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

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

Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-6434.pdf

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Judge Collier's Criminal Docket for December 21, 2009

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

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

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

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

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

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

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

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

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

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

Christmas at Valley Forge

By Ohio Supreme Court Justice Paul Pfeifer

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Judge Kimbler's Criminal Docket for December 17, 2009

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

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

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

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

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

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

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

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

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

Some Ohio Foreclosure Law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Computer Evidence

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The case summary below was prepared by the staff of the Ohio Supreme Court

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Craig M. Jaquith, 614.644.1568, for Antwaun Smith.

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

Below is an opinion summary prepared by the Ohio Supreme Court

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Kristin Rosan, 614.228.5600, for Timothy and Janine Mynes.

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."

Judge Collier's Criminal Docket for December 14, 2009

Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Collier's court on December 14, 2009:

Kennedy Donald, 48, of Bronson Street in Medina, was sentenced to six months in prison on one count of Possession of Cocaine, a fifth-degree felony.

Adam Howell, 33, of Byers View Drive in Wadsworth, pleaded not guilty to one count of Trafficking in Drugs, a fourth-degree felony. A jury trial is scheduled for January 27.

Kim McNutt, 46, of Lafayette Road in Medina, pleaded guilty to one count of Theft from the Elderly, a fourth-degree felony. She was sentenced to six months in prison and ordered to pay $1,344.85 in restitution.

Thomas Stevenson, 34, of Lisa Court in Lodi, pleaded not guilty to one count of Burglary, a second-degree felony. A jury trial is scheduled for February 16.

Robert Suchan, 52, of Tollis Parkway in Broadview Heights, pleaded no contest to one count of Theft of a Motor Vehicle, a fourth-degree felony, and one count of Vandalism, a fifth-degree felony. Sentencing is scheduled for January 25.

Carlos Tripp, 34, of Harding Street in Medina, pleaded guilty to one count of Trafficking in Drugs, a fifth-degree felony. He was sentenced to nine months in prison.

Judge Kimbler's November Supreme Court Report

At the beginning of November Judge Kimbler’s court had 792 cases pending. During the month, Judge Kimbler’s court took in 123 new cases. They broke down into the following categories:

Professional Tort: 0
Product Liability: 0
Other Tort: 10
Workers’ Compensation: 1
Foreclosures: 40
Administrative Appeal: 2
Complex Litigation: 0
Other Civil: 43
Criminal: 27

There were also 14 cases that were either transferred in, reactivated or re-designated. Adding those cases to the cases that were either pending or filed in November means that Judge Kimbler’s court had 929 cases on his docket during that month.

On the disposition side, Judge Kimbler’s court disposed of 180 cases during November. The dispositions broke down into the following categories:

Professional Tort: 1
Product Liability: 0
Other Tort: 14
Workers’ Compensation: 2
Foreclosures: 52
Administrative Appeal: 5
Complex Litigation: 0
Other Civil: 89
Criminal: 17

As a result of the above terminations, Judge Kimbler’s court had 749 cases pending at the end of November.

Meet Probate Judge John Lohn

By Kate Feeks

Reprinted with permission from www.czcourtreporter.com

He is the son of a Cleveland Police Officer, who was taught by his father, the most important values for a man. He taught him the values of honesty, integrity, loyalty and to always have respect for the law. Judge John Lohn of the Medina County Common Pleas Court, Probate and Juvenile Divisions, sat down with me and shared many stories about family, education and the values i that he views as most important.

Judge Lohn is the youngest of four children in his family, with two older brothers and an older sister. He grew up on Cleveland’s West side where he proudly graduated from St. Ignatius High School in 1975. In 1979, he graduated from the University of Notre Dame with a degree in business administration. He received his law degree in 1983 from Cleveland-Marshall College of Law. In 1990, he graduated from the FBI National Academy for Judges and Prosecutors.

