Retailer Not Entitled to Reduction in Taxable Value of Goods Based on Markdown Allowances From Suppliers
Supreme Court Reverses Ruling of Tax Appeals Board
2009-0437. Rich’s Dept. Stores, Inc. v. Levin, Slip Opinion No. 2010-Ohio-957.
Board of Tax Appeals, No. 2005-T-1609. Decision reversed, and Tax Commissioner’s assessment reinstated.
Moyer, C.J., and O'Connor, Lanzinger, and Cupp, JJ., concur.
Pfeifer, Lundberg Stratton, and O'Donnell, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-957.pdf
(March 18, 2010) The Supreme Court of Ohio ruled today that a retailer is not entitled to a reduction in the taxable value of merchandise held in its inventory based on “vendor markdown allowances” through which manufacturers compensate merchants for having to mark down slow-moving items from their expected retail price in order to sell them.
The Court’s 4-3 decision, authored by Chief Justice Thomas J. Moyer, reversed a ruling in which the Ohio Board of Tax Appeals (BTA) held that the state tax commissioner’s valuation of inventory held in Rich’s Department Stores in Ohio during the 2000, 2001 and 2002 tax years should be reduced to reflect vendor markdowns granted to the stores during those years.
While noting that the Court generally defers to factual findings made by the BTA, the Chief Justice wrote that in this case “a careful review of the evidence in light of the pertinent statutes and administrative rules shows that the BTA did err in construing and applying Administrative Rule 17.”
“The BTA specifically held that subtracting markdown allowances constituted a valid part of determining ‘cost as disclosed by the books of the taxpayer,’ treating markdown allowances as one of the factors that comprise book value under the rule,” wrote Chief Justice Moyer. “The BTA plainly misconstrued the phrase ‘cost as disclosed by the books of the taxpayer’ in Administrative Rule 17. That rule was promulgated to effectuate the general mandate that ‘depreciated book value shall be taken as the true value of such property, unless the assessor finds that such depreciated book value is greater or less than the then true value of such property in money.’ R.C. 5711.18. It follows that any ‘cost’ factor under the rule must relate to how the inventory is carried as a value on the books of the company following proper accounting principles and methods. ... The BTA’s decision violates this plain intent. As noted above, the record shows that ‘ending inventory’ or ‘ending inventory at cost’ is the accounting category that pertains to carrying the value of inventory on the books. Rich’s evidence demonstrates that markdown allowances should be subtracted when computing the ‘cost of goods sold’ on the profit-and-loss statement. But the evidence is uncontroverted that ... allowances from merchandise vendors ‘should not result in a reduction in the ending inventory.’
“In essence, Rich’s has proven nothing more than that its enjoyment of vendor markdown allowances entails a reduction of the cost of goods sold for accounting purposes and, more generally, can be viewed as an after-the-fact offset against the original acquisition cost of the merchandise. The former does not, as already discussed, justify an adjustment to book value; nor does the latter more directly establish true value than do the accounting methods.”
“Rich’s argument effectively claims that it should pay less tax, through a reduction in the value of its inventory, because it has received a benefit from its vendors in the form of a credit against monies owed. The inventory itself and the expected retail price thereof do not change merely because Rich’s has been granted a markdown allowance. While the need to mark down merchandise may indicate a reduced value for some items still held in inventory, the retail inventory method properly establishes a conservative valuation overall by stating the value of merchandise inventory at cost rather than at expected profit.”
“We hold that the record furnishes no factual basis upon which the BTA could predicate a reduction from book value in the amount of markdown allowances ... The foregoing analysis causes us to conclude that the BTA erred in its construction and application of Administrative Rule 17, and our resolution of that issue renders the commissioner’s other arguments moot. We therefore reverse the BTA’s decision and reinstate the Tax Commissioner’s final assessment certificates as issued.”
Chief Justice Moyer’s opinion was joined by Justices Maureen O’Connor, Judith Ann Lanzinger and Robert R. Cupp.
Justice Terrence O’Donnell entered a dissent, joined by Justices Paul E. Pfeifer and Evelyn Lundberg Stratton, in which he noted that Administrative Rule 17 permits additional adjustments after the cost of inventory is determined on the books of the taxpayer, and the BTA found that cost, as disclosed on Rich’s books, includes markdown allowances. Noting that the BTA had considered extensive witness testimony and factual evidence prior to arriving at its ruling in favor of Rich’s, he wrote: “After considering the foregoing evidence and other evidence that was competent and probative, including expert witness testimony in support of the Tax Commissioner, the board held that markdown allowances ‘are indeed a reduction in inventory cost’ and that subtracting such allowances from inventory value constituted a valid adjustment in arriving at the prima facie book value of inventory pursuant to Administrative Rule 17 ... This is compelling analysis in my view.”
Quoting from prior decisions in which the Supreme Court has deferred to factual determinations by the BTA, he wrote: “‘The fair market value of property for tax purposes is a question of fact, the determination of which is primarily within the province of the taxing authorities, and this court will not disturb a decision of the Board of Tax Appeals with respect to such valuation unless it affirmatively appears from the record that such decision is unreasonable and unlawful.’ ... Accordingly, I respectfully dissent and would affirm the decision of the Board of Tax Appeals in this instance.”
Contacts
Mark A. Engel, 513.870.6700, for Rich’s Department Stores Inc.
Barton A. Hubbard, 614.466.5967, for the State Tax Commissioner.
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.
Saturday, March 20, 2010
Ohio Supreme Court Rules that Community Notification Exception Applies to Sex Offenders Notified of Status After Jan. 1, 2008
2009-0893. State v. McConville, Slip Opinion No. 2010-Ohio-958.
Lorain App. No. 08CA009444, 182 Ohio App.3d 99, 2009-Ohio-1713. Judgment of the court of appeals affirmed.
Moyer, C.J., and Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-958.pdf
(March 18, 2010) The Supreme Court of Ohio ruled today that an exception to the community notification requirement for Tier III sex offenders set forth in current R.C. 2950.11(B)(2) applies to offenders who were first notified of their classification after Am Sub. S.B. 10 took effect on Jan. 1, 2008.
The Court’s 7-0 decision, authored by Justice Robert R. Cupp, affirmed rulings by the Lorain County Court of Common Pleas and 9th District Court of Appeals.
Effective Jan. 1, 2008, the General Assembly amended Ohio’s former sex offender classification scheme by adopting a new set of classifications based solely on the crime for which an offender was convicted. In the legislation adopting the new classification scheme, Am Sub. S.B. 10, the General Assembly included general provisions requiring that adults convicted of Tier III sex offenses and certain child sex offenders must register every 90 days for life with the sheriff in any county where the offender lives, works or attends school. The statute also requires sheriffs to provide notification including the residence and work addresses and a photo of the offender to specified parties in the surrounding community, including neighbors and nearby schools, day care centers, and victims of past sex crimes.
The legislation also included a provision, R.C. 2950.11(F)(2), stating that the community notification requirement for Tier III offenders “does not apply” to an offender if a court finds at a hearing, after considering 11 specific criteria set forth in that section, “that the person would not be subject to the notification provisions of this section that were in the version of this section that existed immediately prior to the effective date of this amendment.”
In this case, Stephen McConville pleaded guilty in July 2008 to rape and gross sexual imposition. At sentencing, McConville was notified that he would be classified as a Tier III sexual offender under the classification system established by S.B. 10. The trial court advised McConville of his registration and reporting duties pertaining to the Tier III classification. The court then conducted a second hearing for further review of the community-notification requirement. After considering the statutory factors set forth in R.C. 2950.11(F)(2), the trial court determined that McConville was “unlikely to commit a sexually oriented offense in the future, and that suspending the community notification requirements of R.C. 2950.11(F)(1) [was] in the interest of justice.”
The state appealed, arguing that the exception to community notification set forth in R.C. 2950.11(F)(2) was intended to apply only to persons who had been classified under the pre-2008 sex offender statute in a category that did not require community notification, but who were subsequently reclassified as Tier III offenders under the provisions of S.B. 10. The 9th District Court of Appeals affirmed the trial court’s holding that R.C. 2950.11(F)(2) was applicable to offenders like McConville who were notified of their classification after Jan. 1, 2008. The state sought and was granted Supreme Court review of the 9th District’s decision.
In today’s unanimous decision, Justice Cupp wrote: “R.C. 2950.11(F)(2) provides: ‘The notification provisions of this section do not apply to a person described in division (F)(1)(a), (b), or (c) of this section if a court finds at a hearing after considering the factors described in this division that the person would not be subject to the notification provisions of this section that were in the version of this section that existed immediately prior to the effective date of this amendment.’ The remainder of the statute details the 11 factors the trial court must consider to determine whether the sexual offender would have been subject to community notification under prior law. ... This appeal presents a matter of statutory interpretation. As a general rule, the words and phrases of a statute will be read in context and construed according to the rules of grammar and common usage. ... Moreover, there is no need for this court to apply the rules of statutory interpretation when the language of a statute is plain and unambiguous and conveys a clear and definite meaning.”
“The state’s argument is that R.C. 2950.11(F)(2) gives the trial court the discretion to suspend the community-notification requirement in consideration of the statute’s limiting factors only when the sexual offender’s status was previously determined under the law in effect prior to Senate Bill 10. ... We find that the language of R.C. 2950.11(F) is unambiguous. Accordingly, we do not find the state’s argument persuasive. The language used in the statue pertains to those sexual offenders whose status is determined after the effective date of R.C. 2950.11 as amended by Senate Bill 10. The provision is written in the present tense, referring to a ‘hearing’ at which a judge ‘finds’ certain facts. The 11 factors of R.C. 2950.11(F)(2) are similarly written in the present tense, indicating an evaluation presently taking place, and not one that has already occurred. In contrast to the state’s position, the language of the statue does not indicate that it applies only to those sexual offenders whose status had been previously determined under the provisions of former R.C. Chapter 2950. As a result, we decline to interpret the statute when no interpretation is required.”
Contacts
Billie Jo Belcher, 440.329.5458, for the state and Lorain County prosecutor’s office.
John M. Prusak, 440.244.2434, for Stephen McConville.
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.
Lorain App. No. 08CA009444, 182 Ohio App.3d 99, 2009-Ohio-1713. Judgment of the court of appeals affirmed.
Moyer, C.J., and Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-958.pdf
(March 18, 2010) The Supreme Court of Ohio ruled today that an exception to the community notification requirement for Tier III sex offenders set forth in current R.C. 2950.11(B)(2) applies to offenders who were first notified of their classification after Am Sub. S.B. 10 took effect on Jan. 1, 2008.
The Court’s 7-0 decision, authored by Justice Robert R. Cupp, affirmed rulings by the Lorain County Court of Common Pleas and 9th District Court of Appeals.
Effective Jan. 1, 2008, the General Assembly amended Ohio’s former sex offender classification scheme by adopting a new set of classifications based solely on the crime for which an offender was convicted. In the legislation adopting the new classification scheme, Am Sub. S.B. 10, the General Assembly included general provisions requiring that adults convicted of Tier III sex offenses and certain child sex offenders must register every 90 days for life with the sheriff in any county where the offender lives, works or attends school. The statute also requires sheriffs to provide notification including the residence and work addresses and a photo of the offender to specified parties in the surrounding community, including neighbors and nearby schools, day care centers, and victims of past sex crimes.
The legislation also included a provision, R.C. 2950.11(F)(2), stating that the community notification requirement for Tier III offenders “does not apply” to an offender if a court finds at a hearing, after considering 11 specific criteria set forth in that section, “that the person would not be subject to the notification provisions of this section that were in the version of this section that existed immediately prior to the effective date of this amendment.”
In this case, Stephen McConville pleaded guilty in July 2008 to rape and gross sexual imposition. At sentencing, McConville was notified that he would be classified as a Tier III sexual offender under the classification system established by S.B. 10. The trial court advised McConville of his registration and reporting duties pertaining to the Tier III classification. The court then conducted a second hearing for further review of the community-notification requirement. After considering the statutory factors set forth in R.C. 2950.11(F)(2), the trial court determined that McConville was “unlikely to commit a sexually oriented offense in the future, and that suspending the community notification requirements of R.C. 2950.11(F)(1) [was] in the interest of justice.”
The state appealed, arguing that the exception to community notification set forth in R.C. 2950.11(F)(2) was intended to apply only to persons who had been classified under the pre-2008 sex offender statute in a category that did not require community notification, but who were subsequently reclassified as Tier III offenders under the provisions of S.B. 10. The 9th District Court of Appeals affirmed the trial court’s holding that R.C. 2950.11(F)(2) was applicable to offenders like McConville who were notified of their classification after Jan. 1, 2008. The state sought and was granted Supreme Court review of the 9th District’s decision.
In today’s unanimous decision, Justice Cupp wrote: “R.C. 2950.11(F)(2) provides: ‘The notification provisions of this section do not apply to a person described in division (F)(1)(a), (b), or (c) of this section if a court finds at a hearing after considering the factors described in this division that the person would not be subject to the notification provisions of this section that were in the version of this section that existed immediately prior to the effective date of this amendment.’ The remainder of the statute details the 11 factors the trial court must consider to determine whether the sexual offender would have been subject to community notification under prior law. ... This appeal presents a matter of statutory interpretation. As a general rule, the words and phrases of a statute will be read in context and construed according to the rules of grammar and common usage. ... Moreover, there is no need for this court to apply the rules of statutory interpretation when the language of a statute is plain and unambiguous and conveys a clear and definite meaning.”
“The state’s argument is that R.C. 2950.11(F)(2) gives the trial court the discretion to suspend the community-notification requirement in consideration of the statute’s limiting factors only when the sexual offender’s status was previously determined under the law in effect prior to Senate Bill 10. ... We find that the language of R.C. 2950.11(F) is unambiguous. Accordingly, we do not find the state’s argument persuasive. The language used in the statue pertains to those sexual offenders whose status is determined after the effective date of R.C. 2950.11 as amended by Senate Bill 10. The provision is written in the present tense, referring to a ‘hearing’ at which a judge ‘finds’ certain facts. The 11 factors of R.C. 2950.11(F)(2) are similarly written in the present tense, indicating an evaluation presently taking place, and not one that has already occurred. In contrast to the state’s position, the language of the statue does not indicate that it applies only to those sexual offenders whose status had been previously determined under the provisions of former R.C. Chapter 2950. As a result, we decline to interpret the statute when no interpretation is required.”
Contacts
Billie Jo Belcher, 440.329.5458, for the state and Lorain County prosecutor’s office.
John M. Prusak, 440.244.2434, for Stephen McConville.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions.
Judge Kimbler's Criminal Docket for March 18, 2010
Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Kimbler's court on March 18, 2010, for criminal cases::
William Belan, 36, of Parkview Avenue in Wadsworth, pleaded not guilty to one count of Theft of a Motor Vehicle, a fourth-degree felony. A jury trial is scheduled for May 18.
Zachary Conley, 19, of Wooster Street in Lodi, pleaded not guilty to one count of Falsification and one count of Complicity to Commit Theft, both of which are fourth-degree felonies. A jury trial is scheduled for May 19.
David L. Hall, 34, of West Union Street in Medina, pleaded no contest and was sentenced to six months in prison on one count of Trafficking in Drugs within the Vicinity of a Juvenile, a fourth-degree felony.
Brant Kelling, 19, of Abbeyville Road in Medina, pleaded no contest to one count of Receiving Stolen Property, a fifth-degree felony. A jury trial is scheduled for May 18.
Jessie Lafferty, 27, of Liberty Street in Spencer, pleaded guilty to the following charges: one count of Safecracking, a fourth-degree felony; one count of Theft, a fourth-degree felony; and one count of Possession of Criminal Tools, a fifth-degree felony. Sentencing is scheduled for April 22.
