Court Holds That Correction Does Not Create a New 'Final Order' In Case
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
State v. Lester, Slip Opinion No. 2011-Ohio-5204.
Auglaize App. No. 2-10-20. Judgment affirmed.
O'Connor, C.J., and Pfeifer and McGee Brown, JJ., concur.
Lundberg Stratton and O'Donnell, JJ., concur in part and dissent in part.
Lanzinger, J., dissents.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2011/2011-Ohio-5204.pdf
(Oct. 13, 2011) The Supreme Court of Ohio ruled today that when a trial court makes a “nunc pro tunc” (now for then) entry in its journal to correct a clerical omission in a prior judgment entry recording a criminal conviction, the correcting entry is not a new “final order” in the case that triggers a new right of appeal by the defendant.
In arriving at its decision, the Court modified its 2008 holding in State v. Baker and held that a judgment of conviction is a final order subject to appeal when it sets forth (1) the fact of the conviction, (2) the sentence, (3) the judge’s signature, and (4) the time stamp indicating that the judgment has been entered in the court’s journal.
The Court’s 4-3 majority opinion, authored by Justice Robert R. Cupp, affirmed a ruling by the 3rd District Court of Appeals.
The case involved Steven Lester of Auglaize County, who was convicted of multiple offenses in a 2006 jury trial and sentenced to a prison term to be followed by a term of postrelease control. In its journal entry recording that judgment, the trial court listed the offenses for which Lester had been convicted and the sentence imposed, but did not indicate whether the convictions were based on a guilty or no-contest plea, findings after a bench trial, or a verdict after a jury trial.
Lester appealed. The 3rd District Court of Appeals vacated part of his sentence because of an error in the postrelease control portion of the sentence. On remand, the trial court imposed the same prison term it had previously imposed and corrected the postrelease control portion of the sentence. In its revised sentencing entry, the court listed the offenses for which Lester had been convicted and the corrected sentence, but again did not indicate what type of court proceeding had resulted in his convictions. Lester filed a new appeal. The court of appeals affirmed the trial court’s sentence.
In April 2010 the trial court, on its own initiative, made a nunc pro tunc entry in its journal adding the information that Lester’s convictions were “pursuant to a verdict at Jury Trial returned on May 16, 2006.”
Lester filed a new notice of appeal, asserting that the insertion of the nunc pro tunc correcting entry in the court’s journal had created a “final order” in his case that triggered a new right of appeal. Prior to briefing, the 3rd District dismissed the appeal based on a finding that, because the nunc pro tunc entry had been made for the sole purpose of correcting a clerical omission to make the trial court’s journal accurately reflect what had actually occurred at trial, the correcting entry did not constitute a final order from which Lester had a right of appeal. Lester sought Supreme Court review of the case, and obtained certification of a conflict between the 3rd District’s ruling in his case and a 2010 decision of the 6th District, State v. Lampkin. The Supreme Court recognized the conflict and accepted Lester’s discretionary appeal.
Writing for the majority in today’s decision, Justice Cupp cited the requirement in Ohio Criminal Rule 32(C) that “(a) judgment of conviction shall set forth the plea, the verdict, or findings, upon which each conviction is based, and the sentence.” He noted that in State v. Baker, a 2008 decision applying Crim.R. 32(C), the Court included language suggesting that a judgment entry should include “the manner of conviction: a guilty plea, a no contest plea upon which the court has made a finding of guilt, a finding of guilt based upon a bench trial, or a guilty verdict resulting from a jury trial.”
“(T)his foregoing sentence appears to have created confusion and generated litigation regarding whether a trial court’s inadvertent omission of a defendant’s ‘manner of conviction’ affects the finality of a judgment entry of conviction,” wrote Justice Cupp.
“(W)e begin by observing that the purpose of Crim.R. 32(C) is to ensure that a defendant is on notice concerning when a final judgment has been entered and the time for filing an appeal has begun to run. ... We further observe that Crim.R. 32(C) clearly specifies the substantive requirements that must be included within a judgment entry of conviction to make it final for purposes of appeal and that the rule states that those requirements ‘shall’ be included in the judgment entry of conviction. These requirements are the fact of the conviction, the sentence, the judge’s signature, and the entry on the journal by the clerk. All of these requirements relate to the essence of the act of entering a judgment of conviction and are a matter of substance, and their inclusion in the judgment entry of conviction is therefore required. Without these substantive provisions, the judgment entry of conviction cannot be a final order subject to appeal under R.C. 2505.02. A judgment entry of conviction that includes the substantive provisions places a defendant on notice that a final judgment has been entered and the time for the filing of any appeal has begun.
“In contrast, when the substantive provisions of Crim.R. 32(C) are contained in the judgment of conviction, the trial court’s omission of how the defendant’s conviction was effected, i.e., the ‘manner of conviction,’ does not prevent the judgment of conviction from being an order that is final and subject to appeal. Crim.R. 32(C) does not require a judgment entry of conviction to recite the manner of conviction as a matter of substance, but it does require the judgment entry of conviction to recite the manner of conviction as a matter of form. In this regard, the identification of the particular method by which a defendant was convicted is merely a matter of orderly procedure rather than of substance. A guilty plea, a no-contest plea upon which the court has made a finding of guilt, a finding of guilt based upon a bench trial, or a guilty verdict resulting from a jury trial explains how the fact of a conviction was effected. Consequently, the finality of a judgment entry of conviction is not affected by a trial court’s failure to include a provision that indicates the manner by which the conviction was effected, because that language is required by Crim.R. 32(C) only as a matter of form, provided the entry includes all the substantive provisions of Crim.R. 32(C).”
Justice Cupp’s opinion was joined by Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, and Evelyn Lundberg Stratton.
Justice Terrence O’Donnell entered a separate opinion, joined by Justice Yvette McGee Brown, in which he concurred with the Court’s holding that a judgment entry of conviction qualifies as a final order under Crim.R. 32(C) without stating the manner of a defendant’s conviction. He disagreed, however, with the majority’s further holding that Crim.R. 32(C) requires that such entries include the manner of a defendant’s conviction as a non-substantive “matter of form.”
Justice O’Donnell wrote: “The plain language of Crim.R. 32(C) requires only that ‘[a] judgment of conviction shall set forth the plea, the verdict, or findings, upon which each conviction is based, and the sentence’; it does not direct a sentencing court to specify the manner of conviction. Rather, our decision in State v. Baker .... inadvertently added the requirement to specify the manner of conviction to Crim.R. 32(C). The majority makes an effort to sidestep this problem but unnecessarily complicates and compounds the error introduced in Baker by retaining a duty on the part of the sentencing court to specify the manner of conviction as a formal requirement. In my view, we should strike that part of Baker requiring sentencing courts to indicate the manner of conviction in the judgment of conviction and bring an end to the needless and meaningless litigation that ithas spawned, requiring appeals and rehearings all over the state.”
Justice Judith Ann Lanzinger entered a separate dissenting opinion in which she wrote: “Crim.R. 32(C) states what a judge shall do to enter a judgment of conviction that is subject to appeal. (In Baker) (w)e explained this rule and held pursuant to its clear wording: ‘A judgment of conviction is a final appealable order under R.C. 2505.02 when it sets forth (1) the guilty plea, the jury verdict, or the finding of the court upon which the conviction is based; (2) the sentence; (3) the signature of the judge; and (4) entry on the journal by the clerk of court.’ ... Lester’s sentencing entry did not contain the first required element. His judgment entry did not state the manner of his conviction − whether obtained through ‘a guilty plea, a no contest plea upon which the court has made a finding of guilt, a finding of guilt based upon a bench trial, or a guilty verdict resulting from a jury trial.’”
“ ... (U)nless Crim.R. 32(C) is amended to change ‘the plea, the verdict, or findings, upon which each conviction is based’ to ‘the fact of the conviction,’ the majority’s conclusion that the current phrase is a merely ‘a matter of form’ contradicts the rule. Plainly, it is as much of a requirement as the other elements. Either Crim.R. 32(C) means what it says or it does not.”
Contacts
Amy Otley Beckett: 419.739.6785, for the state and Auglaize County prosecutor's office.
Alexandra T. Schimmer, 614.995.2273, for the Ohio Attorney General.
Jon W. Oebker, 216.696.4884, for Stephen Lester.
Showing posts with label criminal procedure. Show all posts
Showing posts with label criminal procedure. Show all posts
Monday, October 17, 2011
Monday, October 25, 2010
Judge Kimbler Criminal Sentences for October 21, 2010
On Thursday, October 21, 2010, Judge Kimbler imposed sentences in criminal cases. The names of the defendants and the sentences imposed are as follows:
Christi L. Leprevost, 35, of Whitney Road in Strongsville, Ohio, was put on non-residential community control sanctions for one of Trafficking in Drugs, a fourth degree felony. Judge Kimbler put her under the supervision of the Medina County Adult Probation Department for three years; ordered her driver’s license suspended for six months; ordered her to perform 24 hours of community service; ordered her not to consume or possess alcoholic beverages while on supervision; and ordered her to submit to random drug and alcohol testing. In the event that she violates these conditions, Judge Kimbler ordered a six month prison sentence.
Tyler L. Jones, 46, of Rockwood Avenue in Oil City, Pennsylvania was sentenced to six months in prison for Drug Possession, a fifth degree felony. Judge Kimbler gave him credit for 85 days he spent in the Medina County Jail prior to sentencing. Judge Kimbler also suspended his driver’s license for six months.
Lisa M. Terrill, 29, of Water Street in Wadsworth was sentenced to one year in prison for Theft, a fourth degree felony. Judge Kimbler gave her credit for 92 days served prior to the imposition of her sentence. Although indicted for both Theft and Receiving Stolen Property she could only be sentenced on one of the two counts because they are allied offenses of similar import. The State of Ohio elected to have Judge Kimbler sentence her on the Theft charge.
Zachary R. Howard, 33, of Water Street in Wadsworth, Ohio was sentenced to one year and six months in prison for two counts of Theft, both fourth degree felonies, and one count of Receiving Stolen Property, a fifth degree felony. Judge Kimbler ordered that he serve one year in prison for the two theft charges and six months for the receiving charge. The sentences for the two theft charges run concurrently but the prison sentence for the receiving charge runs consecutively to the other two sentences. Judge Kimbler also gave him credit for 91 days served in the county jail prior to sentencing.
Jennifer F. Seaton, 26 of Wooster Street in Lodi, Ohio was sentenced to eight months in prison for Theft, a fifth degree felony. Judge Kimbler gave her credit for 61 days served in the county jail prior to sentencing.
Desiree M. O’Neill, 25, of Judita Drive in Brunswick, Ohio was sentenced to non-residential community control sanctions for two counts of Drug Trafficking, both fifth degree felonies. Judge Kimbler put her under the supervision of the Medina County Adult Probation Department for five years; ordered her to do 24 hours of community service; ordered her to get a drug-alcohol assessment at Solutions Behavioral Health Center; she is to have no contact with her co-defendant; submit to all drug and alcohol testing and be arrested on first positive finding; and pay court costs, supervision fees, and drug testing fees as ordered by the Court. In the event she violates the conditions of her supervision, she will be sent to prison for two years.
Alex R. Huffman, 25, of Remsen Road in Medina, Ohio was sentenced to non-residential community control sanctions for one count of Unauthorized Use of a Motor Vehicle, a first degree misdemeanor. The sanctions include supervision by the Medina County Adult Probation Department for two years; 24 hours of community service; obtain drug/alcohol counseling through the Veterans’ Administration and follow all treatment recommendations; no possession or consumption of alcoholic beverages while under supervision; pay restitution of $500.00; pay court costs and a community control sanctions fee; and submit to drug and alcoholic testing. In the event that Mr. Huffman violates these conditions he will serve 180 days in the county jail.
Jeffery L. Wiseman, Jr., 30, of Spyglass Hill Drive in Brunswick, Ohio was sentenced for three counts of Drug Trafficking, all fourth degree felonies. Judge Kimbler sentenced him to non-residential community control sanctions. The sanctions include three years of supervision by the Medina County Adult Probation Department; 180 days of home incarceration; drug/alcohol assessment and treatment at a state certified agency; a one year license suspension; payment of court costs and a community control sanction fee; and weekly attendance at AA/NA meetings. Judge Kimbler ordered that if Mr. Wiseman violates these conditions, he will serve an 18 month prison sentence.
Jesse M. Naumilket, 22, of Station Road in Medina, Ohio was sentenced for one count of Drug Trafficking, a fifth degree felony. Judge Kimbler sentenced him to non-residential community control sanctions. These sanctions included three years supervision by the Medina County Adult Probation Department; 24 hours of community service; a six month license suspension; and payment of court costs and a monthly community control sanctions fee. If Mr. Naumilket doesn't comply with the above conditions, he will serve a six month prison term.
Bobby L. Sallee, 27, of Bank Street in Lodi, Ohio was sentenced to one year in prison for Theft and Forgery, both fifth degree felonies. The prison sentences will be served concurrently. Court costs were waived.
Douglas S. Kirtley, 24, of North Geyers Chapel Road in Smithville, Ohio was sentenced for Drug Possession. He was sentenced to a residential community control sanction of up to six months at the Lorain County Community Based Correctional Facility. When he is released he will be under the supervision of the Medina County Adult Probation Department for a three year period. He was also ordered to do 24 hours of community service; obtain a drug-alcohol assessment and abide by all aftercare recommendations; and a six month license suspension. If he violates the terms of his supervision, he will serve a one year prison sentence. Court costs and community control sanction fees were waived.
Christi L. Leprevost, 35, of Whitney Road in Strongsville, Ohio, was put on non-residential community control sanctions for one of Trafficking in Drugs, a fourth degree felony. Judge Kimbler put her under the supervision of the Medina County Adult Probation Department for three years; ordered her driver’s license suspended for six months; ordered her to perform 24 hours of community service; ordered her not to consume or possess alcoholic beverages while on supervision; and ordered her to submit to random drug and alcohol testing. In the event that she violates these conditions, Judge Kimbler ordered a six month prison sentence.
Tyler L. Jones, 46, of Rockwood Avenue in Oil City, Pennsylvania was sentenced to six months in prison for Drug Possession, a fifth degree felony. Judge Kimbler gave him credit for 85 days he spent in the Medina County Jail prior to sentencing. Judge Kimbler also suspended his driver’s license for six months.
Lisa M. Terrill, 29, of Water Street in Wadsworth was sentenced to one year in prison for Theft, a fourth degree felony. Judge Kimbler gave her credit for 92 days served prior to the imposition of her sentence. Although indicted for both Theft and Receiving Stolen Property she could only be sentenced on one of the two counts because they are allied offenses of similar import. The State of Ohio elected to have Judge Kimbler sentence her on the Theft charge.
Zachary R. Howard, 33, of Water Street in Wadsworth, Ohio was sentenced to one year and six months in prison for two counts of Theft, both fourth degree felonies, and one count of Receiving Stolen Property, a fifth degree felony. Judge Kimbler ordered that he serve one year in prison for the two theft charges and six months for the receiving charge. The sentences for the two theft charges run concurrently but the prison sentence for the receiving charge runs consecutively to the other two sentences. Judge Kimbler also gave him credit for 91 days served in the county jail prior to sentencing.
Jennifer F. Seaton, 26 of Wooster Street in Lodi, Ohio was sentenced to eight months in prison for Theft, a fifth degree felony. Judge Kimbler gave her credit for 61 days served in the county jail prior to sentencing.
Desiree M. O’Neill, 25, of Judita Drive in Brunswick, Ohio was sentenced to non-residential community control sanctions for two counts of Drug Trafficking, both fifth degree felonies. Judge Kimbler put her under the supervision of the Medina County Adult Probation Department for five years; ordered her to do 24 hours of community service; ordered her to get a drug-alcohol assessment at Solutions Behavioral Health Center; she is to have no contact with her co-defendant; submit to all drug and alcohol testing and be arrested on first positive finding; and pay court costs, supervision fees, and drug testing fees as ordered by the Court. In the event she violates the conditions of her supervision, she will be sent to prison for two years.
Alex R. Huffman, 25, of Remsen Road in Medina, Ohio was sentenced to non-residential community control sanctions for one count of Unauthorized Use of a Motor Vehicle, a first degree misdemeanor. The sanctions include supervision by the Medina County Adult Probation Department for two years; 24 hours of community service; obtain drug/alcohol counseling through the Veterans’ Administration and follow all treatment recommendations; no possession or consumption of alcoholic beverages while under supervision; pay restitution of $500.00; pay court costs and a community control sanctions fee; and submit to drug and alcoholic testing. In the event that Mr. Huffman violates these conditions he will serve 180 days in the county jail.
Jeffery L. Wiseman, Jr., 30, of Spyglass Hill Drive in Brunswick, Ohio was sentenced for three counts of Drug Trafficking, all fourth degree felonies. Judge Kimbler sentenced him to non-residential community control sanctions. The sanctions include three years of supervision by the Medina County Adult Probation Department; 180 days of home incarceration; drug/alcohol assessment and treatment at a state certified agency; a one year license suspension; payment of court costs and a community control sanction fee; and weekly attendance at AA/NA meetings. Judge Kimbler ordered that if Mr. Wiseman violates these conditions, he will serve an 18 month prison sentence.
Jesse M. Naumilket, 22, of Station Road in Medina, Ohio was sentenced for one count of Drug Trafficking, a fifth degree felony. Judge Kimbler sentenced him to non-residential community control sanctions. These sanctions included three years supervision by the Medina County Adult Probation Department; 24 hours of community service; a six month license suspension; and payment of court costs and a monthly community control sanctions fee. If Mr. Naumilket doesn't comply with the above conditions, he will serve a six month prison term.
Bobby L. Sallee, 27, of Bank Street in Lodi, Ohio was sentenced to one year in prison for Theft and Forgery, both fifth degree felonies. The prison sentences will be served concurrently. Court costs were waived.
Douglas S. Kirtley, 24, of North Geyers Chapel Road in Smithville, Ohio was sentenced for Drug Possession. He was sentenced to a residential community control sanction of up to six months at the Lorain County Community Based Correctional Facility. When he is released he will be under the supervision of the Medina County Adult Probation Department for a three year period. He was also ordered to do 24 hours of community service; obtain a drug-alcohol assessment and abide by all aftercare recommendations; and a six month license suspension. If he violates the terms of his supervision, he will serve a one year prison sentence. Court costs and community control sanction fees were waived.
Tuesday, October 05, 2010
Criminal Sentences Imposed by Judge Kimbler on September 30, 2010
Medina Man Sentenced to 90 Days in Jail for Theft
Nicholas R. Dufala, 23, of Hamilton Road in Medina, Ohio, was sentenced by Judge Kimbler on two counts of Theft, both first degree misdemeanors. Judge Kimbler sentenced Mr. Dufala on Thursday, September 30, 2010 to 180 days in jail on each count, but suspended 90 days of the jail sentence. The jail sentences are to be served concurrently. Judge Kimbler also ordered Mr. Dufala to make restitution in the amount of $345.00 within 90 days of being released from jail. Judge Kimbler waived court costs and did not impose a community sanction fee.
Medina Man Sentenced to Prison for Drunk Driving
On Thursday, September 30, 2010, Judge Kimbler sentenced John T. Kaiser, 48, of Nichols Road in Medina, Ohio to a six month prison term for Driving While Under the Influence, a fourth degree felony. Judge Kimbler also suspended his driver’s license for three years and imposed a mandatory fine of $1350.00, but suspended the fine and waived court costs.
