Medina County Courthouse

Wednesday, December 30, 2009

Ohio Supreme Court Rules that EPA Director Not "Necessary Party" to Local Waste Rule Challenge

009-0211. Natl. Solid Wastes Mgt. Assn. v. Stark-Tuscarawas-Wayne Joint Solid Waste Mgt. Dist., Slip Opinion No. 2009-Ohio-6765.
Stark App. No. 2008CA00011, 2008-Ohio-6585. Judgment reversed and cause remanded.
Moyer, C.J., and Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.

(Dec. 30, 2009) The Supreme Court of Ohio ruled today that the Director of the Ohio Environmental Protection Agency is not a “necessary party” who must be joined in a suit challenging the validity of rules adopted by a local solid-waste management authority. Based on that decision, the Court remanded a Stark County suit challenging a local waste management rule that had been dismissed by the 5th District Court of Appeals on procedural grounds back to that court for a ruling on the merits.

The court’s unanimous decision was authored by Justice Terrence O’Donnell.

The case involved a dispute between the owners of three private landfills located in Stark and Tuscarawas counties and the joint solid waste management district serving Stark, Tuscarawas and Wayne counties, referred to as the STW District. The landfill operators are represented in the case by a national trade association of which they are members, the National Solid Wastes Management Association (NSWMA).

In 1988, local waste management districts were created and required to develop plans for the disposal of solid wastes within their service areas. Districts were given authority to develop and enforce local rules necessary to implement their respective waste management plans, and were specifically authorized to adopt rules reserving local landfill space exclusively for in-district waste if that action was necessary to preserve capacity to meet projected local needs.

In 1993, the director of the OEPA approved the STW District’s original plan. In 1999, when the district filed an amended waste-management plan, the director disapproved it, and in 2004 the director notified the district of his intention to prepare an amended plan on its behalf. The district subsequently entered into a Memorandum of Understanding with the director in which it was agreed that the district could adopt local rules prior to Nov.30, 2006, the date by which an amended plan would be issued by the director. In November 2006, the district adopted four local rules, including a recycling rule specifying that after Jan. 1, 2008, landfills within the district would no longer be permitted to accept waste from outside the district unless the originating district met or exceeded the STW District’s recycling standards.

On Dec. 13, 2006, acting on behalf of its member landfill operators, the NSWMA filed a complaint against the STW District in the Stark County Court of Common Pleas seeking a declaration that the district’s new recycling rule exceeded its statutory authority and was therefore void and unenforceable. The district counterclaimed for a declaration that its recycling rule is valid. In December 2007 the trial court ruled that the new rules were valid and enforceable, but held that it would be impossible for the affected landfills to implement the recycling rule on Jan.1, 2008, and so ordered a delay in the effective date of that rule until July 1, 2008.

NSWMA appealed the trial court’s decision. On review, the 5th District Court of Appeals did not reach the merits of the trial court’s ruling but rather held that, because the current waste management plan in place for the STW District was the alternative plan developed by OEPA, the director of OEPA was an “indispensable party” to any lawsuit seeking to bar enforcement of the district’s local rules. Because NSWMA’s complaint had not joined the OEPA director as a party in the case, the court of appeals ruled that the trial court had acted without jurisdiction in hearing the case, and remanded it to the common pleas court with instructions to dismiss the association’s complaint as defective.

NSWMA sought and was granted Supreme Court review of the 5th District’s ruling. In today’s unanimous decision, the Supreme Court rejected the 5th District’s finding that the OEPA director must be joined as a party in order for NSWMA’s challenge to the local waste disposal rule to be justiciable. Justice O’Donnell wrote: “R.C. 3734.02 provides: ‘(A) The director of environmental protection, in accordance with Chapter 119 of the Revised Code, shall adopt and may amend, suspend, or rescind rules having uniform application throughout the state governing solid waste facilities.’ ... This statute vests the director with the power to enforce rules having uniform application throughout the state, making him a necessary party to an action challenging such rules. However, the rules at issue in this case are the STW District’s local rules – rules adopted by the STW District rather than by the director and thus, by definition, not uniformly applicable throughout the state.”

“R.C. 343.01(G) provides that the power to enforce local rules rests with the board of county commissioners of a county district or board of directors of a joint district: ‘[T]he board ... may adopt, publish, and enforce rules ... (1) [p]rohibiting or limiting the receipt of solid wastes generated outside the district ... at facilities located within the solid waste management district.’ This subsection specifies that the director may modify a local rule if six conditions set forth in divisions (G)(1)(a) through (f) apply, but it does not grant him the express power to enforce a local rule. Thus, neither R.C. 3734.02 nor R.C. 343.01(G) grants the director of the OEPA the power to enforce the STW District’s local rules; accordingly, the director is not a necessary party to an action challenging the enforcement of those rules. Therefore, the director’s absence from the action does not deprive the trial court of jurisdiction to render a decision.”

Justice O’Donnell noted that because the 5th District had remanded the case for dismissal based on its erroneous finding that the OEPA director was a necessary party, the court of appeals “has not yet considered the assignments of error presented by the parties regarding the validity and enforcement of the STW District rules. Accordingly, we remand this matter for further consideration.”

Terrence M. Fay, 614.469.3259, for National Solid Wastes Management Association.

Thomas W. Connors, 330.456.8341, for the Stark-Tuscarawas-Wayne Joint Solid Waste Mgt. District.

Kathleen M. Trafford, 614.227.1915, for Columbia Gas of Ohio.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."

Tuesday, December 29, 2009

Ohio Supreme Court Upholds PUCO Order Authorizing Columbia Gas to Repair Customer-Owned Service Lines

2008-1507. Util. Serv. Partners, Inc. v. Pub. Util. Comm., Slip Opinion No. 2009-Ohio-6764.
Public Utilities Commission, No. 07-478-GA-UNC. Order affirmed.
Moyer, C.J., and Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.

(Dec. 29, 2009) The Supreme Court of Ohio ruled today that the Public Utilities Commission of Ohio (PUCO) did not exceed its authority or substantially impair the contract rights of a private firm selling service warranties by issuing a 2008 order that gave Columbia Gas of Ohio exclusive authority to repair or replace customer-owned natural gas service lines that run from the curb to its customers’ gas meters in Columbia’s 22-county service area.

The court’s 7-0 decision was written by Justice Robert R. Cupp.

In response to four “catastrophic” residential explosions that resulted from natural gas line leaks, the PUCO undertook a three-year study to determine how widespread the threat of future explosions was and what remedial action was necessary to protect the public.

In April 2008, the PUCO approved a stipulated agreement between Columbia Gas of Ohio and several utility user groups and issued an order authorizing Columbia to: 1) inspect the “riser” (the final, above-ground connector linking an underground gas line to the gas meter) in all buildings in Columbia’s 22-county service area, and whenever it found a certain type of potentially dangerous plastic riser fitting to replace that fitting with a metal riser; 2) assume exclusive responsibility for repairing or replacing any hazardous underground service lines running from the street to its customers’ homes or business structures; and 3) add a surcharge to the monthly bills of all Columbia Gas customers to recover the company’s costs of replacing defective risers and repairing service lines.

Objections to the stipulated agreement were filed by Utility Service Partners Inc., (USP) a company that sells service line warranties to individual home and business owners that include repairing or replacing defective gas lines. Among its objections, USP argued that the proposed commission order would interfere with service contracts already in force between USP and more than 100,000 of Columbia’s customers under which those customers made monthly payments to USP in exchange for USP’s promise to make any needed repairs on the customer’s gas lines. The commission overruled USP’s objections and issued a final order on April 9, 2008, authorizing Columbia to go forward with both its riser inspection and replacement program and with assumption of exclusive authority to perform or contract for the performance of all needed repairs or replacements of customer-owned outside service lines in the company’s service area.

After its request for a rehearing was denied by the commission, USP exercised its right to appeal the PUCO’s order directly to the Supreme Court. In today’s decision, the Court rejected each of USP’s assignments of error and affirmed the commission’s order as a reasonable and lawful exercise of its statutory authority.

With regard to USP’s claim that the commission lacked statutory authority to grant Columbia exclusive authority to maintain and repair customer-owned service lines, Justice Cupp wrote: “In issuing the order, the commission relied on R.C. 4905.06. That section gives the commission general supervisory authority over utilities; among other things, it provides the commission with the ‘power to inspect’ public utilities, which ‘includes the power to prescribe any rule or order that the commission finds necessary for protection of the public safety.’

