Sunday, November 6, 2016

Ohio Criminal Sentencing Laws

Ohio Criminal Sentencing Laws

Ohio criminal sentencing laws seem straightforward at first, but the details get quite complicated.  This article is designed to set forth the Ohio sentencing structure, along with some of the problems and developments in this area.

I will start off with a straightforward chart of Ohio criminal sentencing guidelines.  This chart does not include specialized offenses, such as murder, rape and bulk drug offenses, which have more specialized schemes.

The Ohio sentencing guidelines are as follows:

Misdemeanors                         Jail Time                                              Maximum Fine
Minor (MM)
M4 (Fourth Degree)
Up to 30 days
Up to 60 days
Up to 90 days
Up to 180 days

Felonies                                   Prison Time                                         Maximum Fine
F5 (Fifth Degree)
6 to 12 months
6 to 18 months
12 to 60 months
9 to 36 months
2 to 8 years
3 to 11 years

*          For specified higher level offenses
**        For specified lower level offenses (Ohio legislature created this lower class of offenses to reduce prison sentences for certain offenses)

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 decision entered recently this year, this Ohio Supreme Court resolved conflicting opinion 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 6 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 3 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 3 misdemeanors can, but are not required to, run consecutively with a felony conviction. 

Ohio Sentencing Hearings 

Ohio 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 take to address problems (drug treatment and alcohol treatment); and being a responsible parent to minor children.  The bright side of negative things include 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. 

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 off 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. 

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. 

Most of the time, the court properly applies jail time served at sentencing.  There is often a pre-sentence 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 has a wristband on 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 Sentence?

I often hear my clients tell me that someone else got a certain sentence for a similar offense and 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.   

About The Author – Daniel Gigiano, Esq.

Attorney Daniel Gigiano is located in downtown Wadsworth, Medina County, Ohio.  Daniel Gigiano, Esq. regularly represents individuals in need of criminal defense in the state courts located in Medina County, Wayne County and Summit County.  He has tried dozens of criminal jury trials, winning positive results for his clients.    

Saturday, November 5, 2016

Daniel Gigiano Reviews What Happened To Ernesto Miranda

When learning about or researching many famous cases, I often wondered what actually happened to the person involved.  The legal battle and back story rarely ends with the famous case.  In my own practice, winning in the appellate court can either be a decisive victory or simply one step toward achieving victory.  I figured other people may also be curious.  This is the first part in a series of looks into the back story and aftermath of these individuals made famous by their famous case.     

In 1963, Ernesto Miranda was arrested for kidnapping and rape by the Phoenix Police Department. After two hours of interrogation, he confessed.  He was not told he had the right to counsel, nor was he told he had the right to remain silent.  He was convicted and sentenced to 20 to 30 years in prison.  The Arizona Supreme Court upheld his conviction and the admission of his confession.  An appeal to the United States Supreme Court resulted in the famous decision in  Miranda v. Arizona, 384 U.S. 436 (1966).  The court threw out his confession and conviction because he was not warned of his right to remain silent and his right to an attorney.  This led to the famous Miranda warnings, which are:

You have the right to remain silent. Anything you say can and will be used against you in a court of law.  You have the right to an attorney.  If you cannot afford an attorney, one will be appointed to you.

Failure to comply with this requirement can result in suppression of evidence after the filing of a motion to suppress. 

Miranda’s case was sent back to the trial court, where he was retried and convicted without the use of his illegally obtained confession.  He was again sentenced to serve 20-30 years in 1967.  He was paroled in 1972.  After his release, he made a living autographing police officer’s Miranda cards, which the police used to read the Miranda warnings to suspects.  Miranda was stabbed to death in a bar in 1976.  Ironically, the suspect invoked his right to remain silent and did not confess.  He was released for lack of evidence against him. 

Authored by Attorney Daniel Gigiano.

Attorney Daniel Gigiano practices in Wadsworth, Ohio, where he has a general practice as your Medina County Lawyer in Wadsworth, Wayne County Lawyer, Summit County Lawyer, as well as in surrounding counties.  Attorney Gigiano spends a great deal of his practice in the area of criminal defense and has tried numerous jury trials to a verdict, including in Medina Common Pleas, Summit Common Pleas, Wadsworth Municipal Court, and Wayne County Municipal Court.  He is located at 102 Main St., Ste. 200, Wadsworth, Ohio 44281, and can be reached at 330-336-3330.

Daniel Gigiano Reviews Ohio Bankruptcy And Foreclosure

Attorney Daniel Gigiano reviews Ohio bankruptcy and Ohio foreclosure law.  In this review of the law, Attorney Daniel Gigiano looks at historical, as well as, recent developments and how these apply to real situations.

