Judge Kimbler's Criminal Docket for Thursday, April 29, 2010

Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Kimbler's court on Thursday, April 29:

Jessica Daversa, 23, of Chatham Road in Spencer, was sentenced to three years of community control sanctions on one count of Trafficking in Drugs, a fourth-degree felony, and one count of Possession of Drugs, a fifth-degree felony.

Anna Fraczek, 55, of North Jefferson Street in Medina, was sentenced to three years of community control sanctions on one count of Forgery, a fifth-degree felony.

Daniel Hapsic, 46, of Main Street in Mineral Ridge, was sentenced to six months in prison on one count of Possession of Cocaine, a fifth-degree felony.

Amber Haughawout, 20, of West Market Street in Akron, was sentenced to three years of community control sanctions on one count of Possession of Heroin, a fifth-degree felony.

Alycia Hines, 28, of Jefferson Avenue in Brunswick, was sentenced to three years of community control sanctions on one count of Possession of Marijuana, a third-degree felony.

Michelle Just, 45, of Heather Lane in Medina, was sentenced to three years of community controls sanctions on two counts of Trafficking in Drugs within the Vicinity of a Juvenile and two counts of Possession of Drugs, all of which are third-degree felonies.

Jerrell Neptune, 22, of Graton Road in Brunswick, was sentenced to three years of community control sanctions on one count of Trafficking in Marijuana, a fifth-degree felony.

Joseph Strehl III, 54, of Columbia Road in Valley City, was sentenced to 180 days in jail on one count of Driving Under the Influence of Drugs or Alcohol, a fourth-degree felony.

Steven Warden, 35, of Jefferson Avenue in Medina, was sentenced to two years in prison on one count of Illegal Manufacture of Drugs within the Vicinity of a Juvenile, a second-degree felony.

Stephanie Arthur, 24, of North Harmony Street in Medina, pleaded not guilty to one count of Failure to Comply with a Police Officer, a third-degree felony, and one count of Endangering Children, a first-degree misdemeanor. A jury trial is scheduled for July 17.

William Carson, 53, of Cree Avenue in Akron, pleaded not guilty to the following charges: one count of Burglary, a second-degree felony; one count of Attempted Burglary, a third-degree felony; two counts of Breaking and Entering, both of which are fifth-degree felonies; and one count of Possessing Criminal Tools, a fifth-degree felony. A jury trial is scheduled for July 12.

Amanda Justice, 29, of Northpark Drive in Wadsworth, pleaded not guilty to one count of Possession of Heroin and one count of Possession of Drugs, both of which are fifth-degree felonies. A jury trial is scheduled for July 13.

Michael Kirby, 44, of Grant Street in Medina, pleaded not guilty to one count of Domestic Violence, a fourth-degree felony. A jury trial is scheduled for July 6.

David Walker, 24, of North Lyman Street in Wadsworth, pleaded not guilty to the following charges: one count of Burglary, a second-degree felony; one count of Theft of a Dangerous Drug, a third-degree felony; and one count of Theft from the Elderly, a fourth-degree felony. A jury trial is scheduled for July 6.

Ohio Supreme Court Submits "Open Discovery" Criminal Rule Change to General Assembly

he Supreme Court of Ohio today filed with the Ohio General Assembly final amendments to the annual update of the Rules of Practice and Procedure, including changes to the criminal discovery process that were developed through a collaborative process led by the late Chief Justice Thomas J. Moyer and including the criminal defense bar and prosecutors.

The amendments concern changes to the rules of criminal procedure and the rules of appellate procedure. Specifically, the amendments to Criminal Rule 16 call for a more open discovery process, and the revision of several rules of appellate procedure implements a procedure for en banc consideration in courts of appeals when separate three-judge panels within the same court of appeals reach conflicting decisions on the same matter of law.

The new discovery process would allow defense counsel access to materials that, under the current rule, prosecutors did not have to divulge. Changes in Crim.R. 16 also call for establishing a defendant’s reciprocal duty of disclosure and seek to protect victims and witnesses from potential harassment.

The discovery reforms were developed through an extraordinary cooperative process that involved leaders of the Ohio Prosecuting Attorneys Association and Ohio Association of Criminal Defense Lawyers. Chief Justice Moyer had urged them to collectively develop proposed rules that would be considered for adoption by the Supreme Court.

“The patience and spirit of cooperation required to realize these important and necessary changes to the discovery process speak volumes about Chief Justice Moyer’s collaborative, collegial nature,” said Justice Paul E. Pfeifer. “His vision and persistence and, finally, his stubbornness in supporting a just cause, led to this remarkable achievement for our legal system. For well over a decade, he worked for this change, and we have been through numerous starts and stops. But today, we stand in a great place – the proposed Crim.R. 16 emerged from this court by a unanimous vote, has the support of prosecutors and defense attorneys, and, we think, bipartisan support in the General Assembly. All of that is the direct result of Tom’s stewardship.”

The en banc provisions of the appellate procedure rules result from the Supreme Court’s decision in McFadden v. Cleveland State Univ. The Court held that “if the judges of a court of appeals determine that two or more decisions of the court on which they sit are in conflict, they must convene en banc to resolve the conflict.” Language was also added to the proposed amendments to ensure that an order or entry in reconsideration that results in an intra-district conflict also could be subject to en banc consideration.

Other changes to the criminal procedure rules include amending Crim. R. 12(K) to accommodate the new interlocutory appeal to review a trial court’s ruling on a prosecutor’s non-disclosure of material granted under proposed Crim. R. 16(F)(2). Amendments to Crim. R. 41 permit applications and approvals of search warrants to be accomplished by electronic means, including facsimile transmission.

The amendments were adopted unanimously by the seven Justices of the Supreme Court, with the exception of Crim. R. 41, which was adopted 6-1 with Justice Terrence O’Donnell voting no.

According to the Ohio Constitution, amendments to rules of procedure must be filed with the General Assembly. After the initial filing, which must occur before Jan. 15, there was a period of public comment; the Court revised the amendments and filed final versions with the General Assembly before the constitutionally mandated deadline of May 1. The amendments take effect on July 1, unless before that date the General Assembly adopts a concurrent resolution of disapproval. The process also included another public comment period after the amendments were first published last October.

The text of the rule amendments are accessible through the Ohio Supreme Court website.

Judge Kimbler's Court Schedule for April 28-May 4, 2010

Click here to view Judge Kimbler's court schedule for April 28, 2010 through May 4, 2010.

Acting Chief Justice Removes Cuyahoga County Judge from Sowell Case

Acting Ohio Supreme Court Chief Justice Paul Pfeifer removed Cuyahoga County Common Pleas Judge Shirley Strickland-Saffold from the Anthony Sowell case last week. You can read Justice Pfeifer's decision by clicking here. The case was reassigned to Judge Dick Ambrose.

Judicial Procession to Lead Memorial Tribute for former Chief Justice Thomas Moyer on Law Day

A procession of Ohio judges led by a memorial pipe and drum corps will open a memorial tribute for the late Chief Justice Thomas J. Moyer on Law Day in the new Grand Ballroom of the Ohio Union on the campus of the Chief’s beloved Ohio State University.

The Supreme Court of Ohio today released details about the public event that will honor the life and legacy of the late Chief Justice, who died unexpectedly on April 2 eight months shy of the end of his fourth and final six-year term on the Court.

The memorial tribute – to be held this Saturday, May 1, at 11 a.m. – will be broadcast live on the Ohio Channel and streamed live on the Supreme Court’s Web site. The event will recognize Chief Justice Moyer’s significant contributions in a remarkable life dedicated to civility, public service and the rule of law.

At the time of his death, he was the longest-serving current Chief Justice in the country and the second longest-serving Chief Justice in the history of the Supreme Court of Ohio. Certainly, that longevity will be among the focus of tributes on May 1, but hardly the only remembrance.

The ceremony will include a procession of robed judges from the federal bench, Ohio courts and out-of-state courts led by the Pipes and Drums of the Cleveland Police. Each of the six current Justices will offer personal reflections on the Chief. Former Justices and other national and state judicial and legal leaders will offer personal tributes in addition to a video tribute of those whose lives were touched by the Chief Justice. Ohio State University President E. Gordon Gee will also offer remarks.

The event is expected to conclude at about 12:30 p.m.

Members of the general public are welcome. For planning purposes, those attending are asked to make reservations by Wednesday, April 28, by emailing memorial@sc.ohio.gov or calling 614.387.9510.

There is a parking garage attached to the Union, 1739 N. High St. More information is available at the Court’s Web site, www.supremecourt.ohio.gov.

Medina Man Enters Plea and Is Sentenced to Six Months in Jail

Marian N. Potcovaru of Independence Drive in Medina appeared in Judge Kimbler's court on Monday, April 26, 2010 and entered a plea of no contest to one count of Forgery, a fifth degree felony. Judge Kimbler then imposed a six month jail sentence and gave him credit for the time he had spent in the Medina County Jail since his arrest on December 30, 2009.

Judge Collier's Criminal Docket for April 26, 2010

Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Collier's court on Monday, April 26:

Tina James, 43, of Township Road 101 in West Salem, was sentenced to two years of community control sanctions on one count of Trafficking in Drugs within the Vicinity of a School or Juvenile, a third-degree felony and one count of Trafficking in Drugs, a fourth-degree felony. Her vehicle was ordered forfeited to law enforcement and her driver’s license was suspended for six months.

Nicole Stys, 27, of Brainard Avenue in Cleveland, pleaded guilty and was sentenced to 10 months in prison on two counts of Forgery, both of which are fifth-degree felonies.

Billy Tingler, 41, of North Academy Street in Lodi, was sentenced to 40 years in prison on the following charges: two counts of Rape, both of which are first-degree felonies; two counts of Kidnapping, both of which are first-degree felonies; two counts of Endangering Children, both of which are second-degree felonies; and two counts of Breaking and Entering, both of which are fifth-degree felonies. Sexual Motivation Specifications are attached to the Kidnapping charges. He also was classified as a Tier III Sexually Oriented Offender.

Joseph Bowes, 20, of West North Street in Wadsworth, pleaded not guilty to two counts of Unlawful Sexual Conduct with a Minor, both of which are fourth-degree felonies. A jury trial is scheduled for June 7.

Daniel Curtis, 36, of West Bergey Street in Wadsworth, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for July 26.

