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Case Summaries: Criminal - Domestic Violence Sentencing

Proof of Prior DV Conviction for Enhancement of DV Penalty: The Ohio Supreme Court held that a defendant’s prior DV conviction (for purposes of penalty enhancement) may be proved by means other than the admission of the journal entry for the prior conviction, but when a judgment entry is used to prove the prior conviction, it must comply with Criminal Rule 32(C).  State v. Gwen, 134-Oh St.3d 284, 2012-Ohio-5046.

Keywords: domestic violence felony repeat offender

01/15/2013

One Hundred Eighty-day Sentence For CPO Violation Is Upheld The 1st District Court of Appeals affirmed the trial courts 180-day jail sentence against a husband for violating his wife's domestic violence CPO by writing a letter to his wife's residence that was addressed to the family cat. The Court of Appeals "was mindful of the argument that the content of the letter were fairly innocuous. There were no overt threats, and there was no indication that [husband] intended to contact the family in person. Nonetheless, given the context in which the letter was written, namely from a person jailed for domestic violence and aggravated menacing, the letter itself could have been reasonably deemed an attempt to defy the courts order and cause [wife] and the other members of the family emotional distress or psychological harm. Under these circumstances, the trial court could have concluded that the letter had violated the spirit, as well as the letter, of the protection order, and that the orders prohibition against such contact was proper to insure the safety and protection of the family members under [Ohio law]." State v. Frazier, 158 Ohio App.3d 407, 2004-Ohio-4506 (Hamilton, 1st District, 2004).

 

Keywords: violation,enforcement,sentencing

Date: 11/15/2004


Prior Conviction of Domestic Violence Cannot Be Withheld From Jury If Needed For Penalty Enhancement

Although the courts have held that a prior conviction may sometimes be withheld from the jury, if it is needed for a penalty enhancement, the prior conviction must be proven to the jury if it is an essential element of the offense which increases the degree of the offense. Therefore, the court of appeals rejected the trial courts ruling that the State is precluded from introducing to the jury evidence of defendants prior conviction for domestic violence because he had stipulated to that conviction. State v. Arnold, Sr., 02-LW-0244, No. 79280 (Cuyahoga, 8th App.Dist., 1/24/2002). See also State v. Allen (1987), 29 Ohio St.3d 53; State v. Thomas, No. 68313 (Cuyahoga, 8th App.Dist., 12/20/95).

 

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Date: 11/4/2002


Prior Municipal ordinance Conviction Supports Felony Enhancement

As required by R.C. 2919.25(A), the defendant's domestic violence conviction was a felony because he had previously been convicted of a "substantially similar municipal ordinance." The combination of the municipal court judgment entry and the testimony of the police officers involved in that incident "clearly reiterated the criteria for a domestic violence conviction: physical harm and the involvement of a family or household member as the victim." State v. Mullins, Case No. 99CA15 (Richland 7/29/99).

 

Keywords: enhanced

Date: 4/23/2002


Dress Code Condition Invalid

Requiring the probationer not to dress like a female is an invalid condition of probation from a domestic violence conviction. In re Miller (Lucas 1992), 82 Ohio App.3d 81.

 

Keywords: probation

Date: 4/23/2002


No Contact With Children Condition Invalid

A condition of probation which required the defendant to have no contact with his wife or children during the two years of probation was upheld as to the wife, but struck down as to the children, because the children were not victims of the domestic violence crime committed by father. State of Ohio v. Brillhart, 1998WL470122 (Wayne 8/5/98).

 

Keywords: probation

Date: 4/23/2002


Probation Conditions In DV Cases

Valid conditions of probation must meet a three-prong test. The conditions must be: 1) reasonably related to rehabilitating an offender; 2) have some relationship to the crime for which the offender was convicted; and 3) relate to conduct which is criminal or reasonably related to future criminality and serves the statutory ends of probation. State v. Donnelly (Lorain 1996), 109 Ohio App.3d 604.

 

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Date: 4/17/2002


Diversion Disallowed

The California Supreme Court specifically disallowed informal diversion arrangements in which the judge agrees to dismiss charges if the defendant does not re-offend withing a specified period of time. Davis v. Municipal Court, 46 C3d 64, 254 CR 156 (1988); People v. Orin, 13 C3d 937, 120 CR 65 (1975). In response to the use of diversion to conclude criminal domestic violence cases, the California legislature in 1996 repealed a portion of its criminal code, Chapter 2.6 of Title 6 of Part 2, Sections 1000.6 et seq., and provided for specific probationary terms, including batterer counseling, for domestic violence defendants, Penal Code Section 1203.097. This is consistent with the recommendations of a federal task force which concluded that the most successful treatment for batterers occurs when mandated by the criminal justice system, and stated that 'the importance of this leverage cannot be underrated." U.S. Attorney General's Task Force on Family Violence, Final Report, page 36 (Washington D.C.: U.S. Department of Justice, 1984).

 

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Date: 4/17/2002


Drivers License Suspension Invalid

Suspending a probationer's driver's license is an invalid condition of probation from a domestic violence conviction. State v. Krug (Hamilton 1993), 89 Ohio App.3d 595.