Terence Martter, 21, of Trease Road in Wadsworth, pleaded not guilty to the following charges: 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. A jury trial is scheduled for May 17.
Kimberlee Palma, 23, of Canal Fulton Road in Marshallville, pleaded guilty to the following charges: one count of Attempted Robbery, a third-degree felony; one count of Robbery, a third-degree felony; and one count of Vandalism, a fifth-degree felony. Sentencing is scheduled for April 29.
William Belan, 36, of Parkview Avenue in Wadsworth, pleaded not guilty to one count of Theft of a Motor Vehicle, a fourth-degree felony. A jury trial is scheduled for May 18.
Zachary Conley, 19, of Wooster Street in Lodi, pleaded not guilty to one count of Falsification and one count of Complicity to Commit Theft, both of which are fourth-degree felonies. A jury trial is scheduled for May 19.
David L. Hall, 34, of West Union Street in Medina, pleaded no contest and was sentenced to six months in prison on one count of Trafficking in Drugs within the Vicinity of a Juvenile, a fourth-degree felony.
Brant Kelling, 19, of Abbeyville Road in Medina, pleaded no contest to one count of Receiving Stolen Property, a fifth-degree felony. A jury trial is scheduled for May 18.
Jessie Lafferty, 27, of Liberty Street in Spencer, pleaded guilty to the following charges: one count of Safecracking, a fourth-degree felony; one count of Theft, a fourth-degree felony; and one count of Possession of Criminal Tools, a fifth-degree felony. Sentencing is scheduled for April 22.
Terence Martter, 21, of Trease Road in Wadsworth, pleaded not guilty to the following charges: 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. A jury trial is scheduled for May 17.
Kimberlee Palma, 23, of Canal Fulton Road in Marshallville, pleaded guilty to the following charges: one count of Attempted Robbery, a third-degree felony; one count of Robbery, a third-degree felony; and one count of Vandalism, a fifth-degree felony. Sentencing is scheduled for April 29.
Thursday, March 18, 2010
Judge Kimbler Court Schedule for March 17-March 23, 2010
Click here to view Judge Kimbler's court schedule for the week of March 17 through March 23, 2010. Please note that the court's schedule is subject to change.
Tuesday, March 16, 2010
Ohio Supreme Court Seeks Public Comments on Unauthorized Practice of Law Changes
Under changes proposed to the Supreme Court of Ohio Rule governing the Unauthorized Practice of Law (UPL), the Ohio Attorney General would be authorized to investigate and prosecute certain complex UPL cases. The Supreme Court will accept public comment until April 13 on the proposed amendments. Justices concurred 7-0 in publishing the amendments for public comment.
If amended, Section 2 of Rule VII of the Rules for the Government of the Bar of Ohio would provide caseload assistance for the volunteer attorneys who investigate and prosecute UPL cases on behalf of bar associations, according to Michelle Hall, Attorney Services Counsel at the Supreme Court. She anticipated that if the Court adopts the proposed amendments, the Attorney General’s Office would prosecute one or two complex UPL cases annually. The current rule only authorizes Disciplinary Counsel and bar associations with UPL committees to initiate UPL cases.
Other proposed changes to Rule VII include:
•Adding a second non-attorney commissioner to the UPL board
•Authorizing the annual election of a chair and vice chair of the UPL board
•Refining the procedure for requesting a consent decree or settlement agreement
•Revising the definition of UPL
•Making non-substantive changes to conform with the Court’s Rule Drafting Manual
The proposed amendments also call for one change to Gov.Bar R. VI (Registration of Attorneys) since the revised definition of UPL would identify the Board of Commissioners on Grievances & Discipline as the proper venue for UPL complaints against suspended attorneys. (Gov.Bar R. VI currently says a suspended attorney may be referred for investigation to the UPL board.)
(You may read the text of the proposed amendments by going to this link.)
Comments on the amendments should be submitted in writing to:
Michelle Hall, Attorney Services Counsel
Supreme Court of Ohio
65 S. Front St., Fifth Floor
Columbus, Ohio 43215
or michelle.hall@sc.ohio.gov
Contact: Chris Davey or Bret Crow at 614.387.9250.
If amended, Section 2 of Rule VII of the Rules for the Government of the Bar of Ohio would provide caseload assistance for the volunteer attorneys who investigate and prosecute UPL cases on behalf of bar associations, according to Michelle Hall, Attorney Services Counsel at the Supreme Court. She anticipated that if the Court adopts the proposed amendments, the Attorney General’s Office would prosecute one or two complex UPL cases annually. The current rule only authorizes Disciplinary Counsel and bar associations with UPL committees to initiate UPL cases.
Other proposed changes to Rule VII include:
•Adding a second non-attorney commissioner to the UPL board
•Authorizing the annual election of a chair and vice chair of the UPL board
•Refining the procedure for requesting a consent decree or settlement agreement
•Revising the definition of UPL
•Making non-substantive changes to conform with the Court’s Rule Drafting Manual
The proposed amendments also call for one change to Gov.Bar R. VI (Registration of Attorneys) since the revised definition of UPL would identify the Board of Commissioners on Grievances & Discipline as the proper venue for UPL complaints against suspended attorneys. (Gov.Bar R. VI currently says a suspended attorney may be referred for investigation to the UPL board.)
(You may read the text of the proposed amendments by going to this link.)
Comments on the amendments should be submitted in writing to:
Michelle Hall, Attorney Services Counsel
Supreme Court of Ohio
65 S. Front St., Fifth Floor
Columbus, Ohio 43215
or michelle.hall@sc.ohio.gov
Contact: Chris Davey or Bret Crow at 614.387.9250.
Brunswick Man Enters Plea, Sent to Prison on Drug Charge
Jeremy A. Thomas of Laurel Road in Brunswick appeared in Judge Kimbler’s court on Tuesday, March 16, 2010, and entered a plea of “no contest” to a charge of Drug Trafficking, a fifth degree felony. He also admitted to violating the terms and conditions of his probation for an earlier offense.
After taking the plea to the Drug Trafficking charge, and the admission to the probation violation, Judge Kimbler sentenced Mr. Thomas to nine months in prison on both charges; ordered a six month license suspension on the drug charge; and waived court costs. Judge Kimbler also gave him credit for time he served in jail prior to the sentencing.
After taking the plea to the Drug Trafficking charge, and the admission to the probation violation, Judge Kimbler sentenced Mr. Thomas to nine months in prison on both charges; ordered a six month license suspension on the drug charge; and waived court costs. Judge Kimbler also gave him credit for time he served in jail prior to the sentencing.
Monday, March 15, 2010
Judge Collier's Criminal Docket for March 15, 2010
Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Collier's court for criminal cases on Monday, March 15, 2010:
Joseph Humphrey, 22, of Fairview Avenue in Wadsworth, was sentenced to three years of community control sanctions, with 180 days in jail, on one count of Trafficking in Marijuana, a fifth-degree felony. His driver’s license was suspended for two years.
Raymond Underwood, 33, of East 43rd Street in Cleveland, was sentenced to one year in prison on one count of Illegal Use of a Minor in Nudity-Oriented Material or Performance, a fifth-degree felony. He also was found to be a Tier I Sexually Oriented Offender. A jury found Underwood guilty of the charge on March 12.
Catherine Barkley, 28, of Melody Lane in Brooklyn, pleaded not guilty to one count of Possession of Drugs, a fifth-degree felony. A jury trial is scheduled for May 26.
Frank DePasquale, 37, of East 365th Street in Willoughby, pleaded not guilty to one count of Failure to Comply with a Police Officer, a third-degree felony, and two counts of Breaking and Entering, both of which are fifth-degree felonies. A jury trial is scheduled for April 21.
Ryan Johnson, 27, of North Ella Street in Orrville, pleaded not guilty to three counts of Robbery, two counts of which are second-degree felonies and one count of which is a third-degree felony. A jury trial is scheduled for April 28.
Melissa King, 40, of Eastern Road in Norton, pleaded not guilty to one count of Identity Theft, a third-degree felony. A jury trial is scheduled for June 21.
Ashley Napholz, 19, of Abbeyville Road in Medina, pleaded not guilty to one count of Receiving Stolen Property, a fifth-degree felony. A jury trial is scheduled for June 16.
Charlotte Powell, 33, of Victoria Lane in North Olmsted, pleaded guilty and was sentenced to six months in prison on one count of Theft and one count of Misuse of Credit Cards, both of which are fifth-degree felonies.
Colin Wojdacz, 29, of Seville Road in Seville, pleaded not guilty to one count of Possession of Heroin, a fifth-degree felony. A jury trial is scheduled for May 24.
Joseph Humphrey, 22, of Fairview Avenue in Wadsworth, was sentenced to three years of community control sanctions, with 180 days in jail, on one count of Trafficking in Marijuana, a fifth-degree felony. His driver’s license was suspended for two years.
Raymond Underwood, 33, of East 43rd Street in Cleveland, was sentenced to one year in prison on one count of Illegal Use of a Minor in Nudity-Oriented Material or Performance, a fifth-degree felony. He also was found to be a Tier I Sexually Oriented Offender. A jury found Underwood guilty of the charge on March 12.
Catherine Barkley, 28, of Melody Lane in Brooklyn, pleaded not guilty to one count of Possession of Drugs, a fifth-degree felony. A jury trial is scheduled for May 26.
Frank DePasquale, 37, of East 365th Street in Willoughby, pleaded not guilty to one count of Failure to Comply with a Police Officer, a third-degree felony, and two counts of Breaking and Entering, both of which are fifth-degree felonies. A jury trial is scheduled for April 21.
Ryan Johnson, 27, of North Ella Street in Orrville, pleaded not guilty to three counts of Robbery, two counts of which are second-degree felonies and one count of which is a third-degree felony. A jury trial is scheduled for April 28.
Melissa King, 40, of Eastern Road in Norton, pleaded not guilty to one count of Identity Theft, a third-degree felony. A jury trial is scheduled for June 21.
Ashley Napholz, 19, of Abbeyville Road in Medina, pleaded not guilty to one count of Receiving Stolen Property, a fifth-degree felony. A jury trial is scheduled for June 16.
Charlotte Powell, 33, of Victoria Lane in North Olmsted, pleaded guilty and was sentenced to six months in prison on one count of Theft and one count of Misuse of Credit Cards, both of which are fifth-degree felonies.
Colin Wojdacz, 29, of Seville Road in Seville, pleaded not guilty to one count of Possession of Heroin, a fifth-degree felony. A jury trial is scheduled for May 24.
Brunswick Man Enters Pleas on Two Drug Charges
Steven R. Ward of Jefferson Avenue in Brunswick entered a plea of “no contest” to two felonies involving drugs in Judge Kimbler’s court on Monday, March 15, 2010. Judge Kimbler found him guilty of both counts of the indictment.
The first count of the indictment alleged that Mr. Ward illegally cultivated or manufactured marijuana in the presence of a juvenile which, because of the amount of marijuana involved, is a felony of the second degree. The second count alleged that he possessed marijuana which is a felony of the third degree.
Judge Kimbler ordered a pre-sentence investigation and will sentence Mr. Ward on April 29, 2010. Judge Kimbler remanded Mr. Ward back to the Medina County Jail since he had not made a bond that was previously ordered.
The first count of the indictment alleged that Mr. Ward illegally cultivated or manufactured marijuana in the presence of a juvenile which, because of the amount of marijuana involved, is a felony of the second degree. The second count alleged that he possessed marijuana which is a felony of the third degree.
Judge Kimbler ordered a pre-sentence investigation and will sentence Mr. Ward on April 29, 2010. Judge Kimbler remanded Mr. Ward back to the Medina County Jail since he had not made a bond that was previously ordered.
Judge Kimbler's Ohio Supreme Court Report for February, 2010
Judge Kimbler had 116 cases assigned to his docket during the month of February, 2010. Of those cases, the three biggest categories were “Foreclosures” with 44, “Other Civil” with 40 and “Criminal” with 18.
During the month, Judge Kimbler had 10 cases either reactivated or transferred in to his docket. Adding the new cases and the reactivated/transferred cases to his pending docket of 749 as of the end of January meant that during February Judge Kimbler had 875 cases pending on his docket.
In February Judge Kimbler disposed of 124 cases. The three biggest categories for disposed cases were “Other Civil” with 46, “Foreclosures” with 40 and “Criminal” with 28. At the end of February Judge Kimbler had 751 cases pending on his docket.
During the month, Judge Kimbler had 10 cases either reactivated or transferred in to his docket. Adding the new cases and the reactivated/transferred cases to his pending docket of 749 as of the end of January meant that during February Judge Kimbler had 875 cases pending on his docket.
In February Judge Kimbler disposed of 124 cases. The three biggest categories for disposed cases were “Other Civil” with 46, “Foreclosures” with 40 and “Criminal” with 28. At the end of February Judge Kimbler had 751 cases pending on his docket.
Judge Collier's Ohio Supreme Court Report for February, 2010
In February, Judge Collier had 114 cases assigned to his docket. Combined with the 734 cases that he had pending at the beginning of the month, plus the ten cases that were reactivated or transferred to his docket, this meant that Judge Collier was responsible for handling 858 cases during February.
Of the cases assigned in March, “Other Civil” was the biggest category with 46 new cases. That category was followed by “Foreclosures”, which had 39 new cases. “Criminal” rounded out the top three categories with 18 new cases.
During the month, Judge Collier disposed of 118 cases. The top three categories for disposed cases was the same as the top three categories for new cases, but the top two were different. In the cases that were disposed, “Foreclosures” was the biggest category with 41 cases, followed by “Other Civil” with 38 cases. Again rounding out the top three categories was “Criminal” with 31 disposed cases. At the end of February Judge Collier had 740 cases assigned to his docket.
Of the cases assigned in March, “Other Civil” was the biggest category with 46 new cases. That category was followed by “Foreclosures”, which had 39 new cases. “Criminal” rounded out the top three categories with 18 new cases.
During the month, Judge Collier disposed of 118 cases. The top three categories for disposed cases was the same as the top three categories for new cases, but the top two were different. In the cases that were disposed, “Foreclosures” was the biggest category with 41 cases, followed by “Other Civil” with 38 cases. Again rounding out the top three categories was “Criminal” with 31 disposed cases. At the end of February Judge Collier had 740 cases assigned to his docket.
Strongsville Man Pleads Guilty to Theft Charge
Michael T. Peck of Lanier Lane in Strongsville entered a plea of guilty to a misdemeanor theft charge in Judge Kimbler’s court on Wednesday, March 10, 2010. Mr. Peck was originally indicted for a felony theft offense.
The State alleged in the indictment that Mr. Peck had stolen a firearm, which is a felony offense. The alleged victim was his uncle. At the change of plea hearing the State told Judge Kimbler that Mr. Peck’s uncle was now claiming that there had been a “misunderstanding” involving the taking of the uncle’s firearm. Based on the uncle’s statements regarding the taking of the firearm, the State decided to reduce the charge to a misdemeanor.
Judge Kimbler took the change of plea and ordered a pre-sentence investigation. Sentencing will take place on April 29, 2010. Judge Kimbler continued Mr. Peck’s bond.
The State alleged in the indictment that Mr. Peck had stolen a firearm, which is a felony offense. The alleged victim was his uncle. At the change of plea hearing the State told Judge Kimbler that Mr. Peck’s uncle was now claiming that there had been a “misunderstanding” involving the taking of the uncle’s firearm. Based on the uncle’s statements regarding the taking of the firearm, the State decided to reduce the charge to a misdemeanor.
Judge Kimbler took the change of plea and ordered a pre-sentence investigation. Sentencing will take place on April 29, 2010. Judge Kimbler continued Mr. Peck’s bond.