Cassandra DeJesus, 28, of Homewood Drive in Lorain, pleaded not guilty to one count of Burglary, a second-degree felony, and one count of Theft, a fifth-degree felony. A jury trial is scheduled for June 16.

Anthony Glover II, 26, of Foundry Street in Medina pleaded not guilty to one count of Domestic Violence, a fourth-degree felony. A jury trial is scheduled for May 26.

Jamie Maynard, 23, of Abbeyville Road in Medina, pleaded not guilty to one count of Deception to Obtain a Dangerous Drug, a fifth-degree felony. A jury trial is scheduled for June 14.

Marla Trocchio, 22, of Wadsworth Road in Medina, pleaded not guilty to one count of Deception to Obtain a Dangerous Drug, a fifth-degree felony. A jury trial is scheduled for June 14.

The Linking of Voting and Jury Service in Ohio

by Judge James L. Kimbler

Ohio has long linked voting and jury service. In 1803, the year that Ohio was admitted to the Union, the Ohio General Assembly passed a law that required jurors to have the same qualifications as voters. This meant that jurors were drawn from those residents who had the qualifications of voters. Those qualifications were found in Article IV, Section One, which read as follows:

section 1. In all elections, all white male inhabitants above the age of twenty-one years, having resided in the State one year next preceding the election, and who have paid or are charged with a State or county tax, shall enjoy the right of an elector; but no person shall be entitled to vote, except in the county or district in which he shall actually reside at the time of the election.

The Constitution of 1851 changed the qualifications for voting. Voting qualifications were found in Article V, Section One of the 1851 Constitution, which read as follows:

Section One. Every white male citizen of the United States of the age of twenty-one years, who shall have been a resident of the state one year next preceding the election, and of the county, township, or ward, in which he resides, such time as may be provided by law, shall have the qualifications of an elector and shall be entitled to vote in all elections.

Note that while only white males over 21 could vote, they no longer had to pay either county or state taxes. Since Ohio continued to link voting and jury service, this meant that the number of people who could serve on juries expanded with the change in voting qualifications.

Although the Constitution of 1851 was not amended until 1912, when Ohio's voters passed a series of amendments, the Civil War and the subsequent passage of the Thirteenth, Fourteenth, and Fifteenth Amendments changed the voting qualifications in Ohio. As a result of the passage of these amendments, both the number of voters and the number of potential jurors expanded. No longer could Ohio limit either voting or jury service to white males.

The next expansion of those eligible for jury service came when women got the right to vote with the passage of the Nineteenth Amendment in 1920. Since Ohio law required jurors to be drawn from those who were eligible to vote, the adoption of the Nineteenth Amendment meant that women were now eligible to serve as jurors.

So, by the early 1920s jurors were all residents of Ohio who were 21 years of age or older and who were eligible to vote. This was how things stayed until the adoption of the Twenty Sixth Amendment. That amendment gave the right to vote to all those who were 18 years of age or older and prohibited states from denying such persons the right to vote. Since Ohio law required jurors to have the same qualifications as voters, this meant that 18 year olds could serve on juries.

In 1985, the Ohio General Assembly authorized counties to draw jurors from a list of eligible voters and a list of residents with valid Ohio driver licenses. This was the first time since 1803 that Ohio had allowed residents other than those eligible to vote to serve on a jury. Only one county, Montgomery, has adopted this method. In the other 87 counties, including Medina, jury lists are drawn from voter lists.

So, in Ohio since 1803 there has been a constant expansion of those who are permitted to serve as jurors. Sometimes the expansion was because of changes in the Ohio Constitution and at other times it was because of the passage of amendments to the United States Constitution. Always, though, there has been expansion and never contraction of those who can serve on a jury.

Guardian ad litem Courses Open for Registration

Ohio attorneys have eight more opportunities this year to satisfy new requirements for guardians ad litem that took effect last year, according to the Supreme Court of Ohio Judicial College.

As the first state rule to set standards regarding the appointment, responsibilities, training and reporting requirements of guardians ad litem, Rule 48 of the Rules of Superintendence for the Courts of Ohio applies in all domestic relations and juvenile cases in common pleas courts where the court appoints a guardian ad litem. Among other requirements, the new rule mandates six hours of pre-service coursework for all guardians ad litem in Ohio.

Judicial College Director W. Milt Nuzum III noted that attorneys should not register for a free CLE if they are not interested in serving as a guardian ad litem. By registering for a course, the Judicial College is authorized to provide the attorney’s contact information to the local court noting the attorney’s willingness to serve as a guardian ad litem.

In addition, Nuzum said if attorneys have already completed a six-hour course provided by the Ohio Network of Children’s Advocacy Centers since March 2006 or if they have completed the 30-40 hour CASA pre-service course for CASA volunteers, there’s no need to attend the Judicial College course. These courses also meet the requirements of Sup. R. 48.

In order to be in compliance with this new rule, attendees must complete the entire educational program from 8:45 a.m. to 4:45 p.m.. Attendees who do not participate in the full six hours of instruction will not be qualified to serve as a GAL under the requirements of the rule. Registration will not be available at the training sites, so all attendees must pre-register.

Click here to learn more about the courses.

The Confrontation Clause and Pretrial Motions

By Judge James L. Kimbler

In an earlier note, I discussed whether the Ohio Rules of Evidence apply to pre-trial hearings on motions to suppress evidence. Ohio courts have held that it does not. As a result, a trial judge can consider evidence that would be objectionable at trial when ruling on a motion to suppress. Such evidence might well include hearsay evidence.

If a trial court does receive hearsay evidence at a pretrial hearing, has it violated the defendant's right to confront his or her accusers? That is, even if the Ohio Evidence Rules don't at hearing on motions to suppress, do the Confrontation Clause of the Ohio and Federal Constitutions prevent trial courts from considering hearsay evidence at such hearings?

Ohio courts have quoted language from United States Supreme Court decisions which refer to the right of confrontation as being a "trial right." An example is the following language from a decision of the Court of Appeals for the Ninth Appellate District on the issue of whether there is a right of confrontation at a hearing on a motion filed pursuant to Crim. R. 33:

"As for Cureton's arguments under the Crim.R. 33 motion, As for Cureton's arguments under the Crim.R. 33 motion, the Confrontation Clause provides two types of protections for a criminal defendant: the right physically to face those who testify against him and the right to conduct cross-examination. Pennsylvania v. Ritchie (1987), 480 U.S. 39, 51, 94 L. Ed. 2d 40, 107 S. Ct. 989. "The opinions of this Court show that the right to confrontation is a trial right, designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination." (Emphasis sic.) Id. at 52. Cureton has presented no authority that states his right to confront witnesses extends to a Crim.R. 33 hearing on a motion for a new trial."
(State v. Cureton, 2003 Ohio 6010 at P32)

In State v. Irwin, 2007 Ohio 4496, the Court of Appeals for the Seventh Appellate District wrote the following at P22:

"Appellant is correct that Crawford has a bearing on her assignment of error because Crawford, and the entire legal history of the confrontation clause, reveals the right of confrontation is a trial right."

Given the fact that at least two Ohio appellate courts have stated that the right of confrontation is a trial right, it would seem that the Confrontation Clause does not bar a trial court from receiving hearsay evidence at a hearing on a motion to suppress.

Whether, of course, a trial court would be persuaded by such evidence is another matter entirely.

Judge Kimbler's Criminal Docket for April 22, 2010

Medina County Prosecutor Dean Holman reported that the following people appeared in Judge Kimbler's court April 22:

Robert Krumwiede, 20, of Crestwood Avenue in Wadsworth, was sentenced to three years of community control sanctions on one count of Possession of Cocaine, a fifth-degree felony.

Val Scott McIntosh, 39, of High Street in Wadsworth, was sentenced to 90 days in jail on one count of Forgery, a fifth-degree felony.

Kimberlee Palma, 23, of Canal Fulton Road in Marshallville, was sentenced to three years in prison on two counts of Robbery, both of which are third-degree felonies and one count of Vandalism, a fifth-degree felony.

Bradley Shultzaberger Jr., 19, of Stanford Drive in Brunswick, was sentenced to two years in prison on one count of Burglary, a second-degree felony, and one count of Receiving Stolen Property, Credit Card, a fifth-degree felony.

Jennifer Endean, 32, of Cuyahoga Falls, pleaded no contest to one count of Forgery and one count of Identity Fraud, both of which are fifth-degree felonies. Sentencing is scheduled for May 27.

Stephen Kroska, 26, of Manchester Avenue, N.W., in Canal Fulton, pleaded not guilty to three counts of Trafficking in Marijuana, one of which is a fourth-degree felony, and two of which are fifth-degree felonies. A jury trial is scheduled for June 28.

Daniel Lanier, 51, of Clark Road in Wadsworth, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for June 23.

Christopher Meade, 30, of Charles Avenue in Parma, pleaded not guilty to one count of Misuse of Credit Cards, a fourth-degree felony, and one count of Theft, a fifth-degree felony. A jury trial is scheduled for June 16.

Sean Neale, 25, of Valley View in Broadview Heights, pleaded not guilty to one count of Illegal Processing of a Drug Document, a fourth-degree felony. A jury trial is scheduled for June 21.

Robert Patterson, 56, of Ocean Avenue in Akron, pleaded not guilty to one count of Possession of Heroin, a fifth-degree felony. A jury trial is scheduled for June 22.

Amanda Young, 32, of North Huntington Street, pleaded not guilty to one count of Obstruction of Justice, a fifth-degree felony. A jury trial is scheduled for June 22.

Timothy Zacharias, 20, of Debra Drive in Elyria, pleaded not guilty to one count of Telephone Harassment, a fifth-degree felony. A jury trial is scheduled for June 22.

Advisory Ethics Opinion for Lawyers Regarding When Notes Must be Turned Over to Clients

The Supreme Court of Ohio’s Board of Commissioners on Grievances & Discipline has issued an advisory opinion about whether a lawyer’s notes must be turned over to a client when requested.

Opinion 2010-2 addresses the following question: “Are a lawyer’s notes of an interview with a current or former client considered client papers to which the current or former client is entitled upon request?”

The opinion finds that it depends upon whether “the notes are items reasonably necessary to the client’s representation” pursuant to Prof. Cond. Rule 1.16(d), which requires the lawyer to exercise his or her professional judgment.

