The Criminal Process

Our firm is committed to making your forthcoming experience with the Ohio Criminal Justice system as comfortable as we can. Toward those ends we want to give you our basic understanding of how the system works and ask that you refer to it as your matter progresses. As always, we will always send you copies of everything we file on your behalf and attempt to return your phone calls promptly. 

The criminal law is the oldest of the major branches of the law. It defines the kinds of prohibited conduct, called crimes or offenses, for which society reserves its strictest sanction. It also defines the ways in which those sanctions must be enforced, as well as the fundamental rights of accused persons.

 

What Constitutes An Offense

In Ohio, all crimes must be defined by statute or ordinance. To define a crime, a statute or ordinance must spell out the prohibited act or omission and provide a penalty.

 

The Requirement of a Guilty Act Plus a Guilty Mind

 

In most jurisdictions, including Ohio, two things are required for a criminal offense. First, there must be an act or conduct prohibited by law, or a failure to do some duty required by law. This is called the "actus reus," or guilty act. Second, at the time of the act, conduct, or omission, the actor must have a certain guilty state of mind, called the "mens rea." For example, a person might cause another's death. Causing the death of another person is the guilty act involved in the crime of murder. However, accidentally causing the death of another person is not murder. The actor did not have the required guilty state of mind. Purposely causing the death of a person is murder because the guilty act (causing the death) and the guilty state of mind (the purpose or intent) coincide. As another example, a person might actually plan to steal, and therefore have a guilty mind. However, such a person has not committed a crime until he or she actually takes something while having a guilty mind.

Ohio law defines four types or degrees of guilty mind or culpable mental states. These are purpose, knowledge, recklessness, and negligence. With a few exceptions, at least one of these culpable mental states must be present when a person does a prohibited act or omission. The prohibited act or omission is not a crime if one or more of the culpable mental states are not present. The exceptions occur in the definitions of certain crimes, which impose strict liability. These crimes are mostly regulatory offenses dealing with public health and safety. For example, selling impure food is a violation of the pure food and drug laws, even if the seller did not know the food was tainted.

 

How Offenses Must Be Defined in the Law

 

There are no common law crimes in Ohio; all crimes are statutory. This means that the appropriate legislative body (the Ohio General Assembly, the city council, etc.) must take specific action. The legislative authority must enact a law (statute or ordinance) which: (1) clearly states the act or conduct prohibited, or the duty imposed; and (2) provides a penalty for doing the prohibited act or failing to meet the required duty. Many statutes and ordinances spell out prohibited acts and required duties, but they are criminal laws only if a penalty is provided for their violation. Laws without penalties cannot be enforced through the criminal process, but must be enforced through civil lawsuits.

Burden And Degree Of Proof

In prosecuting an offense, the state must prove the accused guilty beyond a reasonable doubt. In general, the defense needs only to cast a reasonable doubt on the state's case to win acquittal. The Defendant is not required to prove anything, as he is presumed innocent.

 

The State's Burden

 

The prosecution has the burden of proving that the accused in a criminal case is guilty beyond a reasonable doubt. This does not mean that the prosecution must remove all doubt, since everything relating to human affairs is open to some possible or imaginary doubt. Reasonable doubt is a doubt based upon reason and common sense. Proof beyond a reasonable doubt is proof which is solid enough that an ordinary person would be willing to rely and readily act on it in the most important of his or her own affairs.

 

The Defense's Burden

 

In essence, all the defense needs to do to win acquittal is to cast a reasonable doubt on the state's case. In certain situations, the accused could do this without producing a single witness on his behalf. For example, the state's case could be fatally weak as presented, or the accused could show the state's case is doubtful merely by cross-examining the prosecution's own witnesses.

If the evidence for the prosecution is not successfully undermined through cross-examination, then the accused may produce evidence to refute, defend or explain the state's evidence.

 

In this situation, the accused has the burden of going forward with the evidence. Even so, the accused's basic task remains the same: to argue that there is a reasonable doubt about the State’s case.

If the accused presents an affirmative defense, the accused has both the burden of going forward with the evidence, and the burden of persuasion. The degree of proof which the accused is required to produce is that of a preponderance of the evidence, that is, more likely than not. Thus, when an accused presents an affirmative defense, the accused must not only present evidence to establish the affirmative defense, but also must bear the risk of failing to persuade the jury that the defense is more likely true than not. (Common examples of affirmative defenses are the defense of self-defense, necessity, or duress.)

 

Kinds Of Crimes

There are two major classifications of crimes: felonies and misdemeanors. In Ohio, felonies are classified according to comparative seriousness. Misdemeanors are similarly classified. In addition, there are a number of unclassified felonies and misdemeanors. Crimes can also be broadly characterized according to the kind of conduct they involve.

 

Felonies and Misdemeanors

 

The most serious crimes are felonies. Felonies carry a potential penalty of imprisonment for more than six months in a state prison. A capital offense is a felony for which death is a potential penalty. Imprisonment, community sanctions, and fines may punish felonies. Misdemeanors are less serious offenses for which the maximum potential penalty is imprisonment for not more than one year, a fine, or both. Community sanctions are also available. Imprisonment for misdemeanor is usually in a local jail or workhouse. Under certain circumstances, imprisonment for a felony may even be served in a local facility.

