John Celebrezze, host of the community access television shows Law Talk and Ask the Judge, recently interviewed Medina attorney Richard J. Marco, Jr., on the topic of adoption. You can watch the interview by clicking on the links below:
Part I
Part II
Thursday, December 30, 2010
Judge Kimbler's Probation Violations for December 23, 2010
Submitted by Veronica Perry
Medina County Chief Probation Officer
Only one defendant had a probation violation hearing on December 23, 2010 in Judge Kimbler's court. The probationer was Chrisi Leprevost. She admitted to violating the terms and conditions of her supervision. She was given a 24 day jail sentence, with credit for 24 days served; ordered to submit to weekly drug testing; and if she tests positive for drug use she will be taken into custody and evaluated for admission to a community based control facility in Lorain County.
Medina County Chief Probation Officer
Only one defendant had a probation violation hearing on December 23, 2010 in Judge Kimbler's court. The probationer was Chrisi Leprevost. She admitted to violating the terms and conditions of her supervision. She was given a 24 day jail sentence, with credit for 24 days served; ordered to submit to weekly drug testing; and if she tests positive for drug use she will be taken into custody and evaluated for admission to a community based control facility in Lorain County.
Judge Collier's Criminal Docket for December 20, 2010
Submitted by Dean Holman
Medina County Prosecutor
The following people appeared in Judge Collier’s court on December 20, 2010:
Martez Hope, 18, of Pearl Road in Brunswick, was sentenced to one year in prison on one count of Robbery, a third-degree felony.
Johnny Mcie, 20, of Sanford Road in Lodi, was sentenced to two years of community control sanctions on one count of Trafficking in Marijuana, a fifth-degree felony.
Douglas Cook, 22, of Watrusa Avenue in Wadsworth, pleaded not guilty to one count of Burglary, a third-degree felony. A jury trial is scheduled for January 31.
Christopher Kemper, 24, of South Huntington Street in Medina, pleaded not guilty to the following charges: one count of Burglary, a second-degree felony; one count of Theft of a Firearm, a third-degree felony; and one count of Receiving Stolen Property, a fifth-degree felony. A firearm specification and forfeiture specifications are attached to the charges. A jury trial is scheduled for February 7.
Gregory Palya, 23, of Miller Drive in Brunswick, pleaded not guilty to four counts of Trafficking in Cocaine, two of the charges are third-degree felonies; one is a fourth-degree felony and one is a fifth-degree felony. A jury trial is scheduled for February 14.
Gregory Spidell, 37, of Hamlin Street in Akron, pleaded guilty to two counts of Complicity to Commit Trafficking Drugs, both of which are fifth-degree felonies. Sentencing is set of January 31.
Kevin Taggart, 43, of Michigan, pleaded not guilty to the following charges: one count of Theft of a Firearm, a third-degree felony; one count of Theft, a fifth-degree felony; and two counts of Passing Bad Checks, both of which are fifth-degree felonies. A jury trial is scheduled for February 14.
Charles Williams, 27, of 4th Street NW in Barberton, pleaded not guilty to one count of Illegal Manufacture of Drugs, a first-degree felony and one count of Possession of Drugs, a fifth-degree felony. The first-degree felony charge carries a forfeiture specification. A jury trial is scheduled for February 23.
Medina County Prosecutor
The following people appeared in Judge Collier’s court on December 20, 2010:
Martez Hope, 18, of Pearl Road in Brunswick, was sentenced to one year in prison on one count of Robbery, a third-degree felony.
Johnny Mcie, 20, of Sanford Road in Lodi, was sentenced to two years of community control sanctions on one count of Trafficking in Marijuana, a fifth-degree felony.
Douglas Cook, 22, of Watrusa Avenue in Wadsworth, pleaded not guilty to one count of Burglary, a third-degree felony. A jury trial is scheduled for January 31.
Christopher Kemper, 24, of South Huntington Street in Medina, pleaded not guilty to the following charges: one count of Burglary, a second-degree felony; one count of Theft of a Firearm, a third-degree felony; and one count of Receiving Stolen Property, a fifth-degree felony. A firearm specification and forfeiture specifications are attached to the charges. A jury trial is scheduled for February 7.
Gregory Palya, 23, of Miller Drive in Brunswick, pleaded not guilty to four counts of Trafficking in Cocaine, two of the charges are third-degree felonies; one is a fourth-degree felony and one is a fifth-degree felony. A jury trial is scheduled for February 14.
Gregory Spidell, 37, of Hamlin Street in Akron, pleaded guilty to two counts of Complicity to Commit Trafficking Drugs, both of which are fifth-degree felonies. Sentencing is set of January 31.
Kevin Taggart, 43, of Michigan, pleaded not guilty to the following charges: one count of Theft of a Firearm, a third-degree felony; one count of Theft, a fifth-degree felony; and two counts of Passing Bad Checks, both of which are fifth-degree felonies. A jury trial is scheduled for February 14.
Charles Williams, 27, of 4th Street NW in Barberton, pleaded not guilty to one count of Illegal Manufacture of Drugs, a first-degree felony and one count of Possession of Drugs, a fifth-degree felony. The first-degree felony charge carries a forfeiture specification. A jury trial is scheduled for February 23.
Judge Kimbler's Criminal Docket for December 23, 2010
Submitted by Dean Holman
Medina County Prosecutor
The following people appeared in Judge Kimbler’s court on December 23, 2010:
Joshua Bubner, 26, of Oak Grove in Doylestown, was sentenced to three years of community control sanctions on one count of Trafficking in Marijuana, a fifth-degree felony. His driver’s license was suspended for six months.
Justin Fiddler, 21, of Broad Street in Wadsworth, was sentenced to three years of community control sanctions on two counts of Trafficking in Marijuana within the Vicinity of a Juvenile, both of which are fourth-degree felonies. His driver’s license was suspended for six months.
Leannah Fiddler, 40, of Broad Street in Wadsworth, was sentenced to three years of community control sanctions on three counts of Trafficking in Drugs, one of which is a fourth-degree felony and two of which are fifth-degree felonies.
Martin Mata, 30, of Stratford Avenue in Wadsworth, was sentenced to six months in jail on one count of Possession of Crack Cocaine, a fourth-degree felony. His driver’s license was suspended for six months.
Donald Petrovic, 26, of Main Street in Wadsworth, was sentenced to two years of community control sanctions on two counts of Trafficking in Marijuana, both of which are fifth-degree felonies.
Perry Avery Jr., 30, of Elgin Avenue in Cleveland, pleaded guilty and was sentenced to two years in prison on one count of Possession of Heroin, a second-degree felony. His driver’s license was suspended for one year.
Antwon Boggan, 18, of Clark Avenue in Cleveland, pleaded guilty to one count of Robbery, a third-degree felony. Sentencing is scheduled for January 20.
Darnell Gibson, 31, of Hunters Crossing in Elyria, pleaded not guilty to one count of Carrying a Concealed Weapon, a fourth-degree felony. A jury trial is scheduled for February 22.
Bryan Hathaway, 25, of Highland Avenue in Wadsworth, pleaded not guilty to one count of Trafficking in Drugs within the Vicinity of a School or Juvenile, a fourth-degree felony. A jury trial is scheduled for February 22.
John McCarty, 19, of Hartman Road in Wadsworth, pleaded not guilty to one count of Burglary, a fourth-degree felony. A jury trial is scheduled for February 15.
Michael McCray, 21, of First Street in Rittman, pleaded not guilty to two counts of Theft of Credit Cards, both of which are fifth-degree felonies. A jury trial is scheduled for February 8.
Medina County Prosecutor
The following people appeared in Judge Kimbler’s court on December 23, 2010:
Joshua Bubner, 26, of Oak Grove in Doylestown, was sentenced to three years of community control sanctions on one count of Trafficking in Marijuana, a fifth-degree felony. His driver’s license was suspended for six months.
Justin Fiddler, 21, of Broad Street in Wadsworth, was sentenced to three years of community control sanctions on two counts of Trafficking in Marijuana within the Vicinity of a Juvenile, both of which are fourth-degree felonies. His driver’s license was suspended for six months.
Leannah Fiddler, 40, of Broad Street in Wadsworth, was sentenced to three years of community control sanctions on three counts of Trafficking in Drugs, one of which is a fourth-degree felony and two of which are fifth-degree felonies.
Martin Mata, 30, of Stratford Avenue in Wadsworth, was sentenced to six months in jail on one count of Possession of Crack Cocaine, a fourth-degree felony. His driver’s license was suspended for six months.
Donald Petrovic, 26, of Main Street in Wadsworth, was sentenced to two years of community control sanctions on two counts of Trafficking in Marijuana, both of which are fifth-degree felonies.
Perry Avery Jr., 30, of Elgin Avenue in Cleveland, pleaded guilty and was sentenced to two years in prison on one count of Possession of Heroin, a second-degree felony. His driver’s license was suspended for one year.
Antwon Boggan, 18, of Clark Avenue in Cleveland, pleaded guilty to one count of Robbery, a third-degree felony. Sentencing is scheduled for January 20.
Darnell Gibson, 31, of Hunters Crossing in Elyria, pleaded not guilty to one count of Carrying a Concealed Weapon, a fourth-degree felony. A jury trial is scheduled for February 22.
Bryan Hathaway, 25, of Highland Avenue in Wadsworth, pleaded not guilty to one count of Trafficking in Drugs within the Vicinity of a School or Juvenile, a fourth-degree felony. A jury trial is scheduled for February 22.
John McCarty, 19, of Hartman Road in Wadsworth, pleaded not guilty to one count of Burglary, a fourth-degree felony. A jury trial is scheduled for February 15.
Michael McCray, 21, of First Street in Rittman, pleaded not guilty to two counts of Theft of Credit Cards, both of which are fifth-degree felonies. A jury trial is scheduled for February 8.
Judge Collier's Criminal Docket for December 27, 2010
Submitted by Dean Holman
Medina County Prosecutor
The following people appeared in Judge Collier's court on December 27, 2010:
Anthony George, 18, of Dawn Court in Medina, was sentenced to five years of community control sanctions, with 180 days in jail, on the following charges: one count of Vandalism, a fifth-degree felony; one count of Theft and 10 counts of Receiving Stolen Property, all of which are first-degree misdemeanors.
Donald Whitford, 37, of Black River School Road in Homerville, was sentenced to five years of community control sanctions, with 90 days of home arrest, on one count of Identity Theft and one count of Forgery, both of which are fifth-degree felonies.
Charles Dennison, 42, of Third Street 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 February 28.
Andrew Dukes, 42, of East 120th Street in Cleveland, pleaded no contest and was sentenced to eight months in prison on one count of Possession of Crack Cocaine, a fourth-degree felony.
Nina Formosa, 28, of Seville Road in Wadsworth, pleaded not guilty to two counts of Trafficking in Heroin, both of which are fifth-degree felonies. A jury trial is scheduled for February 16.
Scott Hartman, 47, of Courtland Drive in Strongsville, pleaded not guilty to one count of Theft, a fourth-degree felony. A jury trial is scheduled for March 28.
Anthony Heard, 26, of Wolf Avenue in Wadsworth, pleaded not guilty to two counts of Trafficking in Drugs, both of which are fourth-degree felonies. A jury trial is scheduled for March 28.
Jennifer Mirkovich, 25, of Sturbridge Drive in Medina, pleaded not guilty to one count of Trafficking in Drugs within the Vicinity of a School or Juvenile, a third-degree felony. The charge carries a forfeiture specification. A jury trial is scheduled for February 7.
James Smiley, 27, of Dawnshire Drive in Chippewa Lake, pleaded not guilty to one count of Burglary, a third-degree felony; one count of Theft of a Motor Vehicle, a fourth-degree felony; and one count of Safecracking, a fourth-degree felony. A jury trial is scheduled for January 31.
Medina County Prosecutor
The following people appeared in Judge Collier's court on December 27, 2010:
Anthony George, 18, of Dawn Court in Medina, was sentenced to five years of community control sanctions, with 180 days in jail, on the following charges: one count of Vandalism, a fifth-degree felony; one count of Theft and 10 counts of Receiving Stolen Property, all of which are first-degree misdemeanors.
Donald Whitford, 37, of Black River School Road in Homerville, was sentenced to five years of community control sanctions, with 90 days of home arrest, on one count of Identity Theft and one count of Forgery, both of which are fifth-degree felonies.
Charles Dennison, 42, of Third Street 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 February 28.
Andrew Dukes, 42, of East 120th Street in Cleveland, pleaded no contest and was sentenced to eight months in prison on one count of Possession of Crack Cocaine, a fourth-degree felony.
Nina Formosa, 28, of Seville Road in Wadsworth, pleaded not guilty to two counts of Trafficking in Heroin, both of which are fifth-degree felonies. A jury trial is scheduled for February 16.
Scott Hartman, 47, of Courtland Drive in Strongsville, pleaded not guilty to one count of Theft, a fourth-degree felony. A jury trial is scheduled for March 28.
Anthony Heard, 26, of Wolf Avenue in Wadsworth, pleaded not guilty to two counts of Trafficking in Drugs, both of which are fourth-degree felonies. A jury trial is scheduled for March 28.
Jennifer Mirkovich, 25, of Sturbridge Drive in Medina, pleaded not guilty to one count of Trafficking in Drugs within the Vicinity of a School or Juvenile, a third-degree felony. The charge carries a forfeiture specification. A jury trial is scheduled for February 7.
James Smiley, 27, of Dawnshire Drive in Chippewa Lake, pleaded not guilty to one count of Burglary, a third-degree felony; one count of Theft of a Motor Vehicle, a fourth-degree felony; and one count of Safecracking, a fourth-degree felony. A jury trial is scheduled for January 31.
Monday, December 20, 2010
Requirements for Out of State Attorneys Change in January
Out-of-State Attorney Changes Occur in January
The New Year will result in some significant changes for out-of-state attorneys who want to appear temporarily in a proceeding in Ohio (pro hac vice).
The Supreme Court of Ohio adopted pro hac vice amendments last year, which become effective Jan. 1, 2011. Pro hac vice is a privilege granted by a tribunal to out-of-state attorneys not admitted to practice law in Ohio to appear before the tribunal on a limited basis.
Amendments to Gov. Bar R. XII of the Rules for the Government of the Bar will:
Centralize the administration of pro hac vice admission through the Supreme Court’s Office of Attorney Services.
Require an out-of-state attorney to file an application and $100 annual registration fee before applying to appear pro hac vice.
Establish basic criteria for appearing pro hac vice before a tribunal, including acknowledgement of Ohio’s attorney disciplinary rules and a statement that the attorney has not been granted permission to appear pro hac vice in more than three proceedings before Ohio tribunals in the current calendar year.
Permit the administrative revocation of privileges to practice pro hac vice if the attorney does not comply with certain provisions of the rule.
Susan Christoff, Attorney Services Division director, said the changes implemented in Ohio bring the state in line with how other states have handled temporary appearances by out-of-state attorneys.
“Attorneys who regularly practice in other states in the Midwest should be familiar with some of the requirements instituted by Ohio because they are similar to what those other states require,” she said. “That being said, it’s important to note that pro hac vice has changed in Ohio, and we want to make sure Ohio’s courts and administrative agencies as well as Ohio judges and attorneys are aware of these coming changes.”
She noted that attorneys seeking pro hac vice registration will be able to submit registration applications electronically. The Office of Attorney Services will maintain an online public directory that includes the names of attorneys who have registered under the new rule and the cases in which they have received permission to appear pro hac vice.
To access more detailed information on the changes, complete the pro hac vice registration process online or access the pro hac vice attorney directory, click on the pro hac vice button on the front of the Supreme Court’s Web site at www.sc.ohio.gov or visit this Web address: http://www.supremecourt.ohio.gov/AttySvcs/PHV/default.asp.
Contact: Chris Davey or Bret Crow at 614.387.9250.
The New Year will result in some significant changes for out-of-state attorneys who want to appear temporarily in a proceeding in Ohio (pro hac vice).
The Supreme Court of Ohio adopted pro hac vice amendments last year, which become effective Jan. 1, 2011. Pro hac vice is a privilege granted by a tribunal to out-of-state attorneys not admitted to practice law in Ohio to appear before the tribunal on a limited basis.
Amendments to Gov. Bar R. XII of the Rules for the Government of the Bar will:
Centralize the administration of pro hac vice admission through the Supreme Court’s Office of Attorney Services.