Valley City Man Convicted of DUI Following Non-Jury Trial
Joseph L. Strehl, III, of Columbia Road in Valley City was found guilty Monday by Judge Kimbler of Operating a Motor Vehicle While Under the Influence of Alcohol, a first degree misdemeanor. The case was tried to Judge Kimbler since Mr. Strehl had waived his right to a jury trial.
Originally Mr. Strehl was charged with a felony. After the State rested its case on Friday, March 12, 2009, Mr. Strehl’s attorney moved for a directed verdict on acquittal on the specification that Mr. Strehl had previously been convicted of a felony DUI in Texas. Judge Kimbler granted that motion. The effect of granting the motion was to change the charge from a felony to a misdemeanor.
Following the announcement of his verdict, Judge Kimbler ordered a pre-sentence investigation and will impose sentence on April 29, 2010. Judge Kimbler also continued Mr. Strehl’s bond.
Originally Mr. Strehl was charged with a felony. After the State rested its case on Friday, March 12, 2009, Mr. Strehl’s attorney moved for a directed verdict on acquittal on the specification that Mr. Strehl had previously been convicted of a felony DUI in Texas. Judge Kimbler granted that motion. The effect of granting the motion was to change the charge from a felony to a misdemeanor.
Following the announcement of his verdict, Judge Kimbler ordered a pre-sentence investigation and will impose sentence on April 29, 2010. Judge Kimbler also continued Mr. Strehl’s bond.
Sunday, March 14, 2010
Medina County Foreclosures Near 1200 in 2009
Policy Matters Ohio, which is an organization that researches state government released a report showing that the number of foreclosure actions increased in 2009 over 2008 in most Ohio counties, including Medina County. In Medina County in 2009 there were 1155 foreclosure cases filed as compared to 961 in 2008. By way of comparison, in 1997 there were only 206 foreclosure actions filed.
The graph for Medina County that is on the Policy Matters Ohio website can be viewed below. To see an interaction map of Ohio which allows you to see a similar graph for all of Ohio's counties, click here.
The graph for Medina County that is on the Policy Matters Ohio website can be viewed below. To see an interaction map of Ohio which allows you to see a similar graph for all of Ohio's counties, click here.
Ohio foreclosure filings set new record in 2009, top 89,000
Cuyahoga County Again Ranks First in Rate, Non-Urban Counties Lead in Growth Rates
Sixty-four of Ohio’s 88 counties saw an increase in foreclosure filings last year, and in 34 counties, filings grew by double-digit rates. While urban counties continue to lead the state in foreclosure filings, smaller and less urban counties are experiencing larger growth rates.
A new report released today by Policy Matters Ohio analyzes foreclosure filings and other housing trends in Ohio and its counties. Statewide, foreclosure filings continued to grow in 2009 with 89,053 new foreclosure filings, a 3.8 percent increase since 2008. Compared to ten years ago, when Ohio had 31,229 new foreclosures, this is a 185 percent increase. The latest numbers indicate that there was one foreclosure filing for every 56 housing units in the state last year.
The gain in filings is particularly crippling to the state, coming after years of increased filings and the broadest foreclosure prevention attempts to date, according to the study. Statewide, filings have more than quintupled since 1995.The study reviews federal efforts such as the HAMP program to curb foreclosures, finding dismal results. Nearly one-third of Ohio mortgage holders are “under water”, owing more than their houses are worth, and one in every six homeowners is either delinquent or in foreclosure.
“The number of foreclosures in the state remains at crisis levels and all signs point to more growth,” said David Rothstein, Policy Matters researcher and author of the report.
Cuyahoga County led the state once again in foreclosure filings per person, followed this year by Lucas, Clinton, and Highland counties. Morgan County led the state in foreclosure-filing growth between 2008 and 2009, with a 129 percent increase. Seven of the top ten counties in foreclosure-filing growth – each of which saw at least a 26 percent increase last year – were in the Northwest and Appalachian regions of the state.
Foreclosure filings continue to be most heavily concentrated in the state’s urban counties, accounting for 61 percent of filings. However, non-urban counties continue to experience large foreclosure growth
rates. The report chronicles that counties with populations less than 200,000 had higher foreclosure growth rates than the state average. For instance, the 60 counties with a population of below 100,000 saw overall foreclosure filing growth rate of 8.78 percent, up from 3.3 percent the previous year.
"It is up to Ohio," said Rothstein. “Federal efforts are falling short and the state has the ability to help homeowners and stabilize communities.”
The report recommends that the Ohio legislature pass reasonable reforms to encourage real loan modifications and reduce the foreclosure filing rate. These include regulating loan servicers, funding housing counselors, increasing tenant notifications and protections during foreclosure, and preventing foreclosure rescue scams.
Sixty-four of Ohio’s 88 counties saw an increase in foreclosure filings last year, and in 34 counties, filings grew by double-digit rates. While urban counties continue to lead the state in foreclosure filings, smaller and less urban counties are experiencing larger growth rates.
A new report released today by Policy Matters Ohio analyzes foreclosure filings and other housing trends in Ohio and its counties. Statewide, foreclosure filings continued to grow in 2009 with 89,053 new foreclosure filings, a 3.8 percent increase since 2008. Compared to ten years ago, when Ohio had 31,229 new foreclosures, this is a 185 percent increase. The latest numbers indicate that there was one foreclosure filing for every 56 housing units in the state last year.
The gain in filings is particularly crippling to the state, coming after years of increased filings and the broadest foreclosure prevention attempts to date, according to the study. Statewide, filings have more than quintupled since 1995.The study reviews federal efforts such as the HAMP program to curb foreclosures, finding dismal results. Nearly one-third of Ohio mortgage holders are “under water”, owing more than their houses are worth, and one in every six homeowners is either delinquent or in foreclosure.
“The number of foreclosures in the state remains at crisis levels and all signs point to more growth,” said David Rothstein, Policy Matters researcher and author of the report.
Cuyahoga County led the state once again in foreclosure filings per person, followed this year by Lucas, Clinton, and Highland counties. Morgan County led the state in foreclosure-filing growth between 2008 and 2009, with a 129 percent increase. Seven of the top ten counties in foreclosure-filing growth – each of which saw at least a 26 percent increase last year – were in the Northwest and Appalachian regions of the state.
Foreclosure filings continue to be most heavily concentrated in the state’s urban counties, accounting for 61 percent of filings. However, non-urban counties continue to experience large foreclosure growth
rates. The report chronicles that counties with populations less than 200,000 had higher foreclosure growth rates than the state average. For instance, the 60 counties with a population of below 100,000 saw overall foreclosure filing growth rate of 8.78 percent, up from 3.3 percent the previous year.
"It is up to Ohio," said Rothstein. “Federal efforts are falling short and the state has the ability to help homeowners and stabilize communities.”
The report recommends that the Ohio legislature pass reasonable reforms to encourage real loan modifications and reduce the foreclosure filing rate. These include regulating loan servicers, funding housing counselors, increasing tenant notifications and protections during foreclosure, and preventing foreclosure rescue scams.
Friday, March 12, 2010
Judge Kimbler's Criminal Docket for March 11, 2010
Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Kimbler's court on March 11, 2010, for criminal cases:
Christopher Bates, 24, of Bronson Street in Medina, was sentenced to five years of community control sanctions on one count of Domestic Violence, a fourth-degree felony.
Heather Keener, 33, of Collier Road in Doylestown, was sentenced to three years of community control sanctions on one count of Forgery, a fifth-degree felony.
Brendan Walsh, 19, of Laurel Road in Brunswick, was sentenced to three years of community control sanctions on one count of Trafficking in Marijuana, a fifth-degree felony.
Susan Farr, 54, of Raven Place in Wadsworth, pleaded not guilty to one count of Possession of Drugs, a fifth-degree felony. A jury trial is scheduled for May 11.
Christopher Hahn, 19, of First Street in Wadsworth, pleaded not guilty to eight counts of Illegal Use of a Minor in Nudity-Oriented Material or Performance. Seven of those counts are second-degree felonies; the remaining count is a fifth-degree felony. A jury trial is scheduled for May 10.
Robert Krumwiede, 20, of Crestwood Avenue in Wadsworth, pleaded no contest to one count of Possession of Cocaine, a fifth-degree felony. Sentencing is scheduled for April 22.
Billy Lafferty, 29, of Liberty Street in Spencer, pleaded guilty to the following charges: one count of Safecracking, a fourth-degree felony; one count of Theft, a fourth-degree felony; and one count of Possession of Criminal Tools, a fifth-degree felony. Sentencing is scheduled for April 22.
Lavinia Pierce-Rives, 42, of East 43rd Street in Cleveland, pleaded not guilty to one count of Receiving Stolen Property, a Motor Vehicle, a fourth-degree felony. A jury trial is scheduled for May 10.
Ashley Tucker, 22, of Woodbury Drive in Akron, pleaded not guilty to one count of Theft of Credit Cards, a fifth-degree felony. A jury trial is scheduled for May 11.
Christopher Bates, 24, of Bronson Street in Medina, was sentenced to five years of community control sanctions on one count of Domestic Violence, a fourth-degree felony.
Heather Keener, 33, of Collier Road in Doylestown, was sentenced to three years of community control sanctions on one count of Forgery, a fifth-degree felony.
Brendan Walsh, 19, of Laurel Road in Brunswick, was sentenced to three years of community control sanctions on one count of Trafficking in Marijuana, a fifth-degree felony.
Susan Farr, 54, of Raven Place in Wadsworth, pleaded not guilty to one count of Possession of Drugs, a fifth-degree felony. A jury trial is scheduled for May 11.
Christopher Hahn, 19, of First Street in Wadsworth, pleaded not guilty to eight counts of Illegal Use of a Minor in Nudity-Oriented Material or Performance. Seven of those counts are second-degree felonies; the remaining count is a fifth-degree felony. A jury trial is scheduled for May 10.
Robert Krumwiede, 20, of Crestwood Avenue in Wadsworth, pleaded no contest to one count of Possession of Cocaine, a fifth-degree felony. Sentencing is scheduled for April 22.
Billy Lafferty, 29, of Liberty Street in Spencer, pleaded guilty to the following charges: one count of Safecracking, a fourth-degree felony; one count of Theft, a fourth-degree felony; and one count of Possession of Criminal Tools, a fifth-degree felony. Sentencing is scheduled for April 22.
Lavinia Pierce-Rives, 42, of East 43rd Street in Cleveland, pleaded not guilty to one count of Receiving Stolen Property, a Motor Vehicle, a fourth-degree felony. A jury trial is scheduled for May 10.
Ashley Tucker, 22, of Woodbury Drive in Akron, pleaded not guilty to one count of Theft of Credit Cards, a fifth-degree felony. A jury trial is scheduled for May 11.
Monday, March 08, 2010
Judge Collier's Criminal Docket for March 8, 2010
Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Collier's court on March 8, 2010, for criminal cases:
Lindsay Bielek, 24, of Brookdale Avenue in Parma, was sentenced to two years of community control sanctions, with 11 days in jail, on two counts of Permitting Drug Abuse, both of which are fifth-degree felonies. Her driver’s license also was suspended for six months.
Dustin Harbaugh, 30, of Howe Street in Lodi, was sentenced to six months in prison on one count of Attempted Assault of a Police Officer, a fifth-degree felony.
Jennifer Thomas, 21, of Water Street in Wadsworth, was sentenced to two years of community control sanctions on one count of Trafficking in Marijuana, a fifth-degree felony. Her driver’s license also was suspended for six months.
Jacob Durand, 19, of Hemlock Court in Brunswick, pleaded not guilty to eight counts of Breaking and Entering, all of which are fifth-degree felonies. A jury trial is scheduled for May 17.
Edward Durdella, 37, of Turnbridge Court in Brunswick, pleaded not guilty to one count of Driving Under the Influence of Drugs or Alcohol, with Priors, a fourth-degree felony. A jury trial is scheduled for April 12.
Robert Padgett Jr., 30, of Rittman, pleaded not guilty to the following charges: four counts of Burglary, all of which are second-degree felonies; one count of Passing Bad Checks, a fourth-degree felony; and one count each of Theft and Breaking and Entering, both of which are fifth-degree felonies. A jury trial is scheduled for April 7.
Carla Price, 38, of Greenwich Road in Lodi, pleaded not guilty to one count of Possession of Drugs, a fifth-degree felony. A jury trial is scheduled for June 14.
Lindsay Bielek, 24, of Brookdale Avenue in Parma, was sentenced to two years of community control sanctions, with 11 days in jail, on two counts of Permitting Drug Abuse, both of which are fifth-degree felonies. Her driver’s license also was suspended for six months.
Dustin Harbaugh, 30, of Howe Street in Lodi, was sentenced to six months in prison on one count of Attempted Assault of a Police Officer, a fifth-degree felony.
Jennifer Thomas, 21, of Water Street in Wadsworth, was sentenced to two years of community control sanctions on one count of Trafficking in Marijuana, a fifth-degree felony. Her driver’s license also was suspended for six months.
Jacob Durand, 19, of Hemlock Court in Brunswick, pleaded not guilty to eight counts of Breaking and Entering, all of which are fifth-degree felonies. A jury trial is scheduled for May 17.
Edward Durdella, 37, of Turnbridge Court in Brunswick, pleaded not guilty to one count of Driving Under the Influence of Drugs or Alcohol, with Priors, a fourth-degree felony. A jury trial is scheduled for April 12.
Robert Padgett Jr., 30, of Rittman, pleaded not guilty to the following charges: four counts of Burglary, all of which are second-degree felonies; one count of Passing Bad Checks, a fourth-degree felony; and one count each of Theft and Breaking and Entering, both of which are fifth-degree felonies. A jury trial is scheduled for April 7.
Carla Price, 38, of Greenwich Road in Lodi, pleaded not guilty to one count of Possession of Drugs, a fifth-degree felony. A jury trial is scheduled for June 14.
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.
Ohio Supreme Court Decision on Scaffolds and Safety Requirements
By Ohio Supreme Court Justice Paul Pfeifer
Outside of the construction business it’s probably safe to say no one pays much attention to scaffolding. But solid, safe scaffolding is so integral to construction that the Ohio Administrative Code contains a number of specific safety requirements that apply to scaffolds. Those safety requirements were at the center of a case that we reviewed here – at the Supreme Court of Ohio.
The case involved a man named John W. Johnson who was installing safety rails on a scaffold that was in the process of being erected. Several of Johnson’s co-workers were starting to enclose this assembled portion of the scaffold in plastic, which was meant to protect workers from the winter elements.
Johnson was on either the first or second level of the scaffold – between six and 16 feet off the ground – when a gust of wind got underneath the plastic. The gust tipped the scaffold, and threw Johnson to the ground.
Johnson’s workers’ compensation claim was allowed, but he also alleged that his employer – Buckner & Sons Masonry, Inc. – had violated, among other things, three specific safety requirements related to bracing and anchorage of a scaffold. A staff hearing officer of the Ohio Industrial Commission, the entity that handles such claims, reviewed his allegations.
The staff hearing officer found that the specific safety requirements that Johnson alleged had been violated did not apply in this instance because the scaffold was not fully assembled.
In his report, the staff hearing officer wrote: “All three of these rules are designed to ensure that completed scaffolds must be safe in that the anchorage, poles, and legs of a completed scaffold must be properly secured to prevent swaying and diagonal braces must be used to secure a completed scaffold.”
The staff hearing officer went on to say that “while the cited rules don’t specifically state that these safety rules only apply to completed or finished scaffolds…it is obvious that these rules should only apply to already completed scaffolds so that employees working on them will be safe.