 

Since July 1996, there have been five degrees of classified felonies under the Ohio Criminal Code (Title 29 of the Ohio Revised Code). There also are penalties for unclassified offenses of aggravated murder and murder. The most serious felony is aggravated murder. The next most serious is murder. These are followed in order by felonies of the first, second, third, fourth and fifth degrees. There are also four degrees of misdemeanors as well as minor misdemeanors. Minor misdemeanors are the least serious offenses under the Criminal Code, punishable only by a fine of $100 or less, but not incarceration.

 

Besides the classified degrees of offenses in the Ohio Criminal Code, there are several crimes, which are not classified by degrees, but are still categorized as felonies or misdemeanors by the maximum penalty involved.

 

Crimes in the Ohio Criminal Code

 

Laws, which create criminal offenses, are found, for example, in the Ohio Revised Code, municipal ordinances, and the United States Code. Title 29 of the Ohio Revised Code (the Criminal Code) lists most of the serious offenses proscribed by state law. Taken as a whole, these offenses constitute a comprehensive code of conduct. The subjects covered by these chapters are: homicide, assault, menacing threats; kidnapping, abduction, false imprisonment, extortion, coercion; patient abuse and neglect; rape and other sexual assaults, prostitution, obscenity, and disseminating matter harmful to juveniles; arson and other property damage offenses; robbery, burglary, breaking and entering, safecracking, and trespass; theft, bad check and credit card offenses, forgery, fraud and other theft offenses; gambling; inciting to violence; riot, disorderly conduct, and false alarms; certain aspects of abortion, nonsupport, endangering children, domestic violence; bribery, perjury, resisting arrest, harboring criminals, escape, graft, conflict of interest, dereliction of public duty, violation of civil rights and similar offenses; conspiracy, attempt, and complicity; weapons and explosives control; corrupt activity (racketeering); drug control; and miscellaneous offenses.

 

Crimes Outside the Criminal Code

 

Besides the criminal code, the Ohio Revised Code contains other offenses. Some of these are in major groups-such as traffic and liquor control. Others are scattered throughout the Code. Many are regulatory offenses. Regulatory offenses include, for example, offenses: involving motor vehicle licensing and registration, agricultural products and raw materials, weights and measures, hunting and fishing, boating, brokers and securities, public health, and elections.

 

In addition to offenses defined in state law, there are many offenses defined in municipal ordinances. Many of these are unique to the municipality involved. Many are similar to the offenses defined by state statutes. Violations of municipal ordinances are misdemeanors, never felonies. Finally, federal law defines many offenses. This section focuses on crimes under Ohio state law.

 

Penalties And Sentencing

One of the most important features of the Ohio Criminal Code is its plan for penalties and sentencing and its treatment of offenders. Penalties are scaled according to the comparative seriousness of offenses. Moreover, within each degree of crime, a range of penalties is provided in order to permit judges to tailor penalties to individual offenders rather than to their offenses alone. The sentencing law provides strict penalties for certain repeat offenders, for those who use, or threaten the use of, violence, and for those who use, or carry within their reach, firearms during the commission of the crime.

Penalties

Penalties are scaled according to the comparative seriousness of offenses. The judge may choose from a range of penalties after weighing the criminal history of offenders and other relevant information. Two penalty tables follow this section. They provide an outline of the potential incarceration and fines established by the Criminal Code. The tables provide only an outline. The Ohio Criminal Code's current penalty and sentencing structure is complex, albeit simpler than the law before July 1996. Further, the Criminal Code includes penalty and sentencing provisions which are not reflected in the tables. For example, the penalties for drug possession and drug trafficking are very complex, and receive only a cursory mention here.

Under Senate Bill 2, a rewrite of the felony sentencing law which became effective July 1996, most offenders now receive determinate (fixed) sentences. The former system of indeterminate sentences (e.g., "5 to 25") only applies to felonies committed before July 1996 and Life Terms. Today, with narrow exceptions, the time imposed on a felon in open court (e.g., "four years") is the time actually served in prison. The Parole Board does not have the power to release persons sentenced to non-life sentences for crimes committed after July 1996. Time off for good behavior (“good time”), shock parole, and limits on consecutive sentences has been eliminated. The term imposed may be altered by the judge through judicial release (formerly "shock probation"), after an offender serves a specified time in prison, and by the judge allowing the offender's placement in a "boot camp" or furlough program. Of course, an inmate still must be credited for any jail time served while awaiting trial and sentencing.

The only ways the sentence length can change without direct input from the judge are when an offender receives "earned credit" or "bad time" in prison. Earned credit gives an inmate a maximum reduction of one day for each month or participation in meaningful school, work, training, or treatment programs. But, criminal type violations of prison release can add from 15 to 90 days per violation ("bad time"). The maximum bad time for repeated violations is 50% of the prison term initially stated by the judge.

Mandatory Terms

While the judge generally can choose an appropriate definite sentence from the range available for misdemeanors or felonies, some crimes carry mandatory jail or prison terms. In some cases (e.g., drunken driving or felonies with firearms), a specific minimum term is provided by law. More typically, incarceration is mandated, but the judge may choose the amount of time to be served.

