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Brian Hester’s Answers

59 total

  • Can I receive a pardon from a 1989 felony conviction if my expungement was denied?

    I applied for an expungement in 1999 and it was denied due to a new law that applied gun specifications even though the gun charge was dropped.

    Brian’s Answer

    Yes, it's possible. A pardon by the Governor is a power given to the Governor by way of the Ohio Constitution. It is virtually without limit (except it cannot be used for federal offenses or convictions in other states.) The Governor has the power to pardon offenses, even if the offense was not expunged as the expungement power is a judical power created and limited by state statute.

    However, that being said, pardons are INCREDIBLY rare. There is no threshhold standard an applicant can meet in which the Governor is legally compelled to issue a pardon. The Ohio Constitution makes it completely clear that it's a discretionary act of the Governor that has no real standard. A Governor, in fact the same Governor, can pardon one person who's situation is practically identical to yours and deny your petition. The Governor does not have to justify his reason in denying a petition for a pardon. No court can compel a Governor to issue a pardon. And most, in fact nearly all, petitions for pardons are denied.

    The process begins with a petition to the Ohio Adult Parole Board. They review your petition, your case file, and may forward your petition to the sentencing court and prosecutor to file their response to your petition, and eventually the Board makes a recommendation to the Governor as to whether approve or deny your petition (you might be given a hearing in front of the Parole Board before it votes to make a recommendation, but that's not always guaranteed.) Although the Governor is not compelled to follow the Board's recommendation, Governors have traditionally not broken with the recommendations of the Parole Board.

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  • Need to know legal rights about getting a piece of furniture out of my exboyfriend's house!

    He refuses to acknowledge any of my attempts to contact him and insist on holding my piece of furniture hostage! We were living together for awhile and I had many other pieces of furniture, as well as the usual personal items that I was able to ...

    Brian’s Answer

    Surprise answer, but you probably should hire a lawyer! :) The police are unlikely to resolve this dispute. He'll claim it is his, and they're not going to be in a position to force him to let you take the furniture back.

    Call a lawyer and ask them about getting a "writ of replevin" A writ is an Old English word that essentially means "Order" A writ of replevin is an order regarding ordering the return of possession of personal property.

    So here's how it works, your attorney files a replevin action and applies for a writ of repleving. Your ex is given notice and notified of his right to object to any potentional order. If he fails to object, the court will grant the order. If he objects, a hearing is held to determine whether your ex is in lawful possession of the furniture. If not, the court will grant the order.

    The writ is given to the sheriff's office who then goes to your ex's property, lawfully enters the property for the sole purpose of removing the furniture and delivering it to you. If your ex interferes, he faces contempt of court.

    Now, I should warn you that there's a legal distinction between possession and ownership. When you say you 100% bought and paid for it, I assume it means that it was paid for out of an account in your name only and was not bought, at the time, intending it to be a gift to him.

    So, again, this is why you need to talk to a lawyer. Good luck!

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  • My son has a pretrial hearing for visitation of his child. Can he give his father power of attorney to represent him in court

    The mother has hired a lawyer and my son, the father, is only 20 and a bit limited in his ability to represent himself. We can not agree upon the visitation schedule, even though the father is following court guidelines. He is willing to give me ...

    Brian’s Answer

    No. A power of attorney creates a legal relationship fully called an attorney-at-fact, which is different from an attorney-at-law. An attorney-at-fact is an agent who is vested with powers (depending on the instrument creating the relationship) that allows an agent to act at the direction and in the stead of his or her principal to manage financial affairs or medical decisions when the principal is disabled from engaging in such functions due to absence, incompetence, etc. An attorney-at-fact does not have the powers of an attorney-at-law and this includes providing legal representation in a court of law.

    While the U.S. Supreme Court has recognized that a person has a right to legal counsel and conversely the right to represent themselves (pro se), the Court has specifically and soundly rejected any argument that a person has a constitutional right to be represented by a third-party who is not a lawyer licensed to practice law.