Akron Man Sentenced for Drug Trafficking
Deaire D. Ricks, 25, of Peckham Street in Akron, Ohio, was sentenced by Judge Kimbler on Thursday, September 30, 2010, for Trafficking in Drugs, a fifth degree felony. Judge Kimbler imposed residential community control sanctions at the Lorain County Community Based Correctional Facility. Following his release from that institution, Mr. Ricks will be supervised by the Medina County Adult Probation Department for three years, initially under Intensive Supervised Probation. Judge Kimbler suspended his license for six months and waived court costs. In the event he violates his supervision by the Probation Department, Mr. Ricks will be sentenced to one year in prison.
Litchfield Man Sentenced to Prison for Drug Possession
Judge Kimbler sentenced Jacob B. Bartoe, 21, of Spieth Road in Litchfield Township on Thursday, September 30, 2010, to six months in prison for two counts of Drug Possession, each a fifth degree felony. This prison sentence runs concurrent with a sentence imposed by the Cuyahoga County Common Pleas Court. Judge Kimbler also ordered a six month license suspension and waived court costs.
Brunswick Man Sentenced for Drug Trafficking
Thomas R. Traut, 33, of Gaylann Drive in Brunswick, Ohio, was sentenced by Judge Kimbler on Thursday, September 30, 2010 for Drug Trafficking, both fifth degree felonies. The drug listed in both counts is Marijuana. Judge Kimbler imposed non-residential community control sanctions and suspended Mr. Traut’s driver’s license for six months. The community control sanctions consisted of a three year period of supervision by the Probation Department, drug and alcohol assessment by the Probation Department’s in-house counselor, Judge Kimbler also ordered Mr. Traut to pay court costs and imposed a monthly community control sanction fee. If he violates his supervision, he is looking at a six month prison sentence with nine days jail credit.
Akron Woman Sentenced for Lodi Outlet Mall Crimes
Judge Kimbler sentenced Makeda D. Carey, 30, of Danmead Avenue in Akron, Ohio on Thursday, September 30, 2010 for crimes committed at the Lodi Outlet Mall in Harrisville Township in June of 2010. The crimes involved were Receiving Stolen Property and Possession of Criminal Tools, both fifth degree felonies. Although Judge Kimbler had previously sentenced her co-defendant to prison, Judge Kimbler imposed non-residential community control sanctions in Ms. Carey’s case. The difference in the sentences was based on a comparison of the criminal records of Ms. Carey and her co-defendant. If Ms. Carey violates the non-residential community control sanctions, she is looking at a seven month prison sentence. Judge Kimbler also ordered Ms. Carey to pay court costs and a community control sanctions fee.
Nicholas R. Dufala, 23, of Hamilton Road in Medina, Ohio, was sentenced by Judge Kimbler on two counts of Theft, both first degree misdemeanors. Judge Kimbler sentenced Mr. Dufala on Thursday, September 30, 2010 to 180 days in jail on each count, but suspended 90 days of the jail sentence. The jail sentences are to be served concurrently. Judge Kimbler also ordered Mr. Dufala to make restitution in the amount of $345.00 within 90 days of being released from jail. Judge Kimbler waived court costs and did not impose a community sanction fee.
Medina Man Sentenced to Prison for Drunk Driving
On Thursday, September 30, 2010, Judge Kimbler sentenced John T. Kaiser, 48, of Nichols Road in Medina, Ohio to a six month prison term for Driving While Under the Influence, a fourth degree felony. Judge Kimbler also suspended his driver’s license for three years and imposed a mandatory fine of $1350.00, but suspended the fine and waived court costs.
Akron Man Sentenced for Drug Trafficking
Deaire D. Ricks, 25, of Peckham Street in Akron, Ohio, was sentenced by Judge Kimbler on Thursday, September 30, 2010, for Trafficking in Drugs, a fifth degree felony. Judge Kimbler imposed residential community control sanctions at the Lorain County Community Based Correctional Facility. Following his release from that institution, Mr. Ricks will be supervised by the Medina County Adult Probation Department for three years, initially under Intensive Supervised Probation. Judge Kimbler suspended his license for six months and waived court costs. In the event he violates his supervision by the Probation Department, Mr. Ricks will be sentenced to one year in prison.
Litchfield Man Sentenced to Prison for Drug Possession
Judge Kimbler sentenced Jacob B. Bartoe, 21, of Spieth Road in Litchfield Township on Thursday, September 30, 2010, to six months in prison for two counts of Drug Possession, each a fifth degree felony. This prison sentence runs concurrent with a sentence imposed by the Cuyahoga County Common Pleas Court. Judge Kimbler also ordered a six month license suspension and waived court costs.
Brunswick Man Sentenced for Drug Trafficking
Thomas R. Traut, 33, of Gaylann Drive in Brunswick, Ohio, was sentenced by Judge Kimbler on Thursday, September 30, 2010 for Drug Trafficking, both fifth degree felonies. The drug listed in both counts is Marijuana. Judge Kimbler imposed non-residential community control sanctions and suspended Mr. Traut’s driver’s license for six months. The community control sanctions consisted of a three year period of supervision by the Probation Department, drug and alcohol assessment by the Probation Department’s in-house counselor, Judge Kimbler also ordered Mr. Traut to pay court costs and imposed a monthly community control sanction fee. If he violates his supervision, he is looking at a six month prison sentence with nine days jail credit.
Akron Woman Sentenced for Lodi Outlet Mall Crimes
Judge Kimbler sentenced Makeda D. Carey, 30, of Danmead Avenue in Akron, Ohio on Thursday, September 30, 2010 for crimes committed at the Lodi Outlet Mall in Harrisville Township in June of 2010. The crimes involved were Receiving Stolen Property and Possession of Criminal Tools, both fifth degree felonies. Although Judge Kimbler had previously sentenced her co-defendant to prison, Judge Kimbler imposed non-residential community control sanctions in Ms. Carey’s case. The difference in the sentences was based on a comparison of the criminal records of Ms. Carey and her co-defendant. If Ms. Carey violates the non-residential community control sanctions, she is looking at a seven month prison sentence. Judge Kimbler also ordered Ms. Carey to pay court costs and a community control sanctions fee.
Tuesday, August 31, 2010
Court Holds Indictment Lacking Culpable Mental State Is Not Defective When It Tracks Language of Statute
State v. Horner, Slip Opinion No. 2010-Ohio-3830.
Lucas App. No. L-07-1224, 2008-Ohio-6169. Certified question answered, and judgment of the court of appeals affirmed.
Lundberg Stratton, O'Connor, O'Donnell, and Cupp, JJ., concur.
Lanzinger, J., concurs in part and dissents in part.
Pfeifer, J., dissents.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-3830.pdf
(Aug. 27, 2010) – In a decision announced today, the Supreme Court of Ohio overruled its 2008 decision in State v. Colon and ruled that:
1) An indictment that charges an offense by tracking the language of the criminal statute is not defective for failure to identify a culpable mental state when the statute itself fails to specify a mental state.
2) When the General Assembly includes a culpable mental state in one discrete clause, subsection, or division of a statute, but not in another discrete clause, subsection, or division of the same statute, courts must apply the analysis prescribed in the Supreme Court’s decisions in State v. Wac (1981) and State v. Maxwell (2002) to determine the necessary mental state where none is specified.
3) By failing to enter a timely objection to a defect in an indictment, a defendant waives all but plain error on appeal.
The Court’s 4-2 majority opinion was authored by Justice Evelyn Lundberg Stratton.
In order to convict a defendant of a criminal offense, the state must prove: 1) that the accused committed an act that is prohibited by law (in Latin, the actus reus), and 2) that in committing the prohibited conduct, the accused acted with a specified guilty or “culpable” mental state (in Latin, the mens rea) which is set forth in the section of law defining that offense. The culpable mental states set forth in Ohio criminal statutes, in increasing order of severity, are “negligently,” “recklessly,” “knowingly,” and “intentionally.”
R.C. 2901.21(B) provides that when a state law that defines a criminal offense does not specify a required mens rea for that offense, courts hearing charges under that statute must determine whether or not the language of the statute “plainly indicates a purpose to impose strict criminal liability for the conduct described in that section.” If it is determined that the legislature intended to impose strict liability, then the state is required to prove at trial only that the accused engaged in the prohibited conduct, and is not required to establish any culpable mental state. If it is determined that the statutory language does not impose strict liability, R.C. 2901.21(B) requires the state to prove at trial that the defendant acted with at least the guilty mental state of “recklessly.”
In this case, Gregory Horner of Toledo was indicted on six criminal counts arising from an incident in which he and a codefendant assaulted two other men during a robbery. One charge was dismissed by the state. Two of the five remaining counts in the indictment alleged that Horner had committed aggravated robbery in violation of R.C. 2911.01(A)(3), which prohibits the infliction or attempted infliction of “serious physical harm” on another person during the commission of a theft offense. R.C. 2911.01(A)(3) does not specify a culpable mental state. The state did not allege and the grand jury did not find that Horner had acted with any specified mens rea in committing the aggravated robbery counts in his indictment. Horner did not object to the absence of a mens rea in the aggravated robbery counts of the indictment at any point in the trial court proceedings. He entered no-contest pleas to each of the five counts of the indictment, and was convicted on all counts and sentenced to 11 years in prison.
In a subsequent appeal, Horner cited the Supreme Court’s 2008 holding in State v. Colon that failure by the state to include a required guilty mental state of “recklessly” in a defendant’s indictment for the crime of robbery rendered his indictment fatally defective, and that the defendant’s failure to object to that error at the time of his trial did not bar him from raising it later on appeal. Horner asked the 6th District Court of Appeals to rule that he was entitled to a new trial because his indictment for aggravated robbery lacked a mens rea and therefore was invalid on the same basis as the indictment in Colon. The 6th District denied the appeal, stating that in Colon the Supreme Court had considered only the mens rea required for a violation of the robbery statute, R.C. 22911.02(A)(2), and therefore its holding applied only to indictments for that offense and not to indictments for the separate offense of aggravated robbery chargedunder R.C. 2911.01(A)(3).
The 6th District subsequently certified that its decision on the applicability of Colon was in conflict with a ruling in a similar case by another appellate district. The Supreme Court agreed to review the case to resolve the conflict between districts.
Writing for the Court in today’s decision, Justice Stratton observed that, prior to the Colon decision, prosecutors and trial courts across the state had relied on the Supreme Court’s holdings in State v. Wac and State v. Maxwell. In those cases, she noted, the Court ruled that where one clause or section of a criminal statute sets forth a required mens rea for one form or element of a crime, but a different section of the same statute does not include a mens rea, the legislature’s omission of a mens rea in the latter provision indicated intent that the element set forth in the latter section of the law be considered a “strict liability” element for which the state was not required to prove any mens rea. Applying that standard to this case, Justice Stratton said the legislature’s inclusion of a mens rea in another section of the statute under which Horner was charged, R.C. 2911.01(B), means that the exclusion of a required mens rea in R.C. 2911.01(A)(3) showed clear legislative intent that the latter section be read as a strict liability provision.
Justice Stratton also wrote that, despite a second opinion (Colon II) in which the Supreme Court reconsidered and limited its holding in Colon I to cases where a defective indictment leads to multiple other errors by a trial court, “(T)he effect of our Colon holdings meant that for the first time, an indictment that charged an offense in the exact language of the Revised Code could still be defective when the statute itself failed to specify a culpable mental state. As a result, Colon I and Colon II have been called ‘a boon to defendants, a headache to appellate courts, and a nightmare to prosecutors.’ ... Today we recognize the confusion created by Colon I and II and hold that when an indictment fails to charge a mens rea element of the crime, but tracks the language of the criminal statute describing the offense, the indictment provides the defendant with adequate notice of the charges against him and is, therefore, not defective.”
“Consequently, we respond to the certified question by holding that Colon I and (Colon II) are inapplicable to the offense of aggravated robbery in violation of R.C. 2911.01(A)(3). In fact, Colon I is overruled, and Colon II is overruled to the extent that it holds that such an indictment is defective. Further, we hold that failure to timely object to a defect in an indictment constitutes a waiver of the error. ... Any claim of error in the indictment in such a case is limited to a plain-error review on appeal. ... (B)ecause the language of Horner’s indictment charging him with aggravated robbery tracked the aggravated robbery statute, R.C. 2911.01(A)(3), and because the statute does not require any further mens rea requirement beyond that encompassed in the theft portion of the statute, the grand jury considered the essential elements of aggravated robbery. Accordingly, we uphold the appellate court’s determinations that the indictment was not defective and that there was no plain error, and we affirm the judgment of the court of appeals.”
Justice Stratton’s opinion was joined by Justices Maureen O’Connor, Terrence O’Donnell and Robert R. Cupp.
Justice Judith Ann Lanzinger concurred in judgment and agreed with the first and third paragraphs of the majority opinion syllabus. She dissented, however, from the majority holding that because another section of R.C. 2911.01 includes the required mens rea of “knowingly,” the absence of a required mens rea in R.C. 2911.01(A)(3) indicated legislative intent to impose strict liability for the element that a defendant inflicted or attempted to inflict physical harm.
She wrote: “R.C. 2901.21(B) establishes the mens rea of recklessness as the default standard of liability when no mens rea is specified ... The majority has mistakenly held that the lack of mens rea alone is sufficient to indicate an intention to impose strict liability, stating ‘[b]y choosing language in R.C. 2911.01(A)(3) that makes it a crime to merely inflict or attempt to inflict serious physical harm, as opposed to requiring a purpose or intent to injure, the General Assembly ... has indicated its purpose to impose strict liability.’ But to ‘inflict or attempt to inflict serious physical harm,’ as that phrase is used in R.C. 2911.01(A)(3), implies action on the part of a defendant that requires a mental state of some degree, unless it has been clearly dispensed with. The General Assembly explicitly provides in R.C. 2901.21(B) that recklessness is the default mens rea, unless there is a clear indication that strict liability is intended.”
Justice Paul E. Pfeifer entered a dissent in which he agreed with Justice Lanzinger’s view that the physical harm form of aggravated robbery set forth in R.C. 2911.01(A)(3) is not a strict liability offense but is rather an offense for which the state must show the “default” culpability of recklessness set forth in R.C. 2901.21(B). Justice Pfeifer wrote further that, by holding that the aggravated robbery charge brought against Horner was a strict liability offense, the majority had made it unnecessary and therefore improper for the Court to overturn its earlier decisions in Colon I and Colon II in order to resolve this case.
He wrote: “Had the majority found recklessness as the operative mens rea here, then Colon I and Colon II would have been fair game, since Colon I and Colon II involved a situation in which R.C. 2901.21(B) imposed a mens rea of recklessness and the indictment failed to set forth that mens rea. Here, the majority overrules Colon I and Colon II even before determining whether they are applicable. You can overrule the Colon cases or you can find strict liability for an R.C. 2911.01(A)(3) offense, but you cannot do both in this case.”
Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.
Contacts
David F. Cooper, 419.213.2061, for the state and Lucas County Prosecutor’s Office.
John F. Potts, 419.255.2800, for Gregory Horner.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
Lucas App. No. L-07-1224, 2008-Ohio-6169. Certified question answered, and judgment of the court of appeals affirmed.
Lundberg Stratton, O'Connor, O'Donnell, and Cupp, JJ., concur.
Lanzinger, J., concurs in part and dissents in part.
Pfeifer, J., dissents.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-3830.pdf
(Aug. 27, 2010) – In a decision announced today, the Supreme Court of Ohio overruled its 2008 decision in State v. Colon and ruled that:
1) An indictment that charges an offense by tracking the language of the criminal statute is not defective for failure to identify a culpable mental state when the statute itself fails to specify a mental state.
2) When the General Assembly includes a culpable mental state in one discrete clause, subsection, or division of a statute, but not in another discrete clause, subsection, or division of the same statute, courts must apply the analysis prescribed in the Supreme Court’s decisions in State v. Wac (1981) and State v. Maxwell (2002) to determine the necessary mental state where none is specified.
3) By failing to enter a timely objection to a defect in an indictment, a defendant waives all but plain error on appeal.
The Court’s 4-2 majority opinion was authored by Justice Evelyn Lundberg Stratton.
In order to convict a defendant of a criminal offense, the state must prove: 1) that the accused committed an act that is prohibited by law (in Latin, the actus reus), and 2) that in committing the prohibited conduct, the accused acted with a specified guilty or “culpable” mental state (in Latin, the mens rea) which is set forth in the section of law defining that offense. The culpable mental states set forth in Ohio criminal statutes, in increasing order of severity, are “negligently,” “recklessly,” “knowingly,” and “intentionally.”
R.C. 2901.21(B) provides that when a state law that defines a criminal offense does not specify a required mens rea for that offense, courts hearing charges under that statute must determine whether or not the language of the statute “plainly indicates a purpose to impose strict criminal liability for the conduct described in that section.” If it is determined that the legislature intended to impose strict liability, then the state is required to prove at trial only that the accused engaged in the prohibited conduct, and is not required to establish any culpable mental state. If it is determined that the statutory language does not impose strict liability, R.C. 2901.21(B) requires the state to prove at trial that the defendant acted with at least the guilty mental state of “recklessly.”
In this case, Gregory Horner of Toledo was indicted on six criminal counts arising from an incident in which he and a codefendant assaulted two other men during a robbery. One charge was dismissed by the state. Two of the five remaining counts in the indictment alleged that Horner had committed aggravated robbery in violation of R.C. 2911.01(A)(3), which prohibits the infliction or attempted infliction of “serious physical harm” on another person during the commission of a theft offense. R.C. 2911.01(A)(3) does not specify a culpable mental state. The state did not allege and the grand jury did not find that Horner had acted with any specified mens rea in committing the aggravated robbery counts in his indictment. Horner did not object to the absence of a mens rea in the aggravated robbery counts of the indictment at any point in the trial court proceedings. He entered no-contest pleas to each of the five counts of the indictment, and was convicted on all counts and sentenced to 11 years in prison.
In a subsequent appeal, Horner cited the Supreme Court’s 2008 holding in State v. Colon that failure by the state to include a required guilty mental state of “recklessly” in a defendant’s indictment for the crime of robbery rendered his indictment fatally defective, and that the defendant’s failure to object to that error at the time of his trial did not bar him from raising it later on appeal. Horner asked the 6th District Court of Appeals to rule that he was entitled to a new trial because his indictment for aggravated robbery lacked a mens rea and therefore was invalid on the same basis as the indictment in Colon. The 6th District denied the appeal, stating that in Colon the Supreme Court had considered only the mens rea required for a violation of the robbery statute, R.C. 22911.02(A)(2), and therefore its holding applied only to indictments for that offense and not to indictments for the separate offense of aggravated robbery chargedunder R.C. 2911.01(A)(3).
The 6th District subsequently certified that its decision on the applicability of Colon was in conflict with a ruling in a similar case by another appellate district. The Supreme Court agreed to review the case to resolve the conflict between districts.
Writing for the Court in today’s decision, Justice Stratton observed that, prior to the Colon decision, prosecutors and trial courts across the state had relied on the Supreme Court’s holdings in State v. Wac and State v. Maxwell. In those cases, she noted, the Court ruled that where one clause or section of a criminal statute sets forth a required mens rea for one form or element of a crime, but a different section of the same statute does not include a mens rea, the legislature’s omission of a mens rea in the latter provision indicated intent that the element set forth in the latter section of the law be considered a “strict liability” element for which the state was not required to prove any mens rea. Applying that standard to this case, Justice Stratton said the legislature’s inclusion of a mens rea in another section of the statute under which Horner was charged, R.C. 2911.01(B), means that the exclusion of a required mens rea in R.C. 2911.01(A)(3) showed clear legislative intent that the latter section be read as a strict liability provision.