“To hold otherwise, that is, to find that these rules apply not only to already completed scaffolds, but also to scaffolds still being built, would subject employers to safety standards that would be clearly premature because the required safety rules contemplate a review of existing and completed scaffolds to ensure that completed scaffolds meet pre-determined safety regulations.”
After a rehearing was denied, Johnson filed a complaint with the court of appeals. He argued that by declaring the safety requirements applicable only to fully erected scaffolds, the Industrial Commission was impermissibly inserting language into the safety code. He asserted that the Commission’s interpretation not only produced an illogical result but also encouraged employers to circumvent safety regulations by simply leaving a scaffold partially completed.
But the magistrate who considered Johnson’s complaint recommended that it be denied. According to the magistrate, the Commission’s finding that the rules were inapplicable does not give rise to a patently illogical result, as Johnson claimed.
“There is no evidence that Buckner was attempting to avoid the applicability of the rules relating to scaffolding by deliberately delaying the completion of the scaffold,” the magistrate wrote in his report. “In fact, the undisputed evidence shows that Buckner was endeavoring to complete or finish the erection of the scaffold at the time of the injury.”
The court of appeals adopted the magistrate’s findings of fact and conclusions of law. The court of appeals denied Johnson’s complaint, prompting his appeal to our court for a final review.
We did not share the court of appeals’ view of this case. In our opinion – a six-to-one vote – the Industrial Commission’s order was more conclusory than explanatory. The staff hearing officer, who declared that it was “obvious” that the regulations applied only to completed scaffolds, apparently believed that no explanation was necessary.
If there was an explanation to be garnered from the order, it more likely derived from this statement: “It is obvious that these rules should only apply to already completed scaffolds so that employees working on them will be safe.”
The troubling aspect of this logic is the assumption that employees work only on or around completed scaffolds. Scaffolds, however, do not erect themselves – workers erect them level by level. To do that, they must be on and around unfinished assemblies.
This fact leads to a second point. Workers on or around unfinished assemblies need appropriate protection just as much as workers on finished assemblies. An employee assigned to install cross braces on the second level of an incomplete scaffold is exposed to at least as much risk of injury as an employee working on the second level of a finished scaffold.
An unstable scaffold is also a danger to everyone working on the ground in the event of a collapse. The scaffolding regulations at issue are intended to ensure that the scaffold is always plumb, secured, and rigid. These are not features that should apply to some scaffolds and not others.
We recognized the court of appeals’ reluctance to impose liability for violation of specific safety requirements on an employer who was installing the very safety devices required by the safety code at the time the accident occurred. We do not, however, agree that the answer is to decline to apply the code altogether.
The answer, in our opinion, is to apply the code and then determine whether the employer either complied – or was in the process of complying – with the safety provisions at issue, taking into account the stage of construction and the reasonableness and practicality of being able to comply with the safety provisions at that stage of installing the scaffolding.
We thus concluded that the pertinent section of the Ohio Administrative Code applies to all scaffolds, regardless of the stage of construction. We reversed the court of appeals’ judgment and returned the case to the Industrial Commission to determine whether the employer satisfied the specific safety requirements at issue.
EDITOR’S NOTE: The case referred to is: State ex rel. Johnson v. Indus. Comm., 122 Ohio St.3d 289, 2009-Ohio-3453. Case No. 2008-1089. Decided July 21, 2009. Majority opinion Per Curiam.
Outside of the construction business it’s probably safe to say no one pays much attention to scaffolding. But solid, safe scaffolding is so integral to construction that the Ohio Administrative Code contains a number of specific safety requirements that apply to scaffolds. Those safety requirements were at the center of a case that we reviewed here – at the Supreme Court of Ohio.
The case involved a man named John W. Johnson who was installing safety rails on a scaffold that was in the process of being erected. Several of Johnson’s co-workers were starting to enclose this assembled portion of the scaffold in plastic, which was meant to protect workers from the winter elements.
Johnson was on either the first or second level of the scaffold – between six and 16 feet off the ground – when a gust of wind got underneath the plastic. The gust tipped the scaffold, and threw Johnson to the ground.
Johnson’s workers’ compensation claim was allowed, but he also alleged that his employer – Buckner & Sons Masonry, Inc. – had violated, among other things, three specific safety requirements related to bracing and anchorage of a scaffold. A staff hearing officer of the Ohio Industrial Commission, the entity that handles such claims, reviewed his allegations.
The staff hearing officer found that the specific safety requirements that Johnson alleged had been violated did not apply in this instance because the scaffold was not fully assembled.
In his report, the staff hearing officer wrote: “All three of these rules are designed to ensure that completed scaffolds must be safe in that the anchorage, poles, and legs of a completed scaffold must be properly secured to prevent swaying and diagonal braces must be used to secure a completed scaffold.”
The staff hearing officer went on to say that “while the cited rules don’t specifically state that these safety rules only apply to completed or finished scaffolds…it is obvious that these rules should only apply to already completed scaffolds so that employees working on them will be safe.
“To hold otherwise, that is, to find that these rules apply not only to already completed scaffolds, but also to scaffolds still being built, would subject employers to safety standards that would be clearly premature because the required safety rules contemplate a review of existing and completed scaffolds to ensure that completed scaffolds meet pre-determined safety regulations.”
After a rehearing was denied, Johnson filed a complaint with the court of appeals. He argued that by declaring the safety requirements applicable only to fully erected scaffolds, the Industrial Commission was impermissibly inserting language into the safety code. He asserted that the Commission’s interpretation not only produced an illogical result but also encouraged employers to circumvent safety regulations by simply leaving a scaffold partially completed.
But the magistrate who considered Johnson’s complaint recommended that it be denied. According to the magistrate, the Commission’s finding that the rules were inapplicable does not give rise to a patently illogical result, as Johnson claimed.
“There is no evidence that Buckner was attempting to avoid the applicability of the rules relating to scaffolding by deliberately delaying the completion of the scaffold,” the magistrate wrote in his report. “In fact, the undisputed evidence shows that Buckner was endeavoring to complete or finish the erection of the scaffold at the time of the injury.”
The court of appeals adopted the magistrate’s findings of fact and conclusions of law. The court of appeals denied Johnson’s complaint, prompting his appeal to our court for a final review.
We did not share the court of appeals’ view of this case. In our opinion – a six-to-one vote – the Industrial Commission’s order was more conclusory than explanatory. The staff hearing officer, who declared that it was “obvious” that the regulations applied only to completed scaffolds, apparently believed that no explanation was necessary.
If there was an explanation to be garnered from the order, it more likely derived from this statement: “It is obvious that these rules should only apply to already completed scaffolds so that employees working on them will be safe.”
The troubling aspect of this logic is the assumption that employees work only on or around completed scaffolds. Scaffolds, however, do not erect themselves – workers erect them level by level. To do that, they must be on and around unfinished assemblies.
This fact leads to a second point. Workers on or around unfinished assemblies need appropriate protection just as much as workers on finished assemblies. An employee assigned to install cross braces on the second level of an incomplete scaffold is exposed to at least as much risk of injury as an employee working on the second level of a finished scaffold.
An unstable scaffold is also a danger to everyone working on the ground in the event of a collapse. The scaffolding regulations at issue are intended to ensure that the scaffold is always plumb, secured, and rigid. These are not features that should apply to some scaffolds and not others.
We recognized the court of appeals’ reluctance to impose liability for violation of specific safety requirements on an employer who was installing the very safety devices required by the safety code at the time the accident occurred. We do not, however, agree that the answer is to decline to apply the code altogether.
The answer, in our opinion, is to apply the code and then determine whether the employer either complied – or was in the process of complying – with the safety provisions at issue, taking into account the stage of construction and the reasonableness and practicality of being able to comply with the safety provisions at that stage of installing the scaffolding.
We thus concluded that the pertinent section of the Ohio Administrative Code applies to all scaffolds, regardless of the stage of construction. We reversed the court of appeals’ judgment and returned the case to the Industrial Commission to determine whether the employer satisfied the specific safety requirements at issue.
EDITOR’S NOTE: The case referred to is: State ex rel. Johnson v. Indus. Comm., 122 Ohio St.3d 289, 2009-Ohio-3453. Case No. 2008-1089. Decided July 21, 2009. Majority opinion Per Curiam.
Sunday, March 07, 2010
Court Rules Sale Closest to Tax Lien Date Determines Property’s Value for Tax Purposes
When Property Sold Twice Within Reasonable Time Before/After Lien Date
HIN, L.L.C. v. Cuyahoga Cty. Bd. of Revision, Slip Opinion No. 2010-Ohio-687.
Board of Tax Appeals, No. 2006-A-712. Decision affirmed.
Moyer, C.J., and Pfeifer, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Lundberg Stratton, J., concurs separately.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-687.pdf
(March 4, 2010) In a decision announced today, the Supreme Court of Ohio ruled that when a property has been the subject of two arm’s length sales between a willing buyer and seller within a reasonable length of time before or after the tax-lien date, the sale occurring closer in time to the tax lien date establishes the true value of the property for taxation purposes.
In a 7-0 ruling authored by Justice Terrence O’Donnell, the Court also held that, only for purposes of establishing the taxable value of property under R.C. 5713.03, the date a real property conveyance fee statement is filed with the county auditor should be considered the “sale date” of the property.
The case involved a dispute over the tax valuation for calendar year 2004 of a 34-acre parcel of land and an office building on that land, which is located in the Cuyahoga County community of Bedford and the Bedford School District. In December 2003, the land and building were purchased from a previous owner by JBK Properties for $4.9 million. JBK subsequently executed a 15-year lease agreement with U.S. Bank for full occupancy of the office building. In April 2004, JBK sold the property, including its ownership interest in the lease agreement, to another company, HIN, for $7.4 million.
In assessing the property for the 2004 tax year, the Cuyahoga County Auditor estimated its taxable market value at $7,848,400 based on the April 2004 sale price. HIN appealed that valuation to the Cuyahoga County Board of Tax Revision, seeking a reduction of the auditor’s valuation to $5 million based on the December 2003 sale price. The Bedford School District filed a counter-complaint urging affirmance of the auditor’s valuation. The board of revision upheld the auditor’s valuation of the property. HIN then exercised its right to appeal the board of revision’s ruling to the Ohio Board of Tax Appeals (BTA). The BTA reversed the board of revision, and ruled that the true value of the property on Jan. 1, 2004 was the December 2003 sale price of $4.9 million.
The school district exercised its right to appeal the BTA’s ruling to the Supreme Court.
In today’s decision upholding the BTA’s valuation, Justice O’Donnell wrote: “R.C. 5713.03 sets forth how real estate is to be valued for tax purposes: ‘In determining the true value of any tract, lot, or parcel of real estate under this section, if such tract, lot, or parcel has been the subject of an arm’s length sale between a willing seller and a willing buyer within a reasonable length of time, either before or after the tax lien date, the auditor shall consider the sale price of such tract, lot, or parcel to be the true value for taxation purposes.’ (Emphasis added.) ... In this case, January 1, 2004, is the relevant valuation date, and the parties do not differ on this point.”
“However, this case involves two sales, one occurring prior to the tax-lien date and one occurring subsequent to the tax-lien date, and we are called upon to determine which sale should be used as evidence of the true value. When a property has been the subject of two arm’s-length sales between a willing seller and a willing buyer within a reasonable length of time either before or after the tax-lien date, the sale occurring closer in time to the tax-lien date establishes the true value of the property for taxation purposes. This principle emanates from R.C. 5713.03, which presupposes that an arm’s-length sale close in time to the tax-lien date accurately indicates the value of property as of that date. It follows that when a property has been the subject of two arm’s-length sales between willing sellers and willing buyers, the sale occurring closer in time to the tax-lien date provides a more accurate indication of the true value of the property as of the tax-lien date than does a sale occurring more remotely in time from that date.”
Justice O’Donnell rejected arguments by the school district that the date on which the parties agreed on a sale price or the date on which the buyer and seller entered into a contract to purchase the property should be considered the “sale date” for tax valuation purposes.
He wrote: “Legal title to real property transfers from the seller to the buyer with the delivery and acceptance of an executed deed. ... R.C. 317.22 provides that ‘[n]o deed of absolute conveyance of land ... shall be recorded by the county recorder until ... [t]he conveyance presented to the recorder bears the stamp of the county auditor ... [and s]uch conveyance has been presented to the county auditor, and by the county auditor indorsed “transferred” or “transfer not necessary.” ’ Before the deed may be endorsed by the auditor, however, R.C. 319.202 requires the new owner to submit a real property conveyance fee statement to the auditor declaring the value of the real property, and pursuant to R.C. 319.20, the auditor must transfer the parcel into the new owner’s name on the tax list. The purpose of this statutory scheme is to provide the auditor the necessary information to determine the true value of property based on a property sale in accordance with R.C. 5713.03. For this reason, in determining the date a sale of property occurs, only for purposes of establishing the true value of property pursuant to R.C. 5713.03, the auditor should use the date that the real property conveyance fee statement is filed in the auditor’s office as the sale date of the property.”
“Here, the filing of the real property conveyance fee statement for the December 2003 sale on December 30, 2003, occurred in closer proximity to the tax-lien date than the filing of the real property conveyance fee statement for the April 2004 sale on April 30, 2004. Therefore, for purposes of establishing the true value of the property in accordance with R.C. 5713.03, the auditor should use the December 2003 sale price as the true value of the property for tax year 2004.”
Justice O’Donnell’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer, Maureen O’Connor, Judith Ann Lanzinger and Robert R. Cupp.
Justice Evelyn Lundberg Stratton entered a separate concurring opinion, joined by Justice Cupp, in which she expressed concern that the majority opinion implies that only the conveyance fee date establishes the date of sale for purposes of property valuations by county auditors. She wrote: “I believe that using the date the conveyance fee statement is filed to establish the date of sale is a useful point in assisting the auditor in determining value. However, such a rule should be a rebuttable presumption and an evidentiary tool only. Language fixing the date of the sale does not appear in the statute. The General Assembly did not establish the date of the conveyance fee as the date of sale, and this court should not add such language to the statute. The parties should be allowed to present evidence at hearings before a board of revision and the Board of Tax Appeals to establish that the true date of sale is a different point from the date of the filing of the conveyance fee.”
Contacts
Thomas A. Kondzer, 440.835.1200, for the Bedford School District Board of Education.
Timothy J. Kollin, 216.566.8500, for Cuyahoga County Auditor and Board of Revision.
Jay Siegel, 216.763.1004, for HIN, LLC.
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.
HIN, L.L.C. v. Cuyahoga Cty. Bd. of Revision, Slip Opinion No. 2010-Ohio-687.
Board of Tax Appeals, No. 2006-A-712. Decision affirmed.
Moyer, C.J., and Pfeifer, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Lundberg Stratton, J., concurs separately.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-687.pdf
(March 4, 2010) In a decision announced today, the Supreme Court of Ohio ruled that when a property has been the subject of two arm’s length sales between a willing buyer and seller within a reasonable length of time before or after the tax-lien date, the sale occurring closer in time to the tax lien date establishes the true value of the property for taxation purposes.
In a 7-0 ruling authored by Justice Terrence O’Donnell, the Court also held that, only for purposes of establishing the taxable value of property under R.C. 5713.03, the date a real property conveyance fee statement is filed with the county auditor should be considered the “sale date” of the property.
The case involved a dispute over the tax valuation for calendar year 2004 of a 34-acre parcel of land and an office building on that land, which is located in the Cuyahoga County community of Bedford and the Bedford School District. In December 2003, the land and building were purchased from a previous owner by JBK Properties for $4.9 million. JBK subsequently executed a 15-year lease agreement with U.S. Bank for full occupancy of the office building. In April 2004, JBK sold the property, including its ownership interest in the lease agreement, to another company, HIN, for $7.4 million.