For example, the opinion states that: “A lawyer’s notes to himself or herself regarding passing thoughts, ideas, impression, or questions will probably not be items reasonably necessary to a client’s representation. … But, a lawyer’s notes regarding facts about the case will most likely be an item reasonably necessary to a client’s representation.”

The opinion also states that a lawyer may ethically redact portions from the note not reasonably necessary or prepare a note for the client that contains only the necessary items needed for representation.

Advisory Opinions of the Board of Commissioners on Grievances and Discipline are informal, nonbinding opinions in response to prospective or hypothetical questions regarding the application of the Supreme Court Rules for the Government of the Bar of Ohio, the Supreme Court Rules for the Government of the Judiciary, the Ohio Rules of Professional Conduct, the Ohio Code of Judicial Conduct, and the Attorney’s Oath of Office.

Contact: Ruth Bope Dangel at 614.387.9370 or Chris Davey at 614.387.9250.

Judge Collier's Criminal Docket for April 19, 2010

Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Collier’s courtroom on April 19, 2010, for criminal cases:

Brian Arnold, 31, of Frederick Street in Rittman, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for July 21.

Esker Casto, 29, of Lafayette Road in Medina, was sentenced to 180 days in jail for a probation violation on an original charge of Trafficking in Drugs, a fifth-degree felony.

Ethan Denk, 19, of Stone Manor Circle in Brunswick, pleaded not guilty to two counts of Forgery, both of which are fifth-degree felonies. A jury trial is scheduled for July 21.

Shamus Griffin, 33, of Lunn Road in Strongsville, pleaded not guilty to one count of Trafficking in Drugs, a fourth-degree felony. A jury trial is scheduled for July 19.

Ashley Krettler, 22, of Stone Road in Litchfield, pleaded not guilty to one count of Forgery, a fifth-degree felony. A jury trial is scheduled for July 19.

Michael Stephenson, 34, of Meadowbrook Boulevard, was sentenced to six months in prison for a probation violation on an original charge of Possession of Heroin, a fifth-degree felony.

Ruth Swartzbaugh, 45, of Woodcrest Drive in Wadsworth, pleaded not guilty to one count of Possession of Heroin, a fourth-degree felony. A jury trial is scheduled for July 19.

Judge Collier's Ohio Supreme Court Report for March, 2010

At the start of March Judge Collier had 740 cases pending on his docket. Of these cases, 102 were criminal cases and the rest were civil cases.

As used by the Ohio Supreme Court, the following categories had the most cases pending at the start of March: Foreclosures with 289; Other Civil with 230; Criminal with 102; and Other Torts with 83.

During the month Judge Collier’s court took in 144 cases. The categories which had the most cases filed during March were Foreclosures with 69; Other Civil with 44; and Criminal with 24. As a result of the new cases filed and cases pending at the beginning of March, along with reactivated or transferred cases, Judge Collier had 903 cases on his docket at some point during March.

During the month Judge Collier disposed of 167 cases. The categories with the most disposition were Foreclosures with 56; Other Civil with 52; and Criminal with 45. As a result of closing cases in those as well as the other categories listed on the Ohio Supreme Court report, Judge Collier had 736 pending cases on his docket at the end of March.

Do the Ohio Rules of Evidence Apply to Pretrial Motions to Suppress?

by Judge James L. Kimbler

I recently had occasion to re-visit a issue that comes up from time to time and that is whether the Ohio Rules of Evidence apply to pre-trial motions to suppress evidence in criminal cases. This issue involves the Ohio Supreme Court decision of State of Ohio v. Boczar, 113 Ohio St. 3d 148, 2007 Ohio 1251. In that decision, Justice Lundberg Stratton wrote the following in paragraph 19:

"Evid.R. 101(C)(1) provides that the Rules of Evidence do not apply to "[d]eterminations prerequisite to rulings on the admissibility of evidence when the issue is to be determined by the court under Evid.R. 104." Further, Evid.R. 104(A) provides that "[p]reliminary questions concerning * * * the admissibility of evidence shall be determined by the court * * *. In making its determination it is not bound by the rules of evidence except those with respect to privileges." Therefore, the Rules of Evidence do not apply to suppression hearings."

As of April 18, 2010, this decision has been cited for this point of law in the following Ohio Court of Appeals decisions:

State v. Ulmer, 2010 Ohio 695, at P. 10.

State v. Norman, 2009 Ohio 5458 at P. 82.

State v. Keene, 2009 Ohio 1201 at P. 46.

State v. Dubose, 2008 Ohio 4983 at P. 60.

State v. Ingram, 2007 Ohio 7136 at P. 61.

Ohio AG Welcomes Court Ruling on Online Protection Law

The following is from Ohio Attorney General Richard Cordray, and was released on April 15, 2010:

(COLUMBUS, Ohio) — Ohio Attorney General Richard Cordray today won an important case concerning a law that would protect children from receiving obscene material online. The decision came from the United States Court of Appeals for the Sixth Circuit in Cincinnati in American Booksellers Foundation for Free Expression v. Cordray.

“I’m pleased that the Sixth Circuit has agreed with our position that this law is in fact constitutional,” said Attorney General Cordray. “This will allow that law to finally be enforced, providing an important tool for local law enforcement and prosecutors as they combat sexual predators’ use of the Internet and other electronic communications to prey on our young people.”

At issue in the case was an Ohio law prohibiting adults from sending material defined as “harmful to juveniles” — such as pornography — directly to minors by electronic means. A group of online publishers challenged the law, arguing that it violated their free speech rights under the First Amendment. The Attorney General argued that the law is constitutional because it does not sweep as broadly as the online publishers claimed.

In January, the Ohio Supreme Court ruled that the Attorney General’s reading of what the statute covered was correct. In a unanimous decision, the Supreme Court agreed that the statute covers only “electronic communications that can be personally directed” — such as e-mail, text messages and instant messages — and that “a person who posts matter harmful to juveniles on generally accessible websites and in public chat rooms does not violate” the statute.

Today’s ruling from the Court of Appeals for the Sixth Circuit resolves the remaining questions as to whether the law is constitutional, concluding that it is. In its ruling, the Sixth Circuit directs the U.S. District Court for the Southern District of Ohio at Dayton to vacate its injunction that had prohibited prosecuting attorneys from enforcing the statute in question, R.C. 2907.31. Attorney General Cordray was defending the statute on behalf of the state as well as Ohio’s county prosecutors.

Judge Kimbler's Criminal Docket for April 15, 2010

Medina County Prosecutor Dean Holman reports that the following people appeared in Judge James Kimbler's court on April 15:

George Bubner, 31, of Rainbow Street in Wadsworth, was sentenced to three years of community control sanctions on one count of Possession of Drugs, a fifth-degree felony.

Susan Stalnaker, 46, of Ledge Road in Hinckley, was sentenced to two years in prison on one count of Theft, a third-degree felony.

Tyler Carr, 26, of Highview Drive in Wadsworth, pleaded not guilty to one count of Possession of Heroin, a fifth-degree felony. A jury trial is scheduled for June 23.

Laura Campbell, 41, of East Normandy Park Drive, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for June 22.

Edward Helman, 53, of Vincennes Place in Strongsville, pleaded not guilty to one count of Driving Under the Influence of Drugs or Alcohol, a fourth-degree felony. A jury trial is scheduled for June 23.

Xan McCarty, 22, of County Road 620 in Ashland, pleaded not guilty to one count of Burglary, a third-degree felony. A jury trial is scheduled for June 28.

Shawn Schrubb, 34, of Southeast Avenue in Tallmadge, pleaded not guilty to the following charges: 24 counts of Illegal Use of a Minor in Nudity Oriented Material or Performance, all of which are second-degree felonies; three counts of Illegal Use of a Minor in Nudity Oriented Material or Performance, all of which are fifth-degree felonies; and one count of Possessing Criminal Tools, a fifth-degree felony. All the charges carry a forfeiture specification. A jury trial is scheduled for June 21.

Leah Stone, 27, of West Nimisila Road in Clinton, pleaded not guilty to one count of Illegal Manufacture of Drugs, a first-degree felony. The charge carries a forfeiture specification. A jury trial is scheduled for June 21.

Kevin Taylor, 20, of South Medina Line Road in Wadsworth, pleaded not guilty to one count of Failure to Comply with a Police Officer, a third-degree felony. A jury trial is scheduled for June 21.

Motions for a New Trial Based on Non-Disclosure by Prospective Jurors During Voir Dire

by Judge James L. Kimbler

The Ohio Supreme Court in Grundy v. Dhillon (2006), 120 Ohio St 3d 415, set forth the test to be used by Ohio courts if a party seeks to have a new trial because a juror didn't fully answer questions during the voir dire examination.

Grundy involved a lawsuit for malpractice by an emergency room doctor at a hospital in Trumbull County. The allegations were that the doctor did not properly treat a young woman who came to the emergency room for treatment because of nausea, chills, and jaw pain.

During the voir dire examination, the jury was asked about any prior admissions at Trumbull Memorial Hospital. One juror didn't disclose that his son had been treated at that hospital and that he had a low opinion of its care.

After a defense verdict was announced, one of the plaintiff's attorneys was talking to the jury panel when the non-disclosing juror made some statements regarding the hospital. His comments led to the filing of a motion for a new trial.

The test is found in the first paragraph of the opinion syllabus:

1. To obtain a new trial in a case in which a juror has not disclosed information during voir dire, the moving party must first demonstrate that a juror failed to answer honestly a material question on voir dire and that the moving party was prejudiced by the presence on the trial jury of a juror who failed to disclose material information. To demonstrate prejudice, the moving party must show that an accurate response from the juror would have provided a valid basis for a for-cause challenge. (Pearson v. Gardner Cartage Co., Inc. (1947), 148 Ohio St. 425, 36 O.O. 77, 76 N.E.2d 67, paragraph two of the syllabus, and McDonough Power Equip., Inc. v. Greenwood (1984), 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d 663, followed.)