“Thus, if the order was related to the ‘protection of the public safety,’ the commission acted within its powers. We find that the order is related to the protection of the public safety. The commission expressly acted ‘to improve the level of public safety,’ and the terms of its order were rationally related to that end. Service lines carry natural gas, and natural gas is dangerous unless it is handled properly. It is noxious, flammable, invisible, and naturally odorless. Exposure to natural gas is potentially lethal to persons and destructive of property. ... Thus, the order, in seeking to improve the regulation of pipelines that prevent the escape of a dangerous substance, had a clear tie to public safety. And the order gave Columbia responsibility only over ‘hazardous’ service lines, eliminating any argument that the commission exceeded the bounds of the safety power. We conclude that the commission acted with statutory authority.”

In also rejecting USP’s claim that the PUCO order “substantially impaired” the company’s contractual relations with its 100,000 existing service warranty customers, Justice Cupp noted that USP had failed to introduce probative evidence of the claimed impairment because it failed to place a copy of its customer service contract in the case record. However, even if sufficient evidence of contract impairment had been provided, he wrote, the US. Supreme Court’s decision in Energy Reserves Group Inc. v. Kansas Power & Light Co. provides that a law or regulation enacted as an exercise of a governmental agency’s police power is not unconstitutional if the agency can show “ a significant and legitimate public purpose behind the regulation,” and show that the adjustment of interests between affected parties is “reasonable” in light of the public purpose justifying the regulation.

In this case, Justice Cupp wrote: “(T)he commission’s order represented an exercise of police power. At a minimum, the police power includes actions taken to protect public safety. ... The commission expressly stated that its order was ‘an effort to improve the level of public safety,’ and the commission reasonably and with ample support in its record determined that making Columbia responsible for service lines would protect the public safety. ... (T)he evidence (also) showed that the decentralized, unregulated, and incomplete repair regime that had grown up in Ohio did not adequately protect public safety. The order rationally responded to this situation by consolidating a diffuse system and placing repair responsibility into the hands of the party the commission determined to be the best qualified to exercise it: a pervasively regulated, thoroughly supervised, pipeline-expert natural gas company. ... Finding that USP satisfies none of inquiries set forth in Energy Reserves, we must reject its Contract Clause challenge.”

M. Howard Petricoff, 614.464.5414, for Utility Service Partners Inc.

Anne L. Hammerstein, 614.644.8669, for the Public Utilities Commission of Ohio.

Kathleen M. Trafford, 614.227.1915, for Columbia Gas of Ohio.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."

Mars and the Rovers

By Ohio Supreme Court Justice Paul Pfeifer

When the giant lighted ball drops in Time Square on December 31st, we will – whether we’re ready or not – enter 2010 and thus leave the “aughts” behind us. Even though by the official count we don’t enter the new decade until next year, dropping the second zero in the date is going to make it feel like we’re in a new decade despite what the timekeepers tell us.

Any of us who did most of our growing up in the 20th century remember hearing all sorts of predictions – dire and otherwise – about “the year 2000.” Now, incredibly, that date is ten years distant in the rearview mirror. And so it is that as we enter late December, we can look back not only on 2009, but on this first decade of the 21st century as well.

Each year the Associated Press conducts a poll of editors and news directors from around the country to determine the biggest news stories of the year. For 2009, the number one story, according to that poll, was “the economy,” followed closely by the inauguration of President Barack Obama. The sweeping overhaul of health care came in third, with the struggles of the auto industry fourth and the story of the swine flu fifth.

Death was the predominant feature of the next four stories: Afghanistan, Michael Jackson’s death, the Fort Hood rampage, and Senator Edward Kennedy’s passing were six, seven, eight and nine. The story of the US Airways passenger jet that crashed in the Hudson rounded out the top ten stories of the past year.

As usual, most of the stories focused on bad things. Looking back further, the same is basically true for the biggest stories of the past ten years. If you’ll recall, we exited the 1990s terribly concerned about the impending Y2K crisis. Happily that never materialized. But then, before we had barely begun the 21st century, we were hit with something we never saw coming – the terrorist attacks on September 11, 2001.
That was, unquestionably, the biggest story of the decade. And after that, the wars in Afghanistan and Iraq dominated headlines year after year. Throw in Hurricane Katrina – the largest natural disaster in our nation’s history – and the sub-prime mortgage crisis coupled with the economic woes that followed and you’ve got ten year’s worth of bad news.

But not all of the news was bad; there was one particularly upbeat little story that played out over the course of the decade that didn’t get much play. That’s typical of course; it’s the bad news that grabs the headlines.
So what was the happy story that got so little attention? Well, you’d have to look pretty far to find it – like millions of miles away.

The story began in 2003 with the launch of two rockets bound for Mars. Each rocket carried a “rover” – a little six-wheeled vehicle – that could travel over the Martian terrain and be remotely controlled by NASA engineers on Earth. The rovers were to land on the red planet and explore the surface in detail, with the specific mission to look for evidence that water once existed on Mars.

Equipped with cameras to send back images, robotic arms to allow them to dig in the dirt and extract soil and rock samples, and other instruments for conducting various experiments, the rovers – named Spirit and Opportunity – were expected to do their work and relay their data for 90 days. Beyond that time, NASA engineers anticipated that the harsh winter conditions would freeze the rovers, and the dust from the planet would cover the solar panels and prevent the batteries from recharging.
Spirit landed on January 4, 2004; Opportunity followed three weeks later, landing on the other side of the planet. Both arrived in good shape and began their assigned missions. At the end of their 90 days, Spirit and Opportunity – living up to their names – were still going strong, relaying data, and responding to commands from Earth as well as ever. So the mission was extended.

NASA had always hoped that the rovers would operate beyond 90 days, and early in the mission the engineers began to believe that both might last for as many as 200 days. That was in 2004. Today, at the end of 2009, both of these magnificent little machines are still operating, more than 2000 days after landing on Mars.
The rovers have performed incredibly well. Spirit was originally intended to travel at least 984 feet across the Martian surface; it has now gone almost five miles. Opportunity has traveled more than 7 miles. The rovers have sent back tens of thousands of fantastic images, and abundant information on the planet’s geology – including evidence of Mars’s warmer, wetter past.

Remarkably, Mars itself has helped out. On several occasions, when the solar panels were coated in dust so thick that it threatened to kill the rovers, timely wind gusts and dust devils kicked up that cleaned the panels and restored power.

Even the mishaps have proved advantageous. When Spirit developed a bum front wheel, engineers turned it around and traveled in reverse. The bad wheel, dragging behind, inadvertently uncovered a patch of ground that scientists say shows evidence of a past environment that would have been perfect for microbial life.

Is all of this a major story that should be dominating the headlines? Perhaps not. But when NASA messes up, it’s big news and we hear about it. This happy success, on the other hand, goes largely unnoticed, and that’s a shame because it’s a great story; an engineering marvel and a triumph of the human spirit that deserves attention.

And so, as we depart this first decade of the 21st century – amidst all the bad news of disasters and crises and wars – maybe we can take some small comfort in a bit of good news about two rugged little machines that wouldn’t quit, and that, in their way, represent what humanity – at its best – can accomplish.
Happy New Year everyone.

Overheard in the Courthouse

A local Medina attorney stopped by this past week to tell my staff and myself about an interesting conversation he overheard in the Medina County Courthouse. He was passing the Domestic Relations Court area when he came across a younger woman talking to her attorney. As he passed by, he overheard her say to her attorney, "I am getting my gun tomorrow." As he walked on, he wondered what exactly she was referring to, given the fact that he was in the Domestic Relations Court.

If you overhear something that grabs your attention while walking through the Medina County Courthouse, email it to me at Thanks.

Friday, December 25, 2009

Ohio Supreme Court Issues Decision in Judge Lohn Funding Case

On Christmas Eve the Ohio Supreme Court issued a per curiam opinion granting in part, and denying in part, Medina County Probate Judge John Lohn's request for a writ of mandamus against the Medina County Board of Commissioners. The following paragraph of the decision sets forth the Court's finding:

This is an original action by a judge for a writ of mandamus to compel a county board of commissioners and its individual commissioners to appropriate reasonable and necessary funding for the probate and juvenile courts as reflected in the courts’ funding order for 2009. Because the board and county commissioners established that the judge abused his discretion by ordering unreasonable and unnecessary funding in part, we grant a writ of mandamus for only $12,800 of the additional funding ordered. We deny the writ for the remaining additional $64,429.91 of the funding order.