Require an out-of-state attorney to file an application and $100 annual registration fee before applying to appear pro hac vice.
Establish basic criteria for appearing pro hac vice before a tribunal, including acknowledgement of Ohio’s attorney disciplinary rules and a statement that the attorney has not been granted permission to appear pro hac vice in more than three proceedings before Ohio tribunals in the current calendar year.
Permit the administrative revocation of privileges to practice pro hac vice if the attorney does not comply with certain provisions of the rule.
Susan Christoff, Attorney Services Division director, said the changes implemented in Ohio bring the state in line with how other states have handled temporary appearances by out-of-state attorneys.
“Attorneys who regularly practice in other states in the Midwest should be familiar with some of the requirements instituted by Ohio because they are similar to what those other states require,” she said. “That being said, it’s important to note that pro hac vice has changed in Ohio, and we want to make sure Ohio’s courts and administrative agencies as well as Ohio judges and attorneys are aware of these coming changes.”
She noted that attorneys seeking pro hac vice registration will be able to submit registration applications electronically. The Office of Attorney Services will maintain an online public directory that includes the names of attorneys who have registered under the new rule and the cases in which they have received permission to appear pro hac vice.
To access more detailed information on the changes, complete the pro hac vice registration process online or access the pro hac vice attorney directory, click on the pro hac vice button on the front of the Supreme Court’s Web site at www.sc.ohio.gov or visit this Web address: http://www.supremecourt.ohio.gov/AttySvcs/PHV/default.asp.
Contact: Chris Davey or Bret Crow at 614.387.9250.
Judge Kimbler's Probation Violations for December 16, 2010
Medina County Chief Probation Officer Veronica Perry reports that the defendants listed below appeared for probation violation hearings in Judge Kimbler's courtroom on December 16, 2010. The first line is the case number, the second line is the probationer's name, the third line is the probation officer's name, the fourth line is the date, and the fifth and sixth lines have the disposition.
09CR0324
Holderbaum, Julie
L. Lesko
12/16/2010
PV Hearing - continue counseling w/APD in-house counselor; complete 24 hrs. comm. Service; maintain continuos tx w/Portage Path and follow recomm.
08CR0166
Green, Theresa
J. Adams
12/16/2010
PV Hearing - Intervention terminated; ordered a PSI; continue PV to 1/20/11 for sentencing
09CR0294
Cook, Kevin
K. Turchek
12/16/2010
PV Hearing - 30 days MCJ w/16 days credit; terminate supervision once jail time is served; all outstanding costs waived.
08CR0382
Huntsman, Troy
K. Turchek
12/16/2010
PV Hearing - 14 days MCJ beginning on 12/27/10 and continue on supervision.
09CR0033
Moore, Jason
K. Turchek
12/16/2010
PV Hearing - Continued pending new case
08CR0325
Lackey, Benjamin
H. Smith
12/16/2010
PV Hearing - Case transferred to Judge Collier
10CR0188
Leprevost, Christi
C. Copley
12/16/2010
PV Hearing - Given OR bond. PV continued to 12/23/2010 for sentencing
08CR0523
Bene, Timothy
C. Copley
12/16/2010
PV Hearing - Given OR bond. PV continued to 12/23/2010 for sentencing
09CR0324
Holderbaum, Julie
L. Lesko
12/16/2010
PV Hearing - continue counseling w/APD in-house counselor; complete 24 hrs. comm. Service; maintain continuos tx w/Portage Path and follow recomm.
08CR0166
Green, Theresa
J. Adams
12/16/2010
PV Hearing - Intervention terminated; ordered a PSI; continue PV to 1/20/11 for sentencing
09CR0294
Cook, Kevin
K. Turchek
12/16/2010
PV Hearing - 30 days MCJ w/16 days credit; terminate supervision once jail time is served; all outstanding costs waived.
08CR0382
Huntsman, Troy
K. Turchek
12/16/2010
PV Hearing - 14 days MCJ beginning on 12/27/10 and continue on supervision.
09CR0033
Moore, Jason
K. Turchek
12/16/2010
PV Hearing - Continued pending new case
08CR0325
Lackey, Benjamin
H. Smith
12/16/2010
PV Hearing - Case transferred to Judge Collier
10CR0188
Leprevost, Christi
C. Copley
12/16/2010
PV Hearing - Given OR bond. PV continued to 12/23/2010 for sentencing
08CR0523
Bene, Timothy
C. Copley
12/16/2010
PV Hearing - Given OR bond. PV continued to 12/23/2010 for sentencing
Judge James Kimbler's Criminal Docket for December 16, 2010
Medina County Prosecutor Dean Holman reports that the following people appeared in Judge James Kimbler's court on December 16, 2010:
Candice Kane, 24, of Maddock Road in North Ridgeville, was sentenced to three years of community control sanctions on one count of Possession of Heroin, a fifth-degree felony. Her driver’s license was suspended for six months.
Brian Medvick, 26, of Easton Way in Brunswick, was sentenced to three years of community control sanctions, with 30 days of home arrest, on one count of Trafficking in Drugs, a fifth-degree felony. His driver’s license was suspended for six months.
Michael Porach, 33, of Manitoulin Pike in Brunswick, was sentenced to six months in jail on one count of Trafficking in Cocaine and one count of Trafficking in Drugs, both of which are fifth-degree felonies. His driver’s license was suspended for six months.
Brandy Arnold, 29, of Manhattan Avenue in Brunswick, pleaded not guilty to one count of Deception to Obtain a Dangerous Drug, a fifth-degree felony. A jury trial is scheduled for February 16.
Marjorie Chorba, 44, of Broadview Road in Seven Hills, pleaded not guilty to two counts of Theft of a Dangerous Drug, both of which are fourth-degree felonies. A jury trial is scheduled for February 15.
Charity Drake, 36, of 3rd Street NW in Barberton, pleaded not guilty to one count of Receiving Stolen Property, a fifth-degree felony. A jury trial is scheduled for February 16.
Jason Moore, 25, of Ash Street in Lodi, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for February 8.
Edward Rowe, 36, of Fifth Street in Barberton, pleaded not guilty to two counts of Theft, both of which are fifth-degree felonies. A jury trial is scheduled for January 11.
Christine Salamon, 31, of Remsen Road in Medina, pleaded not guilty to one count of Theft from the Elderly, a third-degree felony. A jury trial is scheduled for February 7.
William Schrock, 25, of Circle Drive in Medina, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for February 15.
Candice Kane, 24, of Maddock Road in North Ridgeville, was sentenced to three years of community control sanctions on one count of Possession of Heroin, a fifth-degree felony. Her driver’s license was suspended for six months.
Brian Medvick, 26, of Easton Way in Brunswick, was sentenced to three years of community control sanctions, with 30 days of home arrest, on one count of Trafficking in Drugs, a fifth-degree felony. His driver’s license was suspended for six months.
Michael Porach, 33, of Manitoulin Pike in Brunswick, was sentenced to six months in jail on one count of Trafficking in Cocaine and one count of Trafficking in Drugs, both of which are fifth-degree felonies. His driver’s license was suspended for six months.
Brandy Arnold, 29, of Manhattan Avenue in Brunswick, pleaded not guilty to one count of Deception to Obtain a Dangerous Drug, a fifth-degree felony. A jury trial is scheduled for February 16.
Marjorie Chorba, 44, of Broadview Road in Seven Hills, pleaded not guilty to two counts of Theft of a Dangerous Drug, both of which are fourth-degree felonies. A jury trial is scheduled for February 15.
Charity Drake, 36, of 3rd Street NW in Barberton, pleaded not guilty to one count of Receiving Stolen Property, a fifth-degree felony. A jury trial is scheduled for February 16.
Jason Moore, 25, of Ash Street in Lodi, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for February 8.
Edward Rowe, 36, of Fifth Street in Barberton, pleaded not guilty to two counts of Theft, both of which are fifth-degree felonies. A jury trial is scheduled for January 11.
Christine Salamon, 31, of Remsen Road in Medina, pleaded not guilty to one count of Theft from the Elderly, a third-degree felony. A jury trial is scheduled for February 7.
William Schrock, 25, of Circle Drive in Medina, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for February 15.
Thursday, December 16, 2010
Judge Collier's Criminal Docket for December 13, 2010
Submitted by Dean Holman
Medina County Prosecutor
The following people appeared in Judge Collier's court December 13, 2010 for criminal cases:
April Alford, 34, of Oak Street in Medina, was sentenced to 60 days in jail for a probation violation on two original charges of Possession of Heroin, both of which are fifth-degree felonies.
Christopher Combs, 48, of North Huntington Street in Medina, was sentenced to five years of community control sanctions, with six months in jail, on five counts of Trafficking in Drugs, all of which are fourth-degree felonies. All the charges carry forfeiture specifications. His vehicle was ordered to be forfeited to law enforcement.
Daniel Davenport, 33, of Brookland Drive in Medina, was sentenced to two years in prison for a probation violation on original charges of Possession of Cocaine and Trafficking in Cocaine, both of which are fifth-degree felonies.
Bridget Gordon, 24, of South Main Street in Rittman, was sentenced to one year in prison on one count of Theft and one count of Theft of a Dangerous Drug, both of which are fourth-degree felonies.
Jeffrey Thompson, 44, of West Washington Street in Medina, was sentenced to one year in prison on one count of Breaking and Entering, a fifth-degree felony.
Richard Baldner, 26, of Illinois, pleaded not guilty to one count of Possession of Drugs, a third-degree felony. A jury trial is scheduled for January 24.
Kelly Dorler, 45, of Wadsworth Road in Medina, pleaded not guilty to two counts of Driving Under the Influence of Drugs or Alcohol, both of which are third-degree felonies. A jury trial is scheduled for January 24.
Jeremy Krystosik, 24, of Wolff Road in Medina, pleaded not guilty to one count of Forgery and one count of Deception to Obtain a Dangerous Drug, both of which are fifth-degree felonies. A jury trial is scheduled for March 7.
Joseph Leachman, 26, of West 105th Street in Cleveland, pleaded not guilty to one count of Possession of Heroin, a fifth-degree felony. A jury trial is scheduled for February 14.
Camilla Malone, 55, of Delia Avenue in Akron, pleaded not guilty to two counts of Trafficking in Drugs, both of which are fifth-degree felonies. A jury trial is scheduled for March 14.
Davion Strupe, 20, of West 22nd Street in Lorain, pleaded not guilty to one count of Domestic Violence, a fifth-degree felony. A jury trial is scheduled for February 22.
Medina County Prosecutor
The following people appeared in Judge Collier's court December 13, 2010 for criminal cases:
April Alford, 34, of Oak Street in Medina, was sentenced to 60 days in jail for a probation violation on two original charges of Possession of Heroin, both of which are fifth-degree felonies.
Christopher Combs, 48, of North Huntington Street in Medina, was sentenced to five years of community control sanctions, with six months in jail, on five counts of Trafficking in Drugs, all of which are fourth-degree felonies. All the charges carry forfeiture specifications. His vehicle was ordered to be forfeited to law enforcement.
Daniel Davenport, 33, of Brookland Drive in Medina, was sentenced to two years in prison for a probation violation on original charges of Possession of Cocaine and Trafficking in Cocaine, both of which are fifth-degree felonies.
Bridget Gordon, 24, of South Main Street in Rittman, was sentenced to one year in prison on one count of Theft and one count of Theft of a Dangerous Drug, both of which are fourth-degree felonies.
Jeffrey Thompson, 44, of West Washington Street in Medina, was sentenced to one year in prison on one count of Breaking and Entering, a fifth-degree felony.
Richard Baldner, 26, of Illinois, pleaded not guilty to one count of Possession of Drugs, a third-degree felony. A jury trial is scheduled for January 24.
Kelly Dorler, 45, of Wadsworth Road in Medina, pleaded not guilty to two counts of Driving Under the Influence of Drugs or Alcohol, both of which are third-degree felonies. A jury trial is scheduled for January 24.
Jeremy Krystosik, 24, of Wolff Road in Medina, pleaded not guilty to one count of Forgery and one count of Deception to Obtain a Dangerous Drug, both of which are fifth-degree felonies. A jury trial is scheduled for March 7.
Joseph Leachman, 26, of West 105th Street in Cleveland, pleaded not guilty to one count of Possession of Heroin, a fifth-degree felony. A jury trial is scheduled for February 14.
Camilla Malone, 55, of Delia Avenue in Akron, pleaded not guilty to two counts of Trafficking in Drugs, both of which are fifth-degree felonies. A jury trial is scheduled for March 14.
Davion Strupe, 20, of West 22nd Street in Lorain, pleaded not guilty to one count of Domestic Violence, a fifth-degree felony. A jury trial is scheduled for February 22.
Wednesday, December 15, 2010
Akron Man Pleads to RSP
Michael A. Hilson, 21, of Pondview in Akron, Ohio, entered a no contest plea on Tuesday, December 14, 2010, in Judge Kimbler's courtroom to one count of Receiving Stolen Property. Because the property was a credit card, the charge was a felony even though, according to the assistant Medina County Prosecutor who represented the State, there was no economic loss caused to the card holder. After receiving the plea, Judge Kimbler found Mr. Hilson guilty, ordered a presentence investigation, and continued his bond. He will be sentenced on January 21, 2010.
Wadsworth Woman Changes Plea in Drug Case
Susan E. Farr, 55, of Raven Place in Wadworth, Ohio, entered a change of plea in Judge Kimbler's courtroom on Monday, December 13, 2010, to one count of Drug Possession, a fifth degree felony. Ms. Farr entered a plea of no contest to the charge. Judge Kimbler accepted the plea, found her guilty, and ordered a presentence investigation. Sentence will be imposed on January 21, 2010. Judge Kimbler continued Ms. Farr's bond pending sentencing.
Valley City Man Sentenced to Prison for Escape
Jeffrey E. Withrow, 44, of Columbia Road in Valley City, entered a plea of guilty to one count of Escape, a second degree felony on Monday, December 13, 2010 in Judge Kimbler's courtroom. Judge Kimbler accepted the plea. Both the State and Mr. Withrow waived a presentence investigation. Following the waiver, Judge Kimbler imposed a two year prison sentence with credit for 118 days served in the Medina County Jail prior to sentencing. Following his release from prison, Mr. Withrow will be on post-release control to the Adult Parole Authority for two years.
Saturday, December 11, 2010
Advisory Opinion: Judges May 'Friend' 'Tweet' if Proper Caution Exercised
In one of the most comprehensive and detailed examinations in the nation, the Supreme Court of Ohio’s disciplinary board has issued an advisory opinion examining the ethical implications of judges using social media sites like Facebook and Twitter.
The opinion from the Board of Commissioners on Grievances & Discipline advises judges that social media use is permitted but must be done with caution, and it offers wide ranging, specific guidance to judges on how to navigate the new waters of social media without violating judicial canons that require judges to avoid even the appearance of bias or impropriety.
“This is a topic of great interest to the legal community because, like the rest of the nation, more judges are experimenting with social media in both their personal and professional lives,” said Jon Marshall, the board’s secretary. “For those judges who choose to use this technology, we hope this opinion gives them practical guidance on how to do so and maintain their obligations under the Code of Judicial Conduct.”
A recent national study found that 40 percent of judges report using social media profile sites like Facebook and LinkedIn, a proportion roughly equal to that in the general U.S. adult population. Smaller numbers reported using microblogging sites like Twitter and other less popular social media, but the numbers are expected to grow.
Opinion 2010-7 finds that a judge may be a “friend” on a social networking site with a lawyer who appears as counsel in a case before the judge, but cautions: “As with any other action a judge takes, a judge’s participation on a social networking site must be done carefully in order to comply with the ethical rules in the Code of Judicial Conduct.”
Among the restrictions the opinion noted judges must observe:
To comply with Jud. Cond. Rule 1.2., a judge must maintain dignity in every comment, photograph, and other information shared on the social networking site.
To comply with Jud. Cond. Rule 2.4(C), a judge must not foster social networking interactions with individuals or organizations if such communications erode confidence in the independence of judicial decision making.
To comply with Jud. Cond. Rule 2.9 (A), a judge should not make comments on a social networking site about any matters pending before the judge – not to a party, not to a counsel for a party, not to anyone.
To comply with Jud. Cond. Rule 2.9 (C), a judge should not view a party’s or witnesses’ pages on a social networking site and should not use social networking sites to obtain information regarding the matter before the judge.
