Judge Eric Brown Sworn in as Ohio Supreme Court Chief Justice

Before family, friends and colleagues, Franklin County Probate Court Judge Eric Brown was sworn in today as the ninth Chief Justice of the Supreme Court of Ohio at a public ceremony at the Ohio Statehouse.

Chief Justice Brown fills the remaining eight months of the term of the late Chief Justice Thomas J. Moyer, who died unexpectedly on April 2. Governor Ted Strickland appointed Brown to the vacancy on the Supreme Court on April 14.

In his remarks, Brown said he was humbled to join the Supreme Court, by the support of the legal and judicial community, and by the governor’s confidence to name him to the Supreme Court. He also asked for the help and guidance of the six Justices, who attended the ceremony, in the coming months.

“I pledge to you, I pledge to all Ohioans to uphold our Constitutions and the rule of law,” Brown said, “so that all people continue to hold the judiciary in high regard.”

He said because of the slow and deliberate nature of the judiciary, he did not envision any significant changes at the Supreme Court during the short term.

Brown also spoke of Chief Justice Moyer as a “great leader and faithful follower of the rule of law” and that he would walk on the path of “stability and understanding” already established by Chief Justice Moyer.

“My energies will be dedicated to ensuring that Ohio’s judicial system remains fair and efficient, open and accessible,” Brown said.

Justice Paul E. Pfeifer, who as the most senior member of the Supreme Court had been serving as Acting Chief Justice, administered the oath of office. The ceremony was held in the North Hearing Room of the Senate Annex, which served as one of the courtrooms for the Supreme Court between 1857 and 1974.

Brown becomes the 152nd Justice of the Supreme Court.

Public Policy Does Not Bar Defendant’s Insurance Policy from Covering Plaintiff’s Attorney Fees

When Fees Awarded by Jury as a Result of Punitive Damages Award

2009-0325. Neal-Pettit v. Lahman, Slip Opinion No. 2010-Ohio-1829.
Cuyahoga App. No. 91551, 2008-Ohio-6653. Judgment of the court of appeals affirmed.
Pfeifer, O'Connor, Lanzinger, and Cupp, JJ., concur.
Lundberg Stratton and O'Donnell, JJ., dissent.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-1829.pdf

(May 4, 2010) The Supreme Court of Ohio ruled today that an award of attorney fees in a civil lawsuit is distinct from an award of punitive damages, and the public policy of the state does not prevent an insurance policy from providing coverage for attorney fees when they are awarded solely as a result of an award for punitive damages.

Applying that analysis to a Cuyahoga County personal injury case, the Court found that an auto insurance policy issued to Linda Lahman provided coverage for a jury’s award of attorney fees to another motorist, Kimberly Neal-Pettit, who was injured in an auto accident caused by Lahman. The court’s 4-2 majority decision was authored by Justice Judith Ann Lanzinger.

Neal-Pettit was injured in 2003 when her vehicle was hit by Lahman, who was driving while intoxicated and fleeing the scene of an earlier collision. Neal-Pettit sued Lahman for damages arising from her injuries.

A jury awarded Neal-Pettit compensatory damages of $113,800 and an additional $75,000 in punitive damages. Based on a finding that Lahman had acted “with malice” in causing Neal Pettit’s injuries, the jury also awarded Neal-Pettit attorney fees that the court later set at $46,825 along with an additional sum for litigation expenses. Lahman’s insurance company, Allstate, paid Neal-Pettit the amounts awarded as compensatory damages, interest and expenses, but denied any coverage under its policy for either the punitive damages or attorney fees awarded by the jury.

