Receiving a criminal charge is a life-changing event that can throw your daily routine into chaos. No person should face the full strength of the government alone – we at The Law Office of Brian Jones will be at your side through every step of this process, beginning with the filing of the indictment or complaint.
Addressing clients’ fears and providing realistic expectations have been the cornerstones of our criminal defense practice at The Law Office of Brian Jones. Understanding that knowledge can help people cope with difficult circumstances and better prepare for the future because we aim to keep our clients informed through all stages of their defense against criminal charges.
It is critically important to remember that you should not discuss any aspects of the case with others, and under no circumstances should you post anything related to your case on any social media website. The information you post becomes public, and can be used by the Prosecution in your case.
Understanding the Court of Common Pleas:
The Common Pleas Courts hear a great variety of cases. The Court is where cases involving any felony allegation are litigated.
Step One: The Filing Of An Indictment Or Complaint.
- The Ohio Constitution guarantees no person will stand trial on a felony charge unless that charge issues from a Grand Jury.
- The Grand Jury is selected from the same pool of county-resident licensed drivers or registered voters that a Petit Jury is selected from.
- A Petit Jury is a jury of 12 county residents that will sit during the trial.
- A complaint is an official charging document that is typically filed by a police officer or detective. A complaint informs the accused that a charge has been made and official proceedings have begun in the Court. A complaint is filed in the municipal courthouse, which is the courthouse dedicated to hearing misdemeanor, traffic, and low-dollar amount civil cases. A preliminary hearing will be held to determine whether there is probable cause to proceed with the complaint, and whether there is probable cause to hold the accused in custody or under bond.
- When a felony complaint is issued, a number of rights are triggered. First, the accused has the right to an Initial Appearance before a municipal court judge or magistrate without “unreasonable delay”. While there is no law, rule or case that sets a specific number of hours or days, most courts schedule initial appearances within 72 hours. In cases of felony allegations, the Initial Appearance consists of informing the accused of the allegations and setting bond. If the accused is unable to make bond, the accused has the right to a Preliminary Hearing.
- A preliminary hearing is a valuable tool for trial preparation and should not be waived unless there is a strategic reason to do so.
- If the judge finds there is probable cause to hold the accused and proceed with charges, a bond may be set and the case will be “bound over” to the Court of Common Pleas (or County Court, or Felony Court.)
- A complaint that has been bound over will be presented to the Grand Jury. However, a complaint does not have to be filed for a case to be presented to the Grand Jury. The County prosecutor can choose to start a case by presenting it to the Grand Jury first, bypassing municipal court and a complaint altogether. In that situation, the accused’s case starts when he or she receives a copy of the indictment.
- An indictment is a charge that has issued from the Grand Jury – meaning, evidence and testimony was presented to the Grand Jury by the prosecutor, and the Grand Jury voted on the charges it felt were warranted.
- An Indictment may be issued by summons or warrant. If it is issued by summons, a deputy sheriff must give the accused the indictment. If the accused refuses to sign for or otherwise accept the indictment, the sheriff will return the indictment undeliverable and the indictment will be reissued by warrant. If the indictment is issued by warrant, the accused is arrested and held in jail until arraignment.
- The issuance of the indictment is the start of proceedings in the County Court of Common Pleas.
Step Two: Arraignment
- Arraignment is your first formal appearance before the Court, and it is your opportunity to enter a plea – almost always, Not Guilty.
- You will appear in before the Court with your Attorney at your side, or if you have been held, your attorney will meet you in the Courtroom. If you are not yet represented, then this hearing is your opportunity to request court-appointed counsel.
- During your arraignment, you will be informed of the charges against you by the Court and afforded an opportunity to ask questions.
- Sometimes, your arraignment may be postponed or bargained for in exchange for a reduced charge or admission to a program such as Intervention In Lieu of Conviction. In that case, your attorney and the prosecutor will bargain and with your approval, a date for arraignment will be set, and you will enter into a negotiated plea. A negotiated plea usually involves an exchange for reduced charges or admission to Diversion for a plea of Guilty to a charge or charges. You should discuss your willingness to participate in programs in exchange for giving up Constitutionally protected rights early.
- Arraignment is the “opening bell” for Felony Court proceedings – it is the start of the 35-day time limit for pretrial motions and begins the process of discovery exchange.
Step Three: Pretrial Litigation
- Pretrial Litigation comprises the bargaining and motion filing that occurs prior to jury trial.
- Pretrial hearings or Status Conferences are formal court appointments during which the bargaining and discussion between the prosecution, defense, and the Court occurs. You will be notified by our office when these dates are set. You will be present for the pretrial hearing, and you should dress and behave as if you are in front of the Judge.
- During this phase, your attorney will make a discovery demand, which is a formal request for the evidence and testimony in the State’s possession that it believes supports the charges. Both the prosecution and the defense have a mutual obligation to provide one another with discovery. Ohio is an open discovery state, so any evidence that will be presented at trial by the Prosecution must also be released to an accused’s attorney. This process usually takes around three to four weeks, but in some cases continues until the days leading up to trial.