    If your son is unable to afford counsel on is own, he may be able to get court-appointed counsel. Alternatively, if you, your husband, and your son understand that a retained lawyer's duty and obligations run to your son and not you or your husband, even if you're paying the attorney's bill, then you can agree to pay for your son's retained attorney. Just understand that paying for the attorney gives you no control over the representation, nor no right to know what your son tells the attorney and vice versa.

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  • We just got paperwork the other day that an attorney was the "receiver" of the house that we've been renting. Whats that mean?

    We've been renting the house with the option to buy from a real estate investment company, but paperwork from the county courts was placed in our door stating that an attorney was to receive their properties. Does this mean they have gone into fo...

    Brian’s Answer

    A receivership is kind of like the state version of a bankruptcy trustee in federal bankruptcy court. It most likely means than the real estate investment company defaulted on its mortgage and that, for the time being, a creditor realizes that the property is worth more keeping it going as a rental property than to terminate the rental property business there and find a new buyer. In order to maximize their ability to get as much of the delinquent debt repaid as possible, the creditor has gotten the court to appoint a receiver to manage the property to prevent it from being wasted by the prior owner or from drying up the abaility to continue to collect rents from its tenants if it were suddenly foreclosed on and sold at a sheriff's auction. A receiver is a person or entity appointed by a court to take possession of property, receive rents from the property and bring legal actions in relation to the management of the property, much like a bankruptcy trustee does in federal bankruptcy proceedings.

    If you cannot afford an attorney, you should strongly consider Legal Aid so you have someone who can learn more about what exactly is going on with the property and what the receiver's intentions are related to your lease.

    With the bubble of the housing marketing imploding, we're seeing more tenants being evicted for their landlord's failure to pay the mortgage than a tenant's failure to pay rent. As a residential tenant, you are still entitled to at least three days notice to vacate the property before the receiver can initiate eviction proceedings to order you off the property.

    I'd take the paperwork posted on your door to an attorney as soon as possible in case it's a legal pleading that you need to respond to quickly in order to protect your rights in the property.

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  • Our new commercial party room has been damaged by water. Can we get monetary compensation for loss of business?

    Our party room is damaged by the water that came out of the wall. We want the landlord to pay for new carpet, new wall, increase in electrical expensed due to carpet cleaning and dehumidifiers used, and loss of business.

    Brian’s Answer

    No lawyer can answer your question without reviewing your lease. Commercial leases are not restricted by the Landlord/Tenant provisions of Chapter 53 of the Ohio Revised Code, and are still purely creatures of contract law. What caused the water leak. Was the pipe considered part of the common area or a fixture assigned to your premises which you contractually agreed to be liable. Does the lease speak of landlord's limitation on damages in such event (they often do.)?

    Have you been in business long enough to accurate determine what business loss can be attributed to the water leak and not the economy? Do you have insurance coverage that includes loss of business? Depending on the language of your commercial lease, filing a claim with your own insurance may be the only way you can be compensation.

    Sorry, I know you came here for a definiative answer, but without reviewing your lease and discussing your situation more, no lawyer can really answer this question precisely.

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  • What is the punishment for felony thelf in the state of Ohio?

    wrote checks for cash but did not deposit them

    Brian’s Answer

    Depends on the total amount of the checks forged. If it's between $500 but less than $5,000, then it's a fifth degree felony where probation is statutorily presumed but otherwise punishable by up to one year in prison. Over five thousand but less than $100,000, then it's a fourth degree felony punishable up to eighteen months in prison. $100,000 or more and you're at a third-degree felony level which is punishable up to five years in prison. (Minimum 6 mos. for the first two, 1 year minimum for third-degree felonies). You can argue that because you never cashed the checks that maybe you committed an attempt of such felonies which would drop the offense level down one level (so, a fourth-degree felony theft, becomes a fifth-degree attempted theft offense, for example. A fifth-degree felony theft offense would be a first-degree misdemeanor attempted theft.)

    The Statute of Limitations is six years for such felonies. A misdemeanor is two years.

    And incidentially, nothing you say here is protected by the attorney-client privilege and it can be used against you in a court of law. Just so you know the next time you post something on the Internet here.