Homeowners Get Greater Protection In Bankruptcy.

Ohio homestead exemption protects homes in bankruptcyIn Ohio, you can now keep even more of your assets when you file for bankruptcy.  Starting April 1, 2013, each person can keep up to $132,900 of equity in their home, which adds up to $265,800 for a married couple filing a joint bankruptcy. This is over five times more than people were allowed to keep before.  This exemption was increased to $136,925 per person in 2016. 

However, this law had many opponents who argued it only applied to debt that incurred after March of 2013, which meant the old protection of $21,625 per person would apply.  First, a judge in Toledo stated that we should use the exemption of $132,900.  Later, the judge of the Canton bankruptcy court also ruled that this exemption should apply without any limitations.  Currently, it appears that this law is here to stay.  Even if the opponents had won the day at the time, eventually their argument would have become moot, as very few bankruptcies would consist of debt entirely incurred prior to 2013. 

Ohio Bankruptcy Exemptions

Ohio bankruptcy exemptionsPeople considering bankruptcy are usually concerned with whether they can still keep their houses, cars, furniture, clothing and the tools they use to make a living.  The good news is that Ohio has generous exemptions protecting those and other assets.  Exemptions work by creating a value that one gets to keep before a creditor or bankruptcy trustee could take anything.  This is why a bank account garnishment does not include the first $475 in the account; that is the cash on hand exemption that the owner of the account gets to keep.  Anything in the account above that amount and not subject to any other exemption can be garnished and sent to the court for disbursement to the creditor. 

Bankruptcy works the same way, except there is no garnishment. The bankruptcy trustee determines if there are non-exempt assets and asks the bankruptcy filer to turn over those assets.  If the bankruptcy filer refuses, the trustee files a motion with the court for turnover of the assets.  The bankruptcy judge makes a decision as whether the trustee could take the items from the bankruptcy filer.

The most common Ohio bankruptcy exemptions for 2016 are as follows:

Homestead ($136,925); Vehicle ($3,775); Cash on Hand ($475); Household Goods and Clothing (   $12,625); Jewelry ($1,600); Tools of trade ($2,400); IRA/Pension/401(k) (All of it (100%)); Burial Plot (All of it (100%)); Medically necessary health aids (All of it (100%)); Wildcard/any other property ($1,250)

Bankruptcy Is Constitutional

Bankruptcy is specifically mentioned in the United States Constitution.  The United States Constitution states:  “[The Congress shall have Power] to establish . . . uniform laws on the subject of Bankruptcies throughout the United States.”  This means bankruptcy is constitutional. 

The Framers wanted to ensure that there would be a uniform system of bankruptcy so that one state would not put someone in debtor’s prison for a debt that was discharged in another state.  James Madison, in Federalist Paper No. 42, wrote about how important uniform bankruptcy laws would be for the regulation of commerce in the United States.  In this article, the power to pass and regulate bankruptcy was mentioned in the same paragraph as the power to issue currency and regulate the use of foreign currency.    

The United States Congress passed the first bankruptcy law in 1800.  However, that law only lasted until 1803.  The next bankruptcy law was not passed until 1841, which also had a short life, lasting only until 1843.  After the civil war, Congress passed a bankruptcy act with a little more longevity, lasting from 1867 to 1878.  Congress finally passed a permanent bankruptcy law in 1898, which remained in place for eighty years.  In 1978, the current structure of bankruptcy laws were enacted.  In 1984, 1986, 1994, and 2005, the bankruptcy act was revised, but the basic structure remained intact.  The 2005 act added the means test and limits on restructuring vehicle loans.      

Debt Collectors

The Fair Debt Collection Practices Act (FDCPA) prevents debt collectors from harassing you and calling you outside normal business hours.  While the law gives you some rights, it does not give you the right to avoid your debt.  The FDCPA covers only personal and household debts, but not business debts.  Typical personal debts are vehicle loans and credit card debts. 

Debt collectors, otherwise known as bill collectors or collection agencies, cannot harass or abuse you, nor can they engage in deceptive or unfair practices in their attempt to collect the debt.  If a bill collector calls you before 8 a.m. or after 9 p.m., you can write a letter telling the bill collector to stop.  It is a good idea to send the letter by certified mail and to keep a copy of the letter.  Once the debt collector receives your letter, the debt collector must stop calling you outside the hours of 8 a.m. and 9 p.m., but can continue to call you between those hours. 

A debt collector can call you at work.  If your employer does not allow such calls, you can tell the debt collector that you are not allowed to receive debt collection calls at work.  While you can do so by phone, it is a good idea to follow up by certified letter.  Upon receiving this instruction, the debt collector must stop calling you at work.

