In the Matter of:

Ian Neinast


Case No. TR20080510


(Items with yellow background are in the Appeals Court)

August 1, 2008 Notice of Transfer to County of Residence
The power on Ian's brakes failed, resulting in a minor fender-bender. It occurred along Gender Road, in Franklin County. The normal thing to do with juvenile offenders is to transfer it to their county of residence. This notified us of that.
August 12, 2008 Traffic Citation Received on 07/29/2008
When Fairfield County received the notice of Ian's citation, they scheduled a hearing, for either arraignment or trial.
August 27, 2008 Hearing
Entry (Arraignment)
Because Ian was charged with the crime of Failure to Maintain an Assured Clear Distance, and we were sure it was due to brake failure, we decided to deny the charge, talk to the Prosecutor's office, and try to plea it down to Operation of an Unsafe Vehicle (which describes the actual situation).
August 27, 2008 Notice of Hearing
Trial set for 9/19/2008 at 2:15 PM
After denying the charge, trial was set for a later date. I wanted to get the plea before that trial.
September 11, 2008 Offer of Plea Agreement The Prosecutor offered the plea (theoretically, not because of the brake failure, but because this was a first offense for Ian and nobody got hurt in the accident), and we accepted it.
September 19, 2008 Hearing
Entry (Plea)
D.E.F.T. Class Behavior Contract
Juvenile Driver Improvement Program Training Agreement
D.E.F.T. Registration
At the "trial,", Ian admitted to Operation of an Unsafe Vehicle. He then told the story to the Magistrate, and I told the Magistrate what I had done to verify brake failure and what I had done to fix the brakes. Nonetheless, Ian was sentenced to a fine, a license suspension of 30 days, traffic school, and writing a 500-word essay. This seemed excessive to me for something that really wasn't Ian's fault. It was also the same sentence that my daughter got 4 years ago for running a stop sign and causing an accident. It just didn't seem right.
September 22, 2008 Objection to Magistrate's Order Every order of a Magistrate (who is not a real, elected Judge), must be approved by the Judge. Thus, one gets an opportunity to object to the magistrate's orders before that ruling really takes effect. We objected to the sentence, and asked that the Judge cancel (vacate) the traffic school portion of the sentence. We also asked for a reduction in the length of the suspension.
October 3, 2008 Entry
Permission to withdraw the plea and try the case
For some reason, the Judge totally misread our Objection. We were quite clear in what we were asking, but the Judge issued an Entry permitting Ian to withdraw his plea (the one I had worked so hard to get) and go to trial on the original charge. What?
October 9, 2008 Notice of Hearing
Trial set for 10/27/2008 at 2:30 PM
This is the Notice of the new date for the trial (that we didn't want). Notice that we did not receive either this or the "permission to withdraw" until October 14th, since the Clerk bundled these two together, and Columbus Day intervened.
October 17, 2008 Motion to Convert Trial Date to Status Hearing
This was my attempt to straighten things out. I let the Judge know we were not going to withdraw Ian's plea, and we wanted the sentence reduced.

I went in to the Clerk's office when I found out about this, and was told I really shouldn't worry about it. The clerk talked to the Court Administrator, who supposedly said, "The judge just wants to see you." (However, keep in mind that nothing a clerk says is the least bit binding—in some sense it's just scuttlebutt.) Anyways, I figured we could just straighten it out in court, and not have the trial. However, on the 16th, Ian reported that his friends were getting subpoenas. Uh-oh. So I filed a subpoena of our own (to be able to make a strong defense if needed).

