the issue only for good cause or on its own motion. R.C. 2945.37(B). 4. R.C. 2945.371(G) provides that a written report is to be filed with the court, with copies to counsel, within 30 days of the order, and further provides what the report must contain. 5. No statement made by the defendant during an evaluation relating to the defendant’s competence to stand trial shall be used against the defendant on the issue of guilt in any action or proceeding. R.C. 2945.371(J). 6. If the examiner’s report is to the effect that the defendant is incapable of understanding the nature and objectives of the proceedings against the defendant OR of assisting in the defendant’s defense, and that the defendant appears to be a person with an intellectual disability subject to institutionalization by court order, the court shall order that the defendant undergo a separate intellectual disability evaluation, and the results thereof shall be submitted to the court in writing within 30 days. R.C. 2945.371(H). 7. A "person with an intellectual disability subject to institutionalization by court order" means a person eighteen years of age or older with at least a moderate level of intellectual disability and in relation to whom, because of the person's disability, either of the following conditions exists: (1) The person represents a very substantial risk of physical impairment or injury to self as manifested by evidence that the person is unable to provide for and is not providing for the person's most basic physical needs and that provision for those needs is not available in the community; (2) The person needs and is susceptible to significant habilitation in an institution. R.C. 5123.01(O). 8. The court shall conduct a hearing within ten days of the filing of the report of the examiner [step C, above] or of the separate intellectual disability evaluation [step E, above]. R.C. 2945.37(C). 9. If, after the hearing, the court finds by a preponderance of the evidence that the defendant is competent to stand trial, the defendant shall be proceeded against as provided by law. R.C. 2945.38(A). 10. If, after the hearing, the court finds by a preponderance of the evidence that, because of the defendant’s present mental condition, the defendant is incapable of understanding the nature and objective of the proceedings against the defendant or of assisting in the defendant’s defense, the court shall find the defendant incompetent to stand trial [R.C. 2945.7(G)] and shall enter an order pursuant to R.C. 2945.38.

NOT GUILTY BY REASON OF INSANITY

Not Guilty By Reason Of Insanity— “A person is ‘not guilty by reason of insanity’ to a charge of an offense only if the person proves . . . that at the time of the commission of the offense, the person did not know, as a result of a severe mental disease or defect, the wrongfulness of the person’s acts.” R.C. 2901.01(A)(14).

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WHAT TO DO IF A DEFENDANT ENTERS A PLEA OF “NOT GUILTY BY REASON OF INSANITY”.

1. The court should order one or more evaluations of the defendant’s mental condition at the time of the offense charged. R.C. 2945.371(A). 2. The court shall inform the examiner of the offense with which the defendant is charged. R.C. 2945.371(E). 3. The examiner shall file a written report within 30 days. R.C. 2945.371(G) specifies what that report is to contain, including the examiner’s findings as to whether the defendant, at the time of the offense charged, did not know, as a result of a severe mental illness or defect, the wrongfulness of the defendant’s acts charged. R.C. 2945.371(G)(4). 4. No statement made by the defendant during an evaluation relating to the defendant’s mental condition at the time of the offense charged shall be used against the defendant on the issue of guilt in any criminal action or proceeding. R.C. 2945.371(J). 5. If the defendant is found not guilty by reason of insanity, the verdict shall state that finding and the trial court shall hold a hearing within ten days of the verdict to determine whether the defendant is [R.C. 2945.40(A)]: 6. a “mentally ill person subject to court order” as defined in R.C. 5122.01(B), or 7. a “person with an intellectual disability subject to institutionalization by court order” as defined in R.C. 5123.01(O). 8. If a person is found not guilty by reason of insanity, the person has a fight to attend all hearings as well as other rights set forth in R.C. 2945.40(C). 9. The burden of proof is by clear and convincing evidence at the hearing [step E, above]. R.C. 2945.40(F). 10. If the court finds after the hearing that the person is either a “mentally ill person subject to court order” or a “person with an intellectual disability subject to institutionalization by court order”, the court shall commit the person as provided in R.C. 2945.40(F). 11. In such a case, the person shall not be voluntarily admitted to a hospital or institution. 12. A person found not guilty by reason of insanity and committed pursuant to R.C. 2945.40 shall remain subject to the jurisdiction of the trial court until the final determination of the commitment as defined in division (J)(1) of this section. R.C. 2945.401(A).

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SOVEREIGN CITIZENS

Definition and Threat:

1. The “Sovereign Citizen” is an individual who believes the he or she is not bound by the laws of the State of Ohio or local ordinances. 2. The groups of sovereign citizens are varied and may take different approaches to defending their beliefs, but Ohio courts must be prepared for possible violence and paper terrorism if a litigant declares that he or she is a sovereign citizen.

IDENTIFYING SOVEREIGN CITIZENS:

1. Most sovereign citizens enter the municipal court system by receiving traffic tickets and charges for minor criminal offenses. 2. They usually make their beliefs known immediately at arraignment by demanding that the presiding judicial officer explain jurisdiction under “common law” or “admiralty law “and by refusing to enter a plea. 3. Often, they will say they are “making a special appearance” and refuse to stand before the bench. 4. The sovereign citizen, either before arraignment or in pretrial proceedings, will file voluminous documents challenging jurisdiction of the municipal court and requesting dismissal of the charges based on “common law” and “admiralty law.” 5. Embedded in the documents may be document requests which include the judge’s and clerk’s oaths of office.

ADDRESSING SOVEREIGN CITIZENS FILINGS:

Distinguishing between frivolous arguments of lack of jurisdiction and viable public records requests is important to avoid later litigation against the judge and clerk. 1. Records Requests: Embedded within the voluminous filings may be a document request so it is best to review each document for such requests and respond thereto in accordance with the law regarding disclosure of public records. 2. Motions to Dismiss: Most of the filings constitute motions to dismiss the pending charges based on lack of jurisdiction and the sovereign citizen’s peculiar understanding of the law. The description of the law varies by the many different theories to which the sovereign adheres, but the essence is that he or she is seeking dismissal of all charges for lack of jurisdiction. Ohio courts have held that the sovereign citizen defense is without merit and frivolous. The motions may be summarily denied. Garfield Heights v. Anthony C. Foster, 8th Dist. Cuyahoga County No. 102965, 2016-Ohio-2834; State v. Thigpen, 8th Dist. Cuyahoga County No. 99841, 2014-Ohio-2017; State v. Few, 2nd Dist. Montgomery No. 25969, 2015-Ohio 2292; United States. V. Benabe 654 F. 3rd 753(7th Cir. 2011).

PERSONAL ATTACKS AGAINST JUDGES AND COURT PERSONNEL:

1. Violence by sovereign citizens against public officials has occurred across the United States. Security protocols should be activated immediately if a sovereign citizen appears in your court. 2. Trespass: Too often a sovereign citizen may be able to obtain the home address of a judge or court personnel through voting and other public records. They will not only file their documents with the Clerk but deliver them and other demands for money damages to your home. Call the police to your home immediately, make a report and pursue any charges found to be appropriate. Some police departments will send a notice to the sovereign citizen directing them to cease and desist entering your property.

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3. Paper Terrorism: More often than violence, paper terrorism is used to intimidate judges and court personnel. The judge and any court personnel identified by name in any filings of the sovereign citizens should perform regular credit checks and public record searches for liens filed against them. Fraudulent liens may be filed with the IRS, the Ohio Secretary of State or County Auditor or Recorder Offices. a. If liens are filed, reports should be made immediately to the local police department and county prosecutor. b. Notify your legal advisor, i.e. law director and, in the case of a judge, the attorneys assigned by the Supreme Court under the liability policy c. The IRS will send a notice regarding the lien and you must respond promptly in accordance with IRS procedure. The law director may respond unless he or she decide special counsel is needed. d. No notice is sent by the Secretary of State or County Offices if liens are filed. If a lien is discovered, the police may contact the Secretary of State and file any documents requested, including the police report. Usually within 24 hours, the Secretary of State will remove the lien. Each county has its own procedure for removing liens so it is best to contact the Law Director or County Prosecutor to initiate the process.

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DOMESTIC VIOLENCE

GENERAL

1. Domestic Violence is an area treated uniquely by the law. Victims of Domestic Violence are often weak and vulnerable and not able, willing or with the means to protect themselves for a variety of reasons, to wit: economic insecurity, lack of self confidence, emotional insecurity, lifestyle etc. Because of this the laws that apply to Domestic Violence and related crimes have special rules that may appear to infringe upon the rights of the accused. Great care must be taken to not only comply with the Domestic Violence laws but to balance the rights of the victim against the rights of the accused. 2. The Ohio Supreme Court has recognized that domestic violence has been placed in a special category. In State v Williams 1997-Ohio-79 the Supreme Court noted that the General Assembly “recognized the special nature of domestic violence when it drafted the domestic violence statutes” and “believed that [crimes] involving a family or household member deserves further protection than [crimes] involving a stranger.” 3. Family members are protected by the law both substantive and procedural in order to secure a safe place to live and provide individuals the safety and comfort necessary to realize life, liberty and the pursuit of happiness.

DEFINITIONS

DOMESTIC VIOLENCE

1. Behavioral Definition-A pattern of assaultive and coercive behaviors, including physical, sexual, and psychological attacks, as well as economic coercion, that adults or adolescents use against their intimate partners.” 2. Legal Definition- Much broader than the Behavioral Definition- legal definition does not require a pattern, only a single incident to constitute the offense. 3. ORC Provisions a. R.C. 2919.25(A) b. R.C. 2919.25(B) c. R.C. 2919.25(C)

 (A) No person shall knowingly harm or attempt to harm a family or household member (FHM)  (B) No person shall recklessly cause serious physical harm [2901.01(A)(5)] to a FHM  (C) No person by threat of force, shall knowingly cause a FHM to believe that the offender will cause imminent physical harm to the FHM

FAMILY OR HOUSEHOLD MEMBER

1. R.C. 2919.25(F)(1)(a) a. Any of the following who is residing or has resided with the offender: i. A spouse, a person living as a spouse, or a former spouse of the offender; ii. A parent, a foster parent, or a child of the offender, or another person related by consanguinity or affinity to the offender; iii. A parent or a child of a spouse, person living as a spouse, or former spouse of the offender, or another person related by consanguinity or affinity to a spouse, person living as a spouse, or former spouse of the offender

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2. R.C. 2919.25(F)(1)(b) a. The natural parent of any child of whom the offender is the other natural parent or is the putative other natural parent b. Person living as a Spouse i. Statutory Definition – 2919.25((F)(2) “…a person who is living or has lived with the offender in a common law marital relationship, who otherwise is cohabiting with the offender, or who otherwise has cohabited with the offender within five years prior to the date of the…act in question.” ii. Common Law Marriage abolished prospectively as of October 10, 1991 [still recognize CLM existing on October 10, 1991] iii. Same Sex Couples - Obergefell v. Hodges, 576 U.S. ___, 135 S.Ct. 2584 (2015), is a landmark United States Supreme Court case in which the Court held in a 5–4 decision that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. iv. Cohabiting: 1. Black’s Law Dictionary: “The fact or state of living together, esp. as partners in life, usu. with the suggestion of sexual relations” 2. State v. Carswell, 114 Ohio St.3d 210, 2007-Ohio-3723, 871 N.E.2d 547, ¶ 32, 36: We have also acknowledged the desire of the legislature to “protect persons from violence by close family members or residents of the same household” and “to offer protections to a wide class of persons.” 3. State v Williams, 79 Ohio St. 3d 459, 683 N.E.2d 1126 (1997):“…the essential elements of “cohabitation” are (1) sharing of familial or financial responsibilities and (2) consortium. Possible factors establishing shared familial or financial responsibilities might include provisions for shelter, food, clothing, utilities, and/or commingled assets. 4. Factors that might establish consortium include mutual respect, fidelity, affection, society, cooperation, solace and comfort, aid of each other, friendship, and conjugal relations. These factors are unique to each case and how much weight, if any, to give to each of these factors must be decided on a case-by-case basis by the trier of fact.

Where the alleged offender and alleged victim Where the alleged offender and alleged victim do share same household [standard is relaxed] not share the same household State v. McGlothan 2014 -Ohio- 85 State v Williams Facts: Because the state demonstrated that the Liggins and Williams testified that the defendant was the victim's boyfriend and that they inception of the violence was a fight over money had lived together for about a year, the state had problems… the court could have reasonably no obligation to demonstrate the sharing of familial concluded that a relationship existed - the two or financial responsibilities and consortium to commingled their assets, thus sharing certain prove cohabitation in this case. Instead, based on familial or financial responsibilities. Robinson's testimony, the trial court could have Liggins further testified that the two spent reasonably determined that the state established most of their nights together at Williams’ cohabitation and thus that Robinson was a person residence, and that at one time she thought she living as a spouse with McGlothan. Because the might be pregnant with his child. Their relationship evidence also demonstrates that Robinson resided thus was based upon society and conjugal with McGlothan at the time of the incident, the relations, and therefore included consortium. trial court could have reasonably concluded that Accordingly, the trial court did not err in finding Robinson was a family or household member. that Liggins and Williams were cohabitants.

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ARREST RULES

PREFERRED ARREST RULE

1. Arrest rules for domestic violence cases have been given special attention by the state legislature. 2. 2935.03 Arrest and detention until warrant can be obtained [Primary Physical Aggressor Rules](B)(3) (b) a. If … a peace officer has reasonable grounds to believe that the offense of domestic violence or the offense of violating a protection order has been committed and reasonable cause to believe that a particular person is guilty of committing the offense, it is the preferred course of action in this state that the officer arrest and detain that person …until a warrant can be obtained. b. If …a peace officer has reasonable grounds to believe that the offense of domestic violence or the offense of violating a protection order has been committed and reasonable cause to believe that family or household members have committed the offense against each other, it is the preferred course of action …that the officer, … arrest and detain until a warrant can be obtained the family or household member who committed the offense and whom the officer has reasonable cause to believe is the primary physical aggressor. c. There is no preferred course of action in this state regarding any other family or household member who committed the offense and whom the officer does not have reasonable cause to believe is the primary physical aggressor, but, pursuant to division (B)(1) of this section, the peace officer may arrest and detain until a warrant can be obtained any other family or household member who committed the offense and whom the officer does not have reasonable cause to believe is the primary physical aggressor.

PRIMARY PHYSICAL AGGRESSOR

ORC 2935.03(B)(3)(d) In determining for purposes of division (B)(3)(b) of this section which family or household member is the primary physical aggressor in a situation in which family or household members have committed the offense of domestic violence or the offense of violating a protection order against each other, a peace officer described in division (A) of this section, in addition to any other relevant circumstances, should consider all of the following: 1. Any history of domestic violence or of any other violent acts by either person involved in the alleged offense that the officer reasonably can ascertain; 2. If violence is alleged, whether the alleged violence was caused by a person acting in self- defense; 3. Each person's fear of physical harm, if any, resulting from the other person's threatened use of force against any person or resulting from the other person's use or history of the use of force against any person, and the reasonableness of that fear; 4. The comparative severity of any injuries suffered by the persons involved in the alleged offense. NOTE: You may wish to review these factors in making your bond determination especially when both parties are charged. Many times, when both parties are charged only one may be culpable but for various reasons including the sophistication and training or lack thereof and/or implicit bias of individual law enforcement officers it may be difficult for the officers to discern that one of the parties may not be culpable. It is incumbent on the judge to visit these issues at the initial appearance or in reviewing a request for a warrant. The decision of the judge may [will] have life lasting effects on the parties involved.

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THE WARRANT

1. If the alleged offender was not arrested law enforcement may request a warrant or if arrested and the officer is following 2935.03(B)(3) (b) [holding the party until a warrant is obtained] you may be asked to issue a warrant. 2. The rules for issuing a warrant are found in Criminal Rule 4: a. Upon Complaint. If it appears from the complaint, or from an affidavit or affidavits filed with the complaint, that there is probable cause to believe that an offense has been committed, and that the defendant has committed it, a warrant for the arrest of the defendant, or a summons in lieu of a warrant, shall be issued by a judge, magistrate, clerk of court, or officer of the court designated by the judge, to any law enforcement officer authorized by law to execute or serve it. 3. The finding of probable cause may be based upon hearsay in whole or in part, provided there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished. Before ruling on a request for a warrant, the issuing authority may require the complainant to appear personally and may examine under oath the complainant and any witnesses. The testimony shall be admissible at a hearing on a motion to suppress, if it was taken down by a court reporter or recording equipment. 4. The issuing authority shall issue a summons instead of a warrant upon the request of the prosecuting attorney, or when issuance of a summons appears reasonably calculated to ensure the defendant's appearance.