The decision goes on to explain the Supreme Court's reasoning. One of the interesting points in the decision is found in the following language:

Nevertheless, both the county administrator and the county finance director admitted that the projected surplus was about $4,000,000 in the general fund at the end of the year, and that the board could have made the appropriation ordered by Judge Lohn.

The whole decision can be read by clicking here.

Are Prejudgment Attachment Orders Required to Obtain a Final Judgment of Replevin?

Editor's Note: Attorney Nicholas K. Rohner of the Cincinnati office of Weltman, Wineburg, and Reis Co. LPA., recently sent a letter to Magistrate Mary McElwee of the Clinton County Common Pleas Court regarding whether prejudgment orders for possession of personal property are required to obtain a final judgment of replevin. I found this letter very interesting and, with Attorney Rohner's permission, I am reprinting it. The fact that I am reprinting this letter does not mean that I either agree or disagree with Attorney Rohner's statements concerning Ohio law

November 23, 2009

Magistrate Mary McElwee
Clinton County Common Pleas Court
46 S. South Street, 3rd Floor
Wilmington, Ohio 45177

Dear Magistrate McElwee,
It was a pleasure speaking with you recently regarding prejudgment orders for possession and whether they are required in Ohio in order to obtain a final replevin judgment. I researched the issue and I agree, there is a difference of opinion among the Courts that have ruled on it. My research is below.

Chapter 2737.
Chapter 2737 is titled “Replevin” and has 20 sections. The introductory definitional section, R.C. 2737.01, includes a definition for “Order of possession”:
“…(D) … the order issued by a court under this chapter for delivery to the movant of possession of specific personal property pending final judgment in the action.”

R.C. 2737.02, titled “Prejudgment recovery of personal property,” states:
“The possession of specific personal property may be recovered in a civil action prior to the entry of judgment, only as provided in sections 2737.01 to 2737.20 of the Revised Code.”

A prejudgment order of possession can only be obtained by a party who files a motion and affidavit upon or at any time after the filing of the suit, requests that a notice and hearing request form be issued to the respondent, and files a bond. A respondent can get the property back prior to final judgment by filing a bond of his own.
R.C. 2737.14 titled “Final judgment; proceedings when delivery cannot be made,” states:
“In an action to recover possession of personal property in which an order of possession has been issued, the final judgment shall award permanent possession of the property…If delivery of the property cannot be made, the action may proceed as a claim for conversion…”

Case Law.
Some of the aforementioned sections in Chapter 2737 are written in permissive terms, implying that prejudgment possession is just an option. However, in 1991, the Tenth District Court of Appeals issued a decision holding that a prejudgment order is required in order to get a final judgment for possession. The focus of that decision was on the language of R.C. 2737.14 . The Court interpreted this section to mean that a court can award permanent possession only if an order for possession has already been entered and if one is not obtained, the court can only award monetary damages under a conversion claim.
In 1996, the Second District declined to follow the Tenth District and ruled the other way. In doing so, the Court interpreted R.C. 2737 .14 to allow for a final replevin judgment without a prejudgment order, provided there is no evidence in the case that delivery of the personal property cannot be made.
In 1998, the Eleventh District agreed with the Second District and found that Chapter 2737 merely provides a process that enables a plaintiff to acquire the property at issue during the pendency of the replevin action. The Court labeled the process as “preliminary” and “temporary” and not a requirement to obtain a final judgment.
In 2001, the Fourth District, with little analysis, followed the Tenth District and held that replevin is only a prejudgment remedy. Then strangely, in 2002, the Eleventh District, with no mention of its own case four years earlier, issued a short decision following the Tenth District.
Most recently, in 2004, the Seventh District reviewed the issue and agreed with the Second District in that a prejudgment order is not required. The Seventh District provided the most detailed analysis to date. The Court stated:
“Section 2737.14 provides what happens in two situations. In the first situation, an action to recover possession of personal property in which an order of possession has been issued, the final judgment shall award permanent possession of the property to the party obtaining possession. This situation did not occur in this case because the magistrate did not order a prejudgment order of possession…In the second situation, if delivery of the property cannot be made, the action may proceed as a claim for conversion. This situation does not apply here either because delivery of the [property]…can be made. The situation we are faced with is whether it is permissible for the trial court to issue final judgment awarding possession…when no prejudgment order of possession has been issued, but delivery of the property can be made. This is permissible according to [the Second District’s prior ruling] and [section] 2737.14…

An Overview of Where the Appellate Districts Stand.

1st District-- no appellate decision, but Magistrate Bachman in Hamilton County who currently reviews all of the replevins indicates that a prejudgment order is not required in Hamilton County.

2nd District—a prejudgment order is not required.

3rd District—no appellate decision.

4th District—a prejudgment order is required.

5th Dictrict --no appellate decision.

6th District-- no appellate decision.

7th District— a prejudgment order is not required.

8th District-- no appellate decision.

9th District-- no appellate decision.

10th District—a prejudgment order is required.

11th District-- conflicting decisions on whether a prejudgment order required.

12th District—no appellate decision, but Magistrate McElwee in Clinton County who currently reviews all of the replevins indicates that a prejudgment order is required in Clinton County.


Although I can see both sides of the argument, I tend to agree more with the Second and Seventh Districts. I think that a prejudgment motion for possession is an available method by which a plaintiff can obtain possession of property prior to judgment, but it is not a requirement. I do not think that the Legislature intended to require a plaintiff to post a bond and gain possession of the property (and then be subject to the other side posting a bond and taking the property back) before final disposition of the case. Ultimately, this issue may need to be resolved by legislative clarification or by the Supreme Court of Ohio.

This is an interesting legal issue. Thank you for discussing it with me.


Nicholas K. Rohner

Wednesday, December 23, 2009

Ohio Supreme Court Clarifies Handling of Cases Reversed for Improper Post-Release Control Application

2008-1255. State v. Singleton, Slip Opinion No. 2009-Ohio-6434.
Cuyahoga App. No. 90042, 2008-Ohio-2351. Judgment affirmed.
O'Donnell and Cupp, JJ., concur.
Moyer, C.J., and Pfeifer and O'Connor, JJ., concur in the judgment, paragraph one of the syllabus, and the portion of the opinion addressing the retrospective application of R.C. 2929.191 but dissent as to paragraph two of the syllabus and the portion of the opinion addressing the prospective application of R.C. 2929.191.
Lundberg Stratton and Lanzinger, JJ., concur in paragraph two of the syllabus but dissent from the judgment and paragraph one of the syllabus and would instead reverse the judgment of the court of appeals and hold that R.C. 2929.191also applies retrospectively.


(Dec. 22, 2009) The Supreme Court of Ohio ruled today that in order to correct criminal sentences that do not properly impose a term of post-release control, the state’s trial courts: 1) must conduct de novo sentencing hearings for offenders who were sentenced before July 11, 2006; and 2) must follow statutory resentencing procedures set forth in R.C. 2929.191 for offenders whose sentences were imposed on or after July 11, 2006, the effective date of the statute. The Court’s lead opinion, written by Justice Terrence O’Donnell, affirmed a decision of the 8th District Court of Appeals.

In November 2000, the Cuyahoga County Court of Common Pleas accepted guilty pleas by Jason Singleton of Cleveland to charges of felonious assault and rape. On Dec. 21, 2000, the court sentenced Singleton to a term of imprisonment of 10 years for rape consecutive with a term of seven years for felonious assault, and notified Singleton of five years of post-release control. However, at his sentencing hearing, the court failed to notify Singleton that for a violation of post-release control, the parole board could impose a prison term of up to one-half of the stated prison term originally imposed on him. And in its written sentencing entry, the court referenced only the possibility of five years of post-release control, and did not specify that the parole board could impose an additional prison term of up to one-half of his prison sentence for a violation of post-release control.

