Judge Collier Arraignments for February 22, 2011

Medina County Prosecutor Dean Holman reports that the following defendants appeared in Judge Collier's court for arraignments on Tuesday, February 22, 2011:

Brandon Boettcher, 19, of Crestway Oval in Brunswick, pleaded not guilty to two counts of Aggravated Vehicular Assault, both of which are third-degree felonies and two counts of Contributing to the Unruliness or Delinquency of a Minor, both of which are first-degree misdemeanors. A jury trial is scheduled for April 27.

George Bubner, 32, of Young Drive in Barberton, pleaded not guilty to one count of Possession of Cocaine, a fifth-degree felony. A jury trial is scheduled for May 25.

Dale Chait, 40, of Chatham Road in Medina, pleaded not guilty to one count of Forgery, a fifth-degree felony. A jury trial is scheduled for May 25.

Anthony Colapietro, 44, of Wedgewood Drive in Medina, pleaded not guilty by reason of insanity to one count of Contamination of a Substance for Human Consumption, a first-degree felony. A jury trial is scheduled for April 18.

Mark Cozza, 26, of Chestnut Road in Seven Hills, pleaded not guilty to one count of Domestic Violence, a fourth-degree felony. A jury trial is scheduled for April 27.

Stephanie Gasser, 27, of Greenwich Road in Seville, pleaded not guilty to one count of Trafficking in Heroin, a fourth-degree felony. A jury trial is scheduled for May 9.

Chase Good, 35, of Lafayette Road in Medina, pleaded not guilty to one count of Domestic Violence, a third-degree felony. A jury trial is scheduled for May 23.

Christopher Jones, 28, of Westfield Road in Seville, pleaded not guilty to two counts of Trafficking in Drugs, both of which are fourth-degree felonies. A jury trial is scheduled for May 23.

Terry Sense, 37, of Silvercreek Road in Doylestown, pleaded not guilty to 28 counts of Contributing to the Delinquency of a Minor, all of which are first-degree misdemeanors. Sense has a jury trial scheduled for April 11 for 28 counts of Corrupting Another with Drugs, all of which are fourth-degree felonies.

Timothy Slama, 41, of Stearns Street in Brunswick, pleaded not guilty to one count of Having Weapons While Under Disability, a third-degree felony. A jury trial is scheduled for May 23.

Paul Smith, 32, of Streetwater Road in Wadsworth, pleaded not guilty to one count of Trafficking in Cocaine within the Vicinity of a Juvenile or School and one count of Trafficking in Marijuana within the Vicinity of a Juvenile or School, both of which are fourth-degree felonies. A jury trial is scheduled for May 25.

Corey Washington, 41, of West Main Street in Seville, pleaded not guilty to one count of Domestic Violence, a fourth-degree felony and one count of Criminal Damaging, a second-degree felony. A jury trial is scheduled for March 30.

Judge Collier Criminal Sentences for February 22, 2011

Medina County Prosecutor Dean Holman reports that the following defendants were sentenced by Judge Collier on Tuesday, February 22, 2011:

Eric Cochran, 32, of East Avenue in Akron, was sentenced to one year in prison on one count of Burglary, a fourth-degree felony.

Thomas Dishon, 23, of Berry Avenue in Cleveland, was sentenced to five years of community control sanctions, with 180 days in jail, on one count of Theft, a fifth-degree felony.

Marisol Gonzalez, 33, of West Union Street in Medina, was sentenced to 30 days in jail for a probation violation on an original charge of Trafficking in Drugs, a fourth-degree felony.

Perry Hermansen II, 19, of Howe Street in Lodi, was sentenced to five years of community control sanctions, with six months in jail, on one count of Trafficking in Marijuana, a fifth-degree felony. His driver’s license was suspended for six months.

Jason Rhodes, 26, of Blanot Street in Medina, was sentenced to one year in prison for a probation violation on an original charge of Carrying a Concealed Weapon, a fourth-degree felony.

Judge Kimbler Sentences for February 24, 2011

Medina County Prosecutor Dean Holman reports that Judge Kimbler imposed the following sentences in criminal cases on Thursday, February 24, 2011:

Perry Hermansen, 39, of Howe Street in Lodi, was sentenced to one year in prison on one count of Trafficking in Drugs within the Vicinity of a School or Juvenile, a third-degree felony. His driver’s license was suspended for six months.

Daniel Kurtz III, 20, of Renwood Drive in Parma, was sentenced to two years of community control sanctions on one count of Theft of Credit Cards, a fifth-degree felony. He was ordered to pay $268 in restitution.

Dustin Niemann, 23, of Lincoln Avenue in Brunswick, was sentenced to six months in jail on one count of Trafficking in Cocaine, a fifth-degree felony. His driver’s license was suspended for six months.

David Sidwell, 33, of Laurel Road in Brunswick, was sentenced to three years of community control sanctions on one count of Trafficking in Drugs and one count of Breaking and Entering, both of which are fifth-degree felonies. His driver’s license was suspended for six months.

Judge Kimbler Changes of Plea for February 22-24, 2011

This past week was a light week for changes of plea in Courtroom Number Two. On Monday the Medina County Courthouse was closed and on Friday the Courthouse was to be the site of an Ohio Mock Trial Regional Competition, although that event ended up being cancelled because of the blizzard. Consequently there were only five defendants who changed their pleas this past week.

On Tuesday, two defendants changed plea. They were:

Lester J. Javey, 42, of Pasadena Avenue in Youngstown, Ohio, entered a "no contest" plea to one count of Possession of Drugs, (Marijuana), a fifth degree felony, and was found guilty on that charge. Judge Kimbler referred the case to the Medina County Adult Probation Department for a presentence investigation. Judge Kimbler will impose sentence on March 31, 2011.

Lynn W. Power, 61, of Meadow Gateway in Medina, Ohio, entered a plea of "no contest" to one count of Gross Sexual Imposition, a third degree felony, and one count of Indecent Public Exposure, a fourth degree misdemeanor. Judge Kimbler made a finding of guilt on the charge of Gross Sexual Imposition, but deferred making a finding of guilt on the charge of Indecent Public Exposure, pending the filing of some post-plea motions.

Judge Kimbler ordered a presentence investigation and will sentence Mr. Power on March 31, 2011 on the charge of Gross Sexual Imposition. Judge Kimbler continued Mr. Power's bond pending sentencing.

On Wednesday, February 23, 2011, one defendant changed plea. That defendant was:

Bradley A. Shelly, 35, of West Chestnut Street in Wadsworth, Ohio, entered a plea of "no contest" to two counts of Drug Trafficking, both fifth degree felonies. Judge Kimbler found him guilty of both counts and ordered a presentence investigation. Judge Kimbler will impose sentence on March 31, 2011. Bond was continued pending sentencing.

On Thursday, February 24, 2011, two defendants changed plea. One defendant was sentenced to prison immediately following his change of plea. The other defendant asked that her bond be revoked and that she be remanded to the Medina County Jail pending sentencing.

The defendant who changed plea and then was sentenced to prison was Thomas M. O'Connor, 21, of Hametown Road in Norton, Ohio. He plead "no contest" to three fifth degree felonies. Two were for Drug Possession and one was for Receiving Stolen Property. Judge Kimbler found him guilty on all three charges and sentenced him to six months in prison. Judge Kimbler's prison sentence will be served concurrently with a five year sentence imposed by the Summit County Common Pleas Court.

The defendant who changed her plea and wanted her bond revoked was Crystal A. Gargasz, also known as Crystal A. Brandt, 32, of Ledgestone Drive in Wadsworth, Ohio. Ms. Gargasz entered pleas of "no contest" to two counts of Drug Possession, both fifth degree felonies. Judge Kimbler revoked her bond and will sentence her on March 4, 2011. Judge Kimbler anticipates sentencing her to six months in the Medina County Jail on each count with the jail sentences to run concurrently.

Judge Kimbler Probation Violations for February 24, 2011

Medina County Chief Probation Officer Veronica Perry reports that the following defendants appeared in Judge Kimbler's courtroom on Thursday, February 24, 2011, for violations of supervision:

08CR0059 Bubner, George IV L. Lesko 2/24/2011 PV Hearing - Admits - 180 days MCJ w/27 days credit; all costs are waived. Supervision terminated when released from jail.

09CR0335 Wemmer, Nicholas M. Liebler 2/24/2011 PV Hearing - Continued 1 week until 3/3/11; Assigned attorney. Possible pending charges in Wadsworth.

08CR0251 Harmon, Roland J. Adams 2/24/2011 PV Hearing - Entered denial. Rescheduled for a later date.

08CR0301 Lisy, Michael B. Burcham 2/24/2011 PV Hearing - Will serve 4 straight days in MCJ beginning Sat. 3/12 - 3/15. Stay on ISP; PV costs waived.

10CR0188 Leprevost, Christi C. Copley 2/24/2011 PV Hearing - Do an additional 24 hrs. of Community service; Probation continuted; PV costs assessed

10CR0301 Myers, Kajuana B. Burcham 2/24/2011 PV Hearing - Additional 10 hrs. community service; 2 AA meetings wkly.; complete Solutions; continue on supervision; pv costs waived

09CR0075 Paletta, James K. Turchek 2/24/2011 PV Hearing - Admits - 43 days MCJ w/43 days credit. Continue on supervision

10CR0192 O'Neill, Desiree B. Burcham 2/24/2011 PV Hearing - Admits - To serve 13 days MCJ w/9 days credit. To served another 4 days w/in 60 days; complete BCH; continue on ISP

Judge Kimbler Arraignments for February 24, 2011

Medina County Prosecutor Dean Holman reports that the following defendants appeared in Judge Kimbler's courtroom for arraignments on new criminal charges on Thursday, February 24, 2011:

Marvin Barrera-Menendez, 24, of West Washington Street in Medina, pleaded not guilty to one count of Felonious Assault, a second-degree felony and one count of Abduction, a third-degree felony. A jury trial is scheduled for April 25.

Tammy Coates, 41, of Campbellsport Road in Ravenna, 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 April 25.

Benjamin Corliss, 22, of Detroit Avenue in Lakewood, pleaded not guilty to the following charges: one count of Tampering with Evidence, a third-degree felony; one count of Complicity to Commit Trafficking in Counterfeit Controlled Substance; two counts of Complicity to Commit Trafficking in Counterfeit Controlled Substance; one count of Theft; and one count of Complicity to Commit Theft, all of which are fifth-degree felonies. A jury trial is scheduled for April 26.

Crystal Gargasz, 32, of Ledgestone Drive in Wadsworth, pleaded no contest to two counts of Possession of Heroin, both of which are fifth-degree felonies. Sentencing is scheduled for March 4.