THE COMPLAINT

1. Criminal Rule 3: a. The complaint is a written statement of the essential facts constituting the offense charged. It shall also state the numerical designation of the applicable statute or ordinance. It shall be made upon oath before any person authorized by law to administer oaths. b. Degree of Crime: c. No Prior Convictions/guilty pleas i. R.C. 2919.25(A)-Knowingly cause or attempt to cause physical harm M-1 ii. R.C. 2919.25(B) Recklessly cause serious physical harm to a FHMM M-2 iii. R.C. 2919.25(C)- By threat of force, knowingly cause a FHM to believe that the offender will cause imminent physical harm to the FHM M-4 d. Degree is elevated if prior conviction(s) or guilty plea(s). The prior offense(s) should be specified in the body of the complaint. The complaint may be amended to include the prior offense upon motion of the prosecution as long as the name or identity of the crime is not changed. See in general Crim. R. 7(D) e. O.R.C. 2919.25(D)(3) - If the offender previously pleaded guilty to or was convicted of domestic violence or a violation of another predicate offense involving a family or household member then the degree of the crime is elevated f. Predicate Offenses: i. 2903.14 Negligent Assault ii. 2909.06 Criminal Damaging iii. Criminal Mischief 2909.07 iv. Burglary 2911.12 v. Aggravated Trespass 2911.211 vi. Child Endangering 2919.22 vii. Any offense of violence [defined in 2901.01(A)(9)] viii. Includes Attempts! 2901.01(A)(9)(d)

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g. One prior predicate offense i. M-1 offense becomes an F-4 ii. M-4 offense becomes an M-2 h. Two or more predicate offenses i. M-1 offense becomes an F-3 ii. M-4 offense becomes an M-1 2. Victim Pregnant a. If the offender knew that the victim was pregnant at the time of the violation and (A) or (B) violation is an F-5 and a (C) violation an M-2 on 1st offense. b. Enhancements if priors i. If the offender knew that the victim was pregnant at the time of the violation – mandatory sentence of at least 6 months ii. If serious physical harm to an unborn or causes termination of pregnancy – 12 months mandatory 3. Uncounseled Plea or Conviction- What if the Defendant did not have an attorney in a prior case? Does the conviction still count as a predicate offense? It depends… An “uncounseled” conviction for purposes of not a predicate offense where: a. Defendant was not represented by counsel; and b. Defendant did not validly waive his right to counsel and; c. Defendant was subject to incarceration d. “For purposes of penalty enhancement in later convictions after the defendant presents a prima facie showing that prior convictions were unconstitutional because defendant had not been represented by counsel and had not validly waived right to counsel and that the prior conviction had resulted in confinement, burden shifts to state to prove that right to counsel was properly waived” - State v Thompson 121 Ohio St.3d 250, 903 N.E.2d 618, 2009 -Ohio- 314

THE ARRAIGNMENT

In many instances, the most important hearing in the case. Decisions made at the arraignment such as bond conditions and protection orders will typically remain in place until the case is finished. Decisions such as who will occupy a residence and contact or lack of contact with protected persons and family members will be in issue.

DECISIONS TO BE MADE AT ARRAIGNMENT

The Complaint-You should examine the complaint to make sure it is in compliance with Criminal Rule 3 and that you have jurisdiction to hear the complaint. If there is a defect you may wish to consider referring the matter to the prosecutor for review. If you do not have jurisdiction you may not have immunity for your decisions.

PARTICIPANTS The participants at the arraignment may vary. Ideally the following persons will be present or at least have been given notice and the opportunity to be present: 1. Defendant 2. Counsel for Defendant 3. If your county has a public defender or if an attorney is available and the defendant has not retained counsel it is desirable that the Defendant be represented by counsel. It is not required, just desirable. 4. Prosecutor a. It is always preferred that a prosecutor be present for the arraignment. b. If a prosecutor is not present, this places the judge in an uncomfortable and possibly an ethically inappropriate position. A prosecutor is the appropriate person to provide Criminal

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Rule 46 information [see below] that is not (should not) be available to the judge in making bond decisions. c. If there is no prosecutor, the judge’s independence and appearance of fairness may be compromised by having to make inquiry regarding the Defendant’s record or lack thereof and conducting an in court [or impermissible out of court] investigation or in the alternative blindly making a decision without relevant information contemplated and required by the law to assist the judge in making bond and conditions of bond decisions. d. If a prosecutor is not made available by the State or City or Village in the alternative you may ask the law enforcement agency in open court to provide the information. 5. Victim [alleged victim] a. Chapter 2930 of the Revised Code requires victim notification and the right to be present at any time the Defendant is present in open court. b. The duty to notify the alleged victim is the responsibility of the prosecutor. You should inquire of the prosecutor if the victim has been notified and if the victim is not present if the prosecutor wishes to go forward without the presence of the victim. 6. Victim Advocate- If a victim advocate has been assigned to your court, make sure that your staff notifies the victim advocate of the arraignment.

BOND ISSUES

 Personal v Cash/Surety  Conditions – i.e. GPS monitor, assessments, alcohol and drug prohibition etc.

PROTECTION ORDER ISSUES

See Below

SCHEDULING ISSUES AND CONTINUANCES

1. As you know scheduling is perhaps the most important administrative function affecting the fair and impartial administration of justice. 2. Scheduling Domestic Violence cases can be challenging because of the multiple participants and other dynamics of this type of case. 3. Some basic rules and suggestions to consider: a. Speedy Trial - 90 days - Triple Count Provision if the Defendant is in jail b. Rules of Superintendence -6 months

BENCH OR JURY TRIAL

Criminal Rule 23 1. Jury demand must be made 10 days prior to trial unless: 2. Trial is scheduled in less than 10 days – then 3 days prior to trial 3. Serious Misdemeanor – No demand required

PRETRIAL AND CONTINUANCES

1. The victim has the right to be present at all court appearances where the Defendant is present. There should be a system where the prosecutor is accountable for providing notices to comply with the victim notification provisions of Chapter 2930.

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2. Granting continuances with notice to the prosecutor [with the expectation that the prosecutor will notify the victim] is not only courteous but is required by law. Granting continuances without notification and/or opportunity to be heard by opposing counsel could be construed as an inappropriate ex parte communication if not by the letter of the law by the spirit of the law and at the very least could be perceived as the court showing favor to the other side. 3. Continuances without notification to the non-moving party should be avoided except in rare circumstances where the interests of justice demand. Granting continuances without notice to the other side subject the court [you] to criticism and favoritism, that does not promote the interests of justice. Avoid situations where an alleged victim or the defendant is told “The judge continued the case” without both sides being involved in the process. Remember, the court does not communicate directly with either the alleged victim or the defendant but you should make sure that the non-moving party (i.e. the prosecutor or the defense attorney) is notified and given the opportunity to participate in the decision whenever possible.

BOND RULES UNDER CRIMINAL RULE 46

Setting bond in Domestic Violence cases is not the same as setting bond in most other cases. There are three major categories of concern:

1. Statutory considerations regarding release – R.C. 2919.251- Considerations in setting bail in domestic violence cases 2. Criminal Rule 46 considerations a. Types of Bond 46(A) b. Conditions of Bond 46(B) 3. The court may impose any of the following conditions of bail: a. Place the person in the custody of a designated person or organization agreeing to supervise the person; b. Place restrictions on the travel, association, or place of abode of the person during the period of release; c. Place the person under a house arrest, electronic monitoring, or work release program; d. Regulate or prohibit the person's contact with the victim; e. Regulate the person's contact with witnesses or others associated with the case upon proof of the likelihood that the person will threaten, harass, cause injury, or seek to intimidate those persons; f. Require a person who is charged with an offense that is alcohol or drug related, and who appears to need treatment, to attend treatment while on bail; g. Any other constitutional condition considered reasonably necessary to ensure appearance or public safety. 4. Factors 46(C) a. In determining the types, amounts, and conditions of bail, the court shall consider all relevant information, including but not limited to: b. The nature and circumstances of the crime charged, and specifically whether the defendant used or had access to a weapon; c. The weight of the evidence against the defendant; d. The confirmation of the defendant's identity; e. The defendant's family ties, employment, financial resources, character, mental condition, length of residence in the community, jurisdiction of residence, record of convictions, record of appearance at court proceedings or of flight to avoid prosecution; f. Whether the defendant is on probation, a community control sanction, parole, post-release control, bail, or under a court protection order. 5. Amendments 46(E)-A court, at any time, may order additional or different types, amounts, or conditions of bail. 66 | P a g e

6. Right to Speak 46(F)-Information stated in or offered in connection with any order entered pursuant to this rule need not conform to the rules pertaining to the admissibility of evidence in a court of law. Statements or admissions of the defendant made at a bail proceeding shall not be received as substantive evidence in the trial of the case.

PROTECTION ORDERS

 Domestic Violence Criminal Protection Orders – R.C. 2919.26  Criminal Protection Orders– R.C. 2903.213  Stalking or Sexual Offense Protection Orders – R.C. 2903.214  Civil Protection Orders – R.C. 3113.31

DOMESTIC VIOLENCE PROTECTION ORDER [DVTPO] V CRIMINAL PROTECTION ORDER [CRPO]

Person is a Family or Household Member Person is not a Family or Household Member DVTPO CRPO R.C. 2919.26 R.C. 2903.213 Domestic Violence Criminal Protection Order - Criminal Protection Order - CRPO DVTPO R.C. 2919.26(A)(1) – “Upon the filing of a R.C. 2903.213(A) complaint involving a FHM that alleges a violation of: Except when the complaint involves a person who is a  2909.06 Criminal Damaging family or household member as defined in section  Criminal Mischief 2909.07 2919.25 of the Revised Code, upon the filing of a  Burglary 2911.12 complaint that alleges a violation of:  Aggravated Trespass 2911.211  Felonious Assault 2903.11  Any offense of violence  Aggravated Assault 2903.12 [Offense of Violence – R.C. 2901.01(A)(9)  Assault 2903.13 includes R.C. 2919.25 – Domestic Violence]-…]  Aggravated Menacing 2903.21  Menacing 2903.22  Menacing by Stalking  Any sexually oriented offense

WHO MAY FILE A MOTION FOR PROTECTION ORDER?

1. R.C. 2919.26 (A)(1) -DVTPO a. The complainant – typically the police officer b. The alleged victim c. FHM of alleged victim d. If the alleged victim unable to file due to an emergency – person who made the arrest may file on behalf of the alleged victim 2. R.C. 2903.213(A) - CRPO a. The complainant b. The alleged victim c. FHM of alleged victim

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WHAT IS THE STANDARD USED TO DETERMINE IF A PROTECTION ORDER SHOULD BE GRANTED?

R.C. 2919.26(C)(1) and R.C. 2903.13(D)(1): The court must find that the safety and protection of the complainant, alleged victim, or any other family or household member of the alleged victim may be impaired by the continued presence of the alleged offender

WHO MAY BE PROTECTED?

R.C. 2919.26(C)(1): If the court finds that the safety and protection standard is met the court may issue a TPO for: 1. Complainant 2. Alleged Victim 3. Family or Household Member(s)

WHERE DOES THE PERSON OBTAIN THE FORM FOR FILING THE MOTION?

R.C. 2919.26(B): The motion shall be prepared on a form that is provided by the clerk of the court

IS THERE A COST?

R.C. 2919.26 (J) Notwithstanding any provision of law to the contrary and regardless of whether a protection order is issued or a consent agreement is approved by a court of another county or a court of another state, no court or unit of state or local government shall charge any fee, cost, deposit, or money in connection with the filing of a motion pursuant to this section, in connection with the filing, issuance, registration, or service of a protection order or consent agreement, or for obtaining a certified copy of a protection order or consent agreement.

WHEN IS THE HEARING SCHEDULED?

R.C. 2919.26(C) – As soon as possible after the filing but not later than 24 hours after the filing Compare R.C. 2903.213(C)(1) – As soon as possible but not later than the next day court is in session What if it is the weekend? Is the Clerk’s Office open to accept the filing?

WHO MUST ATTEND THE HEARING? WHO MAY ATTEND THE HEARING?

1. Must appear - R.C. 2919.26(C) provides that the person who filed the motion shall appear before the court 2. May appear- R.C. 2919.26(A)(2) - Victim may be accompanied by a victim advocate or another person to provide support as provided in R.C. 2930.09

PROTECTION ORDER FORMS:

NOTE: THE PROTECTION FORMS ARE IN THE RULES OF SUPERINTENDENCE: 1. RULE 10. Notifying Law Enforcement Agencies of Criminal or Civil Protection Orders-FORM10-A: You must use this form whenever you issue a protection order. Unless this form is processed issuing the protection order is of limited value. This form facilitates notice that the protection order has been filed.

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2. RULE 10.02. Standard Domestic Violence Criminal Temporary Protection Order Forms:FORM 10.02-A: Domestic Violence Temporary Protection Order (DVTPO)- this is the form to be used for protection orders for any offense involving a family or household member 3. RULE 10.03. Standard Criminal Protection Order Forms and Standard Civil Stalking Protection Order or Civil Sexually Oriented Offense Protection Order Forms. FORM 10.03-B: CRIMINAL PROTECTION ORDER (CRPO)- THIS IS THE FORM TO BE USED FOR PROTECTION ORDERS FOR ANY OFFENSE INVOLVING PERSONS THAT ARE NOT FAMILY OR HOUSEHOLD MEMBERS [E.G. AGGRAVATED MENACING, MENACING, ASSAULT ETC.]

WHEN DOES THE PROTECTION ORDER TERMINATE?

O.R.C. 2919.26(E)(2) – Protection Order terminates on the occurrence of the following: 1. Disposition of the case [note: if the case is bound over to the Common Pleas court the order continues until disposition by the Common Pleas Court - R.C. 2919.26(D)(4)]; 2. Issuance of a protection order or approval of a consent agreement, arising out of the same activities that gave rise to the filing of the criminal complaint

WHAT ARE THE RULES WITH REGARD TO MODIFYING THE PROTECTION ORDER?

Not clear answer but consider: 1. R.C. 2919.26(D)(4) specifically permits the Common Pleas Court to modify the order. Does this mean by implication no authority is given to the Municipal Court to modify the order since the statute is silent as to authority of the Municipal Court? 2. R.C. 2919.26(H) provides that if the TPO is violated that the court may amend the TPO. Does this mean by implication that the TPO cannot be modified for other reasons (e.g. by agreement etc.)? 3. Does the Municipal Court have inherent authority to modify the order? 4. As a practical matter, you may want to consider: a. Has there been a change in circumstances? b. Has there been an opportunity for notice and hearing? c. Always ask the key question: “Whether the safety and protection of the alleged victim or members of the family of the alleged victim may be impaired by the continued presence of the accused?” If so, and you modify the order this should be your justification in making any modification so that the law is satisfied that the protection of those contemplated by the statute to be protected are in fact protected. This may be complicated because of the dynamics involved (e.g. Is it in the alleged victim’s interest to modify prior to finalizing the case? Is there undue influence or pressure on the alleged victim if the alleged victim is requesting the modification? Be wary of the situation where the defense attorney reports that the defense attorney has spoken to the alleged victim (especially at the attorney’s office) and requested that the order be terminated or modified. Although the attorney may in good faith believe that the alleged victim is asking for modification or termination the defense attorney’s primary allegiance is to the defense attorney’s client. Make sure you are satisfied that modifying the order will not compromise the alleged victim.

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PLEA AND PLEA HEARING

SHOULD PLEA INCLUDE AN AGREED SENTENCE?

Pros – Cons -  Expediency  May not know the person’s history  Facilitates resolution of cases (criminal, personal etc.)  May not be able to judge the person’s demeanor etc. prior to the plea hearing  Victim Impact Statement [reluctant victim in open court]

IS IT PREFERRED AND/OR NECESSARY TO HOLD THE PLEA IN OPEN COURT?

