Pursuit of justice continues after sentencing


Spring is in the air! It’s so nice to see flowers popping up and to hear birds cheerfully chirping. I don’t know about you, but to me it feels as though it’s been a long time coming. Much like today’s article, it’s as though things are finally coming full circle.

It was last October when we first started to discuss the criminal justice process. Through the months, we’ve covered everything from investigation to grand jury indictment, preparing for court, appearing before a judge, discovery, plea negotiations and trial. That’s carried us all the way through March. And here we are, April, coming full circle to the last article highlighting the different parts of the criminal justice process. Our topic today is what happens after trial.

When someone is convicted of a crime, they are sentenced by the court. The sentencing hearing usually takes place a few weeks after trial.

As you might imagine, the court takes a lot into consideration, but sentencing generally comes down to community control (aka probation) or prison. When determining a sentence, there are specific principles and factors the court must consider and weigh. These include things like a defendant’s criminal history and the specific facts and circumstances of the crime committed. The prosecution and defense are both given the opportunity to tell the court what they believe the sentence should be. Victims may speak at the sentencing hearing as well, offering additional input for the court to consider. This is called a victim impact statement. Victim impact statements may also be submitted in writing if a victim does not wish to speak in open court.

Another tool the court uses is a presentence report. Done through Adult Court Services, this document includes background information of the defendant such as employment history, family history, and other personal information that might be beneficial when considering an appropriate sentence. The defendant is also given an opportunity to tell the court what he or she believes the sentence should be.

One thing that may surprise you is that the court’s power is not absolute. What do I mean by this? Well, I mean there are limits to what a court can sentence. For example, you may not know that a first-time offender who commits a low-level drug offense cannot be sent to prison. It simply cannot happen because the law won’t allow it.

So there you have it, the court follows the law to dole out an appropriate sentence. All done, right? Wrong! You might also be surprised to learn that our pursuit of justice doesn’t stop after sentencing. That’s right. We’re also responsible for responding to any appeals that a convicted person may file.

Appeals are generally filed by an attorney on behalf of the convicted person. The convicted person, who was referred to as the defendant before the trial, becomes known as the “appellant” rather than the defendant. The prosecution, or State of Ohio, becomes known as the appellee. How many jury trial convictions are appealed? The answer — 99.9%.

Someone once asked me why a rapist was appealing his conviction. I was kind of shocked by the question honestly, as appeals are pretty routine in the legal world. The question did highlight for me though, that the appellate process is largely either unknown or misunderstood. At any rate, I remember answering that the rapist is appealing because he doesn’t think he should have been convicted. I didn’t have a better answer. It’s important to note that just because a convicted person appeals does not mean there was an error in the trial or conviction. Filing an appeal is simply a right that criminal defendants have, and can choose to exercise.

While it’s not my job to understand why a felon would file an appeal, it is my job to argue against it. Appeals are 99% the result of written work done by attorneys. Once an appeal is filed, the prosecution has the opportunity to respond. We argue, in writing, why the decision of the jury or judge should be affirmed (upheld). This document is called a brief. Once submitted, the appellant can file a reply brief. Once briefs have been filed by both sides, the Court of Appeals reviews them as well as evidence submitted at trial, and transcripts of the trial. In pre-Covid times, attorneys for both sides would have the opportunity to appear before a three-judge panel and argue their respective positions. Obviously, that has not occurred during the pandemic, but attorneys were permitted to make oral arguments over the phone.

Delaware County appeals are heard by an appellate court called the Fifth District Court of Appeals. Warning – quick education on appellate courts ahead. The State of Ohio has many appellate courts. Ohio counties are divided into various districts, and appeals go to the appellate court in their district. Franklin County appeals, for example, go to the Tenth District Court of Appeals. Hancock County appeals go to the Third District Court of Appeals. Each appellate district has separately elected judges just like local courts. Delaware County’s appellate court has six appellate judges. One of those judges, Patricia Delaney, is from Delaware County! Our court of appeals hears cases from 15 other counties, so you can imagine the volume of work these judges handle each year!

Okay, back to the appeal process. … A three-judge panel, decided at random, is assigned to each appeal. After the evidence is submitted, the appellate judges come to an opinion. In simplest terms, they decide whether or not a conviction should be affirmed or overturned. One of the judges writes a legal opinion explaining the decision. If another judge disagrees, he or she can write what is called a dissenting opinion, explaining the reason for the dissent. If one of the judges agrees to the outcome, but maybe for a different reason, they can write what is called a concurring opinion. Quite the process, I know!

In our office, generally if you were the trial attorney, you will also handle the appeal if there is one. Appeals can take anywhere from six to about 18 months. The appellate process doesn’t start the criminal justice process over. It simply takes a wide view of what occurred, and applies legal standards to ensure the trial process was fair and just. Well, maybe I shouldn’t say “simply,” but I think you get the meaning.

Now, if I’m being honest, I don’t like writing appeals! I love being in the courtroom at the trial level, working with victims, witnesses, and trying to persuade juries. I just haven’t found that same passion for writing an appellate brief, but obviously, it comes with the territory. As a career prosecutor I’ve learned to navigate that territory, and what I’ve found is that being ethical, fair, and just during trial will always serve the state of Ohio (prosecution) well during the appeals process.

Thank you for walking with me along the pathway to justice. With all its twists and turns, it can be a little difficult to navigate, but I think you’ll agree, it’s well worth it. Until next time, I’d like to wish each of you a safe and happy Easter!


By Melissa A. Schiffel

Contributing columnist

Melissa A. Schiffel is Delaware County prosecutor.

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