Allison Keiner, 34, of Pittsburgh Avenue in Wooster, pleaded not guilty to one count of Theft, a fourth-degree felony. A jury trial is scheduled for April 26.

Beverly Miller, 26, of Adams Street in Akron, pleaded not guilty to one count of Trafficking in Cocaine, a fourth-degree felony. A jury trial is scheduled for April 27.

Thomas O’Connor, 21, of South Hametown Road in Norton, pleaded no contest and was sentenced to six months in prison on the following charges: one count of Receiving Stolen Property; one count of Possession of Drugs; and one count of Possession of Cocaine, all of which are fifth-degree felonies.

Daniel Stamp, 34, of L Street in Wadsworth, pleaded not guilty to one count of Possession of Heroin, a fifth-degree felony. A jury trial is scheduled for April 26.

James Thigpen, 34, of Pine Needle Drive in Seville, pleaded not guilty to one count of Menacing by Stalking, a fourth-degree felony; two counts of Violation of a Protection Order, both of which are fifth-degree felonies; and two counts of Telephone Harassment, both of which are first-degree misdemeanors. A jury trial is scheduled for April 19.

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Judge Collier's Criminal Docket for February 14, 2011

Medina County Prosecutor Dean Holman reports that the following defendants appeared in Judge Collier's courtroom on Monday, February 14, 2011, for criminal cases:

Scot Favorite, 45, of Dover Drive in Medina, pleaded guilty to two counts of Unlawful Sexual Conduct with a Minor, both of which are third-degree felonies. A forfeiture specification is attached to each charge. Sentencing is scheduled for March 28.

Joseph Leachman, 26, of West 105th Street in Cleveland, pleaded no contest to one count of Possession of Heroin, a fifth-degree felony. Sentencing is scheduled for February 28.

Leopold Mlocki Jr., 28, of Kent Drive in Brunswick, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for May 18.

John Toole Jr., 32, of Boneta Road in Wadsworth, pleaded no contest to one count of Theft, a fifth-degree felony. Sentencing is scheduled for February 22.

Homerville Man Receives $1000.00 Fine for Gun Charge

On Thursday, February 17, 2011, Matthew M. Herndon, 28, of Greenwich Road in Homerville, Ohio appeared in Judge Kimbler's courtroom on on count of Attempted Improper Handling of Firearms in a Motor Vehicle, a first degree misdemeanor. Originally Mr. Herndon was charged with a felony, but the State agreed to reduce the charge to a misdemeanor in exchange for a guilty plea to the misdemeanor.

Judge Kimbler imposed a 90 day jail sentence but suspended the jail sentence on the condition that Mr. Herndon pay a $1,000.00 fine; pay court costs; and forfeit the firearm. Judge Kimbler also placed him under the supervision of the Medina County Adult Probation Department for one year, but ordered the supervision to be terminated when Mr. Herndon pays off the fine and court costs.

Brunswick Woman Avoids Prison When Grandmother Agrees to Accept Restitution

On Thursday, February 17, 2011, Danielle L. Telmanik of Valley Forge Drive in Brunswick, Ohio, appeared in Judge Kimbler's courtroom to be sentenced on one count of Theft from the Elderly, a fourth degree felony. Her grandmother was the victim from whom Ms. Telmanik stole several thousand dollars worth of personal belongings to get money to buy drugs.

At the hearing Judge Kimbler asked the Victim's Advocate from the Medina County Prosecutor's Office to ask Ms. Telmanik's grandmother if she wanted him to order restitution. The Advocate conferred with the grandmother and then reported that the grandmother wanted restitution.

After receiving that information, Judge Kimbler imposed the following community control sanctions: Supervision by the Medina County Adult Probation Department for three years; and restitution in the amount of $8500.00 to be paid in monthly installments of $400.00, with the first installment being due on the last day of March and then each monthly installment due of the last day of the month thereafter.
Judge Kimbler informed Ms. Telmanik that if she didn't comply with the restitution order, she was facing 18 months in prison.

In order to make sure that Ms. Telmanik can comply with his order, Judge Kimbler waived all court costs and supervision fees. Judge Kimbler imposed the restitution order after ascertaining that Ms. Telmanik is employed and earns enough money to comply with the order.

North Royalton Man Sentenced to Community Control Sanctions

Medina County Prosecutor Dean Holman reports that on Thursday, February 17, 2011, Judge Kimbler sentenced Jeffrey Holcom, 30, of Sir Richard Avenue in North Royalton, 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.

The community control sanctions include three years of supervision by the Medina County Adult Probation Department, 24 hours of community service, a six month driver's license suspension, make best efforts to obtain and maintain gainful, verifiable employment, submit to regular and random drug screens and be arrested on a positive result, and pay all court costs, supervision fees, and drug testing fees. Judge Kimbler also ordered him to comply with conditions imposed by the Summit County Adult Probation Department.

Judge Kimbler advised Mr. Holcom that if he violated these conditions he could be sentenced to either more restrictive community control sanctions or sent to prison for up to 12 months.

Cleveland Man Sentenced to Prison for Theft

Medina County Prosecutor Dean Holman reports that on Thursday, February 17, 2011, James Reed, 29, of East 67th Street in Cleveland, Ohio, appeared in Judge Kimbler's courtroom on one count of Theft, a fifth degree felony. The victim in the case was Wal-Mart. Mr. Reed entered a plea of "no contest" and Judge Kimbler found him guilty of the charge. Judge Kimbler then sentenced him to six months in prison with credit for time served and waived court costs.

Judge Kimbler Arraignments for February 17, 2011

Medina County Prosecutor Dean Holman reports that the following defendants appeared in Judge Kimbler's courtroom on Thursday, February 11, 2011, for arraignments on new criminal charges:

Jose Borrero, 33, of Persimmon Lane in Brunswick, pleaded not guilty to one count of Theft and one count of Theft of a Credit Card, both of which are fifth-degree felonies. A jury trial is scheduled for April 18.

Charity Drake, 36, of 3rd Street NW in Barberton, pleaded no contest to one count of Receiving Stolen Property, a fifth-degree felony. Sentencing is scheduled for March 24.

Shannon Odum, 28, of Kendale Drive in Akron, pleaded not guilty to three counts of Theft, all of which are fifth-degree felonies. A jury trial is scheduled for March 21.


Nathaniel Serrano, 41, of state Route 20 in Wakeman, pleaded not guilty to one count of Failure to Give Notice of Change of Address, a third-degree felony. A jury trial is scheduled for April 20.

Michael Vacha, 40, of Ghent Ridge Road in Bath, pleaded not guilty to one count of Failure to Comply with a Police Officer, a third-degree felony. A jury trial is scheduled for April 18.

Barberton Man Gets Prison Sentence for Wal-Mart Thefts

Judge James L. Kimbler sentenced Edward S. Rowe, 36, of Fifth Street in Barberton to eight months in prison on three counts of Theft, all fifth degree felonies. The prison sentences were imposed following a change of plea on Tuesday, February 15, 2011.

Mr. Rowe's case was originally scheduled for trial in January, but his attorney filed a motion for a continuance when he learned that Mr. Rowe was being held in the Summit County Jail. Mr. Rowe received credit for time served in the Medina County Jail prior to his change of plea and sentencing.

Galion Woman Enters Plea on Two Counts of Aggravated Vehicular Homicide

Victoria R. Spear, 21, of Grant Street in Galion Ohio, appeared in Judge Kimbler's courtroom on Tuesday, February 15, 2011, and changed her plea to two counts of Aggravated Vehicular Homicide for causing the death of a passenger in her car on July 17, 2010 on Jeffery Road in Medina County. The Grand Jury issued two charges for her passenger's death.

One charge was for causing the death of her friend by operating her car while she was under the influence of alcohol. The other was for recklessly operating her car and causing her passenger's death. The first charge is a second degree felony and carries a mandatory prison of between two and eight years. The second charge is a third degree felony and carries a prison term of between one and five years. While Ms. Spear can be charged with both counts, and found guilty of both, she can only be sentenced on one charge. During the change of plea hearing, the assistant prosecutor representing the State told Judge Kimbler that the State will choose to have her sentenced on the second degree felony.

Ms. Spear changed her plea on each charge from "not guilty" to "no contest." Judge Kimbler then found her guilty of both charges and referred her for a presentence investigation. Judge Kimbler will impose sentence on March 24, 2011. Since the State did not make a motion for bond revocation, Judge Kimbler continued her bond until sentencing.

Two Change Plea in Judge Kimbler's Courtroom on Friday, February 11, 2011

Medina County Prosecutor Dean Holman reports that the following defendants appeared in Judge Kimbler's courtroom on Friday, February 11, 2011, and entered a change of plea:

Peter Ketchem, 31, of Westwood Drive in Strongsville, pleaded no contest to one count of Possession of Drugs, a fifth-degree felony. Sentencing is scheduled for March 17.

John McCarty, 19, of Hartman Road in Wadsworth, pleaded no contest to one count of Burglary, a fourth-degree felony. Sentencing is scheduled for February 24.

Judge Kimbler Sentences Two Men to Jail

Medina County Prosecutor Dean Holman reports that Judge James Kimbler sentenced two defendants to six months in jail as a community control sanction. The defendants were:

Michael Basford, 24, of South Broadway Street in Medina, was sentenced to jail on one count of Possession of Drugs, a fifth-degree felony. His driver’s license was suspended for six months.

Antwon Boggan, 18, of Clark Avenue in Cleveland, was sentenced to 180 days in jail on one count of Robbery, a third-degree felony.

Judge Kimbler Arraignments for February 11, 2011

Medina County Prosecutor Dean Holman reports that the following defendants appeared in Judge Kimbler's courtroom on Friday, February 11, 2011, for arraignments on new charges:

Gerald Kruger, 44, of Main Street in Wadsworth, pleaded not guilty to one count of Domestic Violence, a fourth-degree felony. A jury trial is scheduled for April 11.

Susan Oliver, 41, of North Harmony Street in Medina, pleaded not guilty to two counts of Driving Under the Influence of Drugs or Alcohol, both of which are fourth-degree felonies. A jury trial is scheduled for April 18.

Colleen Patera, 49, of Pearl Road in Strongsville, pleaded not guilty to one count of Unauthorized Use of a Vehicle, a fifth-degree felony. A jury trial is scheduled for April 13.

Allen R. Sams, 24, of Lucy Street in Akron, pleaded not guilty to one count of Trafficking in Heroin, a fourth-degree felony. A jury trial is scheduled for April 11.

Keri Stapleton, 25, of Trease Road in Wadsworth, pleaded not guilty to one count of Assault of a Peace Officer, a fourth-degree felony. A jury trial is scheduled for April 12.