For twenty years Judge Lohn was a prosecuting attorney before becoming Judge. It was his experience a trial attorney that he feels best prepared him to be a judge. “I was a prosecutor for most of my career and that taught me exactly how civil or criminal trials should work” explains Lohn. Some of the most common and difficult cases that he see’s in his courtroom are the sex abuse, parental neglect and juvenile drug abuse cases. These emotional and gut retching cases are very poignant causing it to be difficult to stay optimistic. “You have to fight the tendency to not become discouraged with each incident” explains Lohn.

With this passion of justice for all involved, he and many others on his staff organized a few helpful programs and services to assist our teens and our community. Some of these include: The Juvenile Drug Court, Camp Integrity and the Volunteer Guardianship.

The Juvenile Drug Court is a very successful nine month to one year program for kids that are drug dependant. The program offers counseling, temporary probation and drug screenings when necessary for the kids. This program works with the kids and their families to ensure that the correct steps are taken for recovery. The Juvenile Drug Court has been recognized by the University of Cincinnati as one of ten best courts in the country. “So what we have done as a community is to show the rest of the country how to get the best results in getting kids off drugs” said Lohn.

An interesting aspect to this program is the use of Equine Assisted Psycho Therapy or also known as Horse Therapy. This is an adjunctive therapy to drug court where it looks at how families interact with each other, parent to child, by the use of horses. Horses are known to reflect the environment to which they are exposed. The horse is able to mirror the dysfunction that the families display while interacting with each other. This is observed by the therapist who will then offer further discussion with the families. As a result, this kind of therapy is another helpful option to help families find ways to learn how to communicate with each other.

Another program set in place by Judge Lohn is the Camp Integrity Program. This after school program ranges from four to eight weeks and is organized for moderate or high risk kids that have become a problem in the community. From 3:30pm to 9:00pm the kids experience intensive non-impact physical exercise, complete homework and have mandatory counseling one night a week accompanied by a parent. “The initial purpose of this program is to give these kids a structured environment that a lot of times they are not getting at home” Lohn explains. A lot of the kids that go through this program return to the program as volunteers.

Judge Lohn is also responsible for implementing the Volunteer Guardianship Program for Medina County’s destitute and incompetent adults. There is a growing population of adults in our community who do not have any family members capable of giving extended care for them. Judge Lohn felt there was enough interest in the community to offer such guardianships as a volunteer opportunity. “People from all walks of life enjoy doing this, it is a fulfilling service” explains Lohn. In the end these adults appreciate the help and assistance and the volunteers are please to help them.

Judge Lohn met his wife Linda while working as a law clerk for an attorney. At the same time she was a clerk for the Medina Probate Court. They had their first date in September and were married eleven months later in August. Their story was printed in the Medina County Gazette as “Court House Couple Weds”. “We thought we were superstars” Lohn explains with a beaming face. He and wife Linda have recently celebrated their twenty sixth wedding anniversary and together they have two adult sons Ed and Tim.

Judge Kimbler Administers Oath to New Attorney

There are a lot of things that judges have to do that are unpleasant. It is never pleasant, for example, to send someone to prison, no matter how well deserved the punishment. There are some things, however, that judges get to do that are very pleasant and rewarding. One of them is administering an oath to an attorney who has just passed the Ohio Bar Exam.

On Friday, December 11, 2009, I had the honor of administering the oath that Ohio attorneys have to take before they are admitted to the bar to James Ziogas. Attorney Ziogas wasn't able to attend the ceremony where the oath is administered to new attorneys by a Justice of the Ohio Supreme Court due to work. I had sent Mr. Ziogas a letter congratulating him on passing the bar. Mr. Ziogas appreciated the letter so much that he asked me to administer his oath.

It was a honor and a privilege to administer the oath to Mr. Ziogas. I got to meet him, his lovely wife, and his three children. It is at least the third time that I have administered the oath to a new attorney and every time I have really enjoyed it. It always reminds me of the day when I was admitted to the Ohio Bar, which is now over 34 years ago.

I wish Mr. Ziogas and his family good luck in the future and I thank them for allowing me the opportunity to be a part of their family's history.