Effective July 11, 2006, the General Assembly adopted H.B. 137, which included several amendments to the state’s criminal sentencing statutes and enacted a new section, R.C. 2929.191. The new provision permits trial courts that discover an offender’s original sentence was defective because it did not include a properly imposed term of post-release control to correct that error by giving notice to the offender, the prosecutor and the state corrections department and conducting a hearing at which the court makes a nunc pro tunc (“now for then”) entry in its journal properly imposing post-release control and notifying the offender of the maximum term of reincarceration to which he will be subject if he violates conditions of post-release control.

In October 2006, Singleton filed a motion in the trial court seeking to withdraw his guilty pleas and obtain a new trial. He argued that by failing to properly inform him about the mandatory term of post-release control to which he would be subject, and the consequences of violating post-release control, the trial judge had not met the statutory requirements for accepting a guilty plea. The trial court denied the motion to vacate, and Singleton appealed. The 8th District Court of Appeals affirmed the denial of the motion to vacate the guilty pleas, but vacated Singleton’s sentence as contrary to law because the judgment entry in his case improperly imposed a discretionary rather than a mandatory term of post-release control. Relying on Supreme Court decisions that required de novo resentencing (a complete new sentencing hearing) when an offender’s original sentence was found to be void, the 8th District remanded Singleton’s case to the trial court and ordered it to conduct a complete new sentencing hearing.

The Cuyahoga County prosecutor appealed the 8th District’s ruling to the Supreme Court. He argued that the General Assembly intended R.C. 2929.191 to apply retrospectively, so that trial courts could immediately begin utilizing the new statutory procedure in all resentencings conducted on or after July 11, 2006 – including the resentencing of offenders whose defective sentences were imposed before R.C. 2929.191 took effect.

In today’s majority decision, Justice O’Donnell noted that, because no statutory mechanism to correct a sentence that failed to properly impose post-release control existed prior to July 2006, the law applicable to sentences imposed prior to that date is case law, including several decisions of the Supreme Court of Ohio.
“In the absence of a statutory remedy,” wrote Justice O’Donnell, “we recognized that a sentence that failed to properly impose a statutorily mandated period of postrelease control was contrary to law when imposed. ... When a sentence is a nullity, it is as though it never occurred. ... Accordingly, we directed trial courts to conduct a de novo sentencing. R.C. 2929.191 purports to authorize application of the remedial procedure set forth therein to add postrelease control to sentences imposed before its effective date. We recognize the General Assembly’s authority to alter our caselaw’s characterization of a sentence lacking postrelease control as a nullity and to provide a mechanism to correct the procedural defect by adding postrelease control at any time before the defendant is released from prison. However, for sentences imposed prior to the effective date of the statute, there is no existing judgment for a sentencing court to correct. H.B. 137 cannot retrospectively alter the character of sentencing entries issued prior to its effective date that were nullities at their inception, in order to render them valid judgments subject to correction. Therefore, for criminal sentences imposed prior to July 11, 2006, in which a trial court failed to properly impose postrelease control, the de novo sentencing procedure detailed in decisions of the Supreme Court of Ohio should be followed to properly sentence an offender.”
On the other hand, Justice O’Donnell wrote, prospective application of the statutory resentencing procedure in R.C. 2929.191 to correct sentences imposed on or after the effective date of that statute is consistent with the legislature’s stated intent “to protect the residents of this state from the consequences that might result if the state is forced to release without supervision offenders who have been convicted of serious offenses and imprisoned, solely because the offenders were not provided notice of the fact that the law always requires their supervision upon release from prison.”

“Interpreting R.C. 2929.191(C) to apply the corrective mechanism provided in R.C. 2929.191 prospectively gives the statute effect and furthers the General Assembly’s stated intent in passing H.B. 137,” wrote Justice O’Donnell. “It also preserves the constitutionality of H.B. 137 against a separation of powers challenge by requiring the trial court to conduct a hearing to add postrelease control to the offender’s existing sentence. ... Thus, prospective application of the corrective procedure set forth in R.C. 2929.191 preserves both the judicial role of imposing punishment and the executive role of carrying out that punishment.”

Justice O’Donnell’s opinion was joined in its entirety by Justice Robert C. Cupp. Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer and Maureen O’Connor concurred in judgment and in the portion of the lead opinion syllabus holding that R.C. 2929.191 cannot be applied retrospectively, but dissented from the lead opinion’s syllabus and discussion addressing the prospective application of R.C. 2929.191.

Justices Evelyn Lundberg Stratton and Judith Ann Lanzinger concurred in the syllabus holding that R.C. 2929.191 may be applied prospectively, but dissented from the portion of the syllabus and lead opinion holding that the statute may not be applied retroactively.

Justice Pfeifer entered a separate opinion stating that because the appeal in this case involved only an offender whose sentence was imposed before R.C. 2929.191 was enacted, the lead opinion’s discussion of prospective application of the statute is contrary to the Court’s policy against issuing advisory opinions on issues not specifically before it: “The majority answers a question that is of no relevance to the instant case and places that answer in the syllabus,” Justice Pfeifer wrote. Justice Pfeifer also stated that “by its own terms, R.C. 2929.191 limits its application to sentences imposed prior to the statute’s effective date.”

In his analysis, the legislature intended R.C. 2929.191 to apply only retrospectively, as a procedural tool to facilitate the prompt resentencing of then-current inmates who might otherwise complete their prison terms before being resentenced, and thereby avoid post-release supervision and control to which they should be subject. Pfeifer wrote that the intent of H.B. 137 was to make basically irrelevant any postrelease-control sentencing errors made after the effective date of the statute. “For the General Assembly, the prospective application R.C. 2929.191 was never a consideration.” Chief Justice Moyer and Justice O’Connor concurred in Justice Pfeifer’s dissent.

Justice Lanzinger entered an opinion, joined by Justice Stratton, in which she 1) concurred with the holding in the second syllabus paragraph that R.C. 2929.191 applies prospectively to defective sentences imposed on or after July 11, 2006, 2) dissented from the portion of the syllabus and lead opinion holding that the statute may not be applied retrospectively to offenders who were sentenced before July 11, 2006; and 3) stated that she would reverse the judgment of the court of appeals and remand Singleton’s case to the trial court for resentencing using the simplified procedure set forth in R.C. 2929.191.

Justice Lanzinger noted her dissents from earlier decisions of the Court holding that sentences lacking a properly imposed term of post-release control are “void.” She wrote: “The majority continues to apply flawed precedent to sentences imposed before the effective date of R.C. 2929.191 in spite of the General Assembly’s intent. Section 5(B) of H.B. 137 plainly states that the new enactment, which abrogates those decisions and provides a method of correction for all sentences, is intended to ‘apply to all convicted offenders ... regardless of whether they were sentenced prior to, or are sentenced on or after, the effective date of this act.’ ... R.C. 2929.191 now provides an additional means by which sentences lacking mandatory postrelease control can be corrected – not by imposing a new sentence or by subjecting the convicted offender to additional discretionary punishment, but by fixing what amounts to a clerical error that omitted a mandatory portion of the sentence. ... I believe that the amendments to R.C. 2929.19 and the enactment of R.C. 2929.191 represent an attempt to return logic and order to this area of the law and that R.C. 2929.191 should be applied both retroactively and prospectively.”

T. Allan Regas, 216.443.7800, for the state and Cuyahoga County prosecutor’s office.
Stephen P. Hardwick, 614.466.5394, for Jason Singleton.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."

Monday, December 21, 2009

Judge Collier's Criminal Docket for December 21, 2009

Medina County Prosecutor Dean Holman reports that the following defendants appeared in Judge Collier's court on Monday, December 21, 2009:

Timothy Senz, 37, of West Liberty Street in Medina, was sentenced to five years of community control sanctions on one count of Non-Support of Dependents, a fifth-degree felony.

Matthew Buettner, 26, of West Smith Road in Medina, pleaded not guilty to one count of Possession of Drugs, a fifth-degree felony. A jury trial is scheduled for March 29.

Steven Dutt, 45, of North Pardee Street in Wadsworth, pleaded guilty to one count of Driving Under the Influence of Drugs or Alcohol, a fourth-degree felony. Sentencing is scheduled for February 1.

Cynthia Calvillo, 33, of Holly Brook Drive in Brunswick, pleaded guilty to one count of Trafficking in Drugs, a fourth-degree felony. Sentencing is scheduled for January 25.