A prison term must be imposed in these cases: (1) aggravated murder (when a death sentence is not imposed); (2) murder; (3) rape or attempted rape when the victim is under 13; (4) any first- or second-degree felony when the offender has a prior second-degree or higher felony; (5) a first-, second-, or third-degree drug offense when specified as mandatory by statute; (6) corrupt activity (racketeering) when the most serious underlying offense is a first-degree felony; (7) felony vehicular homicides and assaults or drunken driving when specified by statute; and (8) when the offender is convicted of having a firearm in the commission of a felony. Local jail time is mandated for misdemeanor drunken driving.

Persons defined as "repeat violent offenders" (RVO’s) and "major drug offenders" (MDO’s) face long mandatory terms. If the judge imposes the maximum from the basic sentence range, the judge may impose one to 10 additional years in prison. So a judge could give a repeat armed robber 20 years. Under the new Code, this could not be reduced by good time, parole, etc. Thus, the term might sound shorter than the indefinite sentence under the old Code (e.g., "10 to 25"), but the actual guaranteed prison term is longer.

Where an offender is convicted of any felony (except carrying a concealed weapon and some weapons under disability offenses) and it is proven that offender had a firearm on or about his person or available to him when he committed the felony, the judge must sentence the offender to an additional three-year prison term if the offender used, brandished, displayed or otherwise indicated the gun. If the gun was not shown, an additional one-year term is mandated. Where the firearm is an automatic firearm or is equipped with a silencer, the mandatory sentence is six years. Mandatory terms for firearms must be served before and separate from any other incarceration for the underlying offense. They cannot be served concurrently, that is, at the same time as the incarceration for the underlying offense. They cannot be suspended or reduced other than by credit for jail time.

Theft Offenses

Theft offenses deserve some mention since they are common offenses and S.B. 2 made key changes regarding them, effective July 1996.

The Criminal Code defines a theft offense as the violation of any one of approximately 25 listed sections of the Criminal Code or the violation of any law similar to the offenses defined in the listed sections. Theft offenses range from aggravated robbery, a first-degree felony, to unauthorized use of property, a misdemeanor of the fourth degree.

The list also includes basic offenses such as petty theft, theft, grand theft, receiving stolen property, misuse of credit cards, and various frauds. Between 1983 and 1996 the line between misdemeanor and felony thefts was $300. If you stole less than $300, you were a first degree misdemeanant, punishable by a possible jail term of up to six months. A second petty theft could have been charged as a felony, punishable by up to about 12 months in prison after good time. Because of the high cost of incarcerating petty offenders in prison, and the dubious rehabilitative value of a prison term, S.B. 2 increased the felony threshold to $500. And, if one steals less than $500, one remains a first-degree misdemeanant, even if the offender has a history of one or more prior theft convictions.

Felony Penalty Table

The following table should help you better understand Ohio’s sentencing structure. For a discussion of the "Guidance" portion of the table, see Sentencing Guidance, below.

Felony Level	Sentencing Guidance 2929.13(B)-(E)	Prison Terms 2929.14(A)	Maximum Fine 2929.18(A)(2)&(3)	Repeat Violation Offender Enhancement 2929.14(D)(1)	Is Post-Release Control Required? 2967.28(B)&(C)	Period of Post- Release Control 2967.28(B)&(D)(2)
1st Degree	Presumption for Prison (Also Applies to "In Favor" Drug Offenses)	3,4,5,6,7,8, 9 or 10 Years	$20,000	1,2,3,4,5,6,7,8,9 or 10 Years	Yes	5 Years, No Reduction
2nd Degree		2,3,4,5,6,7 or 8 Years	$15,000			If Sex Offense, 5 Years, No Reduction; Otherwise 3 Years, Reducible by Parole Board
3rd Degree	No Guidance Other Than Purposes and Principles (Also Applies to "Division (C)" Drug Offenses)	1,2,3,4 or 5 Years	$10,000	For Attempted Serious Harm F-2 or Involuntary Manslaughter: 1,2,3,4, 5,6,7,8,9 or 10 Years; Otherwise None	Yes, If Sex or Violent Offense; Otherwise Optional
4th Degree	If Any of 8 Other Sanction, Guidance for Prison; If None of 8 Factors, Guidance for Prison(Also Applies to "Division (B)"Drug Offense	6,7,8,9,10,11, 17 or 18 Months	$5,000	None	Yes, if Sex Offense; Otherwise Optional
5th Degree		6,7,8,9,10,11 or 12 Months	$2,500

Notes for Felony Sentencing Chart

1. Repeat Violent Offenders - A defendant qualifies as a repeat violent offender under Section 2929.01 when he or she (a) is being sentenced for: aggravated murder; murder; involuntary manslaughter; any other non-drug Felony-1 or Felony-2 involving actual or attempted serious physical harm; and (b) previously served prison term for aggravated murder, murder, involuntary manslaughter, rape, felonious sexual penetration, or another Felony-1 or Felony-2 that resulted in death or physical harm, including complicity or attempt. (A previous juvenile offense may be treated as a "prior" offense when so indicated by a juvenile judge.)
2. Drug Offenses - Note the penalties track the degree of offense, but the sentencing guidance may be different than for other offenses at that level.
3. Maximum Fines - Cover conventional and day fines. If a superfine is available, the maximum is one million dollars (ORC; 2929.25).

