1 WHITE PAPER AN EXPLANATION OF OHIO CRIMINAL SENTENCING LAWS By Daniel Gigiano Attorney at Law Daniel F. Gigiano Co., L.P.A., Wadsworth, Ohio Serving Medina, Summit and Wayne Counties gigianolaw.com 330-336-3330
2 AN EXPLANATION OF OHIO CRIMINAL SENTENCING LAWS By Daniel Gigiano Attorney at Law Daniel F. Gigiano Co., L.P.A. In this white paper, Attorney Daniel Gigiano reviews Ohio criminal sentencing laws. These laws seem straightforward at first, but the details get quite complicated. Ohio Sentencing Guidelines Ohio criminal sentencing laws seem straightforward at first, but the details get quite complicated. This white paper is designed to set forth the Ohio criminal sentencing structure, along with some of the problems and developments in this area. The Ohio criminal sentencing guidelines are in table below. Jail Time Maximum Fine Misdemeanors Minor (MM) None $150 M4 (Fourth Degree) up to 30 days $250 M3 up to 60 days $500 M2 up to 90 days $750 M1 up to 180 days $1,000 Felonies F5 (Fifth Degree) 6 to 12 months $2,500 F4 6 to 18 months $5,000 F3 12 to 60 months* $10,000 F2 2 to 8 years $15,000 F1 3 to 11 years $20,000 * Most F3 crimes only up to 36 months; 60 month maximum for specified high level F3 crimes
3 Misdemeanor and Felony Sentences Must Be Served at the Same Time When one is sentenced on both a felony and a misdemeanor, the two sentences must be served concurrently. In a recent 2016 decision, the Ohio Supreme Court resolved conflicting opinions among the lower courts on this issue. Consecutive sentences are served one right after the other, with no double credit for any of the time served. Two six month sentences would add up to a year if they ran consecutive to one another. Concurrent sentences are served at the same time. For example, two six month sentences would add up to only six months if they ran concurrent to one another. In that decision, the defendant pled guilty to a count of felony receiving stolen property and a count of misdemeanor receiving stolen property. The judge sentenced him to 11 months in prison for the felony and six months in jail for the misdemeanor, each to run consecutively for a total of 17 months. Polus was charged with two more felony counts of receiving stolen property. He pled to those and received two more consecutive sentences of 11 months each for a total of 22 months to begin after he finished serving the 17 months from the previous conviction. Polus appealed. The Ohio Supreme Court decided that Ohio law generally required misdemeanor sentences to run concurrent with felony sentences. Ohio law lists three misdemeanors that are excepted from this rule: (1) pandering sexually oriented matter involving children; (2) escape; and (3) possession of a deadly weapon while under detention. These three misdemeanors can, but are not required to, run consecutively with a felony conviction. Ohio Criminal Sentencing Hearings Ohio criminal sentencing hearings are where the judge decides the sentence for one convicted of a crime. The criminal defense attorney focuses on the positive things his client has done while showing the bright side of negative things. Positive things include: gainful employment; past history of volunteering and/or helping people; repaying the victim; steps taken to address problems (drug treatment and alcohol treatment); and being a responsible parent to minor children. The bright side of negative things includes showing that addressing a defendant s drug addiction would benefit society more than incarcerating the individual. In this instance, the negative issue taking the form of a drug addiction is presented as a problem to be solved, shifting the focus away from the State of Ohio s desire to lock up the offender.