Stephanie Early, 24, of Willowbrook Lane in Hinckley, pleaded not guilty to one count of Possession of LSD, a fifth-degree felony. A jury trial is scheduled for March 31.

Jeremiah Mata, 25, of Main Street in Wadsworth, pleaded not guilty to one count of Burglary, a second-degree felony. A jury trial is scheduled for February 17.

Joseph Mullen, 20, of Otoe Avenue in Tallmadge, pleaded not guilty to one count of Theft of a Firearm, a third-degree felony. A jury trial is scheduled for March 31.

Diana Pierce, 44, of Spring Hill, Florida, pleaded not guilty to one count of Forgery and one count of Theft, both of which are third-degree felonies. A jury trial is scheduled for March 24.

Jamie Shupe, 38, of Glenway Drive in Brook Park, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for March 24.

Christmas at Valley Forge

By Ohio Supreme Court Justice Paul Pfeifer

It is the soldiers’ fate, it would seem, to be away from home at Christmas. It’s no wonder that the World War II-era song, I’ll Be Home For Christmas, was known as the “soldier’s theme song.”

This year, as with so many Christmases past, thousands of our sons and daughters are far from the love of family and the comforts of home. For the American soldier this is nothing new; it’s a tale that goes back to the beginning, back to a place called Valley Forge.

It’s a name familiar to anyone who took an American history class: Valley Forge, where General Washington and his men spent a harrowing winter in the Pennsylvania countryside battling – not the British – but the elements. They arrived at Valley Forge on December 19, 1777, exhausted, hungry and cold.

Just a year before, on Christmas night 1776, General Washington had delivered the young nation a stunning victory when he and his troops crossed the ice-choked Delaware River under cover of dark and caught the Hessians – the German mercenaries fighting for the British – unprepared. The ensuing fight was quick and relatively bloodless, owing to the element of surprise.

The victory at the Battle of Trenton, as it came to be known, was vital to the American cause. Throughout 1776 Washington’s troops had suffered one defeat after another: the Battle of Trenton, quite probably, saved the Revolution.

But just 12 months later, in December 1777, the victory at the Battle of Trenton seemed but a distant memory, and the Continental Army was in worse shape than ever. As the beleaguered men trudged along the road to their winter quarters, “you might have traced the army from White Marsh to Valley Forge by the blood of their feet” in the snow, General Washington later wrote.

What those men faced at Valley Forge during that winter was deprivation of a kind that most of us, thankfully, will never be able to imagine. The suffering began almost immediately. One soldier wrote in his journal that this is “the third day we have been without flour or bread – and are…laying on the cold ground.”

In his book about Valley ForgeWashington’s Secret War – author Thomas Fleming tells of one officer who reported to General Washington that half the men in his division were “walking barefooted on the ice or frozen ground.”

And another soldier, Private Joseph Martin, confirmed that in his memoir: “‘The great part’ of the army ‘were…shirtless and barefoot.’ Martin explained how he had fashioned crude moccasins from a piece of ‘raw cowhide,’ but he soon gave them up because the hard edges cut deep ridges in his ankles. Thereafter he went barefoot ‘as hundreds of my companions had to.’”

Food was as scarce as shoes and warm clothing, and for most of the winter, feeding the army would be an on-going struggle, caused both by shortages and a bureaucratic morass that hampered the army’s every move. Adding to the misery, the sanitary conditions in camp were less than ideal. Although the British never attacked Valley Forge, roughly 2,500 men perished during that harsh winter, mostly from disease and the elements.

When Christmas dawned on Valley Forge there was little reason for hope, but Washington did his best to bolster the morale of his men. “On Christmas Day,” Fleming writes, “it began to snow heavily. Struggling to establish a semblance of hospitality, Washington provided a spartan Christmas dinner for his aides.” The meal “was as plain and rough as the surrounding landscape; unadorned mutton, veal, potatoes, and cabbage, washed down by water.”

Of course, Christmas was only the beginning of the winter. In the days that followed, hundreds of crude log huts were constructed that provided some shelter from the weather. While conditions were never pleasant, and food was never plentiful, as the weeks passed the camp slowly began to take shape.

The biggest change came in late February, when Baron von Steuben – a German army officer – arrived in camp to offer his military skills to the Continental Army. Von Steuben began putting the American soldiers through drills that were common to professional European armies.

And there, in the Pennsylvania countryside, despite the struggles and miseries, something extraordinary occurred: the nearly defeated band of men who stumbled into Valley Forge in December 1777, barely resembling an army, emerged from that wintry crucible the next spring as a disciplined fighting force, capable and ready to face the mighty British army.

That’s why the name Valley Forge retains a high place in the American lexicon. True, there was no great battle fought there; no great victory was won in that place. But Valley Forge represents something more. It stands as a testament to the camaraderie that is forged from shared hardship, and the iron will that manifests itself when a group of homesick but determined American soldiers endure adversity and overcome the near impossible.

Washington’s men straggled into Valley Forge in December 1777 as individual patriots; they marched out of Valley Forge into the annals of legend.

And so it is that those men who spent Christmas at Valley Forge share a bond with the soldiers who froze at Bastogne during Christmas of 1944, and with the soldiers who spent Christmas huddled on a hillside in Korea or in a jungle in Vietnam, and with the soldiers who right now are half-a-world away in the frigid mountains of Afghanistan or the deserts of Iraq, and with any American who ever spent Christmas in uniform, serving their country far from home.

Although the “soldier’s theme song” wasn’t written until 1943, it speaks to the hope of soldiers from any era: “I’ll be home for Christmas, you can count on me…I’ll be home for Christmas, if only in my dreams.”

Whether you’re home for the holidays this year – or just dreaming of it – may you all have a Merry Christmas.

Judge Kimbler's Criminal Docket for December 17, 2009

The following defendants appeared in Judge Kimbler’s court on December 17, 2009 for sentencing:

Edward D. Walters, III, of Birch Hill Drive in Medina, Ohio, was sentenced on two counts of Trafficking in Drugs, (Marijuana). One count was a fourth degree felony and the other was a fifth degree felony.

Judge Kimbler sentenced Mr. Walters to three years of supervision by the Medina County Adult Probation Department; ordered him to complete 24 hours of community service; obtain an assessment at a state certified anti-drug program and follow all aftercare recommendations; and serve a license suspension of six months. He was also ordered to pay court costs and a monthly community control sanction fee. In the event that he violates the conditions of his supervision, he is looking at a six month prison sentence.

Frances E. Rich of West Union Street in Medina, Ohio, was sentenced on one count of Theft, a fifth degree felony.

Judge Kimbler sentenced her to three years supervision by the Medina County Adult Probation Department and ordered her to make restitution in the amount of $3146.49 to her victim. The restitution must be paid in 18 equal installments starting on the February 13, 2010 and continuing on the 13th of each month thereafter. Judge Kimbler waived her court costs and did not impose a community control sanction fee. In the event that she violates the conditions of her supervision, she is looking at a 10 month prison sentence.

Rebecca L. Prechtel of West Liberty Street in Medina, Ohio, was sentenced on one count of Theft, a fifth degree felony. She is the sister of Frances Rich and both women stole from the same victim.

Judge Kimbler sentenced her to five years of supervision by the Medina County Adult Probation Department and ordered her to pay $8172.28 in restitution. The restitution is to be paid in one installment of $1000.00, due within seven days of her sentencing and then by payments of $200.00 per month, with each payment due on the 15th of each month. Judge Kimbler waived her court costs and did not impose a community control sanction fee. If she violates the conditions of her supervision, she is looking at a 10 month prison sentence.

Kevin R. Cook of Young Drive in Lodi, Ohio was sentenced on one count of Theft, a first degree misdemeanor. Judge Kimbler imposed a 180 day jail sentence, but suspended the jail sentence on the following conditions:

1. He is to be under the supervision of the Medina County Adult Probation Department for two years;
2. He is to perform 24 hours of community service;
3. He is to have no contact with the co-defendant Pamela Maiher;
4. He cannot consume or possess alcohol while under supervision;
5. He is obtain and maintain gainful and verifiable employment;
6. He is to submit to drug and alcohol testing as directed by his Probation Officer; and
7. He is to pay all court costs, community control sanction fees; and drug testing fees associated with this case.