In assessing the property for the 2004 tax year, the Cuyahoga County Auditor estimated its taxable market value at $7,848,400 based on the April 2004 sale price. HIN appealed that valuation to the Cuyahoga County Board of Tax Revision, seeking a reduction of the auditor’s valuation to $5 million based on the December 2003 sale price. The Bedford School District filed a counter-complaint urging affirmance of the auditor’s valuation. The board of revision upheld the auditor’s valuation of the property. HIN then exercised its right to appeal the board of revision’s ruling to the Ohio Board of Tax Appeals (BTA). The BTA reversed the board of revision, and ruled that the true value of the property on Jan. 1, 2004 was the December 2003 sale price of $4.9 million.
The school district exercised its right to appeal the BTA’s ruling to the Supreme Court.
In today’s decision upholding the BTA’s valuation, Justice O’Donnell wrote: “R.C. 5713.03 sets forth how real estate is to be valued for tax purposes: ‘In determining the true value of any tract, lot, or parcel of real estate under this section, if such tract, lot, or parcel has been the subject of an arm’s length sale between a willing seller and a willing buyer within a reasonable length of time, either before or after the tax lien date, the auditor shall consider the sale price of such tract, lot, or parcel to be the true value for taxation purposes.’ (Emphasis added.) ... In this case, January 1, 2004, is the relevant valuation date, and the parties do not differ on this point.”
“However, this case involves two sales, one occurring prior to the tax-lien date and one occurring subsequent to the tax-lien date, and we are called upon to determine which sale should be used as evidence of the true value. When a property has been the subject of two arm’s-length sales between a willing seller and a willing buyer within a reasonable length of time either before or after the tax-lien date, the sale occurring closer in time to the tax-lien date establishes the true value of the property for taxation purposes. This principle emanates from R.C. 5713.03, which presupposes that an arm’s-length sale close in time to the tax-lien date accurately indicates the value of property as of that date. It follows that when a property has been the subject of two arm’s-length sales between willing sellers and willing buyers, the sale occurring closer in time to the tax-lien date provides a more accurate indication of the true value of the property as of the tax-lien date than does a sale occurring more remotely in time from that date.”
Justice O’Donnell rejected arguments by the school district that the date on which the parties agreed on a sale price or the date on which the buyer and seller entered into a contract to purchase the property should be considered the “sale date” for tax valuation purposes.
He wrote: “Legal title to real property transfers from the seller to the buyer with the delivery and acceptance of an executed deed. ... R.C. 317.22 provides that ‘[n]o deed of absolute conveyance of land ... shall be recorded by the county recorder until ... [t]he conveyance presented to the recorder bears the stamp of the county auditor ... [and s]uch conveyance has been presented to the county auditor, and by the county auditor indorsed “transferred” or “transfer not necessary.” ’ Before the deed may be endorsed by the auditor, however, R.C. 319.202 requires the new owner to submit a real property conveyance fee statement to the auditor declaring the value of the real property, and pursuant to R.C. 319.20, the auditor must transfer the parcel into the new owner’s name on the tax list. The purpose of this statutory scheme is to provide the auditor the necessary information to determine the true value of property based on a property sale in accordance with R.C. 5713.03. For this reason, in determining the date a sale of property occurs, only for purposes of establishing the true value of property pursuant to R.C. 5713.03, the auditor should use the date that the real property conveyance fee statement is filed in the auditor’s office as the sale date of the property.”
“Here, the filing of the real property conveyance fee statement for the December 2003 sale on December 30, 2003, occurred in closer proximity to the tax-lien date than the filing of the real property conveyance fee statement for the April 2004 sale on April 30, 2004. Therefore, for purposes of establishing the true value of the property in accordance with R.C. 5713.03, the auditor should use the December 2003 sale price as the true value of the property for tax year 2004.”
Justice O’Donnell’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer, Maureen O’Connor, Judith Ann Lanzinger and Robert R. Cupp.
Justice Evelyn Lundberg Stratton entered a separate concurring opinion, joined by Justice Cupp, in which she expressed concern that the majority opinion implies that only the conveyance fee date establishes the date of sale for purposes of property valuations by county auditors. She wrote: “I believe that using the date the conveyance fee statement is filed to establish the date of sale is a useful point in assisting the auditor in determining value. However, such a rule should be a rebuttable presumption and an evidentiary tool only. Language fixing the date of the sale does not appear in the statute. The General Assembly did not establish the date of the conveyance fee as the date of sale, and this court should not add such language to the statute. The parties should be allowed to present evidence at hearings before a board of revision and the Board of Tax Appeals to establish that the true date of sale is a different point from the date of the filing of the conveyance fee.”
Contacts
Thomas A. Kondzer, 440.835.1200, for the Bedford School District Board of Education.
Timothy J. Kollin, 216.566.8500, for Cuyahoga County Auditor and Board of Revision.
Jay Siegel, 216.763.1004, for HIN, LLC.
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.
LawTalk Interview with State Public Defender Tim Young
Recently Attorney John Celebrezze, host of the award-winning community access television show LawTalk, interviewed Ohio's State Public Defender, Tim Young. Mr. Young is a graduated from the University of Dayton with both his undergraduate and law degree. Before becoming Ohio's State Public Defender, Mr. Young was Deputy Director of the Montgomery County Public Defender Office. Attorney Celebrezze and Mr. Young discussed his office's Wrongful Conviction Project, which was launched last year. You can view the interview by clicking on the links below.
Saturday, March 06, 2010
Preserving the Record & Motions in Limine
By Judge James L. Kimbler
A recent decision from the Court of Appeals for the Ninth Appellate District illustrates two important points. The first is the need to preserve the record when trying a case. The second is that pre-trial rulings on motions in limine are not reviewable on appeal unless there is an objection made when the ruling is implemented during the trial itself.
The issue that the Lorain County Court of Appeals faced was whether or not a defendant in a personal injury case could introduce evidence of the amount of the plaintiff's medical bills that were "written off" by the plaintiff's medical insurers. The Court of Appeals put the issue this way in paragraph 3 of the opinion:
"Defendant filed a notice of her intent to introduce medical billing information, specifically evidence of medical bills which were “written off,” for the jury’s consideration in determining the fair and reasonable value of medical expenses incurred by Plaintiff. Defendant argued that both the Ohio Supreme Court’s decision in Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362, and R.C. 2315.20 support the admission of such evidence for that purpose. Plaintiff filed a motion in limine to exclude collateral source evidence, specifically the amounts of contractual write-offs or adjustments. Plaintiff argued that Defendant’s reliance on the Robinson decision is misplaced because the provisions of R.C. 2315.20 are controlling in a case where a health insurance company who paid Plaintiff’s medical bills has a contractual right of subrogation. On June 1, 2009, the trial court granted Plaintiff’s motion in limine to exclude collateral source evidence for the reason that Plaintiff’s cause of action accrued after the effective date of R.C. 2315.20, rendering the statute controlling. The trial court ordered that “[D]efendant and defense counsel are ordered not to inquire, reference or mention at any phase of the trial any thing to suggest that the medical bill amounts should be reduced by any contractual write-offs or adjustments to medical bills.”"
At trial, the jury returned a verdict of $34,809.00 in economic damages, and $50,000.00 in noneconomic damages, for a total of $84,809.00. After the verdict was reduced to a judgment, the defendant appealed, raising one issue on the appeal. The issue was whether the trial court had erred in excluding the evidence of the amount "written off" or adjusted by the plaintiff's medical insurers.
The Court of Appeals affirmed the judgment of the trial court, but did not reach the issue of whether Robinson v. Bates is still good law after the enactment of R.C. 2315.20. The reason why the Court of Appeals didn't reach that issue was because the defendant didn't preserve the record on appeal.
In paragraph 8 of the appellate decision, the following language appeas:
"On September 11, 2009, Defendant filed a motion in the trial court to correct, supplement and certify the record with an agreed statement. Defendant conceded therein that she had earlier filed an agreed statement pursuant to App.R. 9(D) directly with the appellate court without first obtaining approval by the trial court. Plaintiff timely responded in opposition. The trial court granted the motion to correct or supplement the record and ordered the clerk of courts to certify the parties’ agreed statement and transmit it as part of the record on appeal. On September 22, 2009, the parties filed an agreed statement as the record on appeal pursuant to App.R. 9(D) in the trial court. However, there is no record that the agreed statement was ever filed with this Court. The record contains no agreed statement bearing a time-stamp from the appellate clerk. Nor does the appellate docket indicate that the agreed statement was filed with this Court. The record in this case consists solely of the original papers, exhibits, a certified copy of the docket and journal entries, and any transcripts of proceedings that were filed in the trial court prior to final judgment. It does not, however, contain a valid App.R. 9(D) agreed statement."
As a result of not fining the App. R. 9 (D) agreed statement, the Court of Appeals had noting to review. This is because the decision of a trial court on a motion in limine is not a reviewable order unless the losing party objects at trial when the trial court implements its order in limine. The following language appears in paragraph 10 of the appellate decision:
“A motion in limine is a request for a preliminary order regarding the admissibility of evidence that a party believes may be improper or irrelevant. Riverside Methodist Hosp. Assn. v. Guthrie (1982), 3 Ohio App.3d 308, 310. The purpose of a motion in limine is to alert the court and counsel of the nature of the evidence in order to remove discussion of the evidence from the presence of the jury until the appropriate time during trial when the court makes a ruling on its admissibility. Id. An appellate court need not determine the propriety of an order granting or denying a motion in limine, unless the claimed error is preserved by an objection, proffer, or ruling on the record at the proper point during the trial. State v. Maurer (1984), 15 Ohio St.3d 239, 259-260. In order for an appellate court to review the propriety of the exclusion of evidence, the party claiming prejudice must proffer into the record the substance of the excluded evidence.State v. Tait (Jan. 29, 1997), 9th Dist. No. 96CA006339. See, also, Evid.R.103(A)(2). This enables the reviewing court to ‘determine whether or not the [ruling] of the trial court [was] prejudicial.’ Smith v. Rhodes (1903), 68 Ohio St. 500, 505.” State v. Keenan (Feb. 20, 2002), 9th Dist. No. 20528."
Since there was no record filed showing the alleged error, the Court of Appeals had nothing to review. Since it is the responsibility of the appellant to transmit the record necessary for the appeal, the Court of Appeals had no option other than to affirm the trial court's judgment.
The decision is captioned Carreon v. Duncan, 2010-Ohio-703. It was issued on March 1, 2010, and was written by Judge Donna Carr. It can be read here: http://www.sconet.state.oh.us/rod/docs/pdf/9/2010/2010-ohio-703.pdf
\
A recent decision from the Court of Appeals for the Ninth Appellate District illustrates two important points. The first is the need to preserve the record when trying a case. The second is that pre-trial rulings on motions in limine are not reviewable on appeal unless there is an objection made when the ruling is implemented during the trial itself.
The issue that the Lorain County Court of Appeals faced was whether or not a defendant in a personal injury case could introduce evidence of the amount of the plaintiff's medical bills that were "written off" by the plaintiff's medical insurers. The Court of Appeals put the issue this way in paragraph 3 of the opinion:
"Defendant filed a notice of her intent to introduce medical billing information, specifically evidence of medical bills which were “written off,” for the jury’s consideration in determining the fair and reasonable value of medical expenses incurred by Plaintiff. Defendant argued that both the Ohio Supreme Court’s decision in Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362, and R.C. 2315.20 support the admission of such evidence for that purpose. Plaintiff filed a motion in limine to exclude collateral source evidence, specifically the amounts of contractual write-offs or adjustments. Plaintiff argued that Defendant’s reliance on the Robinson decision is misplaced because the provisions of R.C. 2315.20 are controlling in a case where a health insurance company who paid Plaintiff’s medical bills has a contractual right of subrogation. On June 1, 2009, the trial court granted Plaintiff’s motion in limine to exclude collateral source evidence for the reason that Plaintiff’s cause of action accrued after the effective date of R.C. 2315.20, rendering the statute controlling. The trial court ordered that “[D]efendant and defense counsel are ordered not to inquire, reference or mention at any phase of the trial any thing to suggest that the medical bill amounts should be reduced by any contractual write-offs or adjustments to medical bills.”"
At trial, the jury returned a verdict of $34,809.00 in economic damages, and $50,000.00 in noneconomic damages, for a total of $84,809.00. After the verdict was reduced to a judgment, the defendant appealed, raising one issue on the appeal. The issue was whether the trial court had erred in excluding the evidence of the amount "written off" or adjusted by the plaintiff's medical insurers.
The Court of Appeals affirmed the judgment of the trial court, but did not reach the issue of whether Robinson v. Bates is still good law after the enactment of R.C. 2315.20. The reason why the Court of Appeals didn't reach that issue was because the defendant didn't preserve the record on appeal.
In paragraph 8 of the appellate decision, the following language appeas:
"On September 11, 2009, Defendant filed a motion in the trial court to correct, supplement and certify the record with an agreed statement. Defendant conceded therein that she had earlier filed an agreed statement pursuant to App.R. 9(D) directly with the appellate court without first obtaining approval by the trial court. Plaintiff timely responded in opposition. The trial court granted the motion to correct or supplement the record and ordered the clerk of courts to certify the parties’ agreed statement and transmit it as part of the record on appeal. On September 22, 2009, the parties filed an agreed statement as the record on appeal pursuant to App.R. 9(D) in the trial court. However, there is no record that the agreed statement was ever filed with this Court. The record contains no agreed statement bearing a time-stamp from the appellate clerk. Nor does the appellate docket indicate that the agreed statement was filed with this Court. The record in this case consists solely of the original papers, exhibits, a certified copy of the docket and journal entries, and any transcripts of proceedings that were filed in the trial court prior to final judgment. It does not, however, contain a valid App.R. 9(D) agreed statement."
As a result of not fining the App. R. 9 (D) agreed statement, the Court of Appeals had noting to review. This is because the decision of a trial court on a motion in limine is not a reviewable order unless the losing party objects at trial when the trial court implements its order in limine. The following language appears in paragraph 10 of the appellate decision:
“A motion in limine is a request for a preliminary order regarding the admissibility of evidence that a party believes may be improper or irrelevant. Riverside Methodist Hosp. Assn. v. Guthrie (1982), 3 Ohio App.3d 308, 310. The purpose of a motion in limine is to alert the court and counsel of the nature of the evidence in order to remove discussion of the evidence from the presence of the jury until the appropriate time during trial when the court makes a ruling on its admissibility. Id. An appellate court need not determine the propriety of an order granting or denying a motion in limine, unless the claimed error is preserved by an objection, proffer, or ruling on the record at the proper point during the trial. State v. Maurer (1984), 15 Ohio St.3d 239, 259-260. In order for an appellate court to review the propriety of the exclusion of evidence, the party claiming prejudice must proffer into the record the substance of the excluded evidence.State v. Tait (Jan. 29, 1997), 9th Dist. No. 96CA006339. See, also, Evid.R.103(A)(2). This enables the reviewing court to ‘determine whether or not the [ruling] of the trial court [was] prejudicial.’ Smith v. Rhodes (1903), 68 Ohio St. 500, 505.” State v. Keenan (Feb. 20, 2002), 9th Dist. No. 20528."
Since there was no record filed showing the alleged error, the Court of Appeals had nothing to review. Since it is the responsibility of the appellant to transmit the record necessary for the appeal, the Court of Appeals had no option other than to affirm the trial court's judgment.