Further, in the second paragraph of the syllabus, the Court adopted an abuse of discretion standard for appellate courts when reviewing the actions of a trial court in conducting a hearing regarding a motion for a new trial:

2. In determining whether a juror failed to answer honestly a material question on voir dire and whether that nondisclosure provided a basis for a for-cause challenge, an appellate court may not substitute its judgment for the trial court's judgment unless it appears that the trial court's attitude was unreasonable, arbitrary, or unconscionable. (Pearson v. Gardner Cartage Co., Inc. (1947), 148 Ohio St. 425, 36 O.O. 77, 76 N.E.2d 67, paragraph two of the syllabus, followed.)

When the trial court denied the motion for a new trial, it commented that while the juror may not have answered all the questions fully, the trial court didn't believe that the juror gave false information in the questions he did answer. The trial court looked at the answers as being incomplete as opposed to false.

Plaintiff's counsel focused on the fact that had he known the total information, he would have used a preemptory challenge to remove the juror. The Ohio Supreme Court, however, decided that it is not enough to claim that the juror wouldn't have been seated because of a preemptory challenge. Rather, the moving party must show that a "for cause" challenge would have been granted.

The Grundy case has been followed by the Court of Appeals for the First Appellate District in Effective Shareholder Solutions, Inc. v. National City Bank, 2009 Ohio 6200. In the Shareholders case, the juror was an attorney who worked for a large law firm that at one time represented one of the parties in the litigation.

In affirming the trial court's decision not to grant a new trial, the appellate court wrote the following:

"In Grundy v. Dhillon, the Ohio Supreme Court addressed the question of when a party is entitled to a new trial on the basis of a juror's failure to disclose information during voir dire. The court held that the moving party must show that a juror failed to answer honestly a material question on voir dire and that the moving party was prejudiced by the presence on the trial jury of a juror who failed to disclose material information."

"ESS failed to satisfy the first part of the Grundy test--that [the attorney] failed to answer a material question honestly. At no point in its argument below or before this court has ESS pointed to a question that [the attorney] answered incorrectly. ESS argues that "while ESS does not contend that [the attorney] deliberately failed to disclose his two conflicts of interest, he nevertheless failed to inform the Court that his law firm represented one of the parties at the time of the trial and that his wife's firm represented the predecessor bank, Provident." ESS contends that this is "sufficient to satisfy the first prong of the Grundy test." It is not."

In both the Grundy case and also the ESS case, the appellate courts focused on the determination by the trial court that the juror had not been dishonest, i.e., had not deliberately left out the missing information. Once that is shown, then the next question is, whether the trial court would have sustained a challenge for cause if the missing information had been known.

In Grundy, the trial court had determined that the juror had not intentionally left out the information and that if known the information would not have resulted in a successful challenge for cause. In the ESS case, the Court of Appeals did not address the issue of whether the trial court would have sustained a challenge for cause because it found that the attorney had not intentionally omitted the information regarding his firm's involvement with one of the parties.

So, if a motion for a new trial is filed because of a juror not completely answering questions on voir dire, the trial court must first determine whether the information was intentionally omitted and if it was, whether the omitted information would have led to a successful challenge for cause. Unless both parts of the test are satisfied, the motion must be denied.

Jury Finds Wadsworth Man Not Guilty of Drug Possession in Judge Kimbler's Court

On April 13, 2010, a jury in Judge Kimbler's court found Christopher A. Omrein of First Street in Wadsworth, Ohio, not guilty of one count of possessing cocaine, a fifth degree felony. The jury was selected on Monday and came back Tuesday to hear opening statements and the evidence. The trial started at 8:30 am and concluded by 4:00 pm.

The State introduced evidence that Mr. Omrein was stopped by a Wadsworth police officer early in the morning of May 28, 2009. The reason for the traffic stop was that the officer ran the registeration of the Mr. Omrein's vehicle. The registeration check revealed that the license plates were expired. When the officer stopped the car, however, he found that Mr. Omrein was driving the car, although it was registered to another person.

During the traffic stop, the Officer found a cut, blue straw which had a white residue on it. He also found a cigar which had been hollowed out and filled with marijuana. He asked Mr. Omrein about both items. Mr. Omrein told the officer that he accepted responsibility for the marijuana cigar, called a "blunt", but that he did not know anything about the cut straw with the residue. The State produced evidence that the straw contained trace amounts of cocaine, as well as other illegal substances.

At trial, Mr. Omrein testified that he was purchasing the car from a friend of his and that he had taken possession of the car on May 25, 2009. He further testified that when he acquired the car it had a lot of trash in it and that while he cleaned out the car, he did not have an opportunity to throughly clean it. He admitted on the witness stand that the marijuana "blunt" was his, but denied any knowledge of the cut straw.

The jury deliberated for about 90 minutes before returning the not guilty verdict. When the verdict was announced, a friend of Mr. Omrein broke out crying. Mr. Omrein was then released from the condition that he report weekly to the Court's bond reporting officer.

Ohio Supreme Court Rules that Henry County Judge May Not Enforce ‘Gag Order’ Delaying Media Reporting on Trial

Court Rules Other Means Available to Avoid Biased Jury for Second Defendant

State ex rel. Toledo Blade Co. v. Henry Cty. Court of Common Pleas, Slip Opinion No. 2010-Ohio-1533.
In Prohibition. Writ granted.
Pfeifer, Acting C.J., and Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
The late Chief Justice Thomas J. Moyer did not participate in the decision in this case.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-1533.pdf

(April 13, 2010) The Supreme Court of Ohio today granted a writ of prohibition sought by the Toledo Blade newspaper. The writ bars the Henry County Court of Common Pleas and Judge Keith P. Muehlfeld from enforcing a “gag order” that would prohibit the news media from publishing or broadcasting stories about the proceedings in an upcoming manslaughter trial until after a jury has been impaneled for the separate trial of a second defendant charged in the same incident.

The case in which the gag order was issued involved the death of a child, for which the state charged the child’s mother, Jayme Schwenkmeyer, and her boyfriend, David Knepley, with manslaughter and child endangering. The charges arose from a joint indictment, but the Henry County Court of Common Pleas granted the defendants’ motions that they be tried separately.

After earlier scheduled trial dates were continued, the court scheduled Schwenkmeyer’s trial to begin on Dec. 7, 2009, and Knepley’s trial to begin on Feb. 8, 2010. Knepley’s attorneys asked the trial court to issue a gag order to “prevent the jury pool in (Knepley’s) case from being tainted by hearing or reading any published or broadcast media report of the State v. Schwenkmeyer trial.” With the consent of the prosecutor and Schwenkmeyer’s attorneys, on Dec. 4, 2009, Judge Muehlfeld issued an order granting print and broadcast media access to the Schwenkmeyer trial proceedings, but barring the publication or broadcast of any news stories about the Schwenkmeyer trial “until a jury is impaneled for the trial in State v. Knepley.” Shortly after Schwenkmeyer’s trial commenced on Dec. 7, the court declared a mistrial and scheduled a new trial for Feb. 1, 2010, with Knepley’s trial remaining scheduled to begin on Feb. 8.

On Jan. 19, 2010, attorneys for the Toledo Blade emailed Judge Muehlfeld requesting that he reconsider the Dec. 4 gag order barring immediate media reporting on the Schwenkmeyer trial. At a hearing on Jan. 26, 2010, Knepley’s attorney argued that the gag order “was absolutely necessary for (his) client to receive a fair trial,” and the Blade argued that the gag order imposed an unconstitutional prior restraint on the newspaper’s First Amendment right to publish truthful information about a public trial. Neither party introduced evidence in support of its arguments.

In a decision announced on Jan. 28, 2010, Judge Muehlfeld reaffirmed his gag order barring media reporting on the Schwenkmeyer trial until after a jury had been impaneled for the Knepley trial. In his decision, the judge found that the fair trial rights of the defendants must take priority over the right of the Blade to file immediate stories about the trial, and held that without a gag order the combination of a small pool of potential jury candidates in Henry County, strong local interest in the case, and the very brief time interval between the Schwenkmeyer and Knepley trials would make it nearly impossible for the court to seat jurors for the Knepley trial who did not have prior knowledge and opinions about the case.

The Blade filed an original action in the Supreme Court seeking a writ of prohibition to bar Judge Muehlfeld from enforcing the gag order and allow the Blade to publish news stories about the Schwenkmeyer trial proceedings immediately.

In today’s 6-0 per curiam opinion, the Court held that Judge Muehlfeld’s gag order was unconstitutional and therefore unenforceable. Quoting from its 1976 decision in State ex rel. Beacon Journal Publishing Co. v. Kainrad, a similar case involving media coverage of separate trials for co-defendants in a murder case, the Court wrote: “(In Kainrad) we set forth the following test for prior restraints in which the defendant’s request for a fair trial is asserted as the basis for the order: ‘An order not to publish cannot be considered unless the circumstances are imperative, and it appears clearly in the record that a defendant’s right to a fair trial will be jeopardized and that there is no other recourse within the power of the court to protect that right or minimize the danger to it. ... Where the constitutional right of a criminal defendant to a fair trial can be protected by the traditional methods of voir dire, continuances, changes of venue, jury instructions or sequestration of the jury, the press and public cannot be excluded from a criminal trial or hearing and no order can be made which prohibits the publishing of news reports about statements made or testimony given during such proceedings until all other measures within the power of the court to insure a fair trial have been found to be unavailing or deficient.’”

Applying those criteria to this case, the Court held unanimously that Judge Muehlfeld had not made evidentiary findings sufficient to support a prior restraint of the Blade’s First Amendment right to report immediately on the Schwenkmeyer trial proceedings.

In its opinion, the Court pointed out that no evidentiary hearing was conducted before the trial court’s original gag order of Dec. 4, 2009 was issued, and that when Judge Muehlfeld later conducted a hearing on the Blade’s request to rescind that order, the court heard argument from both sides but no evidence was submitted supporting a claim that publicity about the Schwenkmeyer trial would be prejudicial to Knepley’s fair trial rights.

With regard to the proper balancing of First Amendment rights of free speech and Sixth Amendment rights to a fair trial, the Court wrote: “Judge Muehlfeld’s analysis proceeded from the erroneous premise that a criminal defendant’s constitutional right to a fair trial should be accorded priority over the media’s constitutional rights of free speech and press. As Justice Black cogently observed more than half a century ago in Bridges v. California (1941), ‘free speech and fair trials are two of the most cherished policies of our civilization, and it would be a trying task to choose between them.’ ‘The authors of the Bill of Rights did not undertake to assign priorities as between First Amendment and Sixth Amendment rights, ranking one as superior to the other.’ ... ‘When there is a conflict between the First and the Sixth Amendment rights, as in the instant case, the trial court is required to act to resolve that conflict by protecting both the First and the Sixth Amendment rights when, as here, that can be done in a reasonable and lawful way.’ ... The judge’s refusal to accord equal importance and priority to the media’s First Amendment rights was thus plainly erroneous.”