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  • Is there a statute of limitation on mechanic liens

    if a contractor has put a lien on my personal home is there a certain amount of time that they have on this

    Brian’s Answer

    If the contractor hasn't and doesn't commence suit on the lien, it is valid and enforceable for six years under R.C. 1311.13(C) from the date the affidavit of mechanic's lien is recorded. Contact a real estate attorney in your area and the attorney can explain to you how you can force the contractor to either sue you to obtain an actual judgment based on his claim for the lien, or otherwise lose his lien on the property even before the six years expires. It's a fairly common procedure and some (maybe even most) contractors will not actually file litigation to enforce their liens when pushed. Again, though, you should consult a real estate lawyer because the process must be handled exactly in order to properly discharge the lien. And understand that it's a process that invites the contractor to sue you. The upside is that if he doesn't sue you within a short window of time after you start this process, the lien is terminated.

    Your other option is to see if the contractor would agree to release the lien if you enter into a payment plan. Your third option is to pay the contractor and have his discharge the lien as satisfied.

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  • How many years i need to be legaly in us to become a permanent resident? or is no way!

    hello!!!!!!!!!!! i am in us since april 2006 on j1 and in octomber 2007 got status changed on h3 which expires in august 2009.... is attorney can help with anything to become permant resident

    Brian’s Answer

    If you're currently in the United States on an H-3 visa, then you are ineligible to file for legal permanent resident status based on your visa status. An H-3 visa is a non-immigrant visa. You need to talk with an immigration attorney to find out if there is someone in your family who is naturalized or with permanent resident status who can apply for family-based permanent residency or see if there's some way an employer-based permanent residence. But your H-3 nonimmigrant visa alone does not have you on a path to permanent residency. You need to talk with an immigration attorney about seeing if you could qualify for employer-based permanent residency if the company you're training under, or some other potential employer, is willing to "sponsor" your application for permanent residency.

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  • My friend and i got cought shoplifting at macys and theyre charging me $200 of fine i cannot afford that what can i do??

    we got something worth 14.99. Now theirs charging us 200 dollars I cannot pay that is there anything else I can do?? And I still have court. and I know thus was not right and will NEVER do it again can I do some kind of community service instead?

    Brian’s Answer

    If I understand your question correctly, you got a letter from either Macy's or a law firm representing Macy's demanding $200 for compensation under Ohio's statutes providing statutory damages for victims of theft-related offenses. That's what I'm assuming your referencing to as a "fine" if you haven't even had court yet.

    If that IS the case, it is nothing more than a civil claim that the store would still need to be willing to file litigation against you and win before they could collect the $200. If you have not been convicted of the petty theft charge, then you are depriving them of their strongest evidence they would want to use in their civil case for the $200 in statutory damages.

    Hire a criminal defense attorney, or if you cannot afford one, obtain court-appointed counsel. If you are a first-time offender, you may be eligible for diversion if the court that hears the case offers it. Diversion is a probation-like program that if you successfully complete and avoid any further criminal charges in the meantime, results in your criminal case being dismissed and, in most courts in Ohio with diversion programs, automatically expunged (the court record is sealed from the public.)

    Diversion, if successfully completed, would deny the store a theft conviction which is normally enough to make them back off from any civil damages claim.

    But first, you must consult and retain an attorney to handle both your criminal case and this civil claim.

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  • Do I have a malpractice suit against my personaly injury lawyer who ripped me off?

    Long story short in 1999 I was hit by a drunk driver and suffered SERIOUS injuries. My lawyer promised he would get me compensation. He ended up settling with the insurance without my consent and when it was time to collect the check and sign the ...

    Brian’s Answer

    In Ohio, the statute of limitations for legal malpractice is one year. Therefore, if it's been more than one year since the legal representation ended, you're potential legal malpractice claim is time barred under the statute of limitations. You might still be able to file a complaint against the attorney with the local county bar association or with the Ohio Supreme Court's Office of Disciplinary Counsel, but since it's been ten years they may be unable to adequately investigate it due to the passage of time. Also, any disciplinary action may also be time barred given the length of time since this occurred.

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