Trisha Summers, 24, of Cole Avenue in Akron, pleaded not guilty to one count of Trafficking in Heroin, a fourth-degree felony. A jury trial is scheduled for April 12.

Judge Collier's Criminal Docket for February 7, 2011

Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Collier’s courtroom on Monday, February 7, 2011, for criminal cases:

Judith Boothe, 41, of Avon Lake Road in Burbank, was sentenced to five years of community control sanctions, with 90 days in jail, on one count of Forgery, a fifth-degree felony.

Gloria Nichols, 28, of West End Avenue in Dayton, was sentenced to five years of community control sanctions, with 180 days in jail, on one count of Possession of Heroin, a second-degree felony. Her driver’s license was suspended for one year.

Henry Helms, 18, of Circle Drive in Medina, pleaded not guilty to one count of Trafficking in Cocaine, a third-degree felony and one count of Trafficking in a Counterfeit Controlled Substance, a fifth-degree felony. A jury trial is scheduled for April 13.

Christopher Kemper, 24, of South Huntington Street in Medina, pleaded guilty to the following charges: one count of Burglary, a second-degree felony; Theft of a Firearm, a third-degree felony; and Receiving Stolen Property, a fifth-degree felony. Sentencing is scheduled for March 21.

Keith Lawhorn, 53, of Hardesty Boulevard in Akron, pleaded not guilty to one count of Possession of Cocaine, a fifth-degree felony. A jury trial is scheduled for May 11.

Robert Rabb, 57, of Herman Street in Akron, pleaded not guilty to one count of Trafficking in Crack Cocaine, a fourth-degree felony. A jury trial is scheduled for April 4.

Erin Remington, 20, of Eisenhower Drive in Brunswick, pleaded not guilty to one count of Receiving Stolen Property, a fifth-degree felony. A jury trial is scheduled for May 9.

Wadsworth Woman Wins Civil Jury Trial

On Thursday, February 10, 2011, a civil jury in Judge Kimbler's courtroom returned a verdict of $95,000.00 in favor of Heidi A. Sonntag of Wadsworth. Prior to trial, the defendants had offered Ms. Sonntag a total of $5,000.00 to settle the case.

The lawsuit arose from a car accident that took place on September 25,2004, when a Dodge Intrepid that Ms. Sonntag was driving was hit from the rear by a Ford 350 pickup truck driven by Eric Raw, also of Wadsworth. There was no dispute over whether Mr. Raw's truck came into contact with Ms. Sonntag's Dodge Intrepid. The issue was whether Mr. Raw's truck hit Ms. Sonntag's car or was pushed into Ms. Sontag's car when a vehicle driven by Ronnie W. Nipuelio, also a Wadsworth resident, struck Mr. Raw's truck from behind in a second collision.

The lawsuit originally involved three defendants: Mr. Raw, Mr. Nipuelio and Westfield Insurance Company. Westfield was named as a defendant because its insurance policy covering Ms. Sonntag's Dodge contained an underinsured motorist provision. Prior to trial, however, Mr. Nipuelio's insurance company reached a settlement with Ms. Sonntag, resulting in his dismissal from the lawsuit.

The jury determined that Mr. Raw's vehicle caused the collision with Ms. Sonntag's vehicle. The verdict will be paid by Mr. Raw's insurance company since he had liability limits under his policy of $100,000.00. Mr. Raw's insurance company will receive a credit for the $12,500.00 paid by Mr. Nipuelio's insurance carrier.

Originally Ms. Sonntag filed her lawsuit in September of 2006. That lawsuit was dismissed in 2008 and she then refiled her lawsuit on May 15, 2009.

Judge Kimbler Sends Two Men to Jail for Probation Violations

Medina County Chief Probation Officer Veronica Perry reports that on Friday, February 12, 2011, Judge James Kimbler sentenced two men to the Medina County Jail for probation violations. They were Eric Finkela, who was sentenced for probation violations in Case No. 08CR0256 and 09CR0407, and Andrew Wallace, who was sentenced for a probation violation in Case No. 09CR0383.

Each man received a six month jail sentence with credit for time that they had already served in the county jail prior to their hearings on Friday. When the men are released from the county jail, their supervision by the Probation Department will be terminated. Judge Kimbler also waived any outstanding court costs and probation fees.

Foreclosures Down 4 Percent in 2010

For the first time in 15 years, Ohio foreclosure case filings declined compared to the previous year, according to data released today by the Supreme Court of Ohio.

For 2010, common pleas courts across Ohio reported 85,483 new residential and commercial foreclosure case filings to the Supreme Court. The Court began collecting foreclosure data in 1990.

Fifty-eight counties saw decreases in the number of year-over-year foreclosures compared to the 30 counties who experienced an increase in 2010. Madison County, with 201 foreclosures, reported the sharpest decline from the prior year with 26 percent fewer foreclosures. On the other end of the spectrum, Noble County reported a 294 percent increase in the number of foreclosures from 32 in 2009 to 126 in 2010.

The statewide decline in foreclosures is significant, given that the Court reported a 14th consecutive annual increase in 2009.

Cuyahoga County continued to lead the state in the number of foreclosures with 12,825, although this figure represents a 9 percent annual decline. Franklin County reported a 2 percent increase for 2010 foreclosures with 9,649. Meanwhile, Hamilton County data show 6,556 foreclosures in 2010 for a 2 percent decrease.

Created in 2008, Ohio’s multi-agency foreclosure prevention effort – the Save the Dream campaign – continues to provide Ohioans with access to numerous state resources and programs related to foreclosure.

The Supreme Court assists in this effort by reporting its foreclosure statistics, supporting foreclosure mediation programs, and offering training.

Access the complete county-by-county foreclosure data from 2001 through 2010.

Contact: Chris Davey or Bret Crow at 614.387.9250.

Judge Kimbler Sentences Three Defendants to Community Control Sanctions

On Thursday, February 3, 2011, Judge James L. Kimbler sentenced three defendants to community control sanctions. The defendants and their sanctions are listed below:

Shane A. Griffin, 37, of Revere Court in Brunswick, Ohio, was put under general supervision by the Medina County Adult Probation Department for three years for two counts of Trafficking in Drugs, both fourth degree felonies. His terms of supervision include 24 hours of community service; verifying all prescription medications with the Probation Department on every visit; making best efforts to maintain gainful, full time employment; meeting the Probation Department's in-house counselor; submitting to random drug testing with the condition that he be arrested on a positive result; and having no contact with Shelly Justice. Judge Kimbler also suspended his driver's license for six months.

Scott C. Reisland, 27, of Grafton Road in Brunswick, Ohio, was put under general supervision by the Medina County Adult Probation Department for three years for one count of Trafficking in Drugs, a fourth degree felony. His terms of supervision include 24 hours of community service; treating with the Department's in-house counselor and following all recommendations of the counselor; not consuming or possessing alcohol; submitting to drug and alcohol testing and being arrested on a positive result; and making best efforts to obtain and maintain gainful employment. Judge Kimbler suspended his driver's license for six months and ordered Mr. Reisland to pay court costs and a community control sanction fee.

Sharon L. Simpson, 54, of Frederick Street in Medina, Ohio, was put under general supervision by the Medina County Adult Probation Department for three years on one count of Permitting Drug Abuse, a fifth degree felony. Her terms of supervision include 24 hours of community service; continuing treatment with a drug abuse counselor and following that counselor's recommendations; verifying all prescriptions for medicine with the Probation Department; obtaining and maintaining employment; attending weekly NA and/or AA meetings; and submitting to drug and alcohol testing and being arrested on a positive result. Judge Kimbler also suspended her driver's license for six months.

Brunswick Woman Gets Two Year Prison Term for Bank Robbery

On Thursday, February 3, 2011, Sarah M. Sicking, 29, of Bennington Boulevard in Brunswick, Ohio appeared in Judge Kimbler's courtroom for imposition of sentence on one count of Robbery, a second degree felony. The charge rose out of an incident on August 20, 2010, when Ms. Sicking walked into a branch of the Fifth Third Bank on Center Road in Brunswick and handed the teller a note demanding money. The note said that Ms. Sicking was carrying a weapon, even though she didn't have a weapon on her. The teller gave Ms. Sicking $5,799.00 in currency and Ms. Sicking fled out the front doors.

Ms. Sicking, who has four children, was arrested on August 23, 2010 by Brunswick Police
Detective Weinhardt following an anonymous tip that Ms. Sicking was involved in the Fifth Third robbery. At first Ms. Sicking denied involvement in the robbery but later, during interrogation, she admitted her role in the robbery. Ms. Sicking was taken into custody and remained in jail from August 23, 2010 until February 3, 2011.

Judge Kimbler imposed a two prison sentence, waived court costs, and informed her that she would be under the supervision of the Adult Probation Department for three years following her release from prison. Judge Kimbler also gave her credit for 165 days spent in the Medina County Jail.

Medina Man Given Jail Sentence for Domestic Violence

Judge James Kimbler sentenced Tamas Czirjak, 26, of Lafayette Road in Medina, Ohio, to 45 days in jail with credit for 15 days served for a charge of Domestic Violence, a first degree misdemeanor. Prior to Judge Kimbler imposing sentence on Thursday, February 3, 2011, the victim in the case, who is the mother of two children by Mr. Czirjak came to Judge Kimbler's chambers in an attempt to get the charge dismissed.

Originally Mr. Czirjak had been charged with a felony offense of Domestic Violence, but the State agreed to amend the charge to a misdemeanor if he entered a guilty plea. Although he entered the guilty plea Mr. Czirjak told the probation officer assigned to do the presentence investigation report that he was not guilty of the offense.

At the time of the offense, the victim had a three year old son with Mr. Czirjak and was seven months pregnant with the couple's second child. The offense took place during an argument over the fact that the victim believed that Mr. Crirjak was seeing another woman. According to the Medina Police Department report, the victim told the police that Mr. Czirjak admitted to having a relationship with the other woman. When the presentence investigation was conducted Mr. Czirjak was not living with the victim.

Mr. Czirjak is a resident of the United States but not a citizen. He was born in Hungary and came to the United States in June of 2003. It is not anticipated that he will be deported as a result of this conviction.

Medina Man Sentenced to Prison for Possessing Child Porn

On Thursday, February 3, 2011,Judge James L. Kimbler sentenced Michael A. Reddish, 36, of Imagine Lane in Medina, Ohio, to three and a half years in prison for one count of Illegal Use of a Minor in Nudity Oriented Material or Performance and three years in prison for 11 counts of Pandering Sexually Oriented Material Involving a Minor. The first charge is a felony of the fifth degree and the other counts were felonies of the second degree.