Justice Stratton also wrote that, despite a second opinion (Colon II) in which the Supreme Court reconsidered and limited its holding in Colon I to cases where a defective indictment leads to multiple other errors by a trial court, “(T)he effect of our Colon holdings meant that for the first time, an indictment that charged an offense in the exact language of the Revised Code could still be defective when the statute itself failed to specify a culpable mental state. As a result, Colon I and Colon II have been called ‘a boon to defendants, a headache to appellate courts, and a nightmare to prosecutors.’ ... Today we recognize the confusion created by Colon I and II and hold that when an indictment fails to charge a mens rea element of the crime, but tracks the language of the criminal statute describing the offense, the indictment provides the defendant with adequate notice of the charges against him and is, therefore, not defective.”
“Consequently, we respond to the certified question by holding that Colon I and (Colon II) are inapplicable to the offense of aggravated robbery in violation of R.C. 2911.01(A)(3). In fact, Colon I is overruled, and Colon II is overruled to the extent that it holds that such an indictment is defective. Further, we hold that failure to timely object to a defect in an indictment constitutes a waiver of the error. ... Any claim of error in the indictment in such a case is limited to a plain-error review on appeal. ... (B)ecause the language of Horner’s indictment charging him with aggravated robbery tracked the aggravated robbery statute, R.C. 2911.01(A)(3), and because the statute does not require any further mens rea requirement beyond that encompassed in the theft portion of the statute, the grand jury considered the essential elements of aggravated robbery. Accordingly, we uphold the appellate court’s determinations that the indictment was not defective and that there was no plain error, and we affirm the judgment of the court of appeals.”
Justice Stratton’s opinion was joined by Justices Maureen O’Connor, Terrence O’Donnell and Robert R. Cupp.
Justice Judith Ann Lanzinger concurred in judgment and agreed with the first and third paragraphs of the majority opinion syllabus. She dissented, however, from the majority holding that because another section of R.C. 2911.01 includes the required mens rea of “knowingly,” the absence of a required mens rea in R.C. 2911.01(A)(3) indicated legislative intent to impose strict liability for the element that a defendant inflicted or attempted to inflict physical harm.
She wrote: “R.C. 2901.21(B) establishes the mens rea of recklessness as the default standard of liability when no mens rea is specified ... The majority has mistakenly held that the lack of mens rea alone is sufficient to indicate an intention to impose strict liability, stating ‘[b]y choosing language in R.C. 2911.01(A)(3) that makes it a crime to merely inflict or attempt to inflict serious physical harm, as opposed to requiring a purpose or intent to injure, the General Assembly ... has indicated its purpose to impose strict liability.’ But to ‘inflict or attempt to inflict serious physical harm,’ as that phrase is used in R.C. 2911.01(A)(3), implies action on the part of a defendant that requires a mental state of some degree, unless it has been clearly dispensed with. The General Assembly explicitly provides in R.C. 2901.21(B) that recklessness is the default mens rea, unless there is a clear indication that strict liability is intended.”
Justice Paul E. Pfeifer entered a dissent in which he agreed with Justice Lanzinger’s view that the physical harm form of aggravated robbery set forth in R.C. 2911.01(A)(3) is not a strict liability offense but is rather an offense for which the state must show the “default” culpability of recklessness set forth in R.C. 2901.21(B). Justice Pfeifer wrote further that, by holding that the aggravated robbery charge brought against Horner was a strict liability offense, the majority had made it unnecessary and therefore improper for the Court to overturn its earlier decisions in Colon I and Colon II in order to resolve this case.
He wrote: “Had the majority found recklessness as the operative mens rea here, then Colon I and Colon II would have been fair game, since Colon I and Colon II involved a situation in which R.C. 2901.21(B) imposed a mens rea of recklessness and the indictment failed to set forth that mens rea. Here, the majority overrules Colon I and Colon II even before determining whether they are applicable. You can overrule the Colon cases or you can find strict liability for an R.C. 2911.01(A)(3) offense, but you cannot do both in this case.”
Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.
Contacts
David F. Cooper, 419.213.2061, for the state and Lucas County Prosecutor’s Office.
John F. Potts, 419.255.2800, for Gregory Horner.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
Tuesday, August 24, 2010
Defendants Sentenced by Judge Collier on Monday, August 23
Medina County Prosecutor Dean Holman reports that the following defendants were sentenced by Judge Collier on Monday, August 23, 2010:
April Alford, 34, of Oak Street in Medina, was sentenced to five years of community control sanctions on two counts of Possession of Heroin, both of which are fifth-degree felonies. Her driver’s license was suspended for six months.
Lauren Beddow, 19, of High Street in Wadsworth, was sentenced to six months in prison on one count of Possession of Heroin, a fifth-degree felony.
Harold Brickles III, of West North Street in Medina, was sentenced to five years of community control sanctions, with 180 days in jail, on five counts of Passing Bad Checks, all of which are fifth-degree felonies. He was ordered to pay $3,145.07 in restitution to his victims.
David Martin, 30, of Medina, was sentenced to six years in prison on one count of Failure to Give Notice of Change of Address, a first-degree felony.
India Shelton, 23, of Springdale Street in Akron, was sentenced to five years of community control sanctions on one count of Forgery, a fifth-degree felony.
April Alford, 34, of Oak Street in Medina, was sentenced to five years of community control sanctions on two counts of Possession of Heroin, both of which are fifth-degree felonies. Her driver’s license was suspended for six months.
Lauren Beddow, 19, of High Street in Wadsworth, was sentenced to six months in prison on one count of Possession of Heroin, a fifth-degree felony.
Harold Brickles III, of West North Street in Medina, was sentenced to five years of community control sanctions, with 180 days in jail, on five counts of Passing Bad Checks, all of which are fifth-degree felonies. He was ordered to pay $3,145.07 in restitution to his victims.
David Martin, 30, of Medina, was sentenced to six years in prison on one count of Failure to Give Notice of Change of Address, a first-degree felony.
India Shelton, 23, of Springdale Street in Akron, was sentenced to five years of community control sanctions on one count of Forgery, a fifth-degree felony.
Tuesday, August 17, 2010
Judge Kimbler Sentences Three to Prison on Friday the 13TH.
Judge Kimbler sentenced three defendants to prison during his criminal "call day" last Friday, August 13, 2010. Sentenced to prison were Arlene M. Dobbins, Edward S. Herman, and Michael L. Slis.
Arlene M. Dobbins of Elyria Street in Lodi, Ohio, was sentenced to prison for Assault on a Police Officer, a fourth degree felony. Judge Kimbler imposed a six month prison sentence, gave her credit for three days served in the county jail prior to sentencing, and waived court costs.
Edward S. Herman of Vincennes Place in Strongsville, Ohio, was sentenced to eight months in prison for Driving While Under the Influence of Alcohol, a fourth degree felony. Judge Kimbler gave him credit for 22 days served in the county jail prior to sentencing, imposed a three year license suspension with no driving privileges during the suspension, but suspended the mandatory fine of $1350.00 and waived court costs.
Michael L. Slis of Kingston Drive in Brunswick was sentenced to one month in prison for Having Weapons Under Disability, a third degree felony. Judge Kimbler gave him credit for 16 days served in the county jail prior to sentencing, and waived court costs.
Arlene M. Dobbins of Elyria Street in Lodi, Ohio, was sentenced to prison for Assault on a Police Officer, a fourth degree felony. Judge Kimbler imposed a six month prison sentence, gave her credit for three days served in the county jail prior to sentencing, and waived court costs.
Edward S. Herman of Vincennes Place in Strongsville, Ohio, was sentenced to eight months in prison for Driving While Under the Influence of Alcohol, a fourth degree felony. Judge Kimbler gave him credit for 22 days served in the county jail prior to sentencing, imposed a three year license suspension with no driving privileges during the suspension, but suspended the mandatory fine of $1350.00 and waived court costs.
Michael L. Slis of Kingston Drive in Brunswick was sentenced to one month in prison for Having Weapons Under Disability, a third degree felony. Judge Kimbler gave him credit for 16 days served in the county jail prior to sentencing, and waived court costs.
Saturday, July 24, 2010
Defendant May Plead Guilty to Amended Indictment That Changes Identity of Crime
When Defendant Was Represented by Counsel and Bargained for Change
State v. Rohrbaugh, Slip Opinion No. 2010-Ohio-3286.
Logan App. No. 8-07-28, 2008-Ohio-4781. Certified question answered in the affirmative, judgment of the court of appeals reversed, and cause remanded to the court of appeals.
Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-3286.pdf
(July 20, 2010) The Supreme Court of Ohio ruled today that a defendant may plead guilty to an indictment that was amended to change the name or identity of the charged crime when the defendant is represented by counsel, has bargained for the amendment, and is not prejudiced by the change.
The court’s 6-0 decision, authored by Justice Paul E. Pfeifer, reversed a ruling by the 3rd District Court of Appeals.
A Logan County grand jury indicted John Rohrbaugh on eight felony counts including breaking and entering, theft and drug possession. As the result of a plea bargain, the prosecutor amended the first count of the indictment from breaking and entering to receiving stolen property, and dismissed all other counts in the indictment except the drug possession charge. The prosecutor did not seek a written or oral waiver of indictment from Rohrbaugh on the receiving stolen property charge. On the same day the indictment was amended, Rohrbaugh entered guilty pleas to both the receiving stolen property and drug possession charges. He was convicted and sentenced to eleven months in prison on each count, with those terms to be served concurrently, and ordered to pay restitution.
Rohrbaugh subsequently appealed the restitution portion of his sentence. On review, the 3rd District Court of Appeals ruled that, because Rohrbaugh had not been indicted by the grand jury for the crime of receiving stolen property, and had not formally waived his constitutional right to indictment before being charged with that felony offense, the trial court had committed plain error by accepting a guilty plea to an indictment that had been amended to change the name or identity of a charged crime. Based on that ruling, the court of appeals ordered that Rohrbaugh’s guilty plea be vacated and remanded the case to the trial court for further proceedings.
The state sought and was granted Supreme Court review of the 3rd District’s decision. The Court also determined that there was a conflict between the court of appeals’ ruling in this case and a 2008 decision of the 8th District Court of Appeals.
Writing for the majority in today’s decision, Justice Pfeifer acknowledged that Section 10, Article I of the Ohio Constitution and Rule 7(A) of the state’s rules of criminal procedure require that all felonies, absent proper waiver, must be prosecuted by indictment, and noted that Crim. R.7(D) permits the amendment of an indictment before, during or after trial ... provided no change is made in the name or identity of the crime charged. He also noted, however, that because Rohrbaugh failed to object to the change in his indictment before or during his trial, he waived all but “plain error,” meaning error so serious that it affected the outcome of his trial and requires reversal “to prevent a manifest miscarriage of justice.”
Applying that standard to the facts of Rohrbaugh’s case, Justice Pfeifer wrote: “We conclude that although there was error in this case, it was not reversible plain error, because there was no miscarriage of justice. Furthermore, Rohrbaugh cannot take advantage of an error that he invited through the plea negotiations.”
“The trial court erred because the amendment to the indictment changed the name or identity of the crime charged in count one. ... The error was plain because Crim.R. 7(D) clearly bans such amendments. The error also ‘affected the outcome of the trial’ because if not for the amendment, Rohrbaugh could not have pleaded guilty to the crime of receiving stolen property. In State v. Davis (2008) ... we found plain error when a trial court amended an indictment to allow a defendant to be prosecuted for a higher degree of a crime. In that case, there was a miscarriage of justice because the prosecution was attempting to ‘increase the penalty or degree of the offense’ charged. ... Unlike the defendant in Davis, Rohrbaugh was not prejudiced by the amendment to the indictment; to the contrary, he gained a benefit when the prosecution dismissed six charges against him. In Davis, the crime was amended from a felony of the fourth degree to a felony of the second degree. ... In this case, the amended charge of receiving stolen property and the original charge of breaking and entering are both felonies of the fifth degree. Moreover, Rohrbaugh was represented by counsel and signed a statement that he had reviewed and understood the amended indictment. We conclude that there was no miscarriage of justice in this case.”
“This case also differs from Davis in that Rohrbaugh invited the alleged error. We have repeatedly held that a defendant may not ‘take advantage of an error that he himself invited or induced.’... In Davis, there was no invited-error issue because the prosecution acted unilaterally during trial. ... In this case, Rohrbaugh negotiated for the amended indictment and agreed to plead guilty to the amended charge. He cannot now argue that the amendment is plain error. Rohrbaugh argues that he was not indicted and did not properly waive the right to indictment under the rule, even though Crim.R. 7(A) requires that a crime be prosecuted by indictment unless the indictment is properly waived. We conclude that Rohrbaugh was prosecuted by an indictment and that he was sufficiently informed of the charges in the indictment. ... Because Rohrbaugh was prosecuted by indictment, Crim.R. 7(A) and its waiver requirements are not applicable to this case.”
Based on that analysis, Justice Pfeifer concluded, “We reverse the judgment of the court of appeals and remand the cause to the court of appeals so that it may reach the error concerning restitution that Rohrbaugh alleged in his appeal.”
Justice Pfeifer’s opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp. Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in this case.
Contacts
Eric C. Stewart, 937.599.7272, for the Logan County prosecutor’s office.
Marc S. Triplett, 937.593.6591, for John Rohrbaugh.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
State v. Rohrbaugh, Slip Opinion No. 2010-Ohio-3286.
Logan App. No. 8-07-28, 2008-Ohio-4781. Certified question answered in the affirmative, judgment of the court of appeals reversed, and cause remanded to the court of appeals.
Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-3286.pdf
(July 20, 2010) The Supreme Court of Ohio ruled today that a defendant may plead guilty to an indictment that was amended to change the name or identity of the charged crime when the defendant is represented by counsel, has bargained for the amendment, and is not prejudiced by the change.
The court’s 6-0 decision, authored by Justice Paul E. Pfeifer, reversed a ruling by the 3rd District Court of Appeals.
A Logan County grand jury indicted John Rohrbaugh on eight felony counts including breaking and entering, theft and drug possession. As the result of a plea bargain, the prosecutor amended the first count of the indictment from breaking and entering to receiving stolen property, and dismissed all other counts in the indictment except the drug possession charge. The prosecutor did not seek a written or oral waiver of indictment from Rohrbaugh on the receiving stolen property charge. On the same day the indictment was amended, Rohrbaugh entered guilty pleas to both the receiving stolen property and drug possession charges. He was convicted and sentenced to eleven months in prison on each count, with those terms to be served concurrently, and ordered to pay restitution.
Rohrbaugh subsequently appealed the restitution portion of his sentence. On review, the 3rd District Court of Appeals ruled that, because Rohrbaugh had not been indicted by the grand jury for the crime of receiving stolen property, and had not formally waived his constitutional right to indictment before being charged with that felony offense, the trial court had committed plain error by accepting a guilty plea to an indictment that had been amended to change the name or identity of a charged crime. Based on that ruling, the court of appeals ordered that Rohrbaugh’s guilty plea be vacated and remanded the case to the trial court for further proceedings.
The state sought and was granted Supreme Court review of the 3rd District’s decision. The Court also determined that there was a conflict between the court of appeals’ ruling in this case and a 2008 decision of the 8th District Court of Appeals.
Writing for the majority in today’s decision, Justice Pfeifer acknowledged that Section 10, Article I of the Ohio Constitution and Rule 7(A) of the state’s rules of criminal procedure require that all felonies, absent proper waiver, must be prosecuted by indictment, and noted that Crim. R.7(D) permits the amendment of an indictment before, during or after trial ... provided no change is made in the name or identity of the crime charged. He also noted, however, that because Rohrbaugh failed to object to the change in his indictment before or during his trial, he waived all but “plain error,” meaning error so serious that it affected the outcome of his trial and requires reversal “to prevent a manifest miscarriage of justice.”
Applying that standard to the facts of Rohrbaugh’s case, Justice Pfeifer wrote: “We conclude that although there was error in this case, it was not reversible plain error, because there was no miscarriage of justice. Furthermore, Rohrbaugh cannot take advantage of an error that he invited through the plea negotiations.”
“The trial court erred because the amendment to the indictment changed the name or identity of the crime charged in count one. ... The error was plain because Crim.R. 7(D) clearly bans such amendments. The error also ‘affected the outcome of the trial’ because if not for the amendment, Rohrbaugh could not have pleaded guilty to the crime of receiving stolen property. In State v. Davis (2008) ... we found plain error when a trial court amended an indictment to allow a defendant to be prosecuted for a higher degree of a crime. In that case, there was a miscarriage of justice because the prosecution was attempting to ‘increase the penalty or degree of the offense’ charged. ... Unlike the defendant in Davis, Rohrbaugh was not prejudiced by the amendment to the indictment; to the contrary, he gained a benefit when the prosecution dismissed six charges against him. In Davis, the crime was amended from a felony of the fourth degree to a felony of the second degree. ... In this case, the amended charge of receiving stolen property and the original charge of breaking and entering are both felonies of the fifth degree. Moreover, Rohrbaugh was represented by counsel and signed a statement that he had reviewed and understood the amended indictment. We conclude that there was no miscarriage of justice in this case.”
“This case also differs from Davis in that Rohrbaugh invited the alleged error. We have repeatedly held that a defendant may not ‘take advantage of an error that he himself invited or induced.’... In Davis, there was no invited-error issue because the prosecution acted unilaterally during trial. ... In this case, Rohrbaugh negotiated for the amended indictment and agreed to plead guilty to the amended charge. He cannot now argue that the amendment is plain error. Rohrbaugh argues that he was not indicted and did not properly waive the right to indictment under the rule, even though Crim.R. 7(A) requires that a crime be prosecuted by indictment unless the indictment is properly waived. We conclude that Rohrbaugh was prosecuted by an indictment and that he was sufficiently informed of the charges in the indictment. ... Because Rohrbaugh was prosecuted by indictment, Crim.R. 7(A) and its waiver requirements are not applicable to this case.”
Based on that analysis, Justice Pfeifer concluded, “We reverse the judgment of the court of appeals and remand the cause to the court of appeals so that it may reach the error concerning restitution that Rohrbaugh alleged in his appeal.”
Justice Pfeifer’s opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp. Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in this case.
Contacts
Eric C. Stewart, 937.599.7272, for the Logan County prosecutor’s office.
Marc S. Triplett, 937.593.6591, for John Rohrbaugh.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
Monday, July 12, 2010
Judge Kimbler's Criminal Sentences for Friday, July 9, 2010
Judge Kimbler sentenced two defendants on Friday, July 9, 2010. The defendants were Jeffery P. Foster of Parma, Ohio and William E. Reindel, III also of Parma, Ohio. Mr. Foster was sentenced for one count of Theft of a Check, a fifth degree felony. Mr. Reindel was sentenced for three counts of Trafficking in a Controlled Counterfeit Substance, both felonies of the fifth degree.
Judge Kimbler sentenced Mr. Foster to three years of general supervision by the Medina County Adult Probation Department. While under supervision Mr. Foster must complete 24 hours of community service; undergo a drug-alcohol abuse assessment and abide by any aftercare recommendations; continue weekly attendance at NA meetings; and pay court costs and a monthly community control sanction fee. If Mr. Foster violates the terms and conditions of supervision, he is facing a six month prison sentence.
Judge Kimbler sentenced Mr. Reindel to five years of intensive supervision by the Medina County Adult Probation Department. While under supervision Mr. Reindell must perform 24 hours of community service; undergo a drug-alcohol abuse assessment and abide by any after recommendations; and make reasonable efforts to obtain and maintain full time employment. If he violates supervision, he is facing a 12 month prison sentence. Judge Kimbler waived court costs and did not impose any community control sanction fees.