4 Intervention in Lieu of Conviction Intervention in lieu of conviction is a program that allows one charged with a crime to obtain a dismissal at the conclusion of the program. In order to be eligible, drug addiction, alcohol addiction, or mental health issues must have played a part in the commission of the offense. The program focuses on treating, rather than punishing, the problem. Once the charges are dismissed, the record is not sealed from the public. The arrest record likely still exists. In order to wipe the docket and arrest from the record, one must file to have those records sealed and expunged. The waiting period for expunging convictions is one year for a misdemeanor or three years for a felony. The Ohio Supreme Court decided, in State v. Niesen- Pennycuff, that the court may, but is not required to, impose a waiting period for expunging a dismissal. Because the charges are dismissed at the conclusion of an intervention in lieu of conviction program, there is no conviction and it is considered a dismissal. Since the waiting periods only apply to convictions, expungement of the docket and arrest is available immediately. "Intervention in lieu of conviction is a program that allows one charged with a crime to obtain a dismissal at the conclusion of the program." What Jail Time Credit Will Be Applied? One question that frequently arises at sentencing is what jail time credit will be applied? Time spent in confinement can be credited against a sentence. Confinement includes jail and community-based correctional facility (CBCF). Treatment can count if the defendant was confined there. In order to get credit, the person had to be in custody for the case that is proceeding to sentencing. In other words, the person cannot get credit for time served on another charge or other case. Credit for jail time is supported by the Equal Protection Clause in the Fourteenth Amendment to the United States Constitution, the Equal Protection Clause of Article 1, Section 2 of the Ohio Constitution, R.C. 2967.191, R.C. 2929.19, and R.C. 2945.38. The Ohio Supreme Court has ruled on jail time credit in a number of decisions: State v. Fugate, 117 Ohio St.3d 261; State ex rel. Rankin v. Mohr, 130 Ohio St.3d 400.
5 Most of the time, the court properly applies jail time served at sentencing. There is often a presentence investigation, which sets forth the number of days of jail-time credit due to the defendant facing sentencing. If the defendant is still in custody, the defendant often is wearing a wristband which states the date that the person was taken into custody. However, in those few instances where this is not done correctly, it is important to know the types of confinement that is entitled to credit, as well as the supporting statutes, constitutional provisions, and cases dealing with this important issue. What Factors Affect an Agreed Criminal Sentence? I often hear my clients tell me that someone else got a certain sentence for a similar offense and ask whether they could also get the same sentence. My usual response is that no two cases and defendants are exactly alike and so the sentences would not necessarily be exactly alike. First, some prosecutors and courts will not agree to a sentence. In these instances, the plea bargain is focused on dismissing offenses or reducing offenses. An experienced criminal defense attorney familiar with that court will be able to estimate the usual range of sentences the court would likely hand out in that situation. However, this scenario can also result in a sentence much less or much greater than expected. Some courts and prosecutors will allow agreed sentences. Even in these cases, the court still reserves the right to change its mind, but rarely does so. The focus in this situation is what will convince a prosecutor to agree to a more advantageous sentence? There are some situations where the prosecutor may not agree to a lighter sentence. These include where a minimum statutory sentence is required, a victim opposes a light sentence, or the police, prosecutor or judge have already decided against doing so. Factors that can influence a prosecutor include: the strengths and weaknesses of their case, payment of restitution, the skill of the criminal defense attorney, addressing a mental health or substance abuse problem that likely contributed to the offense, positive contributions to the community by the defendant, and showing that the facts of the case are not as bad as they may seem. A skilled criminal defense lawyer knows how to best present these factors to the prosecutor for the benefit of his client. For More Information on Ohio Criminal Sentencing Law For more information on Ohio criminal sentencing laws, go to gigianolaw.com/criminal-defenseattorney/ or contact Daniel Gigiano at 330-336-3330 for consultation. The initial 30 minute consultation is always free.