The charges arose from a search that was conducted on Mr. Reddish's computer which revealed that he had downloaded pornographic images involving children. Mr. Reddish consented to the search of his computer and also cooperated with the Medina Police in their investigation of his conduct. While his case was pending, Mr. Reddish began counseling with a licensed independent social worker. All of these factors were considered by Judge Kimbler when he imposed his sentence.

Previously Judge Kimbler had labeled him a sexual offender which will require Mr. Reddish to register as a sex offender when he is released from prison. Judge Kimbler gave him credit for 33 days served in the county jail and waived court costs. After Mr. Reddish is released, he will be supervised for five years by the Ohio Adult Parole Authority.

Judge Kimbler Arraignments for February 3, 2011

Medina County Prosecutor Dean Holman reports that the following defendants appeared in Judge Kimbler's courtroom on Thursday, February 3, 2011 for arraignments on new criminal charges:

Adam Al-Jammal, 19, of Wadsworth Road in Medina, pleaded not guilty to one count of Possession of Cocaine, a fifth-degree felony. A jury trial is scheduled for April 6.

Phillip Bayless, 43, of Briarwood Drive in Chippewa Lake, pleaded not guilty to one count of Driving Under the Influence of Drugs or Alcohol, a third-degree felony. A jury trial is scheduled for April 5.

Timothy Carson, 25, of Reeves Lane in Medina, pleaded guilty to one count of Attempted Burglary, a fourth-degree felony. Sentencing is scheduled for March 17.

Kyle Hissem, 25, of Lena Lane in Cleveland, pleaded not guilty to one count of Burglary, a second-degree felony and one count of Theft, a fifth-degree felony. A jury trial is scheduled for April 4.

Justin Kocisko, 25, of Sterling Station Road in Brunswick, pleaded not guilty to one count of Trafficking in Marijuana, a fifth-degree felony. A jury trial is scheduled for April 6.

Bridgette Nelson, 22, of Chippewa Lake Road in Chippewa Lake, pleaded not guilty to one count of Obstructing Justice, a third-degree felony. A jury trial is scheduled for April 5.

Yvonne Sonego, 33, of Lipke Court in Medina, pleaded not guilty to one count of Escape, a fifth-degree felony. A jury trial is scheduled for April 4.

Donald D. Tanner, 39, of Sunset Drive in Rittman, pleaded not guilty to one count of Burglary, a second-degree felony and one count of Theft, a fifth-degree felony. A jury trial is scheduled for April 4.

Kristen VanHauter, 41, of High Street in Wadsworth, pleaded not guilty to one count of Trafficking in Drugs, a fifth-degree felony. A jury trial is scheduled for April 4.

Judge James Kimbler Probation Violation Hearings for February 3, 2011

Medina County Chief Probation Officer Veronica Perry reports that four probationers appeared in Judge Kimbler's courtroom on Thursday, February 3,2011 on supervision violation complaints. Two of the probationers denied that they violated their supervision and two admitted that they violated their supervision.

The two probationers that denied violations were Eric Finklea and Desiree O'Neill. Mr. Finklea is on supervision in two cases, 08CR0256 and 09CR0407. Judge Kimbler continued his hearing for one week and did not release him on a bond. Judge Kimbler also continued Ms. O'Neill's case for one week and released her on her own recognizance.

The two probationers who admitted to violating their supervision were Matthew Thomas and Stephen Swain. Mr. Thomas is on supervision in Case No. 08CR0503. Mr. Swain is on supervision in Case No. 09CR0513.

In Mr. Thomas's case, Judge Kimbler ordered a 90 day jail sentence with credit for eight days served. At the end of his jail sentence, his supervision is terminated. All outstanding court costs were waived.

In Mr. Swain's case, Judge Kimbler ordered an additional seven days in jail; he must make best efforts to obtain and maintain employment within the next 30 days; and he must complete his domestic violence treatment within the next four months. Court costs for this violation were waived.

January 2011 Medina County Probation Department Report

Medina County Chief Probation Officer Veronica Perry reports that Judge Christopher Collier and Judge James Kimbler made the following referrals and assignments to her department:

There were eight defendants assigned to intensive supervised probation. Judge Collier referred two and Judge Kimbler referred eight.

There were 22 defendants assigned to general supervision with each judge assigning 11 defendants.

There were 20 defendants assigned to community service. Judge Collier assigned four and Judge Kimbler assigned 16.

There were 16 defendants assigned to report to the Department's bond reporting officer. Judge Collier assigned six and Judge Kimbler assigned 10.

There were 35 defendants referred for presentence investigations. Judge Collier assigned 8 and Judge Kimbler assigned 27.

Judge Kimbler referred four defendants for intervention in lieu of conviction reports and he granted one motion for intervention in lieu of conviction.

Five defendants were referred for expungment of conviction reports. Judge Kimbler referred three and Judge Collier referred two.

Judge Kimbler referred four defendants to his mental health docket and placed three defendants on his mental health docket.

Judge Kimbler Finds Rittman Man Guilty of Two Counts of Burglary

A non-jury trial that started on Monday, January 31 and concluded on Wednesday, February 2, 2010, resulted in Judge Kimbler finding Luke D. Rufener, 22, of Heritage Lane in Rittman, Ohio, guilty of twp counts of Burglary, both felonies of the third degree. At the start of the trial, Mr. Rufener entered a plea of no contest and was found guilty of one count of Burglary, a felony of the third degree. Mr. Rufener did not contest that he had committed the burglaries, the issue was whether two of the counts were second degree felonies or third degree felonies.

The difference in the degree of the burglaries depended on whether the State could establish that at the time Mr. Rufener committed the burglaries a person other than himself was "present or likely to be present" in the houses that he entered. A burglary committed while a person is present or likely to be present is a second degree felony. A burglary that is committed when no one other that the offender is present or likely to be present is a third degree felony.

The evidence offered by the State established that Mr. Rufener was deliberately picking houses of people that he knew attended the same church as his parents and himself. He knew that the people whose houses he broke into were likely to be at church during the times that he entered the houses.

Judge Kimbler found that he was not guilty of the second degree felonies, but was guilty of the third degree felonies, which were lesser included offenses of the second degree felonies. Following his announcement of the verdict, Judge Kimbler revoked Mr. Rufener's bond, ordered a pre-sentence investigation, and remanded him back to the Medina County Jail. Judge Kimbler will impose sentence on March 10, 2011 at 8:30 am.

Doylestown Man Changes Plea, Gets Six Month Jail Sentence

Jeffery R. Lauck, 22, of Marion Street in Doylestown, Ohio, appeared in Judge Kimbler's courtroom on Wednesday, February 2, 2011, and entered a change of plea to a charge of Possession of Drugs, a fifth degree felony. At the conclusion of the change of plea, both the State of Ohio and Mr. Lauck waived a pre-sentence investigation. Judge Kimbler then imposed a six month jail sentence and suspended Mr. Lauck's driver's license for six months. Judge Kimbler waived all court costs and did not impose a fine. Mr. Lauck is to report to jail on February 21, 2011 before 4:00 pm.

Ask the Judge Online: How Long Has Ohio Had Jury Trials?

In this episode of Ask the Judge Online Edition, CZ-CLEP's reporter, Kate Feeks, talks with Medina County Common Pleas Judge James Kimbler about the history of jury trials in Ohio. Today's topic: How long has Ohio had jury trials?

Supreme Court Overturns Acquittal Order, Directs Judge to Resentence Lorain Sex Offender

State ex rel. DeWine v. Burge, Slip Opinion No. 2011-Ohio-235.
Lorain App. Nos. 09CA009723 and 09CA009724, 2010-Ohio-3009. Judgment of the court of appeals reversed, and writ of prohibition granted.
O'Connor, C.J., and Lundberg Stratton, O'Donnell, Cupp, and McGee Brown, JJ., concur.
Pfeifer, J., concurs in judgment only.
Lanzinger, J., concurs separately.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2011/2011-Ohio-235.pdf

(Jan. 27, 2011) The Supreme Court of Ohio held today that a Lorain County common pleas court judge acted without jurisdiction when he reopened a 15 year old criminal case based on an error in the court’s original sentencing entry, issued a judgment of acquittal, and released from custody a woman who was serving a prison term for multiple sex offenses.

In a unanimous decision, the Court issued a writ of prohibition ordering Judge James Burge to vacate a 2009 judgment in which he overturned the 1994 convictions of Nancy Smith for multiple sex offenses involving children enrolled in the Lorain Head Start Program. In addition to reinstating Smith’s convictions and prison sentence, today’s order directed Judge Burge to correct the error in Smith’s original sentencing order by making an entry in the court’s journal to reflect that Smith was found guilty by a jury.

In 1994, Smith and co-defendant Joseph Allen were convicted of sex-related crimes involving multiple children who were attending Head Start programs. Both defendants were sentenced to lengthy prison terms. In its sentencing entries, the trial court noted that Smith and Allen had appeared in court for sentencing “after having been found guilty” of the various charges for which they were convicted. Smith filed a timely motion asking the trial court judge to vacate the jury verdict finding her guilty and enter a judgment of acquittal under Crim. R. 29(C). That rule permits a trial judge to vacate a jury verdict of conviction if the judge finds that the evidence presented by the state was not sufficient to support a conviction. The trial court denied Smith’s motion. Both Smith and Allen appealed their convictions and sentences, which were affirmed by the 9th District Court of Appeals.

In 2008, Smith filed a motion in the trial court seeking reconsideration of her sentence. In that motion, she argued that the sentencing entry made by the trial court in her case did not comply with Crim.R. 32(C) because the entry did not state the manner of her conviction (i.e. whether she was convicted after entering guilty pleas, was found guilty by a judge following a bench trial or was found guilty by a jury.) Allen filed a similar petition for resentencing.

Judge Burge, who succeeded the judge who sentenced Allen and Smith to prison, granted the defendants’ motions. Holding that the sentencing entries in the defendants’ cases were defective under Crim.R. 32(C), and therefore the trial court had never entered a final order in those cases, Judge Burge reconsidered and granted Smith’s previously denied motion for a judgment of acquittal under Crim. R. 29(C). Based on that ruling, Judge Burge vacated Smith’s and Allen’s convictions, ordered that they be released from prison, and instructed the Lorain County sheriff to remove them from the county’s list of registered sex offenders.

The Ohio attorney general’s office and Lorain County prosecutor filed an action in the 9th District Court of Appeals asking that court to issue a writ of prohibition vacating Judge Burge’s judgment of acquittal and ordering that the defendants be returned to prison. The court of appeals issued the requested writ reinstating Allen’s convictions, but held that because Smith had filed a timely motion for acquittal under Crim.R. 29(C) following the jury verdict in her case, and there had been no valid final judgment order entered in the trial court’s journal, Judge Burge had acted within his discretion in reconsidering and granting Smith’s Crim.R. 29(C) motion for acquittal. The state appealed to the Supreme Court, challenging the 9th District’s denial of a writ reinstating Smith’s convictions.