1. Victim’s Rights – See below 2. Transparency - 1st Amendment Open court hearings comply with the 1st Amendment requirement of public trials. See State ex rel. The Repository, Div. of Thompson Newspapers, Inc. v. Unger (1986) 28 Ohio St.3d 418 where the court held: “Thus, although the orders that were issued by the judges in the underlying cases did not arise at trial but instead occurred at pretrial hearings, we see no reason under the Ohio Constitution to differentiate between the public's right to attend pretrial proceedings and its right to attend trials. Therefore, we hold that the right to a public trial pursuant to the United States and Ohio Constitutions extends to pretrial proceedings.” For this reason, all hearings involving the judge are held in open court.

VICTIM RIGHTS

CONST I SEC. 10A RIGHTS OF VICTIMS OF CRIMES

Victims of criminal offenses shall be accorded fairness, dignity, and respect in the criminal justice process, and, as the general assembly shall define and provide by law, shall be accorded rights to reasonable and appropriate notice, information, access, and protection and to a meaningful role in the criminal justice process. This section does not confer upon any person a right to appeal or modify any decision in a criminal proceeding, does not abridge any other right guaranteed by the Constitution of the United States or this constitution, and does not create any cause of action for compensation or damages against the state, any political subdivision of the state, any officer, employee, or agent of the state or of any political subdivision, or any officer of the court. (1994 HJR 3, eff. 11-8-94)

RC CHAPTER 2930

1. Right of Victim to be present – 2930.09 a. A victim in a case may be present whenever the defendant in the case is present during any stage of the case that is conducted on the record, other than a proceeding, unless the court determines that exclusion of the victim is necessary to protect the defendant's right to a fair trial.

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b. See Also Evid. Rule 615(B)(4) that provides that the rule of separation of witnesses does not authorize exclusion of a victim of the charged offense to the extent that the victim's presence is authorized by statute enacted by the General Assembly. As used in this rule, “victim” has the same meaning as in the provisions of the Ohio Constitution providing rights for victims of crimes. 2. Who notifies the victim? a. R.C. 2930.06(B) – After the commencement of a case the prosecutor, designee of the prosecutor other than a court or court employee, to the extent practicable, promptly shall give the victim information about the case b. R.C. 2930.06(C) – Upon the request of the victim, the prosecutor shall give the victim notice of the date, time, and place of any scheduled proceeding in the case c. Note: Prosecutor cannot delegate this task to the court! 3. Minimizing Contact between Victim and Defendant a. The court shall make a reasonable effort to minimize any contact between the victim in the case, members of the victim's family, the victim's representative, or witnesses for the prosecution and the defendant, members of the defendant's family, or witnesses for the defense before, during, and immediately after all court proceedings. b. 2930.10(B) The court shall provide a waiting area for the victim, members of the victim's family, the victim's representative, or witnesses for the prosecution that is separate from the waiting area provided for the defendant, members of the defendant's family, and defense witnesses if a separate waiting area is available and the use of the area is practical.

DISMISSAL RULES

Criminal Rule 48 and R.C.2941.33 - Can RC 2930.06(A) – Rule(s) when victim the prosecutor dismiss a case without requests dismissal permission of the court? 2941.33 - The prosecuting attorney shall not enter R.C. 2930.06(A) provides in part: A court shall not a in any cause without leave of the dismiss a criminal complaint, charge, information, court, on good cause shown, in open court. A nolle or or a delinquent child complaint solely prosequi entered contrary to this section is invalid. at the request of the victim and over the objection of the prosecuting attorney…or other chief legal officer responsible for the prosecution of the case. Crim. R. 48(A) – The state may by leave of court and in open court file an entry of dismissal of a complaint and the prosecution shall thereupon terminate Compare: Crim. R. 48(B) – If the court over the objection of the state dismisses a complaint, it shall state on the record its findings of fact and reasons

FORMS 1. Arraignment Misdemeanor DV 2. Arraignment Felony DV 3. Court Supervised Release Form – CSR FORM 4. DVTPO – Superintendence FORM 10.02-A: DOMESTIC VIOLENCE TEMPORARY PROTECTION ORDER (DVTPO) 5. CRPO – Superintendence FORM 10.03-B: CRIMINAL PROTECTION ORDER (CRPO)

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6. Form 10-A – Superintendence FORM 10. Notifying Law Enforcement Agencies of Criminal or Civil Protection Orders-FORM10-A 7. Termination of TPO

NOTES

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VICTIM RIGHTS

SCOPE

This article discusses the rights of victims and the duties of the court under both the Ohio Constitution and the Ohio Revised Code. At the time of publication, enabling legislation for Ohio Constitution Article 1, Section 10A has not been adopted.

REFERENCES

Ohio Constitution Article 1, Section 10A Ohio Revised Code §§2930.06, 2930.13, 2930.14, 2930.18, 2929.12

DEFINITION OF “VICTIM”

Ohio Constitution Article 1, Section 10A states that "victim" means 1. A person against whom the criminal offense is committed OR 2. A person who is directly and proximately harmed by the commission of the offense or act.

The term "victim" does not include the accused or a person whom the court finds would not act in the best interests of a deceased, incompetent, minor, or incapacitated victim.

VICTIM RIGHTS UNDER THE OHIO CONSTITUTION

1. The right to be treated with fairness and respect for your safety, dignity and privacy; 2. The right, upon request, to reasonable and timely notice of all public proceedings involving the criminal offense against you and to be present at all such proceedings; 3. The right to be heard in any public proceeding involving release, plea, sentencing, disposition, or parole, or in any public proceeding in which a right to which you are entitled is implicated; 4. The right to reasonable protection from the accused or any person acting on behalf of the accused; 5. The right upon request, to reasonable notice of any release or escape of the accused; 6. The right, except as authorized by Section 10, of Article 1 of the Ohio Constitution, to refuse an interview, deposition, or other discovery request made by the accused or any person acting on behalf of the accused; 7. The right to full and timely restitution from the person who committed the criminal offense against you; 8. The right to proceedings free from unreasonable delay and a prompt conclusion of the case; 9. The right, upon request, to confer with the attorney for the government; and 10. The right to be informed, in writing, of all rights enumerated herein. 11. The right to assert the rights enumerated herein and any other rights afforded to victims by law and to petition the court of appeals for relief.

VICTIM RIGHTS UNDER THE OHIO REVISED CODE

1. §2930.06-Upon request, the right to notice from the court of the date, time, and place of any scheduled criminal proceeding in this case and notice of any changes in those proceedings or in the schedule. 2. §2930.09-The right to be accompanied by an individual to provide support at all court proceedings. 3. §§2930.13 and 2930.14-The right to make a statement and have the Court consider the statement regarding

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the following matters: a. An explanation of the nature and extent of any physical, psychological, or emotional harm suffered by the victim because of the crime; b. An explanation of the extent of any property damage or other economic loss suffered by because of the crime; c. An opinion regarding the extent to which, if any, the victim needs restitution for harm caused by the defendant a result of the crime and information about whether the victim has applied for or received any compensation for loss or damage caused by said crime. d. A recommendation as to an appropriate sanction or disposition for the defendant. e. A statement may be made in writing and submitted to the court prior to the hearing or you may give your oral statement to the court at the time of the hearing, or both. 4. §2930.18- The right not to be discharged, disciplined, or otherwise retaliated against by the victim’s employer for participating at the prosecutor’s request, in preparation for a criminal proceeding or for attendance, pursuant to a subpoena, at a criminal proceeding if the attendance is reasonably necessary to protect the victim’s interests. 5. §2929.12- The right to request restitution for any economic loss such as property damage caused by the Defendant or for the value of any property which is the subject of the offense.

CONSTITUTION SUPERSEDES ALL CONFLICTING LAWS

All provisions Article 1 § 10A are self-executing, severable and supersede all conflicting state laws.

RIGHT TO APPEAL

The victim, the attorney for the government upon request of the victim, or the victim's other lawful representative, in any proceeding involving the criminal offense against the victim or in which the victim's rights are implicated, may assert the rights in Article 1 §10A and any other right afforded to the victim by law.

If the relief sought is denied, the victim or the victim's lawful representative may petition the court of appeals for the applicable district, which shall promptly consider and decide the petition.

NO CAUSE OF ACTION CREATED

Article 1, §10A does not create any cause of action for damages or compensation against the state, any political subdivision of the state, any officer, employee, or agent of the state or of any political subdivision, or any officer of the court.

NOTES

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MISDEMEANOR SENTENCING

SCOPE

This article discusses all misdemeanor sentencing alternatives.

REFERENCES

ORC §2929.21

ORC §2929.21-PURPOSES OF MISDEMEANOR SENTENCING

1. The section applies to sentences for a. Misdemeanors b. Minor Misdemeanors c. Any municipal ordinance that is substantially similar to a misdemeanor or minor misdemeanor violation of the ORC. 2. The sentencing court “shall be guided” by the overriding purposes of misdemeanor sentencing. 3. The overriding purposes are a. To protect the public from future crime by the offender and others b. To punish the offender 4. To achieve the purposes of sentencing the court “shall consider” a. Impact of offense on the victim b. Need for changing the offender’s behavior c. Rehabilitating the offender d. Making restitution to the victim, the public OR the victim AND the public 5. The sentence “shall” a. Be reasonably calculated to achieve the overriding purposes b. Commensurate with and not demeaning of the seriousness of offender conduct and its impact on the victim c. Be consistent with sentences imposed for similar offenses committed by similar offenders 6. The court shall not base the sentenced on the race, ethnic background, gender, or religion of offender. 7. This section shall not apply to a. Traffic or minor misdemeanor offenses disposed of by a traffic violations bureau of any court pursuant to Ohio Traffic Rule 13 b. Penalties established by a municipal corporation for a violation of its ordinances.

ORC §2929.22-DETERMINING APPROPRIATE SENTENCE FOR MISDEMEANORS

1. A sentencing court has discretion to determine the most effective way to achieve the overriding purposes of sentencing, unless a mandatory sentence is required. 2. A sentencing court may impose any sanction or combination of sanctions under ORC §§ 2929.24 to 2929.28. 3. A sentencing court may not impose a sentence that imposes an unnecessary burden on local government resources. 4. The seven (7) factors the court “shall” consider a. Nature and circumstances of the offense(s) b. Whether the circumstances of the offender and the offense(s) indicate a history of persistent criminal behavior AND the offender’s character and condition reveal a substantial risk that the offender will commit another offense

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c. Whether the circumstances of the offender and the offense(s) indicate that the offender’s history, character and condition reveal substantial risk that the offender will be a danger to others AND the offender’s conduct is characterized by pattern of repetitive, compulsive OR aggressive behavior with heedless indifference to the consequences d. Whether offender is likely to commit future crimes in general in addition to any circumstances described above e. Whether the victim’s youth, age, disability, or other factor made the victim particularly vulnerable to the offense or made the impact of the offense more serious f. Whether the offender has an emotional, mental, or physical condition traceable to service in the US Armed Forces AND that was a contributing factor in the commission of the offense g. The offender’s military service record 5. The sentencing court may consider any other factors that are relevant to achieving the overriding purposes of sentencing in addition to the seven (7) factors above 6. The sentencing court shall consider the appropriateness of imposing a community control sanction or a combination of community control sanctions under ORC §§ 2929.25 to 2929.28 before imposing a jail term. 7. The sentencing court may impose the longest jail term authorized under ORC §2929.24 ONLY upon a. Offenders who commit the worst forms of the offense OR b. Offenders whose conduct and response to prior sanctions demonstrates the imposition of the longest jail term is necessary to deter the offender from committing future crime. 8. The sentencing court shall consider any relevant oral or written statement of the a. Victim b. Offender c. Defense Attorney d. Prosecuting Attorney 9. At the time of sentencing or as soon thereafter as possible, the sentencing court SHALL notify the victim of his/her rights to file an application for reparations award pursuant to ORC §§2743.51 and 2743.72

ORC §2929.24 DEFINITE JAIL TERMS FOR MISDEMEANORS

1. Unless otherwise provided by statute, the definite jail terms for misdemeanors are as follows: a. First degree- not more than 180 days b. Second degree – not more than 90 days c. Third degree-not more than 60 days d. Fourth degree-not more than 30 days 2. If the offender is sentenced to a county jail which has a jail industry program, the court SHALL specify at sentencing whether offender may be considered for the program and the court retains jurisdiction to modify this specification. 3. If sentencing the offender to jail, the court MAY impose a reimbursement sanction (pay for jail stay) and MUST specify at sentencing that a. If an itemized bill is presented for costs of confinement, the offender is required to pay b. If the offender does not dispute the bill and does not pay, the clerk of court shall issue a certificate of judgment against the offender. NOTE: the sentence automatically includes any certificate of judgment.

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ORC §2929.34 (C) PLACE OF IMPRISONMENT

A person who is convicted of one or more misdemeanors and who is sentenced to a jail term shall serve that term in a county, multicounty, municipal, municipal-county, or multicounty-municipal jail or workhouse; in a community alternative sentencing center or district community alternative sentencing center when authorized by section 307.932 of the Revised Code; or, if the misdemeanor or misdemeanors are not offenses of violence, in a minimum security jail.

ORC §2929.41 MULTIPLE MISDEMEANOR SENTENCES

1. A jail term for a misdemeanor shall be served consecutively to any other prison term, jail term, or sentence of imprisonment when the trial court specifies that it is to be served consecutively. 2. When consecutive sentences are imposed for misdemeanor under this division, the term to be served is the aggregate of the consecutive terms imposed, except that the aggregate term to be served shall not exceed eighteen months

ORC §2929.25 COMMUNITY CONTROL SANCTIONS-MISDEMEANOR

1. The sentencing court MAY, for other than a minor misdemeanor, impose community control sanctions or a combination of community control sanctions in lieu of or in addition to a non-mandatory jail term. The court may suspend all or a portion of the non-mandatory jail term. 2. Community control sanctions MAY be imposed in addition to a mandatory jail sentence. 3. Community control sanctions are listed in ORC §§ 2929.26, 2929. 27 and 2929.28 but the sentencing court may “impose any other conditions of release under community control sanction that the court considers appropriate.” 4. The duration of community control sanctions may not exceed five (5) years. At sentencing the court must state the duration of the sanctions and notify the offender that if any conditions are violated, the court may do any of the following: a. Impose a longer time under the same community control sanctions as long as the sanctions do not exceed five (5) years; b. Impose a more restrictive community control sanction; c. Impose a definite jail term. 5. The sentencing court retains jurisdiction over the offender and EITHER PARTY or on the COURT’S OWN MOTION, the court in its SOLE DISCRETION may modify sanctions. 6. If the court sentencing court imposes community control sanctions, the court SHALL place the offender the “general control and supervision” of the court, a department of probation in the court’s jurisdiction, or another department of probation if the offender resides outside the court’s jurisdiction. 7. The court SHALL require the offender to abide by the law and not leave the state without permission of the court or probation officer and “in the interests of doing justice, rehabilitating the offender, and ensuring the offender’s good behavior,” the court may impose additional requirements 8. If the sentencing court imposed a jail term for a violation of a community control sanction, the combined sentence imposed for the offense and for the violation may not exceed the maximum jail sentence for the offense. 9. If the offender fulfills the conditions of community control sanctions in an exemplary manner, the court MAY reduce the time under the sanction(s) or impose a less restrictive sanction. The court may not relieve the offender of any duty to make restitution.

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ORC §2951.07 PROBATIONARY PERIOD

1. A community control sanction continues for the period that the judge or magistrate determines and, subject to the five-year limit, may be extended. 2. If the offender under community control absconds or otherwise leaves the jurisdiction of the court without permission from the probation officer, the probation agency, or the court to do so, or if the offender is confined in any institution for the commission of any offense, the period of community control ceases to run until the time that the offender is brought before the court for its further action.