6 About The Author Daniel Gigiano, Esq. Daniel Gigiano, Esq. graduated from Loyola University Chicago School of Law and has practiced law since 1993. He is the owner of Daniel F. Gigiano Co., L.P.A. located in downtown Wadsworth, Medina County, Ohio. Attorney Gigiano regularly represents individuals in criminal defense matters in the courts in Medina County, Wayne County and Summit County. Daniel Gigiano, attorney at law, has fought hard to defend his clients in criminal cases. In addition to criminal law, Daniel Gigiano practices law in the following areas: Bankruptcy and Foreclosure Defense Business Law Family & Divorce Law Civil Litigation Collections Estate Planning OVI/DUI Personal Injury Probate Real Estate
7 Appendices Ohio Legal Links and Resources Medina County, Medina City & Wadsworth Legal Sites Medina Domestic Relations Court Medina County Auditor Medina Juvenile & Probate Courts Medina County Recorder's Office Medina City Clerk of Courts Medina Municipal Court Wadsworth Municipal Court Summit County Legal Sites Summit Domestic Relations Court Summit County Clerk of Courts Summit Juvenile Court Summit County Fiscal Office Barberton Municipal Court Wayne County Legal Sites Wayne County Clerk of Courts Wayne County Government Ohio State/Regional Legal Sites Supreme Court Listing of Ohio Courts Northern District of Ohio Bankruptcy Court Ohio Supreme Court Ohio Bureau of Motor Vehicles
8 Daniel Gigiano Reviews Reviews from Daniel Gigiano clients can be found below. Additional Daniel Gigiano reviews can be found on the web sites listed in the sidebar. 5.0 stars Posted by Lisa 12/16/13 I hope I don't need to hire a lawyer again, but if I do, I'm calling Dan. I spoke to Dan several times on the phone about my situation. He was very attentive, asked many questions and followed up promptly with the answers I needed. While we did not end up in court, I felt very comfortable with how he handled my case and would call him again if I ever need a lawyer. Attorney/Lawyer Sites with Daniel Gigiano Reviews Daniel Gigiano Reviews Lawyers.com Avvo s Attorney Reviews Avvo s Client Reviews Other Sites with Daniel Gigiano Reviews 5.0 stars Posted by Paul 9/2/2014 Responsive, trustworthy and respectful extremely responsive and knowledgeable! I was stopped and cited with an OVI charge late on a Saturday night (1am Sunday). I contacted Dan before lunch that same Sunday and he walked me through what to expect for the entire process. Dan s knowledge of the law and his ability to communicate it danielgigiano.com danielgigianodivorcelawyer.com Daniel Gigiano Yelp Site Daniel Gigiano Yahoo Site Daniel Gigiano Facebook Page Daniel Gigiano Google Plus Site Daniel Gigiano YP (Yellowpages) Listing Daniel Gigiano Superpages Listing in terms that were easy to understand was extremely helpful. Dan never overpromised the outcome and was very factual in our conversations which were appreciated. The process of working through our court systems is slow and tedious but I'm very happy to say that Dan kept in constant communication each and every step of the journey. If you are looking for a lawyer who really cares and is willing to listen to your concerns...dan is your man. Thanks Dan!
9 5.0 stars Posted by Michael D. Warner Jr. I've known Dan for a few years now and he is an excellent Lawyer and good friend... He took care of my divorce for me and I have to say the as a male, we usually get the worse end of that deal but I came out WAY better off than I imagined! Thanks Dan! 5.0 stars Posted by Anonymous 12/16/13 Dan and I spoke on the phone several times and he was very helpful and knowledgeable. He took the time and asked me many questions and called me back promptly with the answers I needed. I would definitely call Dan again if needed. Posted by GinaA 2/25/2010 Dan is the nicest attorney I have met. He is very down to earth and understands what I need. Many attorneys are intimidating but he made me feel at ease and was very easy to work with. I recommend using him for your legal needs. Posted by Anonymous 11/21/2014 Dan is extremely knowledgeable in his field and is always looking out for the best interests of his clients. His accessibility and responsiveness are refreshing in the business world of today. Posted by cm_didonato 5/31/2015 If you need an experienced attorney who knows the law. I would highly recommend Daniel Gigiano. Daniel looks out for his client s best interest. He'll even go as far as working on your case till the wee hours of the night. I've been working with Daniel for the last year and half and he's gone above and beyond what any attorney would have done. Daniel has represented me to the highest ability that anyone could have ever done as a lawyer and now a friend!
10 Posted by Anonymous 8/08/2014 Attorney Gigiano did an excellent job with my case. He explained everything that would happen in court and he kept me informed throughout the whole process. I will definitely use his services again should the need arise for future legal help. Posted by Jimm Fowler 7/2016 Dan is a personable lawyer who is easy to get along with, yet is aggressive in the courtroom to help you win your case. Very knowledgeable. Highly recommended. A+++++