Misdemeanor Penalty Table

Misdemeanors are punishable by a definite term in jail, or a fine, or both. Minor misdemeanors are punishable only by a fine of $100 or less. The judge fixes the sentence from the permissible range. Jail terms and fines may not exceed the maximums specified in the statute. The following table contains the basic misdemeanor jail terms and fines stated in the Criminal Code. (The judge also may impose a jail term, suspend it, and place the misdemeanant on probation.) It does not specifically cover the mandatory jail or prison sentences to be imposed when an offender is convicted of driving while under the influence of alcohol or drugs.

Misdemeanor Jail Terms and Fines

Offense	Maximum Term	Maximum Fine
1st° misdemeanor	6 Months	$1,000
2nd° misdemeanor	90 Days	$750
3rd° misdemeanor	60 Days	$500
4th° misdemeanor	30 Days	$250
Minor misdemeanor	None	$100

Sentencing Guidance

The Felony and Misdemeanor Penalty Tables show the general penalties established by the Criminal Code. The actual sentence depends on the classification of the particular offense, whether a prison or jail term is mandated, the range allowed as stated in the above tables, and the judge's discretion in choosing the appropriate residential, non-residential, and/or financial sanction from the choices allowed by law.

Although the Criminal Code gives judges discretion, the discretion is guided by some basic rules, particularly in felony cases. Generally, for first- and second-degree felons, the law presumes a prison term is needed to punish the offender and protect the public.

For fourth- and fifth-degree felons, the law steers certain offenders toward prison, while steering many property offenders toward community sanctions. In cases involving fourth- and fifth-degree felons, the judge must look to see if any of eight factors are present. The eight factors are: (1) physical harm to a person; (2) attempt or actual threat of such harm with a weapon; (3) attempt or actual threat of such harm without a weapon when the offender has a prior conviction for causing such harm; (4) the offense was related to public office or position of trust, etc.; (5) the offense was for hire or as part of organized crime; (6) it was a sex offense; (7) the offender has been to prison before; or (8) the offense was committed while the offender was under community control for another offense. If any of the eight are present, the judge is steered toward a prison term, provided the court finds the offender is not amenable to an available community sanction. If none of the eight are present, the judge is to strongly consider community sanctions.

This guidance is summarized in the Felony Sentencing Table above. Note that there is no particular guidance for third-degree felons. Also note that the guidance varies somewhat for drug offenses, as indicated in the table. Judges may elect to sentence against the Code's guidance, but now must give reasons for such sentences. For example, if a judge sentences a first- or second-degree felon to community control rather than prison, the judge must give a reason. Often, sentencing against the guidance of the new sentencing code, is subject to appeal by either the State of Ohio or the defendant.

In all felony cases, the sentence should be consistent with the overriding purposes of punishing the offender and protecting the public. Judges also must look to see whether certain factors are present. These include factors indicating that the crime was more serious (e.g., serious harm resulted) and a factor indicating that recidivism is more likely (e.g., history of crimes) or less likely (e.g., the offense was committed under circumstances unlikely to recur). Where judges have to give reasons for sentences, the reasons should be based on these principles and factors.

In determining the sentence for misdemeanants, the judge must consider: the risk that the offender will commit another crime and the need for protecting the public; the nature and circumstances of the offense; the victim impact statement: the history, character, and condition of the offender and offender's need for correctional or rehabilitative treatment; and the ability and resources of the offender and the nature of the burden that payment of a fine would place upon the offender.

The judge may order a pre-sentence investigation to acquire the information needed to choose an appropriate sentence. The court’s probation officer, who gathers information about the offender’s social history, employment record, financial situation, personal characteristics, family situation, and physical and mental condition, plus other pertinent information, usually carries out this investigation. It also may include a victim impact statement. All of this information is placed in a pre-sentence investigation report and given to the judge.

The judge then determines the sentence to be imposed, and how the sentence is to be modified. A judge is more likely to be lenient if the offender is a first offender provided leniency will not demean the seriousness of the offender's crime. A judge is more likely to be severe when the offender is a repeat offender or dangerous offender.

For felonies, the Criminal Code tells judges to sentence a prison-bound offender to the minimum term from the appropriate range if the offender has not previously served a prison sentence. The judge can exceed the minimum, but must give a reason for doing so. The Code also instructs judges to reserve the longest sentences in the ranges to the worst offenders and those who commit the worst forms of the offense in question. Again, reasons must be given if the maximum is imposed.

After the judge has imposed the sentence in a felony case, he may, in general, alter its implementation in various ways in the interests of justice. When an offender is convicted of several crimes at the same time, the judge can order the sentences for each crime to be served consecutively (one after the other) or concurrently (at the same time). The judge can place a misdemeanant on "probation," that is, release the offender under supervision on the condition that the offender follows certain guidelines and behaves in the future.

The judge can send a felon to prison for as little as one month, recall the offender, and place him on community control. This is called "judicial release" (akin to "shock probation" under former law). But eligibility for judicial release is limited to felons with non-mandatory terms of 10 years or less. A fourth- or fifth-degree felon must file for judicial release 30 to 90 days after entering prison. A higher-level felon may file anytime after serving six months. There is a presumption against granting judicial release to a first- or second-degree felon.

It is important to note that, in some situations, judges may not have the authority to modify sentences. For example, an offender convicted of an offense, which requires a mandatory prison term cannot be granted judicial release, or otherwise have the sentence reduced by the judge once it has been imposed.