The Court also noted that Judge Muehlfeld’s Jan. 28 decision reaffirming the gag order dismissed other alternative measures for preventing bias of potential jurors “for reasons that are not supported by evidence or precedent.” The Court wrote: “The judge rejected a change of venue because he considered it too costly and because it would infringe upon the defendant’s right to be tried in the county in which the offense is committed. There was no evidence submitted at the hearing on the cost of changing venue, and even if we were to credit the prosecutor’s and judge’s affidavits filed in this writ action about the smaller jury pool in Henry County and the costs involved in requiring travel to a distant county, the result would not be altered. Henry County borders Lucas County, a populous county, which would offer a more expansive jury pool that would be less likely to be impacted by the pretrial publicity. And the common pleas court is authorized to order the appropriation of reasonable and necessary expenses to cover any additional costs.”

“Nor does Knepley’s constitutional right to be tried by an ‘impartial jury of the county in which the offense is alleged to have been committed’ under Section 10, Article I of the Ohio Constitution preclude a change of venue. R.C. 2901.12(K) and Crim.R. 18(B) authorize the court to sua sponte change venue when it appears that a fair and impartial trial cannot be held where the action is pending.”

The opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp. The late Chief Justice Thomas J. Moyer did not participate in the decision.

Contacts
Frederick Byers, 419.241.8013, for the Toledo Blade.

Max Rayle, 419.354.4442, for Judge Keith Muehlfeld.

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.

Judge Kimbler's Court Schedule for April 14-20, 2010

Please click here to view Judge Kimbler's court schedule for April 14-April 20, 2010. Please keep in mind that the court's schedule is subject to change without notice. Please contact Bailiff Karen Barnes if you have any questions. She can be reached at 330-725-9735.

Brunswick Man Sentenced by Judge Kimbler for Complicity to Commit Drug Trafficking

On Monday, April 12, 2010, Judge James L. Kimbler sentenced Mr. Timothy R. Miller, 22, of West 130th Street in Brunswick, Ohio, for Complicity to Commit Drug Trafficking, a fifth degree felony. Mr. Miller's case resulted from an undercover operation conducted in Brunswick by the Medway Drug Enforcement Agency. Prior to his sentencing hearing, Mr. Miller entered a plea of "no contest" and was found guilty by Judge Kimbler on January 19, 2010.

When Mr. Miller first appeared for sentencing on February 25, 2010, the pre-sentence investigation report revealed that Mr. Miller had told the investigator that he was not guilty of the charge. Judge Kimbler then refused to continue with the sentencing hearing. At the hearing on Monday Mr. Miller told the court that he believed that he had committed the offense that was charged.

Judge Kimbler then proceeded to sentence him to a residential community control sanction of 36 days in jail, with credit for 36 days previously served.

Judge Kimbler also sentenced him to non-residential community control sanctions. Those sanctions included three years of intensive supervision by the Medina County Adult Probation Department; 24 hours of community service; getting a drug use assessment and following all after-care treatment recommendations, if any; completing the Crossroads Program and the Berea Children's Home Program; having no contact with his co-defendants; random drug testing and being arrested on a positive finding; and making best efforts to become and remain gainfully employed.

Judge Kimbler also ordered a six month license suspension and ordered Mr. Miller to pay a community control sanction fee. Judge Kimbler also ordered that Mr. Miller go to prison for six months if he violates the terms and conditions of supervision.

Is There a Judicial Remedy in Ohio for Jury Nullification?

by Judge James L. Kimbler

One of the standard instructions that judges give to juries in Ohio is that the jury must follow the law as it is given by the court. The language in the charge goes something like this, "You are not permitted to change the law or to apply your own idea of what you think the law should be. You must accept and apply the law as it is given to you in these instructions."

This has long been the law in Ohio. In 1842 the Ohio Supreme Court handed down the decision of Montgomery v. Ohio, 11 Ohio 424. In that decision the Court wrote that if a jury were to decide a question of law contrary to the trial judge's instructions, the jury would be committing a "public wrong" and violating its oath of office.

What happens, however, if the jury doesn't follow the trial judge's instructions? What if it decides to apply its own conception of what it thinks the law should be? Is there anything that a trial judge could do if this failure was brought to his or her attention? Is there a judicial remedy for what the Ohio Supreme Court referred to as a "public wrong"?

In a criminal case, a jury returns a general verdict. If the general verdict is one of "not guilty", then the verdict is final and there is the constitutional bar of Double Jeopardy. In Ohio, courts have declared that while juries don't have the right to decide not to follow the law, they have the power to make such a decision.

This was explained by Judge William Baird of the Court of Appeals for the Ninth Appellate District in State v. Culmer, 1984 Ohio App. Lexis, 11437, in the following language:

"Culmer maintains that a proper response to the jury's third question called for the judge to advise the jury of its inherent right to disregard the letter of the instructions and to reach a verdict based upon its collective conscience. This theory is historically known as jury nullification. See, Scheflin, Jury Nullification: The Right to Say No, 45 S. Cal. L. Rev. 168 (1972) Such a specific instruction is no longer recognized and is not necessary. See, United States v. Simpson (C.A. 9, 1972), 460 F. 2d 515; United States v. Wiley (C.A. 8, 1974), 503 F. 2d 106. Rather this theory is now viewed as the exercise of the jury's prerogative to acquit the defendant and no reason or justification is called for."

So, while a jury can ignore the law and acquit a defendant, a defendant doesn't have the right to ask the jury to do so, and the trial court doesn't have any obligation to so instruct the jury, and, indeed, is under an affirmative duty not to give such an instruction. .

If a trial jury in a criminal case did ignore the law, and if it returned a verdict of not guilty, and later the State found out that jury nullification had occurred, there would not be any way for the State to set aside the verdict and retry the defendant for that particular offense. Such a retrial would be barred by the Double Jeopardy Clause found in the Constitutions of the United States as well as the Ohio Constitution.

What if, however, the jury returned a verdict of "guilty" and later the defendant and/or defense counsel found out that the jury had ignored the judge's instructions? Could such a defendant seek a new trial, or file a motion to have the verdict set aside?

Ohio follows the rule that a juror cannot impeach the verdict of a jury. In State v. Hessler (2000), 90 Ohio St. 3d 108, 2000 Ohio 30, the defendant attempted to impeach the jury's verdict using affidavits from a juror and a alternate juror. The Ohio Supreme Court wrote the following:

"The trial court did not err in refusing to consider this evidence. A firmly established common-law rule flatly prohibits the admission of juror testimony to impeach a jury verdict. State v. Robb (2000), 88 Ohio St. 3d 59, 79, 723 N.E.2d 1019, 1043. Reflecting that principle, Evid.R.606(B), the aliunde rule, governs the competency of a juror to testify at a subsequent proceeding concerning the original verdict."

Although State v. Hessler is a criminal case, the same common law rule applies in civil cases, as, of course, does Evid. R.606 (B). An example of the rule being applied in a civil case is Grundy v. Dhillon (2008), 120 Ohio St. 3d 415, 2008 Ohio 632.

In Grundy, supra, the Ohio Supreme Court explained that not only does Evid.R.606(B) prohibit a juror from impeaching a verdict by relating what happened during deliberations, but it also prevents a juror from impeaching a verdict by relating what took place among the jurors prior to deliberation.

Evid.R.606 (B) does allow impeachment of a verdict if there was "extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear on any juror..." Such evidence must first come from a source other than the jurors themselves. Once such a foundation is laid, then members of the jury panel could testify as to such "prejudicial information" or such "outside influence".

An example of such evidence is found in the case of Mazorra v. H. Meyer Dairy Co., 1999 Ohio App. LEXIS 975, In that case, the Court of Appeals for the Twelfth Appellate District found that an affidavit of a non-juror as to the prejudice and bias of a juror toward the plaintiff would allow the trial court to consider the testimony of the jurors as to what role this bias or prejudice played in the jury's verdict. The appellate court found that the juror's alleged bias could be "extraneous prejudicial information" as that term is used in Evid.R.606(B).

The question becomes, of course, whether a decision by a jury to ignore the judge's instructions of law is either "extraneous prejudicial information" or "outside influence"?

The view expressed by Judge Baird in State v. Culmer, supra, has found support in other appellate decisions. The Court of Appeals for the Tenth Appellate District, for example, in Cleveland Construction, Inc. v. Ohio Public Employees Retirement System, 2008 Ohio 1630, in P 38 referred to jury nullification as a "trial jury's inherent right to disregard its instructions." :

The language of the Tenth Appellate District decision is even stronger than the language used by Judge Baird. Judge Baird spoke of the jury's "prerogative", the Tenth District used the words "inherent right." Whatever term is used, the law seems to be that even if a trial judge had evidence from outside the jury room that a jury had consciously decided to ignore the law in returning a verdict, Ohio law may not allow that trial judge to set aside the verdict.

This situation has bothered at least one court. . In an appeal resulting from a criminal conviction, the Court of Appeals for the Sixth Appellate District wrote the following:

"The courts are more unfettered in their judicial approach toward recognition of actual jury misconduct in criminal cases. A more flexible rule consonant with reality and attaining justice should be composed for a murder verdict independent of the aliunde requirement. Upon conviction of murder by a jury, consideration by the jury of circumstances not admitted into evidence in their deliberations in reaching a verdict may be proven by affidavits of the jurors themselves upon motion of defendant for a new trial based upon jury misconduct." (State v. Smith, 1975 Ohio App. LEXIS 7157 )

A check using the Shepard's citation system on Lexis, however, does not show any other cases in which the above rule has been adopted.

So, to answer the question posed in the title of this article, it would seem that the power of a trial judge to set aside a verdict because a jury engaged in jury nullification is very limited. In a criminal case where there was an acquittal, the power is non-existent, because of both constitutional concerns and the common law.