Shortly after filing the motion, I got a call from the Prosecutor, saying that they were going to oppose the motion. However, after a few days of not seeing a memo contra from her, I sent an email asking about it. She responded by saying she had decided not to respond to it. My suspicion is that she had finally read my original motion.
October 20, 2008 Entry
Trial date (10/27/2008) vacated
Objection to Magistrate's Order Overruled.
Here the Judge canceled the new trial date. However, he also overruled our Objection to the Magistrate's Order. It is my impression that the Judge really could not have read it, or he would not have made the initial mistake, and he wouldn't have overruled the Objection. However, this is a final order, so one's options to continue fighting it are limited.
October 24, 2008 Petition for Post-Conviction Relief
This is one of those options. In the petition, we asked the Judge to vacate two invalid (unlawful) portions of Ian's sentence. The Prosecutor has 10 days to respond to this. The other option (which must be done within 30 days of the final order) is to file an Appeal. This is still an option.
November 5, 2008 Total Cost Due
So then the Court billed us for the subpoenas that the Prosecutor issued due to the mistaken Entry by the Court thinking we wanted a new trial. The Prosecutor issued 6 subpoenas (costing $13.51, $14.68, $12.34, $10.58, $10.58, and $14.68) and I issued one (hey, if Ian really was going to trial we needed to defend him), costing $12.92. Total bill: $89.29.
November 10, 2008 Motion to Waive Payment of Additional Costs
So, the way to deal with this is to file a motion asking for the Court to waive those costs. We'll see what they do. Also, the usual thing is to include a proposed entry for the Judge to sign if he agrees with the motion.
November 12, 2008 Transcript Request
At this point, not a whole lot is going on. Also, there is a 30-day deadline for filing an appeal. That deadline started the day of the "Final Order", which is when Judge Williams adopted the order of the Magistrate Judge. It looks like I'm going to have to appeal, so to get that started, I need to order a transcript, which is what this is. (Actually, for this sort of case I may not need a transcript, but I want to foreclose the argument that there was some sort of agreement with the Magistrate that Ian would take the traffic school and essay in return for not getting a 90-day license suspension.)
November 18, 2008 Notice of Appeal
OK, here we go. No response to the Petition for Post-Conviction Relief, so the last option (before the deadline) is to do the appeal. The way things work is that the Notice of Appeal is filed with the trial court clerks.
November 18, 2008 Docketing Statement
Entry being appealed.
Magistrate's Order that was objected to.
Transcript Request.

Along with the Notice of Appeal, a Docketing Statement is also required. This lets the clerks decide whether to put the case on the regular calendar, or use the accelerated calendar. We requested the accelerated calendar, since the issue is really fairly simple, and there is no oral argument on the accelerated calendar. The Docketing Statement also has to include the order being appealed from, and the request for a transcript, if needed.
November 18, 2008 Motion to Stay Execution of Remaining Sentence Pending Appeal
The other important thing to do for an appeal (at least a criminal appeal) is to stay the sentence, if possible. This means that the Court waits for the result of the appeal to finish out the sentence. This is particularly important because, for a misdemeanor such as this, if you serve the sentence, your appeal becomes moot. So you have to make some sort of attempt to stop the sentence before it is fully executed.
November 18, 2008 Notice of Filing of Appeal
Transcript Request.

Once the trial court clerk gets the appeal, they forward it to the Court of Appeals. There it gets its new case number: 08CA78. (By the way, "78" seems awfully low for this late in the year.) The Clerk then makes sure that everybody who should get copies does get copies. Interestingly, they sent me (me, not Ian) a copy, presumably as the father of a juvenile. The Court of Appeals docket is online here.
December 1, 2008 Entry
Objection to Magistrate's Order Granted.

Well, look at this. The Petition for Post-Conviction Relief was granted. Of course, that now means I have to unravel the appeal.

In talking to the clerks, the Judge has changed a lot of things as a result of this. He finally realized that the sentencing scheme he'd been using all these years was unlawful. Can you imagine the "Oh, shit" moment? Anyways, it looks like he is doing the proper thing.
December 1, 2008 Entry
Objection to Magistrate's Order Granted.

The Trial Court also filed a copy of the above entry with the Court of Appeals.
December 5, 2008 Motion to Dismiss Appeal
To unravel the appeal, what I need to do is file a Motion to Dismiss the Appeal. That's what this is. Also, local rules ask for a proposed judgment entry.
December 5, 2008 Entry
Additional Costs Waived.

And here the judge granted the motion to waive the costs associated with those extra subpoenas. We really can't ask for more. That finishes things up; all we still have to wait for is for the Appeal to be dismissed.
December 22, 2008 Judgment Entry
Appeal Dismissed.
And here's the dismissal of the appeal. They did not use my proposed judgment entry (it looks like I got a few minor details wrong in what I wrote), but they did follow the part where the Appellant (us) was taxed for the cost of the appeal. I really don't think I should have to have paid these, since if the juvenile court had made their decision on the Petition for Post-Conviction Relief in a timely fashion, I wouldn't have had to file the appeal. The cost of the appeal was $38. But it's just not worth fighting this, particularly since we got back the cost of traffic school, and the costs of those additional subpoenas were removed.