ORC §2929.26 COMMUNITY RESIDENTIAL SANCTIONS-MISDEMEANOR

1. The sentencing court may impose any community residential sanction or combination thereof. 2. Community residential sanctions are a. Up of 180 days in a halfway house or community based correction facility or a term not to exceed the longest jail term available, whichever is shorter. b. In OVI cases, a term in a community alternative sentencing center or district community alternative sentencing center. 3. The court may permit or order a. Intermittent confinement, overnight, on weekends or any other time to enable the offender to work or care for his/her family; b. Authorize release to maintain employment, receive training or education, treatment, perform community service or fulfill other obligations imposed by the law or the court but for only as long as it takes to fulfill these purposes. c. A reasonable portion of the income earned while offender is released for work to be applied to financial sanctions. 4. This sanction is available only if the political subdivision which would be responsible for paying jail costs enters into a contract for community residential facility. 5. At the time the offender enters the facility, the operator shall cause the offender to be tested for tuberculosis, HIV infection, hepatitis and other contagious diseases. The operator my cause the reluctant offender to be INVOLUNTARILY tested and treated.

ORC §2929.27 NONRESIDENTIAL SANCTIONS-MISDEMEANOR

1. The sentencing court may impose any nonresidential sanction or combination thereof including a. A term of day reporting (day jail) b. Electronic monitoring, house arrest, continuous alcohol monitoring or a combination thereof c. Community service up to 500 hours for a misdemeanor of the first degree or 250 hours for lesser degree misdemeanors, excluding minor misdemeanors i. Offender may ask to make a REASONABLE monetary contribution to the general fund the political subdivision that funds the court ii. Court may grant request if offender demonstrates change of circumstances since sentencing OR that it would be in the interests of justice iii. The contribution shall be paid to the clerk who shall deposit it in the general fund. d. Community service up to 30 hours for a minor misdemeanor and the court may substitute a reasonable contribution in lieu thereof e. Drug treatment program f. Intensive probation supervision g. Basic probation supervision 78 | P a g e

h. Monitored time i. Drug and alcohol use monitoring including random drug testing j. Curfew k. Requirement that offender obtain employment l. Requirement that the offender obtain education and training m. Victim-Offender mediation with consent of victim n. If authorized by statute, suspension of driving privileges, immobilization or forfeiture of vehicle; requirement that offender obtain a license OR ANY RELATED SANCTION o. Counseling in conviction for domestic violence or assault. This provision does not prevent the court from ordering any other counseling. 2. The sentencing court may impose any other sanction that is intended to discourage the offender or other persons from committing similar offense “if the sanction is reasonably related to the overriding purposes and principles of misdemeanor sentencing.

ORC §2929.28 FINANCIAL SANCTIONS

The sentencing court MAY impose financial sanctions or combination thereof authorized by statute.

1. Restitution to the victim or survivor of the victim in an amount based on the victim’s economic loss a. Restitution may not be ordered for a minor misdemeanor or a traffic violation that could be disposed of by a traffic violation bureau under Ohio Traffic Rule 13 b. The court may order payment to the victim in open court, to the probation department or to the clerk of court 2. Permitted fines a. First degree- not more than $1000.00 b. Second degree-not more than $750.00 c. Third degree-not more than $500.00 d. Fourth degree-not more than $250.00 e. Minor-not more than $150.00 3. State fine or costs 4. Costs of sanctions a. Probation supervision fee b. Jail or residential facility costs including room and board per diem fee, medical and dental costs; cost of property damaged by offender c. Cost of purchasing or using immobilization devices including ignition interlock and remote alcohol monitoring device d. Jail reception and drug testing fees 5. Financial sanctions are a judgment in favor of the victim in the case of restitution or the political subdivision for fines and costs and may be collected as a civil judgment 6. See Collection of Court Costs and Fines Bench Card and Restitution Bench Card

ORC§2951.02 SEARCH OF OFFENDER ON COMMUNITY CONTROL SANCTIONS

1. An authorized probation officer who is engaged in scope of supervisory duties or responsibilities and who has reasonable grounds to believe that the offender is not abiding by the law or otherwise is not complying with the conditions of community control sanction, may search with or without a warrant a. The person of the offender b. The place of residence c. A motor vehicle

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d. Another item of tangible or intangible personal property e. Real property in which the offender has a right, title, or interest or for which the offender has the express or implied permission of a person with a right, title, or interest to use, occupy, or possess 2. The court shall provide the offender with written notice that the probation officer may conduct those types of searches

ORC§ 2951.02 COMMUNITY WORK SERVICE

1. If an offender is convicted of or pleads guilty to a misdemeanor, the court may require the offender, as a condition of the offender's sentence of a community control sanction, to perform supervised community service work in accordance with this division. 2. The supervised community service work shall be under the authority of health districts, park districts, counties, municipal corporations, townships, other political subdivisions of the state, or agencies of the state or any of its political subdivisions, or under the authority of charitable organizations that render services to the community or its citizens, in accordance with this division. 3. The court may require an offender who is ordered to perform the work to pay to it a reasonable fee to cover the costs of the offender's participation in the work, including, but not limited to, the costs of procuring a policy or policies of liability insurance to cover the period during which the offender will perform the work. 4. A court may permit the offender to satisfy the payment of a fine imposed by performing supervised community service work if the offender requests an opportunity to satisfy the payment by this means and if the court determines that the offender is financially unable to pay the fine. 5. The court may modify the sentence to authorize a reasonable contribution to the appropriate general fund as provided in division (B) of section 2929.27 6. The supervised community service work that may be imposed under this division shall be subject to the following limitations: a. The court shall fix the period of the work and, if necessary, shall distribute it over weekends or over other appropriate times that will allow the offender to continue at the offender's occupation or to care for the offender's family. The period of the work as fixed by the court shall not exceed in the aggregate the number of hours of community service imposed by the court pursuant to section 2929.17 or 2929.27 of the Revised Code. b. An agency, political subdivision, or charitable organization must agree to accept the offender for the work before the court requires the offender to perform the work for the entity. A court shall not require an offender to perform supervised community service work for an agency, political subdivision, or charitable organization at a location that is an unreasonable distance from the offender's residence or domicile, unless the offender is provided with transportation to the location where the work is to be performed. c. A court may enter into an agreement with a county department of job and family services for the management, placement, and supervision of offenders eligible for community service work in work activities, developmental activities, and alternative work activities under sections 5107.40 to 5107.69 of the Revised Code. If a court and a county department of job and family services have entered into an agreement of that nature, the clerk of that court is authorized to pay directly to the county department all or a portion of the fees collected by the court pursuant to this division in accordance with the terms of its agreement. d. Community service work that a court requires under this division shall be supervised by an official of the agency, political subdivision, or charitable organization for which the work is performed or by a person designated by the agency, political subdivision, or charitable organization. The official or designated person shall be qualified for the supervision by education, training, or experience, and periodically shall report, in writing, to the court and to the offender's probation officer concerning the conduct of the offender in performing the work.

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e. The total of any period of supervised community service work imposed on an offender under division (B) of this section plus the period of all other sanctions imposed pursuant to sections 2929.15, 2929.16, 2929.17, and 2929.18 of the Revised Code for a felony, or pursuant to sections 2929.25, 2929.26, 2929.27, and 2929.28 of the Revised Code for a misdemeanor, shall not exceed five years.

NOTES

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JURY TRIAL PREPARATION

SCOPE

This article discusses advice for preparing for a jury trial from other trial judges. Your pre-trial preparation, policies, procedures, and local Court rules will allow you the best chance of success for a smooth jury trial. This list is by no means exhaustive, but as a Judge, you can count on having each of these issues come to your attention within your first two or three jury trials.

FINAL PRE-TRIAL

1. The mechanism to conduct an informative and candid discussion of all issues at a final pre-trial is crucial. The various requirements of the final pre-trial should be set forth in your local court rules, including: a. The mandatory presence of the Defendant b. Attorneys present have full authority to act and negotiate c. The attorneys should be the actual attorneys at trial d. All discovery should be exchanged and fully reviewed by counsel prior to the final pre-trial 2. Require a final pre-trial statement involving various factors including: a. Statement of the issues of fact involved b. All expected questions of law c. Exhibits expected to be offered as evidence at the trial d. Names and addresses of all expert and lay witnesses expected to be called e. Whether or not a jury view is requested f. Whether or not a jury trial will be waived 3. The final pre-trial statement should be due no later than the date of the final pre-trial 4. Any anticipated evidentiary issues should be discussed. This allows you a little more time to check the Bench Book for answers. 5. Discovery issues must be resolved. Make sure discovery is completed. 6. Requests for special equipment: Power Point, Overheads, Audio/Video etc. 7. Establish and let it be known that you require a candid conversation with both counsel prior to a jury trial being held, regarding the factors stated in the final pre-trial statement as well as the strengths and weaknesses of each case. CAVEAT: Do not allow this to become an ex parte situation. 8. To the extent that a Judge has the say as to whether the case goes to jury trial or not, i.e. whether to accept a recommendation of a plea to the charge, the final pre-trial is the time of ferret out the information needed for you as the Judge to decide whether the case is worthy to go to a jury trial. This would come into play in the criminal arena regarding whether the Judge wishes to accept and approve a recommended plea agreement.

MOTIONS IN LIMINE

1. To the extent possible, require that the motions in limine also be filed prior to the day of trial. If you anticipate a significant number of pre-trial motions, consider holding an evidentiary hearing prior to the jury trial date. 2. Crim.R. 45(D) requires that all motions and notices of hearings regarding the motions be served at least 7 days prior to the hearing date unless a different period is fixed by rule or order of the court. 3. Requiring motions in limine to be filed before the date of trial will potentially give you additional time, rather than on the morning of trial, to sort through, hear arguments, and decide said motions.

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ESTABLISH A PLEA POLICY

1. Large courts v. small courts a. Large courts have a juror pool which is required to be present every day for potential trials. b. Small courts must summon a new panel of jurors for each jury trial. 2. Example: Generally, in smaller jurisdictions, several trials are scheduled for each panel and jury summons cards are mailed for that trial date at least two (2) weeks in advance. These Jury Summons Cards also give the juror a “Jury Hot Line Number” to call day or night to check on the current trial status. In some Courts, a plea to anything other than the original charge must be approved by the judge before Jury Summons Cards are mailed. In my court, this is known as the “Per-Jury Trial Pre-Trial” conducted the day prior to trial. After the “Pre-Jury Trial Pre-Trial”, the oldest case without a time waiver, that remains unresolved, is assigned to go to trial with only three available options: (1) An unconditional plea of Guilty. (2) A dismissal by the State, or (3) A Jury trial. There are of course, exceptions in the interest of justice and the Court's docket.

JURY INSTRUCTIONS

1. USE THE OHIO JURY INSTRUCTIONS a. A committee appointed by the Supreme Court, formulates recommended jury instructions that cover 95% of jury trial issues. b. The above is especially true for the standard introductory remarks, preliminary instructions to the jury, recess instructions, charge by court to the just, final instructions, and verdict forms. 2. When counsel wishes to have special jury instructions (non-standard OJI instructions), the following will be helpful: a. Require them to prepare jury instructions to review before the jury trial date. b. Require counsel to submit proposed jury instructions in electronic format as well as hard copy format. c. Require that they identify whether the instruction is a standard OJI instruction with the accompanying OJI number or if it is a special instruction or a combination of a standard OJI with changed verbiage for a special instruction. d. Require that the case law basis be put at the bottom of the proposed jury instruction. Be prepared to have them explain in detail the need for the special instruction or the reason why the standard OJI was modified to add some special language. 3. For sample instructions for an entire trial from start to finish, as well as some special instructions, see the “Jury Instruction” section of this Bench Book.

GENERALLY 1. It is your courtroom to control. 2. Prepare to decide, establish policies, and set a precedent regarding the small matters as well as the large matters. Suggestions: a. Requiring (or not) jury trial demands in a formal motion b. Accepting pleas on the date of trial c. Continuance of jury trials d. Timeliness of the parties, witnesses, and their attorneys e. Recesses f. When to break for lunch g. Dress code for parties and witnesses - hopefully you won’t have to remind the attorneys

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h. Code for behavior regarding the attorneys addressing the court, each other, and witnesses i. Last minute motions – whether to have the hearing on the motion before trial or to reset the trial and have a motion hearing in its place j. Emergencies, which raise the issues as to whether the jury trial should be cancelled k. Special equipment requests and setting up the same in a timely manner so as to not disrupt the cadence of the trial.

NOTES

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SUMMONING JURORS

SCOPE

This article discussing the procedure for summoning jurors and their rights

REFERENCES

ORC Chapter 2313 ORC §149.43

SELECTION AND NOTICE

1. Jurors shall be selected quarterly in the manner provided by R.C. Chapter 2313. 2. The number of Jurors selected shall be sufficient to insure that prospective jurors will not be called to serve on a rotating basis more than every five (5) to six (6) weeks. 3. When a juror reports of service, the bailiff shall seat the prospective juror in the Courtroom to the exclusion of all other persons except other jurors.

NOTIFICATION

1. The Clerk shall notify each prospective juror of his or her being drawn for jury service and send each prospective juror a Juror Questionnaire form to be completed and returned to the Court within ten (10) days. 2. All jurors shall be notified of jury service at least two (2) weeks prior to that service by postal card and each juror shall be provided a phone number to call for a recorded message concerning the current status of that service.

EXCUSES

1. Excuse from jury duty is governed by R.C. 2313.16. The court is authorized to delegate the authority to make determinations as to whether a juror should be excused. 2. The court shall not excuse a person from jury service unless it is shown to the satisfaction of the judge that one or more of the following applies: a. The juror has a mental or physical condition that causes the juror to be incapable of performing jury service-this condition must be supported by a physician’s documentation. R.C. 2313.16 (A)(4). b. The juror can demonstrate that jury service would cause “extreme undue physical or financial hardship.” R.C. 2313.16 (A)(5) and (C)(1)(a-c). i. “Extreme undue physical or financial hardship” is limited to circumstances in which any of the following would occur: a. Juror would be required to abandon a person under their personal care; b. Juror would incur costs that would have a substantial adverse impact on the payment of daily living expenses; c. Juror would suffer physical hardship that would result in illness or disease. d. The fact that a juror would have to be absent from their place of employment alone is not “extreme undue financial hardship.” e. The juror is a member of a “Recognized Amish Sect” and holds a sincerely held belief against passing judgment on another person. R.C. 2313.16 (A)(7) (See Forms).

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f. The juror informs the court that they are over seventy-five (75) years of age and would like to be excused. R.C. 2313.16 (A)(6). 3. A person is excused permanently from jury service only when the deciding judge determines that the underlying grounds for being excused are of a permanent nature. R.C. 2313.16 (B). 4. A perspective juror who requests to be excused from jury service shall take all actions necessary to obtain a ruling on that request by not later than the date of the scheduled jury trial. The perspective juror shall inform a court employee of the request by appearing in person, or by telephone, in writing, or by E-mail. R.C. 2313.16 (B)(1-2).

POSTPONEMENT

1. The court must postpone a juror’s initial appearance for jury duty provided the juror has not previously been granted a postponement and a. The juror contacts the court at least 2 business days before the initial appearance and b. Agrees to appear on a specified date within six months of the originally scheduled appearance, unless extraordinary circumstances exist. R.C. 2313.13(A). c. Authorizes the court to grant a second postponement in the event of extreme emergency (i.e., death in family, sudden illness). R.C. 2313.13(B). 2. The juror may a. Appear in person or b. Contact the appropriate court employee by i. Phone, ii. Writing, or iii. Email to make the request for postponement. R.C. 2313.13(A). c. Employment - The court is required to postpone and reschedule the service of jurors when it is demonstrated to the satisfaction of the court that the juror is employed by an employer with i. Less than 26 full-time employees and d. Another employee was summoned during the same term or part of term of court. e. This postponement does not count as the potential juror’s automatic postponement outlined above. R.C. 2313.18 (C).

EMPLOYER PROHIBITIONS

An employer may not 1. Take any disciplinary action that could lead to the discharge of any permanent employee as a result of being summoned to serve as a juror. R.C. 2313.18(A). 2. Requiring or requesting employees to use annual, vacation, or sick leave for time spent on a jury. R.C. 2313.18(B).

FINE FOR FAILURE TO APPEAR FOR JURY SERVICE

The minimum fine is $100.00. R.C. 2313.99 The maximum fine is $250.00. R.C. 2313.99

COURT COSTS FOR SUMMONING JURORS

Court costs for summoning jurors are permitted to be included in the costs of prosecution, if the defendant fails to appear without good cause. The costs are to be paid to the public treasury that pays for jurors. R.C. 2947.23.