In today’s per curiam opinion, the Court wrote that although the original sentencing entry in Smith’s case was defective because it failed to state the manner of her conviction, Judge Burge’s jurisdiction to remedy that error was limited to issuing a “nunc pro tunc” (now for then) entry inserting the omitted information into the court’s journal.

The Court wrote: “Pursuant to Crim.R. 36, ‘[c]lerical mistakes in judgments, orders, or other parts of the record, and errors in the record arising from oversight or omission, may be corrected by the court at any time.’ ... A nunc pro tunc entry is often used to correct a sentencing entry that, because of a mere oversight or omission, does not comply with Crim.R. 32(C). ... Consistent with the treatment of Crim.R. 32(C) errors as clerical mistakes that can be remedied by a nunc pro tunc entry, we have expressly held that ‘the remedy for a failure to comply with Crim.R. 32(C) is a revised sentencing entry rather than a new hearing.’”

“Any failure to comply with Crim.R. 32(C) was a mere oversight that vested the trial court with specific, limited jurisdiction to issue a new sentencing entry to reflect what the court had previously ruled and not to issue a new sentencing order reflecting what, in a successive judge’s opinion, the court should have ruled. These circumstances are thus distinguishable from egregious defects, such as an entry that is not journalized, that permit a court to vacate its previous orders. ... Moreover, the technical failure to comply with Crim.R. 32(C) by not including the manner of conviction in Smith’s sentence is not a violation of a statutorily mandated term, so it does not render the judgment a nullity.”

“(B)y granting judgments of acquittal that the previous trial court judge had not, Judge Burge did far more than simply ‘resentence’ Smith and Allen. Based on the foregoing, Judge Burge patently and unambiguously lacked jurisdiction to vacate Smith’s convictions and sentence when his authority was limited to issuing a corrected sentencing entry that complies with Crim.R. 32(C). ... The court of appeals erred in dismissing appellants’ prohibition claim against Judge Burge concerning Smith’s criminal case. We reverse the judgment of the court of appeals and grant the writ of prohibition to compel Judge Burge to vacate his acquittal of Smith and to issue a corrected sentencing entry that complies with Crim.R. 32(C).”

The opinion was joined by Chief Justice Maureen O’Connor and Justices Evelyn Lundberg Stratton, Terrence O’Donnell, Robert R. Cupp and Yvette McGee Brown. Justice Paul E. Pfeifer concurred in judgment only.

Justice Judith Ann Lanzinger entered a separate concurring opinion in which she noted that today’s decision leaves open the question of whether the entry of an amended sentencing order to correct a Crim.R. 32(C) defect triggers a new right of appeal by the defendant. She wrote: “We have held that a sentencing entry that violates Crim.R. 32(C) renders that entry nonappealable. State ex rel. Culgan v. Medina Cty. Court of Common Pleas ...(2008). In light of the facts of the present case, we eventually will need to determine what effect an appellate decision has when the appellate court’s jurisdiction was premised upon a sentencing entry that violated Crim.R. 32(C) and was thus nonappealable.”

Contacts
Benjamin C. Mizer, 614.466.8980, for Ohio Attorney General Michael DeWine.

Judge James M. Burge, pro se, 440.329.5416.

Defendant Asserting Battered Woman Defense Is Subject to Exam by State's Expert, But Trial Testimony Limited

New Trial Ordered in 2006 Lawrence County Murder Case

State v. Goff, Slip Opinion No. 2010-Ohio-6317.
Lawrence App. No. 07CA17, 2009-Ohio-4914. Judgment of the court of appeals reversed, and cause remanded to the trial court.
Brown, C.J., and Pfeifer, Lundberg Stratton, O'Connor, Lanzinger, and Cupp, JJ., concur.
O'Donnell, J., concurs in judgment.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-6317.pdf

(Dec. 30, 2010) The Supreme Court of Ohio ruled today that when a criminal defendant indicates intent to introduce expert testimony at trial regarding “battered woman syndrome,” the court may compel the defendant to undergo a psychiatric examination by an expert chosen by the state without violating her right against self-incrimination.

The Court held further, however, that the examination and any subsequent trial testimony by the state’s expert based on the compelled examination of the defendant must be limited to information related to battered-woman syndrome and whether the defendant’s actions were affected by the syndrome.

Applying those holdings to a Lawrence County case, the Court voted 7-0 to vacate the aggravated murder conviction of Megan Goff for the 2006 shooting death of her husband and ordered that she receive a new trial. The Court held that Goff’s constitutional rights were violated when the trial judge allowed the state’s expert to testify about statements Goff made during a compelled psychiatric examination that went beyond battered woman syndrome, and that were used by the state to undermine her credibility. The Court’s lead opinion was written by Justice Paul E. Pfeifer.

After what she described as years of psychological abuse, Goff, who had filed domestic violence charges and obtained a civil protection order against her husband, William Goff, moved out of their marital home along with their two children in January 2006. The report of the sheriff’s officers who responded to the domestic violence complaint indicated that they had removed 63 guns from the house, many of them loaded. After a March 17, 2006 phone conversation with her husband in which she testified he stated he intended to kill her and the children on March 20, Goff testified that she returned to their home the next day to try to “calm him down.” Instead of reducing tensions, Goff testified her husband repeated his threats to kill her and the children.

At 7 p.m. that evening, Goff called 9-1-1 and told police she had shot her husband. She told the 9-1-1 operator that even though her husband was motionless on the floor, she was afraid that he would kill her. Investigators determined that Goff had shot her husband 15 times in the head and upper torso, emptying two guns.

She was charged with aggravated murder. When they learned that Goff’s attorneys planned to assert that she acted in self-defense and would introduce expert testimony at trial about battered woman syndrome, the state asked the court to order Goff to undergo a psychological examination by the state’s expert. Over the objection of Goff’s lawyers, the court ordered her to submit to an examination by the state’s expert, Dr. Phillip Resnick.

At trial, Goff’s expert testified that in his opinion she suffered from battered woman syndrome and believed that her life was in imminent danger at the time she shot her husband. Dr. Resnick testified that he had been unable to form an opinion regarding whether Goff suffered from battered woman syndrome, but over repeated defense objections then recounted a number of statements made by Goff during his compelled examination of her about events surrounding the shooting, pointing out what he characterized as inconsistencies between those statements and Goff’s earlier answers to questions posed by police during their investigation. At the conclusion of evidence, the judge rejected Goff’s claim of self-defense, found her guilty of murder, and sentenced her to a prison term of from 33 years to life.

Goff appealed, arguing that the trial court violated her constitutional right against self-incrimination by compelling her to submit to examination by the state’s expert. She also argued that her due process rights were violated by the trial court’s admission of testimony by the state’s expert that was not limited to questions about her mental state but also asked detailed factual questions about events surrounding the shooting. The 4th District Court of Appeals upheld the trial court’s action, holding that by raising the argument that she acted in self-defense and offering expert testimony that she suffered from battered woman syndrome, Goff had waived her right not to answer questions from the state’s psychologist exploring her mental state and her actions allegedly arising from that mental state. Goff sought and was granted Supreme Court review of the 4th District’s decision.

In today’s decision, Justice Pfeifer focused first on Goff’s constitutional challenge to the court order compelling her to be examined by the state’s psychiatric expert. He cited the only other Ohio court decision addressing the same issue, State v. Manning (1991), holdings by the state supreme courts of Florida, New Hampshire and Nevada, and the U.S. Supreme Court’s decisions in Estelle v. Smith (1981) and Buchanan v. Kentucky (1987). Each of those cases, Justice Pfeifer wrote, support the proposition that a defendant offering expert testimony about his or her mental state must submit to a limited psychiatric examination by an expert acting for the state, and that such an examination does not violate the defendant’s constitutional right against self-incrimination.

“Based on the above authority,” wrote Justice Pfeifer, “we conclude that when a defendant demonstrates an intention to use expert testimony from a psychiatric examination to establish that battered-woman syndrome caused in her ‘a bona fide belief that she was in imminent danger of death or great bodily harm and that her only means of escape was the use of force,’ ... i.e., to use testimony on battered-woman syndrome to prove the second element of self-defense, a court may compel the defendant to submit to an examination by another expert without violating the defendant’s rights under Section 10, Article I of the Ohio Constitution and the Fifth Amendment to the United States Constitution. By putting her mental state directly at issue and introducing expert testimony based upon her own statements to the expert, the defendant opens the door to a limited examination by the state’s expert concerning battered-woman syndrome and its effect on the defendant’s behavior. Courts have the inherent authority to preserve fairness in the trial process, and allowing the defendant to present expert testimony on the specific effects of battered-woman syndrome on the defendant while denying the prosecution the ability to introduce such evidence would unfairly handicap the prosecution and prevent the trier of fact from making an informed decision. We thus conclude that the trial court did not err in ordering Resnick’s examination of Goff in this case.”

With regard to the actual testimony of Dr. Resnick at Goff’s trial, however, Justice Pfeifer wrote: “The limitation on a defendant’s bedrock constitutional right against self-incrimination must be carefully tailored to avoid any more infringement than is necessary than to ensure a fair trial. The paramount concern of fairness of the trial requires only that the state be given the same opportunity to present testimony on battered-woman syndrome as the defendant. ... When the expert in Estelle testified as to matters beyond the purpose of the compelled examination, the court found a violation of the defendant’s Fifth Amendment right. The court found that the expert’s ‘role changed and became essentially like that of an agent of the State recounting unwarned statements made in a postarrest custodial setting.’”

“We find that Resnick’s role changed in this case in a manner similar to the expert’s role in Estelle. Psychiatric testimony is one thing—testifying about discrepancies regarding the defendant’s recitation of facts and questioning the truth of her representations regarding her own level of fear are more akin to ‘recounting unwarned statements made in a postarrest custodial setting.’ ... R.C. 2901.06 describes the type of testimony appropriate in a case involving battered-woman syndrome: testimony about the syndrome in general, testimony regarding whether the defendant experienced the syndrome, and testimony concerning whether the syndrome accounts for the requisite belief of imminent danger of death or great bodily harm to justify the use of the force in question. Resnick testified that he was unable to form an opinion on whether Goff was symptomatic of battered-woman syndrome. He thus did not have much to offer as expert testimony on the issue about which he was called to testify. Instead, he testified at length about inconsistencies in statements Goff had made to him compared to other evidence the state had provided him. Armed with over 40 items of evidence provided by the state, he essentially became another cross-examiner of Goff and reported to the court areas where he found her testimony wanting.”

