Opinion

State v. Bolin

  • 128 Ohio App. 3d 58
  • 713 N.E.2d 1092
Court
Ohio Court of Appeals
Filed
May 26, 1998
Status
Published
Author
Karpinski
On the bench
Blackmon, Karpinski, McMonagle
Cited by
32 cases
Authority
More cited than 44.0%

The opinion

Karpinski, Judge,

concurring.

I concur in the majority opinion but write separately to respond to the dissent. I note that the Supreme Court of Ohio reviewed and did not overrule

Post

when the court made its decision in

Green.

Thus, we must decide at what discrete point the case at bar is to be located on the spectrum created by

Post

and

Green.

In

Post

the court found that R.C. 2945.06 was satisfied because the parties explicitly agreed to allow the state to present a statement of facts in fulfillment of its evidentiary burden. In

Green,

on the other hand, the prosecutor recited the facts and proffered reports and photographs. The Supreme Court found such a recitation inadequate, however, because relying on a prosecutor’s statement

“without the explicit consent of the defense”

was inherently dangerous. As illustration, the court pointed out that the prosecutor’s statement included “material misrepresentations and gross inaccuracies.” In

State v. Shakoor, ante,

which the dissent also cites, there was no statement of facts, nor did the defense agree to the omission. The issue, therefore, turned on what kind of evidence would satisfy R.C. 2945.06.

While there was no statement of facts in the case at bar, the defense explicitly acknowledged that there was a factual basis for the charge. Such an acknowledgment by the defense is more akin to the facts in

Post,

where the defense consented to the omission of witness testimony.

More importantly, in acknowledging a factual basis for the charge, the defense invited and waived any claim of error the court may have made in not proceeding to take evidence. The Supreme Court of Ohio has previously clarified that it has “never held that the failure to comply with the R.C. 2945.06 witness-examination requirement is a jurisdictional defect.”

State ex rel. Collins v. Leonard

(1997), 80

*66

Ohio St.3d 477, 687 N.E.2d 443 . If, as the dissent contends, there was an error in the case at bar, it was procedural and invited or waived by the defense.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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