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JUROR PRIVACY DURING VOIR DIRE

1. Through the First Amendment, the parties, the public and the media have a right to access to the voir dire of prospective jurors and any questionnaires submitted by prospective jurors prior to commencement of voir dire. 2. Juror Questionnaires a. Completed questionnaires are not public records under R.C. 149.43. b. Blank questionnaires, before they are sent to jurors, are public records. c. Social security numbers, telephone numbers, and driver’s license numbers may be redacted because they are only on the questionnaires for identification purposes. 3. Potential Juror’s Privacy Interest a. For good cause shown, there may be a compelling interest that touches on a deeply personal matter that a potential juror has legitimate reasons for keeping out of the public domain. A judicial response must be narrowly tailored to serve the juror’s privacy interest. b. During voir dire, a prospective juror may request an in camera or side bar hearing to discuss matters that are particularly private or deeply personal that he or she does not wish to discuss in open court. i. Counsel is present at the hearing and the hearing is on the record. ii. The judge must review each request by a member of the press or public for a copy of the transcript in chambers session and determine whether the prospective juror had a legitimate reason for keeping his or her answers out of the public domain.

NOTES

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JURY EXAMINATION AND SELECTION

SCOPE

This article discusses pertinent issues for examination and selection of the jury panel.

REFERENCES

ORC Chapter 2945 Ohio Criminal Rules 23 and 24

REQUIRED NUMBER OF JURORS

Number of jurors in each case (Crim.R. 23(B)) 1. Felony cases – 12 members 2. Misdemeanor cases – 8 members 3. For cases involving a felony and a misdemeanor – 12 members 4. For cases involving a felony and a misdemeanor and multiple defendants joined for trial – 12 members

EXAMINATION OF PROSPECTIVE JURORS

1. To assist prospective jurors in understanding the general nature of the case, the court, in consultation with the parties, may give jurors a brief introduction to the case. (Crim.R. 24(A)). 2. Any person called to be a juror must be examined under oath or affirmation as to their qualifications to become a juror. (R.C. 2945.27 and Crim.R. 24(B)). The following may conduct the examination: a. Attorney for the defendant b. Defendant (if appearing pro se) c. Attorney for the state d. Court 3. Oath before court begins questioning prospective jurors: “Do you solemnly swear or affirm that you will truly and fully answer all questions put to you by the Court and Counsel in this case now called for trial, and this you will do under the penalty of perjury.” If so, answer “I do.” 4. Types and purposes of questions that may be asked during this examination: a. “The overriding purpose of the voir dire is to examine the prospective jurors and determine whether a potential juror both meets the statutory qualifications of a juror and is not biased or prejudiced towards either litigant.” Vega v. Evans (1934), 128 Ohio St. 535; cited by State v. Neal, 2009-Ohio-1743 (6th Dist.). b. “The scope of the inquiry will not be confined strictly to the subjects which constitute grounds for the sustaining of a challenge for cause; but it extends beyond such subjects it must be conducted in good faith with the object of obtaining a fair and impartial jury and must not go so far beyond the parties and the issues directly involved that it is likely to create a bias, prejudice, or an unfair attitude toward any litigant.” Id. at paragraph two of the syllabus. c. Although questions regarding religion are permissible during voir dire, they must be presented for the sole purpose of determining whether bias exists, and not done in a mode or manner that creates bias, prejudice, or unfair attitude toward any litigant.” State v. Jones (1984), 20 Ohio App.3d 331.

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5. No prospective juror shall fail to answer any legal and pertinent question put to him or her by the court and that the court shall inform prospective jurors of their right to request an in-camera hearing regarding such questions. The court is not required to hold an in-camera hearing unless the information contained in the response has been requested and the prospective juror requests that the information not be released. (R.C. 2313.11)

CHALLENGES

CHALLENGES FOR CAUSE

1. The court should at least inquire as to the cause issues before the state and defense question the jurors. 2. The state and defense shall be allowed supplemental inquiry regarding cause issues. a. It is the judge’s discretion to direct the cause questions to all jurors or simply the b. jurors seated in the jury box. There are various pros and cons to each approach: c. By questioning all jurors, any issues as to cause can be fully addressed with those seated in the jury box and touched upon for those jurors who are not seated, therefore giving advance warning to the counsel of record before their questioning begins. d. By questioning all jurors, you may waste time initially exploring a cause issue on a juror that will never be seated in the jury box. e. Regardless of how you choose to question on issues of cause, you should address every seated juror regarding the issue of cause before allowing counsel to question said juror. 3. Challenges for cause (R.C. 2945.25 and Crim.R 24(B)) a. A juror may be dismissed for the following reasons: i. The juror has been convicted of a crime which by law renders the juror disqualified to serve on a jury. ii. The juror is a chronic alcoholic, or drug dependent person. iii. The juror was a member of the grand jury that found the indictment in the case. iv. The juror served on a drawn in the same cause against the same defendant, and the petit jury was discharged after hearing the evidence or rendering a verdict on the evidence that was set aside. v. The juror served as a juror in a civil case brought against the defendant for the same act. vi. The juror has an action pending between him or her and the State of Ohio or the defendant. vii. The juror or the juror's spouse is a party to another action then pending in any court in which an attorney in the cause then on trial is an attorney, either for or against the juror. viii. The juror has been subpoenaed in good faith as a witness in the case. ix. The juror is possessed of a state of mind evincing enmity or bias toward the defendant or the state; but no person summoned as a juror shall be disqualified by reason of a previously formed or expressed opinion with reference to the guilt or innocence of the accused, if the court is satisfied, from the examination of the juror or from other evidence, that the juror will render an impartial verdict according to the law and the evidence submitted to the jury at the trial. x. The juror is related by blood or law within the fifth degree to the victim, complainant, or defendant. xi. The juror is the victim of the offense charged, complainant, or the defendant. xii. The juror is the employer or employee, or the spouse, parent, son, or daughter of the employer or employee, or the counselor, agent, or attorney, of the victim, complainant, or defendant.

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xiii. English is not the juror's native language, and the juror's knowledge of English is insufficient to permit the juror to understand the facts and the law in the case. xiv. That the juror is otherwise unsuitable for any other cause to serve as a juror. b. Challenges for cause by state and defense i. After the judge has questioned jurors for cause, the State begins its voir dire of the eight impaneled members only. ii. At the end of the State’s questioning, if the State has no objections for cause, the defense begins its questioning. iii. If the State challenges a juror for cause, the court must make a ruling and has the discretion to make further inquiry as to whether or not the juror can be fair and impartial or other relevant inquiry. If the challenge for cause is sustained, the juror is excused with thanks and a new juror is seated. The State can then conduct voir dire on the new juror only and the process continues. iv. Under R.C. 2313.42(A) there are ten principal challenges to prospective jurors. Challenges (A) – (I) do not call for judicial discretion. These nine challenges to a juror, if raised at trial and found to be valid, result in a presumption of disqualification. The trial court must dismiss the juror and cannot rehabilitate the juror or allow that juror to stay on the panel based on the juror’s pledge of fairness. 1. The tenth principal challenge to prospective jurors is found in 2313.42(J). This challenge calls for judicial discretion in determining the potential juror’s impartiality and fairness. 2. In this case, the juror was challenged under section E. After questioning the juror, the court denied Hall’s challenge for cause. 3. The Supreme Court held that the trial court was barred from exercising discretion and was required to dismiss the juror once it was established that the challenge was valid. Hall v. Banc One Mgt. Corp. (2007), 114 Ohio St.3d 484, 2007-Ohio-4640; Grundy v. Dhillon, 120 Ohio ST. 3d 415, 2008-Ohio-6324. 2. Once all jurors are passed for cause by both sides, the preemptory challenges begin.

PEREMPTORY CHALLENGES

1. Challenges for cause are to be exercised alternately, with the first challenge exercised by the state. Crim. R. 24(E) a. Number of strikes (Crim. R. 24(D), R.C. 2945.21(A)) i. If there is one defendant, each party is entitled to strike 3 jurors in misdemeanor cases, 4 jurors in felony cases, and 6 in capital cases. ii. If there are multiple defendants, each defendant may strike the same number as above as if they were the sole defendant. iii. The prosecuting attorney may also strike a number of jurors equal to the total that the combined defendants may strike. b. Failure to exercise a constitutes waiver for that turn only unless all parties, ultimately and in sequence, fail to exercise peremptory challenge. The joint failure constitutes a waiver of all peremptory challenges. 2. Challenging the array – Crim.R. 24(F) a. The prosecuting attorney or attorney for the defendant may challenge the array of petit jurors on the ground that it was not selected, drawn or summoned in accordance with the law before the examination of jurors. State v. Walker, 2009-Ohio-1936 (2nd Dist.) b. A challenge to the array shall be made before the examination of the jurors Batson challenges - The U.S. Supreme Court in Batson v. Kentucky (1986), 476 U.S. 79 prohibited the State from 90 | P a g e

purposely excluding potential jurors on the grounds of race. The Court in Powers v. Ohio (1991), 499 U.S. 400 extended the challenges under the equal protection clause to any defendant regardless of race. The Court also extended Batson to include gender strikes in J.E.B. v. Alabama ex. rel. (1994), 114 S. Ct. 1419. 3. Batson Procedure a. The party opposing a peremptory challenge must demonstrate a prima-facie basis of racial discrimination in the use of the strike by demonstrating that they are a member of a cognizable racial group and that the peremptory challenge will remove a member of the litigant’s race from the venire. The challenger is entitled to rely on the fact that the strike is an inherently discriminating device as stated by the Ohio Supreme Court in State v. Hernandez (1992), 63 Ohio St. 3d 577. b. The court must consider all circumstances in determining whether a prima-facie case exists, including any statements made by the counsel exercising a peremptory challenge, questions posed by this counsel during voir dire, and any patterns of strikes against minority venire members. c. Assuming a prima-facie case exists, the striking party must then demonstrate a race neutral explanation for striking the perspective juror under the circumstances of the present case. i. Counsel’s explanation is not required to rise to the level of a challenge for cause, however, a simple affirmation of general good faith is not enough. The issue is whether discriminatory intent is inherent in the counsel’s basis for the use of the strike. ii. Finally, the Court must decide whether the party opposing the peremptory strike has proved purposeful discrimination. In other words, should striking counsel’s race neutral explanation be believed. d. Findings i. The Judge should make a clear record that they understand and have applied the Batson test when racial discrimination has been alleged. ii. The Judge should go into some detail regarding the factors reviewed before making a decision and whether or not the testimony offered was believable and persuasive. iii. Appellate review of a Batson decision (that is, a trial court’s decision that a peremptory strike was based on discrimination) predominately hinges on issues of credibility, therefore, appellate courts generally defer to the factual findings of the trial court, be clear and have as many factual findings as you deem relevant stated in the record. e. Timing – Batson challenges and decisions must be made prior to the juror being excused.

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ALTERNATE JURORS IN NON-CAPITAL CASES

1. The court may direct not more than 6 in addition to the regular jury to be called and impaneled to sit as alternate jurors. Crim. R. 24(G) 2. Alternate jurors are to be drawn in the same manner, with the same qualifications, be subject to the same challenges, take the same oath, and have the same functions, powers, and privileges as the regular jurors. 3. Each party is entitled to one peremptory challenge in addition to those otherwise allowed if one or two alternate jurors are to be impaneled, two peremptory challenges if three or four alternate jurors are to be impaneled, and three peremptory challenges if five or six alternative jurors are to be impaneled. The additional peremptory challenges may be used against an alternate juror only, and the other peremptory challenges allowed by this rule may not be used against an alternate juror. 4. An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict.

NOTES

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JURY DELIBERATIONS AND VERDICT

SCOPE

This article discusses pertinent issues regarding jury deliberations including deadlocked and mistrials.

REFERENCES

ORC Chapter 2945 Ohio Criminal Rule 31 Ohio Jury Instruction 415

QUESTIONS DURING DELIBERATIONS

1. There is no prescribed manner of handling questions from a deliberating jury regarding evidence. Giving information regarding evidence is discretionary with the court and should be given only if it can be accomplished fairly, completely and impartially. (From OJI 415.05) 2. Any jury questions should be reduced to writing, be placed on the record by reading the question outside the preview of the jury, with objections or comments by counsel also placed on the record. OJI 415.05. 3. Jury questions as to the law (OJI 415.10). a. The court is not obligated by rule or statute to give further instructions on the law in the case if the jury has questions during . b. Under Crim.R.30(A), the court must give a copy of the final jury instructions to the jury for them to use during deliberations. The copy may be in writing or an audio, electronic, or other recording of the instructions.

VERDICTS

1. Requirements for a duly rendered verdict (Crim. R. 31 and R.C. 2945.171): a. Unanimous, b. In writing, c. Signed by all jurors concurring in the verdict, and d. Returned by the jury to the Judge in open court. 2. Verdict requirements when there are several defendants (Crim. R.31 (B)) a. If there are multiple defendants, the jury at any time during its deliberations may return a verdict or verdicts with respect to the defendant(s) on whom it has agreed. b. If the jury cannot agree with respect to all defendants, those on whom the jury does not agree may be tried again. 3. Verdict requirements for a conviction on lesser offenses (Crim. R.31(C)) a. The defendant may be found not guilty of the offense charged but guilty of an attempt to commit it that offense if such an attempt is an offense at law. b. When the indictment, information, or complaint charges an offense including degrees, or if lesser offenses are included within the offense charged, the defendant may be found not guilty of the degree charged but guilty of an inferior degree thereof, or of a lesser included offense. 4. The verdict must be recorded immediately upon the minutes in open court. R.C. 2945.78 5. It is also recommended that in a criminal case the verdict be filed and journalized with the Clerk of Courts. (See Jury Verdict Forms)

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6. When the court submits a verdict form containing a statutory description of the offense, it is reversible error if the description does not include all elements of the offense. State v. Lampkin (1996), 116 Ohio App. 3d 771 (6th Dist.). 7. When a jury unanimously finds the defendant not guilty and uses the wrong verdict form, the court must allow correction of verdict rather than declare a mistrial. Cleveland v. Walters (1994), 98 Ohio App. 3d 165 (8th Dist.).

DEADLOCK

1. If after a reasonable period of time of deliberations, the jury states that it cannot reach a conclusion as to guilt or innocence, a new jury instruction should be given. 2. The Supreme Court of Ohio set out specific instructions that are to be given when the jury is in a deadlock. State v. Howard, (1989) 42 Ohio St. 3d 18 (Para. 2 of syllabus): a. The approved deadlock instruction is: “The principal mode, provided by our Constitution and laws, for deciding questions of fact in criminal cases, is by jury verdict. In a large proportion of cases, absolute certainty cannot be attained or expected. Although the verdict must reflect the verdict of each individual juror and not mere acquiescence in the conclusion of your fellows, each question submitted to you should be examined with proper regard and deference to the opinions of others. You should consider it desirable that the case be decided. You are selected in the same manner, and from the same source, as any future jury would be. There is no reason to believe the case will ever be submitted to a jury more capable, impartial, or intelligent than this one. Likewise, there is no reason to believe that more or clearer evidence will be produced by either side. It is your duty to decide the case, if you can conscientiously do so. You should listen to one another's arguments with a disposition to be persuaded. Do not hesitate to re-examine your views and change your position if you are convinced it is erroneous. If there is disagreement, all jurors should re-examine their positions, given that a unanimous verdict has not been reached. Jurors for acquittal should consider whether their doubt is reasonable, considering that it is not shared by others, equally honest, who have heard the same evidence, with the same desire to arrive at the truth, and under the same oath. Likewise, jurors for conviction should ask themselves whether they might not reasonably doubt the correctness of a judgment not concurred in by all other jurors." b. See also OJI 27.50 for approved alternative wording. 3. No verdict reached- If a considerable length of time has passed, and if becomes apparent that there is no probability of the jury agreeing, the jury can be discharged without an agreement. R.C. 2945.36 (B). 4. OJI 415.75 - Dismissal after deadlock “You have considered this case for a considerable length of time and reported to the court that you are unable to reach a verdict. The court accepts this conclusion and finds that there is no probability of the jury agreeing….[The prosecutor] is instructed to prepare and present an entry on this finding. Thank you, members of the jury. You are now excused (and may return to the general jury room) (and will see the bailiff-clerk before you leave).” 5. The entry must show the reason for the discharge of the jury. R.C. 2945.36. a. It is recommended that Judge include such factors as: i. Length of the jury’s deliberation, ii. Additional jury instructions given, and iii. Other factors showing a careful consideration by the Court and its conclusion of a lack of probability of this jury reaching an agreement.