Judge Kimbler sentenced Mr. Foster to three years of general supervision by the Medina County Adult Probation Department. While under supervision Mr. Foster must complete 24 hours of community service; undergo a drug-alcohol abuse assessment and abide by any aftercare recommendations; continue weekly attendance at NA meetings; and pay court costs and a monthly community control sanction fee. If Mr. Foster violates the terms and conditions of supervision, he is facing a six month prison sentence.
Judge Kimbler sentenced Mr. Reindel to five years of intensive supervision by the Medina County Adult Probation Department. While under supervision Mr. Reindell must perform 24 hours of community service; undergo a drug-alcohol abuse assessment and abide by any after recommendations; and make reasonable efforts to obtain and maintain full time employment. If he violates supervision, he is facing a 12 month prison sentence. Judge Kimbler waived court costs and did not impose any community control sanction fees.
Monday, June 21, 2010
A Judicial Decision: Concurrent or Consecutive Prison Sentences?
by Judge James L. Kimbler
A Facebook friend recently asked why I imposed a concurrent prison sentence in a criminal case. The case involved a defendant who had drove recklessly and caused a automobile collision. Two people where killed in the collision and another person was seriously injured. The people who were killed were in the other car while the person who was seriously injured was a passenger in the defendant's car. That person and the defendant were good friends.
The crime for which the defendant was indicted for recklessly causing the two deaths is known as Aggravated Vehicular Homicide, and is a third degree felony. The crime for which the defendant was indicted for recklessly causing serious injury to is known as Aggravated Vehicular Assault, a fourth degree felony.
When I sentenced the defendant, I sentenced him to four years in prison for each of two deaths, which was a total prison sentence of eight years. Those sentences I ran consecutively. I also sentenced him to one year in prison for causing the injuries to his friend. That sentence I ran concurrently. It was that sentence that prompted my friend's question.
When a judge is sentencing a defendant in a case where there are multiple charges, often that judge has to decide whether prison sentences should be served consecutively or concurrently. If the sentences are to be served consecutively, then the second sentence doesn't start until the first one is finished. If the sentences are to be served concurrently, then both are being served at the same time.
An example would be if a defendant was charged with two separate offenses that involved two different dates. Let's say the judge orders a three year prison sentence for each offense. If the sentences are served concurrently, then the defendant serves three years for both offenses. If they are served consecutively, then the defendant serves six years for both offenses.
The decision to impose either consecutive or concurrent sentences is obviously one of the most important decisions a judge makes when sentencing a defendant.
There are many factors a trial judge must consider when making such a decision. The first is the language of the Ohio Revised Code.
The Ohio General Assembly has mandated that certain sentences be served consecutively. An example of this is sentences for what are called "firearm specifications." A firearm specification is language added to the indictment by the grand jury that states that the defendant either used the firearm or possessed the firearm while committing the offense. These sentences can add one or three years onto a prison sentence and must be served consecutively to the sentence for the underlying offense.
Other factors include whether the crimes arose from the same set of facts or out of the same conduct; whether the defendant and the prosecution make a joint recommendation on sentencing; how much total prison time a judge thinks a defendant should serve; the nature of the offenses; and, in some cases, the wishes of the victim of the defendant's crime.
It was the last reason that was determinative in the case mentioned in the first paragraph of this article. The defendant's friend did not want the defendant to serve a prison sentence for injuring him. Although a victim's wishes are not binding on a trial judge, I do consider them when imposing a sentence.
In this particular case I considered the fact that the friend had voluntarily got into the defendant's car along with the fact that the friend did not want the defendant to go to prison for the charge of Aggravated Vehicular Assault. In his victim's impact statement he indicated that he wanted the defendant to be placed on probation. Since I was imposing a prison sentence for the death of the people in the other car, probation was not an option. Therefore I ran the prison sentence for the crime of Aggravated Vehicular Assault concurrent with the other sentences.
This meant that while the defendant would serve a prison sentence for injuring his friend, he would not serve any additional prison time for that crime.
A Facebook friend recently asked why I imposed a concurrent prison sentence in a criminal case. The case involved a defendant who had drove recklessly and caused a automobile collision. Two people where killed in the collision and another person was seriously injured. The people who were killed were in the other car while the person who was seriously injured was a passenger in the defendant's car. That person and the defendant were good friends.
The crime for which the defendant was indicted for recklessly causing the two deaths is known as Aggravated Vehicular Homicide, and is a third degree felony. The crime for which the defendant was indicted for recklessly causing serious injury to is known as Aggravated Vehicular Assault, a fourth degree felony.
When I sentenced the defendant, I sentenced him to four years in prison for each of two deaths, which was a total prison sentence of eight years. Those sentences I ran consecutively. I also sentenced him to one year in prison for causing the injuries to his friend. That sentence I ran concurrently. It was that sentence that prompted my friend's question.
When a judge is sentencing a defendant in a case where there are multiple charges, often that judge has to decide whether prison sentences should be served consecutively or concurrently. If the sentences are to be served consecutively, then the second sentence doesn't start until the first one is finished. If the sentences are to be served concurrently, then both are being served at the same time.
An example would be if a defendant was charged with two separate offenses that involved two different dates. Let's say the judge orders a three year prison sentence for each offense. If the sentences are served concurrently, then the defendant serves three years for both offenses. If they are served consecutively, then the defendant serves six years for both offenses.
The decision to impose either consecutive or concurrent sentences is obviously one of the most important decisions a judge makes when sentencing a defendant.
There are many factors a trial judge must consider when making such a decision. The first is the language of the Ohio Revised Code.
The Ohio General Assembly has mandated that certain sentences be served consecutively. An example of this is sentences for what are called "firearm specifications." A firearm specification is language added to the indictment by the grand jury that states that the defendant either used the firearm or possessed the firearm while committing the offense. These sentences can add one or three years onto a prison sentence and must be served consecutively to the sentence for the underlying offense.
Other factors include whether the crimes arose from the same set of facts or out of the same conduct; whether the defendant and the prosecution make a joint recommendation on sentencing; how much total prison time a judge thinks a defendant should serve; the nature of the offenses; and, in some cases, the wishes of the victim of the defendant's crime.
It was the last reason that was determinative in the case mentioned in the first paragraph of this article. The defendant's friend did not want the defendant to serve a prison sentence for injuring him. Although a victim's wishes are not binding on a trial judge, I do consider them when imposing a sentence.
In this particular case I considered the fact that the friend had voluntarily got into the defendant's car along with the fact that the friend did not want the defendant to go to prison for the charge of Aggravated Vehicular Assault. In his victim's impact statement he indicated that he wanted the defendant to be placed on probation. Since I was imposing a prison sentence for the death of the people in the other car, probation was not an option. Therefore I ran the prison sentence for the crime of Aggravated Vehicular Assault concurrent with the other sentences.
This meant that while the defendant would serve a prison sentence for injuring his friend, he would not serve any additional prison time for that crime.
Friday, June 18, 2010
Judge Kimbler's Criminal Docket for June 17, 2010
Medina County Prosecutor Dean Holman reports that the following defendants appeared in Judge Kimbler's courtroom on Thursday, June 17, 2010, for criminal cases:
Terence Martter, 21, of Trease Road in Wadsworth, was sentenced to three years in prison on three counts of Trafficking in LSD, one of which is a second-degree felony and two of which are third-degree felonies, and one count of Trafficking in Marijuana, a fifth-degree felony.
Robert Mote, 30, of Trease Road in Wadsworth, was sentenced to eight months in prison on one count of Possession of Heroin, a fifth-degree felony.
Lavinia Pierce-Rives, 42, of East 43rd Street in Cleveland, was sentenced to three years of community control sanctions, with six months in a Community Based Control Facility, on one count of Receiving Stolen Property, Motor Vehicle, a fourth-degree felony.
John Sullivan, 42, of Lakewood Avenue in Brunswick, was sentenced to three years of community control sanctions, with six months of house arrest, on two counts of Trafficking in Drugs, one of which is a fourth-degree felony and one of which is a fifth-degree felony, and two counts of Trafficking in Marijuana, both of which are fifth-degree felonies. His car was ordered forfeited to law enforcement.
Keith Bearden, 39, of First Street in Bedford, pleaded not guilty to one count of Possession of Cocaine, a fifth-degree felony. A jury trial is scheduled for August 18.
John Kaiser, 47, of Nichols Road 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 August 16.
Brian Medvick, 26, of Easton Way in Brunswick, pleaded not guilty to one count of Trafficking in Drugs, a fourth-degree felony. The charge carries a forfeiture specification. A jury trial is scheduled for August 18.
Dustin Niemann, 23, of Lincoln Avenue in Brunswick, pleaded not guilty to one count of Trafficking in Cocaine, a fifth-degree felony. A jury trial is scheduled for August 17.
David Sidwell, 32, of Laurel Road in Brunswick, pleaded not guilty to one count of Trafficking in Drugs, a fifth-degree felony. A jury trial is scheduled for August 11.
Diane Wallace, 39, of 3rd Street in Wadsworth, pleaded not guilty to one count of Permitting Drug Abuse and one count of Possession of Cocaine, both of which are fifth-degree felonies. A jury trial is scheduled for August 16.
Terence Martter, 21, of Trease Road in Wadsworth, was sentenced to three years in prison on three counts of Trafficking in LSD, one of which is a second-degree felony and two of which are third-degree felonies, and one count of Trafficking in Marijuana, a fifth-degree felony.
Robert Mote, 30, of Trease Road in Wadsworth, was sentenced to eight months in prison on one count of Possession of Heroin, a fifth-degree felony.
Lavinia Pierce-Rives, 42, of East 43rd Street in Cleveland, was sentenced to three years of community control sanctions, with six months in a Community Based Control Facility, on one count of Receiving Stolen Property, Motor Vehicle, a fourth-degree felony.
John Sullivan, 42, of Lakewood Avenue in Brunswick, was sentenced to three years of community control sanctions, with six months of house arrest, on two counts of Trafficking in Drugs, one of which is a fourth-degree felony and one of which is a fifth-degree felony, and two counts of Trafficking in Marijuana, both of which are fifth-degree felonies. His car was ordered forfeited to law enforcement.
Keith Bearden, 39, of First Street in Bedford, pleaded not guilty to one count of Possession of Cocaine, a fifth-degree felony. A jury trial is scheduled for August 18.
John Kaiser, 47, of Nichols Road 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 August 16.
Brian Medvick, 26, of Easton Way in Brunswick, pleaded not guilty to one count of Trafficking in Drugs, a fourth-degree felony. The charge carries a forfeiture specification. A jury trial is scheduled for August 18.
Dustin Niemann, 23, of Lincoln Avenue in Brunswick, pleaded not guilty to one count of Trafficking in Cocaine, a fifth-degree felony. A jury trial is scheduled for August 17.
David Sidwell, 32, of Laurel Road in Brunswick, pleaded not guilty to one count of Trafficking in Drugs, a fifth-degree felony. A jury trial is scheduled for August 11.
Diane Wallace, 39, of 3rd Street in Wadsworth, pleaded not guilty to one count of Permitting Drug Abuse and one count of Possession of Cocaine, both of which are fifth-degree felonies. A jury trial is scheduled for August 16.
Thursday, June 10, 2010
Involuntary Commitment Process for Defendants Found Not Competent to Stand Trial Is Civil in Nature
Does Not Invoke Constitutional Rights Applicable to Criminal Prosecution
State v. Williams, Slip Opinion No. 2010-Ohio-2453.
Montgomery App. No. 22532, 179 Ohio App.3d 584, 2008-Ohio-6245. Judgment of the trial court reversed, and judgment of the trial court reinstated.
Lundberg Stratton, O'Connor, O'Donnell, and Cupp, JJ., concur.
Pfeifer and Lanzinger, JJ., dissent.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2453.pdf
(June 8, 2010) The Supreme Court of Ohio ruled today that the involuntary commitment of a criminal defendant who is charged with a violent first or second-degree felony and who remains mentally incompetent to stand trial beyond the one-year statutory time frame for restoring competency does not violate that person’s constitutional rights to due process or equal protection. The Court held further that, because the commitment process set forth in R.C. 2945.39 is civil in nature, the state is not required to afford a person committed to a mental health facility under that statute the same constitutional rights afforded to a defendant in a criminal prosecution.
The Court’s 4-2 majority opinion, which reversed a decision of the 2nd District Court of Appeals, was authored by Justice Robert R. Cupp.
Under Ohio R.C. 2945.39, when a mentally ill person has been indicted for a violent felony but found incompetent to stand trial, and a common pleas court finds that after one year of treatment there is no substantial probability the defendant can be restored to competence in the foreseeable future, the trial court may retain jurisdiction and involuntarily commit the accused to a psychiatric hospital if the state establishes the criteria set forth in R.C. 2945.39(A)(2).
This case involved Thonex Williams of Dayton, who was charged with rape (a first-degree felony) and other offenses in December 2005. Williams entered a plea of not guilty by reason of insanity and underwent a mental-health evaluation. A judge of the Montgomery County Court of Common Pleas determined, consistent with the report of the mental-health examiner, that Williams was incompetent to stand trial and that there was a substantial probability that he could be restored to competency within the one-year time period prescribed by R.C. 2945.38. The trial court committed Williams to Twin Valley Behavioral Healthcare for restorative treatment.
As the one-year time limit for restoration of competency approached, a mental-health-examination report indicated that Williams remained incompetent to stand trial and opined that he could not be restored to competency within the statute of limitations for prosecuting the most serious charge in his indictment, rape. The state then orally moved at a hearing for the trial court to retain jurisdiction under R.C. 2945.39(A)(2). Williams moved to dismiss the indictment, arguing that the trial court’s exercise of continuing jurisdiction pursuant to R.C. 2945.39 would deprive him of his rights to due process and equal protection. The trial court denied the motion to dismiss and held that R.C. 2945.39 is constitutional. The trial court subsequently held a hearing under R.C. 2945.39(A)(2) to decide whether to retain jurisdiction. The trial court found by clear and convincing evidence the required statutory elements that (1) Williams committed the offense of rape with which he was charged, (2) he was a mentally ill person subject to hospitalization by court order, (3) he was not competent to stand trial, and (4) the statutory time limit for restoration treatment had expired. The court rejected Williams’ arguments that the matter belonged in probate court for a commitment under R.C. Chapter 5122. The trial court retained jurisdiction subject to R.C. 2945.401 and 2945.402 and ordered Williams to remain hospitalized at Twin Valley.
Williams appealed. In a 2-1 decision, the 2nd District Court of Appeals reversed the trial court and found the commitment process prescribed under R.C. 2945.39 to be unconstitutional on three different bases.
First, the majority held that an involuntary commitment under that statute is “criminal, not civil in nature” and that Williams’ constitutional rights were therefore violated because he had not received all the procedural safeguards in his R.C. 2945.39 commitment hearing that he should have received as a criminal defendant undergoing prosecution. Second, the appellate majority held that R.C. 2945.39 violated Williams’ right to equal protection because that statute’s procedures for committing persons under indictment for a serious felony offense do not also apply to persons who have been convicted of the same offense. Third, the appellate majority held that R.C. 2945.39 violated Williams’ right to due process because the common pleas court’s retention of jurisdiction pursuant to the criminal indictment, and the potential continuation of his commitment for the maximum term that he could have received for the most serious crime for which he was indicted, are not reasonably related to the purpose of commitment, which is to protect society from dangerous persons who are mentally ill.
The state sought and was granted Supreme Court review of the 2nd District’s decision. Writing for the majority in today’s decision, Justice Cupp examined and rejected each of constitutional infirmities found by the court of appeals.
With regard to the civil or criminal nature of Williams’ commitment proceedings, Justice Cupp wrote: “Our consideration of R.C. 2945.39 and related statutes leads us away from the view that the commitment of an incompetent defendant under R.C. 2945.39 is the functional equivalent of criminally confining the defendant. Nor do we see any indication of an overriding intent to punish or confine criminal defendants within the statutory framework. Rather, we view R.C. 2945.39 and related statutes as designed primarily for the purpose of protecting the public. In particular, we note that R.C. 2945.39(D)(1), which requires the trial court to order the least-restrictive commitment alternative available consistent with public safety and the defendant’s welfare ... explicitly states the court ‘shall give preference to protecting public safety.’ This statement gives voice to the predominant intent underlying R.C. 2945.39.
“ ... Moreover, R.C. 2945.39 ... does not require a finding of scienter (intentional wrongdoing), nor does it implicate retribution or deterrence, which are the primary objectives of criminal punishment and the two most telling factors that a particular statute is criminal in nature. ... R.C. 2945.39 does not implicate retribution, because it does not affix culpability for prior criminal conduct. ... We conclude that R.C. 2945.39 is a civil statute. Consequently, a person committed under the statute need not be afforded the constitutional rights afforded to a defendant in a criminal prosecution.”
In also rejecting the 2nd District’s finding that the involuntary commitment scheme prescribed by R.C. 2945.39 violates defendants’ due process rights, Justice Cupp wrote: “The appellate court’s conclusions appear to be based on a belief that the statute’s primary goals are to punish the defendant and restore his competency to stand trial. However, as discussed in our analysis above, R.C. 2945.39 is a civil statute with a primary goal of protecting the public. It is of great significance to our due-process inquiry that R.C. 2945.39(D)(1) requires the court to order the least-restrictive commitment alternative available consistent with public safety and the defendant’s welfare, while also emphasizing that the court ‘shall give preference to protecting public safety.’ It is apparent that a person committed under R.C. 2945.39 is not committed ‘solely’ on account of his incapacity to proceed to trial … Rather, such a person is committed only after being found by clear and convincing evidence to be mentally ill and subject to hospitalization by court order under R.C. 5122.01(B) … and being found to be a danger to the public because he was determined to have committed the offense with which he was charged.”
“The state asserts that (the Supreme Court of Ohio’s decision in State v.) Sullivan does not support appellee’s argument that his due-process rights were violated here. The purpose of the commitment in Sullivan, which involved the former version of R.C. 2945.38, was to restore the defendant to competency in order to stand trial. Because there was no probability that competency could be restored within the time set by the former statute, the mandatory treatment period bore no rational relationship to the purpose of commitment, and, therefore, the defendant’s due-process rights were violated … Our limited decision in Sullivan, however, has no application to this case, which involves the distinctly different procedures of R.C. 2945.39. The overriding purpose of this statute is to protect the public from a person who is dangerously mentally ill, has perpetrated felonious conduct, and cannot presently be tried because of his mental incompetency.”
“Thus, we conclude that R.C. 2945.39 and 2945.401 do not violate a defendant’s due-process rights by allowing the indictment to remain intact, by allowing continued efforts to restore the defendant to competency, or by permitting a defendant to be committed for a term equal to the maximum term of imprisonment that he could receive for the most serious offense charged. … For the reasons expressed herein, we conclude that the nature and duration of the commitment that occurs under R.C. 2945.39 bear a reasonable relationship to the purpose for which the person is committed … We hold that an involuntary commitment under R.C. 2945.39 does not violate principles of due process.”
Justice Cupp’s opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor and Terrence O’Donnell.
