Wording in sentence brings case back

WARREN -- A city man sent to prison for 101/2 years on drug and other convictions, after his videotaped arrest was broadcast nationally, will be resentenced but only for a legal technicality.
The 11th District Court of Appeals ruled that the conviction and sentence of Lyndal L. Kimble, 32, was appropriate in all respects except for the wording used by the judge at his sentencing.
Kimble appealed the conviction and sentence by Judge W. Wyatt McKay of Trumbull County Common Pleas Court on the basis of ineffective assistance of his attorney and the exclusion of testimony by one witness, among other issues.
Kimble was sentenced to 10 months in prison on each of nine charges: eight counts of trafficking in cocaine and one count of possession of cocaine. He was sentenced to three additional years in a separate case in which he was convicted of possession of cocaine and tampering with evidence.
Kimble's 2003 arrest by Warren police was videotaped by a bystander and shown to local and national broadcast networks. Kimble alleged police brutality took place during the arrest. Police said Kimble swallowed a small amount of suspected drugs before resisting the officers, who were trying to get him to spit out the evidence.
The only issue the appeals court found to have merit was one that has sent about six cases back to Trumbull County Common Pleas Court since the spring of this year. The U.S. and Ohio supreme courts ruled that a judge must not use certain words to justify imposing something more than a minimum sentence on a defendant.
What's behind this
In the case of Blakely v. Washington, the U.S. Supreme Court ruled that judges must not use evidence not heard by a jury to determine the severity of a defendant's sentence. As a result, the Ohio Supreme Court ruled later that judges should no longer state the reasons why a defendant was given a sentence beyond the minimum -- thereby not using facts not given as evidence to a jury.
LuWayne Annos, an assistant county prosecutor handling appeals cases, said she expected the wording issue to cause about 12 Trumbull County cases to come back for new sentences. All of the ones that have come back so far have resulted in the same sentence as before, she said.