- After reviewing the discovery, a decision will be made as to whether to pursue a motion to suppress evidence or statements. A motion to suppress statements or evidence asks the Court to examine the police procedure used to collect evidence and statements to ensure that the tactics used to comply with the constitutional requirements under the State and Federal Constitutions.
- If a motion to suppress evidence or statements is filed, the Court may hear evidence about the motion. You may or may not testify at the hearing, but you will be present. A decision about whether you will testify will be made in consultation with your attorney and in consideration of how the hearing progresses.
- The pretrial litigation phase may last from thirty days to six months or even longer, depending on attorney scheduling, motion filing, and the Court’s docket.
Step Four: Plea Bargain or Trial
- At the close of pretrial litigation, there may be a final pretrial hearing or status conference at which the prosecution may make a final offer to resolve the case.
- Some Courts have a policy of not accepting plea bargains after a particular date, typically, at ten days before the start of a scheduled jury trial, unless the Court has ordered otherwise through a scheduling entry.
- In the interest of justice, most Courts will accept a plea bargain up to the point that a jury is empaneled, or to the point when the jury swears its oath, which is the moment double jeopardy attaches, and the prosecution must proceed or forfeit the case.
- A plea bargain is a negotiated plea that typically involves the prosecution offering a reduced charge(s) and/or a recommendation for a particular sentence in exchange for an accused’s plea of guilty or Alford plea.
- An Alford plea occurs when an accused enters an acknowledgment of the weight of the State’s evidence against him or her but maintains his or her innocence. In that regard, it is similar to a no contest plea but with an admission to the truth of the alleged facts.
- If a plea bargain is not reached, and the prosecutor’s case is not fatally wounded by the suppression of evidence or statements, then the case will proceed to jury trial.
- A jury trial in the felony context is a presentation two competing versions of the facts of the case. The prosecution will offer its version, and the defense will offer its version. The jury is told the applicable law and reaches a decision. The burden of proof and production is on the prosecution, meaning, the prosecution must prove each and every element of the indicted offenses at trial.
- As your case progresses, your attorney will discuss with you the evidence each side will likely present to the jury (or judge), the law as it relates to the allegations against you and your attorney’s experience with how jurors (or judges) react to different presentations and pieces of evidence. Trials are fluid events, so it is impossible to predict every situation that will arise and how a jury (or judge) will react to unforeseen events. We will take every precaution to ensure a predictable trial, but will always advise you of the possibility of unforeseen events.
- A felony jury trial will require that the twelve-person jury reach a unanimous verdict.
- The typical procedure for a jury trial is as follows:
- Oral Argument on Pretrial Motions: the attorneys will argue “threshold” motions that are hyper-specific to the facts of your case – for example, whether the prosecution will be able to bring up any of your prior criminal charges (felony or misdemeanor) or whether a particular witness will qualify to testify as an expert.
- Voir Dire: the process of selecting the members of the Petit Jury from the Jury Venir, or the full panel of county residents from which members of the Petit Jury and the Grand Jury are selected. Once the jury has been selected, the members will take the Oath, and jeopardy will attach, meaning absent very specific events, you will not be able to be charged with crimes related to the factual event at issue in the future.
- Opening Statements: Opening statements are not evidence, but are instead roadmaps of how each side intends to present its case, and what each side expects the evidence will show.
- The State’s Case-in-Chief: The prosecution will call witnesses and present evidence through those witnesses. The defense will cross-examine those witnesses and likewise present evidence through that cross-examination.
- The State Rests and Motion for Acquittal: The prosecution’s presentation can take anywhere from several hours to several days. Once the prosecution has presented all the evidence and testimony it intends to present, the prosecution will “rest.” The Defense will then move to dismiss the charges, and an oral argument will be held.
- The Defense Case-in-Chief: If the case is not dismissed, then the Defense may present its evidence and testimony, if it is warranted. The Defense may also rely on its presentation through cross-examination. The accused (or the defendant) never has to testify on his or her behalf unless he or she wants to and believes it wise to do so after consulting with Counsel. Once the Defense has presented its case, or announced its decision to rest on cross-examination, the presentation of evidence and testimony at trial is closed. The admission of particular exhibits will be argued outside of the presence of the jury.
- Closing Arguments: Closing arguments are not evidence, but instead, are oral arguments advocating for each competing interpretation of the application of the facts of the case to the relevant law.
- Jury Instructions: Once the arguments are complete, the Court will instruct the jury on the law, and provide it with instructions on how to conduct its deliberations.
- Deliberations and Verdict:: The jury will retire to deliberate the charges in secret. Deliberations may take anywhere from hours to days. You and your attorney must remain at the Courthouse while deliberations occur because you must be present to hear if the jury has a question and what response will be provided. The jury will inform the Court when it has reached a verdict. You will be present for the reading of the verdict.
- Possible Jury Verdicts include: Guilty, Not Guilty or Unable to reach a decision on one or all charges.