The decision is captioned Carreon v. Duncan, 2010-Ohio-703. It was issued on March 1, 2010, and was written by Judge Donna Carr. It can be read here: http://www.sconet.state.oh.us/rod/docs/pdf/9/2010/2010-ohio-703.pdf
\
Friday, March 05, 2010
Judge Kimbler's Criminal Docket for March 5, 2010
Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Kimbler's courtroom on Friday, March 5, 2010, for criminal cases:
Brent Hall, 46, of South Medina Line Road in Norton, was sentenced to three years of community control sanctions, with a period in a Community Based Correction Facility, on one count of Driving Under the Influence of Drugs or Alcohol, a fourth-degree felony. His driver’s license was suspended for three years and he was ordered to pay a mandatory $1,350 fine.
Kelsey Sheppard, 18, of West Main Street in Spencer, was sentenced to one year in prison on one count of Theft from the Elderly, a third-degree felony.
Anita Yex, 27, of Grafton Road in Brunswick Hills, was sentenced to three years of community control sanctions on one count of Deception to Obtain a Dangerous Drug, a fifth-degree felony.
Steven Fletcher, 23, of Jester Court in Brunswick, pleaded guilty to two counts of Receiving Stolen Property, both of which are fifth-degree felonies. Sentencing is scheduled for April 8.
Sarah Fenwick, 21, of Woodcrest Drive in Wadsworth, pleaded no contest to one count of Burglary, a second-degree felony. Sentencing is scheduled for April 8.
Jeremy Griffitts, 30, of Wooster Street in Lodi, pleaded guilty and was sentenced to one year in prison on one count of Having Weapons While Under Disability, a third-degree felony.
Robert Karlowicz, 51, of West 11th Street in Cleveland, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for April 19.
Susan Stalnaker, 46, of Ledge Road in Hinckley, pleaded no contest to one count of Theft, a third-degree felony. Sentencing is scheduled for April 15.
Michael Slis, 37, of Kingston Drive in Brunswick, pleaded not guilty to one count of Having Weapons While Under Disability, a third-degree felony. A jury trial is scheduled for May 3.
Brent Hall, 46, of South Medina Line Road in Norton, was sentenced to three years of community control sanctions, with a period in a Community Based Correction Facility, on one count of Driving Under the Influence of Drugs or Alcohol, a fourth-degree felony. His driver’s license was suspended for three years and he was ordered to pay a mandatory $1,350 fine.
Kelsey Sheppard, 18, of West Main Street in Spencer, was sentenced to one year in prison on one count of Theft from the Elderly, a third-degree felony.
Anita Yex, 27, of Grafton Road in Brunswick Hills, was sentenced to three years of community control sanctions on one count of Deception to Obtain a Dangerous Drug, a fifth-degree felony.
Steven Fletcher, 23, of Jester Court in Brunswick, pleaded guilty to two counts of Receiving Stolen Property, both of which are fifth-degree felonies. Sentencing is scheduled for April 8.
Sarah Fenwick, 21, of Woodcrest Drive in Wadsworth, pleaded no contest to one count of Burglary, a second-degree felony. Sentencing is scheduled for April 8.
Jeremy Griffitts, 30, of Wooster Street in Lodi, pleaded guilty and was sentenced to one year in prison on one count of Having Weapons While Under Disability, a third-degree felony.
Robert Karlowicz, 51, of West 11th Street in Cleveland, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for April 19.
Susan Stalnaker, 46, of Ledge Road in Hinckley, pleaded no contest to one count of Theft, a third-degree felony. Sentencing is scheduled for April 15.
Michael Slis, 37, of Kingston Drive in Brunswick, pleaded not guilty to one count of Having Weapons While Under Disability, a third-degree felony. A jury trial is scheduled for May 3.
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.
Hearing-Impaired Juror Should Have Been Excused in Case Where Audio Recording Was Key Evidence
When Accommodation Could not Enable Juror to Fully Evaluate 911 Tape
State v. Speer, Slip Opinion No. 2010-Ohio-649.
Ottawa App. No. OT-07-046, 180 Ohio App.3d 230, 2008-Ohio-6947. Judgment affirmed.
Moyer, C.J., and Pfeifer, Lundberg Stratton, O'Connor, and O'Donnell, JJ., concur.
Lanzinger and Cupp, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-649.pdf
(March 3, 2010) The Supreme Court of Ohio ruled today that a hearing-impaired jury candidate should have been dismissed for cause in an Ottawa County murder case in which the court knew that evidence from an audio tape recording would be introduced as purported proof of the defendant’s guilt.
The Court’s 5-2 majority decision, which affirmed a ruling by the 6th District Court of Appeals, was authored by Justice Terrence O’Donnell.
In August 2002 passenger Jim Barnett was drowned when he fell or was pushed from a boat being piloted by Scott Speer on Lake Erie late at night during a period of high winds and 4-6 foot waves. Speer was indicted by a grand jury on multiple charges arising from the incident, including murder, involuntary manslaughter and aggravated vehicular homicide. During pretrial discovery, the state indicated that it would introduce an audio recording of a 9-1-1 call placed by Speer on the night of the incident as evidence of his guilt.
During voir dire (pretrial examination of prospective jurors), prospective juror Linda Leow-Johannsen informed the court that she had a hearing disability that prevented her from understanding spoken words unless she could read the lips of the speaker, and that she would be able to accurately perceive the questioning and testimony of witnesses if the person who was speaking faced her. Leow-Johannsen also indicated that she would “have a problem” understanding the content of an audio tape. Attorneys for Speer moved that Leow-Johannsen be disqualified from serving on the jury “for cause,” i.e. without using one of Speer’s peremptory challenges, because of her hearing impairment. The judge denied the motion to dismiss for cause and Leow-Johannsen was seated on the jury. During the trial, at the time the audio tape was played for the other jurors, the court arranged for Leow-Johannsen to move to the court reporter’s table and view a real-time transcript of the call on a monitor as the reporter typed it.
The jury found Speer not guilty of aggravated murder and murder but guilty of manslaughter and aggravated vehicular homicide. Those counts were merged into a single conviction for aggravated vehicular homicide, for which Speer was sentenced to four years in prison. He appealed, asserting among other claims that the trial court had erred in failing to grant his motion to disqualify juror Leow-Johannsen for cause based on her hearing impairment.
On review, the 6th District Court of Appeals reversed Speer’s conviction and remanded the case for a new trial. The appellate panel ruled that the trial court abused its discretion in failing to disqualify Leow-Johannsen for cause. In its decision, the court of appeals found that the juror’s hearing impairment prevented her from fully evaluating the 911 recording, because determining Speer’s guilt of the charged offenses required analysis not only of his words but also of his tone of voice, level of excitement or agitation, evidence of possible drug or alcohol intoxication and other audio cues that were crucial to determining his mental and physical state at the time of the call.
The state sought and was granted Supreme Court review of the 6th District’s decision.
In the syllabus of today’s decision providing guidance to other state courts, the Court set forth three principles that should be applied in similar cases:
In deciding a challenge for cause to a prospective juror on the basis of a physical impairment, the court must determine, in light of the specific evidence to be presented, whether any reasonable and effective accommodation can be made to enable the juror to serve. In making that determination, the court must balance the public interest in equal access to jury service against the right of the accused to a fair trial, the latter being the predominant concern of the court.
The right to a fair trial requires that all members of the jury have the ability to understand all of the evidence presented, to evaluate that evidence in a rational manner, to communicate effectively with other jurors during deliberations, and to comprehend the applicable legal principles as instructed by the court. An accommodation made to enable a physically impaired individual to serve as a juror must afford the accused a fair trial.
A hearing impairment by itself does not render a prospective juror incompetent to serve on a jury, but when the accommodation afforded by the court fails to enable the juror to perceive and evaluate the evidence, the accused is deprived of a fair trial. To avoid such situations, a trial court must determine whether reasonable accommodations will enable an impaired juror to perceive and evaluate all relevant and material evidence, and when no such accommodation exists, the court must excuse the juror for cause.
Writing for the majority, Justice O’Donnell pointed out that the Supreme Court of Ohio has been a leader in efforts to improve the accessibility of courts to persons with disabilities; has adopted specific language in its Rules of Superintendence stating that “[t]he opportunity for jury service should not be denied or limited on the basis of ... disability;” and since 2003 has implemented an aggressive statewide Interpreter Services Program that trains and equips local courts to accommodate the special needs of hearing-impaired litigants, witnesses and jurors.
Nevertheless, in this case, Justice O’Donnell wrote: “Despite the efforts of the trial court to accommodate Leow-Johannsen, Speer did not receive a fair trial. Regrettably, the accommodation made by the trial court in this instance could not help Leow-Johannsen to effectively perceive or evaluate Speer’s demeanor, detect any slurred speech or the lack of it, or consider the loudness or softness of his voice, the patterns of his speech, his tone – whether excited, calm, or passive – or the inflections of the voices on the 9-1-1 tape. ... Here, both the state and the defense relied on the 9-1-1 tape as evidence relevant to whether Speer committed the charged offenses. The state suggested that Speer’s ‘calm tone’ and his ‘demeanor on the 9-1-1 tape’ provided evidence of his guilt. Speer’s defense counsel denied the state’s contention that Speer had operated his craft under the influence of alcohol by pointing out that the 9-1-1 tape did not show Speer slurring his speech at the time of the call.”
“Leow-Johannsen’s hearing impairment directly affected her ability to perceive and evaluate that evidence because she only read the colloquy from a real-time transcription. Further, the accommodation made by the trial court in this case of allowing Leow-Johannsen to read the court reporter’s transcript did not provide her any means to effectively discern the demeanor, speech patterns, voice inflections, or excitement or lack of it as reflected in the voice modulations or other audio clues on the 9-1-1 tape. Because she could not perceive whether there was urgency in Speer’s voice, whether he slurred his speech, or whether he sounded deceptive or hesitant, she could not include such evaluations in rendering her verdict. ... Thus, the court of appeals correctly determined that the trial court abused its discretion in not excusing Leow-Johannsen and properly reversed the judgment of the trial court.”
While affirming the 6th District’s judgment, the majority disagreed with the standard set forth in the court of appeals opinion for determining whether jurors with disabilities should be seated or excused in specific cases.
Justice O’Donnell wrote: “The appellate court promulgated the following rule of law in its opinion: ‘If any doubt exists that a juror can adequately and completely perceive and evaluate all the evidence, whether because of a physical impairment, mental capabilities, or other reason that would interfere with the performance of a juror’s duties, the trial court must excuse that juror for cause.’ ... We disapprove of this standard. Instead, in deciding a challenge for cause to a prospective juror on the basis of a physical impairment, the court must determine, in light of the specific evidence to be presented, whether any reasonable and effective accommodation can be made to enable the juror to serve. In making that determination, the court must balance the public interest in equal access to jury service against the right of the accused to a fair trial, the latter being the predominant concern of the court.”
The majority opinion was joined by Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer, Evelyn Lundberg Stratton and Maureen O’Connor.
Justice Judith Ann Lanzinger entered a dissent that was joined by Justice Robert R. Cupp. Following an extensive review of the questions put to Leow-Johannsen and her responses during voir dire, Justice Lanzinger wrote that in her view the trial judge did not abuse his discretion in determining that placing Leow-Johannsen at the front of the jury box, requiring counsel and witnesses to face her during all trial testimony and allowing her to view a real-time transcript of the 9-1-1 tape as it was played for the other jurors were sufficient accommodations to allow her to understand all of the testimony and material evidence in the case and render a fair verdict. She also noted that Speer’s defense attorney did not object at trial to the accommodations made for Leow-Johannsen, including her review of the 9-1-1 tape by means of reading a transcript.
Justice Lanzinger wrote: “The record indicates that when the trial court decided the challenge for cause, the only argument raised against the juror was the defense counsel’s concern that Leow-Johannsen might not hear all the evidence if an attorney or witness turned away from the jury box. Defense counsel’s argument in support of the challenge for cause thus focused on the juror’s ability to understand the witness testimony, not on her ability to hear the tone and inflection of the voice on the 9-1-1 tape. The trial court weighed the defense’s concern against all information gathered in the voir dire proceedings and acted within its discretion in determining that it would be able to accommodate Leow-Johannsen. ... It is important that discretion to make this assessment remains with the trial court, which is in the best position to weigh all information and circumstances before it. ... Based on the record, the trial court’s decision to deny the challenge for cause to Leow-Johannsen did not reach the level of an abuse of discretion. I therefore respectfully dissent and would reverse and remand the case to the court of appeals for determination of the remaining assignments of error.”
Contacts
Mark E. Mulligan, 419.734.6845, for the Ottawa County prosecutor’s office.
Bradley D. Barbin, 614.445.8416, for Scott Speer.
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. Speer, Slip Opinion No. 2010-Ohio-649.
Ottawa App. No. OT-07-046, 180 Ohio App.3d 230, 2008-Ohio-6947. Judgment affirmed.
Moyer, C.J., and Pfeifer, Lundberg Stratton, O'Connor, and O'Donnell, JJ., concur.
Lanzinger and Cupp, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-649.pdf
(March 3, 2010) The Supreme Court of Ohio ruled today that a hearing-impaired jury candidate should have been dismissed for cause in an Ottawa County murder case in which the court knew that evidence from an audio tape recording would be introduced as purported proof of the defendant’s guilt.
The Court’s 5-2 majority decision, which affirmed a ruling by the 6th District Court of Appeals, was authored by Justice Terrence O’Donnell.
In August 2002 passenger Jim Barnett was drowned when he fell or was pushed from a boat being piloted by Scott Speer on Lake Erie late at night during a period of high winds and 4-6 foot waves. Speer was indicted by a grand jury on multiple charges arising from the incident, including murder, involuntary manslaughter and aggravated vehicular homicide. During pretrial discovery, the state indicated that it would introduce an audio recording of a 9-1-1 call placed by Speer on the night of the incident as evidence of his guilt.
During voir dire (pretrial examination of prospective jurors), prospective juror Linda Leow-Johannsen informed the court that she had a hearing disability that prevented her from understanding spoken words unless she could read the lips of the speaker, and that she would be able to accurately perceive the questioning and testimony of witnesses if the person who was speaking faced her. Leow-Johannsen also indicated that she would “have a problem” understanding the content of an audio tape. Attorneys for Speer moved that Leow-Johannsen be disqualified from serving on the jury “for cause,” i.e. without using one of Speer’s peremptory challenges, because of her hearing impairment. The judge denied the motion to dismiss for cause and Leow-Johannsen was seated on the jury. During the trial, at the time the audio tape was played for the other jurors, the court arranged for Leow-Johannsen to move to the court reporter’s table and view a real-time transcript of the call on a monitor as the reporter typed it.
The jury found Speer not guilty of aggravated murder and murder but guilty of manslaughter and aggravated vehicular homicide. Those counts were merged into a single conviction for aggravated vehicular homicide, for which Speer was sentenced to four years in prison. He appealed, asserting among other claims that the trial court had erred in failing to grant his motion to disqualify juror Leow-Johannsen for cause based on her hearing impairment.
On review, the 6th District Court of Appeals reversed Speer’s conviction and remanded the case for a new trial. The appellate panel ruled that the trial court abused its discretion in failing to disqualify Leow-Johannsen for cause. In its decision, the court of appeals found that the juror’s hearing impairment prevented her from fully evaluating the 911 recording, because determining Speer’s guilt of the charged offenses required analysis not only of his words but also of his tone of voice, level of excitement or agitation, evidence of possible drug or alcohol intoxication and other audio cues that were crucial to determining his mental and physical state at the time of the call.
The state sought and was granted Supreme Court review of the 6th District’s decision.
