Criminal Defense

Criminal law involves prosecution by the government of a person for an act that has been classified as a crime.  In a criminal case the state, through a prosecutor, initiates a suit.   Persons convicted of a crime may be incarcerated, fined, or both.

Crimes include both felonies (more serious offenses -- like murder or rape) and misdemeanors (less serious offenses -- like petty theft or jaywalking). Felonies are usually crimes punishable by imprisonment of a year or more, while misdemeanors are crimes punishable by less than a year.

All statutes describing criminal behavior can be broken down into their various elements. Most crimes (with the exception of strict-liability crimes) consist of two elements: an act, or "actus reus ," and a mental state, or "mens rea." Prosecutors have to prove each and every element of the crime to yield a conviction. Furthermore, the prosecutor must persuade the jury or judge "beyond a reasonable doubt" of every fact necessary to constitute the crime charged.


Negotiating a Plea Agreement

A defendant's defense attorney has the opportunity to negotiate with the prosecutor. In some cases, the defendant pleads guilty to a less serious charge in exchange for the prosecutor's agreement to drop the more serious charges. The final decision on whether to accept a proposed plea agreement always rests with the defendant.

Depending upon the severity of the crime committed, a defendant who is found guilty may be sentenced to serve some period of probation, to pay a fine, perform community service, make restitution or pay for the monetary losses caused by the crime, or to serve some time in prison.  A veteran criminal defense attorney will know how to work with a prosecutor to negotiate a deal that provides for the least severe punishment possible. If no deal can be made, the attorney can mount an aggressive defense in court.


Common Defenses to a Criminal Charge

Factual Defenses (i.e. The defendant didn’t do it)

This is the most common defense to a criminal charge and can be the most effective.

All people accused of a crime are legally presumed to be innocent until they are convicted, either in a trial or as a result of pleading guilty. This presumption means not only that the state must convince the jury of the defendant's guilt, but also that the defendant need not say or do anything in his own defense. A defendant may simply remain silent, not present any witnesses, and argue that the state failed to prove his or her case. If the state can't convince the jury that the defendant is guilty beyond a reasonable doubt, the defendant goes free.


Capacity Defenses (i.e. The defendant did not have the capacity to understand his or her actions)

To be held responsible for a crime, a person must understand the nature and consequences of his or her unlawful conduct. In certain circumstances, a person who commits a crime lacks the legal capacity to be held responsible for the act. Examples of legal incapacity are infancy, incompetence, and intoxication.

Children are not criminally responsible for their actions until they are old enough to understand the difference between right and wrong and the nature of their actions. Children under the age of seven are conclusively presumed to lack the capacity to commit a crime. Between the ages of seven and fourteen, children are presumed to be incapable of committing a crime. However, this presumption is not conclusive; it can be rebutted by the prosecution through the admission of evidence that the child knew that what she or he was doing was wrong. Anyone over the age of fourteen is presumed to be capable of committing a crime, but this presumption can be rebutted by proof of either mental or physical incapacity.

All states have juvenile courts, which are separate from criminal courts. Juveniles accused of a crime are tried in these courts as delinquent children rather than as criminal defendants. This prevents children from invoking the defense of infancy. In juvenile courts, criminal charges lead to an adjudication rather than prosecution, because the aim of juvenile courts is to rehabilitate rather than punish. In the 1990s, some state legislatures passed laws to make it easier to prosecute juveniles in adult courts, especially in cases involving violent crime.

Insane persons cannot, in a legal sense, form the intent necessary to commit a crime. They are not, therefore, criminally responsible for their actions. Courts have applied a variety of legal tests to determine the mental state of a criminal defendant who claims he or she was insane at the time of the alleged crime.


Exculpatory Defenses (i.e. there is some mitigating circumstance that frees the defendant from guilt)

Exculpatory defenses are factors that excuse a competent person from liability for a criminal act.

Duress is an exculpatory defense. One who commits a crime as a result of the pressure of an unlawful threat of harm from another person is under duress and may be excused from criminal liability. At trial, whether the defendant was under duress is a question of fact for the judge or jury.

Entrapment is another exculpatory defense to criminal charges. Entrapment exists if a law enforcement officer induces a person to commit a crime for the purpose of instituting a criminal prosecution against the person. It is not available if law enforcement merely provides material for the crime.

Justification defenses include necessity, self-defense, defense of others, and defense of property. If a person acts to protect the life or health of another in a reasonable manner and with no other reasonable choice, that person may invoke the defense of necessity. According to the Model Penal Code, self-defense and defense of others are permissible when it reasonably appears necessary that force is required to defend against an aggressor's imminent use of unlawful force. Nondeadly force may be used to retain property, and deadly force may be used only to prevent serious bodily harm.


Criminal Sentences in Ohio

I. Felonies - (Committed after 7-1-96)

1. You should first look at the statute for the crime charged, for example, theft, arson, etc. To search for this statute, look at: Anderson's Ohio Revised Code. This statute indicates the degree of the felony. (first, second, third, fourth or fifth degree felony). The possible penalties vary with the degree of offense.
2. Next, look at the sentencing ranges set out in R.C. 2929.14. R.C. 2929.18 sets out maximum fines for felonies.
3. Finally, you can examine several statutes which provide the judge with guidance on what sentence to select within the sentencing range. These statutes include: R.C. 2929.11, the court shall be guided by purposes of felony sentencing; R.C. 2929.12, the court shall consider seriousness and recidivism factors; R.C. 2929.13, guidance by degree of felony, includes factors to consider as to whether a prison term or community control should be imposed for various degrees of offenses. R.C. 2929.14 sets out factors to consider in imposing the minimum or maximum sentence.

• The following table summarizes the sentencing ranges and possible fines for felonies. This table was last updated on 3-12-2002. Check the current versions of R.C. 2929.14 and 2929.18 for any changes.

**See also R.C. 2929.31 Fines to be paid by an organization convicted of a crime.

• Additional Prison Time is imposed for:

1. Possession or Use of Firearm: R.C. 2929.14(D)(1).
2. Repeat Violent Offenders: R.C. 2929.14(D)(2).
3. Certain other offenses(for example, major drug offenses, corrupt activity): R.C. 2929.13(F); 2929.14(D)(3); 2929.14(J).

II. Misdemeanors - (Committed after 7-1-96)

• See the following Revised Code sections - R.C. 2929.21, penalties for misdemeanors; R.C. 2929.22, imposing sentences for misdemeanors.
• The following table summarizes the sentencing ranges and possible fines for misdemeanors. This table was last updated on 11-17-2005. Check the current version of R.C. 2929.24 and 2929.28 for any changes.

·         **See also R.C. 2929.31: Fines to be paid by an organization convicted of a crime.

See Also:

• R.C. 2929.41 - Consecutive or concurrent sentences for multiple offenses.
• R.C. Chapter 2971 - Sentencing of Sexually Violent Predators

Suspension of Driving Privileges

• For some criminal offenses, such as vehicular homicide, R.C. 2903.06, the offender's drivers license may be suspended or revoked. For the rules concerning how long a license can be suspended for a particular offense, consult: (1) The statute for the crime charged, and (2)Chapter 4507 of the revised code, particularly R.C. 4507.16: Suspension by Judge. Please note that effective January 1, 2004, new statutes go into effect concerning the suspension of driving privileges. See 124 Senate Bill 123. The new law adds Chapter 4510 to the Ohio Revised Code. For a chart showing the length of suspension under the old law and the new law see: Sub. S.B. 123 as reported by Senate Judiciary Committee on Criminal Justice, Appendix.

Please contact Brandon Novosad to schedule a free consultation to discuss your case.