In criminal cases where there is a conviction, there is obviously not a constitutional issue, but both the common law and Evid.R.606 (B) limit a judge's power to set aside a verdict because of jury nullification. The same restrictions apply in a civil case.

In the final analysis, then, the best protection that litigants have against jury nullification is the integrity of those who are called to jury service. Perhaps that as it should be, for the jury system depends on that integrity to function.

Judge Kimbler Starts Two Jury Trials on Monday, April 12

On Monday, April 12, Judge Kimbler started two jury trials by picking two juries. In the morning, a jury was selected and seated for the case of Hill versus Wadsworth-Rittman Area Hospital. In the afternoon a jury was selected and seated in the case of State of Ohio versus Christopher Omrein.

The Hill case involves an allegation that Ms. Hill was negligently injured by an employee of the Wadsworth-Rittman Area Hospital while she was being discharged from the hospital. The Hill case will resume on Wednesday, April 14.

The Omrein case involves a charge that Mr. Omrein was knowingly possessing, using, or obtaining cocaine, a schedule I substance. The Omrein case will resume on Tuesday, April 13.

Judge Collier's Criminal Docket for April 12, 2010

Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Collier's court April 12:

Chokri Benhaloua, 47, of Westchester Drive in Brunswick, was sentenced to one year in prison on one count of Receiving Stolen Property, a fifth-degree felony.

Kevin Peshek, 50, of Champagne Shores in Medina, was sentenced to five years of community control sanctions on one count of Domestic Violence, a fourth-degree felony. He also was ordered to complete a Domestic Violence Prevention program.

Fred J. Kinder IV, 36, of West Liberty Street in Rittman, was sentenced to one year in prison for a probation violation on an original charge of Theft of a Dangerous Drug, a fourth-degree felony.

Raymel King, 23, of Medina, pleaded no contest to one count of Possession of Drugs, a third-degree felony, and one count of Possession of Crack Cocaine, a fourth-degree felony. Sentencing is scheduled for May 24.

Anna Lamb, 26, of Wooster Road in Barberton, pleaded not guilty to two counts of Theft from the Elderly, both of which are fourth-degree felonies. A jury trial is scheduled for June 16.

Jacob Thompson, 21, of Carol Way in Wadsworth, was sentenced to 180 days of home arrest for a probation violation on original charges of two counts of Trafficking in Drugs Within the Vicinity of a School, both of which are fourth-degree felonies.

Charles Williams, 26, of 4th Street, N.W. in Barberton, pleaded not guilty to one count of Illegal Manufacture of Drugs, a first-degree felony, which carries a forfeiture specification, and one count of Possession of Drugs, a fifth-degree felony. A jury trial is scheduled for June 7.

Judge Kimbler's Ohio Supreme Court Report for March, 2010

At the start of March, Judge Kimbler had 751 cases pending on his docket. Of those cases, 121 were criminal and the rest were civil.

As used by the Ohio Supreme Court, the following categories had the most cases pending at the start of March: Foreclosures, which had 270; Other Civil, which had 221; Criminal, which, as mentioned above, had 121; and Other Torts, which had 92.

During the month, Judge Kimbler’s court took in 139 cases. The categories which had the most cases filed during March were Foreclosures with 65; Other Civil with 33; and Criminal with 24. As a result of new filings and cases pending at the beginning of March, along with reactivated or transferred cases, Judge Kimbler had 902 cases on his docket at some point during March.

During the month, Judge Kimbler disposed of 176 cases. The categories with the most dispositions were Foreclosures with 65; Other Civil with 57; and Criminal with 39. As a result of closing cases in those categories as well as other categories, Judge Kimbler had 726 cases pending on his docket at the end of March.

Alleged Wal-Mart Parking Lot Shooter Changes Plea

Brian M. Milici, 26, of Edwards Road in Doylestown, Ohio, appeared in Judge Kimbler's court on Friday, April 9, and entered a change of plea to one count of Felonious Assault, one count of Carrying a Concealed Weapon, and one Firearm Specification. He withdrew his previous plea of not guilty to each charge and entered a plea of no contest to the charge of Felonious Assault and Carrying a Concealed Weapon and admitted to using a firearm in the commission of the Felonious Assault.

Under Ohio law, the use of a firearm in the commission of a crime carries a mandatory three year prison sentence. Such a sentence must be served prior to any other sentence that is imposed for the crime. This means that a defendant in Mr. Milici's position is looking at minimum mandatory prison sentence of five years.

Mr. Milici was allegedly with a group of people in the parking lot of Wal-Mart in Wadsworth on January 11, 2010, when a disturbance broke out between the group he was with and another group of people. Mr. Milici allegedly had a gun and either fired it or used it to assault the alleged victim.

Ohio Supreme Court Holds that ‘Political Subdivision’ Immunity Applies When Public Officeholder Sued In His/Her Official Capacity

Rather Than Immunity Standard for ‘Political Subdivision Employee’

2008-2183. Lambert v. Clancy, Slip Opinion No. 2010-Ohio-1483.
Hamilton App. No. C-070600, 178 Ohio App.3d 403, 2008-Ohio-4905. Judgment of the court of appeals reversed, and cause remanded to the trial court.
Moyer, C.J., and Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Pfeifer, J., dissents and would dismiss the appeal as having been improvidently accepted.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-1483.pdf

View oral argument video of this case.

*[NOTE: Greg Hartmann, who held the office of Hamilton County Clerk of Courts at the time this lawsuit was initiated, has since been succeeded in office by Patricia M. Clancy. The case caption, which was Lambert v. Hartmann at the trial and appellate levels, has been amended to reflect Clancy as the successor defendant].

(April 8, 2010) The Supreme Court of Ohio ruled today that when the allegations contained in a civil complaint are directed against an office of a political subdivision, an officeholder named as a defendant in that complaint is sued in his or her official capacity, rather than as an individual.

In a 6-1 decision, the Court held further that when a named defendant in a civil action holds an elected office within a political subdivision, and that person is sued in his or her official capacity, claims against the officeholder are subject to the “political subdivision” immunity analysis set forth in R.C. 2774.02, rather than the “political subdivision employee” immunity standards set forth in R.C. 2744.03(A)(6). The majority opinion, which reversed a ruling by the 1st District Court of Appeals, was authored by Justice Robert R. Cupp.

From 1999 to 2004, as a matter of policy and practice, the Hamilton County Clerk of Court’s office published on its website every document filed with the office in its original and unredacted form, except for juvenile records and documents that were filed under seal. Among the documents posted on the clerk’s website was a traffic-violation citation issued in September 2003 to Cynthia Lambert. The ticket recorded Lambert’s name, signature, home address, birth date, driver’s license number, and Social Security Number. Lambert alleges that because of a transcription error on the ticket, an incorrect driver’s license number was posted on the website.

Lambert was notified in 2004 that suspicious credit activity was taking place in her name. She later learned that someone had made approximately $20,000 in unauthorized charges using Lambert’s personal information. The person was subsequently identified, arrested, and pleaded guilty to federal felony charges related to the theft of Lambert’s identity.

In December 2004 Lambert filed a civil lawsuit in federal district court asserting various state and federal claims and naming as defendants “Greg Hartmann, in his official capacity as Clerk of Courts,” and the “Hamilton County Board of County Commissioners.” In her complaint, Lambert claimed that the person who stole her identity had used the clerk of court’s website to obtain her personal information, because the personal information that was used to make the unauthorized charges included Lambert’s incorrect driver’s license number as posted on the county’s website.

The district court dismissed the complaint, concluding that Lambert’s federal claims were not entitled to relief under Section 1983, Title 42, U.S. Code. The court declined to exercise jurisdiction over Lambert’s state claims. After the federal court’s disposition, Lambert filed a complaint in the Hamilton County Common Pleas Court alleging violation of Ohio’s privacy act, invasion of privacy, unlawful publication of private facts, and public nuisance. The sole defendant named in her state action was “Greg Hartmann, Hamilton County, Ohio Clerk of Courts.”

The common pleas court dismissed Lambert’s complaint without opinion, citing the Ohio rule of civil procedure that authorizes dismissal of a complaint for “failure to state a claim upon which relief can be granted.” Lambert appealed the dismissal order. The 1st District Court of Appeals reversed and remanded the case to the trial court for further proceedings. In its opinion, the court of appeals held that Lambert’s claims against Hartmann were not barred by R.C. Chapter 2744.03(A)(6), the provision in Ohio’s sovereign immunity statute applicable to employees of political subdivisions. The court also stated that “if the trial court dismissed Lambert’s claims because it believed that the clerk had immunity [under R.C. 2744.02, the provision applicable to claims against political subdivisions], the trial court erred.”

Hartmann, represented by the Hamilton County prosecutor’s office, sought and was granted Supreme Court review of the 1st District’s ruling. In today’s decision, Justice Cupp concluded that the immunity from civil liability conferred on “political subdivisions” by R.C. 2744.02 must also logically extend to the holder of a public office in a lawsuit where the plaintiff claims to have been injured by the actions or policies of that office.

He wrote: “(T)he allegations in the state-filed complaint pertain to the policies and practices of the clerk of court’s office and not to actions taken by Hartmann personally. For example, the complaint alleges that despite the known risks, ‘the Clerk of Court’s Office recklessly, willfully, and purposefully continued its practice of publishing personal information on the internet.’ In fact, some of the allegations pertain to policies and practices employed by the clerk of court’s office prior to the time Hartmann became the clerk of courts. Moreover, the allegations in the complaint filed in the state court mirror those in the complaint filed in the federal court, and the federal complaint was clearly against Hartmann in his official capacity. Thus, although Lambert’s prayer for relief in the state complaint asks for relief solely from Hartmann and not any public body or office, we conclude that Lambert’s complaint asserts claims against the office of the clerk of the Hamilton County Clerk of Courts, an elected position within a political subdivision held by Greg Hartmann at the time the complaint was filed.”

“(M)any of the governmental functions listed in R.C. 2744.01(C) are performed by political subdivisions through departments, agencies, and offices. When the departments, agencies, and offices perform their assigned governmental functions, each is an integral part and instrumentality of the political subdivision. An office of a clerk of courts is such an office and an instrumentality of a county political subdivision. By logical necessity, the immunity granted by statute to a political subdivision is also extended to the political subdivision’s departments, agencies, and offices, which implement the duties of the political subdivision.”