To comply with Jud. Cond. Rule 2.10, a judge should avoid making any comments on a social networking site about a pending or impending matter in any court.
To comply with Jud. Cond. Rule 2.11 (A)(1), a judge should disqualify himself or herself from a proceeding when the judge’s social networking relationship with a lawyer creates bias or prejudice concerning the lawyer or party. There is no bright-line rule: not all social relationships, online or otherwise, require a judge disqualification.
To comply with Jud. Cond. Rule 3.10, a judge may not give legal advice to others on a social networking site.
The opinion concluded: “To ensure compliance with all of these rules, a judge should be aware of the contents of his or her social networking page, be familiar with the social networking site policies and privacy controls, and be prudent in all interactions on a social networking site.”
A copy of the opinion is available at: http://www.supremecourt.ohio.gov/Boards/BOC/Advisory_Opinions/2010//op_10-007.doc.
Contact: Ruth Bope Dangel at 614.387.9370 or Chris Davey at 614.387.9250.
The opinion from the Board of Commissioners on Grievances & Discipline advises judges that social media use is permitted but must be done with caution, and it offers wide ranging, specific guidance to judges on how to navigate the new waters of social media without violating judicial canons that require judges to avoid even the appearance of bias or impropriety.
“This is a topic of great interest to the legal community because, like the rest of the nation, more judges are experimenting with social media in both their personal and professional lives,” said Jon Marshall, the board’s secretary. “For those judges who choose to use this technology, we hope this opinion gives them practical guidance on how to do so and maintain their obligations under the Code of Judicial Conduct.”
A recent national study found that 40 percent of judges report using social media profile sites like Facebook and LinkedIn, a proportion roughly equal to that in the general U.S. adult population. Smaller numbers reported using microblogging sites like Twitter and other less popular social media, but the numbers are expected to grow.
Opinion 2010-7 finds that a judge may be a “friend” on a social networking site with a lawyer who appears as counsel in a case before the judge, but cautions: “As with any other action a judge takes, a judge’s participation on a social networking site must be done carefully in order to comply with the ethical rules in the Code of Judicial Conduct.”
Among the restrictions the opinion noted judges must observe:
To comply with Jud. Cond. Rule 1.2., a judge must maintain dignity in every comment, photograph, and other information shared on the social networking site.
To comply with Jud. Cond. Rule 2.4(C), a judge must not foster social networking interactions with individuals or organizations if such communications erode confidence in the independence of judicial decision making.
To comply with Jud. Cond. Rule 2.9 (A), a judge should not make comments on a social networking site about any matters pending before the judge – not to a party, not to a counsel for a party, not to anyone.
To comply with Jud. Cond. Rule 2.9 (C), a judge should not view a party’s or witnesses’ pages on a social networking site and should not use social networking sites to obtain information regarding the matter before the judge.
To comply with Jud. Cond. Rule 2.10, a judge should avoid making any comments on a social networking site about a pending or impending matter in any court.
To comply with Jud. Cond. Rule 2.11 (A)(1), a judge should disqualify himself or herself from a proceeding when the judge’s social networking relationship with a lawyer creates bias or prejudice concerning the lawyer or party. There is no bright-line rule: not all social relationships, online or otherwise, require a judge disqualification.
To comply with Jud. Cond. Rule 3.10, a judge may not give legal advice to others on a social networking site.
The opinion concluded: “To ensure compliance with all of these rules, a judge should be aware of the contents of his or her social networking page, be familiar with the social networking site policies and privacy controls, and be prudent in all interactions on a social networking site.”
A copy of the opinion is available at: http://www.supremecourt.ohio.gov/Boards/BOC/Advisory_Opinions/2010//op_10-007.doc.
Contact: Ruth Bope Dangel at 614.387.9370 or Chris Davey at 614.387.9250.
Thursday, December 09, 2010
Medina County Adult Probation Department Report for November, 2010
Medina County Chief Probation Officer Veronica Perry reports that courtrooms of Judge Christopher J. Collier and Judge James L. Kimbler made the following assignments and referrals to her department in November, 2010:
There were 9 intensive supervised probation assignments with Judge Collier making 7 and Judge Kimbler making 2.
There were 26 general supervision assignments with Judge Collier making 12 and Judge Kimbler making 14.
There were 9 community service referrals with Judge Collier making 2 and Judge Kimbler making 7.
Judge Kimbler referred 1 probationer to home incarceration with electronic monitoring.
Judge Collier referred 1 defendant to the Department’s bond reporting officer.
There were 35 presentence investigation referrals with Judge Collier making 12 and Judge KImbler making 23.
Judge Kimbler referred 2 defendants for intervention in lieu of conviction reports.
Judge Kimbler referred 5 defendants to see if they were eligible to have their convictions expunged.
Judge Kimbler referred 1 defendant for a determination as to whether that defendant qualified for his mental health docket.
Editor’s Note: The references to Judge Kimbler above refer to assignments and referrals coming out of his courtroom. For most of November, Judge Kimbler was on medical leave and there were visiting judges handling his docket. Judge Kimbler resumed work on Monday, November 29, 2010.
There were 9 intensive supervised probation assignments with Judge Collier making 7 and Judge Kimbler making 2.
There were 26 general supervision assignments with Judge Collier making 12 and Judge Kimbler making 14.
There were 9 community service referrals with Judge Collier making 2 and Judge Kimbler making 7.
Judge Kimbler referred 1 probationer to home incarceration with electronic monitoring.
Judge Collier referred 1 defendant to the Department’s bond reporting officer.
There were 35 presentence investigation referrals with Judge Collier making 12 and Judge KImbler making 23.
Judge Kimbler referred 2 defendants for intervention in lieu of conviction reports.
Judge Kimbler referred 5 defendants to see if they were eligible to have their convictions expunged.
Judge Kimbler referred 1 defendant for a determination as to whether that defendant qualified for his mental health docket.
Editor’s Note: The references to Judge Kimbler above refer to assignments and referrals coming out of his courtroom. For most of November, Judge Kimbler was on medical leave and there were visiting judges handling his docket. Judge Kimbler resumed work on Monday, November 29, 2010.
Court Orders Power Siting Board to Review, Rule On Environmental Impact of Butler County Coke Ovens
Board Erred in Denying Jurisdiction Over Ovens as Part of Power Plant
In re Application of Middletown Coke Co., Slip Opinion No. 2010-Ohio-5725.
Power Siting Board, No. 08-0281-EL-BGN. Order of the Power Siting Board reversed, and cause remanded.
Pfeifer, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Lundberg Stratton, J., dissents.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-5725.pdf
(Dec. 1, 2010) The Supreme Court of Ohio ruled today that the Ohio Power Siting Board (OPSB) erred by denying that it has jurisdiction to review the environmental impact of coke ovens that are part of an electric power “cogeneration station” proposed to be constructed near the Butler County community of Monroe. In a 5-1 decision authored by Justice Judith Ann Lanzinger, the Court reversed a decision of the OPSB approving the siting of the proposed facility without considering the environmental impact of the coke ovens, and remanded the application of the Middletown Coke Company to the siting board for further proceedings to determine whether the proposed facility “represents the minimum adverse environmental impact.”
Under Chapter 4906 of the Ohio Revised Code a “major utility facility” (i.e. a plant designed to produce at least 50 megawatts of electricity) may not be built without the approval of the OPSB. In this case, Middletown Coke Company (MCC) filed an application with the OPSB in June 2008 seeking approval to build what it termed a “cogeneration station” on a 250-acre site near the city of Monroe in Butler County. The proposed facility was to consist of 1) ovens that bake coal in order to convert it to metallurgical coke, producing superheated gases in the process; 2) heat recovery steam generators (HRSGs) that filter out pollutants and convert the superheated flue gases emitted by the coke ovens to usable steam; and 3) a steam-powered turbine capable of generating an average of 57 megawatts of electric power.
Before it approves construction of any major utility facility, the siting board must determine that the facility “represents the minimum adverse environmental impact.” In addition, the siting board’s rules require applicants to provide a detailed explanation of the process used to select the proposed site and a description of alternative sites. In its application, MCC defined the cogeneration station to include only the electricity-producing turbine and related apparatus, such as cooling towers and control equipment. The application, however, excluded the equipment that burned coal and produced steam -- that is, the coke ovens and heat recovery steam generators.
MCC sought and was granted a waiver from the requirement to develop an alternative-site analysis. The company reasoned, and the siting board agreed, that the location of the cogeneration station depended on “the location of the coke manufacturing facility, which is not required to undergo a formal site selection study.” In accordance with this waiver, the application’s description of the site-selection process consisted of one paragraph explaining that the location of the cogeneration station was “constrained by the need to be adjacent to the energy source, which is the coke facility.” The application did not explain whether the company had considered other sites for the entire project (that is, including the coke facility) or how it settled on the location chosen.
The site selected by MCC borders the city of Monroe and lies a half-mile from the city’s residential neighborhoods and about 1,200 feet from a school. In September 2008, Monroe filed a motion to intervene, opposing the application. It asserted that the source of steam for the project (the coke ovens and heat recovery steam generators) would annually emit over 2,700 tons of air pollutants and up to 160 pounds of mercury. It asked the siting board to review the environmental impact of the entire facility, including the land and facilities used to produce coke, and to consider alternative sites.
The siting board granted Monroe’s motion to intervene, but disclaimed “jurisdiction over any permits for construction of the coke plant.” Throughout subsequent proceedings, the OPSB consistently denied that it had jurisdiction to review the environmental impact or location of “the coke plant,” and on that basis disallowed repeated efforts by Monroe to obtain discovery, cross examine MCC’s witnesses or proffer any evidence relating to the coke ovens. After completing an investigation limited exclusively to the steam turbine portion of the project proposal, the siting board granted MCC’s application to construct the facility as proposed.
Monroe exercised its right to appeal the decision of the OPSB to the Supreme Court.
Writing for the majority in today’s decision, Justice Lanzinger said that in refusing to consider the environmental and other impacts of the coke plant or steam generator portions of the project, and declining even to consider whether there was another feasible location posing less environmental impact, the OPSB disregarded the statute that should have guided its review of the MCC application.
She wrote: “R.C. 4906.01(B)(1) controls the jurisdictional analysis and grants the siting board jurisdiction over ‘[e]lectric generating plant and associated facilities designed for, or capable of, operation at a capacity of fifty megawatts or more.’ ‘Plant’ means ‘the land, buildings, machinery, apparatus, and fixtures employed in carrying on ... a mechanical or other industrial business.’ ... In context, then, the siting board’s jurisdiction extends to land, buildings, and equipment employed in carrying on the business of generating electricity. ... The siting board, as far as its orders show, never asked whether the contested land and equipment constituted ‘electric generating plant.’ It characterized as ‘the coke plant’ anything used to make coke and then disclaimed jurisdiction, regardless of whether it was also used to generate electricity. The statute, however, grants jurisdiction over ‘electric generating plant’ and does not deny jurisdiction over ‘coke plant.’ The question, then, is whether the contested land and facilities constitute electric generating plant. Concluding that they are ‘part of [a] coke plant’ does not answer that question.
“The assumption that any given parcel of land or piece of equipment can fit into only one of two categories—coke plant or electric generating plant—is false. The siting board has not explained why, as a matter of logic, the same land or equipment cannot be both coke plant and electric generating plant. Nor has it cited any legal authority in support of its either-or analysis. Factually, this case demonstrates that the same land and equipment may be used in both processes and thus fit both categories. We reverse the siting board’s jurisdictional ruling. The siting board committed the jurisdictional error early in the proceedings. In addition to affecting the scope of its substantive investigation and analysis, the siting board also limited the scope of discovery, cross-examination, and Monroe’s ability to introduce its own evidence into the record.”
While indicating that it would be inappropriate for the Court to dictate the specific analysis the siting board must undertake on remand regarding the impacts of the non-turbine portions of the facility, Justice Lanzinger suggested the OPSB should evaluate the extent to which the steam generators excluded from its earlier analysis contribute not only to the production of coke but also to the generation of electric power, and should conduct a balancing test between the environmental impacts of the coke ovens and steam generators and the economic and other impacts of alternative locations or technologies.
She concluded: “As a result of its erroneous jurisdictional ruling, the siting board never engaged in the balancing of interests required in this case. ... It may well be that the best place for this generation facility is less than a mile from Monroe’s homes and schools, but the city is entitled to test that proposition through an effective adversarial proceeding. With a fully developed record and fact-supported explanation, effective judicial review will be possible.”
Justice Lanzinger’s opinion was joined by Justices Paul E. Pfeifer, Maureen O’Connor, Terrence O’Donnell and Robert R. Cupp.
Justice Evelyn Lundberg Stratton dissented, stating that in her view the language in R.C. 4906.01 including “associated facilities” within the definition of an electric generating plant is limited to facilities that are designed for or capable of producing electricity. “In the instant case, the proposed coke plant is not designed for, nor will it be capable of, producing electricity. It is intended to make coke.” wrote Justice Stratton. “The heat that is used to create steam as fuel for the power plant is merely a waste product of that process. Thus, I would hold that the proposed coke ovens plant is not an associated facility as defined in R.C. 4906.01(B)(1). ... I believe that the majority’s holding expands the board’s jurisdiction beyond what the General Assembly intended, and it encroaches upon the Ohio EPA’s jurisdiction to regulate coke ovens. Consequently, I would defer to the board’s decision that it has jurisdiction over the proposed power plant, but not the proposed coke plant. Thus, I would affirm the decision of the Power Siting Board.”
Chief Justice Eric Brown did not participate in the court’s deliberations or decision in this case.
Contacts
Jack A. Van Kley, 614.431.8900, for the city of Monroe.
Samuel Peterson, 614.466.8746, for the Ohio Power Siting Board.
M. Howard Petricoff, 614.464.6414, for Middletown Coke Company
In re Application of Middletown Coke Co., Slip Opinion No. 2010-Ohio-5725.
Power Siting Board, No. 08-0281-EL-BGN. Order of the Power Siting Board reversed, and cause remanded.
Pfeifer, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Lundberg Stratton, J., dissents.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-5725.pdf
(Dec. 1, 2010) The Supreme Court of Ohio ruled today that the Ohio Power Siting Board (OPSB) erred by denying that it has jurisdiction to review the environmental impact of coke ovens that are part of an electric power “cogeneration station” proposed to be constructed near the Butler County community of Monroe. In a 5-1 decision authored by Justice Judith Ann Lanzinger, the Court reversed a decision of the OPSB approving the siting of the proposed facility without considering the environmental impact of the coke ovens, and remanded the application of the Middletown Coke Company to the siting board for further proceedings to determine whether the proposed facility “represents the minimum adverse environmental impact.”
Under Chapter 4906 of the Ohio Revised Code a “major utility facility” (i.e. a plant designed to produce at least 50 megawatts of electricity) may not be built without the approval of the OPSB. In this case, Middletown Coke Company (MCC) filed an application with the OPSB in June 2008 seeking approval to build what it termed a “cogeneration station” on a 250-acre site near the city of Monroe in Butler County. The proposed facility was to consist of 1) ovens that bake coal in order to convert it to metallurgical coke, producing superheated gases in the process; 2) heat recovery steam generators (HRSGs) that filter out pollutants and convert the superheated flue gases emitted by the coke ovens to usable steam; and 3) a steam-powered turbine capable of generating an average of 57 megawatts of electric power.
Before it approves construction of any major utility facility, the siting board must determine that the facility “represents the minimum adverse environmental impact.” In addition, the siting board’s rules require applicants to provide a detailed explanation of the process used to select the proposed site and a description of alternative sites. In its application, MCC defined the cogeneration station to include only the electricity-producing turbine and related apparatus, such as cooling towers and control equipment. The application, however, excluded the equipment that burned coal and produced steam -- that is, the coke ovens and heat recovery steam generators.
MCC sought and was granted a waiver from the requirement to develop an alternative-site analysis. The company reasoned, and the siting board agreed, that the location of the cogeneration station depended on “the location of the coke manufacturing facility, which is not required to undergo a formal site selection study.” In accordance with this waiver, the application’s description of the site-selection process consisted of one paragraph explaining that the location of the cogeneration station was “constrained by the need to be adjacent to the energy source, which is the coke facility.” The application did not explain whether the company had considered other sites for the entire project (that is, including the coke facility) or how it settled on the location chosen.