Some Ohio Foreclosure Law

By Judge James L. Kimbler
A recent Ninth District Court of Appeals decision out of Summit County, Emerson Tool, L.L.C. v. Emerson Family Ltd. Partnership, 2009-Ohio-6617 addressed the issue of whether an entry ordering a foreclosure is a separate and appealable issue from an entry ordering a sheriff's sale. In paragraph 13 of Judge Whitmore's opinion, the following language appears:

"In a foreclosure action, the decree of foreclosure and the order confirming sale are separate and distinct actions, both of which constitute final appealable orders once entered. Citifinancial, Inc. v. Haller-Lynch, 9th Dist. No. 06CA008893, 2006-Ohio-6908, at 5-6. See, also, Bankers Trust Co. of California, N.A. v. Tutin, 9th Dist. No. 24329, 2009-Ohio-1333, at 14; Triple F Invests., Inc. v. Pacific Fin. Servs., Inc. (June 2, 2001), 11th Dist. No. 2000-P-0090, at *3. “The distinction is not merely academic, but has important procedural implications.” Smith v. Najjar, 163 Ohio App.3d 208, 2005-Ohio-4720, at 11. Before entering an order confirming the sale, a trial court must determine that all the statutory requirements for the sale have been met. R.C. 2329.31 (requiring that the trial court first determine if “the sale was made, in all respects, in conformity with sections 2329.01 to 2329.61 of the Revised Code” before issuing an order confirming the sale). See, also, Najjar at 10; Tadmor v. Huntington Natl. Bank, 9th Dist. No. 23021, 2006- Ohio-3818, at 5. Because the confirmation of a sheriff’s sale is a special proceeding, it is a final appealable order under R.C. 2505.02(B)(2). Metro. Bank & Trust Co. v. Roth, 9th Dist. No. 21174, 2003-Ohio-1138, at 12, citing Citizens Loan & Savings Co. v. Stone (1965), 1 Ohio App.2d 551, 552-553."

The syllabus in the Citizens Loan & Savings Co. case cited by Judge Whitmore lays out who has standing to file an appeal of a order confirming a sheriff's sale. The syllabus reads as follows:

1. Confirmation of a sale in a mortgage foreclosure proceeding is a special proceeding, and the order of confirmation is a final order appealable by the mortgagor. The purchaser at the sale is a party entitled to be heard upon confirmation and a party to the appeal.

2. The determination of the amount due on the debt in a foreclosure proceeding is not a money judgment.

3. A confirmation of a sale in a foreclosure proceeding requires a true hearing, including an opportunity for interested persons to be heard.

4. The mortgagor's right to redeem exists and may be exercised as an absolute right until confirmation of the sale. It cannot be cut off prior to confirmation, and the purchaser at the sale acquires no vested right to the property until after confirmation.

5. Where the only lien adjudicated to be valid has been redeemed by payment prior to the sale, there is no substantial reason to proceed with the sale, and it is error thereafter to confirm such sale. A purchaser at such a sale who was aware of the redemption before sale is not entitled to interest on his deposit from the person holding the mortgagor's title.

The Ohio Supreme Court upheld the power of a court of common pleas to adopt a local rule allowing for ex parte consideration of confirmation orders in Union Bank Co. v. Brumbaugh (1982), 69 Ohio St. 2d 202. In that case, the Ohio Supreme Court held that under the Modern Courts Amendment ( Ohio Const. Art. IV, § 5(B)) to the Ohio Constitution, local rules adopted pursuant to a the Ohio Rules of Civil Procedure controlled if they conflict with prior court decisions or statutes. In the Union Bank case, the Supreme Court found that the holding in the Citizens Bank case that a trial court had to conduct a full hearing prior to confirming a sheriff's sale conflicted with the local rule. Therefore, the local rule controlled.

The Ohio Supreme Court also issued a ruling in another case that dealt with the legal principle set forth in the first paragraph of the syllabus in the Citizens Bank case. In Ohio Sav. Bank v. Ambrose( 1990), 56 Ohio St. 3d 53, the Court wrote the following in its opinion syllabus:

Purchasers at a foreclosure sale have no vested interest in the property prior to confirmation of the sale by the trial court. As a result, the purchasers have no standing to appeal when the trial court denies confirmation.

In summary, then, it appears that under Ohio law:

1. The judgment entry granting the foreclosure and the judgment entry confirming the sheriff's sale are both final and appealable orders;

2. A common pleas court does not have to hold a hearing before signing an entry confirming the sheriff's sale;

3. A mortgagor has a right to redeem the property prior to confirmation of sale; and

4. If confirmation is denied, the buyers at the sheriff's sale have no standing to file an appeal.

Saturday, December 19, 2009

Computer Evidence

EDITOR’S NOTE: The case referred to is: State v. Rivas, 121 Ohio St.3d 469, 2009-Ohio-1354. Case No. 2007-1611. Decided March 31, 2009. Majority opinion written by Justice Terrence O’Donnell.

By Ohio Supreme Court Justice Paul Pfeifer
On January 3, 2005, Detective Alonzo Wilson, a member of the Xenia Police Division’s Internet Child-Protection Unit, logged onto an Internet chat service posing as a 14-year-old female named Molly. A man named Jose Rivas – using the screen name JRivas123 – contacted “Molly” asking for her age, gender, and photograph.

The two carried on an online conversation, and eventually Wilson e-mailed Rivas a teenage photo of a Xenia police detective. Rivas e-mailed Molly an explicit photo which, he claimed, was of him. He then propositioned her and offered her $200 to engage in sexual activity with him. Rivas eventually arranged to meet Molly at a hotel. After police observed Rivas checking in, Wilson arrested him.

Prior to trial, Rivas filed a motion to preserve the state’s electronic evidence and he sought a mirror image of the hard drive of the state’s computer used by Wilson to communicate with him. The trial court ordered the state to allow Rivas to inspect the computer, but the prosecution refused to allow the defense to retrieve a mirror image of the hard drive, citing “security reasons.” The prosecution did provide a transcript of the conversations and a compact disc containing an electronic copy of the online communications.

Rivas then filed a motion to suppress the computer-generated evidence and to compel the state to provide a mirror image of the computer hard drive. But the trial court denied the motion, concluding that Criminal Rule 16 – one of the rules that govern the proceedings of a trial – did not require the state to produce an exact copy of its computer hard drive “in the absence of allegations and some evidence that what has been provided is not accurate.”

The jury found Rivas guilty of importuning and attempted unlawful sexual conduct with a minor, but both convictions were reversed on appeal. The court of appeals concluded that the trial court had violated Rivas’s right to a fair trial when it refused him the opportunity to verify the accuracy and completeness of the computer transcripts prepared by the state.

After the court of appeals ruling, the case came before us – the Supreme Court of Ohio. Essentially, the case came down to this question: Did Rivas have a right to the mirror image of the hard drive? By a four-to-three vote, the majority of our court determined that he did not.

The previously mentioned Criminal Rule 16 permits the accused to inspect tangible evidence that is material to the preparation of his defense. But the majority concluded that in order to inspect the hard drive, Rivas was required to make a prima facie showing – meaning at first appearance, before investigation – that the information in the transcript was false, incomplete, adulterated, or spoliated.
The majority maintained that in other cases in which the accused claimed that the government withheld or destroyed evidence, our court has determined that the burden of proof falls on the party alleging spoliation.

But three members of our court disagreed with this conclusion. Chief Justice Thomas J. Moyer, Justice Robert R. Cupp, and I cast dissenting votes because the majority’s holding contrasted with the plain language of Criminal Rule 16 and because appropriate mechanisms otherwise exist within the Criminal Rules to safeguard information not relevant to the defendant’s defense.

In a dissent that Chief Justice Moyer and I joined, Justice Cupp wrote, “There is no requirement in the discovery provisions of the Criminal Rules that a defendant who wishes to verify the accuracy of the printed version of electronic data stored on a state’s computer hard drive must first make a prima facie showing that the state provided false, incomplete, adulterated, or spoliated evidence.

“Although defendant’s basis for asserting a discrepancy between the printed version of the data and the version that resides on the computer hard drive may seem unusual, there is no justification for creating, as the majority opinion does, a permanent judicial gloss over the plain language of the discovery rules to short-circuit defendant’s discovery request.”