“As a natural extension of these principles, when allegations are made against the elected holder of an office of a political subdivision who is sued in an official capacity, the officeholder is also entitled to the grant of immunity contained in R.C. 2744.02. We recognize officeholders are employees of the political subdivision and that immunity for the actions of employees or officers sued in their individual capacities is addressed in another section of the Revised Code; R.C. 2744.03(A)(6) (detailing conditions when employees are personally immune from liability for actions taken). Here, however, the allegations contained in the complaint are ... directed against the office and against the named officeholder in the officeholder’s official capacity. This is the equivalent of suing the political subdivision rather than the officeholder in an individual or personal capacity.”

Justice Cupp’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell and Judith Ann Lanzinger. Justice Paul E. Pfeifer dissented, stating that he would dismiss the appeal as having been improvidently accepted for review.

Contacts
Pamela J. Sears, 513.946.3082, for Greg Hartmann and successor Hamilton County Clerk of Courts Patricia M. Clancy.

Stacy A. Hinners, 513.621.9767, for Cynthia Lambert.

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

Judge Kimbler's Criminal Docket for April 8, 2010

Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Kimbler’s court on April 8, 2010 for criminal cases:

Sarah Fenwick, 21, of Woodcrest Drive in Wadsworth, was sentenced to five years of community control sanctions, with 180 days of home arrest, on one count of Burglary, a second-degree felony.

Steven Fletcher, 23, of Jester Court in Brunswick, was sentenced to five years of community control sanctions on two counts of Receiving Stolen Property, both of which are fifth-degree felonies.

Jonathon Tolbert, 24, of West Liberty Street in Medina, was sentenced to five years of community control sanctions on four counts of Trafficking in Cocaine, all of which are fifth-degree felonies.

Marla Trocchio, 22, of Lafayette Road in Medina, was sentenced to three years of community control sanctions on one count of Possession of Heroin, a fifth-degree felony.

Lester Sanchez Alonso, 29, of Lansing, Michigan, pleaded not guilty to one count of Forgery and one count of Theft, both of which are fifth-degree felonies. A jury trial is scheduled for June 7.

Linton Auble, 70, of Lavista West in Lodi, pleaded not guilty to three counts of Gross Sexual Imposition, all of which are third-degree felonies. A jury trial is scheduled for June 14.

Deshine Garrett, 32, of Granite Way in Columbus, pleaded not guilty to three counts of Forgery, all of which are fifth-degree felonies. A jury trial is scheduled for May 24.

Edward Urbanek, 28, of Broadview Road in Richfield, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for June 15.

Jury Finds for Barberton Man in Civil Trial

Yesterday (April 7, 2010) afternoon a jury in Judge Kimbler's courtroom returned a $5,000.00 verdict for David J. Harrison of Barberton in a personal injury trial. Mr. Harrison was injured when his car was struck from behind by Scott R. Roth of Brunswick. The collision took place on April 19, 2007 in Brunswick at the intersection of Center and South Carpenter Roads. Mr. Roth admitted that he was negligent, but disputed the amount of damages claimed by Mr. Harrison.

Before trial, Mr. Harrison had offered to settle the lawsuit for $7,000.00 and Mr. Roth's insurance carrier had offered $2,000.00. The jury trial was the shortest jury trial that Judge Kimbler has tried as a common pleas court judge. It started at 9:00 am and the jury returned its verdict at approximately 2:45 pm.

Judge Kimbler's Court Schedule for April 7-13, 2010

Click here to view the schedule for the week beginning Wednesday, April 7, 2010. Please keep in mind that the court's schedule is subject to change.

Judge Collier's Criminal Docket for April 5, 2010

Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Collier's court April 5:

Jerry Barker, 34, of Bond Avenue in Lorain, pleaded guilty to one count of Having Weapons While Under Disability, a third-degree felony. Sentencing is scheduled for May 17.

Kyle Birt, 19, of Rush Avenue in Bellefontaine, was sentenced to five years of community control sanctions, with 180 days in jail, on one count of Possession of Cocaine, a fifth-degree felony. His driver’s license was suspended for five years.

Jonathan Geib, 20, of Nichols Road in Medina, was sentenced to five years of community control sanctions, with 90 days in jail, on one count of Obstructing Official Business, a fifth-degree felony.

James Senz, 40, of Congress Road in West Salem, was sentenced to three years in prison on one count of Felonious Assault, a second-degree felony. He also was ordered to pay $2,600 in restitution to his victim.

Michael Bell, 50, of Richfield, pleaded guilty and was sentenced to one year in prison on one count of Theft from the Elderly, a fourth-degree felony. He also was ordered to pay $3,800 in restitution to his victim.

Steven Seamon, 38, of Oak Street in Medina, pleaded not guilty to the following charges: one count of Complicity to Commit Abduction, a third-degree felony; one count Having Weapons While Under Disability, a third-degree felony; and one count of Assault, a first-degree misdemeanor. A jury trial is scheduled for June 1.

James Skala, 50, of Sunset Drive in Lodi, pleaded not guilty to one count of Domestic Violence, a third-degree felony. A jury trial is scheduled for July 12.

Aimee Slivka, 24, of Akron Road in Wadsworth, was sentenced to three years in prison for probation violations on original charges of one count of Receiving Stolen Property, Credit Card, and two counts of Forgery, all of which are fifth-degree felonies.

Brett Stillman, 27, of South Medina Line Road in Wadsworth, was sentenced to one year in prison for a probation violation on an original charge of Possession of Cocaine, a fifth-degree felony.

Laurette Struckel, 43, of Birch Hill Drive in Medina, was sentenced to three years in prison for probation violations on original charges of Burglary, a third-degree felony, and Safecracking, a fourth-degree felony.

Three Defendants Change Plea in Judge Kimbler's Court on Monday, April 5

Three defendants appeared in Judge Kimbler’s courtroom on Monday, April 5, 2010, to enter a change of plea in their cases. They were:

Shannon A. West of 12252 Smith Road, Wellington, Ohio, who entered a plea of “no contest” to one count of Theft in excess of $5000.00 from the Elderly, a third degree felony. Judge Kimbler ordered a pre-sentence investigation and will impose sentence on May 20 2010. Her bond was continued pending sentencing.

Caleb M. Klinksiek of 3492 Sturbridge Lane, Brunswick, Ohio, who entered a plea of “no contest” to one count of Robbery, a second degree felony. Judge Kimbler ordered a pre-sentence investigation and will impose sentence on May 20, 2010. Mr. Klinksiek remains incarcerated in the Medina County Jail pending sentencing.

Amanda C. Justice of North Pardee Street and NorthPark Drive, Wadsworth, Ohio, who entered pleas of “no contest” to 14 charges. The charges included one count of Receiving Stolen Property, six counts of Breaking and Entering, six counts of Vandalism, and one count of Complicity to Commit Breaking and Entering. All of the charges are fifth degree felonies. Judge Kimbler ordered a pre-sentence investigation and Ms. Justice remains incarcerated in the Medina County Jail pending sentencing.

Record Number of Foreclosures Assigned to Judge Kimbler's Courtroom in March, 2010

Linda Gerberich, administrative assistant to Judge James L. Kimbler, reports that there were 65 new foreclosure actions assigned to Judge Kimbler's docket in March, 2010. According to Ms. Gerberich this is a monthly record for new foreclosure filings assigned to Judge Kimbler. Ms. Gerberich examined the monthly reports filed with the Ohio Supreme Court for the last five years. The new cases filed Combined with the four cases that were reactivated in March means that there were 69 foreclosure cases assigned to Judge Kimbler's docket in March.

Judge Kimbler's Criminal Docket for April 2, 2010

Litchfield Man Sentenced to Six Years for Drug Trafficking in Brunswick

Raffael D. Lawson of 10660 Jones Road in Litchfield Township was sentenced to six years in prison for two counts of drug trafficking. The prison sentence is to be served consecutively to the prison sentence that is already being served. Judge Kimbler also suspended his operator's license for five years.

Mr. Lawson was indicted for drug trafficking in Brunswick, Ohio. He was found guilty by a jury of both counts after a two day jury trial. His co-defendant, Josephine Church, was also sentenced by Judge Kimbler on April 2.

Brunswick Woman Sentenced to Four Years in Prison for Drug Trafficking

Josephine A. Church of 4378 Chestnut Ave in Brunswick, Ohio, was sentenced to four years in prison for drug trafficking. She was the co-defendant of Mr. Raffael D. Lawson. She also received 153 days in the Medina County Jail for drug trafficking, and was credited for 153 days served. The four years in prison is in addition to the 153 days. Judge Kimbler suspended her license and suspended the mandatory fine and waived court costs.

Cleveland Man Sentenced to Jail and Probation for Drug Trafficking

Eric L. Finkela of 3576 West 63RD Street in Cleveland was sentenced to 14 days in jail, with credit for 14 days served, and put on supervision by the Medina County Adult Probation Department for three years. If he violates the conditions of supervision, he could receive a six month prison sentence. Judge Kimbler also suspended his driver's license for six months, but gave him limited occupational privileges. He was ordered to pay court costs and community control sanction fee.

Cleveland Man Changes Plea, Sentenced

Gregory Dearfield of 11412 Dale Street in Cleveland, Ohio, appeared in Judge Kimbler's court on April 2 and entered a change of plea to one charge of trafficking in counterfeit drugs. He then waived a pre-sentence investigation and Judge Kimbler proceeded to sentence him. He was given a 59 day jail sentence and received credit for 59 days previously served. He was placed under the supervision of the Medina County Adult Probation Department for three years; ordered to pay court costs and a community control sanction fee; and his driver's license was suspended. In the event that he violates the conditions of his supervision, he could receive an eight month prison sentence.

Four Defendants Enter Not Guilty Pleas At Arraignment

Three defendants appeared in Judge Kimbler's court for arraignment on Friday, April 2, 2010 and all of them entered pleas of not guilty. They were:

Albert S. Stiver of 6897 Lafayette Road in Medina who is charged with a fourth degree felony of Domestic Violence;

Sylvia Russ of 2017 S Ocean Dr in Hallandale Beach, Florida, who is charged with Theft, a fifth degree felony; and

Kelly P. Shelton of 280 Grand Avenue, Akron, Ohio, who is charged with one count of Forgery, a fifth degree felony.