Justice Judith Ann Lanzinger entered a dissent, joined by Justice Paul E. Pfeifer, stating that in her view R.C. 2945.39 is a criminal rather than a civil statute. In support of that conclusion, Justice Lanzinger wrote: “First, the General Assembly enacted R.C. 2945.39 as part of Ohio’s criminal code. Ohio already has a civil commitment process pursuant to R.C. Chapter 5122 regarding those who are mentally ill and R.C. Chapter 5123 regarding those who are developmentally disabled. Second, tying the length of a criminal defendant’s commitment to the maximum possible prison term for the most serious offense also indicates that the commitment is criminal in nature … Finally, unlike a person committed under the civil process, a defendant who is committed under R.C. 2945.39 remains under a pending indictment. The proceeding occurs as part of the defendant’s criminal case and, therefore, the defendant should be afforded all the rights of a criminal defendant.”
Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in this case.
Contacts
Carley J. Ingram, 937.225.5757, for the Montgomery County prosecutor’s office.
Anthony Comunale, 937.227.3310, for Thonex Williams.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
State v. Williams, Slip Opinion No. 2010-Ohio-2453.
Montgomery App. No. 22532, 179 Ohio App.3d 584, 2008-Ohio-6245. Judgment of the trial court reversed, and judgment of the trial court reinstated.
Lundberg Stratton, O'Connor, O'Donnell, and Cupp, JJ., concur.
Pfeifer and Lanzinger, JJ., dissent.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2453.pdf
(June 8, 2010) The Supreme Court of Ohio ruled today that the involuntary commitment of a criminal defendant who is charged with a violent first or second-degree felony and who remains mentally incompetent to stand trial beyond the one-year statutory time frame for restoring competency does not violate that person’s constitutional rights to due process or equal protection. The Court held further that, because the commitment process set forth in R.C. 2945.39 is civil in nature, the state is not required to afford a person committed to a mental health facility under that statute the same constitutional rights afforded to a defendant in a criminal prosecution.
The Court’s 4-2 majority opinion, which reversed a decision of the 2nd District Court of Appeals, was authored by Justice Robert R. Cupp.
Under Ohio R.C. 2945.39, when a mentally ill person has been indicted for a violent felony but found incompetent to stand trial, and a common pleas court finds that after one year of treatment there is no substantial probability the defendant can be restored to competence in the foreseeable future, the trial court may retain jurisdiction and involuntarily commit the accused to a psychiatric hospital if the state establishes the criteria set forth in R.C. 2945.39(A)(2).
This case involved Thonex Williams of Dayton, who was charged with rape (a first-degree felony) and other offenses in December 2005. Williams entered a plea of not guilty by reason of insanity and underwent a mental-health evaluation. A judge of the Montgomery County Court of Common Pleas determined, consistent with the report of the mental-health examiner, that Williams was incompetent to stand trial and that there was a substantial probability that he could be restored to competency within the one-year time period prescribed by R.C. 2945.38. The trial court committed Williams to Twin Valley Behavioral Healthcare for restorative treatment.
As the one-year time limit for restoration of competency approached, a mental-health-examination report indicated that Williams remained incompetent to stand trial and opined that he could not be restored to competency within the statute of limitations for prosecuting the most serious charge in his indictment, rape. The state then orally moved at a hearing for the trial court to retain jurisdiction under R.C. 2945.39(A)(2). Williams moved to dismiss the indictment, arguing that the trial court’s exercise of continuing jurisdiction pursuant to R.C. 2945.39 would deprive him of his rights to due process and equal protection. The trial court denied the motion to dismiss and held that R.C. 2945.39 is constitutional. The trial court subsequently held a hearing under R.C. 2945.39(A)(2) to decide whether to retain jurisdiction. The trial court found by clear and convincing evidence the required statutory elements that (1) Williams committed the offense of rape with which he was charged, (2) he was a mentally ill person subject to hospitalization by court order, (3) he was not competent to stand trial, and (4) the statutory time limit for restoration treatment had expired. The court rejected Williams’ arguments that the matter belonged in probate court for a commitment under R.C. Chapter 5122. The trial court retained jurisdiction subject to R.C. 2945.401 and 2945.402 and ordered Williams to remain hospitalized at Twin Valley.
Williams appealed. In a 2-1 decision, the 2nd District Court of Appeals reversed the trial court and found the commitment process prescribed under R.C. 2945.39 to be unconstitutional on three different bases.
First, the majority held that an involuntary commitment under that statute is “criminal, not civil in nature” and that Williams’ constitutional rights were therefore violated because he had not received all the procedural safeguards in his R.C. 2945.39 commitment hearing that he should have received as a criminal defendant undergoing prosecution. Second, the appellate majority held that R.C. 2945.39 violated Williams’ right to equal protection because that statute’s procedures for committing persons under indictment for a serious felony offense do not also apply to persons who have been convicted of the same offense. Third, the appellate majority held that R.C. 2945.39 violated Williams’ right to due process because the common pleas court’s retention of jurisdiction pursuant to the criminal indictment, and the potential continuation of his commitment for the maximum term that he could have received for the most serious crime for which he was indicted, are not reasonably related to the purpose of commitment, which is to protect society from dangerous persons who are mentally ill.
The state sought and was granted Supreme Court review of the 2nd District’s decision. Writing for the majority in today’s decision, Justice Cupp examined and rejected each of constitutional infirmities found by the court of appeals.
With regard to the civil or criminal nature of Williams’ commitment proceedings, Justice Cupp wrote: “Our consideration of R.C. 2945.39 and related statutes leads us away from the view that the commitment of an incompetent defendant under R.C. 2945.39 is the functional equivalent of criminally confining the defendant. Nor do we see any indication of an overriding intent to punish or confine criminal defendants within the statutory framework. Rather, we view R.C. 2945.39 and related statutes as designed primarily for the purpose of protecting the public. In particular, we note that R.C. 2945.39(D)(1), which requires the trial court to order the least-restrictive commitment alternative available consistent with public safety and the defendant’s welfare ... explicitly states the court ‘shall give preference to protecting public safety.’ This statement gives voice to the predominant intent underlying R.C. 2945.39.
“ ... Moreover, R.C. 2945.39 ... does not require a finding of scienter (intentional wrongdoing), nor does it implicate retribution or deterrence, which are the primary objectives of criminal punishment and the two most telling factors that a particular statute is criminal in nature. ... R.C. 2945.39 does not implicate retribution, because it does not affix culpability for prior criminal conduct. ... We conclude that R.C. 2945.39 is a civil statute. Consequently, a person committed under the statute need not be afforded the constitutional rights afforded to a defendant in a criminal prosecution.”
In also rejecting the 2nd District’s finding that the involuntary commitment scheme prescribed by R.C. 2945.39 violates defendants’ due process rights, Justice Cupp wrote: “The appellate court’s conclusions appear to be based on a belief that the statute’s primary goals are to punish the defendant and restore his competency to stand trial. However, as discussed in our analysis above, R.C. 2945.39 is a civil statute with a primary goal of protecting the public. It is of great significance to our due-process inquiry that R.C. 2945.39(D)(1) requires the court to order the least-restrictive commitment alternative available consistent with public safety and the defendant’s welfare, while also emphasizing that the court ‘shall give preference to protecting public safety.’ It is apparent that a person committed under R.C. 2945.39 is not committed ‘solely’ on account of his incapacity to proceed to trial … Rather, such a person is committed only after being found by clear and convincing evidence to be mentally ill and subject to hospitalization by court order under R.C. 5122.01(B) … and being found to be a danger to the public because he was determined to have committed the offense with which he was charged.”
“The state asserts that (the Supreme Court of Ohio’s decision in State v.) Sullivan does not support appellee’s argument that his due-process rights were violated here. The purpose of the commitment in Sullivan, which involved the former version of R.C. 2945.38, was to restore the defendant to competency in order to stand trial. Because there was no probability that competency could be restored within the time set by the former statute, the mandatory treatment period bore no rational relationship to the purpose of commitment, and, therefore, the defendant’s due-process rights were violated … Our limited decision in Sullivan, however, has no application to this case, which involves the distinctly different procedures of R.C. 2945.39. The overriding purpose of this statute is to protect the public from a person who is dangerously mentally ill, has perpetrated felonious conduct, and cannot presently be tried because of his mental incompetency.”
“Thus, we conclude that R.C. 2945.39 and 2945.401 do not violate a defendant’s due-process rights by allowing the indictment to remain intact, by allowing continued efforts to restore the defendant to competency, or by permitting a defendant to be committed for a term equal to the maximum term of imprisonment that he could receive for the most serious offense charged. … For the reasons expressed herein, we conclude that the nature and duration of the commitment that occurs under R.C. 2945.39 bear a reasonable relationship to the purpose for which the person is committed … We hold that an involuntary commitment under R.C. 2945.39 does not violate principles of due process.”
Justice Cupp’s opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor and Terrence O’Donnell.
Justice Judith Ann Lanzinger entered a dissent, joined by Justice Paul E. Pfeifer, stating that in her view R.C. 2945.39 is a criminal rather than a civil statute. In support of that conclusion, Justice Lanzinger wrote: “First, the General Assembly enacted R.C. 2945.39 as part of Ohio’s criminal code. Ohio already has a civil commitment process pursuant to R.C. Chapter 5122 regarding those who are mentally ill and R.C. Chapter 5123 regarding those who are developmentally disabled. Second, tying the length of a criminal defendant’s commitment to the maximum possible prison term for the most serious offense also indicates that the commitment is criminal in nature … Finally, unlike a person committed under the civil process, a defendant who is committed under R.C. 2945.39 remains under a pending indictment. The proceeding occurs as part of the defendant’s criminal case and, therefore, the defendant should be afforded all the rights of a criminal defendant.”
Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in this case.
Contacts
Carley J. Ingram, 937.225.5757, for the Montgomery County prosecutor’s office.
Anthony Comunale, 937.227.3310, for Thonex Williams.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
Monday, May 10, 2010
Two Women Enter Pleas in Judge Kimbler's Court
On Monday, May 10, 2010, Ashley R. Isaac of Neff Road in Valley City appeared in Judge Kimbler's courtroom on a charge of Possession of Drugs, LSD, a felony of the third degree. The indictment also contained a forfeiture specification for $1378.00. Ms. Isaac's case had been set for trial, but, she decided to enter a plea instead. Judge Kimbler took the change of plea and ordered a pre-sentence investigation.
Ms. Isaac is tentatively set for sentencing on June 17, 2010. Prior to pronouncing sentence, Judge Kimbler will determine whether the State is entitled to the forfeiture of the money.
On Monday, Lavinia L. Pierce-Rives of East 43rd Street in Cleveland, Ohio, was also set for trial on a charge of Receiving Stolen Property, a fourth degree felony. Ms. Pierce-Rives also entered a plea of "no contest" and was found guilty. As in Ms. Isaac's case, Judge Kimbler ordered a pre-sentence investigation and will pronounce sentence of June 17, 2010. Judge Kimbler continued the bond in both cases.
Ms. Isaac is tentatively set for sentencing on June 17, 2010. Prior to pronouncing sentence, Judge Kimbler will determine whether the State is entitled to the forfeiture of the money.
On Monday, Lavinia L. Pierce-Rives of East 43rd Street in Cleveland, Ohio, was also set for trial on a charge of Receiving Stolen Property, a fourth degree felony. Ms. Pierce-Rives also entered a plea of "no contest" and was found guilty. As in Ms. Isaac's case, Judge Kimbler ordered a pre-sentence investigation and will pronounce sentence of June 17, 2010. Judge Kimbler continued the bond in both cases.
Wadsworth Man Enters Plea to Drug Offenses, PSI Ordered
Terence R. Martter of Trease Road in Wadsworth, Ohio, appeared in Judge Kimbler's courtroom on Monday, May 10, 2010. His case was scheduled for a jury trial on four counts of Drug Trafficking. One of the counts involved marijuana and the other three involved cocaine.
The three cocaine charges each carry a mandatory prison term. In two of the cocaine charges the mandatory term is between one year and five years. In the other cocaine charge the mandatory term is between two years and eight years.
Instead of going to trial, however, Mr. Martter entered a plea of "no contest" to each charge. Judge Kimbler then found him guilty of all four charges and ordered a pre-sentence investigation. Mr. Martter will be sentenced on June 17, 2010. Mr. Martter remains in the county jail until his sentencing date.
The three cocaine charges each carry a mandatory prison term. In two of the cocaine charges the mandatory term is between one year and five years. In the other cocaine charge the mandatory term is between two years and eight years.
Instead of going to trial, however, Mr. Martter entered a plea of "no contest" to each charge. Judge Kimbler then found him guilty of all four charges and ordered a pre-sentence investigation. Mr. Martter will be sentenced on June 17, 2010. Mr. Martter remains in the county jail until his sentencing date.
Tuesday, May 04, 2010
Prior DNA Test Not ‘Definitive’ If New Testing Method Can Detect Information Old Test Could Not
Case Returned to Trial Court to Determine if Other Criteria for Granting New Test Also Met
2009-0605. State v. Prade, Slip Opinion No. 2010-Ohio-1842.
Summit App. No. 24296, 2009-Ohio-704. Judgment of the court of appeals reversed, and cause remanded to the trial court.
Pfeifer, Lundberg Stratton, Lanzinger, and Cupp, JJ., concur.
Delaney and O'Donnell, JJ., dissent.
Brown, C.J., not participating.
Patricia A. Delaney, J., of the Fifth Appellate District, sitting for O’Connor, J.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-1842.pdf
(May 4, 2010) The Supreme Court of Ohio ruled today that under R.C. 2953.74, a state law that allows prison inmates to obtain new DNA testing of evidence from their trials under certain conditions, a prior DNA test is not “definitive” when a new testing method can detect information that could not be detected by the prior DNA test.
Applying that holding to the case of former Akron police captain Douglas Prade, who is currently serving a life sentence for the 1997 murder of his ex-wife, the Court overruled decisions of the Summit County Court of Common Pleas and 9th District Court of Appeals that denied Prade’s request for new testing of crime scene evidence on the basis that “a prior definitive DNA test” had been conducted at the time of his trial. Today’s decision did not order the trial court to approve Prade’s request for new testing, but overruled its finding that a 1998 DNA test performed on the victim’s clothing was definitive, and directed the trial court to conduct further proceedings.
Writing for a 4-2 majority of the Court, Justice Evelyn Lundberg Stratton emphasized that today’s decision does not address “the issue of whether to allow new DNA testing in cases where prior tests provided a match or other meaningful information, and an inmate is simply asking for a new test using the latest techniques. Rather, our holding is limited to situations in which advances in DNA testing have made it possible to learn information about DNA evidence that could not even be detected at the earlier trial.”
Under the statute at issue in the case, a trial court has discretion to approve an inmate’s request for postconviction DNA testing of trial evidence only if 1) there has not been “a prior definitive DNA test” performed on that evidence, and 2) the inmate shows that DNA test results excluding him or her as the source of genetic material from the crime scene “would have been outcome determinative at the trial stage of the case.”
Prade was charged with fatally shooting his ex-wife, Dr. Margo Prade, while she sat in a van outside her medical office. Among the physical evidence introduced at his 1998 trial was a bite mark that the killer made on Dr. Prade’s arm through her lab coat and blouse when she apparently attempted to defend herself. Although DNA tests were performed on the sleeve of the lab coat over the bite mark, blood from the victim’s wounds had covered that area of the sleeve and technicians using the best testing method available at that time, called polymerase chain reaction or PCR testing, reported that the only DNA they were able to detect on the sleeve was that of the victim. Expert witnesses called by Prade and by the state offered conflicting testimony regarding whether the bite mark left on the victim’s skin was compatible with Prade’s teeth. He was subsequently convicted and sentenced to life in prison.
In 2003 the General Assembly enacted legislation allowing postconviction DNA testing of trial evidence. Prade twice applied to the trial court seeking follow-up testing of the lab coat. His original request in 2004 was denied based on the court’s finding that the tests conducted at the time of his trial had definitively excluded Prade as a source of DNA on the lab coat, and therefore any new test that excluded him as a source would not have changed the outcome of his case. Prade filed a second request in 2008. The trial court again ruled that he was not eligible for new DNA testing under R.C. 2953.74 because a prior definitive test had been performed. On review, the 9th District Court of Appeals affirmed the trial court’s decision.
In today’s Supreme Court decision, Justice Stratton wrote: “Because defendant was excluded as a contributor to the DNA that was typed in this case, the lower courts concluded that the prior DNA tests done in 1998 were definitive. However, the only information that the DNA testing on the lab coat revealed was that Dr. Prade’s blood was present on her lab coat. The state’s expert agreed that the 1998 DNA ‘test results [did] not give [him] any information about the killer’ and that ‘the bite mark show[ed] [him] Margo Prade’s DNA only.’ Therefore, the testing excluded defendant only in the sense that the DNA found was not his, because it was the victim’s. But the ‘exclusion’ excluded everyone other than the victim in that the victim’s DNA overwhelmed the killer’s DNA due to the limitations of the 1998 testing methods. Therefore, the exclusion was meaningless, and the test cannot be deemed to have been definitive.”
Citing testimony by the quality assurance administrator of the state’s own DNA testing laboratory, Justice Stratton wrote that recent advances in DNA testing techniques, including the development of Y-STR testing that “ignores” female DNA in a test sample and detects only male DNA, now make it possible for new testing to do what the PCR methodology available in 1998 could not: identify and test small amounts of genetic material from a male even when it has been commingled with a much greater amount of female DNA such as the blood stains on Dr. Prade’s lab coat. “Thus,” wrote Justice Stratton, “new DNA testing methods are now able to provide new information that was not able to be detected at the time of defendant’s trial. We hold that a prior DNA test is not ‘definitive’ within the meaning of R.C. 2953.74(A) when a new DNA testing method can detect information that could not be detected by the prior DNA test.”
Although the Court’s holding overruled the trial court and 9th District’s primary basis for denying new DNA testing in the case, the Court remanded the case to the trial court to consider the second step of the analysis: whether the new DNA testing would be outcome determinative (i.e., whether there is a strong probability that no reasonable factfinder would have found the inmate guilty of that offense) pursuant to R.C. 2953.74(B) and 2953.71(L).
She wrote: “Neither court below considered R.C. 2953.74(B) and 2953.71(L) in detail because they each resolved the issue of definitiveness against the inmate – an issue that must be decided in an inmate’s favor before the question of whether additional testing would be outcome-determinative has any relevance. Because we reverse on the issue of the definitiveness of the prior testing, the trial court must be given the opportunity to consider outcome-determinativeness in detail as the statutes envision. Therefore, rather than applying R.C. 2953.74(B)(2) and 2953.71(L) at this point in the case, we remand the cause to the trial court for that court to consider whether the new DNA testing would be outcome-determinative.”
In conclusion, Justice Stratton emphasized that today’s decision does not address “the issue of whether to allow new DNA testing in cases where prior tests provided a match or other meaningful information, and an inmate is simply asking for a new test using the latest techniques. Rather, our holding is limited to situations in which advances in DNA testing have made it possible to learn information about DNA evidence that could not even be detected at the earlier trial.”
Justice Stratton’s opinion was joined by Justices Paul E. Pfeifer, Judith Ann Lanzinger and Robert R. Cupp.
Justice Terrence O’Donnell entered a dissenting opinion that was joined by Judge Patricia A. Delaney of the 5th District Court of Appeals, who sat in place of Justice Maureen O’Connor. Justice O’Donnell disagreed with the majority’s holding that a prior DNA test performed on evidence in an inmate’s case is not “definitive” within the meaning of R.C. 2953.74(A) if scientific advances since the inmate’s trial would allow a new test to detect genetic material not identified in the prior test.