The only limitations in the Criminal Rule are that evidentiary materials must be in the state’s possession and must be (1) material to the preparations of defense, (2) intended for use by the prosecuting attorney as evidence at the trial, or (3) obtained from or owned by the defendant.

In this case, the hard drive was in the state’s possession and was material to Rivas’s defense theory. In contrast to the majority’s holding, nothing in the text of the Criminal Rule requires a defendant to demonstrate any threshold indicating the unreliability of the challenged evidence in the state’s custody.

The trial court should have ordered the state to produce the hard drive for Rivas’s inspection. As the court of appeals recognized, “forcing a litigant to rely upon an adverse party’s representation that a transcript” is accurate without allowing any verification of that accuracy is inconsistent with general notions of a fair trial.

True, the state has legitimate reason to prevent Rivas unrestricted access to the data on the computer, but the methods by which a court may limit access to only the information needed for his defense are delineated in the Criminal Rules as well. The state can use protective orders and restrictions on the time, place, and manner of the inspection and copying of evidence.

The exact form of protective measure is a decision best left to the sound discretion of the trial court, but the fact remains that such a safeguard exists within Criminal Rule 16.

“Rather than improvising a standard that is unsupported by the plain language of the criminal rule and likely to have unforeseen consequences,” Justice Cupp concluded, “we should hold that the safeguards specially contemplated by the rule should be used to prevent disclosure of information not relevant to a defendant’s defense.”

Nevertheless, despite our dissent, the majority decision holds sway. According to the majority, Rivas failed to meet his burden of proof, and the state complied with its obligations. We therefore reversed the judgment of the court of appeals.

Wednesday, December 16, 2009

Ohio Surpeme Court Bars Warrantless Cell Phone Search Unless Necessary for Officer Safety or to Preserve Evidence

The case summary below was prepared by the staff of the Ohio Supreme Court
008-1781. State v. Smith, Slip Opinion No. 2009-Ohio-6426.
Greene App. No. 07-CA-47, 2008-Ohio-3717. Judgment of the court of appeals reversed, and cause remanded to the trial court.
Moyer, C.J., and Pfeifer, O'Connor, and Lanzinger, JJ., concur.
Lundberg Stratton, O'Donnell, and Cupp, JJ., dissent.

The Supreme Court of Ohio ruled on December 15, 2009 that the Fourth Amendment prohibition against unreasonable searches and seizures requires police to obtain a warrant before searching data stored in a cell phone that has been seized from its owner in the course of a lawful arrest when the search is not necessary to protect the safety of law enforcement officers and there are no exigent circumstances.

The Court’s 4-3 majority decision, which reversed a ruling of the 2nd District Court of Appeals, was authored by Justice Judith Ann Lanzinger.

Antwaun Smith was arrested on drug-related charges after responding to a call to his cell phone that had been placed by a crack cocaine user acting as a police informant. During the arrest, police searched Smith and found a cell phone on his person. The arresting officer put the cell phone in his pocket and placed Smith in a cruiser, then searched the scene for evidence. Later, police recovered bags containing crack cocaine at the scene. Officers subsequently searched the contents of Smith’s phone without a search warrant or his consent. They discovered call records and stored numbers that confirmed prior calls between Smith’s phone and the informant’s phone number. Smith was charged with possession of cocaine, trafficking in cocaine, tampering with evidence and two counts of possession of criminal tools.

During pretrial proceedings, Smith moved to suppress all evidence police had obtained through the search of his cell phone, arguing that in conducting that search without first obtaining a warrant, the officers had violated his constitutional right against unreasonable search and seizure. The trial court ruled that it would not allow the state to use photographs taken from Smith’s cell phone, but denied the motion to suppress as it related to the call records and stored numbers discovered on Smith’s phone, citing a 2007 federal court decision, United States v. Finley, which held that a cell phone is similar to a closed container found on an arrestee’s person and therefore subject to search by an arresting officer without a warrant. Smith was convicted on all counts and sentenced to 12 years in prison.

He appealed his convictions and sentence, asserting among other claims that the trial court had erred in denying his motion to suppress evidence obtained through the warrantless phone search. In a 2-1 decision, the 2nd District Court of Appeals affirmed the action of the trial court. The dissenting member of the three-judge panel cited a different federal court’s decision, United States v. Park, which held that a cell phone is not a “container” as that term is used in prior Fourth Amendment cases, and that a warrantless police search of data stored in a defendant’s cell phone was unconstitutional. Smith sought and was granted Supreme Court review of the 2nd District’s ruling with regard to the constitutionality of the phone search.

In today’s decision, Justice Lanzinger wrote: “Smith bases his challenge on the Fourth Amendment to the United States Constitution, which provides protection against unreasonable searches and seizures. It is well established that searches conducted without a warrant are per se unreasonable, subject to certain ‘jealously and carefully drawn’ exceptions.’ Jones v. United States (1958). ... The exception that the state relies on is the search incident to arrest, which allows officers to conduct a search that includes an arrestee’s person and the area within the arrestee’s immediate control. ... This exception ‘derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations.’ Arizona v. Gant (2009). ... But when the interests in officer safety and evidence preservation are minimized, the court has held that this exception no longer applies.”

Noting that neither the U.S. Supreme Court nor any other state supreme court appears to have ruled on the Fourth Amendment implications of a cell phone search, Justice Lanzinger said the two leading cases on that issue appear to be the conflicting federal court decisions cited in the 2nd District’s majority and dissenting opinions.

She wrote: “In United States v. Finley ...the Fifth Circuit upheld the district court’s denial of defendant’s motion to suppress call records and text messages retrieved from his cell phone. ... Finley was arrested during a traffic stop after a passenger in his van sold methamphetamine to an informant. During the search incident to the arrest police found a cell phone in Finley’s pocket. He was taken along with his passenger to the passenger’s house, where other officers were conducting a search. While Finley was being questioned there, officers examined the cell phone’s call records and text messages, finding evidence that appeared to be related to narcotics use and drug trafficking. ... In upholding the search, the Fifth Circuit analogized Finley’s cell phone to a closed container found on an arrestee’s person, which may be searched. ... Notably, Finley had conceded that a cell phone was analogous to a closed container. ... Because Smith does not concede here that a cell phone is analogous to a closed container, the analysis in Finley is not entirely applicable.”

“The United States District Court for the Northern District of California, disagreeing with the Fifth Circuit’s decision in Finley, granted a defendant’s motion to suppress the warrantless search of his cell phone. United States v. Park (N.D.Cal., May 23, 2007). Police officers observed Park entering and leaving a building that they had under surveillance and for which they had obtained a search warrant. When they executed the warrant and searched the building, they found evidence of an indoor marijuana-cultivation operation. They arrested Park and took him to booking, where they searched him and found a cell phone. Before turning over the cell phone to the booking officer, the arresting officer recorded names and phone numbers found in Park’s cell phone. ... Because the search of the cell phone’s contents was not conducted out of concern for the officer’s safety or to preserve evidence, the court found that it did not fall under the search-incident-to-arrest exception and that the officers should have obtained a warrant to conduct the search.”

In this case, Justice Lanzinger wrote, “The state argues that we should follow Finley and affirm the court of appeals because the trial court was correct in its conclusion that a cell phone is akin to a closed container and is thus subject to search upon a lawful arrest. We do not agree with this comparison, which ignores the unique nature of cell phones. Objects falling under the banner of ‘closed container’ have traditionally been physical objects capable of holding other physical objects. Indeed, the United States Supreme Court has stated that in this situation, ‘container’ means ‘any object capable of holding another object.’ New York v. Belton (1981).”

While acknowledging several federal court decisions during the 1990s that treated electronic pagers and computer memo books as closed containers for search and seizure purposes, Justice Lanzinger wrote: “Each of these cases, however, fails to consider the Supreme Court’s definition of ‘container’ in Belton, which implies that the container must actually have a physical object within it. Additionally, the pagers and computer memo books of the early and mid-1990s bear little resemblance to the cell phones of today. Even the more basic models of modern cell phones are capable of storing a wealth of digitized information wholly unlike any physical object found within a closed container. We thus hold that a cell phone is not a closed container for purposes of a Fourth Amendment analysis.”