Can a debt collector lie?  No.  They cannot pretend to be someone else.  They cannot threaten to put you in jail.  Such tactics are violations of the FDCPA.  Fighting against a violation of the FDCPA starts with your actions.  You can contact the Federal Trade Commission or the Ohio Attorney General’s Office.  You may also hire an attorney to handle the debt collector harassment case.  If you win, you have the right to make the debt collector pay your attorney fees.

Here is some useful contact information for organizations that can help you when you are victim of a violation of the FDCPA:



Can I Go To Jail For Defaulting On A Payday Loan?

Some payday lenders threaten to call the police if the check bounces, prompting one to ask, “can I go to jail for defaulting on a payday loan?”

A payday loan is usually a small loan with a postdated check as collateral for the loan.  The due date is usually the date of the person’s next paycheck.  Payday loans carry a high interest rate, often more than 300%.  If one borrows $900 on March 1 and has to pay $990 back on March 15, it may not seem like much.  However, ten percent over two weeks is equivalent to 260% over a year.  If someone repeatedly took out this same loan for a full year, that person would pay 260% interest on $900, which amounts to paying the $900 back, plus $2,340 in interest. 

What happens when the lender tries to cash the postdated check?  Because the check was postdated, the lender would not expect you to have funds to cover the check on the date you gave them the check.  Having insufficient funds on the due date does not amount to a criminal offense unless you gave the lender a check knowing you would have no funds to cover it on the due date.  Because you would be receiving your paycheck at that time, you would certainly expect to have sufficient funds to cover the check on the due date.  Accordingly, any threat by the lender to call the police to have you arrested for passing a bad check is likely to be an empty threat. 

Can bankruptcy discharge this debt?  Of course it can.  Bankruptcy cannot eliminate one’s criminal liability if the funds were stolen or procured by fraud.  In such instances, one may not even receive a discharge for such debts.  However, payday loans, as discussed above, rarely involve any potential criminal liability, which means that the loan can usually be easily discharged in bankruptcy. 

What is the Foreclosure Process?

What is the foreclosure process?  Before a foreclosure case is filed, the mortgage company sends a foreclosure referral package to their attorney.  A title examination is done to identify all individuals and entities that have an interest in the real estate, which can even include spouse’s dower rights.  Once that is done, a complaint is filed, with instructions to serve the individuals and entities with an interest in the real estate.  Service usually occurs by certified mail or by a sheriff’s deputy.  Once the homeowner receives the complaint, he or she has twenty-eight days to formally respond to the complaint.  Once the complaint is received, it is important to consult with an attorney to determine if there are any legal defenses that need to raised, as well as any motions that need to be filed prior to answering the complaint.  Some claims must be raised before filing a formal answer. 

A foreclosure can take four to six months to the sale and confirmation.  Failure to defend the foreclosure complaint results in the lender’s attorney filing a motion to default judgment, speeding up the process.  Defending the foreclosure usually result in the court referring the case to a number of status or mediation hearings, where forbearance and modification agreement options are considered.  Such programs include the “Home Affordable Modification Program” (HAMP). 

A foreclosure judgment gives the lender the ability to sell the real estate and to collect on the money judgment against the homeowner.  Once a sale is approved, the sheriff appraises the real estate, schedules a sale, and advertises the sale.  The sheriff’s sale is a public auction where any adult can submit a bid.  The property must sell for at least two-thirds of the appraised value.  The sheriff reports the results of the sale to the court.  The lender then requests the court to confirm the sale, distribute the proceeds and order a sheriff’s deed.  If the homeowner has not yet moved out, the buyer can start the eviction process.  Most of the time, the lender buys the real estate.  Any mortgage balance not covered by the sale is known as a deficiency balance. 

Do You Get What You Pay For When You Hire A Cheap Bankruptcy Attorney?

Do you get what you pay for when you hire a cheap bankruptcy attorney?  My office receives a lot of phone calls asking what I charge for a chapter seven bankruptcy.  Some of these prospective clients are looking for a cheap bankruptcy attorney.  Some are just trying to get an idea of the range of bankruptcy attorney fees.  We happily give them our fee and tell them what we do for that fee.  However, it is really difficult to really show them all that we do for that fee.  While we have a competitive fee, we are not the lowest fee.  We do not want to be the lowest fee because of the loss of professionalism and service that would likely occur if we were to charge such a low fee. 