The site selected by MCC borders the city of Monroe and lies a half-mile from the city’s residential neighborhoods and about 1,200 feet from a school. In September 2008, Monroe filed a motion to intervene, opposing the application. It asserted that the source of steam for the project (the coke ovens and heat recovery steam generators) would annually emit over 2,700 tons of air pollutants and up to 160 pounds of mercury. It asked the siting board to review the environmental impact of the entire facility, including the land and facilities used to produce coke, and to consider alternative sites.
The siting board granted Monroe’s motion to intervene, but disclaimed “jurisdiction over any permits for construction of the coke plant.” Throughout subsequent proceedings, the OPSB consistently denied that it had jurisdiction to review the environmental impact or location of “the coke plant,” and on that basis disallowed repeated efforts by Monroe to obtain discovery, cross examine MCC’s witnesses or proffer any evidence relating to the coke ovens. After completing an investigation limited exclusively to the steam turbine portion of the project proposal, the siting board granted MCC’s application to construct the facility as proposed.
Monroe exercised its right to appeal the decision of the OPSB to the Supreme Court.
Writing for the majority in today’s decision, Justice Lanzinger said that in refusing to consider the environmental and other impacts of the coke plant or steam generator portions of the project, and declining even to consider whether there was another feasible location posing less environmental impact, the OPSB disregarded the statute that should have guided its review of the MCC application.
She wrote: “R.C. 4906.01(B)(1) controls the jurisdictional analysis and grants the siting board jurisdiction over ‘[e]lectric generating plant and associated facilities designed for, or capable of, operation at a capacity of fifty megawatts or more.’ ‘Plant’ means ‘the land, buildings, machinery, apparatus, and fixtures employed in carrying on ... a mechanical or other industrial business.’ ... In context, then, the siting board’s jurisdiction extends to land, buildings, and equipment employed in carrying on the business of generating electricity. ... The siting board, as far as its orders show, never asked whether the contested land and equipment constituted ‘electric generating plant.’ It characterized as ‘the coke plant’ anything used to make coke and then disclaimed jurisdiction, regardless of whether it was also used to generate electricity. The statute, however, grants jurisdiction over ‘electric generating plant’ and does not deny jurisdiction over ‘coke plant.’ The question, then, is whether the contested land and facilities constitute electric generating plant. Concluding that they are ‘part of [a] coke plant’ does not answer that question.
“The assumption that any given parcel of land or piece of equipment can fit into only one of two categories—coke plant or electric generating plant—is false. The siting board has not explained why, as a matter of logic, the same land or equipment cannot be both coke plant and electric generating plant. Nor has it cited any legal authority in support of its either-or analysis. Factually, this case demonstrates that the same land and equipment may be used in both processes and thus fit both categories. We reverse the siting board’s jurisdictional ruling. The siting board committed the jurisdictional error early in the proceedings. In addition to affecting the scope of its substantive investigation and analysis, the siting board also limited the scope of discovery, cross-examination, and Monroe’s ability to introduce its own evidence into the record.”
While indicating that it would be inappropriate for the Court to dictate the specific analysis the siting board must undertake on remand regarding the impacts of the non-turbine portions of the facility, Justice Lanzinger suggested the OPSB should evaluate the extent to which the steam generators excluded from its earlier analysis contribute not only to the production of coke but also to the generation of electric power, and should conduct a balancing test between the environmental impacts of the coke ovens and steam generators and the economic and other impacts of alternative locations or technologies.
She concluded: “As a result of its erroneous jurisdictional ruling, the siting board never engaged in the balancing of interests required in this case. ... It may well be that the best place for this generation facility is less than a mile from Monroe’s homes and schools, but the city is entitled to test that proposition through an effective adversarial proceeding. With a fully developed record and fact-supported explanation, effective judicial review will be possible.”
Justice Lanzinger’s opinion was joined by Justices Paul E. Pfeifer, Maureen O’Connor, Terrence O’Donnell and Robert R. Cupp.
Justice Evelyn Lundberg Stratton dissented, stating that in her view the language in R.C. 4906.01 including “associated facilities” within the definition of an electric generating plant is limited to facilities that are designed for or capable of producing electricity. “In the instant case, the proposed coke plant is not designed for, nor will it be capable of, producing electricity. It is intended to make coke.” wrote Justice Stratton. “The heat that is used to create steam as fuel for the power plant is merely a waste product of that process. Thus, I would hold that the proposed coke ovens plant is not an associated facility as defined in R.C. 4906.01(B)(1). ... I believe that the majority’s holding expands the board’s jurisdiction beyond what the General Assembly intended, and it encroaches upon the Ohio EPA’s jurisdiction to regulate coke ovens. Consequently, I would defer to the board’s decision that it has jurisdiction over the proposed power plant, but not the proposed coke plant. Thus, I would affirm the decision of the Power Siting Board.”
Chief Justice Eric Brown did not participate in the court’s deliberations or decision in this case.
Contacts
Jack A. Van Kley, 614.431.8900, for the city of Monroe.
Samuel Peterson, 614.466.8746, for the Ohio Power Siting Board.
M. Howard Petricoff, 614.464.6414, for Middletown Coke Company
Court Rules 'Negotiated Plea' to Lesser Charge Barred Homicide Prosecution When Crime Victim Later Died
In Case Where the State Did Not Reserve Right to Further Prosecution
State v. Dye, Slip Opinion No. 2010-Ohio-5728.
Lake App. No. 2008-L-106, 2009-Ohio-2949. Judgment of the court of appeals affirmed.
Pfeifer, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Lundberg Stratton, J., dissents.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-5728.pdf
(Dec. 1, 2010) The Supreme Court of Ohio ruled today that an agreement between a Lake County man and local prosecutors in which the defendant entered a guilty plea to aggravated vehicular assault and the state agreed to drop two criminal specifications and continue the defendant’s bond constituted a “negotiated guilty plea” that barred the state from later charging the defendant with vehicular homicide when the victim later died as a result of his injuries.
The Court’s 5-1 majority opinion was written by Justice Robert R. Cupp.
In 1999, James Dye struck 13-year-old Robbie Arnold with his pickup truck while Dye was driving under the influence of alcohol. Arnold suffered life-threatening injuries that rendered him quadriplegic. Dye, who admitted drinking seven beers prior to the accident, was charged with DUI and aggravated vehicular assault with three specifications, any of which would enhance his sentence on the assault charge. Dye entered not guilty pleas on all counts and specifications.
At a subsequent plea hearing, Dye changed his not guilty pleas to guilty on both the vehicular assault and DUI charges and on one of the three specifications. The state dismissed the other two specifications and advised the court that it had agreed to continuation of Dye’s bond until sentencing was completed on the conditions that he not drive and abstain from any use of alcohol or drugs. The court accepted Dye’s guilty pleas, convicted him of the charged offenses and specification, and continued his trial bond pending sentencing. The state did not agree to recommend a less-than-maximum sentence, and the trial court subsequently imposed maximum sentences of 18 months in prison for the vehicular assault charge and six months for DUI, with those terms to be served concurrently. The state did not make a reservation of rights in the trial record to pursue additional charges against Dye in the event that Arnold should die from his injuries. Dye served his full prison term and was released from custody in June 2001.
In December 2006, Arnold died from complications of the injuries he had received in the 1999 traffic accident.
In July 2007, the Lake County prosecutor’s office sought and obtained a grand jury indictment against Dye for aggravated vehicular homicide. Dye entered a plea of not guilty and filed a pretrial motion seeking dismissal of the homicide indictment based on the Supreme Court of Ohio’s 1993 holding in State v. Carpenter that “(t)he state cannot indict a defendant for murder after the court has accepted a negotiated guilty plea to a lesser offense and the victim later dies of injuries sustained in the crime, unless the state expressly reserves the right to file additional charges on the record at the time of the defendant’s plea.” The trial court overruled the motion to dismiss, finding that Carpenter did not apply to Dye’s case because his guilty pleas were not “negotiated,” and because he pleaded to the original charges brought against him rather than to a “lesser charge.” Dye changed his initial not guilty plea to no contest. He was found guilty of aggravated vehicular homicide and sentenced to nine years in prison, with credit for the 18 months he had served on the assault charge.
Dye appealed. On review, the 11th District Court of Appeals reversed the trial court and ordered that Dye’s vehicular homicide indictment be dismissed and his conviction vacated. The court of appeals based its ruling on findings that Dye’s 1999 guilty plea to vehicular assault was a “negotiated plea to a lesser offense” within the meaning of Carpenter, and the state was therefore precluded from seeking a future indictment for homicide because it had not expressly reserved in the trial record the right to pursue additional charges against Dye if Arnold should die from his injuries. The state sought and was granted Supreme Court review of the 11th District’s ruling.
In today’s majority opinion, Justice Cupp wrote: “In order for a guilty plea to be a ‘negotiated guilty plea’ within the meaning of State v. Carpenter, the record must show the existence of the elements of a contract (the plea agreement). The state maintains that there was no plea agreement and that Dye effectively pleaded guilty to the indictment in the first case. Dye pleaded guilty to both counts of the first indictment, but only to the first of the three specifications attached to the aggravated vehicular assault charge. (To be sure, that specification not only imposed a mandatory prison term, as did the other specifications that were dismissed, but it included a mandatory permanent revocation of Dye’s driver’s license.) The state sought the maximum sentence, which was imposed. The state contends that Dye did not gain a reduced charge, a more favorable sentencing recommendation, or anything else, as one would expect from a negotiated plea agreement.”
“This matter is not without some difficulty. However, a close examination of the record supports the conclusion that a negotiated plea existed within the meaning of Carpenter. Although the record is limited regarding the plea negotiations in Dye’s first case, the transcript of the plea hearing reflects that some form of communication occurred before that hearing during which Dye notified the state that he would plead guilty to Counts One and Two and the first specification. Because Dye agreed to plead to this portion of the charges, the state recommended dismissal of the two remaining specifications. In addition, the state indicated that it had made an agreement with Dye to recommend the continuation of bond on the condition that Dye refrain from driving and using drugs or alcohol.”
“The state contends that this latter part of the agreement at most related to the continuation of the bond and not the overall plea, but, although it is a close question, we view the agreement for continuation of the bond as corroborating the defendant’s claim that his guilty plea was negotiated with the state. Dye’s change of plea from not guilty to guilty and the state’s later recommendation that the second and third specifications be dismissed, in conjunction with the agreement on continuation of bond, support the conclusion that Dye’s guilty plea was a negotiated plea within the meaning of Carpenter. The state obtained a definite prison term and avoided the uncertainties of trial. Dye gave up rights that may have resulted in acquittal.”
“As the court of appeals concluded, any time a defendant enters a guilty plea, he or she will have relinquished the right to a trial at which the defendant could be acquitted, and the state gains the benefit of obtaining a conviction without having to go to trial. ... We caution that our holding that a negotiated plea existed in Dye’s case does not mean that every plea of guilty necessarily is the result of a negotiated plea agreement within the meaning of Carpenter. On this record, the evidence of plea negotiations and the parties’ awareness of the gravity of the victim’s injuries, together with the state’s failure to reserve the right to prosecute for any later homicide charge, justify the conclusion that the state agreed to forgo further prosecution of Dye.”
“ ... Because Dye’s 1999 plea was a ‘negotiated guilty plea’ within the meaning of Carpenter, the state had a duty to ‘expressly reserve the right to file additional charges’ if the victim dies of his injuries. ... Accordingly, the state was precluded from bringing the aggravated-vehicular-homicide charge against Dye after the victim died. We affirm the judgment of the court of appeals.”
Justice Cupp’s opinion was joined by Justices Paul E. Pfeifer, Maureen O’Connor, Terrence O’Donnell and Judith Ann Lanzinger.
Justice Evelyn Lundberg Stratton entered a dissent stating that in her view Dye’s original guilty plea was not a “negotiated guilty plea” within the meaning of State v. Carpenter. She wrote: “ ... Dye essentially pleaded guilty to the crimes charged. The state requested a maximum sentence, which was imposed. There was no negotiated reduced plea or plea bargain. The dismissal of the two specifications to the aggravated vehicular assault charge did not result in a reduced sentence. Dye received no more lenient a sentence than he would have if he had been found guilty at trial.”
“... I agree with the court of appeals that any time a defendant enters a guilty plea, he or she will have relinquished the right to a trial at which the defendant could be acquitted, and the state gains the benefit of obtaining a conviction without having to go to trial. But to hold that this detriment to the defendant and benefit to the state—which will be true of every guilty plea—amounts to a negotiated plea agreement under Carpenter is to read that case’s holding too broadly. ... Because Dye’s 1999 plea was not a ‘negotiated guilty plea’ within the meaning of Carpenter, I believe that the state had no duty to expressly reserve the right to file additional charges in the event of the death of the victim. Accordingly, I would hold that the state was not precluded from bringing the aggravated-vehicular-homicide charge against Dye after the victim died.”
Contacts
Teri R. Daniel, 440.350.2683, for the state and Lake County Prosecutor's Office.
Michael B. Bowler, 330.253.3337, for James Dye.
State v. Dye, Slip Opinion No. 2010-Ohio-5728.
Lake App. No. 2008-L-106, 2009-Ohio-2949. Judgment of the court of appeals affirmed.
Pfeifer, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Lundberg Stratton, J., dissents.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-5728.pdf
(Dec. 1, 2010) The Supreme Court of Ohio ruled today that an agreement between a Lake County man and local prosecutors in which the defendant entered a guilty plea to aggravated vehicular assault and the state agreed to drop two criminal specifications and continue the defendant’s bond constituted a “negotiated guilty plea” that barred the state from later charging the defendant with vehicular homicide when the victim later died as a result of his injuries.
The Court’s 5-1 majority opinion was written by Justice Robert R. Cupp.
In 1999, James Dye struck 13-year-old Robbie Arnold with his pickup truck while Dye was driving under the influence of alcohol. Arnold suffered life-threatening injuries that rendered him quadriplegic. Dye, who admitted drinking seven beers prior to the accident, was charged with DUI and aggravated vehicular assault with three specifications, any of which would enhance his sentence on the assault charge. Dye entered not guilty pleas on all counts and specifications.
At a subsequent plea hearing, Dye changed his not guilty pleas to guilty on both the vehicular assault and DUI charges and on one of the three specifications. The state dismissed the other two specifications and advised the court that it had agreed to continuation of Dye’s bond until sentencing was completed on the conditions that he not drive and abstain from any use of alcohol or drugs. The court accepted Dye’s guilty pleas, convicted him of the charged offenses and specification, and continued his trial bond pending sentencing. The state did not agree to recommend a less-than-maximum sentence, and the trial court subsequently imposed maximum sentences of 18 months in prison for the vehicular assault charge and six months for DUI, with those terms to be served concurrently. The state did not make a reservation of rights in the trial record to pursue additional charges against Dye in the event that Arnold should die from his injuries. Dye served his full prison term and was released from custody in June 2001.
In December 2006, Arnold died from complications of the injuries he had received in the 1999 traffic accident.
In July 2007, the Lake County prosecutor’s office sought and obtained a grand jury indictment against Dye for aggravated vehicular homicide. Dye entered a plea of not guilty and filed a pretrial motion seeking dismissal of the homicide indictment based on the Supreme Court of Ohio’s 1993 holding in State v. Carpenter that “(t)he state cannot indict a defendant for murder after the court has accepted a negotiated guilty plea to a lesser offense and the victim later dies of injuries sustained in the crime, unless the state expressly reserves the right to file additional charges on the record at the time of the defendant’s plea.” The trial court overruled the motion to dismiss, finding that Carpenter did not apply to Dye’s case because his guilty pleas were not “negotiated,” and because he pleaded to the original charges brought against him rather than to a “lesser charge.” Dye changed his initial not guilty plea to no contest. He was found guilty of aggravated vehicular homicide and sentenced to nine years in prison, with credit for the 18 months he had served on the assault charge.
Dye appealed. On review, the 11th District Court of Appeals reversed the trial court and ordered that Dye’s vehicular homicide indictment be dismissed and his conviction vacated. The court of appeals based its ruling on findings that Dye’s 1999 guilty plea to vehicular assault was a “negotiated plea to a lesser offense” within the meaning of Carpenter, and the state was therefore precluded from seeking a future indictment for homicide because it had not expressly reserved in the trial record the right to pursue additional charges against Dye if Arnold should die from his injuries. The state sought and was granted Supreme Court review of the 11th District’s ruling.