“Although cell phones cannot be equated with laptop computers, their ability to store large amounts of private data gives their users a reasonable and justifiable expectation of a higher level of privacy in the information they contain,” wrote Justice Lanzinger. “Once the cell phone is in police custody, the state has satisfied its immediate interest in collecting and preserving evidence and can take preventive steps to ensure that the data found on the phone is neither lost nor erased. But because a person has a high expectation of privacy in a cell phone’s contents, police must then obtain a warrant before intruding into the phone’s contents.”

“ ... We hold that the warrantless search of data within a cell phone seized incident to a lawful arrest is prohibited by the Fourth Amendment when the search is unnecessary for the safety of law-enforcement officers and there are no exigent circumstances. Because the state failed to show that either of these exceptions to the warrant requirement applied, the search of Smith’s cell phone was improper and the trial court was required to exclude from evidence the call records and phone numbers taken from the cell phone. We accordingly reverse the judgment of the court of appeals and remand to the trial court for proceedings consistent with this opinion.”

Justice Lanzinger’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer and Maureen O’Connor.

Justice Robert R. Cupp entered a dissenting opinion, joined by Justices Evelyn Lundberg Stratton and Terrence O’Donnell, stating that in his view the majority erred by “needlessly theorizing” about cell phone capabilities in the abstract rather than following Finley and similar decisions which have held that police may conduct warrantless searches of closed containers found on the person of an arrestee. He wrote: “As the majority opinion recognizes, a cell phone’s digital address book is akin to traditional address books carried on the person. Courts have upheld police officers’ search of an address book found on an arrestee’s person during a search incident to a lawful arrest. ... The phone’s call list is similar, showing a list of telephone numbers that called to or were called from the phone.

Thus, I would hold that the search here—which resembles police officers’ search of a traditional address book found on the person of an arrestee during a search incident to arrest—is permissible under the Fourth Amendment.

“The majority bases its broad holdings on its estimation of the possible capabilities of other cell phones and computers. But here only the address book and call records were admitted into evidence. The issue of a more in-depth warrantless search of ‘data within a cell phone’ is not before us. I would leave for another day, to a case that factually raises the issue directly, the question of whether police may perform more in-depth searches of information on cell phones that have capabilities akin to a computer.”

Stephen K. Haller, 937.562.5250, for the state and Greene County prosecutor’s office.

Craig M. Jaquith, 614.644.1568, for Antwaun Smith.

Monday, December 14, 2009

Ohio Supreme Court Gives Right to Immediate Appeal of Trial Court's Order Granting or Denying Arbitration Stay

Below is an opinion summary prepared by the Ohio Supreme Court
2009-0054. Mynes v. Brooks, Slip Opinion No. 2009-Ohio-5946.
Scioto App. No. 07CA3185, 2008-Ohio-5613. Certified question answered in the affirmative, judgment reversed, and cause remanded.
Moyer, C.J., and Lundberg Stratton, O'Connor, and Cupp, JJ., concur.
Pfeifer and Lanzinger, JJ., dissent.
O'Donnell, J., dissents and would affirm the judgment of the court of appeals.

The Supreme Court of Ohio ruled on November 18, 2009 that when a party in a civil lawsuit moves for a stay of trial pending arbitration of the dispute, and the trial court issues an order granting or denying the requested stay, R.C. 2711.02(C) permits an immediate appeal of the trial court’s order, even when that order does not include a judicial determination that there is “no just cause for delay” in pursuing an appeal as required by Civil Rule 54(B).

The Court’s 4-3 majority opinion, which reversed a decision of the 4th District Court of Appeals, was authored by Chief Justice Thomas J. Moyer.

Rule 54(B) of Ohio’s rules of civil procedure addresses the appealability of “partial” orders or rulings issued by a trial court in civil lawsuits that involve multiple claims and/or multiple plaintiffs or defendants. The rule states that when a trial court issues an order or ruling that affects less than all of the parties, or less than all of the claims or rights asserted by or against a single party, that ruling is a “final order” subject to immediate review by a court of appeals only if the trial court includes in its order an express determination that “there is no just cause for delay” in seeking appellate review.

In this case, Timothy and Janeen Mynes of Portsmouth purchased a home and surrounding property in Scioto County. Prior to closing, they contracted with JDG Home Inspections Inc., d/b/a The HomeTeam Inspection Service, to identify any problems or defects on the property. The Myneses subsequently filed suit against JDG, inspector Tom Gambill, the prior owners of the property, the realtors involved in the sale and other defendants. Their complaint asserted multiple tort claims against the various defendants including, among others, breach of fiduciary duties, failure to disclose defects, and negligence.

During pretrial proceedings, JDG filed a motion asking the court to stay all of the Myneses’ claims against it on the basis that the home inspection contract the two parties had signed included an agreement to arbitrate any disputes or damage claims arising from the inspection. The court initially granted an unopposed motion to stay proceedings on all claims involving JDG pending the results of arbitration. Several months later, while the Myneses’ claims against the other defendants remained pending, the trial judge granted a motion by the Mynses to reconsider the stay, and issued a new order vacating the stay and directing the parties to proceed with litigation of the Myneses’ claims against JDG. The new order did not include Civ.R. 54(B) language indicating that there was no just cause for delay of an appeal. JDG attempted to appeal the order vacating the stay for arbitration, but the 4th District Court of Appeals ruled that because the trial court had not included the required Civ.R. 54(B) language, its partial order was not yet ripe for appeal.

The 4th District certified that its ruling on the appealability of the trial court’s order was in conflict with prior rulings on the same legal issue by the 6th and 11th District courts of appeals. The Supreme Court agreed to review the case to resolve the conflict among appellate districts.

Writing for the majority in today’s opinion, Chief Justice Moyer noted that, while this case was pending on appeal, the Court issued an opinion regarding final appealable orders in a very similar case, Sullivan v. Anderson Township (May 2009). “In Sullivan,” he wrote, “we examined R.C. 2744.02(C), which provides: ‘An order that denies a political subdivision or an employee of a political subdivision the benefit of an alleged immunity from liability as provided in this chapter or any other provision of the law is a final order.’ In that case, the trial court’s order denied the township’s motion for judgment on the pleadings on the issue of political subdivision immunity in a multiparty, multiclaim lawsuit. That order did not finally determine all claims, nor did it include the certification required by Civ.R. 54(B). … Nevertheless, we reasoned that the ‘general rules regarding final appealable orders in multiparty and/or multiclaim cases’ that ‘involve the tandem of R.C. 2505.02(B) for substance and Civ.R. 54(B) for procedure’ did not apply to the order at issue.”

“Civ.R. 54(B) certification ordinarily serves to confirm that the trial court has determined that its order should be appealable. The trial court makes this determination ‘in order to further the efficient administration of justice and to avoid piecemeal litigation or injustice attributable to delayed appeals.’ … But in Sullivan, we held that such a determination by the trial court was not necessary; the General Assembly had already made the determination that such orders were immediately appealable by indicating, in R.C. 2744.02(C), that the orders are ‘final.’

“We find Sullivan controlling in this case. Like Sullivan, this action involves multiple parties and claims, and the order did not contain the Civ.R. 54(B) certification. And, as in Sullivan,the order in this case was a final, appealable order according to statute, even without Civ.R. 54(B) certification.

R.C. 2711.02(C) provides: ‘[A]n order … that grants or denies a stay of a trial of any action pending arbitration … is a final order and may be reviewed, affirmed, modified, or reversed on appeal pursuant to the Rules of Appellate Procedure and, to the extent not in conflict with those rules, Chapter 2505. of the Revised Code.’ Just as with the statute in Sullivan, the General Assembly has already determined that orders under the ambit of R.C. 2711.02(C) are final and appealable. Therefore, there is no need for the trial court to determine whether to certify the order for appeal.”

Chief Justice Moyer’s opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor and Robert R. Cupp.

Justice Judith Ann Lanzinger entered a dissent, joined by Justice Paul E. Pfeifer, noting that she dissented from the Court’s decision in Sullivan, and that the legal reasoning underlying her dissent in that case was also applicable here. She wrote: “The trial court has been given authority under Civ.R. 54(B) to decide whether to render final orders appealable in multiparty litigation; this authority is not affected by R.C. 2711.02(C).”

Justice Terrence O’Donnell dissented without opinion, stating that he would affirm the judgment of the court of appeals.

Scott L. Braum, 937.396.0089, for JDG Home Inspections Inc.

Kristin Rosan, 614.228.5600, for Timothy and Janine Mynes.

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