Neal-Pettit filed suit against Allstate in the Cuyahoga County Court of Common Pleas seeking payment for the attorney fee portion of the jury verdict. The trial court granted summary judgment in favor of Neal-Pettit. Allstate appealed, arguing that it had not contracted to pay attorney fees and that an attorney-fee award is an element of punitive damages, which public policy prevents an insurer from covering. The 8th District Court of Appeals affirmed the trial court’s decision, holding that attorney fees are “conceptually distinct” from punitive damages and that attorney fees were not expressly excluded from coverage by the language of the Allstate policy issued to Lahman. Allstate sought and was granted Supreme Court review of the 8th District’s decision.

In today’s decision affirming the 8th District, Justice Lanzinger rejected Allstate’s argument that the attorney fee award is an element of the jury’s award of punitive damages because both types of relief are based on a finding that the defendant acted “with malice.” Quoting from the Supreme Court of Ohio’s 1859 decision in Roberts v. Mason, she wrote: “(T)he fact that the awards have similar bases is irrelevant. We have recognized that attorney-fee awards and punitive-damages awards are distinct: ‘In an action to recover damages for a tort which involves the ingredients of fraud, malice, or insult, a jury may go beyond the rule of mere compensation to the party aggrieved, and award exemplary or punitive damages ... In such a case, the jury may, in their estimate of compensatory damages, take into consideration and include reasonable fees of counsel employed by the plaintiff in the prosecution of his action.’”

With regard to an exclusion of coverage in Lahman’s policy for “punitive or exemplary damages, fines or penalties,” Justice Lanzinger wrote: “(T)he exclusion does not refer in any way to attorney fees or litigation expenses. It specifically mentions only punitive or exemplary damages, which, as we have discussed, are conceptually distinct from attorney fees. Therefore, the term ‘punitive or exemplary damages’ does not clearly and unambiguously encompass an award of attorney fees. We decline to read such language into the contract. We instead construe the policy strictly against the insurer. ... Allstate, as the drafter, is responsible for ensuring that the policy states clearly what it does and does not cover.”

Finally, the Court disagreed with Allstate’s claim that it would be against public policy for an insurer to pay attorney fees on behalf of a policyholder when those fees are awarded solely as a result of a punitive damages award.

Justice Lanzinger wrote: “It is true that public policy prevents insurance contracts from insuring against claims for punitive damages based upon an insured’s malicious conduct. … In addition, R.C. 3937.182(B) prohibits insurance coverage of punitive damages: ‘No policy of automobile or motor vehicle insurance ... shall provide coverage for judgments or claims against an insured for punitive or exemplary damages.’ But R.C. 3937.182(B) mentions only punitive and exemplary damages, not attorney fees. The General Assembly chose not to mention attorney fees when it drafted the statute, and we decline to add them. ... Our holding will not encourage wrongful behavior merely because it permits insurers to cover attorney fees for which tortfeasors become liable. The tortfeasors remain liable for punitive damages awarded for their malicious actions, and these punitive damages remain uninsurable. Payment by the insurer of an attorney-fee award violates neither public policy nor R.C. 3937.182(B).”

Justice Lanzinger’s opinion was joined by Justices Paul E. Pfeifer, Maureen O’Connor and Robert R. Cupp.

Justice Evelyn Lundberg Stratton entered a dissenting opinion, joined by Justice Terrence O’Donnell, in which she disputed the majority’s conclusion that an award of attorney fees that is based solely on an award of punitive damages is nevertheless separate and distinct from those punitive damages.

Justice Stratton wrote: “The Allstate policy here agrees to pay for damages because of bodily injury and property damage. The policy excludes coverage for ‘punitive or exemplary damages, fines or penalties.’ There is an attorney-fee award in this case only because of the punitive-damages award; thus, the attorney-fee award is a ‘penalty’ designed to punish. The attorney fees are not compensable damages ‘because of bodily injury.’ I believe that the award is punitive in nature and is expressly excluded by the Allstate policy. Because of the punitive nature of an attorney-fee award, I also believe that it is against public policy for an insurer to pay attorney fees on behalf of its insured when the fees are awarded in connection with and as a direct result of a punitive-damages award.”

Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.