Post-Release Control and Re-Sentencing

By Ohio Supreme Court Justice Paul Pfeifer

The real drama in any courtroom drama is the trial. But Parris Boswell avoided that drama when, in 2000, he pleaded guilty to aggravated burglary, aggravated robbery, felonious assault, assault, and having a weapon while under a disability – meaning he had a weapon when he was forbidden from having one because of a prior conviction.

Because aggravated burglary and aggravated robbery are first-degree felonies, the law requires five years of post-release control. Post-release control – as the name suggests – means that even after release from prison, a person will still be under certain restrictions for a time. But at the plea hearing, the trial court told Boswell that he “may be subject to post-release control.” The court did not tell him it would be required. The court also failed to explain post-release control to him. In the sentencing entry, Boswell was sentenced to 16 years in prison, but not to post-release control.

In 2004 and 2005, Boswell filed two motions for a delayed appeal, but both were denied. On June 8, 2005, more than five years after being sentenced, Boswell filed a motion to vacate his guilty plea, arguing that the trial court had failed to properly inform him during the plea hearing of the mandatory term of post-release control and the penalties associated with violating post-release control.

This time he had better results: the trial court granted his motion without opinion, and vacated his plea. After that, the state appealed the trial court’s decision, but it was upheld by the court of appeals.

The court of appeals concluded that the trial court had not substantially complied with state law and with the Criminal Rules (the rules that govern court proceedings in criminal trials) at the sentencing hearing because it did not advise Boswell of the maximum penalty for his crimes before he entered his guilty plea.

After the court of appeals issued its decision, Boswell’s case came before us – the Supreme Court of Ohio – for a final review.

In our analysis of this case we turned first to the Criminal Rules that were mentioned earlier. Criminal Rule 32.1 states: “A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.” In keeping with that rule, our court, in a case from 1992, determined that a “pre-sentence motion to withdraw a guilty plea should be freely and liberally granted.”

But Boswell filed a motion to withdraw his plea more than five years after sentencing. So the question here is whether Boswell’s motion to withdraw his plea should be considered a pre-sentence motion, judged under the liberal standard of that 1992 case, or a post-sentence motion, requiring a showing of manifest injustice.

In writing the majority opinion for this case, Chief Justice Thomas J. Moyer said, “Our recent line of cases dealing with post-release control has consistently held that sentences that fail to impose a mandatory term of post-release control are void.”

As we stated in an earlier case, this stems from “the fundamental understanding that no court has the authority to substitute a different sentence for that which is required by law.” A sentence that does not comport with statutory requirements is contrary to law, and the trial judge is acting without authority in imposing it.

The requirement in Criminal Rule 32.1 for a defendant making a post-sentencing motion to withdraw a plea to demonstrate manifest injustice is designed “to discourage a defendant from pleading guilty to test the weight of potential reprisal, and later withdraw the plea if the sentence was unexpectedly severe.” But, as Chief Justice Moyer pointed out, “this logic does not fully apply where the reprisal itself was unlawful.”

There is no dispute, then, that Boswell’s sentence is void. It failed to include mandatory post-release control, which violated state law. As a result, we placed him in the same position that he would be in if he had never been sentenced in the first place, and we treated his motion to withdraw his guilty plea as a pre-sentence motion.

Such a motion should be “freely and liberally granted.” But that doesn’t mean that Boswell has an absolute right to withdraw his plea. As we determined in that 1992 case, the “trial court must conduct a hearing to determine whether there is a reasonable and legitimate basis for the withdrawal of the plea.”

Once we determined the proper standard for evaluating Boswell’s motion to withdraw his plea, we then had to address the status of the void sentence. Neither party in this case actually challenged the imposed sentence – although both parties admitted that the sentence is void – so there was no motion for resentencing.

Nevertheless, we still concluded that we must vacate the sentence and send the case back for a re-sentencing hearing in the trial court. Based on our earlier rulings, as Chief Justice Moyer pointed out, “because the original sentence is actually considered a nullity, a court cannot ignore the sentence and instead must vacate it and order re-sentencing.”