 

In misdemeanor cases, the judge can alter the implementation of the sentence imposed in various ways. When the offender is convicted of multiple offenses, the judge can order that the jail terms for each offense be served consecutively or concurrently. Also, the judge can suspend all or any part of a jail sentence and place the offender on probation, subject to various conditions (including such things as restitution, community service, and intensive supervision). The judge can order that any sentence served in a local jail be served on weekends or overnight to enable the offender to continue work and family responsibilities. The judge can also suspend all or any portion of a fine imposed for the misdemeanor or permit payment in installments. Again, it must be stated that in certain “limited” situations the judges may not be able to modify sentences.

 

Judges must often deal with offenders who may have some mental or physical problem, and the law provides special measures in these cases. When an offender is mentally deficient, mentally ill, or drug- or alcohol-dependent, the judge has various options for providing commitment and treatment.

 

Sentencing Examples

 

Please refer to the Felony Penalty Table and the Sentencing Guidance discussion, above, as you read the following examples.

 

1. Assume that an offender with no criminal history commits a burglary, unarmed. The offender is convicted of burglary, a second-degree felony, after all of the elements of the crime have been properly proven. There is a presumption in favor of a prison term for the offense. (If the judge does not impose a prison term, the judge must give a reason and the prosecutor can appeal the sentence.) The judge decides a prison term is appropriate. She must select a term from the range of two, three, four, five, six, seven, or eight years. The judge does not sentence "from two to eight;" rather the judge chooses a specific term, say three years (with narrow exceptions, this is actual time; no unearned good time or parole reductions are allowed). The judge also may impose a fine of up to $15,000. As a first offender, the offender does not qualify as a repeat violent offender (RVO). And the offender must receive up to three years of supervision after serving the prison term.

2. Now assume that: an offender shot a victim in the arm during a fight (felonious assault, a second degree felony); the offender had a prior conviction for felonious assault in which a person was harmed and for which the offender served a prison term; and the offender was convicted of felonious assault after all the elements of the offense, and offender's prior conviction, were properly proven.

Look at the Felony Penalty Table for second-degree felonies. There is a presumption in favor of a prison term for this offender. The judge must choose the appropriate basic prison term from the range of two, three, four, five, six, seven, or eight years. The judge must select a specific term based on the seriousness of the crime and the offender's likelihood of recidivism. Because the offender served a prison term for a prior second-degree felony, the judge must sentence the offender to a prison term (repeat first- and second-degree felonies carry mandatory prison terms), and may impose added time since the offender is a repeat violent offender (RVO). Assume that the judge determines that eight years is the appropriate basic term. The judge may elect to impose up to 10 additional years on the RVO if the basic term is inadequate to properly punish the offender.
Thus, the offender could be given 18 years for the crime. The offender would not qualify for judicial release. So, the only way this eight-year term can be reduced is through earned credits at a maximum of one day per month. But, the offender could serve more than 18 years if he commits infractions leading to "bad time" extensions. Also, the offender would have to be supervised for up to three years after leaving prison.

 

In addition to the sentence for the offense (ranging from eight to 18 years), the judge must sentence offender to an additional three years in prison for using a firearm. The offender must serve this three-year term before and separate from any other penalty, including the term for the underlying offense. Stated another way, the offender cannot serve the three-year term of actual incarceration for the use of a firearm concurrently with/at the same time he is serving - the eight- (or up to 18-) year term for the underlying offense. Thus, the offender would have to serve as many as 21 years for the crime, with a "gun spec."

 

3. Let us say another offender possessed a small amount of cocaine, a fifth-degree felony (a "division B" drug offense). Assume that none of the eight factors that direct a judge toward a prison term are present. Although a prison term of six, seven, eight, nine, ten, eleven, or twelve months is available, the Code steers the judge toward imposing community control as the penalty for this crime, since none of the eight aggravating factors appear. Thus, the judge can place the offender in a local residential facility, including drug treatment, or place the offender under any other nonresidential (e.g., intensive supervision with drug testing) or financial sanction (e.g., a fine not to exceed $2,500). However, the offender would be warned that failure to abide by the conditions of community control could mean a prison term, with an optional period of supervision for up to three years after leaving prison.

 

Goals of Sentencing and Corrections

 

The overriding purposes of Ohio's felony sentencing system are to punish offenders and to protect the public from future crime by that offender and others. To accomplish this, courts are asked to assess the need for incapacitation, rehabilitation, restoring victims, and deterring crime. These principles also apply somewhat to misdemeanants.

 

One means of protecting the public from future crime is to rehabilitate offenders. That is why the sentencing system gives judges discretion. The continuum of sanctions laid out in the Code (discussed below) gives judges tools to tailor punishment and rehabilitation. The law recognizes that rehabilitative measures affect different offenders in varying degrees and that, in some instances, the chances of the offender's reformation are slim. Where the chances of reformation are slim and the public safety is endangered, the law provides for the offender's long-term removal from society. When an offender has demonstrated that she is a poor risk, say by repeated crimes or dangerous or psychopathic conduct, she is subject to longer prison terms.

 

Community Control Sanctions

 

In recent years, the Ohio General Assembly has established a variety of sanctions in addition to traditional incarceration with the goals of holding offenders accountable while shortening criminal careers by more effectively dealing with the underlying cause, or causes, of the offense. There also is concern that prisons are crowded, expensive, and not always well-suited for rehabilitation. The Criminal Code now lists a continuum of residential, non-residential, and financial sanctions, and encourages judges to use any combination of them to punish offenders and protect the public. Any felon not facing a mandatory prison term is eligible for them.