He wrote: “(N)either the plain meaning of the word ‘definitive’ nor any other provision of the postconviction DNA testing statute authorizes the trial court to consider advances in testing technology to determine whether prior DNA tests were definitive. Moreover, if trial courts began to consider advances in testing technology, no test would ever be considered definitive, because the standards would continue to evolve and never reveal a final result. The finality of a conviction could therefore be undermined each time a new method of examination or technological advance occurred, even if the biological evidence had already been the subject of multiple postconviction DNA examinations. The General Assembly intended to preserve final judgments and never provided for the constant reexamination of DNA samples based on scientific advances.”
Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.
Contacts
David B. Alden, 216.586.7121, for Douglas Prade.
Richard S. Kasay, 330.643.2800, for the state and Summit County prosecutor’s office.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions.
2009-0605. State v. Prade, Slip Opinion No. 2010-Ohio-1842.
Summit App. No. 24296, 2009-Ohio-704. Judgment of the court of appeals reversed, and cause remanded to the trial court.
Pfeifer, Lundberg Stratton, Lanzinger, and Cupp, JJ., concur.
Delaney and O'Donnell, JJ., dissent.
Brown, C.J., not participating.
Patricia A. Delaney, J., of the Fifth Appellate District, sitting for O’Connor, J.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-1842.pdf
(May 4, 2010) The Supreme Court of Ohio ruled today that under R.C. 2953.74, a state law that allows prison inmates to obtain new DNA testing of evidence from their trials under certain conditions, a prior DNA test is not “definitive” when a new testing method can detect information that could not be detected by the prior DNA test.
Applying that holding to the case of former Akron police captain Douglas Prade, who is currently serving a life sentence for the 1997 murder of his ex-wife, the Court overruled decisions of the Summit County Court of Common Pleas and 9th District Court of Appeals that denied Prade’s request for new testing of crime scene evidence on the basis that “a prior definitive DNA test” had been conducted at the time of his trial. Today’s decision did not order the trial court to approve Prade’s request for new testing, but overruled its finding that a 1998 DNA test performed on the victim’s clothing was definitive, and directed the trial court to conduct further proceedings.
Writing for a 4-2 majority of the Court, Justice Evelyn Lundberg Stratton emphasized that today’s decision does not address “the issue of whether to allow new DNA testing in cases where prior tests provided a match or other meaningful information, and an inmate is simply asking for a new test using the latest techniques. Rather, our holding is limited to situations in which advances in DNA testing have made it possible to learn information about DNA evidence that could not even be detected at the earlier trial.”
Under the statute at issue in the case, a trial court has discretion to approve an inmate’s request for postconviction DNA testing of trial evidence only if 1) there has not been “a prior definitive DNA test” performed on that evidence, and 2) the inmate shows that DNA test results excluding him or her as the source of genetic material from the crime scene “would have been outcome determinative at the trial stage of the case.”
Prade was charged with fatally shooting his ex-wife, Dr. Margo Prade, while she sat in a van outside her medical office. Among the physical evidence introduced at his 1998 trial was a bite mark that the killer made on Dr. Prade’s arm through her lab coat and blouse when she apparently attempted to defend herself. Although DNA tests were performed on the sleeve of the lab coat over the bite mark, blood from the victim’s wounds had covered that area of the sleeve and technicians using the best testing method available at that time, called polymerase chain reaction or PCR testing, reported that the only DNA they were able to detect on the sleeve was that of the victim. Expert witnesses called by Prade and by the state offered conflicting testimony regarding whether the bite mark left on the victim’s skin was compatible with Prade’s teeth. He was subsequently convicted and sentenced to life in prison.
In 2003 the General Assembly enacted legislation allowing postconviction DNA testing of trial evidence. Prade twice applied to the trial court seeking follow-up testing of the lab coat. His original request in 2004 was denied based on the court’s finding that the tests conducted at the time of his trial had definitively excluded Prade as a source of DNA on the lab coat, and therefore any new test that excluded him as a source would not have changed the outcome of his case. Prade filed a second request in 2008. The trial court again ruled that he was not eligible for new DNA testing under R.C. 2953.74 because a prior definitive test had been performed. On review, the 9th District Court of Appeals affirmed the trial court’s decision.
In today’s Supreme Court decision, Justice Stratton wrote: “Because defendant was excluded as a contributor to the DNA that was typed in this case, the lower courts concluded that the prior DNA tests done in 1998 were definitive. However, the only information that the DNA testing on the lab coat revealed was that Dr. Prade’s blood was present on her lab coat. The state’s expert agreed that the 1998 DNA ‘test results [did] not give [him] any information about the killer’ and that ‘the bite mark show[ed] [him] Margo Prade’s DNA only.’ Therefore, the testing excluded defendant only in the sense that the DNA found was not his, because it was the victim’s. But the ‘exclusion’ excluded everyone other than the victim in that the victim’s DNA overwhelmed the killer’s DNA due to the limitations of the 1998 testing methods. Therefore, the exclusion was meaningless, and the test cannot be deemed to have been definitive.”
Citing testimony by the quality assurance administrator of the state’s own DNA testing laboratory, Justice Stratton wrote that recent advances in DNA testing techniques, including the development of Y-STR testing that “ignores” female DNA in a test sample and detects only male DNA, now make it possible for new testing to do what the PCR methodology available in 1998 could not: identify and test small amounts of genetic material from a male even when it has been commingled with a much greater amount of female DNA such as the blood stains on Dr. Prade’s lab coat. “Thus,” wrote Justice Stratton, “new DNA testing methods are now able to provide new information that was not able to be detected at the time of defendant’s trial. We hold that a prior DNA test is not ‘definitive’ within the meaning of R.C. 2953.74(A) when a new DNA testing method can detect information that could not be detected by the prior DNA test.”
Although the Court’s holding overruled the trial court and 9th District’s primary basis for denying new DNA testing in the case, the Court remanded the case to the trial court to consider the second step of the analysis: whether the new DNA testing would be outcome determinative (i.e., whether there is a strong probability that no reasonable factfinder would have found the inmate guilty of that offense) pursuant to R.C. 2953.74(B) and 2953.71(L).
She wrote: “Neither court below considered R.C. 2953.74(B) and 2953.71(L) in detail because they each resolved the issue of definitiveness against the inmate – an issue that must be decided in an inmate’s favor before the question of whether additional testing would be outcome-determinative has any relevance. Because we reverse on the issue of the definitiveness of the prior testing, the trial court must be given the opportunity to consider outcome-determinativeness in detail as the statutes envision. Therefore, rather than applying R.C. 2953.74(B)(2) and 2953.71(L) at this point in the case, we remand the cause to the trial court for that court to consider whether the new DNA testing would be outcome-determinative.”
In conclusion, Justice Stratton emphasized that today’s decision does not address “the issue of whether to allow new DNA testing in cases where prior tests provided a match or other meaningful information, and an inmate is simply asking for a new test using the latest techniques. Rather, our holding is limited to situations in which advances in DNA testing have made it possible to learn information about DNA evidence that could not even be detected at the earlier trial.”
Justice Stratton’s opinion was joined by Justices Paul E. Pfeifer, Judith Ann Lanzinger and Robert R. Cupp.
Justice Terrence O’Donnell entered a dissenting opinion that was joined by Judge Patricia A. Delaney of the 5th District Court of Appeals, who sat in place of Justice Maureen O’Connor. Justice O’Donnell disagreed with the majority’s holding that a prior DNA test performed on evidence in an inmate’s case is not “definitive” within the meaning of R.C. 2953.74(A) if scientific advances since the inmate’s trial would allow a new test to detect genetic material not identified in the prior test.
He wrote: “(N)either the plain meaning of the word ‘definitive’ nor any other provision of the postconviction DNA testing statute authorizes the trial court to consider advances in testing technology to determine whether prior DNA tests were definitive. Moreover, if trial courts began to consider advances in testing technology, no test would ever be considered definitive, because the standards would continue to evolve and never reveal a final result. The finality of a conviction could therefore be undermined each time a new method of examination or technological advance occurred, even if the biological evidence had already been the subject of multiple postconviction DNA examinations. The General Assembly intended to preserve final judgments and never provided for the constant reexamination of DNA samples based on scientific advances.”
Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.
Contacts
David B. Alden, 216.586.7121, for Douglas Prade.
Richard S. Kasay, 330.643.2800, for the state and Summit County prosecutor’s office.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions.
Thursday, April 29, 2010
Ohio Supreme Court Submits "Open Discovery" Criminal Rule Change to General Assembly
he Supreme Court of Ohio today filed with the Ohio General Assembly final amendments to the annual update of the Rules of Practice and Procedure, including changes to the criminal discovery process that were developed through a collaborative process led by the late Chief Justice Thomas J. Moyer and including the criminal defense bar and prosecutors.
The amendments concern changes to the rules of criminal procedure and the rules of appellate procedure. Specifically, the amendments to Criminal Rule 16 call for a more open discovery process, and the revision of several rules of appellate procedure implements a procedure for en banc consideration in courts of appeals when separate three-judge panels within the same court of appeals reach conflicting decisions on the same matter of law.
The new discovery process would allow defense counsel access to materials that, under the current rule, prosecutors did not have to divulge. Changes in Crim.R. 16 also call for establishing a defendant’s reciprocal duty of disclosure and seek to protect victims and witnesses from potential harassment.
The discovery reforms were developed through an extraordinary cooperative process that involved leaders of the Ohio Prosecuting Attorneys Association and Ohio Association of Criminal Defense Lawyers. Chief Justice Moyer had urged them to collectively develop proposed rules that would be considered for adoption by the Supreme Court.
“The patience and spirit of cooperation required to realize these important and necessary changes to the discovery process speak volumes about Chief Justice Moyer’s collaborative, collegial nature,” said Justice Paul E. Pfeifer. “His vision and persistence and, finally, his stubbornness in supporting a just cause, led to this remarkable achievement for our legal system. For well over a decade, he worked for this change, and we have been through numerous starts and stops. But today, we stand in a great place – the proposed Crim.R. 16 emerged from this court by a unanimous vote, has the support of prosecutors and defense attorneys, and, we think, bipartisan support in the General Assembly. All of that is the direct result of Tom’s stewardship.”
The en banc provisions of the appellate procedure rules result from the Supreme Court’s decision in McFadden v. Cleveland State Univ. The Court held that “if the judges of a court of appeals determine that two or more decisions of the court on which they sit are in conflict, they must convene en banc to resolve the conflict.” Language was also added to the proposed amendments to ensure that an order or entry in reconsideration that results in an intra-district conflict also could be subject to en banc consideration.
Other changes to the criminal procedure rules include amending Crim. R. 12(K) to accommodate the new interlocutory appeal to review a trial court’s ruling on a prosecutor’s non-disclosure of material granted under proposed Crim. R. 16(F)(2). Amendments to Crim. R. 41 permit applications and approvals of search warrants to be accomplished by electronic means, including facsimile transmission.
The amendments were adopted unanimously by the seven Justices of the Supreme Court, with the exception of Crim. R. 41, which was adopted 6-1 with Justice Terrence O’Donnell voting no.
According to the Ohio Constitution, amendments to rules of procedure must be filed with the General Assembly. After the initial filing, which must occur before Jan. 15, there was a period of public comment; the Court revised the amendments and filed final versions with the General Assembly before the constitutionally mandated deadline of May 1. The amendments take effect on July 1, unless before that date the General Assembly adopts a concurrent resolution of disapproval. The process also included another public comment period after the amendments were first published last October.
The text of the rule amendments are accessible through the Ohio Supreme Court website.
The amendments concern changes to the rules of criminal procedure and the rules of appellate procedure. Specifically, the amendments to Criminal Rule 16 call for a more open discovery process, and the revision of several rules of appellate procedure implements a procedure for en banc consideration in courts of appeals when separate three-judge panels within the same court of appeals reach conflicting decisions on the same matter of law.
The new discovery process would allow defense counsel access to materials that, under the current rule, prosecutors did not have to divulge. Changes in Crim.R. 16 also call for establishing a defendant’s reciprocal duty of disclosure and seek to protect victims and witnesses from potential harassment.
The discovery reforms were developed through an extraordinary cooperative process that involved leaders of the Ohio Prosecuting Attorneys Association and Ohio Association of Criminal Defense Lawyers. Chief Justice Moyer had urged them to collectively develop proposed rules that would be considered for adoption by the Supreme Court.
“The patience and spirit of cooperation required to realize these important and necessary changes to the discovery process speak volumes about Chief Justice Moyer’s collaborative, collegial nature,” said Justice Paul E. Pfeifer. “His vision and persistence and, finally, his stubbornness in supporting a just cause, led to this remarkable achievement for our legal system. For well over a decade, he worked for this change, and we have been through numerous starts and stops. But today, we stand in a great place – the proposed Crim.R. 16 emerged from this court by a unanimous vote, has the support of prosecutors and defense attorneys, and, we think, bipartisan support in the General Assembly. All of that is the direct result of Tom’s stewardship.”
The en banc provisions of the appellate procedure rules result from the Supreme Court’s decision in McFadden v. Cleveland State Univ. The Court held that “if the judges of a court of appeals determine that two or more decisions of the court on which they sit are in conflict, they must convene en banc to resolve the conflict.” Language was also added to the proposed amendments to ensure that an order or entry in reconsideration that results in an intra-district conflict also could be subject to en banc consideration.
Other changes to the criminal procedure rules include amending Crim. R. 12(K) to accommodate the new interlocutory appeal to review a trial court’s ruling on a prosecutor’s non-disclosure of material granted under proposed Crim. R. 16(F)(2). Amendments to Crim. R. 41 permit applications and approvals of search warrants to be accomplished by electronic means, including facsimile transmission.
The amendments were adopted unanimously by the seven Justices of the Supreme Court, with the exception of Crim. R. 41, which was adopted 6-1 with Justice Terrence O’Donnell voting no.
According to the Ohio Constitution, amendments to rules of procedure must be filed with the General Assembly. After the initial filing, which must occur before Jan. 15, there was a period of public comment; the Court revised the amendments and filed final versions with the General Assembly before the constitutionally mandated deadline of May 1. The amendments take effect on July 1, unless before that date the General Assembly adopts a concurrent resolution of disapproval. The process also included another public comment period after the amendments were first published last October.
The text of the rule amendments are accessible through the Ohio Supreme Court website.
Saturday, April 24, 2010
The Confrontation Clause and Pretrial Motions
By Judge James L. Kimbler
In an earlier note, I discussed whether the Ohio Rules of Evidence apply to pre-trial hearings on motions to suppress evidence. Ohio courts have held that it does not. As a result, a trial judge can consider evidence that would be objectionable at trial when ruling on a motion to suppress. Such evidence might well include hearsay evidence.
If a trial court does receive hearsay evidence at a pretrial hearing, has it violated the defendant's right to confront his or her accusers? That is, even if the Ohio Evidence Rules don't at hearing on motions to suppress, do the Confrontation Clause of the Ohio and Federal Constitutions prevent trial courts from considering hearsay evidence at such hearings?
Ohio courts have quoted language from United States Supreme Court decisions which refer to the right of confrontation as being a "trial right." An example is the following language from a decision of the Court of Appeals for the Ninth Appellate District on the issue of whether there is a right of confrontation at a hearing on a motion filed pursuant to Crim. R. 33:
"As for Cureton's arguments under the Crim.R. 33 motion, As for Cureton's arguments under the Crim.R. 33 motion, the Confrontation Clause provides two types of protections for a criminal defendant: the right physically to face those who testify against him and the right to conduct cross-examination. Pennsylvania v. Ritchie (1987), 480 U.S. 39, 51, 94 L. Ed. 2d 40, 107 S. Ct. 989. "The opinions of this Court show that the right to confrontation is a trial right, designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination." (Emphasis sic.) Id. at 52. Cureton has presented no authority that states his right to confront witnesses extends to a Crim.R. 33 hearing on a motion for a new trial."
(State v. Cureton, 2003 Ohio 6010 at P32)
In State v. Irwin, 2007 Ohio 4496, the Court of Appeals for the Seventh Appellate District wrote the following at P22:
"Appellant is correct that Crawford has a bearing on her assignment of error because Crawford, and the entire legal history of the confrontation clause, reveals the right of confrontation is a trial right."
Given the fact that at least two Ohio appellate courts have stated that the right of confrontation is a trial right, it would seem that the Confrontation Clause does not bar a trial court from receiving hearsay evidence at a hearing on a motion to suppress.
Whether, of course, a trial court would be persuaded by such evidence is another matter entirely.
In an earlier note, I discussed whether the Ohio Rules of Evidence apply to pre-trial hearings on motions to suppress evidence. Ohio courts have held that it does not. As a result, a trial judge can consider evidence that would be objectionable at trial when ruling on a motion to suppress. Such evidence might well include hearsay evidence.
If a trial court does receive hearsay evidence at a pretrial hearing, has it violated the defendant's right to confront his or her accusers? That is, even if the Ohio Evidence Rules don't at hearing on motions to suppress, do the Confrontation Clause of the Ohio and Federal Constitutions prevent trial courts from considering hearsay evidence at such hearings?
Ohio courts have quoted language from United States Supreme Court decisions which refer to the right of confrontation as being a "trial right." An example is the following language from a decision of the Court of Appeals for the Ninth Appellate District on the issue of whether there is a right of confrontation at a hearing on a motion filed pursuant to Crim. R. 33:
"As for Cureton's arguments under the Crim.R. 33 motion, As for Cureton's arguments under the Crim.R. 33 motion, the Confrontation Clause provides two types of protections for a criminal defendant: the right physically to face those who testify against him and the right to conduct cross-examination. Pennsylvania v. Ritchie (1987), 480 U.S. 39, 51, 94 L. Ed. 2d 40, 107 S. Ct. 989. "The opinions of this Court show that the right to confrontation is a trial right, designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination." (Emphasis sic.) Id. at 52. Cureton has presented no authority that states his right to confront witnesses extends to a Crim.R. 33 hearing on a motion for a new trial."
(State v. Cureton, 2003 Ohio 6010 at P32)
In State v. Irwin, 2007 Ohio 4496, the Court of Appeals for the Seventh Appellate District wrote the following at P22:
"Appellant is correct that Crawford has a bearing on her assignment of error because Crawford, and the entire legal history of the confrontation clause, reveals the right of confrontation is a trial right."
Given the fact that at least two Ohio appellate courts have stated that the right of confrontation is a trial right, it would seem that the Confrontation Clause does not bar a trial court from receiving hearsay evidence at a hearing on a motion to suppress.
Whether, of course, a trial court would be persuaded by such evidence is another matter entirely.
Friday, April 02, 2010
Judge Collier Denys Pirovolos Motion to Withdraw Plea
On Wednesday, March 31, 2010, Judge Christopher J. Collier denied the motion of Angelo Pirovolos to withdraw his plea of "no contest" to one count of Attempted Murder, a first degree felony, two counts of Felonious Assault, both of which were second degree felonies, and one count of Having a Weapon Under Disability, a third degree felony.
Mr. Pirovolos had entered his pleas at a hearing in front of Judge James Kimbler on September 16, 2008, and had been found guilty at that time. Judge Kimbler then ordered a presentence investigation report and sentenced him to 12 years in prison on November 14, 2008. Following the sentencing, Mr. Pirovolos filed an appeal.
The Court of Appeals reversed the sentence on the grounds that Judge Kimbler had not properly imposed a period of post-release control. When the case was remanded back to Judge Kimbler, Mr. Pirovolos filed a motion to withdraw his pleas to all the charges. At that point, Judge Kimbler transferred the case to Judge Collier. Judge Kimbler believed that since he had taken the plea, and since Mr. Pirovolos was challenging the way the change of plea hearing was conducted, that a different judge should hear the motion.