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DISMISSING THE JURY (OTHER THAN FOR DEADLOCK)

1. A jury can also be discharged for other factors including: (R.C. 2945.36) a. Sickness, b. Corruption of a jury, c. Accident or calamity, d. A juror being a witness in the case, or e. With the consent of both parties. If there is a discharge by consent, the defendant should be advised of the rights being waived in open court and understand that he may be tried again and required to personally express his approval to be tried again. R.C. 2945.36 2. The entry should fully state the reason for the discharge of the jury. R.C. 2945.36

POLLING THE JURY

1. When a verdict is returned and before it is accepted, the jury shall be polled at the request of any party or upon the Court’s own motion. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberation or may be discharged. Crim.R. 31(D) 2. Differences between Crim. R. 31 (D) and R.C. 2945.77. a. Who may poll the jury: i. R.C. 2945.77 states that the prosecuting attorney or the defendant may poll the jury but does not specifically state that the judge may do so. ii. Crim. R. 31(D) also permits the court to poll the jury, even if the defendant and prosecuting attorney do not. iii. When one juror declares the verdict is not his verdict: 1. R.C. 2945.77 states that the jury must further deliberate. 2. Crim. R. 31 (D) states that “the jury may be directed to retire for further deliberation…..”. 3. It would appear to be the best practice, according to case law that the jury should further deliberate to learn why the juror is now disavowing his verdict and to see if there is a consensus that can be had. See State v Gibson, 1994 Ohio App. LEXIS 5336 (2nd Dist.). 4. Some districts hold that when a juror ambiguously disavows his verdict they may be questioned by the court and the verdict may stand if it is in fact found to be unanimous. See State v Brumback, (1996), 109 Ohio App. 3d 65. 5. The court is not required to re-instruct the jury prior to further deliberation when a juror disclaims a verdict upon being polled. See State v Green, (1990), 67 Ohio App. 3d 72. 3. It appears to be up to the discretion of the court as whether or not the court asks both parties whether they would like to poll the jury. However, polling of the jury is seen as a fundamental right and therefore the court must allow a polling of the jury if it is requested by either counsel. 4. When polling is requested, it is good practice to explain to each juror that the attorney has the right by statute and the criminal rules to request that they be polled as the process may intimidate some jurors. 5. If a polling of the jury is requested, the verdict is not official until each juror substantiates their verdict. 6. The Criminal Rules are silent as to the procedure used to poll the jury. There is some guidance found in Rule 48 of the Ohio Rules of Civil Procedure where the rule states if polling is requested by either party the process would include each juror being asked if the verdict is that of the juror. It is recommended that you poll each individual juror by name or juror number and after polling is complete to state for the record that each of the jurors has been polled and the results.

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MISTRIAL

1. Mistrials generally occur under two circumstances, prejudicial misconduct by the prosecutor, defense counsel, jurors, witnesses, etc. and when there is a . 2. Standards for Mistrial a. The general standard for mistrial caused by misconduct is a remark or action that is so improper that it prejudicially affected the substantial rights of the accused. b. It is your decision and you must decide whether or not the person’s comments or actions were inappropriate and if so, whether they rise to the level of prejudicing a defendant so that in the interests of justice a new trial is warranted. 3. The following test should be applied: Were the person’s remarks or actions improper, and if so did they prejudicially affect the substantial rights of the accused? 4. The general standard to be utilized is that of “Harmless Error” (Crim. R.52 (A)) a. Reversible error exists if after a review of the record as a whole the person’s comments or actions are to the level that it is clear beyond doubt that the jury would not have found the defendant guilty absent the persons comments and or actions. If the comments or actions do not rise to this level it could be considered harmless error per Appellate Court analysis. Courts have also considered whether or not the comments or actions of the person are enough to have inflamed the jury and influenced it to render a verdict other than what it would have normally returned. b. The Court must also decide whether or not the situation can be cured by the person being admonished, a curative instruction given and the jurors further instructed to disregard the matter. Remember, not all improper statements or actions are prejudicial. 5. Prosecutorial misconduct. a. The following may rise to the level of or contribute to the finding of a mistrial. i. Comment on failure of defendant to testify ii. Defendants failure to offer evidence of his good character iii. Reference to evidence that was not offered or was excluded iv. Defendant’s rejection of a or his withdrawal of a guilty plea. v. Inflaming the jurors by appealing to their passion, prejudice or sympathy. vi. When the prosecutor expresses his personal opinion on defendant’s guilt or the credibility of witnesses. vii. Attacking defense counsel’s integrity. viii. Comments by the prosecutor may rise to the extent of prejudicing the defendant depending upon the following: 1. Whether the remarks were isolated or wide spread throughout the trial or closing statement. 2. Was objection made by defense counsel, failure to object waives all but plain error. See State v Fears, (1999), 86 Ohio St.3d 329. 3. Whether the trial judge give a curative instruction. 4. Rather than a close case, was the evidence of guilt overwhelming. See State v Hart, (1994), 95 Ohio App. 3d 665. ix. The cumulative effect of various and improper statements can be considered and found to deny the defendant a fair trial. See State v Willard,(2001), 144 Ohio app.3d 767. x. The prosecutor’s statements must be examined in the context of the record as a whole and any harmless-error must be disregarded. See State v Bey, (1999), 85 Ohio St. 3d 487. xi. In determining whether improper conduct affected the defendant’s substantive rights, the reviewing court may employ the test for harmless-error in Criminal Rule 52 (A). See Bey, Id.

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xii. A conviction will be reversed only if it is clear beyond a reasonable doubt, that absent the prosecutor’s comments, the jury would not have found the defendant guilty. See State v Benge, (1996), 75 Ohio St. 3d 136. 6. A jury is presumed to follow the court’s instructions including curative instructions. See State v Loza, (1994), 71 Ohio St. 3d 61. 7. Mistrial and Double Jeopardy a. Generally, the double jeopardy clause does not bar a retrial of the matter following a mistrial unless: i. The mistrial was the result of prosecutorial misconduct designed and intended to provoke a mistrial. ii. The trial judge abused his discretion in declaring a mistrial. See State v Glover (1998), 35 Ohio St. 3d 18. iii. A retrial following a hung jury does not violate the double jeopardy clause. See Richardson v. United States (1984), 468 U.S. 317. b. The standard for abuse of discretion by the trial judge when the trial judge sua sponte declares a mistrial without the defendant’s consent so that a retrial is prohibited unless: i. There is a “manifest necessity” or a “high degree of necessity” for ordering a mistrial, or ii. The ends of public justice would otherwise be defeated. Arizona v Washington (1978), 434 U.S. 497. iii. The Ohio Supreme Court has stated that there is no standard test for determining abuse of discretion by a judge in declaring a mistrial. The test is generally seen as test balancing the defendants right to have the charges decided by a jury against the public’s interest in convicting the guilty. See State v Glover (1988), 35 Ohio St. 3d 18. 8. Juror Misconduct a. Trial Courts have been granted broad discretion in dealing with juror misconduct including improper outside juror communications as juror misconduct creates a presumption of prejudice. See State v Phillips (1995), 74 Ohio St. 3d 72. b. Juror conduct many times involves improper outside juror communication including: i. Juror utilizing outside sources for information. For example, looking up the definition of aider and abettor in Black’s Law Dictionary. See State v Hood (1999), 132 Ohio App. 3d, 334. ii. A court officer communicating to the jury on substantive issues. See State v Adams (1943) 141 Ohio State 423; State v Lane (1988), 48 Ohio App. 3d, 172. iii. A judge’s ex-parte communication with the jury without full knowledge of the parties the Judge discussing substantive matters. See State v Hill (1985), 73 Ohio St. 3d, 433. c. Generally, all jury misconduct is presumed to be prejudicial but the state has the opportunity and the burden to demonstrate that the misconduct by the juror was not prejudicial under the circumstances. d. A voir dire should be directed at the juror in question and then the entire jury panel to determine whether or not the juror in question received inappropriate outside information and whether or not the jury has been tainted. See State v King (1983), 10 Ohio App. 3d 161.

NOTES

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SMALL CLAIMS

SCOPE

This article discusses all special provisions for small claims actions.

REFERENCES

ORC Chapter 1925

CREATION OF A SMALL CLAIMS DIVISION

1. Each municipal court must establish a small claims division. 2. Small Claims proceedings may be conducted by a magistrate. 3. The court may appoint an administrative assistant who shall have the duties designated by the court. The Clerk of Court for the Cleveland Municipal Court serves as the administrative assistant. 4. The court may establish evening hours on one weekday or on Saturday. 5. The court may establish a voluntary conciliation procedure for small claims cases but shall establish such a procedure for recovery of taxes in the small claims division. These cases may be heard in during the weekend and Saturday hours. 6. In a municipal or county court with a population of over 250,000 persons, the court may establish neighborhood offices.

JURISDICTION

1. The small claims division has jurisdiction in civil actions for recovery of taxes and money only, for amounts not exceeding $6000.00. exclusive of interest and costs. 2. The filing of a counterclaim or crossclaim which does not exceed $6000.000 does not affect jurisdiction. 3. If a counterclaim or crossclaim exceeds $6000.00, the matter must be transferred to the court’s civil docket. If the court later finds that the counterclaim or crossclaim is without substantial grounds, the court may award reasonable attorney fees to the prevailing party. 4. A counterclaim or crossclaim must be filed and served on all other parties at least seven (7) days before the date of the plaintiff’s original complaint. 5. The small claims division does not have jurisdiction in any of the following matters: a. Libel, slander, replevin, malicious prosecution, and abuse of process actions b. Actions on a claim brought by an assignee or agent, except a claim to recover taxes c. Actions for punitive or exemplary damages d. The limitations on the jurisdiction of the small claims division does not exclude actions under the consumer sales practices act. orc §§1345.09 and 1345.48 6. The small claims division has the same territorial jurisdiction and venue as the municipal or county court. 7. Personal jurisdiction over the defendant may not be obtained by any form of published or substitute service or warrant of attorney. If the plaintiff must rely on these forms of service, the matter must be transferred to the court’s civil docket.

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REPRESENTATION BY AN ATTORNEY AT LAW

1. The appearance of an attorney at law on behalf of any party is permitted but not required. Notice to an attorney of record for a party constitutes notice to the party. 2. A corporation may forego representation by an attorney at law. A “bona fide officer or salaried employee” may file the complaint and present its claim or defense provided that the officer or employee does not engage in cross-examination, argument or “other acts of advocacy.” 3. If the action is for recovery of taxes, an authorized employee of the taxing authority may file the complaint. There does not appear to be any statutory prohibition against that employee engaging in cross-examination, argument or “other acts of advocacy.” 4. If the action is brought on behalf of a county department of job and family services, a representative of the county prosecutor may file the complaint. The county prosecutor may designate an employee of the department, who is not an attorney, but that employee may not engage in cross-examination, argument or “other acts of advocacy.”

COMMENCEMENT OF AN ACTION

1. The commencement of an action in the small claims division constitutes a waiver of the plaintiff’s right to a jury trial. 2. The action is commenced by the filing of the complaint which shall state the following: a. The amount of the claim b. The nature of the claim in a concise, nontechnical form c. The plaintiff’s and defendant’s place of residence d. The military status of the defendant 3. The complaint must be signed by the plaintiff or the plaintiff’s attorney UNDER OATH.

TIME FOR TRIAL

1. The trial shall be held not less than fifteen (15) days or more than forty (40) days after date of the filing of the complaint. 2. A memorandum of the time and place set for trial shall be given to the person signing the complaint.

SERVICE OF PROCESS

1. The small claims complaint shall be served as provided in the Rules of Civil Procedure, except service by publication, warrant of attorney or substituted service are not permitted. 2. A notice as prescribed in ORC §1925.05, which appears to be a summons form, must be served on the defendant. It provides as follows: a. Notice of the request for a judgment, the amount sought, and nature of the claim b. The date, time and place of trial c. Consequences if the defendant fails to appear, i.e. default judgment and garnishment of personal earnings and property d. Witnesses and documents must be produced at trial e. Parties must request the clerk to issue subpoenas for witnesses f. If the defendant admits the claim but wants time to pay, the defendant may make that request at trial g. A counterclaim must be filed and served on the other party as at least seven (7) days before trial

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3. If the notice described above is not delivered or if it appears in any way that the defendant did not receive the notice, another notice shall be issued at the request of the plaintiff. a. A new trial date will be stated in the notice b. The notice will be served in the same manner as a summons in a civil action c. The court may charge an additional fee for the re-issued notice.

APPLICABILITY OF RULES OF CIVIL PROCEDURE AND SOME EXCEPTIONS

1. The Civil Rules apply to the extent that they are not inconsistent with provisions of the Ohio Revised Code or rules of court adopted in furtherance of ORC Chapters 1901 and 1925. 2. No depositions or interrogatories may be taken without leave of court. 3. No attachment proceedings are permitted prior to judgment.

DISMISSAL FOR WANT OF PROSECUTION

If the plaintiff fails to appear, the court may dismiss the case for want of prosecution, grant judgment in favor of the defendant, or make any other proper disposition.

TRANSFERRING CASE TO CIVIL DOCKET

1. A case shall be transferred to the civil docket if a counterclaim or crossclaim more than $6000.00 is filed. 2. The court has the discretion to transfer a small claims case to the civil docket on the motion of a party against whom a claim, counterclaim or crossclaim has been filed or the motion of a third-party defendant. a. The motion must be supported by an affidavit stating that a good defense exists, the grounds of the defense, a that the party has complied with any terms fixed the court. b. Failure to file the motion to transfer constitutes a waiver of the right to a jury trial.

COSTS

1. Actual payment of filing fees, execution fees, and other court fees by the prevailing party may be allowed as costs. 2. No other costs shall be allowed except by order of the court. 3. Costs may be apportioned between the parties or waive, in whole or in part, as the court determines to be equitable. 4. If the court finds at any time that costs owed to the court are uncollectable, in whole or in part, the court may direct the clerk to cancel the amount which is uncollectable.

COLLECTING AND ENFORCING JUDGMENTS

1. The court has the discretion to permit the defendant to pay the judgment, interest and costs by a certain date or in weekly installments. a. The court may stay execution or proceedings in aid of execution during compliance with the order of payment. b. The stay may be modified or vacated at any time. c. If a defendant admits at the claim at trial, he may request the court to permit deferred payment or a weekly order of payment and obtain a stay. 2. If a party is not represented by counsel, UPON PAYMENT OF COSTS, the court shall “explain” and “assist” in preparation and filing of forms for proceedings in aid of execution and collection of judgments.

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3. If within thirty (30) days after the date of judgment, the judgment has not been satisfied, the creditor may request the court to issue an order to compel the debtor to complete and file a form listing his assets, liabilities, and personal earnings. a. The form is prepared by the court. b. The only statutory requirement for the form is that it gives notice to the debtor that failure to complete and file the form within one week of receipt is punishable as contempt

NOTES

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MEDIA IN THE COURTROOM

SCOPE

This article discusses the procedure to be followed if the media is permitted by law to publish information regarding Ohio court cases but does not purport to summarize the law in that regard. For a summary of constitutional law on this issue, see State ex rel. Toledo Blade Co. v. Henry Cty. Court of Common Pleas, 2010-Ohio- 1533, 125 Ohio St. 3d 149 (2010).

This article does not pertain to regulation of cellphones and other electronic devices in the courtroom. These devices appear to be governed by local rules of court without any limitations or precedent at this time.

REFERENCES

Ohio Rule of Superintendence-Rule 12 Conditions for broadcasting and photographing court proceedings

BROADCASTING OR RECORDING BY MEDIA PERMITTED

1. The judge assigned to the trial or hearing shall permit the broadcasting or recording by electronic means and the taking of photographs in court proceedings that are open to the public as provided by Ohio law. 2. After consultation with the media, the judge shall specify the place or places in the courtroom where the operators and equipment are to be positioned. Requests for permission for the broadcasting, televising, recording, or taking of photographs in the courtroom shall be in writing and the written order of the judge shall be made a part of the record of the proceedings.