In today’s majority opinion, Justice Cupp wrote: “In order for a guilty plea to be a ‘negotiated guilty plea’ within the meaning of State v. Carpenter, the record must show the existence of the elements of a contract (the plea agreement). The state maintains that there was no plea agreement and that Dye effectively pleaded guilty to the indictment in the first case. Dye pleaded guilty to both counts of the first indictment, but only to the first of the three specifications attached to the aggravated vehicular assault charge. (To be sure, that specification not only imposed a mandatory prison term, as did the other specifications that were dismissed, but it included a mandatory permanent revocation of Dye’s driver’s license.) The state sought the maximum sentence, which was imposed. The state contends that Dye did not gain a reduced charge, a more favorable sentencing recommendation, or anything else, as one would expect from a negotiated plea agreement.”
“This matter is not without some difficulty. However, a close examination of the record supports the conclusion that a negotiated plea existed within the meaning of Carpenter. Although the record is limited regarding the plea negotiations in Dye’s first case, the transcript of the plea hearing reflects that some form of communication occurred before that hearing during which Dye notified the state that he would plead guilty to Counts One and Two and the first specification. Because Dye agreed to plead to this portion of the charges, the state recommended dismissal of the two remaining specifications. In addition, the state indicated that it had made an agreement with Dye to recommend the continuation of bond on the condition that Dye refrain from driving and using drugs or alcohol.”
“The state contends that this latter part of the agreement at most related to the continuation of the bond and not the overall plea, but, although it is a close question, we view the agreement for continuation of the bond as corroborating the defendant’s claim that his guilty plea was negotiated with the state. Dye’s change of plea from not guilty to guilty and the state’s later recommendation that the second and third specifications be dismissed, in conjunction with the agreement on continuation of bond, support the conclusion that Dye’s guilty plea was a negotiated plea within the meaning of Carpenter. The state obtained a definite prison term and avoided the uncertainties of trial. Dye gave up rights that may have resulted in acquittal.”
“As the court of appeals concluded, any time a defendant enters a guilty plea, he or she will have relinquished the right to a trial at which the defendant could be acquitted, and the state gains the benefit of obtaining a conviction without having to go to trial. ... We caution that our holding that a negotiated plea existed in Dye’s case does not mean that every plea of guilty necessarily is the result of a negotiated plea agreement within the meaning of Carpenter. On this record, the evidence of plea negotiations and the parties’ awareness of the gravity of the victim’s injuries, together with the state’s failure to reserve the right to prosecute for any later homicide charge, justify the conclusion that the state agreed to forgo further prosecution of Dye.”
“ ... Because Dye’s 1999 plea was a ‘negotiated guilty plea’ within the meaning of Carpenter, the state had a duty to ‘expressly reserve the right to file additional charges’ if the victim dies of his injuries. ... Accordingly, the state was precluded from bringing the aggravated-vehicular-homicide charge against Dye after the victim died. We affirm the judgment of the court of appeals.”
Justice Cupp’s opinion was joined by Justices Paul E. Pfeifer, Maureen O’Connor, Terrence O’Donnell and Judith Ann Lanzinger.
Justice Evelyn Lundberg Stratton entered a dissent stating that in her view Dye’s original guilty plea was not a “negotiated guilty plea” within the meaning of State v. Carpenter. She wrote: “ ... Dye essentially pleaded guilty to the crimes charged. The state requested a maximum sentence, which was imposed. There was no negotiated reduced plea or plea bargain. The dismissal of the two specifications to the aggravated vehicular assault charge did not result in a reduced sentence. Dye received no more lenient a sentence than he would have if he had been found guilty at trial.”
“... I agree with the court of appeals that any time a defendant enters a guilty plea, he or she will have relinquished the right to a trial at which the defendant could be acquitted, and the state gains the benefit of obtaining a conviction without having to go to trial. But to hold that this detriment to the defendant and benefit to the state—which will be true of every guilty plea—amounts to a negotiated plea agreement under Carpenter is to read that case’s holding too broadly. ... Because Dye’s 1999 plea was not a ‘negotiated guilty plea’ within the meaning of Carpenter, I believe that the state had no duty to expressly reserve the right to file additional charges in the event of the death of the victim. Accordingly, I would hold that the state was not precluded from bringing the aggravated-vehicular-homicide charge against Dye after the victim died.”
Contacts
Teri R. Daniel, 440.350.2683, for the state and Lake County Prosecutor's Office.
Michael B. Bowler, 330.253.3337, for James Dye.
Wednesday, December 08, 2010
Court May Not Add Restitution to Criminal Sentence by Means of a 'Nunc pro Tunc' Journal Entry
When Restitution Was Not Part of Sentence as Pronounced and Journalized
State v. Miller, Slip Opinion No. 2010-Ohio-5705.
Cuyahoga App. No. 91543, 2009-Ohio-3307. Judgment of the court of appeals reversed, and cause remanded to the trial court.
Brown, C.J., and Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-5705.pdf
View oral argument video of this case.
(Nov. 30, 2010) The Supreme Court of Ohio ruled today that when a trial court fails to include restitution in the sentence that is pronounced on a criminal defendant at his sentencing hearing, or in the journal entry recording that sentence, the court may not later add restitution to that person’s sentence by means of a “nunc pro tunc” (now for then) entry amending the court’s journal.
The Court’s 7-0 decision, which reversed a ruling by the 8th District Court of Appeals, was written by Justice Maureen O’Connor.
Andrew Miller of Cleveland was indicted on two counts of felonious assault. Miller was offered a plea bargain based on his entry of a guilty plea to a single count of aggravated assault. During a discussion with Miller to ensure that he understood the consequences of his guilty plea, a visiting judge filling in for the judge to whom Miller’s case had been assigned indicated that his sentence would include community control, court costs, random drug tests and restitution to the victim of the assault. After consulting with his attorney, Miller indicated that he understood the plea bargain, and the court accepted his plea of guilty.
Two weeks later, at his sentencing hearing, the visiting judge sentenced Miller to an 18-month suspended prison term, community control and drug testing, but did not mention restitution. A written entry accurately recording Miller’s sentence as pronounced by the court, with no mention of restitution, was subsequently made in the court’s journal.
Almost two months later, the state filed a motion asking the court “to convene a hearing to determine restitution.” The state’s motion asserted that restitution to the victim in the amount of $20,409.35 was part of the plea agreement and that it had been “inadvertently omitted from the plea and sentencing orders.” Two months later, the trial court judge wrote on the motion, “The court, having been read the transcript of the plea proceedings by [the court reporter] is satisfied that [Miller] entered his guilty plea with full knowledge of and agreement to the restitution [amount] of $20,409.35; the court finds that the order of restitution was inadvertently omitted by the visiting judge at sentencing. The court therefore amends the sentencing entry to also include [restitution] of $20,409.35 . . .”
Miller appealed, asserting that the trial court had “abused its discretion by entering a restitution order after the final sentencing order had been journalized.” In a 2-1 decision, the 8th District Court of appeals affirmed the ruling of the trial court, holding that the trial court had “continued jurisdiction to correct clerical mistakes.” Miller sought and was granted Supreme Court review of the 8th District’s decision.
In today’s unanimous decision, Justice O’Connor wrote: “ … (A) trial court lacks the authority to reconsider its own valid, final judgment in a criminal case with two exceptions: (1) when a void sentence has been imposed, and (2) when the judgment contains a clerical error. State ex rel. Cruzado v. Zaleski … The court of appeals in this case suggested that the latter exception applied and that nothing more than a nunc pro tunc entry was invoked. Not so. A clerical error or mistake refers to ‘a mistake or omission, mechanical in nature and apparent on the record which does not involve a legal decision or judgment.’ … Although courts possess inherent authority to correct clerical errors in judgment entries so that the record speaks the truth, nunc pro tunc entries ‘are limited in proper use to reflecting what the court actually decided, not what the court might or should have decided.’”
“The amended journal entry in this case may reflect what the trial court should have decided at sentencing. It does not reflect what the trial court did decide but recorded improperly. Thus, the use of the nunc pro tunc entry to impose restitution upon Miller was improper because it does not reflect the events that actually occurred at the sentencing hearing.”
“Notably, the determination of restitution entails a substantive legal decision or judgment and is not merely a mechanical part of a judgment. Restitution is a financial sanction, based on a victim’s economic loss, that is imposed by a judge as part of a felony sentence. … It is not an order that is so ‘mechanical in nature’ that its omission can be corrected as if it were a clerical mistake. … . The trial court improperly used a nunc pro tunc entry to impose a sanction on Miller that was not imposed by the visiting judge at sentencing. It was error to do so, and the court of appeals erred in affirming the order. We therefore reverse its decision and remand the cause to the trial court to vacate the nunc pro tunc order and the order of restitution.”
Contacts
T. Allan Regas, 216.443.7800, for the state and Cuyahoga County Prosecutor's Office.
John T. Martin, 216.443.3675, for Andrew Miller.
State v. Miller, Slip Opinion No. 2010-Ohio-5705.
Cuyahoga App. No. 91543, 2009-Ohio-3307. Judgment of the court of appeals reversed, and cause remanded to the trial court.
Brown, C.J., and Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-5705.pdf
View oral argument video of this case.
(Nov. 30, 2010) The Supreme Court of Ohio ruled today that when a trial court fails to include restitution in the sentence that is pronounced on a criminal defendant at his sentencing hearing, or in the journal entry recording that sentence, the court may not later add restitution to that person’s sentence by means of a “nunc pro tunc” (now for then) entry amending the court’s journal.
The Court’s 7-0 decision, which reversed a ruling by the 8th District Court of Appeals, was written by Justice Maureen O’Connor.
Andrew Miller of Cleveland was indicted on two counts of felonious assault. Miller was offered a plea bargain based on his entry of a guilty plea to a single count of aggravated assault. During a discussion with Miller to ensure that he understood the consequences of his guilty plea, a visiting judge filling in for the judge to whom Miller’s case had been assigned indicated that his sentence would include community control, court costs, random drug tests and restitution to the victim of the assault. After consulting with his attorney, Miller indicated that he understood the plea bargain, and the court accepted his plea of guilty.
Two weeks later, at his sentencing hearing, the visiting judge sentenced Miller to an 18-month suspended prison term, community control and drug testing, but did not mention restitution. A written entry accurately recording Miller’s sentence as pronounced by the court, with no mention of restitution, was subsequently made in the court’s journal.
Almost two months later, the state filed a motion asking the court “to convene a hearing to determine restitution.” The state’s motion asserted that restitution to the victim in the amount of $20,409.35 was part of the plea agreement and that it had been “inadvertently omitted from the plea and sentencing orders.” Two months later, the trial court judge wrote on the motion, “The court, having been read the transcript of the plea proceedings by [the court reporter] is satisfied that [Miller] entered his guilty plea with full knowledge of and agreement to the restitution [amount] of $20,409.35; the court finds that the order of restitution was inadvertently omitted by the visiting judge at sentencing. The court therefore amends the sentencing entry to also include [restitution] of $20,409.35 . . .”
Miller appealed, asserting that the trial court had “abused its discretion by entering a restitution order after the final sentencing order had been journalized.” In a 2-1 decision, the 8th District Court of appeals affirmed the ruling of the trial court, holding that the trial court had “continued jurisdiction to correct clerical mistakes.” Miller sought and was granted Supreme Court review of the 8th District’s decision.
In today’s unanimous decision, Justice O’Connor wrote: “ … (A) trial court lacks the authority to reconsider its own valid, final judgment in a criminal case with two exceptions: (1) when a void sentence has been imposed, and (2) when the judgment contains a clerical error. State ex rel. Cruzado v. Zaleski … The court of appeals in this case suggested that the latter exception applied and that nothing more than a nunc pro tunc entry was invoked. Not so. A clerical error or mistake refers to ‘a mistake or omission, mechanical in nature and apparent on the record which does not involve a legal decision or judgment.’ … Although courts possess inherent authority to correct clerical errors in judgment entries so that the record speaks the truth, nunc pro tunc entries ‘are limited in proper use to reflecting what the court actually decided, not what the court might or should have decided.’”
“The amended journal entry in this case may reflect what the trial court should have decided at sentencing. It does not reflect what the trial court did decide but recorded improperly. Thus, the use of the nunc pro tunc entry to impose restitution upon Miller was improper because it does not reflect the events that actually occurred at the sentencing hearing.”
“Notably, the determination of restitution entails a substantive legal decision or judgment and is not merely a mechanical part of a judgment. Restitution is a financial sanction, based on a victim’s economic loss, that is imposed by a judge as part of a felony sentence. … It is not an order that is so ‘mechanical in nature’ that its omission can be corrected as if it were a clerical mistake. … . The trial court improperly used a nunc pro tunc entry to impose a sanction on Miller that was not imposed by the visiting judge at sentencing. It was error to do so, and the court of appeals erred in affirming the order. We therefore reverse its decision and remand the cause to the trial court to vacate the nunc pro tunc order and the order of restitution.”
Contacts
T. Allan Regas, 216.443.7800, for the state and Cuyahoga County Prosecutor's Office.
John T. Martin, 216.443.3675, for Andrew Miller.
Education Department Ruling That Organization Is Not 'Education Oriented' Is Subject to Judicial Appeal
When Department Rejects Group’s Application to Sponsor Community School
Brookwood Presbyterian Church v. Ohio Dept. of Edn., Slip Opinion No. 2010-Ohio-5710.
Franklin App. No. 09AP-303, 2009-Ohio-4645. Judgment of the court of appeals reversed, and cause remanded to the trial court.
Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, and Lanzinger, JJ., concur.
Brown, C.J., and Cupp, J., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-5710.pdf
(Nov. 30, 2010) The Supreme Court of Ohio ruled today that a determination by the Ohio Department of Education (ODE) pursuant to R.C. 3314.015 (B)(3) that an organization is not “education oriented” and therefore is not eligible to sponsor a community school is subject to appeal in accordance with R.C. 119.12.
The Court’s 5-2 majority opinion, authored by Justice Paul E. Pfeifer, reversed a decision of the 10th District Court of Appeals.
In November 2007, Brookwood Presbyterian Church of Columbus submitted an application to ODE seeking approval as a sponsor of community schools under the provisions of R.C. Chapter 3314. In March 2008 ODE notified Brookwood that the department had conducted a preliminary review of its qualifications and had determined that Brookwood was not eligible to sponsor community schools because it did not meet the threshold standards for sponsoring nonprofit entities set forth in R.C. 3314.02. Specifically, ODE informed Brookwood that it did not qualify as an “education-oriented entity” under R.C. 3314.02(C)(1)(f). Brookwood sought reconsideration of its eligibility to sponsor a community school, and on May 9, 2008, ODE again issued its determination that Brookwood was not eligible.
Brookwood filed an appeal in the Franklin County Court of Common Pleas, citing the right to appeal rulings of administrative agencies of state government provided under R.C. 119.12. ODE filed a motion to dismiss the appeal citing R.C. 3314.015(B)(3), which states that the department’s determinations of whether or not a nonprofit group seeking sponsorship qualifies as an “education-oriented entity” are “final.” The trial court granted the motion to dismiss. Brookwood then sought to appeal the trial court’s decision to the 10th District Court of Appeals. The 10th District affirmed the trial court’s judgment that under R.C. 3314.015(B)(3) ODE’s rulings on whether a nonprofit applicant for community school sponsorship is or is not “education-oriented” is a final determination, and therefore non-appealable. Brookwood sought and was granted Supreme Court review of the 10th District’s decision.
Writing for the majority in today’s decision, Justice Pfeifer noted that, pursuant to R.C. 3314.015(B)(3), “(I)t is up to the ODE to determine, pursuant to criteria adopted by rule, whether the tax-exempt entity applying for sponsorship is education-oriented. R.C. 3314.015(B)(3) further provides, ‘Such determination of the department is final.’” He also pointed out, however, that a different subsection of the same statute, R.C. 3314.015(D) “grants a right of appeal to entities disapproved for community-school sponsorship: ‘The decision of the department to disapprove an entity for sponsorship of a community school or to revoke approval for such sponsorship ... may be appealed by the entity in accordance with section 119.12 of the Revised Code.’”
“The crux of this case is the interplay between R.C. 3314.015(B)(3) and 3314.015(D),” wrote Justice Pfeifer. “R.C. 1.51 provides the guiding principle in determining the interaction between statutes: ‘If a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both.’ ... Whether R.C. 3314.015(D) and 3314.015(B)(3) conflict depends upon the meaning of ‘final’ in regard to the board of education’s determination of whether an entity is education-oriented under R.C. 3314.015(B)(3). Does ‘final’ mean that the administrative process is complete and the matter is ripe for appeal to the common pleas court, or does ‘final’ mean that the unsuccessful, would-be sponsoring entity is consigned to an administrative abyss?”