 

Residential sanctions other than prison include: community-based correctional facilities; jails; minimum-security jails; halfway houses; and other alternative residential facilities. Non-residential sanctions include: day reporting (reporting to an approved location to participate in work, training, treatment, etc.); house arrest, which may include electronic monitoring; community service; drug treatment; drug testing; intensive supervision (frequent contact with a supervising officer); basic supervision (some contact with a supervisor); monitored time; curfew; employment; education or training; victim-offender mediation; license violation reports; and others.

 

Financial sanctions include: conventional fines (those noted in the tables above); day fines (a fine based on a standard percentage of the offender's daily income over a period of time determined by the seriousness of the crime); mandatory fines (in higher-level drug cases); restitution (for any economic loss); reimbursement for the costs of administering any sanction or for the costs of jail or prison; and others.

 

Also, a prison-bound offender may be placed in a "boot camp" (formally called "shock incarceration") under an intense regimen of work, school, training, or treatment. It typically involves a 90-day period of incarceration with military-style discipline, physical training and labor, substance abuse education, social and employment skills training, and psychological treatment. The incarceration is followed by a 30- to 60-day stay in a halfway house or community-based correctional facility, followed by a period of supervision in the community. Eligibility for the program is limited, generally to healthy, young, nonviolent inmates who have not spent much time in prison before.

 

Criminal Law And Constitutional Rights

 

The United States and Ohio Constitutions provide accused persons regardless of their citizenship status, with various basic rights. These rights are designed to protect the individual from unreasonable government intrusion and to insure fundamental fairness. Violation of these rights may result in dismissal of criminal charges, and may also result in criminal or civil liability for the persons responsible for violating the rights.

 

Equal Protection of the Law

 

The 14th Amendment to the United States Constitution states that everyone is entitled to equal protection under the law. This means that the law must be the same for all. For example, there cannot be one law for the rich and another for the poor, or one law for blacks and another law for whites.

 

Due Process of Law

 

The 14th Amendment of the United States Constitution also states that no one can be deprived of life, liberty, or property without due process of law. This means that the laws must be enforced only through a rational procedure, which is constructed and used to insure fundamental fairness. An accused person cannot arbitrarily be fined, jailed, or put to death. Guilt or innocence must be determined fairly and impartially through an appropriate procedure.

 

Double Jeopardy

 

The United States and Ohio Constitutions provide that no one can be placed in jeopardy more than once for the same crime. In general, this means that in criminal prosecutions, the state has only one chance. If a person is found not guilty, the state cannot appeal or attempt to try her again. The same is true if an accused is found guilty. The state cannot accuse her again and attempt to inflict double punishment for the crime. There are exceptions to the general rule. For example, a second trial can be held if the accused was found guilty and the guilty finding was overturned on appeal.

 

Search and Seizure

 

Both the United States and Ohio Constitutions prohibit unreasonable searches and seizures. Generally, law enforcement officers cannot search a person or his property without a search warrant. A judge upon finding probable cause to believe that particular evidence of a crime will be uncovered at a specific place to be searched can only issue a search warrant. There are a number of situations where law enforcement officers can conduct searches without a warrant. For example, searches can be conducted without a warrant in connection with a lawful arrest, when the search is conducted with the permission of the person whose property is being searched, when the items found were in plain view, etc.

 

Self-Incrimination

 

Both the United States and Ohio Constitutions state that no one can be compelled to incriminate himself. This means that a person cannot be tortured into confessing or making damaging statements, or even any statement. (Torture is also prohibited by the due process clause.) Further, a person cannot be forced to confess or make a statement by: attempts to frighten him or wear him down with questioning, trickery, or promises of leniency. During a trial, the accused cannot be forced to testify (be a witness). Moreover, if the accused decides to remain silent, the prosecution cannot suggest to the jury that the accused's silence indicates guilt.

 

Right to Counsel

 

An accused person is constitutionally entitled to the services of an attorney. If she cannot afford an attorney, the state is bound to provide one for her in any case in which imprisonment is a possible punishment. In serious cases, the accused must be provided with legal counsel at all significant steps of the procedure, beginning with the lineup in the police station after her arrest, through questioning by the police, preliminary hearing, arraignment, trial, and appeal, if any.

 

Indictment by a Grand Jury

 

Both the United States and Ohio Constitutions provide that no one can be brought to trial for a felony except on indictment by a grand jury. Indictment by a grand jury helps ensure that no one is subjected to trial on false, flimsy, or spiteful accusations.

 

Notice of the Charge

 

An accused is entitled to fair notice of the specific charges against her. This notice allows her to prepare her defense intelligently. An accused cannot prepare a defense if the charge is a vague statement of some unspecified wrongdoing.

 

Speedy Trial

 

Both the United States and Ohio Constitutions state that an accused is entitled to a speedy trial. An accused cannot be made to wait indefinitely with a criminal charge hanging over her head, but must be given the opportunity to have the matter resolved quickly.