Contacts
Thomas M. Coughlin Jr., 216.241.8333, for Allstate Insurance Company.

W. Craig Bashein, 216.771.3239, for Kimberly Neal-Pettit.

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.

Prior DNA Test Not ‘Definitive’ If New Testing Method Can Detect Information Old Test Could Not

Case Returned to Trial Court to Determine if Other Criteria for Granting New Test Also Met

2009-0605. State v. Prade, Slip Opinion No. 2010-Ohio-1842.
Summit App. No. 24296, 2009-Ohio-704. Judgment of the court of appeals reversed, and cause remanded to the trial court.
Pfeifer, Lundberg Stratton, Lanzinger, and Cupp, JJ., concur.
Delaney and O'Donnell, JJ., dissent.
Brown, C.J., not participating.
Patricia A. Delaney, J., of the Fifth Appellate District, sitting for O’Connor, J.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-1842.pdf


(May 4, 2010) The Supreme Court of Ohio ruled today that under R.C. 2953.74, a state law that allows prison inmates to obtain new DNA testing of evidence from their trials under certain conditions, a prior DNA test is not “definitive” when a new testing method can detect information that could not be detected by the prior DNA test.

Applying that holding to the case of former Akron police captain Douglas Prade, who is currently serving a life sentence for the 1997 murder of his ex-wife, the Court overruled decisions of the Summit County Court of Common Pleas and 9th District Court of Appeals that denied Prade’s request for new testing of crime scene evidence on the basis that “a prior definitive DNA test” had been conducted at the time of his trial. Today’s decision did not order the trial court to approve Prade’s request for new testing, but overruled its finding that a 1998 DNA test performed on the victim’s clothing was definitive, and directed the trial court to conduct further proceedings.

Writing for a 4-2 majority of the Court, Justice Evelyn Lundberg Stratton emphasized that today’s decision does not address “the issue of whether to allow new DNA testing in cases where prior tests provided a match or other meaningful information, and an inmate is simply asking for a new test using the latest techniques. Rather, our holding is limited to situations in which advances in DNA testing have made it possible to learn information about DNA evidence that could not even be detected at the earlier trial.”

Under the statute at issue in the case, a trial court has discretion to approve an inmate’s request for postconviction DNA testing of trial evidence only if 1) there has not been “a prior definitive DNA test” performed on that evidence, and 2) the inmate shows that DNA test results excluding him or her as the source of genetic material from the crime scene “would have been outcome determinative at the trial stage of the case.”

Prade was charged with fatally shooting his ex-wife, Dr. Margo Prade, while she sat in a van outside her medical office. Among the physical evidence introduced at his 1998 trial was a bite mark that the killer made on Dr. Prade’s arm through her lab coat and blouse when she apparently attempted to defend herself. Although DNA tests were performed on the sleeve of the lab coat over the bite mark, blood from the victim’s wounds had covered that area of the sleeve and technicians using the best testing method available at that time, called polymerase chain reaction or PCR testing, reported that the only DNA they were able to detect on the sleeve was that of the victim. Expert witnesses called by Prade and by the state offered conflicting testimony regarding whether the bite mark left on the victim’s skin was compatible with Prade’s teeth. He was subsequently convicted and sentenced to life in prison.

In 2003 the General Assembly enacted legislation allowing postconviction DNA testing of trial evidence. Prade twice applied to the trial court seeking follow-up testing of the lab coat. His original request in 2004 was denied based on the court’s finding that the tests conducted at the time of his trial had definitively excluded Prade as a source of DNA on the lab coat, and therefore any new test that excluded him as a source would not have changed the outcome of his case. Prade filed a second request in 2008. The trial court again ruled that he was not eligible for new DNA testing under R.C. 2953.74 because a prior definitive test had been performed. On review, the 9th District Court of Appeals affirmed the trial court’s decision.