In the syllabus of today’s decision providing guidance to other state courts, the Court set forth three principles that should be applied in similar cases:
In deciding a challenge for cause to a prospective juror on the basis of a physical impairment, the court must determine, in light of the specific evidence to be presented, whether any reasonable and effective accommodation can be made to enable the juror to serve. In making that determination, the court must balance the public interest in equal access to jury service against the right of the accused to a fair trial, the latter being the predominant concern of the court.
The right to a fair trial requires that all members of the jury have the ability to understand all of the evidence presented, to evaluate that evidence in a rational manner, to communicate effectively with other jurors during deliberations, and to comprehend the applicable legal principles as instructed by the court. An accommodation made to enable a physically impaired individual to serve as a juror must afford the accused a fair trial.
A hearing impairment by itself does not render a prospective juror incompetent to serve on a jury, but when the accommodation afforded by the court fails to enable the juror to perceive and evaluate the evidence, the accused is deprived of a fair trial. To avoid such situations, a trial court must determine whether reasonable accommodations will enable an impaired juror to perceive and evaluate all relevant and material evidence, and when no such accommodation exists, the court must excuse the juror for cause.
Writing for the majority, Justice O’Donnell pointed out that the Supreme Court of Ohio has been a leader in efforts to improve the accessibility of courts to persons with disabilities; has adopted specific language in its Rules of Superintendence stating that “[t]he opportunity for jury service should not be denied or limited on the basis of ... disability;” and since 2003 has implemented an aggressive statewide Interpreter Services Program that trains and equips local courts to accommodate the special needs of hearing-impaired litigants, witnesses and jurors.
Nevertheless, in this case, Justice O’Donnell wrote: “Despite the efforts of the trial court to accommodate Leow-Johannsen, Speer did not receive a fair trial. Regrettably, the accommodation made by the trial court in this instance could not help Leow-Johannsen to effectively perceive or evaluate Speer’s demeanor, detect any slurred speech or the lack of it, or consider the loudness or softness of his voice, the patterns of his speech, his tone – whether excited, calm, or passive – or the inflections of the voices on the 9-1-1 tape. ... Here, both the state and the defense relied on the 9-1-1 tape as evidence relevant to whether Speer committed the charged offenses. The state suggested that Speer’s ‘calm tone’ and his ‘demeanor on the 9-1-1 tape’ provided evidence of his guilt. Speer’s defense counsel denied the state’s contention that Speer had operated his craft under the influence of alcohol by pointing out that the 9-1-1 tape did not show Speer slurring his speech at the time of the call.”
“Leow-Johannsen’s hearing impairment directly affected her ability to perceive and evaluate that evidence because she only read the colloquy from a real-time transcription. Further, the accommodation made by the trial court in this case of allowing Leow-Johannsen to read the court reporter’s transcript did not provide her any means to effectively discern the demeanor, speech patterns, voice inflections, or excitement or lack of it as reflected in the voice modulations or other audio clues on the 9-1-1 tape. Because she could not perceive whether there was urgency in Speer’s voice, whether he slurred his speech, or whether he sounded deceptive or hesitant, she could not include such evaluations in rendering her verdict. ... Thus, the court of appeals correctly determined that the trial court abused its discretion in not excusing Leow-Johannsen and properly reversed the judgment of the trial court.”
While affirming the 6th District’s judgment, the majority disagreed with the standard set forth in the court of appeals opinion for determining whether jurors with disabilities should be seated or excused in specific cases.
Justice O’Donnell wrote: “The appellate court promulgated the following rule of law in its opinion: ‘If any doubt exists that a juror can adequately and completely perceive and evaluate all the evidence, whether because of a physical impairment, mental capabilities, or other reason that would interfere with the performance of a juror’s duties, the trial court must excuse that juror for cause.’ ... We disapprove of this standard. Instead, in deciding a challenge for cause to a prospective juror on the basis of a physical impairment, the court must determine, in light of the specific evidence to be presented, whether any reasonable and effective accommodation can be made to enable the juror to serve. In making that determination, the court must balance the public interest in equal access to jury service against the right of the accused to a fair trial, the latter being the predominant concern of the court.”
The majority opinion was joined by Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer, Evelyn Lundberg Stratton and Maureen O’Connor.
Justice Judith Ann Lanzinger entered a dissent that was joined by Justice Robert R. Cupp. Following an extensive review of the questions put to Leow-Johannsen and her responses during voir dire, Justice Lanzinger wrote that in her view the trial judge did not abuse his discretion in determining that placing Leow-Johannsen at the front of the jury box, requiring counsel and witnesses to face her during all trial testimony and allowing her to view a real-time transcript of the 9-1-1 tape as it was played for the other jurors were sufficient accommodations to allow her to understand all of the testimony and material evidence in the case and render a fair verdict. She also noted that Speer’s defense attorney did not object at trial to the accommodations made for Leow-Johannsen, including her review of the 9-1-1 tape by means of reading a transcript.
Justice Lanzinger wrote: “The record indicates that when the trial court decided the challenge for cause, the only argument raised against the juror was the defense counsel’s concern that Leow-Johannsen might not hear all the evidence if an attorney or witness turned away from the jury box. Defense counsel’s argument in support of the challenge for cause thus focused on the juror’s ability to understand the witness testimony, not on her ability to hear the tone and inflection of the voice on the 9-1-1 tape. The trial court weighed the defense’s concern against all information gathered in the voir dire proceedings and acted within its discretion in determining that it would be able to accommodate Leow-Johannsen. ... It is important that discretion to make this assessment remains with the trial court, which is in the best position to weigh all information and circumstances before it. ... Based on the record, the trial court’s decision to deny the challenge for cause to Leow-Johannsen did not reach the level of an abuse of discretion. I therefore respectfully dissent and would reverse and remand the case to the court of appeals for determination of the remaining assignments of error.”
Contacts
Mark E. Mulligan, 419.734.6845, for the Ottawa County prosecutor’s office.
Bradley D. Barbin, 614.445.8416, for Scott Speer.
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.
Statutory Penalties for Employer’s Violation of ‘Prevailing Wage’ Statute are Mandatory
When Workers Sue Successfully to Recover Underpaid Wages
Bergman v. Monarch Constr. Co., Slip Opinion No. 2010-Ohio-622.
Butler App. No. CA2008-02-044, 2009-Ohio-551. Judgment of the court of appeals reversed, and cause remanded to the trial court.
Moyer, C.J., and Pfeifer, O'Connor, Lanzinger, and Cupp, JJ., concur.
Lundberg Stratton and O'Donnell, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-622.pdf
(March 2, 2010) The Supreme Court of Ohio ruled today that in an employee-initiated action under the state’s “prevailing wage” statute, when a court finds that a contractor has failed to pay workers the prevailing wage for work on a public improvement project, the court must assess against the employer not only a judgment for the amount of the plaintiffs’ underpaid wages, but also the financial penalties set forth in R.C. 4115.10(A), unless the violation falls under one of two exceptions set forth in R.C. 4115.13(C).
The Court’s 5-2 majority decision, which reversed a ruling by the 12th District Court of Appeals, was authored by Justice Robert R. Cupp.
Ohio’s prevailing wage law, set forth in Ohio Revised Code Sections 4115.03 through 4115.16, generally requires that workers employed in the construction of government buildings and other “public improvements” must be paid according to a wage scale that approximates the hourly rates received by union workers doing similar work in that area of the state. If workers on a project subject to the prevailing wage law later believe that they were underpaid, they may either file a private lawsuit against their employer or file a complaint with the Ohio Department of Commerce (ODC), which is obliged to investigate and, if the complaint is found valid, recover the underpaid wages on behalf of the workers.
This case involves a private lawsuit pursued by Doug Berman and other masonry workers who were employed on a prevailing wage construction project at Miami University. The university contracted with Monarch Construction Company, a general contractor, for the necessary trades work. Monarch subcontracted masonry work on the project to Don Salyers Masonry, which employed the workers involved in the case. The workers’ complaint alleged that Salyers had not paid them at the prevailing wage rate and sought recovery from the university, Salyers and Monarch. Before trial, the court granted the university’s motion to be dismissed as a defendant. The court entered a default judgment against Salyers, but the company had gone out of business, rendering that judgment uncollectable.
Following a bench trial on the plaintiffs’ claims against Monarch, the court ruled that the employees had been underpaid and found that Monarch, as the general contractor on the project, was liable for their back pay. The court declined, however, to order Monarch to pay the plaintiffs an additional penalty amount equal to 25 percent of their underpaid wages pursuant to R.C. 4115.10(A), or to assess against Monarch a second penalty set forth in the same statute equal to 75 percent of the wage underpayment and payable to the Director of ODC to help finance prevailing wage enforcement activities. The judge held that the language of R.C. 4115.10(A) gives trial courts discretion to either impose or to waive the 25 and 75 percent add-on penalties, and found that because Monarch had cooperated as soon as it was made aware of Salyers’ underpayments to its workers, the circumstances of the case did not warrant imposition of those penalties on Monarch.
The workers appealed. On review, the 12th District Court of Appeals affirmed the trial court’s ruling that the 25 percent add-on penalty payable to underpaid workers and 75 percent penalty payable to the Director of ODC provided in R.C. 4115.10(A) are discretionary rather than mandatory. The workers sought and were granted Supreme Court review of the 12th District’s decision.
In today’s decision, Justice Cupp wrote: “The general rule of the prevailing-wage law is that an employer shall not violate the wage provisions of R.C. Chapter 4115 or require an employee to work for less than the ‘rate of wages so fixed.’ ... If the employer violates this proscription and pays an employee less than the prevailing wage, the employee has several options to recoup his underpayment. The employee can institute an enforcement action under R.C. 4155.10(A) or assign to the director of commerce the right to institute an enforcement action under R.C. 4115.10(B). ... For the employee-initiated enforcement action under R.C. 4115.10(A), the remedy for the underpayment of wages is plainly set forth: the employee is entitled to ‘the difference between the fixed rate of wages and the amount paid to the employee and in addition thereto a sum equal to twenty-five per cent of that difference.’ In addition, the underpaying employer ‘also shall pay a penalty to the director of seventy-five per cent of the difference between the fixed rate of wages and the amount paid to the employee.’
“The appellate court’s rationale that the R.C. 4115.10(A) penalties were discretionary was based on its interpretation that the phrase ‘may recover’ gives the trial court discretion to deny recovery to the employee,” wrote Justice Cupp. “ ... However, the appellate court misread R.C. 4115.10(A). The phrase ‘may recover’ within R.C. 4115.10(A) pertains to the choice the underpaid employee has to enforce his or her right to recover the underpayment. It vests with the employee the discretion of whether to commence an action for restitution of the underpayment. Correspondingly, if the employee chooses to enforce his or her statutory right to recover the unpaid wages, and proves the case, then the statutory penalties follow as a matter of course and are mandatory. ... This interpretation reflects the legislative intent of R.C. Chapter 4115 ... and gives force and effect to the basic rule contained in R.C. 4115.10(A): an employer shall not violate the prevailing-wage laws or pay an employee ‘less than the rate of wages so fixed.’
“To deny an underpaid employee the additional 25 percent penalty is contrary to the language of R.C. 4115.10(A). ... The statute is also clear in its direction with regard to the 75 percent penalty: it shall be paid to the director of commerce, and it is used for enforcement of the prevailing-wage laws. ... In this case, the ‘clear and unequivocal legislative intent’ as expressed in the statute is that the 75 percent penalty is to be paid whenever the director of commerce determines that there has been a prevailing-wage underpayment and the determination becomes final.”
“Finally, within the prevailing-wage legislation, there is only one exception to the payment of the penalties. According to R.C. 4115.13(C), when the director of commerce finds that a wage underpayment is the result of a misinterpretation of the prevailing-wage statutes or an erroneous preparation of the payroll documents, provided restitution of the underpayment is made, no further proceedings will occur and no penalties are assessed. Because this provision does not apply to Monarch in this case, there is no authority for the mandatory penalty to be waived.”
Justice Cupp’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer, Maureen O’Connor and Judith Ann Lanzinger.
Justice Evelyn Lundberg Stratton entered a dissent, joined by Justice Terrence O’Donnell, stating that in her view the 12th District correctly interpreted R.C. 4111.15(A) as granting trial courts discretion either to impose or to waive the 25 percent add-on penalty set forth in that code section. She wrote: “The sentence at issue in R.C. 4115.10(A) provides that an employee who is paid less than the applicable fixed rate of wages on the project ‘may recover ... the difference between the fixed rate of wages and the amount paid to the employee and in addition thereto a sum equal to twenty-five per cent of that difference.’ (Emphasis added.) ... The majority rejects the appellate court’s plain reading of the statute in favor of an interpretation that ‘may recover’ ‘pertains to the choice the underpaid employee has to enforce his right to recover the underpayment.’
“I agree that an employee does have a choice either to file suit to recover for a prevailing-wage violation, R.C. 4115.10(A), or to assign the claim to the Department of Commerce to file, R.C. 4115.10(B),” Justice Stratton wrote. “ The employer also may do nothing, in which case the department may bring legal action to collect the wages. R.C. 4115.10(C). However, there is no language in the statute that supports the majority’s interpretation that ‘may recover’ pertains only to the employee’s choice of methods to recover wages, which is addressed later in the statute. ... The General Assembly’s use of the word ‘may’ before the word ‘recover’ indicates that recovery is discretionary. Also, ‘may recover’ must be read in the context of the entire sentence, which pertains to what the employee may recover, not how to recover. ... Consequently, I respectfully dissent and would affirm the judgment of the court of appeals.”
Contacts
Joseph M. D’Angelo, 419.224.8989, for Doug Bergman and other plaintiff workers.
Gregory P. Rogers, 513.381.2838, for Monarch Construction Company.
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.
Bergman v. Monarch Constr. Co., Slip Opinion No. 2010-Ohio-622.
Butler App. No. CA2008-02-044, 2009-Ohio-551. Judgment of the court of appeals reversed, and cause remanded to the trial court.
Moyer, C.J., and Pfeifer, O'Connor, Lanzinger, and Cupp, JJ., concur.
Lundberg Stratton and O'Donnell, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-622.pdf
(March 2, 2010) The Supreme Court of Ohio ruled today that in an employee-initiated action under the state’s “prevailing wage” statute, when a court finds that a contractor has failed to pay workers the prevailing wage for work on a public improvement project, the court must assess against the employer not only a judgment for the amount of the plaintiffs’ underpaid wages, but also the financial penalties set forth in R.C. 4115.10(A), unless the violation falls under one of two exceptions set forth in R.C. 4115.13(C).
The Court’s 5-2 majority decision, which reversed a ruling by the 12th District Court of Appeals, was authored by Justice Robert R. Cupp.
Ohio’s prevailing wage law, set forth in Ohio Revised Code Sections 4115.03 through 4115.16, generally requires that workers employed in the construction of government buildings and other “public improvements” must be paid according to a wage scale that approximates the hourly rates received by union workers doing similar work in that area of the state. If workers on a project subject to the prevailing wage law later believe that they were underpaid, they may either file a private lawsuit against their employer or file a complaint with the Ohio Department of Commerce (ODC), which is obliged to investigate and, if the complaint is found valid, recover the underpaid wages on behalf of the workers.
This case involves a private lawsuit pursued by Doug Berman and other masonry workers who were employed on a prevailing wage construction project at Miami University. The university contracted with Monarch Construction Company, a general contractor, for the necessary trades work. Monarch subcontracted masonry work on the project to Don Salyers Masonry, which employed the workers involved in the case. The workers’ complaint alleged that Salyers had not paid them at the prevailing wage rate and sought recovery from the university, Salyers and Monarch. Before trial, the court granted the university’s motion to be dismissed as a defendant. The court entered a default judgment against Salyers, but the company had gone out of business, rendering that judgment uncollectable.