In overruling Mr. Pirovolos's motion to withdraw the pleas, Judge Collier held that Mr. Pirovolos's case falls under R.C. 2929.191. That statute draws a distinction between sentences that were imposed before and after July 11,2006. If a sentence was imposed prior to July 11,2006, and the judge didn't properly impose post-release control, then the case comes back to the trial court and that court conducts a new sentencing hearing. If, however, the sentence was imposed after July 11, 2006, and the trial court didn't properly impose post-release control, then the case comes back to the trial court, but that court only conducts a hearing to properly impose the post-release control period. Such a hearing is not a new sentencing hearing.
Under the Ohio Supreme Court decision of State v. Singleton, 2009-Ohio-6434, a motion to withdraw a plea filed before the court conducts a R.C. 2929.191 hearing is to be considered a post-sentence motion, not a pre-sentence motion. Post-sentence motions to withdraw a plea are to be granted only to correct a manifest injustice. In Mr. Pirovolos's case, Judge Collier did not find such an injustice, and therefore denied the motion to withdraw the plea.
Judge Collier has scheduled a hearing for April. 9, 2010, at 9 am. At that hearing, Judge Collier will properly impose the post-release control period.
Mr. Pirovolos had entered his pleas at a hearing in front of Judge James Kimbler on September 16, 2008, and had been found guilty at that time. Judge Kimbler then ordered a presentence investigation report and sentenced him to 12 years in prison on November 14, 2008. Following the sentencing, Mr. Pirovolos filed an appeal.
The Court of Appeals reversed the sentence on the grounds that Judge Kimbler had not properly imposed a period of post-release control. When the case was remanded back to Judge Kimbler, Mr. Pirovolos filed a motion to withdraw his pleas to all the charges. At that point, Judge Kimbler transferred the case to Judge Collier. Judge Kimbler believed that since he had taken the plea, and since Mr. Pirovolos was challenging the way the change of plea hearing was conducted, that a different judge should hear the motion.
In overruling Mr. Pirovolos's motion to withdraw the pleas, Judge Collier held that Mr. Pirovolos's case falls under R.C. 2929.191. That statute draws a distinction between sentences that were imposed before and after July 11,2006. If a sentence was imposed prior to July 11,2006, and the judge didn't properly impose post-release control, then the case comes back to the trial court and that court conducts a new sentencing hearing. If, however, the sentence was imposed after July 11, 2006, and the trial court didn't properly impose post-release control, then the case comes back to the trial court, but that court only conducts a hearing to properly impose the post-release control period. Such a hearing is not a new sentencing hearing.
Under the Ohio Supreme Court decision of State v. Singleton, 2009-Ohio-6434, a motion to withdraw a plea filed before the court conducts a R.C. 2929.191 hearing is to be considered a post-sentence motion, not a pre-sentence motion. Post-sentence motions to withdraw a plea are to be granted only to correct a manifest injustice. In Mr. Pirovolos's case, Judge Collier did not find such an injustice, and therefore denied the motion to withdraw the plea.
Judge Collier has scheduled a hearing for April. 9, 2010, at 9 am. At that hearing, Judge Collier will properly impose the post-release control period.
Sunday, March 28, 2010
Indictment Charging Child Endangerment as Third-Degree Felony May Be Amended to Include Serious Physical Harm Element
Court Rules Amendment Does Not Change ‘Name or Identity of Crime Charged’
2009-0678. State v. Pepka, Slip Opinion No. 2010-Ohio-1045.
Lake App. No. 2008-L-016, 2009-Ohio-1440. Judgment of the court of appeals reversed, and appellee’s convictions and sentence reinstated.
Pfeifer, Lundberg Stratton, O'Connor, Lanzinger, and Cupp, JJ., concur.
Moyer, C.J., and O'Donnell, J., dissent and would dismiss the appeal as having been improvidently accepted.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-1045.pdf
(March 25, 2010) The Supreme Court of Ohio ruled today that an indictment that charges a defendant with child endangering in violation of R.C. 2919.22(A) as a third-degree felony, but does not contain language that the victim suffered serious physical harm, adequately informs the defendant of the charge against which he must defend and is therefore legally sufficient.
The Court’s 5-2 majority opinion, authored by Justice Maureen O’Connor, reversed a decision of the 11th District Court of Appeals.
The offense of child endangerment in violation of R.C. 2919.22(A) is punishable as a first-degree misdemeanor except where the defendant’s acts or omissions cause “serious physical harm” to a child, in which case pursuant to R.C. 2919.22(E)(2)(c), the offense is elevated to a third-degree felony. In this case, Joseph Pepka of Lake County was indicted on three counts of child endangerment. Each count in the indictment indicated that the offense with which Pepka was charged was a third-degree felony, but the indictment returned by the grand jury did not include a specific finding that the victim had suffered serious physical harm as a result of Pepka’s acts or omissions.
Before Pepka came to trial, the state sought and was granted permission by the trial court to amend the indictment to add to each count the element that the child victim suffered serious physical harm. At trial, before opening arguments, Pepka’s attorneys objected to the amended indictment, arguing that addition of the element of serious physical harm changed the nature of the crime with which he was charged. The court overruled that objection and Pepka was subsequently found guilty and sentenced on three felony counts of child endangerment.
Pepka appealed, arguing that his convictions should be reduced from felonies to first-degree misdemeanors because the grand jury had not made findings that he caused the victim serious physical harm, and without such a finding he had not been properly indicted for felony child endangerment. The 11th District Court of Appeals held that the trial court erred in allowing the state to amend the indictment to add an element not found by the grand jury, and remanded the case to the trial court with a directive to vacate Pepka’s felony convictions and resentence him for three misdemeanor counts of child endangerment. The state sought and was granted Supreme Court review of the 11th District’s judgment.
In today’s decision, Justice O’Connor wrote: “(T)he Ohio Constitution guarantees an accused that the essential facts constituting the offense for which he is tried will be found in the indictment by the grand jury. As this court recently reaffirmed, ‘[u]nder Crim.R. 7(D), a court may amend an indictment “at any time” if the amendment does not change “the name or identity of the crime charged.” ’ ... An amendment that changes the penalty or degree of the charged offense changes the identity of the offense, and is not permitted by Crim.R. 7(D). ... As long as the state complies with Crim.R. 7(D), it may cure a defective indictment by amendment, even if the original indictment omits an essential element of the offense with which the defendant is charged.”
“(I)t is undisputed that the name of the crime alleged against Pepka was never amended—he was always charged with endangering children in violation of 2919.22(A) ... However, the Eleventh District held that by adding the language specifying that the alleged crimes resulted in serious physical harm to the victim, the state modified the charges from first-degree misdemeanors to third-degree felonies. As a result, the court of appeals concluded, the amendment did not satisfy Crim.R. 7(D), because it impermissibly changed the identity of the crimes.”
“We hold that the indictment was sufficient. ... The original indictment set forth the elements of child endangering under R.C. 2919.22(A) and specified that Pepka was charged with third-degree felonies. The only circumstance in which child endangering in violation of R.C. 2919.22(A) is a third-degree felony is when the victim suffers serious physical harm. ... Thus, the original indictment was sufficient to provide Pepka adequate notice of both the offenses and the degree of the offenses with which he was charged. In fact, Pepka’s counsel conceded at trial and at oral argument in this court that Pepka knew ‘[f]rom the beginning’ that he was facing third-degree-felony charges and that the state would argue that (the victim) suffered serious physical harm. Pepka was also aware that the state planned to submit evidence at trial of the seriousness of (the victim’s) injuries, based on discovery received from the state months before trial – including ... medical records and the consulting physician’s report.”
Justice O’Connor concluded that: “Pepka was on notice from the initial indictment that he was charged with a third-degree felony for violating R.C. 2919.22(A), and the Revised Code makes it clear that the only circumstance in which endangering children under R.C. 2919.22(A) is a third-degree felony is when the victim suffers serious physical harm. Pepka’s original indictment was sufficient to charge him with a third-degree-felony offense, and the amended indictment did not change the name or identity of the crime charged. Therefore, we reverse the decision of the court of appeals and reinstate Pepka’s third-degree-felony convictions and sentence.”
The majority opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Judith A. Lanzinger and Robert R. Cupp.
Chief Justice Thomas J. Moyer and Justice Terrence O’Donnell dissented, stating that they would dismiss the state’s appeal as having been improvidently accepted for review.
Contacts
Joshua S. Horacek, 440.350.2683, for the State of Ohio and Lake County prosecutor’s office.
Albert L. Purola, 440.951.2323, for Joseph Pepka.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions
2009-0678. State v. Pepka, Slip Opinion No. 2010-Ohio-1045.
Lake App. No. 2008-L-016, 2009-Ohio-1440. Judgment of the court of appeals reversed, and appellee’s convictions and sentence reinstated.
Pfeifer, Lundberg Stratton, O'Connor, Lanzinger, and Cupp, JJ., concur.
Moyer, C.J., and O'Donnell, J., dissent and would dismiss the appeal as having been improvidently accepted.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-1045.pdf
(March 25, 2010) The Supreme Court of Ohio ruled today that an indictment that charges a defendant with child endangering in violation of R.C. 2919.22(A) as a third-degree felony, but does not contain language that the victim suffered serious physical harm, adequately informs the defendant of the charge against which he must defend and is therefore legally sufficient.
The Court’s 5-2 majority opinion, authored by Justice Maureen O’Connor, reversed a decision of the 11th District Court of Appeals.
The offense of child endangerment in violation of R.C. 2919.22(A) is punishable as a first-degree misdemeanor except where the defendant’s acts or omissions cause “serious physical harm” to a child, in which case pursuant to R.C. 2919.22(E)(2)(c), the offense is elevated to a third-degree felony. In this case, Joseph Pepka of Lake County was indicted on three counts of child endangerment. Each count in the indictment indicated that the offense with which Pepka was charged was a third-degree felony, but the indictment returned by the grand jury did not include a specific finding that the victim had suffered serious physical harm as a result of Pepka’s acts or omissions.
Before Pepka came to trial, the state sought and was granted permission by the trial court to amend the indictment to add to each count the element that the child victim suffered serious physical harm. At trial, before opening arguments, Pepka’s attorneys objected to the amended indictment, arguing that addition of the element of serious physical harm changed the nature of the crime with which he was charged. The court overruled that objection and Pepka was subsequently found guilty and sentenced on three felony counts of child endangerment.
Pepka appealed, arguing that his convictions should be reduced from felonies to first-degree misdemeanors because the grand jury had not made findings that he caused the victim serious physical harm, and without such a finding he had not been properly indicted for felony child endangerment. The 11th District Court of Appeals held that the trial court erred in allowing the state to amend the indictment to add an element not found by the grand jury, and remanded the case to the trial court with a directive to vacate Pepka’s felony convictions and resentence him for three misdemeanor counts of child endangerment. The state sought and was granted Supreme Court review of the 11th District’s judgment.
In today’s decision, Justice O’Connor wrote: “(T)he Ohio Constitution guarantees an accused that the essential facts constituting the offense for which he is tried will be found in the indictment by the grand jury. As this court recently reaffirmed, ‘[u]nder Crim.R. 7(D), a court may amend an indictment “at any time” if the amendment does not change “the name or identity of the crime charged.” ’ ... An amendment that changes the penalty or degree of the charged offense changes the identity of the offense, and is not permitted by Crim.R. 7(D). ... As long as the state complies with Crim.R. 7(D), it may cure a defective indictment by amendment, even if the original indictment omits an essential element of the offense with which the defendant is charged.”
“(I)t is undisputed that the name of the crime alleged against Pepka was never amended—he was always charged with endangering children in violation of 2919.22(A) ... However, the Eleventh District held that by adding the language specifying that the alleged crimes resulted in serious physical harm to the victim, the state modified the charges from first-degree misdemeanors to third-degree felonies. As a result, the court of appeals concluded, the amendment did not satisfy Crim.R. 7(D), because it impermissibly changed the identity of the crimes.”
“We hold that the indictment was sufficient. ... The original indictment set forth the elements of child endangering under R.C. 2919.22(A) and specified that Pepka was charged with third-degree felonies. The only circumstance in which child endangering in violation of R.C. 2919.22(A) is a third-degree felony is when the victim suffers serious physical harm. ... Thus, the original indictment was sufficient to provide Pepka adequate notice of both the offenses and the degree of the offenses with which he was charged. In fact, Pepka’s counsel conceded at trial and at oral argument in this court that Pepka knew ‘[f]rom the beginning’ that he was facing third-degree-felony charges and that the state would argue that (the victim) suffered serious physical harm. Pepka was also aware that the state planned to submit evidence at trial of the seriousness of (the victim’s) injuries, based on discovery received from the state months before trial – including ... medical records and the consulting physician’s report.”
Justice O’Connor concluded that: “Pepka was on notice from the initial indictment that he was charged with a third-degree felony for violating R.C. 2919.22(A), and the Revised Code makes it clear that the only circumstance in which endangering children under R.C. 2919.22(A) is a third-degree felony is when the victim suffers serious physical harm. Pepka’s original indictment was sufficient to charge him with a third-degree-felony offense, and the amended indictment did not change the name or identity of the crime charged. Therefore, we reverse the decision of the court of appeals and reinstate Pepka’s third-degree-felony convictions and sentence.”
The majority opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Judith A. Lanzinger and Robert R. Cupp.
Chief Justice Thomas J. Moyer and Justice Terrence O’Donnell dissented, stating that they would dismiss the state’s appeal as having been improvidently accepted for review.
Contacts
Joshua S. Horacek, 440.350.2683, for the State of Ohio and Lake County prosecutor’s office.
Albert L. Purola, 440.951.2323, for Joseph Pepka.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions
Monday, March 08, 2010
Defendants Change Plea in Judge Kimbler's Court
Four defendants appeared in Judge Kimbler’s courtroom on Monday, March 8, 2010, for a change of plea. The defendants were Alycia A. Hines, Val Scott McIntosh, Martin H. Fano, and Brian P. Shultzaberger, Jr.
Alycia A. Hines of Woodstock Lane in Brunswick, Ohio, was charged with one count of Trafficking in Drugs in the Vicinity of a Juvenile, a second degree felony, and one count of Possession of Drugs, a felony of the third degree. The first charge was dismissed and Ms. Hines entered a guilty plea to the second charge. Judge Kimbler ordered a presentence investigation and will impose sentence on April 22, 2010. Judge Kimbler continued her bond until the sentencing date.
Val Scott McIntosh of Broad Street in Wadsworth, Ohio, was charged with one count of Forgery and one count of Theft, both felonies of the fifth degree. Mr. McIntosh pled guilty of the Forgery count and the Theft count was dismissed. Judge Kimbler ordered a presentence investigation and will impose sentence on April 22, 2010.
Martin H. Fano, of Bunker Court in North Royalton, Ohio, was charged with Theft, a felony of the fifth degree. The State amended the charge to a misdemeanor Theft. Mr. Fano then entered a plea of no contest and was found guilty. A presentence investigation was ordered. Judge Kimbler will impose sentence on April 22, 2010. Mr. Fano’s bond was continued until the sentencing date.
On Tuesday, two more defendants appeared in Judge Kimbler's courtroom for a change of plea.
Anna G. Fraczek of North Jefferson Street in Medina, Ohio. was charged with two counts of Forgery, a fifth degree felony. Ms. Fraczek entered a plea of guilty to one count of the indictment, and the State dismissed the second count. Judge Kimbler ordered a presentence investigation and will impose sentence on April 29, 2010. Judge Kimbler continued Ms. Fraczek's bond until April 29.
Jerrell D. Neptune of Grafton Road in Brunswick, Ohio, was charged with one count of Trafficking in Drugs, (Marijuana), a fifth degree felony. Mr. Nepture appeared in court and entered a plea of "no contest" to that charge. Judge Kimbler found him guilty and ordered a presentence investigation. Sentencing is set for April 29, 2010. Mr. Neptune's bond is continued until that date.
Alycia A. Hines of Woodstock Lane in Brunswick, Ohio, was charged with one count of Trafficking in Drugs in the Vicinity of a Juvenile, a second degree felony, and one count of Possession of Drugs, a felony of the third degree. The first charge was dismissed and Ms. Hines entered a guilty plea to the second charge. Judge Kimbler ordered a presentence investigation and will impose sentence on April 22, 2010. Judge Kimbler continued her bond until the sentencing date.
Val Scott McIntosh of Broad Street in Wadsworth, Ohio, was charged with one count of Forgery and one count of Theft, both felonies of the fifth degree. Mr. McIntosh pled guilty of the Forgery count and the Theft count was dismissed. Judge Kimbler ordered a presentence investigation and will impose sentence on April 22, 2010.
Martin H. Fano, of Bunker Court in North Royalton, Ohio, was charged with Theft, a felony of the fifth degree. The State amended the charge to a misdemeanor Theft. Mr. Fano then entered a plea of no contest and was found guilty. A presentence investigation was ordered. Judge Kimbler will impose sentence on April 22, 2010. Mr. Fano’s bond was continued until the sentencing date.
On Tuesday, two more defendants appeared in Judge Kimbler's courtroom for a change of plea.
Anna G. Fraczek of North Jefferson Street in Medina, Ohio. was charged with two counts of Forgery, a fifth degree felony. Ms. Fraczek entered a plea of guilty to one count of the indictment, and the State dismissed the second count. Judge Kimbler ordered a presentence investigation and will impose sentence on April 29, 2010. Judge Kimbler continued Ms. Fraczek's bond until April 29.
Jerrell D. Neptune of Grafton Road in Brunswick, Ohio, was charged with one count of Trafficking in Drugs, (Marijuana), a fifth degree felony. Mr. Nepture appeared in court and entered a plea of "no contest" to that charge. Judge Kimbler found him guilty and ordered a presentence investigation. Sentencing is set for April 29, 2010. Mr. Neptune's bond is continued until that date.
Thursday, March 04, 2010
State May Not Make Direct or Derivative Use of Public Employee’s Compelled Statement in Criminal Action
When Employer Compels Self-Incriminating Statement on Threat of Firing
State v. Jackson, Slip Opinion No. 2010-Ohio-621.
Stark App. No. 2007CA00274, 2008-Ohio-2944. Judgment of the court of appeals reversed, and judgment of the trial court reinstated.
Moyer, C.J., and O'Connor and Lanzinger, JJ., concur.
Pfeifer and O'Donnell, JJ., concur separately.
Lundberg Stratton and Cupp, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-621.pdf
(March 3, 2010) The Supreme Court of Ohio ruled today that, under the U.S. Supreme Court’s decisions in Garrity v. New Jersey and Kastigar v. United States, when a public employer compels an employee under threat of firing to make a statement in an administrative proceeding:
the state may not make any direct or derivative use of the employee’s statement in a criminal proceeding against the employee;
the state makes derivative use of the employee’s statement when it presents to a grand jury testimony from a witness to the statement and when the prosecutor reviews the employee’s statement in preparation for trial; and
when the state fails to prove that it did not make any use of the employee’s statement in obtaining an indictment, the indictment must be dismissed.
The Court’s lead opinion, authored by Justice Judith Ann Lanzinger, reversed a decision of the 5th District Court of Appeals.
The case involved a statement given by Canton police officer Anthony Jackson during an internal investigation of his conduct by the Canton Police Department under the threat of disciplinary action. Such a statement is referred to as a “Garrity statement” based on the U.S. Supreme Court’s 1967 decision in Garrity v. New Jersey. In that case, the Court held that when several police officers were compelled to either answer incriminating questions during an internal investigation or forfeit their jobs, the 5th Amendment protection against self-incrimination prohibited the use of their statements in later criminal proceedings.