“We can look to our own jurisprudence and the Ohio Constitution to determine the legal significance of the word ‘final.’ In Walburn v. Dunlap (2009) ... this court explained, ‘It is well-established that an order must be final before it can be reviewed by an appellate court.’ ... Section 3(B)(2), Article IV of the Ohio Constitution grants courts of appeals appellate jurisdiction ‘as may be provided by law to review and affirm, modify, or reverse final orders or actions of administrative officers or agencies.’ ... Thus, in our system of law, ‘final’ can mean the opposite of ‘not appealable.’ Had the General Assembly intended that the department’s determination of whether an entity is education-oriented not be subject to administrative appeal, it could have done so by appropriate language, i.e., by specifying that the department’s decision is final and not subject to appeal. ... In fact, the General Assembly has employed this language carefully to specify when certain final actions are not appealable. See R.C. 2712.21 (decision by common pleas court regarding appointment of arbitrator ‘is final and not subject to appeal’), 3318.051(E) (decision of School Facilities Commission to approve or not approve transfer of money under section ‘is final and not subject to appeal’), and 5126.0214 (decision of director of developmental disabilities whether to waive removal requirement ‘is final and not subject to appeal’). The statute at issue here includes no comparable prohibition against appealability.”
“The determination of whether an entity is education-oriented is substantive and important. R.C. 3314.015(B)(3) and 3314.015(D) should be construed so as not to conflict, allowing an entity to appeal the board’s R.C. 3314.02(C)(1)(f)(iii) determination. The board’s power to determine whether an entity is education-oriented is no trifle, and the grant of a right to appeal in R.C. 3314.015(D) is a check on that power. Accordingly, we reverse the judgment of the court of appeals and remand the cause to the trial court.”
Justice Pfeifer’s opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell and Judith Ann Lanzinger. Chief Justice Eric Brown and Justice Robert R. Cupp entered separate dissenting opinions.
In his dissent, Chief Justice Brown pointed to provisions of state law in which the legislature has specified that a determination of an administrative agency is “final,” but then added language setting forth a right to appeal. He wrote: “If the General Assembly so clearly intended for the use of ‘final’ in R.C. 3314.015(B)(3) to mean final and appealable without actually using those words, why is the Revised Code replete with instances in which the General Assembly explicitly says both when it intends a decision to be reviewable on appeal? ... Based on the language of R.C. 3314.015 in its entirety and the other statutory provisions regarding community schools, I believe that the General
Assembly intended for ODE’s determination regarding whether an entity is education-oriented not to be subject to review under R.C. 119.12.”
While indicating general agreement with Chief Justice Brown’s opinion, Justice Cupp wrote separately to state his view that reading R.C. 3314.015(B)(3) to deny unsuccessful community school sponsors a statutory right of appeal does not leave them without any legal recourse. He wrote: “An action in mandamus is available when a statute makes an agency’s decision, such as the one here, ‘final’ in that it may not be appealed through the usual appeals process. ... In fact, appellant has filed an action in mandamus with this court to challenge ODE’s decision. The mandamus action has been stayed pending the resolution of this case. ... Consequently, while I would hold that appellant does not have a right of appeal due to the specific requirement of R.C. 3314.015(B)(3), I would simultaneously lift this court’s stay of the presentation of evidence and the briefing of appellant’s mandamus action, and proceed to a resolution of case No. 2009-2055. Because the majority decides otherwise, I must respectfully dissent.”
Contacts
James S. Callender Jr., 216.363.1400, for Brookwood Presbyterian Church.
Benjamin C. Mizer, 614.466.8980, for the Ohio Department of Education.
Brookwood Presbyterian Church v. Ohio Dept. of Edn., Slip Opinion No. 2010-Ohio-5710.
Franklin App. No. 09AP-303, 2009-Ohio-4645. Judgment of the court of appeals reversed, and cause remanded to the trial court.
Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, and Lanzinger, JJ., concur.
Brown, C.J., and Cupp, J., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-5710.pdf
(Nov. 30, 2010) The Supreme Court of Ohio ruled today that a determination by the Ohio Department of Education (ODE) pursuant to R.C. 3314.015 (B)(3) that an organization is not “education oriented” and therefore is not eligible to sponsor a community school is subject to appeal in accordance with R.C. 119.12.
The Court’s 5-2 majority opinion, authored by Justice Paul E. Pfeifer, reversed a decision of the 10th District Court of Appeals.
In November 2007, Brookwood Presbyterian Church of Columbus submitted an application to ODE seeking approval as a sponsor of community schools under the provisions of R.C. Chapter 3314. In March 2008 ODE notified Brookwood that the department had conducted a preliminary review of its qualifications and had determined that Brookwood was not eligible to sponsor community schools because it did not meet the threshold standards for sponsoring nonprofit entities set forth in R.C. 3314.02. Specifically, ODE informed Brookwood that it did not qualify as an “education-oriented entity” under R.C. 3314.02(C)(1)(f). Brookwood sought reconsideration of its eligibility to sponsor a community school, and on May 9, 2008, ODE again issued its determination that Brookwood was not eligible.
Brookwood filed an appeal in the Franklin County Court of Common Pleas, citing the right to appeal rulings of administrative agencies of state government provided under R.C. 119.12. ODE filed a motion to dismiss the appeal citing R.C. 3314.015(B)(3), which states that the department’s determinations of whether or not a nonprofit group seeking sponsorship qualifies as an “education-oriented entity” are “final.” The trial court granted the motion to dismiss. Brookwood then sought to appeal the trial court’s decision to the 10th District Court of Appeals. The 10th District affirmed the trial court’s judgment that under R.C. 3314.015(B)(3) ODE’s rulings on whether a nonprofit applicant for community school sponsorship is or is not “education-oriented” is a final determination, and therefore non-appealable. Brookwood sought and was granted Supreme Court review of the 10th District’s decision.
Writing for the majority in today’s decision, Justice Pfeifer noted that, pursuant to R.C. 3314.015(B)(3), “(I)t is up to the ODE to determine, pursuant to criteria adopted by rule, whether the tax-exempt entity applying for sponsorship is education-oriented. R.C. 3314.015(B)(3) further provides, ‘Such determination of the department is final.’” He also pointed out, however, that a different subsection of the same statute, R.C. 3314.015(D) “grants a right of appeal to entities disapproved for community-school sponsorship: ‘The decision of the department to disapprove an entity for sponsorship of a community school or to revoke approval for such sponsorship ... may be appealed by the entity in accordance with section 119.12 of the Revised Code.’”
“The crux of this case is the interplay between R.C. 3314.015(B)(3) and 3314.015(D),” wrote Justice Pfeifer. “R.C. 1.51 provides the guiding principle in determining the interaction between statutes: ‘If a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both.’ ... Whether R.C. 3314.015(D) and 3314.015(B)(3) conflict depends upon the meaning of ‘final’ in regard to the board of education’s determination of whether an entity is education-oriented under R.C. 3314.015(B)(3). Does ‘final’ mean that the administrative process is complete and the matter is ripe for appeal to the common pleas court, or does ‘final’ mean that the unsuccessful, would-be sponsoring entity is consigned to an administrative abyss?”
“We can look to our own jurisprudence and the Ohio Constitution to determine the legal significance of the word ‘final.’ In Walburn v. Dunlap (2009) ... this court explained, ‘It is well-established that an order must be final before it can be reviewed by an appellate court.’ ... Section 3(B)(2), Article IV of the Ohio Constitution grants courts of appeals appellate jurisdiction ‘as may be provided by law to review and affirm, modify, or reverse final orders or actions of administrative officers or agencies.’ ... Thus, in our system of law, ‘final’ can mean the opposite of ‘not appealable.’ Had the General Assembly intended that the department’s determination of whether an entity is education-oriented not be subject to administrative appeal, it could have done so by appropriate language, i.e., by specifying that the department’s decision is final and not subject to appeal. ... In fact, the General Assembly has employed this language carefully to specify when certain final actions are not appealable. See R.C. 2712.21 (decision by common pleas court regarding appointment of arbitrator ‘is final and not subject to appeal’), 3318.051(E) (decision of School Facilities Commission to approve or not approve transfer of money under section ‘is final and not subject to appeal’), and 5126.0214 (decision of director of developmental disabilities whether to waive removal requirement ‘is final and not subject to appeal’). The statute at issue here includes no comparable prohibition against appealability.”
“The determination of whether an entity is education-oriented is substantive and important. R.C. 3314.015(B)(3) and 3314.015(D) should be construed so as not to conflict, allowing an entity to appeal the board’s R.C. 3314.02(C)(1)(f)(iii) determination. The board’s power to determine whether an entity is education-oriented is no trifle, and the grant of a right to appeal in R.C. 3314.015(D) is a check on that power. Accordingly, we reverse the judgment of the court of appeals and remand the cause to the trial court.”
Justice Pfeifer’s opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell and Judith Ann Lanzinger. Chief Justice Eric Brown and Justice Robert R. Cupp entered separate dissenting opinions.
In his dissent, Chief Justice Brown pointed to provisions of state law in which the legislature has specified that a determination of an administrative agency is “final,” but then added language setting forth a right to appeal. He wrote: “If the General Assembly so clearly intended for the use of ‘final’ in R.C. 3314.015(B)(3) to mean final and appealable without actually using those words, why is the Revised Code replete with instances in which the General Assembly explicitly says both when it intends a decision to be reviewable on appeal? ... Based on the language of R.C. 3314.015 in its entirety and the other statutory provisions regarding community schools, I believe that the General
Assembly intended for ODE’s determination regarding whether an entity is education-oriented not to be subject to review under R.C. 119.12.”
While indicating general agreement with Chief Justice Brown’s opinion, Justice Cupp wrote separately to state his view that reading R.C. 3314.015(B)(3) to deny unsuccessful community school sponsors a statutory right of appeal does not leave them without any legal recourse. He wrote: “An action in mandamus is available when a statute makes an agency’s decision, such as the one here, ‘final’ in that it may not be appealed through the usual appeals process. ... In fact, appellant has filed an action in mandamus with this court to challenge ODE’s decision. The mandamus action has been stayed pending the resolution of this case. ... Consequently, while I would hold that appellant does not have a right of appeal due to the specific requirement of R.C. 3314.015(B)(3), I would simultaneously lift this court’s stay of the presentation of evidence and the briefing of appellant’s mandamus action, and proceed to a resolution of case No. 2009-2055. Because the majority decides otherwise, I must respectfully dissent.”
Contacts
James S. Callender Jr., 216.363.1400, for Brookwood Presbyterian Church.
Benjamin C. Mizer, 614.466.8980, for the Ohio Department of Education.
Reversal of Conviction Based on Improperly Admitted Spousal Testimony Requires 'Plain Error' Analysis
Where Trial Court Failed to Make a Proper Competency Determination
State v. Davis, Slip Opinion No. 2010-Ohio-5706.
Cuyahoga App. No. 91324, 2009-Ohio-5217. Judgment of the court of appeals reversed, and cause remanded to the court of appeals.
Brown, C.J., and Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-5706.pdf
(Nov. 30, 2010) The Supreme Court of Ohio ruled today that a court of appeals may not reverse a criminal conviction based on the improper admission of spousal testimony in violation of Evidence Rule 601(B) unless the appellate court conducts a plain-error analysis and determines that the outcome of the trial would have been different if the spousal testimony had not been admitted.
The Court’s 7-0 decision, which reversed a ruling by the 8th District Court of Appeals, was authored by Justice Terrence O’Donnell.
Ohio Evidence Rule 601(B) provides that the spouse of a criminal defendant is not competent (not legally eligible) to testify against his or her spouse at trial unless the defendant is charged with a crime against the spouse or their children, or unless the spouse freely elects to testify.
In this case, William Davis of Cleveland was charged with multiple counts of rape and other sexual offenses committed over an extended period of time against two young girls who were his nieces. The victims testified in court and gave detailed accounts of multiple incidents in which Davis engaged in sex acts with them.
The defendant’s wife, Alberta Davis was called by the state to testify as a witness. After Mrs. Davis was sworn and identified herself as the defendant’s wife, the trial judge did not engage in a required discussion with her to determine if she was aware of her right not to testify and to confirm that she had freely chosen to testify. Defense counsel did not object to the calling of Mrs. Davis as a witness by the state and did not object to the court’s failure to review her competency before permitting her to testify. During her testimony, Mrs. Davis first denied and then admitted that she had discussed with her husband a plan to record a conversation with one of the victims, and stated that she had discussed with her husband moving away from Cleveland to somewhere he could avoid being around children.
Davis was convicted on 19 counts of rape and four counts of gross sexual imposition, and was sentenced to life in prison. Davis appealed his convictions, but did not raise as an assignment of error the trial court’s failure to make a competency determination before allowing his wife to testify. On review, the 8th District Court of Appeals sua sponte (on its own initiative) took note of the absence of a competency determination, and ruled that that mistake constituted “reversible plain error.” Without analyzing the impact of Mrs. Davis’ testimony on the outcome of the case, the court of appeals held that it was “compelled” by the Supreme Court of Ohio’s decisions in State v. Adamson (1995) and State v. Brown (2007) to reverse Davis’ convictions and remand the case for a new trial based on the absence of a competency determination. The state sought and was granted Supreme Court review of the 8th District’s ruling.
In today’s unanimous Supreme Court decision, Justice O’Donnell wrote: “we are concerned with the proper method for reviewing the admission of spousal testimony in violation of Evid.R. 601(B) when the accused fails to object: whether it is structural error requiring reversal without a showing of prejudice to the accused, or whether it is plain error subject to a determination that but for the error, the outcome of the trial would have been different.”
“... Admittedly, our statement in Brown that a violation of Evid.R. 601(B) ‘constitutes reversible plain error’ may have been misunderstood to mean that the admission of incompetent spousal testimony is structural error requiring automatic reversal without consideration of whether the testimony prejudiced the accused. ... A trial court’s error in failing to comply with Evid.R. 601(B) neither necessarily permeates the entire trial nor prevents the trial from reliably serving its function as a vehicle for determining guilt or innocence. To the contrary, Evid.R. 601(B) excludes evidence that is relevant to the ascertainment of truth. Notably, the testimony of the spouse of the accused is not deemed incompetent because of its inherent unreliability, but rather to uphold ‘the policy of protecting the marital relationship from “dissension” and the “natural repugnance” for convicting a defendant upon the testimony of his or her “intimate life partner.’”
“We therefore clarify our statement in Brown that a violation of Evid.R. 601(B) ‘constitutes reversible plain error.’ ... Here, Alberta Davis appeared in response to a subpoena issued by the prosecutor and testified in the state’s case-in-chief. ... Because the record does not show that the trial court informed her that she could choose not to testify against her husband or that it found that she had voluntarily elected to testify, the court committed a plain or obvious error in admitting her testimony. However, the court of appeals did not complete a plain-error analysis in this case, because it did not determine whether, but for the trial court error in admitting spousal testimony, the outcome of the trial would have been different, and it did not decide that reversal is necessary to prevent a manifest miscarriage of justice.”
“Our decisions in Brown and Adamson do not require a reversal for plain error in all instances in which a trial court, without objection, admits spousal testimony in violation of Evid.R. 601(B). Rather, before noticing plain error and reversing a conviction, appellate courts should conduct a plain-error analysis and determine that but for the error in admitting spousal testimony, the outcome of the trial would have been different and that reversal is necessary to prevent a manifest miscarriage of justice. Because the court of appeals did not conduct a plain-error analysis before reversing Davis’ convictions, its judgment is reversed and this matter is remanded for further proceedings consistent with this opinion.”
Contacts
T. Allan Regas, 216.443.7800, for the state and Cuyahoga County prosecutor's office.
Katherine Szudy, 614.466.5394, for William Davis.
State v. Davis, Slip Opinion No. 2010-Ohio-5706.
Cuyahoga App. No. 91324, 2009-Ohio-5217. Judgment of the court of appeals reversed, and cause remanded to the court of appeals.
Brown, C.J., and Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-5706.pdf
(Nov. 30, 2010) The Supreme Court of Ohio ruled today that a court of appeals may not reverse a criminal conviction based on the improper admission of spousal testimony in violation of Evidence Rule 601(B) unless the appellate court conducts a plain-error analysis and determines that the outcome of the trial would have been different if the spousal testimony had not been admitted.
