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Wine Seeks Emergency Motion

October 19, 2012

ST. MARYS — The attorney for Douglas Wine is seeking to have the Ohio Supreme Court halt a bond hearing scheduled for Monday in Auglaize County Common Pleas Court.

On Wednesday, Lorin Zaner — Wine’s attorney — filed an emergency motion seeking to continue Wine’s current bond as set by the court of appeals, to make two modifications to the bond and seeking an injunction prohibiting the trial court from conducting any hearing regarding the case while justices consider taking up the matter. Wine is scheduled to appear for a hearing in Auglaize County Common Pleas Court at 8:30 a.m. Monday. Zaner previously filed a request to have Wine’s appeal heard in front of the Ohio Supreme Court. In that request, Zaner called into question use of lesser-included offenses in his filing. No decision has been made on that request.

According to this filling, Wine is seeking to have his passport returned to him so he can travel back and forth to Jamaica for employment purposes. Included in the filing was a notarized letter from Dr. Douglas McCloy, director of Mission of Sight.

“Dr. McCloy is offering a paid position to the appellant working at his two clinics in Jamaica,” Zaner wrote. “The appellant is an optometrist and has worked at these clinics in the past. While his appeals have been pending, the appellant has had difficulty in obtaining employment as his optometry license has been revoked in Ohio. If this court accepts the appellant’s appeal, and/or the cross-appeal from the state of Ohio, the resolution of this case likely will take one to two years. The appellant is not required to have his Ohio license for this opportunity. Allowing the appellant this work opportunity seems fair and just.”

Zaner also called into question the trial court’s ability to hold any hearing regarding conditions of bond. Wine has been free on a $150,000 cash appellate bond since Feb. 29.

“The appellant has been reporting to the Auglaize County Sheriff’s Department on a weekly basis,” Zaner wrote. “The appellant has not been arrested or charged with any new crimes. The appellant has been law abiding and has maintained close contact with legal counsel.”

Earlier this year, judges from the Third District Court of Appeals in Lima reduced Wine’s conviction of gross sexual imposition, a fourth-degree felony, to a third-degree misdemeanor of sexual imposition and ordered the matter remanded to Auglaize County Common Pleas Court. The maximum sentence on a third-degree misdemeanor is 60 days in jail. Zaner noted Wine served more than that in prison before he was released on bond as part of his initial appeal.

“He should not be put at any further risk of incarceration when his incarceration has already been longer than his potential, maximum sentence nor should he have more odious terms put upon him,” Zaner wrote.

Zaner argued the case’s current jurisdiction laid with the Ohio Supreme Court.

In his response filed on Thursday, Auglaize County Prosecuting Attorney Ed Pierce said Wine is not currently under an appeal bond because the appeals bond issued by the Third District Court of Appeals ended with its decision in the case. Earlier this month, Pierce filed a cross-appeal in the case to the Ohio Supreme Court.

“As such, there is no current nor had there been a bond in place on the appellant since June 27, 2012,” Pierce wrote. “Therefore, when appellant states that the appellate bond is in place and should be continued, such statement is erroneous.”

Pierce noted the trial court ordered the hearing because there is no bond in place at this time. Pierce also wrote that his cross appeal was filed “based upon the Third District Court of Appeals misconstruing the evidence, failing to apply the appropriate standard for granting a Rule 29 motion and applying a definition of force not supported by the law or applicable facts of this case.”

Pierce also listed five reasons the hearing should go on as scheduled — no bond is currently in place, there has not been an application or order granting a stay of the decision of the Third District Court of Appeals, the matter is presently pending before the Ohio Supreme Court, Wine is subject to sexual notification reporting requirements and Wine failed to demonstrate any prejudice in the establishment of a reasonable bond.

On Friday afternoon, Chief Justice Maureen O'Connor denied the request.

Before filing to the Ohio Supreme Court, Zaner filed a motion asking the judges to reconsider their decision and order an acquittal in the case. The appeals court judges denied the request in August.

Wine was initially indicted on rape. During a jury trial, he was found not guilty of rape and the lesser offense of sexual battery. However, he was found guilty of gross sexual imposition. The jury received instructions before beginning their deliberations that they could consider the lesser-included offenses.

Zaner also has a motion pending in front of Auglaize County Common Pleas Court Judge Frederick Pepple requesting the vacation of Wine’s conviction, the setting aside of Wine’s classification as a sexually oriented offender and the ordering a new trial. Zaner filed the motion based upon claims of ineffective assistance of counsel during Wine’s jury trial on the part of Wine’s initial attorney. No ruling has been issued on the motion and no hearing date has been scheduled.

 

 


 

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