 

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Date: 4/17/2002


No Error In Maximum Sentence

The trial court looked at appropriate sentencing factors, including cause of physical harm, recidivism, consistency with principles of sentencing, and whether appellant was amenable to a community control sanction. The maximum sentence was appropriate because of the seriousness of the offense and his previous offenses (including two felony domestic violence convictions in 1999). State v. Pruiett, Case No. 20518, 2001 Ohio App. LEXIS 5848 (Summit 12/26/01).

 

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Date: 4/17/2002


No Error In Imposing Maximum DV Sentence

The court of appeals affirmed the trial court's maximum sentence (12 months) upon his conviction of one count of fifth-degree felony domestic violence. Under R.C. 2929.14(C), a court may impose the longest prison term authorized only upon offenders who committed the worst forms of the offense or who pose the greatest likelihood of committing future crimes (among other factors). The trial court sufficiently stated its reasons for imposing the maximum prison term by reference to the seriousness of the offense and the likelihood that defendant would commit future crimes. State v. Carabotta, Case No. 75148 (Cuyahoga 5/20/99).

 

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Date: 4/17/2002


Condition Requiring Deed Invalid

A trial court exceeds its jurisdictional limits by ordering defendant, as a special condition of probation, to sign a deed turning over to a domestic violence victim his interest in a residence which they owned jointly. State v. Mueller (Hamilton 1997), 122 Ohio App.3d 483.

 

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Date: 4/17/2002


Silent Record Presumes That The Trial Court Followed The Sentencing Statute

Maximum sentence was upheld (defendant was already serving life for murder) as the court stated that a silent record raises the presumption that a trial court considered the factors contained in the sentencing statute. Furthermore, a sentence will not be overturned without a clear showing of abuse. State v. Mitchell, Case No. 17816, 2001 Ohio App. LEXIS 2914 (Montgomery 6/29/01).

 

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Date: 4/17/2002


Imposing Maximum Sentence

The trial courts imposition of the maximum sentence was affirmed because the trial court found the existence of R.C. 2929.13(B)(1) factors, considered the factors set forth in R.C. 2929.12 regarding the seriousness of the conduct and the likelihood of recidivism, determined that a prison term was consistent with the principles and purpose of sentencing and determined that appellant was not amenable to a community control sanction. Finally, the court determined that appellant was likely to reoffend. State v. Wilburn, Case No. OT-01-008, 2001 Ohio App. LEXIS 5587 (Ottawa 12/14/01).

 

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Date: 4/17/2002


Consecutive Sentences Reversed If Contrary To Law or If Exceeds Maximum Prison Sentence Otherwise Allowed

Defendant pleaded guilty to charges of assault on a peace officer and of domestic violence. However, his sentence was remanded, as he was given consecutive sentences that were both contrary to the statutory requirements for imposing consecutive terms and in excess of the maximum sentence otherwise allowed. State v. Long, Case No. 78616, 2001 Ohio App. LEXIS 3485 (Cuyahoga 8/9/01).

 

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Date: 4/17/2002


Consecutive Sentences Reversed Because Trial Court Failed To Make Finding For Why Defendant Was Likely To Commit Future DV

Although the trial court made conclusory statements that parroted the appropriate statutory language, it failed to give reasons for finding that the sentence was not disproportionate to the seriousness of his conduct and the danger he poses to the public. State v. Hoole, Case No. 79515, 2001 Ohio App. LEXIS 5004 (Cuyahoga 11/8/01).

 

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Date: 4/17/2002


Maximum Felony Sentence Not Supported By Statutory Findings Is Vacated

The court of appeals vacated the trial court's two consecutive, maximum twelve-month prison sentences stemming from defendant's conviction on two counts of domestic violence, because the trial court did not make the requisite statutory findings when it imposed the maximum sentence. State v. Gonzalez, Case No. 1-98-84 (Allen 6/30/99).

 

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Date: 4/17/2002


No Error In Imposing Maximum DV Sentence

The court of appeals affirmed the trial court's maximum sentence (12 months) imposed on defendant for his fifth-degree felony domestic violence conviction. The trial court clearly considered the factors relative to a fifth-degree felony, found that the defendant posed the greatest likelihood of committing future crimes, found four of the statutory recidivism factors to be present, and sufficiently stated in the record its findings and reasons for imposing the maximum sentence. State v. Sherman, Case No. 74297 (Cuyahoga 5/20/99).

 

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Date: 4/17/2002


Consecutive Sentences Allowed Even With Inappropriate Comments

The trial courts finding and comments, when viewed in the context of the entire proceeding, demonstrate a legitimate basis for its decision to impose the maximum sentence. Although the trial court may have made some additional comments regarding the defendants history, the decision was not against the weight of the evidence when viewed in its entirety. State v. Williams, Case Nos. 79590, 79591, 2002 Ohio App. LEXIS 708 (Cuyahoga 2/21/02).

 

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Date: 4/17/2002


Sentencing Enhancement

A federal judge enhanced the sentence of a defendant who pleaded guilty to several firearms violations, based in part upon the defendant's 17-year history of unadjudicated, uncharged domestic abuse. The 1st U.S. Court of Appeals affirmed, noting that the Seventh Circuit agreed and the Second Circuit disagreed with the use of dissimilar prior criminal conduct for enhancement purposes. U.S. v. Brewster, Case No. 97-1448 (1st Cir. 10/2/97).

 

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Date: 4/17/2002


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