The Court’s 7-0 decision, which reversed a ruling by the 8th District Court of Appeals, was authored by Justice Terrence O’Donnell.
Ohio Evidence Rule 601(B) provides that the spouse of a criminal defendant is not competent (not legally eligible) to testify against his or her spouse at trial unless the defendant is charged with a crime against the spouse or their children, or unless the spouse freely elects to testify.
In this case, William Davis of Cleveland was charged with multiple counts of rape and other sexual offenses committed over an extended period of time against two young girls who were his nieces. The victims testified in court and gave detailed accounts of multiple incidents in which Davis engaged in sex acts with them.
The defendant’s wife, Alberta Davis was called by the state to testify as a witness. After Mrs. Davis was sworn and identified herself as the defendant’s wife, the trial judge did not engage in a required discussion with her to determine if she was aware of her right not to testify and to confirm that she had freely chosen to testify. Defense counsel did not object to the calling of Mrs. Davis as a witness by the state and did not object to the court’s failure to review her competency before permitting her to testify. During her testimony, Mrs. Davis first denied and then admitted that she had discussed with her husband a plan to record a conversation with one of the victims, and stated that she had discussed with her husband moving away from Cleveland to somewhere he could avoid being around children.
Davis was convicted on 19 counts of rape and four counts of gross sexual imposition, and was sentenced to life in prison. Davis appealed his convictions, but did not raise as an assignment of error the trial court’s failure to make a competency determination before allowing his wife to testify. On review, the 8th District Court of Appeals sua sponte (on its own initiative) took note of the absence of a competency determination, and ruled that that mistake constituted “reversible plain error.” Without analyzing the impact of Mrs. Davis’ testimony on the outcome of the case, the court of appeals held that it was “compelled” by the Supreme Court of Ohio’s decisions in State v. Adamson (1995) and State v. Brown (2007) to reverse Davis’ convictions and remand the case for a new trial based on the absence of a competency determination. The state sought and was granted Supreme Court review of the 8th District’s ruling.
In today’s unanimous Supreme Court decision, Justice O’Donnell wrote: “we are concerned with the proper method for reviewing the admission of spousal testimony in violation of Evid.R. 601(B) when the accused fails to object: whether it is structural error requiring reversal without a showing of prejudice to the accused, or whether it is plain error subject to a determination that but for the error, the outcome of the trial would have been different.”
“... Admittedly, our statement in Brown that a violation of Evid.R. 601(B) ‘constitutes reversible plain error’ may have been misunderstood to mean that the admission of incompetent spousal testimony is structural error requiring automatic reversal without consideration of whether the testimony prejudiced the accused. ... A trial court’s error in failing to comply with Evid.R. 601(B) neither necessarily permeates the entire trial nor prevents the trial from reliably serving its function as a vehicle for determining guilt or innocence. To the contrary, Evid.R. 601(B) excludes evidence that is relevant to the ascertainment of truth. Notably, the testimony of the spouse of the accused is not deemed incompetent because of its inherent unreliability, but rather to uphold ‘the policy of protecting the marital relationship from “dissension” and the “natural repugnance” for convicting a defendant upon the testimony of his or her “intimate life partner.’”
“We therefore clarify our statement in Brown that a violation of Evid.R. 601(B) ‘constitutes reversible plain error.’ ... Here, Alberta Davis appeared in response to a subpoena issued by the prosecutor and testified in the state’s case-in-chief. ... Because the record does not show that the trial court informed her that she could choose not to testify against her husband or that it found that she had voluntarily elected to testify, the court committed a plain or obvious error in admitting her testimony. However, the court of appeals did not complete a plain-error analysis in this case, because it did not determine whether, but for the trial court error in admitting spousal testimony, the outcome of the trial would have been different, and it did not decide that reversal is necessary to prevent a manifest miscarriage of justice.”
“Our decisions in Brown and Adamson do not require a reversal for plain error in all instances in which a trial court, without objection, admits spousal testimony in violation of Evid.R. 601(B). Rather, before noticing plain error and reversing a conviction, appellate courts should conduct a plain-error analysis and determine that but for the error in admitting spousal testimony, the outcome of the trial would have been different and that reversal is necessary to prevent a manifest miscarriage of justice. Because the court of appeals did not conduct a plain-error analysis before reversing Davis’ convictions, its judgment is reversed and this matter is remanded for further proceedings consistent with this opinion.”
Contacts
T. Allan Regas, 216.443.7800, for the state and Cuyahoga County prosecutor's office.
Katherine Szudy, 614.466.5394, for William Davis.
In Farm Land Detachment Action, Court Must Consider Tax Paid Under Current Agricultural Use Valuation
Campbell v. Carlisle, Slip Opinion No. 2010-Ohio-5707.
Warren App. No. CA2009-05-053, 2009-Ohio-6751. Judgment of the court of appeals reversed.
Brown, C.J., and Pfeifer, Lundberg Stratton, O'Connor, Lanzinger, and Cupp, JJ., concur.
O'Donnell, J., concurs in judgment only.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-5707.pdf
View oral argument video of this case.
(Nov. 30, 2010) When the owner of farm land who has obtained a current agricultural use valuation (CAUV) of his property petitions to detach that land from a municipality under R.C. 709.42, the Supreme Court of Ohio ruled today that a court considering the detachment petition must determine the amount of property taxes the owner “is taxed and will continue to be taxed” based on the CAUV of the land rather than the tax the owner would pay based on the non-agricultural market value of the property.
The Court’s 7-0 decision, which reversed a ruling by the 12th District court of Appeals, was authored by Chief Justice Eric Brown.
Under R.C. 709.42, a court may grant a property owner’s petition to detach farm land from a city if the owner shows that the amount of property tax the owner is paying to the municipality “is in substantial excess of the benefits conferred on the landowner” by the municipality.
This case involves approximately 40 acres of land owned by Helen and Wallace Campbell and located within the city of Carlisle in Warren County. The land is used exclusively for farming. The Campbells file an application with the county auditor every year and receive a reduced CAUV for the property. Based on that valuation, their annual property tax bill is approximately $172.
In 2007, the Campbells filed a petition in the Warren County Court of Common Pleas seeking to detach their property from the city for the stated purpose of protecting its future use as farmland The city opposed the proposed detachment. Following a trial at which the Campbells were required to establish several factors set forth in R.C. 709.42, the common pleas court denied the petition for detachment. In its opinion, the trial court found that the Campbells had not met the statutory requirement of showing that the current and future taxes they paid to Carlisle “substantially exceeded” the benefits the property received from the city. The court based its ruling on a determination that the only tax the Campbells paid to the city each year for the property at issue was the $172 in tax they paid based on its CAUV valuation.
The Campbells appealed. On review, the 12th District Court of Appeals reversed the trial court’s holding and remanded the case for further proceedings. The court of appeals held that the trial court erred by considering the reduced tax paid by the Campbells based on a CAUV valuation of their property. The court observed that if the 40 acres were taxed at its true market value for non-agricultural purposes, the Campbells would owe annual property taxes of approximately $12,538, and directed the trial court to determine if that amount was “in substantial excess” of the municipal benefits received by the Campbells from Carlisle. Carlisle sought and was granted Supreme Court review of the 12th District’s decision.
In today’s decision, Chief Justice Brown wrote: “The sole issue presented to us … is the correct interpretation of the third requirement of R.C. 709.42, i.e., whether by reason of the Campbells’ property ‘being or remaining within the municipal corporation the owner thereof is taxed and will continue to be taxed thereon for municipal purposes in substantial excess of the benefits conferred by reason of such lands being within the municipal corporation.’”
“We find the third requirement established by R.C. 709.42 to be unambiguous. … R.C. 709.42 requires a trial court presiding over detachment proceedings to determine the amount ‘the owner … is taxed and will continue to be taxed … for municipal purposes.’ (Emphasis added.) The record before the court suggested that the Campbells are taxed $172 annually on the 40 acres of land they sought to detach, having benefited from the CAUV for which they applied pursuant to R.C. 5713.31. The plain text of the detachment statute compels the conclusion that it is irrelevant that the Campbells would have been assessed significantly higher taxes had they not applied for, and obtained, the CAUV for their property. The annual amount of property tax the Campbells ‘are taxed’ is $172.”
“In addition, the Campbells will ‘continue to be taxed,’ as that phrase is used in R.C. 709.42, based on the CAUV of their land, assuming that they continue to file their renewal CAUV application each year and continue to use the property exclusively for agricultural purposes. … (N)othing in the record suggests that the Campbells intend to forgo applying for a CAUV or change the use of the property. To the contrary, Helen Campbell testified that she intends to preserve the land as farmland and retain it as a farm in the future. We conclude that the Campbells not only ‘are taxed’ based on the CAUV of their property but will also ‘continue to be taxed’ based on the CAUV of their property. … Based on the unambiguous text of the relevant statutes and the record before it, the trial court did not err in denying the Campbells’ detachment petition.”
Chief Justice Brown’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Maureen O’Connor, Judith Ann Lanzinger and Robert R. Cupp. Justice Terrence O’Donnell concurred in judgment only.
Contacts
David A. Chicarelli, 937.743.1500, for city of Carlisle.
Rupert E. Ruppert, 937.746.2832, for Helen and Wallace Campbell.
Warren App. No. CA2009-05-053, 2009-Ohio-6751. Judgment of the court of appeals reversed.
Brown, C.J., and Pfeifer, Lundberg Stratton, O'Connor, Lanzinger, and Cupp, JJ., concur.
O'Donnell, J., concurs in judgment only.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-5707.pdf
View oral argument video of this case.
(Nov. 30, 2010) When the owner of farm land who has obtained a current agricultural use valuation (CAUV) of his property petitions to detach that land from a municipality under R.C. 709.42, the Supreme Court of Ohio ruled today that a court considering the detachment petition must determine the amount of property taxes the owner “is taxed and will continue to be taxed” based on the CAUV of the land rather than the tax the owner would pay based on the non-agricultural market value of the property.
The Court’s 7-0 decision, which reversed a ruling by the 12th District court of Appeals, was authored by Chief Justice Eric Brown.
Under R.C. 709.42, a court may grant a property owner’s petition to detach farm land from a city if the owner shows that the amount of property tax the owner is paying to the municipality “is in substantial excess of the benefits conferred on the landowner” by the municipality.
This case involves approximately 40 acres of land owned by Helen and Wallace Campbell and located within the city of Carlisle in Warren County. The land is used exclusively for farming. The Campbells file an application with the county auditor every year and receive a reduced CAUV for the property. Based on that valuation, their annual property tax bill is approximately $172.
In 2007, the Campbells filed a petition in the Warren County Court of Common Pleas seeking to detach their property from the city for the stated purpose of protecting its future use as farmland The city opposed the proposed detachment. Following a trial at which the Campbells were required to establish several factors set forth in R.C. 709.42, the common pleas court denied the petition for detachment. In its opinion, the trial court found that the Campbells had not met the statutory requirement of showing that the current and future taxes they paid to Carlisle “substantially exceeded” the benefits the property received from the city. The court based its ruling on a determination that the only tax the Campbells paid to the city each year for the property at issue was the $172 in tax they paid based on its CAUV valuation.
The Campbells appealed. On review, the 12th District Court of Appeals reversed the trial court’s holding and remanded the case for further proceedings. The court of appeals held that the trial court erred by considering the reduced tax paid by the Campbells based on a CAUV valuation of their property. The court observed that if the 40 acres were taxed at its true market value for non-agricultural purposes, the Campbells would owe annual property taxes of approximately $12,538, and directed the trial court to determine if that amount was “in substantial excess” of the municipal benefits received by the Campbells from Carlisle. Carlisle sought and was granted Supreme Court review of the 12th District’s decision.
In today’s decision, Chief Justice Brown wrote: “The sole issue presented to us … is the correct interpretation of the third requirement of R.C. 709.42, i.e., whether by reason of the Campbells’ property ‘being or remaining within the municipal corporation the owner thereof is taxed and will continue to be taxed thereon for municipal purposes in substantial excess of the benefits conferred by reason of such lands being within the municipal corporation.’”
“We find the third requirement established by R.C. 709.42 to be unambiguous. … R.C. 709.42 requires a trial court presiding over detachment proceedings to determine the amount ‘the owner … is taxed and will continue to be taxed … for municipal purposes.’ (Emphasis added.) The record before the court suggested that the Campbells are taxed $172 annually on the 40 acres of land they sought to detach, having benefited from the CAUV for which they applied pursuant to R.C. 5713.31. The plain text of the detachment statute compels the conclusion that it is irrelevant that the Campbells would have been assessed significantly higher taxes had they not applied for, and obtained, the CAUV for their property. The annual amount of property tax the Campbells ‘are taxed’ is $172.”
“In addition, the Campbells will ‘continue to be taxed,’ as that phrase is used in R.C. 709.42, based on the CAUV of their land, assuming that they continue to file their renewal CAUV application each year and continue to use the property exclusively for agricultural purposes. … (N)othing in the record suggests that the Campbells intend to forgo applying for a CAUV or change the use of the property. To the contrary, Helen Campbell testified that she intends to preserve the land as farmland and retain it as a farm in the future. We conclude that the Campbells not only ‘are taxed’ based on the CAUV of their property but will also ‘continue to be taxed’ based on the CAUV of their property. … Based on the unambiguous text of the relevant statutes and the record before it, the trial court did not err in denying the Campbells’ detachment petition.”
Chief Justice Brown’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Maureen O’Connor, Judith Ann Lanzinger and Robert R. Cupp. Justice Terrence O’Donnell concurred in judgment only.
Contacts
David A. Chicarelli, 937.743.1500, for city of Carlisle.
Rupert E. Ruppert, 937.746.2832, for Helen and Wallace Campbell.
Judge Kimbler's Criminal Docket for December 6, 2010
Three defendants appeared in Judge Kimbler’s courtroom on Monday, December 6, 2010, and entered changes of plea to the charges pending against them. They were:
Jeffery A. Starecheski, 36, of Carlisle Drive in Brunswick, Ohio. Mr. Starecheski entered a plea of no contest to one count of Trafficking in Drugs, (Heroin), a fifth degree felony. Judge Kimbler found him guilty and ordered a presentence investigation. He will be sentenced on January 14, 2010. His bond was continued.
Jacob White, 26, of 14th Street in Akron, Ohio. Mr. White entered a plea of no contest to two counts of Theft, both of which were fifth degree felonies. Judge Kimbler found him guilty and sentenced him to 8 months in prison, with credit for 78 days served.
Theresa L. Green, 42, of Pine Lane in Doylestown. Ms. Green entered a plea of no contest to four counts of Deception to Obtain a Dangerous Drug, all of which were fifth degree felonies. Judge Kimbler accepted the pleas and found her guilty of all four charges. Judge Kimbler ordered a presentence investigation. She will be sentenced on January 20, 2010. Her bond was continued.
Jeffery A. Starecheski, 36, of Carlisle Drive in Brunswick, Ohio. Mr. Starecheski entered a plea of no contest to one count of Trafficking in Drugs, (Heroin), a fifth degree felony. Judge Kimbler found him guilty and ordered a presentence investigation. He will be sentenced on January 14, 2010. His bond was continued.
Jacob White, 26, of 14th Street in Akron, Ohio. Mr. White entered a plea of no contest to two counts of Theft, both of which were fifth degree felonies. Judge Kimbler found him guilty and sentenced him to 8 months in prison, with credit for 78 days served.
Theresa L. Green, 42, of Pine Lane in Doylestown. Ms. Green entered a plea of no contest to four counts of Deception to Obtain a Dangerous Drug, all of which were fifth degree felonies. Judge Kimbler accepted the pleas and found her guilty of all four charges. Judge Kimbler ordered a presentence investigation. She will be sentenced on January 20, 2010. Her bond was continued.
Judge Collier's Criminal Docket for December 6, 2010
Medina County Prosecutor Dean Holman reports that the following defendants appeared in Judge Christopher Collier's courtroom on Monday, December 6, 2010 for criminal cases:
Nichole Estremera, 19, of Anderson Drive in Brunswick, was sentenced to two years of community control sanctions, with 90 days in jail, on one count of Trafficking in Marijuana within the Vicinity of a Juvenile, a fourth-degree felony and one count of Trafficking in LSD, a fifth-degree felony.