 

In Ohio, specific time limits are provided by statute; these time limits can be extended only for good cause. The times within which an accused must be brought to hearing or trial after an arrest or service of summons are as follows: 30 days for trial in mayors' courts, or trials for minor misdemeanors in any court; 45 days for trials of misdemeanors carrying a maximum penalty of 60 days in jail; 90 days for trials of more serious misdemeanors; 15 days for preliminary hearings in felony cases; and 270 days for trials in felony cases. The statute provides that in counting time, each day spent in jail awaiting trial must be counted as three days. Thus, for example, if the accused in a felony case cannot make bail, she must be given a preliminary hearing within five days (15/3=5) after her arrest, and must be brought to trial within 90 days (270/3=90) after her arrest.

 

Public Trial in the Locality

 

Both the United States and Ohio Constitutions give an accused the right to a public trial. The right to a public trial ensures that trials are conducted fairly and properly. (There is no way to know whether a secret trial was conducted fairly and properly. Further, there can be questions whether such a trial was in fact conducted.) An accused also has the right to be tried in the locality where the alleged offense was committed. The right insures that the witnesses and evidence are readily available and that the state cannot transfer the trial to a place where the atmosphere could be hostile to the accused. However, an accused can have the trial transferred (a change of venue) if she is able to demonstrate for the Court that she cannot get a fair trial in the locality where the alleged crime occurred. This decision usually cannot be made until after a reasonable attempt is made to seat a jury in the original jurisdiction.

 

Confronting Accusers and Securing Witnesses

 

Generally, the United States and Ohio Constitutions provide that a defendant in a criminal case is entitled to meet his accusers and the witnesses against him, in open Court. The Ohio Constitution specifically requires that this confrontation occur “face to face”. That is, the state cannot rely on anonymous accusers and witnesses. The defendant is entitled to know who they are and to have an opportunity to question (cross –examine them, personally in open court. Moreover, an accused is entitled to secure witnesses in his own behalf. Further, the process the state uses to have, even force its witnesses to come to court and testify must be available to the accused. The accused is allowed to have or again, even force the witnesses he wants to come and testify.

 

Trial by Jury

 

Under the United States Constitution, a defendant is entitled to trial by jury if the potential penalty for the crime charged exceeds imprisonment for six months. The Ohio Constitution and statutes are even more stringent. An accused in Ohio is entitled to a jury trial if the potential penalty for the crime charged exceeds a fine of $100.

 

Other Basic Constitutional Rights

 

In addition to the rights mentioned above, there are other constitutional rights, which are important in all criminal proceedings. These include constitutional prohibitions against certain kinds of laws, as well as constitutional rights, which limit criminal laws. The following paragraphs explain some of these constitutional rights.

 

Neither the United States Congress nor the states can enact retroactive or "ex post facto" laws. This means that a person's criminal liability must be established according to the law in effect at the time the person committed the alleged offense. If a person's conduct was innocent when it occurred, she cannot be subjected to liability under a subsequent law, which prohibits the earlier conduct. Further, such a person cannot be subjected to a greater penalty, or have a defense taken away, by a subsequent law.

 

Neither the Congress nor the states can pass "bills of attainder." In earlier times, bills of attainder were used to condemn a person by legislative enactment without benefit of trial. English kings used these bills to declare their enemies outlaws and to confiscate their enemies' property.

 

Both the United States and Ohio Constitutions prohibit cruel and unusual punishment for crimes. These constitutional provisions prohibit such things as torture, or death by barbaric, painful, or lingering means, and excessive punishments. (An example of an excessive punishment would be a prison term for a minor traffic offense.) Additionally, the Ohio Constitution prohibits punishments which include forfeiture of all the offender's property or disinheritance of his family.

 

Another important constitutional requirement is that criminal laws must be specific. Persons are entitled to fair notice of what the law prohibits them from doing or requires them to do. Criminal laws, which are so vague that they do not provide fair notice, are invalid under the United States and Ohio Constitutions.

 

The United States and Ohio Constitutions also guarantee certain basic rights to everyone, and laws, which prohibit or interfere with the exercise of such rights are invalid. Everyone is entitled to religious freedom. For example, a person cannot be condemned under a law, which compels a person to renounce her religion, or to proclaim adherence to a particular religion. Everyone is entitled to freely speak and write her sentiments. Thus, general censorship laws or laws prohibiting criticism of the government are invalid. (The right to speak freely is not an absolute privilege. A person cannot yell "Fire" in a crowded theater merely to see the resultant terror. Similarly, a person may be sued for defamation.)

 

Persons are entitled to assemble for peaceful purposes, thus the police cannot constitutionally break up an orderly, lawful meeting. Everyone has a right to petition the government to have grievances adjusted, and cannot be prosecuted for doing so.

The federal government cannot prohibit a state from forming a militia. In Ohio, persons are entitled to keep and bear weapons for their own defense, thus the state cannot make the mere possession of weapons for defensive purposes a crime. The state and the federal government can impose specific restrictions on the possession, sale, or use of certain firearms.

 

The government cannot punish persons for refusing to provide housing for the military. There are many other constitutional requirements and prohibitions which can be important in criminal cases.

 

Informing the Accused of their Rights

 

An accused cannot intelligently insist on her constitutional rights if she is not fully aware of them. She must be informed of her rights in any case if she asks, and in serious cases even if she does not ask. Specifically, when a person is in custody or becomes the focus of an investigation, on a serious charge she must be told of her right to remain silent, of her right to counsel, and of her right to have counsel provided at state expense if she couldn’t afford it. She must be given an explanation of her constitutional rights at each stage in which she appears before a judge.