“We conclude that although the trial court did not err in ordering a psychiatric examination of Goff, the examination and subsequent testimony established that Resnick exceeded the boundaries of what was necessary to provide a level playing field between the state and the defense as to expert testimony. Resnick went beyond determining whether Goff suffered from battered-woman syndrome; “his role changed and became essentially like that of an agent of the State recounting unwarned statements made in a postarrest custodial setting.”... As in Estelle, ‘[t]he Fifth Amendment privilege, therefore, is directly involved here because the State used as evidence against respondent the substance of [her] disclosures during the pretrial psychiatric examination,’ and ‘the results of that inquiry were used by the State for a much broader objective that was plainly adverse to respondent.’”

“We therefore find that Resnick’s testimony violated Goff’s right against self-incrimination guaranteed by Section 10, Article I of the Ohio Constitution and the Fifth Amendment to the United States Constitution. Accordingly, we reverse the judgment of the court of appeals and remand the matter to the trial court.”

Justice Pfeifer’s opinion was joined by Chief Justice Eric Brown and Justices Evelyn Lundberg Stratton, Maureen O’Connor, Judith Ann Lanzinger and Robert R. Cupp.

Justice Terrence O’Donnell entered a separate opinion in which he concurred with the majority’s judgment that Goff’s conviction should be vacated because her Fifth Amendment right against self-incrimination was violated. He disagreed, however with the majority holding that a court may compel a criminal defendant asserting battered woman syndrome as an element of self-defense to submit to a state-requested psychiatric examination. He noted that the General Assembly has enacted statutes specifically authorizing a defendant to introduce expert testimony relative to battered woman syndrome to establish an element of self-defense (R.C. 2901.06) and to introduce such testimony in support of a plea of not guilty by reason of insanity (R.C. 2945.392), but has authorized the courts to order a psychiatric evaluation of a defendant only in the context of establishing competency or an insanity defense (R.C. 2945.371(A)).

Justice O’Donnell wrote: “Accordingly, the General Assembly could have provided for court ordered state mental examinations in all cases where evidence of battered woman’s syndrome is presented by a defendant, but it chose not do so. ... In my view, the omission of the opportunity for a prosecutor to seek an examination of a defendant asserting battered woman’s syndrome as part of the affirmative defense of self-defense in R.C. 2945.371 indicates legislative intent to limit mental examinations involving battered woman’s syndrome to circumstances involving competency or an insanity defense. Thus, the state should be precluded from obtaining a mental examination in this case because the General Assembly has not authorized such an exam to be conducted.”

Contacts
James B. Collier Jr., 740.533.4360, for the state and Lawrence County prosecutor's office.

Paula M. Brown, 614.464.2000, for Megan Goff.

Court Clarifies Application of 'Inferred Intent' Doctrine to Intentional Acts Exclusion in Insurance Policy

Doctrine Not Applicable to Teens Who Placed Decoy Deer in Roadway

Allstate Ins. Co. v. Campbell, Slip Opinion No. 2010-Ohio-6312.
Franklin App. Nos. 09AP-306, 09AP-307, 09AP-308, 09AP-309, 09AP-318, 09AP-319, 09-AP320, and 09AP-321, 2009-Ohio-6055. Judgment of the court of appeals affirmed in part and reversed in part, and cause remanded to the trial court.
O'Connor and Lanzinger, JJ., concur.
Brown, C.J., and Pfeifer, J., concur in the syllabus paragraphs and in part of the judgment.
Lundberg Stratton, O'Donnell, and Cupp, JJ., concur in the first syllabus paragraph and in part of the judgment.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-6312.pdf

(Dec. 30, 2010) The Supreme Court of Ohio ruled today that when an insurance policy excludes coverage for intentional acts, the doctrine of “inferred intent” can be applied in cases other than those involving homicide or sexual molestation, however inferred intent applies only where an insured person’s intentional act and the resulting harm are intrinsically linked, so that the act necessarily results in the harm.

Applying that analysis to a Hardin County case, the Court held that inferred intent should not have been applied to grant summary judgment to four insurance companies seeking to deny coverage for damages caused by a teenage prank. The Court’s lead opinion, written by Justice Judith Ann Lanzinger partially affirmed and partially reversed a ruling by the 10th District Court of Appeals.

On the evening of November 18, 2005, a group of teenage boys, including Dailyn Campbell, Jesse Howard, and Corey Manns, stole a lightweight Styrofoam target deer typically used for shooting or archery. The boys fastened a piece of wood to the target so that it could stand upright. Along with Carson Barnes, they then placed it just below the crest of a hill in Hardin County on County Road 144, a hilly and curvy two-lane road with a speed limit of 55 miles per hour. They put the target on the road after dark – between 9:00 and 9:30 p.m. – in a place in which drivers would be unable to see it until they were 15 to 30 yards away. The boys then remained in the area so that they could watch the reactions of motorists. About five minutes after the boys placed the target in the road, appellee Robert Roby drove over the hill. Roby took evasive action to avoid the decoy, but ultimately lost control of his vehicle, which left the road, overturned, and came to rest in a nearby field. The accident caused serious injuries to both Roby and his passenger, Dustin Zachariah.

Roby and Zachariah filed suits in the Franklin County Court of Common Pleas against the boys, their parents, and their insurance companies, which included Allstate, Erie Insurance Exchange, Grange Mutual Casualty Co. and American Southern Insurance Company, seeking recovery for the damages sustained in the accident.

The insurers filed declaratory judgment actions seeking a declaration that, based on “intentional acts” exclusions in their respective policies, they were under no duty to defend or indemnify their insureds, the juveniles and their parents, against the Roby and Zachariah lawsuits. After consolidating the declaratory judgment actions, the trial court granted the insurance companies’ motions for summary judgment. Although the court did not find that the boys directly intended to cause harm, it inferred their intent as a matter of law, based in part on the finding that their conduct was substantially certain to result in harm. The trial court thus concluded that none of the insurance policies provided coverage and that none of the insurers had a duty to defend or indemnify its insureds against the damage claims asserted by Roby and Zachariah.

The juveniles and their parents appealed. On review, the 10th District Court of Appeals reversed and remanded the case to the trial court for further proceedings. The appellate panel held that none of the four insurance companies was entitled to summary judgment because there were genuine issues of material fact regarding whether the boys intended to cause harm when they placed the deer target in the road, whether harm was substantially certain to result from their actions, and whether those actions fall within the scope of their individual insurance policies. The court of appeals concluded that the boys’ actions did not support an objective inference of intent to injure as a matter of law.

The insurance companies sought and were granted Supreme Court review of the 10th District’s ruling.

In today’s lead opinion, Justice Judith Ann Lanzinger noted that homeowners’ insurance policies typically provide coverage for harm accidentally caused by an insured party, but contain language stating that the insurer will not be liable for harm intentionally caused by the insured. She explained that the doctrine of inferred intent has evolved through several Ohio Supreme Court decisions holding that certain conduct by an insured is so inherently harmful that there can be no question those acts are intended to cause injury. − and therefore damages caused by the conduct are presumptively excluded from coverage under an insurance policy’s intentional acts exclusion.

Justice Lanzinger noted that the doctrine of inferred intent was implicitly recognized in Preferred Risk Ins. Co. v. Gill (1987) where the Court held that no proof of subjective intent to cause injury was necessary to deny coverage when an insured sought coverage for civil claims arising from his aggravated murder of a child.

The first explicit recognition of the doctrine occurred in Gearing v. Nationwide Ins. Co. (1996).
“Gearing involved a declaratory judgment action in which an insured sought a declaration that the insurance company was obligated to defend him in a civil suit arising from his alleged sexual molestation of three girls,” wrote Justice Lanzinger. “We affirmed the judgment of the court of appeals, holding that the insurance company owed no duty to defend the insured. ... ”

“In Gearing, the insurance policy had provided an exclusion for bodily injury or property damage that is ‘expected or intended by the insured.’ ... ”

“We concluded, ‘Incidents of intentional acts of sexual molestation of a minor do not constitute “occurrences” for purposes of determining liability insurance coverage, as intent to harm inconsistent with an insurable incident is properly inferred as a matter of law from deliberate acts of sexual molestation of a minor.’ ... ”

“In adopting the doctrine of inferred intent only in the context of sexual-molestation cases, we did not address the question of whether intent may be inferred in cases involving acts other than sexual molestation or murder. Furthermore, as a result of this limited adoption of the rule, we did not enunciate a clear standard for courts to apply in determining whether a certain act gives rise to an inference of intent.”

Justice Lanzinger also pointed to two cases in which this Court held that inferred intent did not apply to presumptively preclude insurance coverage: Physicians Insurance Co. of Ohio v. Swanson (1991), in which a minor and his parents were sued for his firing a BB gun towards some teenagers from approximately 70 to 100 feet away, and Buckeye Union Ins. Co. v. New England Ins. Co. (1999), in which a policyholder sought tort damages from an insurer based on the company’s bad-faith denial of a claim.

“Limiting the scope of the doctrine is appropriate because the rule is needed only in a narrow range of cases – those in which the insured’s testimony on harmful intent is irrelevant because the intentional act could not have been done without causing harm. Thus, an insured’s intent to cause injury or damage may be inferred only when that harm is intrinsically tied to the act of the insured – i.e., the action necessitates the harm. The doctrine of inferred intent does not apply only to cases arising from acts of murder or sexual molestation. For example, intent could hypothetically be inferred in certain felonious-assault or rape cases, where the intentional acts necessarily cause harm; however, courts should be careful to avoid applying the doctrine in cases where the insured’s intentional act will not necessarily result in the harm caused by that act.”

Applying that analysis to the lower court rulings in this case, Justice Lanzinger wrote: “The present case is similar to Swanson and Buckeye Union. We cannot say as a matter of law that the act of placing a target deer in a road in the manner done here necessarily results in harm. Indeed, other cars had passed by and avoided the target. While the boys’ act was ill-conceived and irresponsible and resulted in serious injuries, the action and the harm are not intrinsically tied the way they are in murder and sexual molestation. We accordingly conclude that while the doctrine of inferred intent may apply to actions other than murder or sexual molestation, it does not apply in this case. … ”

“We now clarify that the doctrine of inferred intent applies only in cases in which the insured’s intentional act and the harm caused are intrinsically tied so that the act has necessarily resulted in the harm. Because this test provides a clearer method for determining when intent to harm should be inferred as a matter of law, we hold that courts are to examine whether the act has necessarily resulted in the harm – rather than whether the act is substantially certain to result in harm. … ”

“Because we determine that under the circumstances of this case, intent to harm may not be inferred as a matter of law, we affirm the judgment of the court of appeals on this point and conclude that the trial court must conduct a factual inquiry on remand to determine whether a duty to defend and indemnify arises from the Allstate, Grange, and Erie policies.”

