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Tuesday, July 28th, 2009

Supreme Court overturns former chief's conviction

By William Kincaid
A six-year prison term and convictions imposed on former Wapakoneta Police Chief David Harrison for child pornography charges were dismissed by the members of the Ohio Supreme Court today.
The 7-0 decision authored by Justice Paul E. Pfeifer was based on the judgment the trial court had no jurisdiction to retry or resentence Harrison, according to ruling released on the court's Web site today.
Harrison initially was sentenced by the Auglaize County Court of Common Pleas in 2003 to one year in prison after pleading guilty to five charges - in exchange for the state's agreement not to prosecute him on any other charges related to the computer search.
"Based on the sexual nature of his crimes, the court was legally required to also impose a mandatory five-year term of post-release control (probation)," the ruling says. "Instead, the judge mistakenly advised Harrison that he could be subject to an optional term of post-release community control of up to three years."
The Adult Parole Authority also did not take action to impose a term of post-release control over Harrison after he served his one-year prison term, the ruling says.
Six months after his release, the state filed a motion asking the trial court to resentence Harrison to impose a five-year term of probation. Harrison then sought a writ of prohibition to prevent his resentencing, as he claimed to have already completed the imposed sentence.
"Before his appeal was heard, the trial court conducted a resentencing hearing, at which it advised Harrison that it would immediately resentence him to add five years of community control to his 2003 sentence unless he withdrew his original guilty plea," the ruling says.
Once Harrison withdrew his original guilty plea, a grand jury indicted him on multiple new felony counts arising from the same events leading to his 2003 guilty plea.
In the second trial, he was convicted on 18 criminal counts and sentenced in 2006 by the Madison County court to six years in prison with credit for the one year already served.
The 12th District Court of Appeals upheld the trial court's decision.
However, the Ohio Supreme Court today overturned the last conviction and sentence.
According to Justice Pfeifer, the state sought a resentencing that the trial court lacked the jurisdiction to impose. The trial court, according to Pfeifer, moved forward as if it did have such jurisdiction.
"We agree that the second prosecution emanated from the trial court's improper assertion of jurisdiction, and that the plea agreement, guilty plea and completed sentence in the first prosecution ended the state's case again Harrison," Pfeifer said.
Also, Pfeifer noted that Harrison was hauled into court and informed that he would be resentenced unless he withdrew his plea.
"The trial judge presented Harrison with a Morton's Fork; whether Harrison chose the correct time upon which to be impaled is not the question," Pfeifer said. "The question is whether the trial court had the authority to require Harrison to make a choice at all. Clearly, it did not."
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