PERMISSIBLE EQUIPMENT AND OPERATORS.

1. Use of more than one portable television, videotape, or movie camera with one operator shall be allowed only with the permission of the judge. 2. Not more than one still photographer shall be permitted to photograph trial proceedings without permission of the judge. Still photographers shall be limited to two cameras with two lenses for each camera. 3. For radio broadcast purposes, not more than one audio system shall be permitted in court. Where available and suitable, existing audio pickup systems in the court facility shall be used by the media. If existing audio pickup systems are not available, microphones and other electronic equipment necessary for the audio pickup shall be as inconspicuous as possible but shall be visible. 4. Visible audio recording equipment may be used by news media reporters with the prior permission of the judge. 5. Arrangements between or among media for “pooling” of equipment shall be the responsibility of the media representative authorized to cover the proceeding. “Pooling” arrangements are to be made outside the courtroom and without imposing on the judge or court personnel. If disputes arise over arrangements between or among media representatives, the judge may exclude all contesting representatives from the proceedings. 6. The judge shall prohibit the use of electronic or photographic equipment that produces distracting sound or light. No artificial lighting other than that normally used in the courtroom shall be employed, provided that, if the normal lighting in the courtroom can be improved without becoming obtrusive, the judge may permit modification.

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7. Still photographers and television and radio representatives shall be afforded a clear view but shall not be permitted to move about in the courtroom during court proceedings from the places where they have been positioned by the judge, except to leave or enter the courtroom.

LIMITATIONS.

1. There shall be no audio pickup or broadcast of conferences conducted in a court facility between attorneys and clients or co-counsel or of conferences conducted at the bench between counsel and the judge. 2. The judge shall inform victims and witnesses of their right to object to being filmed, videotaped, recorded, or photographed. 3. This rule shall not be construed to grant media representatives any greater rights than permitted by law. 4. Media representatives shall not be permitted to transmit or record anything other than the court proceedings from the courtroom while the court is in session.

REVOCATION OF PERMISSION

Upon the failure of any media representative to comply with the conditions prescribed by this rule or the judge, the judge may revoke the permission to broadcast or photograph the trial or hearing.

NOTES

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DORMANT JUDGMENTS AND REVIVOR

SCOPE

This article summarizes dormant judgments and how they are revived.

REFERENCES

ORC §2329.07 ORC §§2325.15 to 2325.20 Ohio Civil Rule 4(F)

DORMANT JUDGMENTS DEFINED

1. A judgment not in favor of the state: Such judgment is dormant and does not operate as a lien against the estate of the debtor unless one of the following occurs within five (5) years from the date of the judgment or a renewal of the judgment, whichever is later: a. An execution on the judgment is issued b. A certificate of judgment lien is issued and filed c. An order of garnishment is issued or is continuing, or until the last garnishment payment is received by the clerk or the garnishee’s final report is failed, whichever is later d. A proceeding in aid of execution is commenced or is continuing 2. A judgment in favor of the state: Such judgment is dormant and does not operate as a lien against the debtor’s estate unless one of the following occurs within ten (10 years from the date of judgment or a renewal of the judgment OR fifteen (15) years from the date of the issuance of the last execution, whichever is later: a. An execution on the judgment is issued b. A certificate of judgment lien is issued and filed c. An order of garnishment is issued or is continuing, or until the last garnishment payment is received by the clerk or the garnishee’s final report is failed, whichever is later d. A proceeding in aid of execution is commenced or is continuing

NOTE; THE 15 YEAR LIMITATION APPLIES TO EXECUTIONS ISSUED AND CERTIFICATES OF JUDGMENT ISSUED AND FILED BEFORE, ON, OR AFTER MARCH 29, 2007

3. A judgment that has become a lien in any county other than the one in which it was rendered: Such judgment shall cease to operate as a lien upon the debtor’s lands and tenements within said county, unless one of the following occurs within in five (5) years or, if the judgment is in favor of the state, within fifteen (15) year: a. An execution on the judgment is issued b. A certificate of judgment lien is issued and filed c. An order of garnishment is issued or is continuing, or until the last garnishment payment is received by the clerk or the garnishee’s final report is failed, whichever is later d. A proceeding in aid of execution is commenced or is continuing

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THE 15 YEAR LIMITATION APPLIES TO EXECUTIONS ISSUED AND CERTIFICATES OF JUDGMENT ISSUED AND FILED BEFORE, ON, OR AFTER MARCH 29, 2007

4. A judgment in favor of the state where BOTH of the following apply becomes dormant as described in Paragraph 5 below: a. The first issuance of execution on the judgment, or a garnishment or aid in execution proceeding was commenced or continuing, or the certificate of judgment was filed within the ten (10) year period before the beginning of the interim period (September 26, 2003 to September 27, 2006) b. Subsequent issuance of execution on the judgment, or an order of garnishment or an aid in execution proceeding was commenced or continuing, or subsequent issuance and filing of the certificate of judgment would have been required during the interim period (September 26, 2003 to September 27, 2006) in order to keep the lien from becoming dormant under ORC§2329.07(D)(2)(B) as this section existed on September 25, 2003, and as if this section as it existed on that date had been in effect during the interim period. 5. A judgment in favor of the state as described in Paragraph 4 above becomes dormant and shall cease to operate as a lien against the debtor’s estate unless one of the following occurs within fifteen (15) years after the expiration of the ten (10) year period following issuance of the last execution on the judgment or following the issuance and filing of the last such certificate, whichever is later: a. An execution on the judgment is issued b. A certificate of judgment is filed c. A garnishment proceeding has been commenced or is continuing or until the last garnishment payment is received by the clerk of courts or the final report and answer is filed by the garnishee, whichever is later d. A proceeding in aid of execution is commenced or is continuing

REVIVOR OF DORMANT JUDGMENTS

1. A judgment may be revived by the court which granted the judgment. 2. Unless sufficient cause is not shown to the contrary, a judgment shall be revived and thereafter operate as a lien. 3. Time for Filing: An action to revive a judgment must be brought within ten (10) years from the date it becomes dormant, unless the party entitled to bring that action, at the time the judgment became dormant, was within the age of minority, of unsound mind, or imprisoned, in which cases the action may be brought within ten (10) years after the disability is removed. 4. Calculation of Interest: Interest shall not accrue from the date the judgment became dormant to the date the judgment is revived. 5. Procedure for reviving the judgment: a. The creditor files a motion to revive the dormant judgment and a proposed conditional order of revivor with the court. b. The clerk shall issue a summons as in a civil proceeding with the motion and the signed conditional order of revivor attached. The summons shall notify the debtor that an answer must be filed within 28 days or the judgment will be revived. c. Service of the summons shall be the same as in any civil action except service by publication cannot be used if the adverse party is not a resident of the state and was not served personally when the judgment was originally rendered.

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d. The debtor must be given an opportunity to show cause why the judgment should not be revived by filing a response to the motion to revive but an oral hearing is not generally required. e. If the court grants the motion to revive, an order of revivor is issued. The conditional order of revivor is an interim order only.

NOTES

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REPLEVIN

SCOPE

This article discusses the statutory provisions regarding replevin. Replevin is a civil action for recovery of personal property before the entry of judgment. The common law remedy will not be addressed as the statutory provisions declare that such action may only be had as provided in ORC Chapter 2737.

REFERENCES

ORC Chapter 2737 ORC §1901.18 (A)(7)

COMMENCEMENT OF REPLEVIN ACTION

1. At the time of the filing of the complaint for recovery of specific personal property or any time thereafter, a party may file a written motion for an order of possession. 2. The motion shall be supported by an affidavit and contain a. A description of the personal property sought and the approximate value of each item b. The movant’s interest in the property with a copy of an instrument that grants the interest c. A statement describing the manner in which the respondent came into possession of the property and any reason known to the movant that the respondent may claim his detention is not wrongful d. Upon a reasonable investigation by the movant, a description of the use to which the respondent has put the property e. The extent to which the movant will be damaged by the detention of the property f. The location of the property g. An affirmative statement that the property was not taken for a tax, assessment, fine, or seized under execution against the movant, or if it was seized that the property is exempt from seizure.

NOTICE TO THE RESPONDENT AND REQUEST FOR HEARING

1. The movant must file a praecipe with the clerk instructing the clerk to issue the statutory notice of the filing of the motion. 2. The notice form is set forth in ORC §2737.05 and provides as follows: a. The defendant is required to file a written request for a hearing if he disputes the claim within five (5) BUSINESS days from receipt of the motion. b. If the request for hearing is made, the time, date and place of the hearing. c. The respondent can retain possession of the property and avoid the hearing if he posts a surety bond in an amount specified by the court. 3. The notice must be served on the respondent, in duplicate, no less than seven (7) BUSINESS days prior to the hearing and must include the motion, complaint and summons. 4. Service shall be in accordance with the Civil Rules of Procedure. Service may be by publication and the court has the authority to reduce the number of weeks to the extent appropriate.

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5. The respondent may have a hearing on the motion by delivering a request for hearing with five (5) BUSINESS days after receipt of notice from the court. 6. The respondent may but is not required to state the reasons for disputing the claim and failure to state a reason does not bar the respondent from presenting said defense at trial. 7. If the respondent does not file a written request for hearing, the court shall immediately cancel the hearing and issue the order of possession. 8. The court may extend the period for filing a request for hearing and the hearing date if the respondent establishes a reasonable justification for failure to timely file the request BEFORE THE ORIGINAL HEARING DATE. 9. The hearing cannot be continued for more than five (5) days from the date of the original hearing without the consent of the movant.

HEARING ON MOTION FOR ORDER OF POSSESION

1. The hearing must be set within twenty (20) days after the filing of the motion. 2. The hearing is limited to whether there is probable cause to support the motion. 3. The respondent’s failure to oppose the motion does not constitute a waiver of any rights or defenses at trial.

ORDER OF POSSESSION

1. The order of possession may be issued to a. The levying officer designated by the court b. The respondent who is directed to deliver possession of the property to the movant at a certain date, time and place or file a bond by said date and time. 2. If the order is issued to an officer of the court, it shall state a. The names of parties b. A description of the property to be seized c. The location of the property d. An order to the officer to take the property and deliver it to the movant e. A statement to the respondent that he may recover the property by filing a bond in the amount designated by the court 3. The order of possession shall be served on the respondent in the same manner as service of papers subsequent to original complaints. 4. The order of possession shall not take effect until the movant files a surety bond or deposits cash with the clerk in twice the amount of the approximate value of the property. The bond guarantees that the movant will return the property taken or pay the assessed value thereof, any damages and cost of the action suffered by the respondent if later it was found the taking and detention of the property was wrong. 5. Either party may object to the surety of the other by filing an exception thereto with ten (10) days after the filing of the bond. The court will then determine that the bond is sufficient. a. Failure to timely file an exception is a waiver of any other objections b. The levying officer may execute the order after the filing of the exception but may not take any other action until the court decides the issue. 6. If a party is indigent, the court may waive reduce the amount or waive the bond.

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7. A party may recover damages by filing a complaint against the surety in the same replevin action where the bond was filed.

EXECUTION OF THE ORDER OF POSSESSION

1. The levying officer shall “promptly” seize the property and deliver it to the movant if the respondent has not filed a bond. 2. At the time of the seizure, the officer must give a copy of the order of possession to the respondent or if he is unable to find the respondent, he shall leave a copy at the address from which the property was taken. 3. If the officer cannot immediately deliver the property to the movant, he must keep the property in a secure place. 4. If it would be “unreasonably expensive” to remove the property, the officer may take possession by conspicuously place a notice of possession on the property. 5. If the property is perishable or the value may be diminished, the court may order a sale of the property and the proceeds will be held by the court until final judgment. 6. The officer’s costs of taking possession, storing or selling the property shall be taxed as costs. 7. The officer may use any lawful means to enter the premises, other than an OCCUPIED dwelling unit, if he is unable to gain voluntary admittance. If he does not have permission to enter the premises then he must file an affidavit with the court describing the circumstances on the next BUSINESS day.

FINAL JUDGMENT

1. If the movant who obtains property pursuant to an order of possession fails to prosecute to a final judgment, the respondent may obtain a return of the property and damages including costs. 2. Where the movant who obtained the pretrial possession of property succeeds at trial, the final judgment shall award permanent possession and any damages plus costs. 3. If the movant is unable to obtain possession of the property, the action may proceed as a claim for conversion.

ISSUING AN ORDER OF POSSESION WITH OUR PRIOR NOTICE OR HEARING

1. The court may issue an order of possession without prior notice to the respondent or hearing if the court finds as follows: a. There is probable cause to support the motion b. The movant will suffer irreparable injury if the order is delayed until notice and hearing occur. To find there is irreparable harm, the court must find as either of these circumstances: i. There is a present danger that the property will be immediately disposed of, concealed, or placed beyond the court’s jurisdiction OR ii. The value of the property will be impaired substantially if the order is delayed. c. The court’s findings shall be based on the motion and affidavit and any other relevant evidence the court wishes to consider. 2. If the court issues the order without notice or hearing, the movant shall file the order and a praecipe instructing the clerk to serve the respondent with copies of the motion, affidavit and order with the statutory notice and request for hearing form set forth in ORC §2737.19. 109 | P a g e

3. The movant must post bond as previously described above for the order of possession to be enforceable. 4. The statutory notice informs the respondent of the issuance of the order, the right to a hearing upon request or the right to post a surety bond. The request must be made or the bond filed within five (5) BUSINESS DAYS of receipt of the notice. 5. If the respondent requests a hearing, it must be scheduled within three (3) business days after the request is made with notice of the date, time and place served on all parties. 6. If after the hearing, the court finds there is not probable cause to support the motion, the court shall order the property returned to the respondent without the requirement of a bond.

INJUNCTIVE RELIEF

The court may grant a temporary restraining order, preliminary injunction, or permanent injunction in addition to or in lieu of any relief available under ORC Chapter 2737.

NOTES

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ORDER FOR EXAMINATION OF JUDGMENT DEBTOR (“DEBTOR’S EXAM”)

SCOPE

This article summarizes the procedure for 1. Issuing an order for examination of the judgment debtor in a civil action, commonly known as a debtor’s exam or an order for examination in aid of execution of judgment. 2. Issuing an order to disclose assets, liabilities and personal earnings in a small claims action.

REFERENCES

ORC§§ 2333.09 to 2333.25 ORC§1925.13

ORDER FOR EXAMINATION OF A JUDGMEENT DEBTOR IN A CIVIL ACTION COMMENCEMENT OF THE PROCEEDINGS FOR AN EXAM

1. The creditor commences the proceedings for an examination of the debtor by filing an affidavit stating that the judgment remains unpaid in whole or in part and/or the debtor had property which he unjustly refuses to apply toward the satisfaction of the judgment. 2. The court issues an order requiring the debtor to appear on the designated date and time and submit to the examination. 3. The clerk serves the order as a summons.

THE EXAMINATION

1. The debtor and other witnesses may be examined. 2. If it appears that the debtor may leave the state or if the debtor has property he unjustly refuses to apply to the judgment, the court may order to the debtor to post a surety or other bond set the court which guarantees future appearances. If the debtor fails to post the bond, he may be committed to jail on a warrant for contempt. 3. No person being examined may refuse to answer questions claiming that the answers will tend to convict him of fraud. The answers in the examination may not be used as evidence against him in a prosecution for fraud. 4. A subpoena as well as an order of the court may be used to compel the attendance of parties and witnesses. 5. The examination must be under oath. When a corporation is being examined, the answers must be on the oath of a corporate officer. 6. If any party or witness disobeys the order, he may be punished for contempt. 7. The court may tax fees of the clerk, witnesses and bailiff as costs in the case and enforce collection against the party ordered to pay costs.

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POWERS OF COURT TO APPLY PROPERTY TO THE JUDGMENT

1. If property is found which can be used to satisfy the judgment, the court may order the property applied if it is not exempt and if it is not personal earnings. Personal earnings must be applied only in accordance with the statutory garnishment procedures. 2. The court may order a person owing money to the debtor to pay the amount due to the clerk or bailiff up to the amount of the judgment and the payment shall be sufficient to discharge the amount paid. 3. The court may appoint a receiver of the debtor’s property, which is not exempt, and may forbid the transfer, interference with or disposition of the subject property.