 

Waiver of Rights

 

In general, an accused can waive a constitutional right. For example, she can waive her right against self-incrimination and confess, or she can waive her right to counsel and represent herself, or she can waive her right to indictment and consent to be tried on an "information." A waiver must be voluntary, and must be made with full knowledge of the right being waived and of the consequences of waiver.

Enforcement of Rights

 

Constitutional rights can be enforced in a variety of ways. Evidence obtained through an unreasonable search or an involuntary confession can be suppressed. A decision can be reversed and the case dismissed or remanded for a new trial. Public officials responsible for a violation of constitutional and other rights could be liable for civil damages. Under both Federal Law and Ohio law, certain violations of civil rights can themselves be crimes.

 

Review on Appeal

 

In Ohio, a defendant has the right to appeal to the court of appeals of the District where his conviction was rendered. If the defendant is indigent, the state must provide her with counsel and a transcript of the complete trial proceedings. The appeal is limited to issues that appear on the record, that is, those issues, which appear in the trial transcript or in papers filed in the case. If the court of appeals finds that an error occurred which affected the outcome of the trial, it must reverse the conviction and remand the case to the trial court for retrial or other proceedings. If no harmful error occurred, the court of appeals will affirm the conviction.

 

In Ohio, a defendant has no statutory right to appeal the decision of the court of appeals to the Ohio Supreme Court. If a trial court imposed the death penalty, the only appeal as a matter of right goes directly to the Ohio Supreme Court. In non-death penalty cases, the defendant may petition (request) the Ohio Supreme Court to review her case.

 

In general, the Supreme Court of Ohio is not required to allow an appeal, other than one imposing a death sentence, but may do so depending on the issues raised in the appeal and the impact of the decision of the court of appeals on Ohio law. If the Supreme Court of Ohio declines to accept the defendant's appeal or if it affirms the conviction after allowing the appeal, the defendant may petition the United States Supreme Court to review the case. The United States Supreme Court can review only issues involving rights granted or claimed under the United States Constitution. The United States Supreme Court is not required to allow an appeal, but may do so depending upon the issues presented in the request (Petition).

 

It should be noted that strict time limitations must be met when filing an appeal (a document called a "notice of appeal" must be filed within the required time) to secure review in any of the above-mentioned courts. Further, there is no right to counsel when petitioning the Supreme Court of Ohio or the United States Supreme Court to allow the appeal, although, in rare cases, counsel may be appointed.

 

Review of Sentence on Appeal

 

In July 1996, the Criminal Code was amended to afford new rights to appeal certain felony sentences. The defendant may appeal: (1) when the maximum prison term is imposed; (2) when there was guidance against a prison sentence and the judge sentenced the offender to prison; and (3) when the sentence is otherwise contrary to law. The prosecution may appeal: (1) when a non-prison sentence was imposed on a first or second degree felon; (2) when judicial release was granted to such a felon; and (3) when the sentence was otherwise contrary to law.

However, if the sentence was based on an agreement between the defendant and prosecution, and lawfully imposed, neither party has a new right to appeal. (The defendant also may appeal certain consecutive sentences, but the appellate court does not have to review this appeal.) These appeals must be consolidated with any other appeal in the case.

 

Post-conviction Relief

 

The appeal procedure outlined above, referred to as "direct appeal," is limited to the review of issues, which appear on the record.

 

Where the defendant claims that errors occurred which violated her constitutional rights and contributed to her conviction, but which do not appear on the record, the defendant may file a petition for post-conviction relief. The petition is filed in the trial court in which the defendant was convicted. It now must be filed within 180 days of the filing of the transcript of proceedings in the Court of Appeals for the initial direct appeal.

 

The defendant must attach to or include with the petition some evidence, which is not already on the record, which supports defendant's claims. The petition may be denied summarily without a hearing. There is no right to counsel in post-conviction proceedings, although the court may choose to appoint counsel in rare cases.

 

After a defendant has sought all relief available in Ohio's courts, she may file a petition for federal habeas corpus relief in the United States District Court. Title 18 Section 2254. Although the court may only consider violations of the United States Constitution, its review is not limited to matters that appear on the record of the original trial. Generally, any federal issue which was fairly presented by the defendant to the Supreme Court of Ohio and which was not otherwise waived may be reviewed in a federal habeas corpus proceeding.

 

Also, a defendant may seek post-conviction relief if the sentencing pattern of an individual judge shows an impermissible bias based on the race, ethnicity, gender, or religion of defendants.
We look forward to working with you and will do everything ion our power to make this difficult and at times nerve wracking journey as pleasant as humanly possible.

If you or a loved one has been arrested or charged with a crime, please call our experienced Cleveland Criminal Lawyers at 1-855-696-0727 or 216-696-0727. The initial consultation is free of charge. If we agree to handle your case, we will aggressively defend your rights and help you every step of the way in securing the best possible outcome. Sometimes the proper legal action very early in the process can stop prosecution in its tracks saving your time, money, and other hardships. Criminal cases can require rigorous investigation on behalf of the defendant, and involve strict deadlines. Please, contact us right away to ensure that you do not give up any of your precious legal rights.