In this case, Jackson was alleged to have illegally possessed a firearm inside a liquor permit premises while he was on administrative leave from his job. Lieutenant David Davis investigated the incident on behalf of the Canton Police Department’s Internal Affairs Unit. As part of this internal investigation, Davis ordered Jackson to submit to an interview and make a statement. Davis gave Jackson a document titled “Garrity Warning” before this interview. The document advised Jackson that if his answers under questioning disclosed information indicating that he may have engaged in criminal conduct, “neither your self-incriminating statements nor the fruits of any self-incriminating statements you make will be used against you in any criminal legal proceedings.” The document also advised Jackson that, because any information he disclosed would not be used against him in a criminal prosecution, refusal to answer all questions put to him would be a violation of departmental rules that would subject him to disciplinary action.
Jackson gave detailed answers to questions regarding the incident in which he was alleged to have illegally possessed a firearm (the “Garrity statement”). He also disclosed the name of a potential witness to the incident, Vince Van. The state subsequently acknowledged that no one connected to the investigation had previously been aware that a person named Vince Van was a potential witness. After Jackson answered Davis’ questions, Davis continued to investigate by interviewing Van.
Several weeks later, the Stark County prosecutor presented evidence to a grand jury seeking a criminal indictment against Jackson for illegal possession of a firearm in a liquor permit premises. One of two witnesses who testified before the grand jury was Lieutenant Davis, who testified regarding the propriety of a police officer on administrative leave carrying a firearm, but declined to discuss the content of Jackson’s Garrity statement. The grand jury returned an indictment against Jackson for possession of a firearm in a D-permit liquor establishment in violation of R.C. 2923.121(A). The trial prosecutor, who was not the same person as the indicting prosecutor, later obtained a copy of the police department’s internal affairs file, including a transcript of Jackson’s Garrity statement, during pretrial proceedings.
Jackson filed a motion to dismiss, arguing that the state had improperly used the fruits of his Garrity statement. The trial court held that Davis’ testimony before the grand jury violated Jackson’s Fifth Amendment rights pursuant to Garrity, because Davis had knowledge of Jackson’s compelled statements. The court therefore dismissed the indictment. On review, the 5th District Court of Appeals agreed that Jackson’s Fifth Amendment rights had been violated. However, the court of appeals reversed the portion of the trial court opinion that dismissed the indictment, and held that Jackson’s Garrity statement was not used to obtain the indictment but was used by the trial prosecutor after indictment. The court held that the proper remedy for the state’s Garrity violation was to purge the prosecutor’s files of the internal-affairs file, including the Garrity statement, and try the case with a new prosecutor.
Both parties sought and were granted Supreme Court review of the portions of the 5th District’s decision unfavorable to them.
In today’s decision, Justice Lanzinger first addressed the issue of whether the state violated Jackson’s Fifth Amendment rights under Garrity and a subsequent U.S. Supreme Court decision,
Kastigar v. United States (1972), in obtaining an indictment against him.
She wrote: “The state argues that Jackson’s Garrity statement was not used in any way at the indictment phase. It contends that although Jackson’s statement had disclosed the name of a previously unknown witness, the witness was never mentioned to the grand jury and Davis explicitly declined to discuss the content of Jackson’s statement. ... Jackson argues that because Davis was present during the making of the Garrity statement and afterward became a witness before the grand jury, the statement was used to obtain the indictment. We agree. It is not the extent of the prosecutor’s own knowledge of the contents of the Garrity statement that creates the problem here. The prosecutor chose to offer the testimony of the internal investigating officer who knew the substance of Jackson’s Garrity statement and who used the statement to further his own internal investigation. ... The state makes derivative use of a Garrity statement when the prosecutor presents to the grand jury testimony from a witness to the statement. We agree with the trial court’s determination that Davis’s testimony before the grand jury constituted derivative use of Jackson’s statement by the state in violation of Garrity.”
With regard to the state’s access to Jackson’s Garrity statement for purposes of trial preparation, Justice Lanzinger wrote: “The state argues that Jackson’s statement was not used in any respect in preparing for trial. Vince Van, who was disclosed as a possible witness only in Jackson’s Garrity statement, was not on the state’s list of potential witnesses. Although the trial prosecutor acknowledges having had a copy of the statement, the state argues that mere knowledge of the contents of the statement does not mean that the state improperly ‘used’ the statement. Jackson emphasizes that the prosecutor not only admitted to having a copy of the statement, but also acknowledged that he ‘had the benefit of Internal Affairs reports for the purposes of pretrial preparation.’ We share the concern of the trial court and court of appeals that the prosecutor, who admitted having reviewed Jackson’s Garrity statement, was afforded an impermissible advantage in trial preparation. A defendant’s version of events provides the prosecutor with invaluable information, including the names of witnesses, potential defenses, and other information that could influence trial strategy. ... The state makes derivative use of a Garrity statement when the prosecutor reviews the statement in preparation for trial.”
With regard to the appropriate remedy for a pre- indictment Garrity violation, Justice Lanzinger cited this Court’s 1990 holding in State v. Conrad that a prosecutor’s use of a compelled statement tainted the defendant’s indictment and required that the case be remanded for dismissal of the indictment. “In this case,” she wrote, “Jackson’s statement was also used to obtain the indictment. Therefore, the trial court has correctly determined that dismissal is the appropriate remedy. When the state fails to prove that it did not make any use of a Garrity statement in obtaining an indictment, the indictment must be dismissed.”
Regarding a post-indictment violation of a defendant’s Garrity rights, Justice Lanzinger wrote: “The court of appeals held that the appropriate remedy for a Garrity violation after indictment was to purge the compelled statement from the prosecutor’s file and to appoint a replacement prosecutor to try the case. ... We find this solution unnecessary. Kastigar held that the proscription against using a defendant’s compelled statement is analogous to the proscription against using a defendant’s coerced confession. ... A coerced confession is inadmissible in a criminal trial, but does not bar prosecution. If a court rules that a confession was coerced in violation of the Fifth Amendment, the confession must be suppressed. ... Likewise, when a trial court rules after a Kastigar hearing that a prosecutor has used the defendant’s compelled statement in preparation for trial after indictment, the appropriate remedy is for the trial court to suppress that statement and all evidence derived from the statement.”
“For the foregoing reasons, we hold that the state failed to meet its burden to show that it did not use Jackson’s Garrity statement either before the grand jury or during trial preparation. Because the state did not meet its burden with respect to the indictment, we reverse the judgment of the court of appeals and reinstate the judgment of the trial court dismissing the indictment.”
Justice Lanzinger’s opinion was joined by Chief Justice Thomas J. Moyer and Justice Maureen O’Connor.
Justice Terrence O’Donnell entered a separate opinion, joined by Justice Paul E. Pfeifer, in which he concurred with Justice Lanzinger’s holding that Garrity and Kastigar bar the state from making any use of an employee’s Garrity statement. Justice O’Donnell stated, however, that in his view the state cannot use any information directly or indirectly derived from a Garrity statement in a criminal proceeding against the public employee who made the statement unless the state denies any use of the immunized testimony and also affirmatively proves an independent, legitimate source for all of the evidence to be introduced at trial.
With regard to access by prosecutors to a defendant’s Garrity statement, Justice O’Donnell wrote: “Because knowledge of the information contained in a Garrity statement may imperceptibly influence a prosecutor’s view of a case, the government cannot plausibly deny any use of a defendant’s compelled statement when the prosecutor has read it before trial. Therefore, I would hold that when a prosecutor has reviewed a defendant’s Garrity statement before trial and fails to establish an independent source for the evidence to be used at trial, dismissal of the indictment rather than suppression of the evidence is the appropriate remedy.”
Justice Robert R. Cupp entered a dissenting opinion that was joined by Justice Evelyn Lundberg Stratton. Justice Cupp wrote that he disagreed with the majority’s holding that Lieutenant Davis’ appearance before the grand jury after witnessing Jackson’s compelled statement, by itself, constituted improper “use” of that statement in obtaining an indictment despite the fact that Davis made no disclosure of any information obtained through the statement during his grand jury testimony.
Justice Cupp also disputed the majority’s conclusion that mere pretrial possession and review of a defendant’s Garrity statement by a prosecutor, without more, gives the state an impermissible advantage at trial. He wrote: “Assuming that the state will not introduce the compelled statement or its fruits at trial and will not use the statement for impeachment at trial, the only question that remains is whether the prosecutor’s exposure to the compelled statement and the internal-affairs file has directly affected the state’s trial strategy (such as choice of witnesses, for example). ... If the majority believes that the trial prosecutor in this case, who admitted to having reviewed Jackson’s compelled statement, was afforded an impermissible direct advantage in trial strategy, then the court should afford the state the option of accepting the court of appeals’ remedy—allowing the state to try the case without the disputed evidence and with a new trial prosecutor who has not seen any of the disputed evidence—instead of dismissing the case outright.”
Contacts
Kathleen O. Tatarsky, 330.456.7780, for the Stark County prosecutor’s office.
Bradley R. Iams, 330.452.6400, for Anthony Jackson.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions.
State v. Jackson, Slip Opinion No. 2010-Ohio-621.
Stark App. No. 2007CA00274, 2008-Ohio-2944. Judgment of the court of appeals reversed, and judgment of the trial court reinstated.
Moyer, C.J., and O'Connor and Lanzinger, JJ., concur.
Pfeifer and O'Donnell, JJ., concur separately.
Lundberg Stratton and Cupp, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-621.pdf
(March 3, 2010) The Supreme Court of Ohio ruled today that, under the U.S. Supreme Court’s decisions in Garrity v. New Jersey and Kastigar v. United States, when a public employer compels an employee under threat of firing to make a statement in an administrative proceeding:
the state may not make any direct or derivative use of the employee’s statement in a criminal proceeding against the employee;
the state makes derivative use of the employee’s statement when it presents to a grand jury testimony from a witness to the statement and when the prosecutor reviews the employee’s statement in preparation for trial; and
when the state fails to prove that it did not make any use of the employee’s statement in obtaining an indictment, the indictment must be dismissed.
The Court’s lead opinion, authored by Justice Judith Ann Lanzinger, reversed a decision of the 5th District Court of Appeals.
The case involved a statement given by Canton police officer Anthony Jackson during an internal investigation of his conduct by the Canton Police Department under the threat of disciplinary action. Such a statement is referred to as a “Garrity statement” based on the U.S. Supreme Court’s 1967 decision in Garrity v. New Jersey. In that case, the Court held that when several police officers were compelled to either answer incriminating questions during an internal investigation or forfeit their jobs, the 5th Amendment protection against self-incrimination prohibited the use of their statements in later criminal proceedings.
In this case, Jackson was alleged to have illegally possessed a firearm inside a liquor permit premises while he was on administrative leave from his job. Lieutenant David Davis investigated the incident on behalf of the Canton Police Department’s Internal Affairs Unit. As part of this internal investigation, Davis ordered Jackson to submit to an interview and make a statement. Davis gave Jackson a document titled “Garrity Warning” before this interview. The document advised Jackson that if his answers under questioning disclosed information indicating that he may have engaged in criminal conduct, “neither your self-incriminating statements nor the fruits of any self-incriminating statements you make will be used against you in any criminal legal proceedings.” The document also advised Jackson that, because any information he disclosed would not be used against him in a criminal prosecution, refusal to answer all questions put to him would be a violation of departmental rules that would subject him to disciplinary action.
Jackson gave detailed answers to questions regarding the incident in which he was alleged to have illegally possessed a firearm (the “Garrity statement”). He also disclosed the name of a potential witness to the incident, Vince Van. The state subsequently acknowledged that no one connected to the investigation had previously been aware that a person named Vince Van was a potential witness. After Jackson answered Davis’ questions, Davis continued to investigate by interviewing Van.
Several weeks later, the Stark County prosecutor presented evidence to a grand jury seeking a criminal indictment against Jackson for illegal possession of a firearm in a liquor permit premises. One of two witnesses who testified before the grand jury was Lieutenant Davis, who testified regarding the propriety of a police officer on administrative leave carrying a firearm, but declined to discuss the content of Jackson’s Garrity statement. The grand jury returned an indictment against Jackson for possession of a firearm in a D-permit liquor establishment in violation of R.C. 2923.121(A). The trial prosecutor, who was not the same person as the indicting prosecutor, later obtained a copy of the police department’s internal affairs file, including a transcript of Jackson’s Garrity statement, during pretrial proceedings.
Jackson filed a motion to dismiss, arguing that the state had improperly used the fruits of his Garrity statement. The trial court held that Davis’ testimony before the grand jury violated Jackson’s Fifth Amendment rights pursuant to Garrity, because Davis had knowledge of Jackson’s compelled statements. The court therefore dismissed the indictment. On review, the 5th District Court of Appeals agreed that Jackson’s Fifth Amendment rights had been violated. However, the court of appeals reversed the portion of the trial court opinion that dismissed the indictment, and held that Jackson’s Garrity statement was not used to obtain the indictment but was used by the trial prosecutor after indictment. The court held that the proper remedy for the state’s Garrity violation was to purge the prosecutor’s files of the internal-affairs file, including the Garrity statement, and try the case with a new prosecutor.
Both parties sought and were granted Supreme Court review of the portions of the 5th District’s decision unfavorable to them.
In today’s decision, Justice Lanzinger first addressed the issue of whether the state violated Jackson’s Fifth Amendment rights under Garrity and a subsequent U.S. Supreme Court decision,
Kastigar v. United States (1972), in obtaining an indictment against him.
She wrote: “The state argues that Jackson’s Garrity statement was not used in any way at the indictment phase. It contends that although Jackson’s statement had disclosed the name of a previously unknown witness, the witness was never mentioned to the grand jury and Davis explicitly declined to discuss the content of Jackson’s statement. ... Jackson argues that because Davis was present during the making of the Garrity statement and afterward became a witness before the grand jury, the statement was used to obtain the indictment. We agree. It is not the extent of the prosecutor’s own knowledge of the contents of the Garrity statement that creates the problem here. The prosecutor chose to offer the testimony of the internal investigating officer who knew the substance of Jackson’s Garrity statement and who used the statement to further his own internal investigation. ... The state makes derivative use of a Garrity statement when the prosecutor presents to the grand jury testimony from a witness to the statement. We agree with the trial court’s determination that Davis’s testimony before the grand jury constituted derivative use of Jackson’s statement by the state in violation of Garrity.”
With regard to the state’s access to Jackson’s Garrity statement for purposes of trial preparation, Justice Lanzinger wrote: “The state argues that Jackson’s statement was not used in any respect in preparing for trial. Vince Van, who was disclosed as a possible witness only in Jackson’s Garrity statement, was not on the state’s list of potential witnesses. Although the trial prosecutor acknowledges having had a copy of the statement, the state argues that mere knowledge of the contents of the statement does not mean that the state improperly ‘used’ the statement. Jackson emphasizes that the prosecutor not only admitted to having a copy of the statement, but also acknowledged that he ‘had the benefit of Internal Affairs reports for the purposes of pretrial preparation.’ We share the concern of the trial court and court of appeals that the prosecutor, who admitted having reviewed Jackson’s Garrity statement, was afforded an impermissible advantage in trial preparation. A defendant’s version of events provides the prosecutor with invaluable information, including the names of witnesses, potential defenses, and other information that could influence trial strategy. ... The state makes derivative use of a Garrity statement when the prosecutor reviews the statement in preparation for trial.”
With regard to the appropriate remedy for a pre- indictment Garrity violation, Justice Lanzinger cited this Court’s 1990 holding in State v. Conrad that a prosecutor’s use of a compelled statement tainted the defendant’s indictment and required that the case be remanded for dismissal of the indictment. “In this case,” she wrote, “Jackson’s statement was also used to obtain the indictment. Therefore, the trial court has correctly determined that dismissal is the appropriate remedy. When the state fails to prove that it did not make any use of a Garrity statement in obtaining an indictment, the indictment must be dismissed.”
Regarding a post-indictment violation of a defendant’s Garrity rights, Justice Lanzinger wrote: “The court of appeals held that the appropriate remedy for a Garrity violation after indictment was to purge the compelled statement from the prosecutor’s file and to appoint a replacement prosecutor to try the case. ... We find this solution unnecessary. Kastigar held that the proscription against using a defendant’s compelled statement is analogous to the proscription against using a defendant’s coerced confession. ... A coerced confession is inadmissible in a criminal trial, but does not bar prosecution. If a court rules that a confession was coerced in violation of the Fifth Amendment, the confession must be suppressed. ... Likewise, when a trial court rules after a Kastigar hearing that a prosecutor has used the defendant’s compelled statement in preparation for trial after indictment, the appropriate remedy is for the trial court to suppress that statement and all evidence derived from the statement.”
“For the foregoing reasons, we hold that the state failed to meet its burden to show that it did not use Jackson’s Garrity statement either before the grand jury or during trial preparation. Because the state did not meet its burden with respect to the indictment, we reverse the judgment of the court of appeals and reinstate the judgment of the trial court dismissing the indictment.”
Justice Lanzinger’s opinion was joined by Chief Justice Thomas J. Moyer and Justice Maureen O’Connor.
Justice Terrence O’Donnell entered a separate opinion, joined by Justice Paul E. Pfeifer, in which he concurred with Justice Lanzinger’s holding that Garrity and Kastigar bar the state from making any use of an employee’s Garrity statement. Justice O’Donnell stated, however, that in his view the state cannot use any information directly or indirectly derived from a Garrity statement in a criminal proceeding against the public employee who made the statement unless the state denies any use of the immunized testimony and also affirmatively proves an independent, legitimate source for all of the evidence to be introduced at trial.
With regard to access by prosecutors to a defendant’s Garrity statement, Justice O’Donnell wrote: “Because knowledge of the information contained in a Garrity statement may imperceptibly influence a prosecutor’s view of a case, the government cannot plausibly deny any use of a defendant’s compelled statement when the prosecutor has read it before trial. Therefore, I would hold that when a prosecutor has reviewed a defendant’s Garrity statement before trial and fails to establish an independent source for the evidence to be used at trial, dismissal of the indictment rather than suppression of the evidence is the appropriate remedy.”
Justice Robert R. Cupp entered a dissenting opinion that was joined by Justice Evelyn Lundberg Stratton. Justice Cupp wrote that he disagreed with the majority’s holding that Lieutenant Davis’ appearance before the grand jury after witnessing Jackson’s compelled statement, by itself, constituted improper “use” of that statement in obtaining an indictment despite the fact that Davis made no disclosure of any information obtained through the statement during his grand jury testimony.
Justice Cupp also disputed the majority’s conclusion that mere pretrial possession and review of a defendant’s Garrity statement by a prosecutor, without more, gives the state an impermissible advantage at trial. He wrote: “Assuming that the state will not introduce the compelled statement or its fruits at trial and will not use the statement for impeachment at trial, the only question that remains is whether the prosecutor’s exposure to the compelled statement and the internal-affairs file has directly affected the state’s trial strategy (such as choice of witnesses, for example). ... If the majority believes that the trial prosecutor in this case, who admitted to having reviewed Jackson’s compelled statement, was afforded an impermissible direct advantage in trial strategy, then the court should afford the state the option of accepting the court of appeals’ remedy—allowing the state to try the case without the disputed evidence and with a new trial prosecutor who has not seen any of the disputed evidence—instead of dismissing the case outright.”
Contacts
Kathleen O. Tatarsky, 330.456.7780, for the Stark County prosecutor’s office.
Bradley R. Iams, 330.452.6400, for Anthony Jackson.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions.
Subscribe to:
Posts (Atom)