ORDER TO DISCLOSE IN A SMALL CLAIMS ACTION

1. The creditor may file a request with the court for the debtor to disclose his assets, liabilities and personal earnings within thirty (30) days after judgement, if a. The judgment is not satisfied, b. The parties have not otherwise reached an agreement for payment, or c. The Court has not ordered a payment scheduled and stayed execution. 2. The court shall order the debtor to file a list of his assets, liabilities, and personal earnings on a form prepared by the court. 3. The court’s form shall notify the debtor that failure to complete the form and return it to the court within one week after receipt may result in a citation for contempt of court. 4. Any party who, with notice of the possible contempt citation, willfully fails to comply with the order of the court may be cited for contempt. 5. The procedure is available in addition to the order for examination of the judgment debtor.

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WRIT OF EXECUTION/LEVY OF PERSONAL PROPERTY/ATTACHMENT

SCOPE

This article discusses the Writ if Execution commonly know as a levy on goods and chattel.

REFERENCES

ORC §§2329.09 to 2329.151

ORC §2329.09 WRIT OF EXECUTION AGAINST PERSONAL PROPERTY

1. The Writ of Execution against property of the debtor shall command the designated officer to levy on the goods and chattel of the debtor. 2. A Writ against a partnership shall operate only on the partnership property. 3. The exact amount of the judgment including costs shall be endorsed on the Writ.

ORC §2329.091 ISSUANCE AND EXECUTION OF THE WRIT OF EXECUTION AND NOTICE TO DEBTOR

1. The creditor commences the levy process by filing a praecipe for a Writ of Execution with the clerk of court. 2. The clerk shall issue the Writ of Execution to the levying officer and serve the statutory hearing request form on the debtor. The statutory form is set forth in ORC §2329.091 and generally informs the debtor as follows: a. The Writ has issued b. Notice that certain property is exempt from execution pursuant to ORC §2329.66-Exempted Interests and Rights, which must be attached to the notice. c. Debtor may request a hearing on exemptions within five (5) BUSINESS days after the debtor receives notice. d. The hearing if requested will be held no later than twelve (12) days after the court receives the request, unless the debtor requests an emergency hearing. In an emergency, the court will conduct the hearing as soon as practicable. e. The debtor may but is not required to state his reason that property is exempt f. If the debtor does not make a timely request a hearing, he gives up his right to a hearing and to the exemptions. g. The hearing request form is attached to the notice h. The court will only determine which property is exempt and will not hear objections to the judgment at the hearing. 3. Upon receiving the hearing request, the clerk shall issue a notice to the parties of the date, time and place of the hearing by regular mail. 4. SIMULTANEOUSLY with the execution of the Writ of Execution, the levying officer shall serve the statutory notice and hearing request form on the debtor. 5. The levying officer is the court bailiff, deputy bailiff, ex officio deputy bailiff, sheriff. If they are unable to perform the duties of levying officer, the court may appoint a disinterested person who shall post a bond in the amount set by the court. 6. If the nature of the property precludes the officer from taking immediate possession, the court may appoint a custodian until the officer can take physical possession. The custodian who converts, fails to preserve, or places the property beyond the reach of the officer may be punished for contempt of court. 7. If the officer needs to ascertain the value of property this exempt, he shall appoint two (2) disinterested householders of the county who shall be sworn to impartially make the appraisement.

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ORC §2329.10 PREFERENCE BETWEEN WRITS OF EXECUTION

1. When two or more writs of execution are delivered to the levying officer on the same day, no preference shall be given to either. If sufficient money is not made to satisfy both, the amount made shall be distributed to the creditors in proportion to the amounts of their judgments. 2. In all other cases, the levying officer shall execute the writs in order they are received and shall indorse the time he received on every writ.

ORC § WHERE NO GOODS OR CHATTEL ARE FOUND

Where the levying officer finds no goods or chattel, he shall endorse “no goods” on the writ and may then levy on the debtor’s lands and tenements.

ORC §2329.12 DEBTOR’S BOND

1. The levying officer may leave the goods and chattel in the possession of the debtor if a. The property is unsold for want of bidders b. There is no time to advertise and sell the property or c. There is other reasonable cause 2. The debtor may post a bond in an amount determined by the levying officer which guarantees that the debtor will deliver the property to the levying officer for sale at the date, time and place set for sale. 3. If the debtor fails to produce the property, pay the full value of the goods and chattels, or the amount of the judgment, then the levying officer may proceed against the bond.

ORC §2329.13 SALE OF GOODS AND CHATTEL

1. Requirements for sale of goods and chattels levied upon. a. The creditor or his attorney i. Causes a written notice of the date, time and place of sale to be served on the debtor and any other party to the original action in accordance with Ohio Civil Rule (A) and (B). If a party is in default for failure to appear, notice to that party is not required. ii. Files and copy of the written notice and certificate of service with the clerk of court at least three (3) days before the date of sale b. The levying officer publishes notice of the date, time and location of the sale in a newspaper designated by the court or a newspaper in general circulation in the county at least ten (10) days before the sale date. c. If the goods are merchandise or inventory from a business and if the sale is to satisfy a judgment in favor of the state or political subdivision for delinquent taxes, public notice shall be given in a newspaper in general circulation in the county once a week for three (3) weeks. Also, the notice of sale shall be posted on the business premises and the premises where the goods are located. 2. If requirements outlined above are not met, the sale may be set aside by the court upon motion. However, the proof of service endorsed on the notice to the debtor shall be conclusive evidence of compliance of the requirements for sale unless a party files a motion to set aside the sale before confirmation of the sale and proves by a preponderance of the evidence that the proof of service is fraudulent. 3. When the court enters an order confirming the sale, the order constitutes a judicial finding as follows: a. The sale complied with the written notice requirements or that the failure to comply did not prejudice any party b. All parties received adequate notice of the date, time, and place of the sale 4. The confirmation order bars the filing of any motions to set aside the sale

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ORC § 2329.14 UNSOLD GOODS AND CHATTEL

1. Where goods are not sold for want of bidders or time, the levying officer shall make an inventory of the remaining goods not sold and attach it to the return of the writ. 2. Thereafter, the creditor may have another execution, but all the notice requirements set forth above must be repeated.

ORC §2923.15 PUBLIC AND PRIVATE SALES

1. All sales shall be by public auction unless the court orders a private sale for cash on the motion of a party and notice to the adverse party of the time during which the private sale may continue. 2. Whether by public auction or private sale, the property must be appraised by three (3) disinterested persons and may not be sold for less than two thirds (2/3) if the appraised value. 3. If the sale is to satisfy tax delinquencies, the purchaser must also pay the costs set by the court if the purchase price is less than the amount of the judgment and costs.

ORC §2329.151 PERSONS WHO MAY CONDUCT THE PUBLIC AUCTION

1. An officer of the court 2. A resident of the state licensed as an auctioneer

NOTES

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JUDGMENT LIENS ON REAL PROPERTY

SCOPE

This article discusses the issuance of a certificate of judgment, the perfecting of a lien and real property and the filing of foreign judgments to obtain a lien and pursue collection in Ohio courts.

REFERENCES ORC Chapter 2923 PERFECTING AND EFFECT OF THE LIEN 1. Any judgment entered by any court of general jurisdiction, including municipal courts, in Ohio is a lien on the debtor’s real property in any Ohio county from the time it is filed in the Common Pleas Clerk’s Office of such county. 2. A certificate of judgment must set forth a. The court in which the judgment was rendered b. The title and number of the action c. The names of the judgment creditors and judgment debtors d. The amount of the judgment and costs, the rate of interest, if the judgment provides for interest, and the date from which such interest accrues e. The date of rendition of the judgment f. The volume and page of the journal entry 3. No judgment shall be a lien until a certificate or a certified copy of the judgment is filed with the county recorder of the county in which the land is located, and it is entered on the register of the last certificate of title to the land. 4. Certificates or certified copies of judgments may be filed in any county recorder’s office in which real property of the debtor is located to create a lien 5. At the request of the creditor, the clerk of the issuing court shall prepare the certificate of judgment and the fee shall be taxed as costs. 6. When the certificate of judgment is filed with the Common Pleas Court, the clerk shall docket it and index it under the names of the creditors and the judgment debtors. The fee for such filing, docketing, and indexing shall be taxed as increased costs shall be included in the lien. 7. If a certificate of judgment is filed in any court other than the issuing court, the clerk thereof shall docket it and endorse upon the certificate the fact of such filing and return it to the clerk of the issuing court. who shall note upon the original docket the fact of the filing of the certificate, showing the county, in which it was filed, and the date of such filing. 8. Any judgment issued in a court of record may be transferred to any other court of record for collection proceedings. FOREIGN JUDGMENTS 1. A "foreign judgment" means any judgment, decree, or order of a court of the United States, or of any court of another state, that is entitled to full faith and credit in this state. 2. A foreign judgment may be filed with any Common Pleas clerk and is will have the same effect and be subjected to the same procedures as a judgment of the Common Pleas Court. This means it can then be transferred to any municipal court for execution of judgment. 3. At the time of the filing of a foreign judgment, the creditor or his attorney shall filed an affidavit setting forth the name and last known address of the debtor and of the creditor. 4. The creditor or his attorney shall file a praecipe instructing the clerk to issue a notice of the filing of the foreign judgment to the t debtor at the address given in the affidavit. a. The clerk shall enter a note of the mailing in the docket. b. The notice shall include the name and address of the creditor and the creditor's attorney, if any, in this state.

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5. In addition, the creditor may mail a notice of the filing of the foreign judgment to the debtor and may file proof of mailing with the clerk. 6. The failure of the clerk to mail to the debtor notice of the filing of the foreign judgment does not affect the enforcement proceedings with respect to the foreign judgment, if the creditor has filed proof that he mailed a notice of the filing to the debtor. 7. No execution or other process for enforcement of a foreign judgment shall issue until thirty (30) days it was filed. 8. The debtor may seek a stay of enforcement of the foreign judgment on showing that a. An appeal is pending or will be taken from a foreign judgment. b. That a stay of execution of the foreign judgment has been granted and proof is given that the debtor has furnished the security for the satisfaction of the foreign judgment that is required by the jurisdiction in which the foreign judgment was rendered. c. Any ground upon which enforcement of a judgment of a court of common pleas would be stayed. (In this case, the court must require security for satisfaction of the judgment.) 9. The court shall stay enforcement of the foreign judgment until the appeal is concluded, the time for appeal expires, or the stay of execution expires or is vacated.

NOTES

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APPOINTMENT OF TRUSTEE TO AVOID GARNISHMENT OF PERSONAL EARNINGS

SCOPE

This article discusses the appointment of a trustee where the debtor has received a Notice of Court Proceedings to Collect a Debt, commencing garnishment proceedings.

REFERENCES

ORC §§2329.70 and 2329.71 ORC§ 2716.02

APPLICATION FOR APPOINTMENT OF TRUSTEE

1. If a debtor has received a Notice of Court Proceedings to Collect a Debt, the debtor may apply for appointment of a trustee to the municipal court where a. The debtor resides or b. The debtor employed if he is an out of state resident 2. The trustee receives a. The portion of the debtor’s personal earnings which is not exempt from execution of judgment and is equal to the amount that would be garnished and b. Any additional sums that the debtor voluntarily pays 3. In the application, the debtor shall provide a full, accurate and complete statement of all creditors, their addresses and the amounts owed to each. 4. If the debtor fails to list a creditor for any reason, the creditor or the debtor may apply to include the creditor in the trustee ship. Any creditor so added shall share in any distribution made by the trustee at the next distribution.

OPERATION OF THE TRUSTEESHIP

1. Upon the filing of the application, the court shall appoint a trustee to distribute the funds to the creditor. 2. The court shall provide by rule or otherwise for a. Notice to creditors b. Authentication and proof of claims c. The time and manner of payment by the debtor d. The time and manner of distribution of funds e. The bond of the trustee if required f. All other matters necessary to effectuate the trusteeship 3. The court shall appoint the clerk of court as trustee who shall serve without additional compensation. 4. The clerk’s official bond shall be conditioned upon fulfillment of the trust and no additional bond shall be required. 5. As along as the trustee is receiving the amount of the debtor’s earnings not exempt from execution at regular intervals fixed by the court, no creditor may not bring any proceedings in garnishment, attachment, aid of execution, or otherwise. 6. A trusteeship does not prevent a creditor from executing on any other property. 7. The debtor’s personal earnings that are not exempt from execution are not liable to the creditor for costs of any proceeding to recover the debt if the creditor is listed in the trusteeship and the debtor makes payments as directed.

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TERMINATION OF THE TRUSTEESHIP

1. The trusteeship shall terminate if the debtor fails to make the required payments 2. Upon termination of the trusteeship, the protections against garnishment or other execution terminate also. 3. If a trusteeship is terminated for nonpayment, the debtor is prohibited from reinstating or applying for a new trusteeship for six (6) months, UNLESS the debtor satisfies the court by motion and affidavit that the nonpayment was not due to willful neglect.

SECURED CREDITORS’ PARTICIPATION IN TRUSTEESHIP

1. A creditor with a chattel mortgage or other lien or encumbrance on property may participate in the trusteeship. 2. When the secured creditor receives notice of the trusteeship, the creditor may but is not required to participate. 3. If the creditor elects to participate in the trusteeship, he may not assert the lien if the debtor complies with the terms of trusteeship. 4. The creditor shall file with the court his election to participate with any agreement with the creditor or his objection to being included. 5. Failure of the creditor to respond to the court’s notice within ten (10) days is deemed an election to participate and the creditor is estopped from asserting the lien if the debtor complies with the terms of the trusteeship.

NOTES

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VEXATIOUS LITIGATORS

SCOPE

This article discusses the circumstances under which a municipal court may dismiss filings of a vexatious litigator or proceed when he has leave to proceed. Issues relating to actions in other courts are not discussed.

REFERENCES

ORC §2323.52

DEFINITIONS

1. “Vexatious Conduct” means any conduct of a party in a civil action that satisfy any of the following: a. Conduct serves to harass or maliciously injure another party in the case b. Conduct not warranted under existing law and cannot be supported by a good faith argument to extend, modify or reverse existing law c. Conduct is solely for delay 2. “Vexatious Litigator” means any person who has a. Habitually, persistently, and without reasonable grounds b. Engaged in vexatious conduct in one or more civil actions c. Whether the person or another person instituted the civil action or actions and d. Whether the vexatious conduct was against the same or different parties e. An attorney admitted to practice before the Ohio Supreme Court cannot be a vexatious litigator unless he is representing himself in the civil action or actions. 3. A civil action includes public records requests.

COMMENCEMENT OF PROCEEDINGS

Any person, prosecuting attorney or the chief legal officer of a municipality who has defended against vexatious conduct in any court may commence a civil action in the common pleas court with jurisdiction over the alleged vexatious litigator to have he person declared a vexatious litigator.

ORDER AGAINST VEXATIOUS LITIGATOR

1. The common pleas court may declare a person a vexatious litigator and enter an order prohibiting him from doing any of the following without permission of the court to proceed; a. Commence legal proceedings in a municipal court b. Continue any legal proceedings prior to being declared a vexatious litigator c. Make any application in any case instituted by the vexatious litigator or another person 2. The order shall remain in force indefinitely unless the order provides for an expiration date or period. 3. The court shall not grant leave to the vexatious litigator to institute or continue legal proceedings unless it is satisfied that a. Proceedings are not an abuse of process AND b. There are reasonable grounds for the proceedings. 4. The time between the issuance of the order declaring the person is a vexatious litigator to the date the court grants the vexatious litigator to proceed with any action shall not be counted in determining the applicable period of limitations for bring he action.

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PUBLICATION OF ORDER

1. The court shall send its order to the Supreme Court for publication so that lower courts will know when to refuse to accept filings by vexatious litigators. 2. For this purpose, the Supreme Court publishes the list of names and order at https://www.supremecourtofohio.gov/Clerk/vexatious/order.asp

DISMISSAL OF FILINGS

If the vexatious litigator persists without receiving leave of the common pleas court which issued the vexatious litigator finding, the municipal court SHALL dismiss the proceedings.

NOTES

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