“The Allstate, Grange, and Erie polices each contain exclusionary language stating that the insurers will not cover harm expected or intended by an insured. Because we do not infer the insureds’ intent to harm as a matter of law and the boys deny that harm was intended or expected, whether the injury was expected or reasonably expected is an issue to be determined by the trier of fact. ... ”

“An insurer’s motion for summary judgment may be properly granted when intent may be inferred as a matter of law. In cases such as this one, where the insured’s act does not necessarily result in harm, we cannot infer an intent to cause injury as a matter of law. We therefore hold that summary judgment is not proper. In a declaratory action like this, the trier of fact on remand must weigh the facts in evidence to determine whether the boys intended or expected harm and, consequently, whether the insurance agreements provide coverage in this case.”

Finally, Justice Lanzinger noted that, in contrast to the language of the Allstate, Grange and Erie policies at issue in the case, the American Southern policy issued to the Campbell family excludes coverage for bodily injury or property damage “which results directly or indirectly from ... an intentional act of any insured.” Because the broad language of that exclusion is not limited to harm “expected or intended” by an insured, Justice Lanzinger wrote, “we must conclude that as a matter of law, American Southern is under no duty to defend or indemnify Dailyn Campbell or his family for any liability resulting from his intentional acts in participating in the events at issue in this case.”

Justice Lanzinger’s opinion was joined in its entirety by Justice Maureen O’Connor.

Justice Paul E. Pfeifer entered a separate opinion, joined by Chief Justice Eric Brown, in which he
concurred in the Court’s syllabus holdings and in all of the judgment except the portion differentiating the American Southern policy from the three other companies’ policies. Justice Pfeifer wrote that under the lead opinion’s broad reading of the American Southern policy language, that policy would exclude coverage “for any injury that resulted from any waking, nonreflexive act of an insured.”

Justice Terrence O’Donnell entered a separate opinion, joined by Justice Evelyn Lundberg Stratton, in which he only concurred in paragraph one of the syllabus, holding that the inferred intent doctrine is not limited to cases involving sexual molestation or homicide. He dissented, however, from the majority’s creation of a new test for inferred intent, where, in syllabus two of the majority opinion, it states “the insured’s intentional act and the harm caused are intrinsically tied so that the act has necessarily resulted in the harm.”Instead, Justice O’Donnell urged the court to adhere to its existing precedent as enunciated in Gearing, that inferred intent applies when an insured’s intentional act was “substantially certain to result in injury.”

Applying the Gearing standard to this case, Justice O’Donnell wrote: “Intent to injure is properly inferred as a matter of law from the act of placing an obstruction out of the line of sight of a motorist below the crest of a grade at night, in the middle of a lane of eastbound traffic on a 55 m.p.h. highway, because that act is substantially certain to cause injury. Here, the teens anticipated injury because they repeatedly drove past the deer to witness the reactions of oncoming motorists as they encountered the deer, and their deposition testimony is that they witnessed Roby drive past them and witnessed the aftermath of the crash. These actions more than suggest that they knew that injury would occur, they anticipated it and waited for it. ... Because their deliberate actions were designed to result in injury substantially certain to occur, the injury to Roby and Zachariah was not an accident, and thus not an occurrence as defined by the language in these policies. ... Accordingly, the insurance companies should have no duty to defend or indemnify their insured because these injuries resulted from an intentional act, and the policies exclude coverage for intentional acts. Thus, I would reverse the judgment of the Tenth District Court of Appeals and reinstate the judgment of the trial court.”

Justice Robert R. Cupp also wrote separately. In his opinion, Justice Cupp concurred with the Court’s syllabus holding that the inferred intent doctrine is applicable to cases not involving homicide or sexual molestation. He also agreed with the lead opinion’s holdings that Erie and Grange were not entitled to summary judgment in the case based on the intentional acts exclusions in their policies, and that American Southern was entitled to summary judgment based on the different wording of the intentional acts exclusion in its policy.

Justice Cupp wrote that, unlike the majority, he would also hold that the language of the Allstate policy exclusion for injury or property damage “which may reasonably be expected to result from the intentional or criminal acts or omissions of” an insured was sufficiently similar to the American Southern policy language to support the trial court’s grant of summary judgment in favor of Allstate.

Contacts
Daniel J. Hurley, 614.229.4492, for Allstate Insurance Company.

Keith M. Karr, 614.478.6000 and Paul O. Scott, 614.460.1633, for Robert Roby and Dustin Zachariah.

Courts Must Consider Defendant's Conduct in Determining Whether Crimes are 'Allied Offenses'

Court Overrules Prior Decisions Requiring Abstract Comparison of Crime Elements

State v. Johnson, Slip Opinion No. 2010-Ohio-6314.
Hamilton App. Nos. C-080156 and C-080158, 2009-Ohio-2568. Certified question answered in the affirmative, judgment of the court of appeals reversed, and cause remanded to the trial court.
Brown, C.J., and Pfeifer and Lundberg Stratton, JJ., concur.
O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur in the syllabus and judgment.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-6314.pdf

(Dec. 29, 2010) In a decision overruling its 1999 holding in State v. Rance, the Supreme Court of Ohio held today that when determining whether two criminal offenses arising out the same conduct are “allied offenses of similar import” that must be merged for sentencing, the state’s trial courts must consider the conduct of the accused in each case, and not merely compare the elements of the two crimes in the abstract.

Applying that holding, the Court ruled that under the facts of a Hamilton County case, separate convictions imposed against Fred Johnson of Cincinnati for child endangering and felony murder predicated on child endangering were allied offenses that should have been merged into a single conviction subject to a single sentence.

The Court’s lead opinion, written by Chief Justice Eric Brown, reversed a decision of the 1st District Court of Appeals.

Under Ohio’s “allied offenses” statute, R.C. 2941.25, and prior court decisions interpreting that statute, when a defendant is charged with two different crimes arising from the same conduct and is found guilty on both counts, the court must determine whether the crimes are “allied offenses of similar import.” If the crimes are found to be “allied offenses,” the court must merge them into a single conviction and impose a single sentence.

In this case, Fred Johnson of Cincinnati was charged with the beating death of seven-year-old Milton Baker. Among multiple counts in his indictment, Johnson was charged with child endangering under R.C. 2919.22(B)(1) and felony murder during the commission of child endangering under R.C. 2903.02(B).

The trial court found Johnson guilty of both offenses, and imposed a separate sentence for each count. Johnson appealed, arguing that child endangering and felony murder premised on child endangering are allied offenses under R.C. 2941.25 and therefore should have been merged for sentencing. The 1st District Court of Appeals affirmed the judgment of the trial court, holding that the two offenses at issue in Johnson’s case are not allied offenses subject to merger. The 1st District subsequently certified that its ruling on was in conflict with a decision of the 5th District Court of Appeals, State v. Mills (2009), holding that the same two crimes addressed in Johnson’s case are allied offenses subject to merger. The Supreme Court agreed to review the case in order to resolve the conflict between appellate districts.

In today’s lead opinion, Chief Justice Brown wrote “In 1972, the General Assembly enacted R.C. 2941.25, in order to guide courts in the determination of offenses subject to merger. … R.C. 2941.25 provides: ‘(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one. (B) Where the defendant’s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.’”

In State v. Logan (1979), Chief Justice Brown noted, the Court set forth what he characterized as a “cohesive standard” for trial courts to apply in determining whether multiple crimes are subject to merger as allied offenses. Quoting Logan, he wrote: “In interpreting R.C. 2941.25(A), we held: ‘[I]n order for two crimes to constitute allied offenses of similar import, there must be a recognized similarity between the elements of the crimes committed. The offenses and their elements must correspond to such a degree that commission of the one offense will result in the commission of the other. In addition … the defendant, in order to obtain the protection of R.C. 2941.25(A), must show that the prosecution has relied upon the same conduct to support both offenses charged.’”

“Several years later, we summarized the then-familiar Logan two-step approach to R.C. 2941.25 in State v. Blankenship (1988), … ‘In the first step, the elements of the two crimes are compared. If the elements of the offenses correspond to such a degree that the commission of one crime will result in the commission of the other, the crimes are allied offenses of similar import and the court must then proceed to the second step. In the second step, the defendant's conduct is reviewed to determine whether the defendant may be convicted of both offenses.’”

In State v. Rance (1999), Chief Justice Brown said the Court tried to clear up confusion about whether, in comparing the elements of two crimes, trial courts “‘should contrast the statutory elements in the abstract or consider the particular facts of the case.’ We determined that we should ‘settle this issue for Ohio courts, and we believe[d] that comparison of the statutory elements in the abstract is the more functional test, producing “clear legal lines capable of application in particular cases.”’”

Looking back at a line of decisions in which the Court has attempted to apply the Rance “abstract comparison of the elements” test over the past 11 years, the Chief Justice cited multiple cases in which that standard has had to be modified, reinterpreted and limited by exceptions in order to avoid absurd results.

As a recent example, he cited the Court’s 2008 decision in State v. Brown. In Brown, he wrote, “the defendant stabbed her boyfriend once in the abdomen. She was convicted of two forms of felonious assault, one for a use of deadly weapon and one for causing serious bodily harm. Deadly-weapon felonious assault requires the use of a deadly weapon, but not serious bodily harm, whereas the serious-physical-harm felonious-assault offense requires serious physical harm, but no deadly weapon. … Thus, under the Cabrales/Rance analysis, Brown’s convictions would stand because, in the abstract, the commission of one of type of felonious assault would not necessarily result in the commission of the other. The absurdity is patent: Brown could have been convicted for two felonious assaults for the same, single stabbing under the Cabrales/Rance standard.”
As a result of the Court’s need to repeatedly reinterpret and create exceptions to the Rance “abstract comparison of the elements” test, the Chief Justice wrote, “(t)he current allied-offenses standard is so subjective and divorced from the language of R.C. 2941.25 that it provides virtually no guidance to trial courts and requires constant ad hoc review by this court. It is time to return our focus to the plain language and purposes of the merger statute.”

“R.C. 2941.25 itself instructs us to look at the defendant’s conduct when evaluating whether his offenses are allied. … We have consistently recognized that the purpose of R.C. 2941.25 is to prevent shotgun convictions, that is, multiple findings of guilt and corresponding punishments heaped on a defendant for closely related offenses arising from the same occurrence. … This is a broad purpose and ought not to be watered down with artificial and academic equivocation regarding the similarities of the crimes. … Given the purpose and language of R.C. 2941.25, and based on the ongoing problems created by Rance, we hereby overrule Rance to the extent that it calls for a comparison of statutory elements solely in the abstract under R.C. 2941.25. When determining whether two offenses are allied offenses of similar import subject to merger under R.C. 2941.25, the conduct of the accused must be considered.”