Step Five: Disposition Or Dismissal
- If you are convicted, by plea or by trial, a date will be set for disposition, or sentencing.
- If you are acquitted, or found not guilty, the charges against you will be dismissed.
- The judge determines the length and type of punishment at a disposition hearing. At your disposition hearing, arguments in favor of a particular sentenced will be presented on you behalf – either orally or by way of a written sentencing memorandum; also, letters of support from your family and friends or their live testimony may be presented. Witnesses are generally allowed to speak, requesting either a lighter or heavier sentence. The accused may make a statement to the court. In some situations, the court may ask for a report from the probation department prior to sentencing the accused.
- Depending on your sentence, you may be immediately taken into custody for jail or prison; or you may receive a report date.
- You will be responsible for court costs and any fines. Failure to pay by the given date will result in the issuing of a warrant for your arrest and a warrant block on your license.
- Your criminal case officially ends when the time-stamped sentencing journal entry is filed with the Court. The time-stamped journal entry is the final appealable order required to file a notice of appeal.
Step Six: Direct Appeal and Post-Conviction Remedies.
- If you are convicted, you have 30 days from the date of the final appealable order to file a notice of appeal with the Trial Court and the Court of Appeals.
- Counsel may be retained or appointed to pursue an appeal.
- There are strict deadlines that must be followed during the appellate process – speak with your trial attorney about what your options are, or request a copy of our The Appellate Process in 7 Steps to read more about direct appeals.
- Direct appeals cover issues that occur “on the record,” or in the pleadings and motions that were filed and the courtroom proceedings that occurred in the case – for example, the content of a motion to suppress and the testimony given during the suppression hearing.
- Other Post-Conviction Options: Some post-conviction tactics to get relief for the convicted include:
- Motion for Acquittal
- Motion For New Trial
- Motion For New Sentencing
- A Post-Conviction Petition for Relief addresses issues that occurred “off the record” or outside of the written documents and courtroom proceedings that occurred in the case – for example, an failure to investigate a potential alibi witness.
- To determine which avenue is appropriate, meet with your appellate attorney as soon as possible after the conclusion of your criminal case – the deadlines for post-conviction petitions and appeals are very strict.
Step Seven: Probation, Post-Release Control, and Your Rights Upon Violation.
- If you are sentenced to probation, released on probation, or released subject to post-release control, you must remember that you are not done serving time yet. You must successfully complete your probation term to be completely rid of your criminal case.
- While you are released from custody, the remainder of your time or your suspended sentence hangs over your head and can be dropped on you if you are violated.
- You will be violated if you break any one or multiple terms of your probation. You must make every effort to comply with every term, and you should document your efforts in case you are violated.
- If you are violated, you may be taken into custody and held until you receive a statement of violations. At that time, bond may be set and you may be released.
- You may be held on a potential violation, and not actually violated. Be sure to keep records of the date and time and to document any harm that comes from your removal from your life or your work.
- If you are violated, you have a right to a hearing on those alleged violations. You have the right to be represented by an attorney at that hearing. However, the standard for finding a violation is lower than that for a conviction – that is why you should document, document document!
- If after a hearing, a violation is found, you may be sentenced on the probation violation immediately.
- Remember that if your violation occurred when you sustained a criminal charge, you will also face separate penalties for that charge.
- Note that anything you say to your probation officer can and will be used against you in a violation hearing, and consult with your attorney as soon as you are aware that there may be an issue with your compliance with your probation terms.
- Judicial Release or Early Release – If you received a prison term, you may be able to apply for judicial or early release. If released, you will be subject to the same supervision and probation terms as those who are under community control or post-release control supervision.
Step Nine: Sealing of Records and Expungement.
- If you received a conviction for a traffic violation or a minor misdemeanor, your record cannot be sealed because Ohio law does not consider these convictions to be “criminal.”
- If you received a conviction for a felony or misdemeanor charge and you have no prior criminal record, you may be eligible to apply for a sealing of the records of your conviction. If you have some prior history, you may still be eligible. If you have substantial criminal history, an expungement may not be available, but there may be other options available to you – schedule a consultation today!
- If you were arrested and charges were not brought, or if you were arrested, charged, and acquitted, you may be eligible to apply for a sealing the records of arrest. If you have no prior criminal record, you may be eligible to apply for a sealing of the records of your arrest. If you have some prior history, you may still be eligible. If you have substantial criminal history, an expungement may not be available, but there may be other options available to you – schedule a consultation today!
It is important to remember that during this process you have rights you must exercise and decisions only you can make. While your attorney will advise you on the facts, law and anticipated outcomes, the decisions must ultimately come from you. These rights include:
- Accept or Reject any proposed offer of dismissal, amendment/reduction or plea bargain
- To take the stand at trial and testify on your own behalf
- To allow the case to go to trial, or accept a plea offer.
I hope this information helps calm your fears about the process of the criminal justice system for felony cases. I know from decades of experience how difficult pending charges make many aspects of your life. We are here to help and are happy to answer any questions you have about the process.