In the end, we concluded – by a four-to-three vote – that, according to Criminal Rule 32.1, a defendant’s motion to withdraw a guilty plea following the imposition of a void sentence must be considered as a pre-sentence motion and be freely and liberally granted.

Boswell’s sentence was void because it failed to include post-release control as mandated by law. His motion to withdraw his guilty plea must accordingly be treated as a pre-sentence motion. And, because we vacated Boswell’s void sentence, we also ordered that if Boswell’s motion to withdraw his guilty plea is ultimately denied, he must be resentenced – this time, with the mandatory post-release control included.

EDITOR’S NOTE: The case referred to is: State v. Boswell, 121 Ohio St.3d 575, 2009-Ohio-1577. Case No. 2007-2373. Decided April 9, 2009. Majority opinion written by Chief Justice Thomas J. Moyer.

Google Adds Legal Opinions & Articles to Search Engine

The search engine Google has added legal opinions and journals to the material that can be searched by going to the website www.google.com. A visitor to the Google website can access this feature by clicking on the word "more" that appears in the tool bar at the top of the Google website. A menu then drops down which lists several choices. One of the choices listed is "Scholar". When the visitor clicks on the word "Scholar" he or she goes to a new search page which allows you to type in search terms and then you can choose articles that involve patents or legal opinions and journals.

Let's suppose that a visitor wanted to look for opinions that had the terms "Supreme Court of Ohio", "due process" and "traffic stop". Our visitor would go to the Google website, click on the word "more" in the tool bar and then click on the word "Scholar" in the drop down menu. Once our visitor was directed to the "Scholar" page, he or she would type in the terms listed above, click on the choice of "legal opinions and journals" and then conduct the search.

Our hypothetical visitor would then find that there were 122 matches for those terms. They would include both Ohio Supreme Court opinions as well as opinions from other courts such as the United States Supreme Court. Our visitor would then click on the matches that he or she thought were relevant to the search.

The main advantage to this Google feature is that unlike either the Lexis or Westlaw search engines, it is free. The main disadvantage is that unlike those search engines, the search cannot be directed to just one state's law.

One possible use for this feature is that in courthouses like ours in Medina County which have free Wi-Fi Internet access it would be possible to do some quick free research while waiting for court hearings.

There is also an article about this feature on the "Scholar" page that explains in more detail what Google wants to accomplish with this feature. The article also lists some of the people involved in this project. This new feature is definitely worth the time it takes to check it out.

Ohio Supreme Court Rules Reasonable Cost of Repair Proper Measure of Damages for Residential Real Estate Cases

The following is from the Ohio Supreme Court's website:

Owner May Recover Reasonable Costs to Repair Property Without Showing Reduction in Value

2007-2023 and 2007-2024. Martin v. Design Constr. Servs., Inc., Slip Opinion No. 2009-Ohio-1.Summit App. No. 23422, 2007-Ohio-4805. Certified question answered in the negative, and judgment of the trial court reversed.Moyer, C.J., and Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.Opinion: http://www.supremecourtofohio.gov/rod/docs/pdf/0/2009/2009-Ohio-1.pdf

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: http://www.supremecourtofohio.gov/ROD/newpdf/. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
(Jan. 6, 2009)

In a unanimous decision announced today, the Supreme Court of Ohio held that in a lawsuit seeking recovery for temporary damages to noncommercial real estate, the property owner may recover the reasonable costs of restoration without proving that the damage caused a diminution (reduction) in the market value of the property. The Court’s opinion, authored by Chief Justice Thomas J. Moyer, went on to state that either the plaintiff or the defendant in such a case may offer evidence of diminution in the market value of the property as a factor bearing on the reasonableness of the cost of restoration.

The case involved a 2006 verdict in which a Summit County jury awarded homeowners Michael and Jennifer Martin of Uniontown damages of $11,777 to cover the costs of repairs to the foundation of their 8-year-old home, which was built by Design Construction Services Inc. (DCS). In its answers to two specific interrogatories, the jury found that the faulty foundation resulted from the builder’s negligence, and that the Martins had not made a showing that the market value of their home was diminished by the defects in construction.