As guidance to trial courts in future cases where merger of multiple counts for sentencing is at issue, the Chief Justice wrote: “Under R.C. 2941.25, the court must determine prior to sentencing whether the offenses were committed by the same conduct. Thus, the court need not perform any hypothetical or abstract comparison of the offenses at issue in order to conclude that the offenses are subject to merger. In determining whether offenses are allied offenses of similar import under R.C. 2941.25(A), the question is whether it is possible to commit one offense and commit the other with the same conduct, not whether it is possible to commit one without committing the other. … If the multiple offenses can be committed by the same conduct, then the court must determine whether the offenses were committed by the same conduct, i.e., ‘a single act, committed with a single state of mind.’”

“If the answer to both questions is yes, then the offenses are allied offenses of similar import and will be merged. Conversely, if the court determines that the commission of one offense will never result in the commission of the other, or if the offenses are committed separately, or if the defendant has separate animus for each offense, then, according to R.C. 2941.25(B), the offenses will not merge.”

Applying that standard to the facts of Johnson’s case, Justice Brown wrote: “In this case the crimes of felony murder and child endangering are allied offenses ... Johnson’s beating of Milton constituted child abuse under R.C. 2919.22(B)(1). That child abuse formed the predicate offense for the felony murder under R.C. 2903.02(B). The conduct that qualified as the commission of child abuse resulted in Milton’s death, thereby qualifying as the commission of felony murder.”

Justices Paul E. Pfeifer and Evelyn Lundberg Stratton joined Chief Justice Brown’s opinion in its entirety. Justices Maureen O’Connor, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp concurred in the Court’s judgment reversing the decision of the 1st District, and in the syllabus holding overruling Rance.

Justice O’Connor entered a separate opinion concurring in judgment but stating her belief that the lead opinion did not set forth the appropriate considerations for trial courts to apply in making future determinations about whether separate offenses should be merged. She wrote: “Much of the confusion is caused by the statutory terminology ‘allied offenses of similar import.’ … Our decisions have described the two features of allied offenses of similar import together. … But it may aid understanding to address the statutory terms ‘allied offenses’ and ‘of similar import’ as separate components of the standard in R.C. 2941.25(A).”

“Under the later formulations of State v. Winn … and State v. Harris … (both decided in 2009), offenses are ‘allied’ when their elements align to such a degree that commission of one offense would probably result in the commission of the other offense. Offenses are of ‘similar import’ when the underlying conduct involves similar criminal wrongs and similar resulting harm. The question becomes how to determine whether offenses that stem from the same conduct result in offenses of ‘similar import’ within the meaning of R.C. 2941.25. The significant amount of litigation regarding this question since Rance was decided strongly suggests that instead of examining the elements of the offense solely in the abstract, the analysis under R.C. 2941.25(A) should also examine the defendant’s conduct in the context of determining whether the offenses are of similar import. … Because the trial court does not consider a defendant’s merger argument until after the trier of fact has determined that the defendant is guilty of multiple offenses, the trial court’s consideration of whether there should be merger is aided by a review of the evidence introduced at trial.”

“At trial in this case, the state relied on the same evidence to establish that Johnson’s conduct − severely beating Milton and causing his death − violated both the child-endangering statute (R.C. 2919.22(B)(1)) and the felony-murder statute (R.C. 2903.02(B)). Although there may have been alternative theories that the state considered in pursuing Johnson for endangering and ultimately killing Milton, we are constrained by the record before us and the legal arguments raised in the briefs. Based on that record and those arguments, I am compelled to conclude that the convictions in this case arose from the same conduct that involves similar criminal wrongs and similar resulting harm and, accordingly, are allied offenses of similar import that must merge for the purpose of sentencing pursuant to R.C. 2941.25(A).” Justice O’Connor’s opinion was joined by Justices Pfeifer and Cupp.

Justice Terrence O’Donnell entered a separate opinion concurring with the Court’s judgment and syllabus holding, but emphasizing that in his view the express language of R.C. 2941.25 requires that the “conduct of the defendant” should be considered in determining whether two or more offenses arising from the same occurrence constitute allied offenses of similar import.

Justice O’Donnell wrote: “(T)he proper inquiry is not whether the elements align in the abstract as stated in Rance but, rather, whether the defendant’s conduct, i.e., the actions and behavior of the defendant, results in the commission of two or more offenses of similar or dissimilar import, or two or more offenses of the same or similar kind committed separately or with a separate animus as to each.” Justice O’Donnell’s opinion was joined by Justice Stratton.

Contacts
Philip R. Cummings, 513.946.3012, for the state and Hamilton County Prosecutor's Office.

Lindsey R. Gutierrez, 513.587.2887, for Fred Johnson.

2009 U.S. Supreme Court Decision Does Not Require Ohio to Follow Former Consecutive Sentencing Law

State v. Hodge, Slip Opinion No. 2010-Ohio-6320.
Hamilton App. No. C-080968. Judgment of the court of appeals affirmed.
Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Brown, C.J., dissents.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-6320.pdf

(Dec. 29, 2010) The Supreme Court of Ohio ruled today that: 1) a 2009 U.S. Supreme Court decision does not revive former Ohio statutory requirements for judges imposing consecutive sentences in criminal cases; and 2) defendants sentenced by trial judges who didn’t apply those former provisions are not entitled to resentencing.

The Court’s 6-1 decision, which affirmed a decision of the 1st District Court of Appeals, was authored by Justice Robert R. Cupp.

In July 2008, Kenneth Hodge of Cincinnati entered guilty pleas to five counts of aggravated robbery, each of which included a firearm specification, for his role in the armed robbery of a group of boy scouts and their fathers who were selling Christmas trees in the city’s Northside neighborhood. Pursuant to Ohio’s sentencing procedures that have been in place since the Ohio Supreme Court’s 2006 decision in State v. Foster, the trial judge sentenced Hodge to three years’ imprisonment for each of the robbery counts and an additional three years for the firearm specification. Without making factual findings that would have been required under the pre-Foster statutes, the judge ordered that each of Hodge’s sentences be served consecutively. The result was a total prison term of 18 years.

Hodge appealed his sentence. In January 2009, while Hodge’s appeal was pending before Ohio’s 1st District Court of Appeals, the U.S. Supreme Court announced its decision in Oregon v. Ice. In that decision, a 5-4 majority upheld as constitutional an Oregon criminal sentencing statute similar to Ohio’s pre-Foster statute that required trial judges to make factual findings regarding the seriousness of the crime, the victim’s likelihood of reoffending and other factors before ordering that a defendant’s sentences for multiple offenses be served consecutively. Arguing that the Ice decision had overruled the Supreme Court of Ohio’s holding in Foster with regard to consecutive sentences, and that Ice had therefore reinstated the requirement of judicial fact-finding that Foster had invalidated, Hodge asked the 1st District to remand his case to the trial court and order that he be resentenced pursuant to the requirements of Ohio’s pre-Foster statutes.

The court of appeals rejected Hodge’s argument and affirmed the trial court’s imposition of consecutive sentences as valid. In its judgment entry, the 1st District stated that because the Ice decision directly addressed only Oregon’s sentencing statute, Foster remained binding precedent for Ohio courts until and unless the Supreme Court of Ohio ruled on the applicability of Ice to this state’s criminal sentencing procedures. Hodge sought and was granted Supreme Court review of the 1st District’s decision.

Writing for the Court in today’s decision, Justice Cupp acknowledged that “the decision in Ice undermines some of the reasoning in the Foster decision that judicial fact-finding in the imposition of consecutive sentences violates the Sixth Amendment. Although there are differences between the Ohio provisions struck down in Foster and the Oregon statutes upheld in Ice, these distinctions are immaterial in light of the broad reasoning employed in Ice.”

“Although we acknowledge that Ice has an impact on Foster, we do not accept Hodge’s argument that the decision in Ice automatically and retroactively reinstates the consecutive-sentencing statutes invalidated in Foster,” Justice Cupp wrote. “Hodge’s argument is based on the fact that the severed statutory provisions invalidated in Foster have never been repealed by the General Assembly.”

In explaining the Court’s reasons for rejecting Hodge’s arguments, Justice Cupp called the impact of Ice on Ohio law “collateral.” He noted that “there is no constitutional requirement that a judge make findings of fact before imposing consecutive sentences.” He also cited a number of “disruptive effects” that would result from reviving statutory provisions on consecutive sentences, a lack of prior case law cited by Hodge regarding the concept of automatic revival, and the fact that Foster also severed other statutory provisions that were not implicated in Ice.

“We are unable to say that the General Assembly would intend the consecutive-sentencing provisions to be resurrected when the other judicial fact-finding provisions, which supported the overall sentencing framework, remain constitutionally invalid and excised,” wrote Justice Cupp. “It would be speculative to assume that the General Assembly would wish to reinstate only the consecutive-sentencing provisions when the other provisions struck down in Foster may not be reinstated also. This militates in favor of requiring positive action by the General Assembly to indicate its intent and desire in a complicated area of the law.”

Justice Cupp’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell and Judith Ann Lanzinger.

Chief Justice Eric Brown entered a dissent in which he agreed with the majority that Ice does not overrule Foster and that Ice does not automatically revive or reinstate the consecutive-sentencing provisions. However, he pointed out that Ice renders the Foster court’s analysis incorrect.

“The United States Supreme Court’s holding in Ice makes it clear that the Foster holding regarding the unconstitutionality of the consecutive-sentencing provisions of the comprehensive reform enacted by [S.B. 2] was in error,” he wrote. “The judicial fact-finding required by R.C. 2929.14(E)(4) and 2929.41(A) before the imposition of consecutive sentences is not now unconstitutional nor was it ever unconstitutional. Given that R.C. 2929.14(E)(4) and 2929.41(A) have not been repealed, a conclusion that the Foster analysis regarding consecutive sentences was in error must result in the overruling of those infirm portions of Foster, the removal of our judicially imposed holding that these provisions are unenforceable, and the renewed enforceability of R.C. 2929.14(E)(4) and 2929.41(A).”

He continued: “The majority all but concedes that it erred in holding in Foster that R.C. 2929.14(E)(4) and 2929.41(A) are unconstitutional because they require judicial finding of facts not proven to a jury beyond a reasonable doubt or admitted by the defendant before the imposition of consecutive sentences. Despite this court’s error in Foster, however reasonable it may have been at the time it was issued, the majority essentially refuses to correct this error because it believes it is too inconvenient to do so. In so holding, the majority violates the fundamental principle of separation of powers and ignores the intent of the General Assembly.”

Contacts
Ronald W. Springman Jr., 513.946.3052, for the state and Hamilton County Prosecutor's Office.

Janet Moore, 513.600.4757, for Kenneth Hodge.