Following a bench trial on the plaintiffs’ claims against Monarch, the court ruled that the employees had been underpaid and found that Monarch, as the general contractor on the project, was liable for their back pay. The court declined, however, to order Monarch to pay the plaintiffs an additional penalty amount equal to 25 percent of their underpaid wages pursuant to R.C. 4115.10(A), or to assess against Monarch a second penalty set forth in the same statute equal to 75 percent of the wage underpayment and payable to the Director of ODC to help finance prevailing wage enforcement activities. The judge held that the language of R.C. 4115.10(A) gives trial courts discretion to either impose or to waive the 25 and 75 percent add-on penalties, and found that because Monarch had cooperated as soon as it was made aware of Salyers’ underpayments to its workers, the circumstances of the case did not warrant imposition of those penalties on Monarch.
The workers appealed. On review, the 12th District Court of Appeals affirmed the trial court’s ruling that the 25 percent add-on penalty payable to underpaid workers and 75 percent penalty payable to the Director of ODC provided in R.C. 4115.10(A) are discretionary rather than mandatory. The workers sought and were granted Supreme Court review of the 12th District’s decision.
In today’s decision, Justice Cupp wrote: “The general rule of the prevailing-wage law is that an employer shall not violate the wage provisions of R.C. Chapter 4115 or require an employee to work for less than the ‘rate of wages so fixed.’ ... If the employer violates this proscription and pays an employee less than the prevailing wage, the employee has several options to recoup his underpayment. The employee can institute an enforcement action under R.C. 4155.10(A) or assign to the director of commerce the right to institute an enforcement action under R.C. 4115.10(B). ... For the employee-initiated enforcement action under R.C. 4115.10(A), the remedy for the underpayment of wages is plainly set forth: the employee is entitled to ‘the difference between the fixed rate of wages and the amount paid to the employee and in addition thereto a sum equal to twenty-five per cent of that difference.’ In addition, the underpaying employer ‘also shall pay a penalty to the director of seventy-five per cent of the difference between the fixed rate of wages and the amount paid to the employee.’
“The appellate court’s rationale that the R.C. 4115.10(A) penalties were discretionary was based on its interpretation that the phrase ‘may recover’ gives the trial court discretion to deny recovery to the employee,” wrote Justice Cupp. “ ... However, the appellate court misread R.C. 4115.10(A). The phrase ‘may recover’ within R.C. 4115.10(A) pertains to the choice the underpaid employee has to enforce his or her right to recover the underpayment. It vests with the employee the discretion of whether to commence an action for restitution of the underpayment. Correspondingly, if the employee chooses to enforce his or her statutory right to recover the unpaid wages, and proves the case, then the statutory penalties follow as a matter of course and are mandatory. ... This interpretation reflects the legislative intent of R.C. Chapter 4115 ... and gives force and effect to the basic rule contained in R.C. 4115.10(A): an employer shall not violate the prevailing-wage laws or pay an employee ‘less than the rate of wages so fixed.’
“To deny an underpaid employee the additional 25 percent penalty is contrary to the language of R.C. 4115.10(A). ... The statute is also clear in its direction with regard to the 75 percent penalty: it shall be paid to the director of commerce, and it is used for enforcement of the prevailing-wage laws. ... In this case, the ‘clear and unequivocal legislative intent’ as expressed in the statute is that the 75 percent penalty is to be paid whenever the director of commerce determines that there has been a prevailing-wage underpayment and the determination becomes final.”
“Finally, within the prevailing-wage legislation, there is only one exception to the payment of the penalties. According to R.C. 4115.13(C), when the director of commerce finds that a wage underpayment is the result of a misinterpretation of the prevailing-wage statutes or an erroneous preparation of the payroll documents, provided restitution of the underpayment is made, no further proceedings will occur and no penalties are assessed. Because this provision does not apply to Monarch in this case, there is no authority for the mandatory penalty to be waived.”
Justice Cupp’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer, Maureen O’Connor and Judith Ann Lanzinger.
Justice Evelyn Lundberg Stratton entered a dissent, joined by Justice Terrence O’Donnell, stating that in her view the 12th District correctly interpreted R.C. 4111.15(A) as granting trial courts discretion either to impose or to waive the 25 percent add-on penalty set forth in that code section. She wrote: “The sentence at issue in R.C. 4115.10(A) provides that an employee who is paid less than the applicable fixed rate of wages on the project ‘may recover ... the difference between the fixed rate of wages and the amount paid to the employee and in addition thereto a sum equal to twenty-five per cent of that difference.’ (Emphasis added.) ... The majority rejects the appellate court’s plain reading of the statute in favor of an interpretation that ‘may recover’ ‘pertains to the choice the underpaid employee has to enforce his right to recover the underpayment.’
“I agree that an employee does have a choice either to file suit to recover for a prevailing-wage violation, R.C. 4115.10(A), or to assign the claim to the Department of Commerce to file, R.C. 4115.10(B),” Justice Stratton wrote. “ The employer also may do nothing, in which case the department may bring legal action to collect the wages. R.C. 4115.10(C). However, there is no language in the statute that supports the majority’s interpretation that ‘may recover’ pertains only to the employee’s choice of methods to recover wages, which is addressed later in the statute. ... The General Assembly’s use of the word ‘may’ before the word ‘recover’ indicates that recovery is discretionary. Also, ‘may recover’ must be read in the context of the entire sentence, which pertains to what the employee may recover, not how to recover. ... Consequently, I respectfully dissent and would affirm the judgment of the court of appeals.”
Contacts
Joseph M. D’Angelo, 419.224.8989, for Doug Bergman and other plaintiff workers.
Gregory P. Rogers, 513.381.2838, for Monarch Construction Company.
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.
Ohio Supreme Court Imposes $20,000 Civil Penalty on Title Agent for Unauthorized Practice of Law
Ohio State Bar Assn. v. Dalton, Slip Opinion No. 2010-Ohio-619.
On Final Report by the Board on the Unauthorized Practice of Law, No. UPL 07-06. Kimberly A. Dalton and Precision Land Title Agency, Inc., are enjoined from acts constituting the practice of law, and civil penalty is imposed.
Moyer, C.J., and Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-619.pdf
(March 2, 2010) The Supreme Court of Ohio today imposed a $20,000 civil penalty against Kimberly A. Dalton of Cincinnati and Precision Land Title Agency for engaging in the unauthorized practice of law, and issued an injunction ordering them to desist from all future actions that constitute unauthorized law practice.
The Court adopted findings by the Board on the Unauthorized Practice of Law that: 1) Dalton, who is not an attorney, and Precision Title prepared and filed two real estate general warranty deeds despite the fact that those actions constitute the practice of law; 2) the signature of attorney David B. Bennett, a former owner of the agency, was forged on one of the deeds; and 3) both deeds falsely indicated that they had been prepared by Bennett.
In a 7-0 per curiam opinion, the Court also ordered Dalton and Precision Title to disclose to the Ohio State Bar Association and the unauthorized practice board the names and addresses of any other agency clients whose deeds were prepared by a non-attorney, and to notify all such clients and all lenders and title insurance companies involved in their transactions that the deeds recording those transactions were prepared by a person not qualified to practice law.
The Court noted that, although Dalton dissolved Precision Title and filed for Chapter 7 bankruptcy protection while the board was investigating the complaint against her, federal bankruptcy statutes do not stay a legal action to enforce the Court’s regulatory powers, and will not discharge an individual from a debt for the type of governmental fine, penalty or forfeiture assessed by the Court in today’s decision.
Contacts
Ian Robinson, 330.337.8761, for the Ohio State Bar Association.
No phone contact information available for Kimberly Dalton.
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.
On Final Report by the Board on the Unauthorized Practice of Law, No. UPL 07-06. Kimberly A. Dalton and Precision Land Title Agency, Inc., are enjoined from acts constituting the practice of law, and civil penalty is imposed.
Moyer, C.J., and Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-619.pdf
(March 2, 2010) The Supreme Court of Ohio today imposed a $20,000 civil penalty against Kimberly A. Dalton of Cincinnati and Precision Land Title Agency for engaging in the unauthorized practice of law, and issued an injunction ordering them to desist from all future actions that constitute unauthorized law practice.
The Court adopted findings by the Board on the Unauthorized Practice of Law that: 1) Dalton, who is not an attorney, and Precision Title prepared and filed two real estate general warranty deeds despite the fact that those actions constitute the practice of law; 2) the signature of attorney David B. Bennett, a former owner of the agency, was forged on one of the deeds; and 3) both deeds falsely indicated that they had been prepared by Bennett.
In a 7-0 per curiam opinion, the Court also ordered Dalton and Precision Title to disclose to the Ohio State Bar Association and the unauthorized practice board the names and addresses of any other agency clients whose deeds were prepared by a non-attorney, and to notify all such clients and all lenders and title insurance companies involved in their transactions that the deeds recording those transactions were prepared by a person not qualified to practice law.
The Court noted that, although Dalton dissolved Precision Title and filed for Chapter 7 bankruptcy protection while the board was investigating the complaint against her, federal bankruptcy statutes do not stay a legal action to enforce the Court’s regulatory powers, and will not discharge an individual from a debt for the type of governmental fine, penalty or forfeiture assessed by the Court in today’s decision.
Contacts
Ian Robinson, 330.337.8761, for the Ohio State Bar Association.
No phone contact information available for Kimberly Dalton.
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.
Tuesday, March 02, 2010
Judge Kimbler's Docket for March 3 through March 9, 2010
Click here to view the daily docket for Judge Kimbler's court for the week of March 3 through March 9, 2010 in a pdf format. PLEASE NOTE: Docket is subject to change.
Monday, March 01, 2010
Judge Collier's Criminal Docket for March 1, 2010
Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Collier's court on March 1, 2010, for criminal cases:
Nathaniel Andrasak, 28, of Diana Drive in Brunswick, was sentenced to six months in prison on two counts of Trafficking in Drugs, both of which are fourth-degree felonies, and one count of Trafficking in Marijuana, a fifth-degree felony.
Brandon Fazekas, 23, of Clinton Road in Doylestown, was sentenced to five years of community control sanctions, with 180 days in jail, on one count of Forgery, a fifth-degree felony.
Andrew Fogler, 23, of Young Street in Medina, was sentenced to five years of community control sanctions on one count of Theft, a fifth-degree felony. He also was ordered to pay $926.35 in restitution to his victim.
Eric Hanning, 30, of Diana Drive in Brunswick, was sentenced to six months in prison on one count of Trafficking in Drugs, a fourth-degree felony.
Jaime Johnson, 27, of Oak Bend Boulevard in Canal Winchester, was sentenced to nine months in prison on one count of Forgery, a fifth-degree felony.
Eric Ebsch, 40, of River Styx Road in Medina, pleaded guilty and was sentenced to one year of community control sanctions on one count of aggravated criminal trespass, a first-degree misdemeanor.
Christopher Collins, 37, of Greenwich Road in Wadsworth, pleaded no contest and was sentenced to two years in prison on one count of Felonious Assault, a second-degree felony.
Rafael Cruz, 49, of Kenilworth Avenue in Cleveland, pleaded not guilty to four counts of Theft of Credit Cards, all of which are fifth-degree felonies and one count of Attempted Theft, a first-degree misdemeanor. A jury trial is scheduled for April 26.
Curtis Lehmann, 31, of Lorraine Drive in Strongsville, pleaded not guilty to one count of Trafficking in Marijuana, a fifth-degree felony. A jury trial is scheduled for June 2.
Kevin Peshek, 50, of Champagne Shores in Medina, pleaded no contest to one count of Domestic Violence, a fourth-degree felony. Sentencing is scheduled for April 12.
Nathaniel Andrasak, 28, of Diana Drive in Brunswick, was sentenced to six months in prison on two counts of Trafficking in Drugs, both of which are fourth-degree felonies, and one count of Trafficking in Marijuana, a fifth-degree felony.
Brandon Fazekas, 23, of Clinton Road in Doylestown, was sentenced to five years of community control sanctions, with 180 days in jail, on one count of Forgery, a fifth-degree felony.
Andrew Fogler, 23, of Young Street in Medina, was sentenced to five years of community control sanctions on one count of Theft, a fifth-degree felony. He also was ordered to pay $926.35 in restitution to his victim.
Eric Hanning, 30, of Diana Drive in Brunswick, was sentenced to six months in prison on one count of Trafficking in Drugs, a fourth-degree felony.
Jaime Johnson, 27, of Oak Bend Boulevard in Canal Winchester, was sentenced to nine months in prison on one count of Forgery, a fifth-degree felony.
Eric Ebsch, 40, of River Styx Road in Medina, pleaded guilty and was sentenced to one year of community control sanctions on one count of aggravated criminal trespass, a first-degree misdemeanor.
Christopher Collins, 37, of Greenwich Road in Wadsworth, pleaded no contest and was sentenced to two years in prison on one count of Felonious Assault, a second-degree felony.
Rafael Cruz, 49, of Kenilworth Avenue in Cleveland, pleaded not guilty to four counts of Theft of Credit Cards, all of which are fifth-degree felonies and one count of Attempted Theft, a first-degree misdemeanor. A jury trial is scheduled for April 26.
Curtis Lehmann, 31, of Lorraine Drive in Strongsville, pleaded not guilty to one count of Trafficking in Marijuana, a fifth-degree felony. A jury trial is scheduled for June 2.
Kevin Peshek, 50, of Champagne Shores in Medina, pleaded no contest to one count of Domestic Violence, a fourth-degree felony. Sentencing is scheduled for April 12.
Medina County Adult Probation Department Report for February, 2010
Veronica Perry, Chief Probation Officer for the Medina County Adult Probation Department issued her report for February, 2010. The report shows that Judge Collier and Judge Kimbler assigned 24 defendants to the Probation Department in February. Of those 24, 13 were assigned to intensive supervision and 11 were assigned to general supervision.
There were five defendants who were given home incarceration with electronic monitoring as a condition of their sentence. Of those five, four were sentenced by Judge Collier and one was sentenced by Judge Kimbler.
Judge Kimbler ordered 10 defendants to complete 24 hours of community service as a condition of their supervision.
Ten defendants were ordered to report to the Medina County Adult Probation Department's Bond Reporting Officer as a condition of their bond. Of those 10 defendants, seven were on Judge Kimbler's docket and three were on Judge Collier's docket.
In 22 cases, Judge Collier and Judge Kimbler ordered pre-sentence investigations. Of those 22 cases, 12 were on Judge Kimbler's docket and 10 were on Judge Collier's docket.
Judge Kimbler referred three defendants for intervention in lieu of conviction assessment. Judge Kimbler granted intervention in lieu of conviction to one defendant.
Judge Collier referred one defendant to the Adult Probation Department to determine if that defendant's conviction could be expunged.
There were five defendants who were given home incarceration with electronic monitoring as a condition of their sentence. Of those five, four were sentenced by Judge Collier and one was sentenced by Judge Kimbler.
Judge Kimbler ordered 10 defendants to complete 24 hours of community service as a condition of their supervision.
Ten defendants were ordered to report to the Medina County Adult Probation Department's Bond Reporting Officer as a condition of their bond. Of those 10 defendants, seven were on Judge Kimbler's docket and three were on Judge Collier's docket.
In 22 cases, Judge Collier and Judge Kimbler ordered pre-sentence investigations. Of those 22 cases, 12 were on Judge Kimbler's docket and 10 were on Judge Collier's docket.
Judge Kimbler referred three defendants for intervention in lieu of conviction assessment. Judge Kimbler granted intervention in lieu of conviction to one defendant.
Judge Collier referred one defendant to the Adult Probation Department to determine if that defendant's conviction could be expunged.
Subscribe to:
Posts (Atom)