DCS appealed, arguing that the Martins had failed to prove a necessary element of their claimed damages. On review, the 9th District Court of Appeals reversed and vacated the trial court’s judgment. The appellate panel cited a 1923 decision of the Supreme Court of Ohio, Ohio Collieries Co. v. Cocke,which held that an owner may recover his reasonable costs of repairing damage to his noncommercial property provided that the owner establishes at trial that the actual repair costs are not greater than the diminution in the fair market value of the property caused by the damage. Because the jury found that the Martins had not proved at trial that the damage to their foundation had diminished the market value of their home, the court of appeals ruled that the trial court’s award of damages was improper and must be reversed.

The 9th District subsequently certified that its ruling requiring proof of a diminution of value was in conflict with decisions by two other Ohio courts of appeals on the same legal question. The Supreme Court agreed to hear arguments to resolve the conflict among appellate districts.

In today’s decision, which reversed the 9th District and remanded the case to the court of appeals for further proceedings, Chief Justice Moyer pointed to two decisions issued after Ohio Collieries in which he said the Supreme Court modified its holding in that case to allow for more flexibility in determining whether a damage award is reasonable.

He wrote that in the first of those cases, Northwestern Ohio Natural Gas Co. v. First Congregational Church of Toledo (1933), “(T)he court moved away from strict market-value limits on damages, toward an approach to damages based on the reasonable costs of restoration. With regard to temporary damage, the court in First Congregational excised the diminution-in-value portion of the Ohio Collieries rule and offered instead the unqualified rule that ‘the measure of damages is the reasonable cost of restoration or repairs.’ ... First Congregational held that, even in cases in which the property has no market value, damages could still be awarded based on the reasonable cost of restoration, with consideration of the condition of the property prior to the damage. ... That holding serves to make the injured party whole by allowing for restoration of the property, when the restoration is accomplished for a reasonable cost.”

The Chief Justice continued: “The second case demonstrating a shift from the Ohio Collieries rule is Apel v. Katz (1998), which addressed the damages available for temporary injury to property from trespass. In Apel, the appellant claimed that the trial court erred in not instructing the jury that damages were limited to the diminution in market value owing to the wrongful conduct. This court disagreed, holding that such a rule was too rigid and did not allow for flexibility in appropriate cases. In Apel,as in First Congregational, the court’s opinion did not cite Ohio Collieries. Yet Apel, like First Congregational, recognized that diminution in market value would not always provide a sufficient measure of damages. Further, Apel held that, under the circumstances in that case, failure to prove diminution in market value was not fatal to the claim for damages.”

“... Now we make express what First Congregational and Apel implied. The rule expressed in Ohio Collieries, that damages for temporary injury to property cannot exceed the diminution in market value immediately before and after the injury, is limited. ... While evidence of loss in market value of the property may be relevant, the essential inquiry is whether the damages sought are reasonable. Either party may introduce evidence to support or refute claims of reasonableness, including evidence of the change in market value attributable to the temporary injury. But proof of diminution in value is not a required element of the injured party’s case. Applying this rule to the case before us, the damages awarded by the trial court are supported by the evidence. ... Moreover, the award itself appears reasonable under the circumstances. The jury award of $11,770 equals the amount that the Martins paid to repair the defects to a house purchased for $167,000. Although Design Construction offered evidence that the repairs could have been performed for less, it appears that the jury found that the Martins’ expenditures were appropriate. Therefore, it is reasonable to assume that the damages awarded by the jury represented the reasonable costs incurred by the Martins to repair the deficiencies in the structure of the garage.”

Chief Justice Moyer noted that because the 9th District decided the case based on the diminution of value issue, it did not review and rule on other alleged errors by the trial court raised by DCS in its appeal. Accordingly, he remanded the case to the court of appeals for consideration of those issues.

Contacts

Kristen E. Campbell, 330.305.6400, for Design Construction Services Inc.

James R. Russell, 330.376.8336, for Michael and Jennifer Martin.