Attorney Daniel Gigiano provides professional bankruptcy service.  The client meets with Attorney Daniel Gigiano at the initial consultation.  Later, Attorney Daniel Gigiano reviews the client’s completed questionnaire and documents in a personal appointment with the client.  This eliminates phone tag and delays.  The Medina County bankruptcy attorney shows the clients the documents and asks questions.  Because the clients and the attorney are reviewing the documents together, the clients do not have to guess what the attorney is talking about.  They are looking at the documents and are actively engaged in the process.  This process leads to a better bankruptcy petition, with thorough and accurate information.  Even after this, the bankruptcy attorney reviews the petition with the clients.  This is not simply a “sign here” meeting.  This bankruptcy attorney actually reviews the petition with the clients, going through the details.  This sometimes results in corrections, but better in the office than to be caught flat-footed sitting on your heels at the hearing.  This process leads to a smoother bankruptcy hearing.  Attorney Daniel Gigiano, at the hearing in Akron or Canton, will review the information one last time with the clients right before the hearing.  After the hearing, clients often ask if “that was it”?  The clients are often amazed at how easy the questions were.  The questions are not easy, but they can be if you have been thoroughly prepped for the hearing. 

Many people may say that they do not need such thorough services or would rather have their bankruptcy attorney miss certain unwanted pieces of information.  Attorney Daniel Gigiano has attended many hearings in Canton, where the hearings are public.  While waiting for his client’s hearing, Attorney Daniel Gigiano will take a few minutes to listen to some of the other hearings.  A good attorney never stops learning.  Those hearings are usually just conducted by the local chapter 7 trustee.  If the petition is red-flagged, a representative from the U.S. trustee comes to ask questions.  In one hearing, this bankruptcy attorney heard the U.S. trustee, who made a special trip to question this debtor, ask about “house expenses” listed on her bankruptcy petition.  Attorney Daniel Gigiano was surprised to this, too, as there is no line item for “house expenses,” nor is that a clear depiction of expenses.  Then, the U.S. trustee did take the trouble to send an additional representative to thoroughly vet this person with questions.  The “house expenses” item turned out to be a variety of expenses, many of which were already listed elsewhere in the petition.  Now, this attorney asked himself, didn’t the bankruptcy attorney read this bankruptcy petition before filing it?  This bankruptcy attorney was certain that this debtor did not leave that hearing asking if “that was it?”.  This particular debtor may have also faced a motion to dismiss her bankruptcy due to the misleading and untruthful nature of her petition.  Perhaps, that person had one of those cheap bankruptcy attorneys and if that person was run through a “mill” where they had minimal interaction with an actual bankruptcy lawyer.  Such a process can miss things, but the U.S. trustee reads those bankruptcy petitions and looks for missing things.

This Barberton bankruptcy attorney also has attended numerous bankruptcy seminars, including the annual seminar in Hartville, Ohio.  The serious bankruptcy attorneys attend this seminar regularly, as it not only provides updates of the changes in the bankruptcy laws, but also provides direct information from the people who will decide the average person’s fate.  The bankruptcy judges, trustees and creditor’s attorneys are at this seminar, presenting information and answering questions.  Sometimes, you cannot get this information from a book or online resources.  You have to be there, listening, especially when one of the judges offers their take on a topic.  The U.S. Trustee’s office often presents at this seminar.  Sometimes, they lecture on the federal criminal sanctions for lying on your bankruptcy petition.  Real people go to real federal penitentiaries for real misstatements on real bankruptcy petitions.  What is quite unfortunate is that, many of these misstatements would have provided little benefit in the bankruptcy petition.  How much better it is to have the truth presented in the most favorable light on solid legal grounds, leading to a “that was it?” hearing.  Are cheap and easy bankruptcy petitions worth the possibility of dismissal of the bankruptcy petition or possible federal criminal charges?  Is a cheap bankruptcy worth a denial of discharge?

Attorney Daniel Gigiano also conducts online searches of local court records and auditor’s records (fiscal office records for the Summit county clients).  A credit report is ordered, saving the client substantial amounts of work in searching for long-lost creditors.  A records search is ordered, thoroughly checking the electronic records of vehicle and real estate ownership.  Some trustees conduct this search.  Shouldn’t you have access to the same information?  Attorney Daniel Gigiano orders your credit counseling class and financial management classes.  Many attorneys will send their
clients to find their own class.  After years of being harassed by phone calls and trying to sort out truth from lies in these calls, do you really want to do more of the same?  Once you file your bankruptcy petition, numerous financial management providers will send you material asking you to take their course, leaving you to guess which ones are legitimate.  Do you really want to do this work?  Ordering the courses streamlines this process and saves you this hassle.        

About The Author – Daniel Gigiano, Esq.

Attorney Daniel Gigiano is located in downtown Wadsworth, Medina County, Ohio.  Daniel Gigiano, Esq. regularly represents individuals in need of bankruptcy and foreclosure defense services in the Akron bankruptcy court, Canton bankruptcy court, and in the state courts located in Medina County, Wayne County and Summit County.