Glenn Schutte, 20, of Greenwich Road in Lodi, was sentenced to two years of community control sanctions on two counts of Trafficking in Marijuana, both of which are fifth-degree felonies. His driver’s license was suspended for six months.
Joseph Skiba II, 28, of Etta Boulevard in Brunswick, was sentenced to one year in prison on one count of Trafficking in Drugs within the Vicinity of a Juvenile, a fourth-degree felony. His driver’s license was suspended for six months.
Andrea Williams, 25, of Beverly Hills Drive in Brunswick, was sentenced to one year in prison on five counts of Trafficking in Cocaine, all of which are fifth-degree felonies.
Vincent Butler, 32, of Invermere Avenue in Garfield Heights, pleaded no contest to one count of Theft of a Motor Vehicle, a fourth-degree felony and one count of Forgery, a third-degree felony. Sentencing is scheduled for January 18.
Andrew Fazenbaker, 25, of South Jasmine Avenue in Akron, pleaded guilty to one count of Possession of Drugs, a fifth-degree felony. Sentencing is scheduled for January 18.
Cory Ferguson, 19, of Garfield Avenue in Brunswick, pleaded not guilty to one count of Assault on a Corrections Officer, a fifth-degree felony. A jury trial is scheduled for February 2.
William Johnson, 38, of Third Street in Wadsworth, pleaded not guilty to one count of Breaking and Entering, a fifth-degree felony. A jury trial is scheduled for March 14.
Stefan Prince, 23, of Boston Road in Brunswick Hills, pleaded not guilty to one count of Receiving Stolen Property, Motor Vehicle, a fourth-degree felony. A jury trial is scheduled for January 24.
Ira Zimmerman, 62, of East Bergey Street in Wadsworth, pleaded not guilty to one count of Having Weapons While Under Disability, a third-degree felony. A jury trial is scheduled for March 14.
Nichole Estremera, 19, of Anderson Drive in Brunswick, was sentenced to two years of community control sanctions, with 90 days in jail, on one count of Trafficking in Marijuana within the Vicinity of a Juvenile, a fourth-degree felony and one count of Trafficking in LSD, a fifth-degree felony.
Glenn Schutte, 20, of Greenwich Road in Lodi, was sentenced to two years of community control sanctions on two counts of Trafficking in Marijuana, both of which are fifth-degree felonies. His driver’s license was suspended for six months.
Joseph Skiba II, 28, of Etta Boulevard in Brunswick, was sentenced to one year in prison on one count of Trafficking in Drugs within the Vicinity of a Juvenile, a fourth-degree felony. His driver’s license was suspended for six months.
Andrea Williams, 25, of Beverly Hills Drive in Brunswick, was sentenced to one year in prison on five counts of Trafficking in Cocaine, all of which are fifth-degree felonies.
Vincent Butler, 32, of Invermere Avenue in Garfield Heights, pleaded no contest to one count of Theft of a Motor Vehicle, a fourth-degree felony and one count of Forgery, a third-degree felony. Sentencing is scheduled for January 18.
Andrew Fazenbaker, 25, of South Jasmine Avenue in Akron, pleaded guilty to one count of Possession of Drugs, a fifth-degree felony. Sentencing is scheduled for January 18.
Cory Ferguson, 19, of Garfield Avenue in Brunswick, pleaded not guilty to one count of Assault on a Corrections Officer, a fifth-degree felony. A jury trial is scheduled for February 2.
William Johnson, 38, of Third Street in Wadsworth, pleaded not guilty to one count of Breaking and Entering, a fifth-degree felony. A jury trial is scheduled for March 14.
Stefan Prince, 23, of Boston Road in Brunswick Hills, pleaded not guilty to one count of Receiving Stolen Property, Motor Vehicle, a fourth-degree felony. A jury trial is scheduled for January 24.
Ira Zimmerman, 62, of East Bergey Street in Wadsworth, pleaded not guilty to one count of Having Weapons While Under Disability, a third-degree felony. A jury trial is scheduled for March 14.
Monday, December 06, 2010
Law Talk Show on Foreclosures Wins Award
The Law Talk show on foreclosures with Judge James L. Kimbler and hosted by Medina Attorney John Celebrezze won the Clapper award for Best Talk Show at the awards ceremony sponsored by WCTV. WCTV is the community access network in Wadsworth, Ohio and broadcasts television shows produced by Wadsworth residents or that concern issues that affect Wadsworth and Medina County. The Clapper awards are given out by WCTV for various categories of shows.
Law Talk is a production of CZ-CLEP, an Ohio non-profit corporation. Its mission is to educate the public and legal professionals about Ohio's legal system including courts, the legislature and attorneys. It is hosted by John Celebrezze, a career educator who following his retirement from education went to law school and became an attorney. John practices with the law firm of Marco and Marco in Medina, Ohio. Law Talk is shown on community access television stations in Brunswick, Medina, and Wadsworth.
Besides producing Law Talk, CZ-CLEP puts out a weekly newsletter from Judge Kimbler; presents seminars for lawyers; produces another television show called Ask the Judge; and conducts adult education classes on the law. CZ-CLEP is a 501 (c) (3) charitable organization. You can learn more about CZ-CLEP by clicking here.
Law Talk is a production of CZ-CLEP, an Ohio non-profit corporation. Its mission is to educate the public and legal professionals about Ohio's legal system including courts, the legislature and attorneys. It is hosted by John Celebrezze, a career educator who following his retirement from education went to law school and became an attorney. John practices with the law firm of Marco and Marco in Medina, Ohio. Law Talk is shown on community access television stations in Brunswick, Medina, and Wadsworth.
Besides producing Law Talk, CZ-CLEP puts out a weekly newsletter from Judge Kimbler; presents seminars for lawyers; produces another television show called Ask the Judge; and conducts adult education classes on the law. CZ-CLEP is a 501 (c) (3) charitable organization. You can learn more about CZ-CLEP by clicking here.
Judge Kimbler's Criminal Docket for December 3, 2010
Medina County Prosecutor Dean Holman reports that the following defendants appeared in Judge James Kimbler's courtroom on Friday, December 3, 2010 for criminal cases:
Andrea Anderson, 32, of Lancelot Street in Streetsboro, was sentenced to two years of community control sanctions on one count of Permitting Drug Abuse, a fifth-degree felony. Her driver’s license was suspended for six months.
Nicholas Blossom, 22, of Lawn Street in Valley City, was sentenced to three years of community control sanctions on one count of Illegal Manufacture of Drugs, a fifth-degree felony.
Richard Boreman, 47, of Bank Street in Lodi, was sentenced to six months in prison on two counts of Trafficking in Drugs, both of which are fourth-degree felonies. His driver’s license was suspended for six months.
Randall Finkel, 25, of state Route 58 in Wellington, was sentenced to three years of community control sanctions on one count of Theft, a fifth-degree felony. He also was ordered to pay $900 in restitution to the victim.
Thomas Higgins, 26, of Winterberry Lane in Medina, was sentenced to three years of community control sanctions on three counts of Illegal Processing of Drug Documents, all of which are fifth-degree felonies.
Kajuana Myers, 22, of West Union Street in Medina, was sentenced to three years of community control sanctions on one count of Trafficking in Marijuana within the Vicinity of a Juvenile, a fourth-degree felony, and one count of Trafficking in Marijuana, a fifth-degree felony. Her driver’s license was suspended for six months.
Robert Patterson III, 57, of Ocean Avenue in Akron, was sentenced to 180 days in jail on one count of Possession of Heroin, a fifth-degree felony.
John R. Robinson, 22, of Heather Hedge Road in Chippewa Lake, was sentenced to three years of community control sanctions on three counts of Forgery, all of which are fifth-degree felonies.
Tony Valenti, 35, of North Park Street in Wadsworth, was sentenced to two years in prison on eight counts of Breaking and Entering and eight counts of Vandalism, all of which are fifth-degree felonies.
Scott Bonamase, 45, of Westridge Lane in Streetsboro, pleaded not guilty to one count of Theft, a fourth-degree felony. A jury trial is scheduled for February 1.
Kristofer Buterbaugh, 22, of Lodi Road in Lodi, pleaded not guilty to one count of Possession of Heroin, a fifth-degree felony. A jury trial is scheduled for February 3.
Artice Lollis, 20, of Cleveland, pleaded not guilty to one count of Trafficking in Heroin and one count of Possession of Heroin, both of which are fourth-degree felonies. Both charges carry forfeiture specifications. A jury trial is scheduled for January 31.
Michael Maile, 26, of Liberty Avenue in Barberton, pleaded not guilty to one count of Possession of Drugs, a fifth-degree felony. A jury trial is scheduled for February 1.
Jordan Moore, 19, of Victoria Circle in Medina, pleaded not guilty to 12 counts of Pandering Sexually Oriented Material Involving a Minor, all of which are fourth-degree felonies. A jury trial is scheduled for December 31.
Andrea Anderson, 32, of Lancelot Street in Streetsboro, was sentenced to two years of community control sanctions on one count of Permitting Drug Abuse, a fifth-degree felony. Her driver’s license was suspended for six months.
Nicholas Blossom, 22, of Lawn Street in Valley City, was sentenced to three years of community control sanctions on one count of Illegal Manufacture of Drugs, a fifth-degree felony.
Richard Boreman, 47, of Bank Street in Lodi, was sentenced to six months in prison on two counts of Trafficking in Drugs, both of which are fourth-degree felonies. His driver’s license was suspended for six months.
Randall Finkel, 25, of state Route 58 in Wellington, was sentenced to three years of community control sanctions on one count of Theft, a fifth-degree felony. He also was ordered to pay $900 in restitution to the victim.
Thomas Higgins, 26, of Winterberry Lane in Medina, was sentenced to three years of community control sanctions on three counts of Illegal Processing of Drug Documents, all of which are fifth-degree felonies.
Kajuana Myers, 22, of West Union Street in Medina, was sentenced to three years of community control sanctions on one count of Trafficking in Marijuana within the Vicinity of a Juvenile, a fourth-degree felony, and one count of Trafficking in Marijuana, a fifth-degree felony. Her driver’s license was suspended for six months.
Robert Patterson III, 57, of Ocean Avenue in Akron, was sentenced to 180 days in jail on one count of Possession of Heroin, a fifth-degree felony.
John R. Robinson, 22, of Heather Hedge Road in Chippewa Lake, was sentenced to three years of community control sanctions on three counts of Forgery, all of which are fifth-degree felonies.
Tony Valenti, 35, of North Park Street in Wadsworth, was sentenced to two years in prison on eight counts of Breaking and Entering and eight counts of Vandalism, all of which are fifth-degree felonies.
Scott Bonamase, 45, of Westridge Lane in Streetsboro, pleaded not guilty to one count of Theft, a fourth-degree felony. A jury trial is scheduled for February 1.
Kristofer Buterbaugh, 22, of Lodi Road in Lodi, pleaded not guilty to one count of Possession of Heroin, a fifth-degree felony. A jury trial is scheduled for February 3.
Artice Lollis, 20, of Cleveland, pleaded not guilty to one count of Trafficking in Heroin and one count of Possession of Heroin, both of which are fourth-degree felonies. Both charges carry forfeiture specifications. A jury trial is scheduled for January 31.
Michael Maile, 26, of Liberty Avenue in Barberton, pleaded not guilty to one count of Possession of Drugs, a fifth-degree felony. A jury trial is scheduled for February 1.
Jordan Moore, 19, of Victoria Circle in Medina, pleaded not guilty to 12 counts of Pandering Sexually Oriented Material Involving a Minor, all of which are fourth-degree felonies. A jury trial is scheduled for December 31.
Judge Kimbler Probation Violations for December 3, 2010
Below are the probation violations heard by Judge James Kimbler on Friday, December 3, 2010, as reported by Veronica Perry, Medina County Chief Probation Officer. The first line is the case number, the second line is the probationer's name, the third line is the name of the probation officer filing the violation, the fourth line is the hearing date and the fifth line is the violation disposition.
09CR0177
Price, Wallie
C. Copley
12/3/2010
PV Hearing - ISP; 18 days MCJ w/18 days credit; drug/alcohol assessment
07CR0592
Brown, William
J. Adams
12/3/2010
PV Hearing - Continued until 12/30/2010
09CR0127
Lovejoy, Heather
L. Lesko
12/3/2010
PV Hearing -Continued to Thursday 12/9/1020
09CR0396
Walsh, Brendan
H. Smith
12/3/2010
PV Hearing - PV will be Dismissed after Def. enters the Berea Children's Home Program and have re-assessment with Counselor, Ron Blue is completed.
09CR0177
Price, Wallie
C. Copley
12/3/2010
PV Hearing - ISP; 18 days MCJ w/18 days credit; drug/alcohol assessment
07CR0592
Brown, William
J. Adams
12/3/2010
PV Hearing - Continued until 12/30/2010
09CR0127
Lovejoy, Heather
L. Lesko
12/3/2010
PV Hearing -Continued to Thursday 12/9/1020
09CR0396
Walsh, Brendan
H. Smith
12/3/2010
PV Hearing - PV will be Dismissed after Def. enters the Berea Children's Home Program and have re-assessment with Counselor, Ron Blue is completed.
Wednesday, December 01, 2010
Judge Kimbler Changes of Plea for November 30 and December 1, 2010
Four defendants appeared in Judge Kimbler's courtroom on Tuesday and Wednesday and entered changes of plea to charges pending against them. Judge Kimbler ordered a pre-sentence investigation for each defendant. All four defendants will be sentenced on January 14, 2011. In all four cases, Judge Kimbler continued the defendant's bond.
The four defendants are as follows:
Kerry L. Williams, 18, of William Drive in Brunswick, Ohio. Ms. Williams was charged with one count of Trafficking in Drugs, Marijuana, a fifth degree felony.
Kevin A. Scholz, 23, of Branch Road in Medina, Ohio. Mr. Scholz was charged with two counts of Trafficking in Drugs, Marijuana, both of which are fifth degree felonies.
Dawn M. Hyde, 39, of Prospect Street in Elyria, Ohio. Ms. Hyde was charged with one count of Forgery, a fifth degree felony.
Barbara A. Lee, 48, of Oak Court in Lodi, Ohio. Ms. Lee was charged with one count of Trafficking in Drugs, Alprazolam, a fifth degree felony.
The four defendants are as follows:
Kerry L. Williams, 18, of William Drive in Brunswick, Ohio. Ms. Williams was charged with one count of Trafficking in Drugs, Marijuana, a fifth degree felony.
Kevin A. Scholz, 23, of Branch Road in Medina, Ohio. Mr. Scholz was charged with two counts of Trafficking in Drugs, Marijuana, both of which are fifth degree felonies.
Dawn M. Hyde, 39, of Prospect Street in Elyria, Ohio. Ms. Hyde was charged with one count of Forgery, a fifth degree felony.
Barbara A. Lee, 48, of Oak Court in Lodi, Ohio. Ms. Lee was charged with one count of Trafficking in Drugs, Alprazolam, a fifth degree felony.
Judge Kimbler Jury Trial Ends in Conviction for Drug Trafficking
After a two day jury trial in Judge Kimbler's courtroom, a jury returned two verdicts of guilty in the case of State v. Kevin M. Foy. Mr. Foy, a resident of Essex Drive in Strongsville, was charged with two counts of Complicity to Commit Drug Trafficking, each charge being a fifth degree felony. Each charge involved the sale of cocaine.
Mr. Foy was charged with aiding and abetting his brother in drug trafficking. Both drug transactions took place in Brunswick. One transaction took place on April 15, 2010 and the other transaction took place on April 20, 2010. Both times drugs were sold to an confidential informant who was working for the Medway Drug Agency. Medway operates in both Wayne and Medina counties.
Following the announcement of the verdicts, Judge Kimbler ordered a pre-sentence investigation and will impose sentence on January 14, 2011. Judge Kimbler continued Mr. Foy's bond until January 14.
Mr. Foy was charged with aiding and abetting his brother in drug trafficking. Both drug transactions took place in Brunswick. One transaction took place on April 15, 2010 and the other transaction took place on April 20, 2010. Both times drugs were sold to an confidential informant who was working for the Medway Drug Agency. Medway operates in both Wayne and Medina counties.
Following the announcement of the verdicts, Judge Kimbler ordered a pre-sentence investigation and will impose sentence on January 14, 2011. Judge Kimbler continued Mr. Foy's bond until January 14.
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