Three Defendants Change Plea, Pre-Sentence Investigations Ordered

Three defendants appeared in Judge Kimbler's court and entered a change of plea on Friday, April 2. They were:

Robert P. Mote of 675 Trease Road in Wadsworth, Ohio, who entered a plea of "no contest" to one count of Possession of Drugs, a fifth degree felony. He will be sentenced on May 13, 2010, following a pre-sentence investigation by the Medina County Adult Probation Department.

Clifford E. Floyd III of 423 W. Lafayette Road, Medina, Ohio, who entered a plea of guilty to a amended charge of Domestic Violence, a fourth degree felony. His sentencing is set for May 13, 2010, following a pre-sentence investigation.

Brandon D. Fazekas of 14861 Clinton Road, Doylestown, Ohio, who entered pleas of "no contest" to three counts of Breaking and Entering and three counts of Vandalism, all of which were fifth degree felonies. He will be sentenced on May 13, 2010, after a pre-sentence investigation.

Chief Justice Tom Moyer Remembered

The Supreme Court of Ohio on Saturday took measures to ensure the uninterrupted administration of justice in Ohio in the wake of the unexpected death of Chief Justice Thomas J. Moyer on Friday, while those who knew and loved the Chief began to reflect on his life and career.

The Justices of the Supreme Court of Ohio, colleagues and friends remembered Chief Justice Moyer on Saturday as an honorable man whose remarkable career combined an unmatched work ethic with a commitment to civility, a deep respect for the rule of law and dedication to public service. The result was a 24-year tenure at the helm of the Ohio judiciary that brought unprecedented progress and improvement.

“This is a devastating loss for his family, for the court, and for the people of Ohio. And it’s a personal loss for me and all of our colleagues,” said Justice Paul E. Pfeifer, who knew the Chief Justice for more than 40 years from their days at the OSU Law School. “Tom had all the qualities you would want in a Chief Justice. He was fair and deliberative. He encouraged collaboration, and deeply valued collegiality. Over time, he assembled a great staff, and he was respected and admired by everyone who worked in this building. They genuinely liked the man, and I know they will miss him on a personal level. But the court family will continue to represent him for years to come, and that’s one of his great legacies.”

Under Article 4, Section 2 of the Ohio Constitution, as the most senior Justice of the Court, Justice Pfeifer will serve as the acting Chief Justice. The Governor may elect to make an appointment under the provisions of Article 4, Section 13.

Justice Pfeifer conferred with fellow Justices and Court administrators Saturday to determine a course for hearing and deciding cases and attending to the administrative duties of the office.

“Chief Justice Moyer was on the bench right up to the end, hearing oral arguments on Wednesday before entering the hospital on Thursday,” Justice Pfeifer said. “More than anything, he would want us to see to the continuity of operations at this institution he dedicated his life to serving for the people of Ohio.”

Discussions with the family regarding funeral arrangements continued Saturday, and details will be released soon.

Meanwhile, leaders from across Ohio and the nation continued on Saturday to offer reflections on the life and career of an extraordinary man whose impact on the judicial system in Ohio and beyond will be felt for decades.

“When he became Chief Justice, he not only brought great integrity to the bench, but he ushered in an era of forward-thinking reforms,” said Justice Evelyn Lundberg Stratton. “He was one of the country’s first champions of drug courts. He was a champion of technology in the judicial system with the development of the Ohio Courts Network. He was a tireless champion of arbitration and mediation. He was nationally respected as an innovative leader who always sought to not just administer justice but to improve the administration of justice.”

Justice Maureen O’Connor reflected on the Chief’s legendary temperament. “You can’t say this about many people, but he was truly a gentleman. It took a keg of dynamite to rile him up. He was very slow to anger. And because of that, he was a leader.”

Governor Ted Strickland recalled that Chief Justice Moyer swore him in as governor in 2007, which he said was “the beginning of a warm and close working relationship – the kind of mutually respectful relationship you always envision leaders of different branches of government having. But that was Tom: dignified, respectful, thoughtful and always concerned for the well-being of others. It was never about him. Tom unselfishly served the people of Ohio for so many years. I know he was very much looking forward to his retirement, but he loved what he did. In recent years, he was a leader and a partner in Ohio’s bipartisan efforts to fight foreclosure and to take a serious and comprehensive look at corrections reform. He spoke passionately and convincingly for reducing the influence of money in judicial elections.”

Read statements from the other current Justices, former Justices and other leaders.

Chief Justice Moyer was the longest-serving current Chief Justice in the United States. He was first elected in 1986 and took office in 1987. He was re-elected three times, in 1992, 1998 and 2004.

Under his leadership, Ohio became a leader in providing substance-abuse treatment to nonviolent offenders and the development of family courts, a comprehensive approach to resolving criminal and civil issues confronting families.

As chairman of the Ohio Criminal Sentencing Commission, Chief Justice Moyer led efforts to revise Ohio felony, misdemeanor, traffic and juvenile sentencing laws adopted by the General Assembly.

Chief Justice Moyer also worked with lawyers and judges in other countries in the development of independent judiciaries. After Ukraine gained its independence, he led efforts to introduce that country to the importance of the rule of law and continues to host delegations from Ukraine on a regular basis. Chief Justice Moyer also worked with judicial leaders in China, Argentina and Chile.

The Chief Justice received his law degree from The Ohio State University in 1964, and served eight years as a judge of the 10th District Court of Appeals in Franklin County, four years as executive assistant to the governor of Ohio and eight years in the private practice of law in Columbus.

Chief Justice Moyer served as vice-chair of the Advanced Science and Technology Adjudication Resource Center (ASTAR), a national consortium to prepare judges for managing the resolution of disputes that present complex science issues. He also chaired the Task Force on Politics and Judicial Selection for the Conference of Chief Justices and co-chaired its Committee on Emergency Preparedness in the Courts.

He served on the Board of Justice at Stake, a national organization that supports fair and impartial courts. In 2009, he also was appointed to the Advisory Committee of the Sandra Day O’Connor Judicial Selection Initiative.

In 1987, at the 300th Ohio State University commencement, he was recognized as one of 40 outstanding alumni. In August 2009, Chief Justice Moyer delivered the commencement address to about 1,900 graduates at Ohio State's summer quarter commencement.

In June 1989, the Chief Justice received the American Judicature Society Herbert Harley Award for improving the administration of justice in Ohio. In August 1995, he was named president of the Conference of Chief Justices for a one-year term. In January 2003, he was awarded the James F. Henry Award for exemplary alternative dispute resolution leadership in the state judiciary from the CPR Institute for Dispute Resolution. In addition, the National Client Protection Organization recognized Chief Justice Moyer with its 2008 Isaac Hecht Law Client Protection Award, given for demonstrated excellence in the field of law-client protection.

Justice Judith Ann Lanzinger had this to say: “The Chief could laugh and joke and make every person feel special no matter what position the person held. He was interested in the well-being of all, and we were privileged to serve at the Supreme Court with him. In my 25 years as a judge, he was my Chief, and I will miss him.”

Contact: Chris Davey at 614.387.9250.

Medina County Adult Probation Department Statistics for March, 2010

Veronica Perry, Chief Adult Probation Officer for the Medina County Common Pleas Court, reports that in March of 2010, Judge Collier and Judge Kimbler each assigned 11 defendants to supervision by the Medina County Adult Probation Department. Each judge assigned four defendants to intensive supervision and each judge assigned seven defendants to general supervision.

Thirteen defendants were required to perform community service as part of their supervision. Of those defendants, 12 were sentenced by Judge Kimbler and one was sentenced by Judge Collier.

Judge Collier required two defendants to be placed on electronic monitoring at their homes (home arrest) as part of their sentences. Judge Kimbler did not place any defendants on electronic monitoring during March.

During March, 36 defendants were referred to the Probation Department for pre-sentence invesigations. Ten of them were referred by Judge Collier and 26 by Judge Kimbler.

Judge Kimbler referred six defendants to be evaluated for intervention in lieu of conviction and placed three defendants in that program during March.

Four defendants were referred to the Probation Department for possible expungment of their convictions.

Judge Kimbler put one defendant on his Mental Health Docket.

Judge Collier Allows Kenneth Grad to Withdraw Plea

On March 31, 2010, Judge Christopher Collier granted Mr. Kenneth Grad's motion to withdraw his previous entered pleas of no contest to nine felony counts involving injuries to his son. Previously, Mr. Grad had entered a change of plea in front of Judge Kimbler, but, before sentencing, filed a motion to withdraw those pleas and proceed to trial.

After filing the motion to withdraw the plea, Mr. Grad's attorney filed an affidavit of bias against Judge Kimbler in the Ohio Supreme Court. Upon receiving notice of the filing of the affidavit of bias, but before the Ohio Supreme Court could rule on the motion, Judge Kimbler recused himself from the case and transferred the case to Judge Collier.

Judge Collier conducted a hearing on Mr. Grad's motion. In his journal entry granting the Mr. Grad's motion, Judge Collier wrote that a motion to withdraw a plea made prior to imposition of sentence, is to, according to the Ohio Supreme Court, be "liberally and freely" granted. The Ohio Supreme Court, in the same decision, also made it clear that a defendant does not have an absolute right to withdraw a plea prior to sentencing.

The withdrawal of plea motion is to be granted if there is a reasonable basis to withdraw the plea. The Ohio Supreme Court outlined factors to be considered in deciding whether there is a reasonable basis for the withdrawal of the plea. Those factors include whether the State will be prejudiced by the withdrawal; the representation afforded to the defendant by his or her attorney; the extent of the Criminal Rule 11 change of plea hearing; the extent of the hearing on the motion to withdraw the plea; whether the timing of the motion was reasonable; whether the defendant understood the nature of the charges and the potential sentences; and whether the accused has a complete defense or is perhaps not guilty of the charges.

In Mr. Grad's case, Judge Collier found that while the change of plea hearing was conducted properly, Mr. Grad did not understand the effect of his "no contest" plea. Mr. Grad testified that he believed that he would have an opportunity to call witnesses to establish his innocence at the sentencing hearing. Judge Collier found that it wasn't until after his attorneys explained to him that he wouldn't have that opportunity that he wanted to withdraw his pleas.

After granting the motion to withdraw the pleas, Judge Collier set the case down for a status hearing on April 23, 2010, at 9:00 am.