In today’s Supreme Court decision, Justice Stratton wrote: “Because defendant was excluded as a contributor to the DNA that was typed in this case, the lower courts concluded that the prior DNA tests done in 1998 were definitive. However, the only information that the DNA testing on the lab coat revealed was that Dr. Prade’s blood was present on her lab coat. The state’s expert agreed that the 1998 DNA ‘test results [did] not give [him] any information about the killer’ and that ‘the bite mark show[ed] [him] Margo Prade’s DNA only.’ Therefore, the testing excluded defendant only in the sense that the DNA found was not his, because it was the victim’s. But the ‘exclusion’ excluded everyone other than the victim in that the victim’s DNA overwhelmed the killer’s DNA due to the limitations of the 1998 testing methods. Therefore, the exclusion was meaningless, and the test cannot be deemed to have been definitive.”

Citing testimony by the quality assurance administrator of the state’s own DNA testing laboratory, Justice Stratton wrote that recent advances in DNA testing techniques, including the development of Y-STR testing that “ignores” female DNA in a test sample and detects only male DNA, now make it possible for new testing to do what the PCR methodology available in 1998 could not: identify and test small amounts of genetic material from a male even when it has been commingled with a much greater amount of female DNA such as the blood stains on Dr. Prade’s lab coat. “Thus,” wrote Justice Stratton, “new DNA testing methods are now able to provide new information that was not able to be detected at the time of defendant’s trial. We hold that a prior DNA test is not ‘definitive’ within the meaning of R.C. 2953.74(A) when a new DNA testing method can detect information that could not be detected by the prior DNA test.”

Although the Court’s holding overruled the trial court and 9th District’s primary basis for denying new DNA testing in the case, the Court remanded the case to the trial court to consider the second step of the analysis: whether the new DNA testing would be outcome determinative (i.e., whether there is a strong probability that no reasonable factfinder would have found the inmate guilty of that offense) pursuant to R.C. 2953.74(B) and 2953.71(L).

She wrote: “Neither court below considered R.C. 2953.74(B) and 2953.71(L) in detail because they each resolved the issue of definitiveness against the inmate – an issue that must be decided in an inmate’s favor before the question of whether additional testing would be outcome-determinative has any relevance. Because we reverse on the issue of the definitiveness of the prior testing, the trial court must be given the opportunity to consider outcome-determinativeness in detail as the statutes envision. Therefore, rather than applying R.C. 2953.74(B)(2) and 2953.71(L) at this point in the case, we remand the cause to the trial court for that court to consider whether the new DNA testing would be outcome-determinative.”

In conclusion, Justice Stratton emphasized that today’s decision does not address “the issue of whether to allow new DNA testing in cases where prior tests provided a match or other meaningful information, and an inmate is simply asking for a new test using the latest techniques. Rather, our holding is limited to situations in which advances in DNA testing have made it possible to learn information about DNA evidence that could not even be detected at the earlier trial.”

Justice Stratton’s opinion was joined by Justices Paul E. Pfeifer, Judith Ann Lanzinger and Robert R. Cupp.

Justice Terrence O’Donnell entered a dissenting opinion that was joined by Judge Patricia A. Delaney of the 5th District Court of Appeals, who sat in place of Justice Maureen O’Connor. Justice O’Donnell disagreed with the majority’s holding that a prior DNA test performed on evidence in an inmate’s case is not “definitive” within the meaning of R.C. 2953.74(A) if scientific advances since the inmate’s trial would allow a new test to detect genetic material not identified in the prior test.

He wrote: “(N)either the plain meaning of the word ‘definitive’ nor any other provision of the postconviction DNA testing statute authorizes the trial court to consider advances in testing technology to determine whether prior DNA tests were definitive. Moreover, if trial courts began to consider advances in testing technology, no test would ever be considered definitive, because the standards would continue to evolve and never reveal a final result. The finality of a conviction could therefore be undermined each time a new method of examination or technological advance occurred, even if the biological evidence had already been the subject of multiple postconviction DNA examinations. The General Assembly intended to preserve final judgments and never provided for the constant reexamination of DNA samples based on scientific advances.”

Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.

Contacts
David B. Alden, 216.586.7121, for Douglas Prade.

Richard S. Kasay, 330.643.2800, for the state and Summit County prosecutor’s office.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions.

Court Rules Collateral Source Statute Does Not Bar Evidence of Write Offs on Plaintiff’s Medical Bills

Where Reduced Fees are Result of Plaintiff’s Medical Insurance Coverage

2009-0820. Jaques v. Manton, Slip Opinion No. 2010-Ohio-1838.
Lucas App. No. L-08-1096, 2009-Ohio-1468. Judgment of the court of appeals reversed, and cause remanded to the trial court.
Lundberg Stratton, O'Connor, O’Donnell, Lanzinger, and Cupp, JJ., concur.
Pfeifer, J., dissents.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-1838.pdf

(May 4, 2010) The Supreme Court of Ohio ruled today that the defendant in a personal injury lawsuit is not barred by Ohio’s collateral source statute from introducing at trial evidence of “write offs” accepted by medical service providers that reduced the actual cost of the plaintiff’s medical treatments to a lower amount than those providers originally billed for their services.

The Court’s 5-1 decision, authored by Justice Terrence O’Donnell, reversed a ruling by the 6th District Court of Appeals.

Richard Jaques was injured in a December 2005 traffic accident for which the other driver, Patricia Manton, admitted liability. When the parties could not agree on the amount of damages, Jaques filed suit against Manton seeking recovery for his medical injuries, lost wages and pain and suffering. During pretrial proceedings, Jaques sought and was granted a motion barring Manton from informing the jury that while he had been billed a total of $21,874 for medical treatments arising from the accident, his health care providers had accepted $7,484 as payment in full for those services, having “written off” $14,390 from their original bills based on their contractual agreements with his health insurance provider, Medical Mutual of Ohio.

At trial, the jury was able to consider only the amount billed by the medical providers, not the amount accepted as full payment. The jury subsequently awarded Jaques damages totaling $25,000, with $15,500 of that amount designated for medical expenses. Manton moved for a new trial on the basis that the judge had erred in not allowing her to introduce evidence about the write-offs on Jaques medical bills. The trial court denied the motion and certified the jury’s verdict.

Manton appealed. The 6th District Court of Appeals affirmed the trial court’s evidentiary ruling, holding that evidence of the write-offs was barred by the state’s collateral source statute, R.C. 2315.20. Manton sought and was granted Supreme Court review of the trial and appellate courts’ decisions.

Writing for the majority in today’s decision, Justice O’Donnell noted that in a similar case decided in 2006, Robinson v. Bates, the Supreme Court held that under the common law collateral source rule in force prior to the enactment of R.C. 2315.20, a defendant was permitted to introduce evidence of write offs that reduced the amounts of the plaintiff’s medical bills. In this case, he observed, the pivotal question is whether the legislature’s enactment of R.C. 2315.20 effective in April 2005 compels a different conclusion with regard to the admissibility of similar evidence.

Justice O’Donnell wrote: “The general collateral-source-rule provision in R.C. 2315.20

pertains only to ‘evidence of any amount payable as a benefit to the plaintiff.’ This formulation is no different substantively from the common-law rule described in Robinson ... as excluding only: ‘evidence of benefits paid by a collateral source.’ ... Our common-law analysis from Robinson applies equally in the context of the statute. Both versions of the collateral-source rule are concerned with actual payments made by third parties to the benefit of the plaintiff, but the focus of the statute is to prevent a double-payment windfall for the plaintiff while the focus of the common-law rule was to prevent the defendant from escaping the full burden of his tortious conduct. Write-offs are amounts not paid by third parties, or anyone else, so permitting introduction of evidence of them allows the fact-finder to determine the actual amount of medical expenses incurred as a result of the defendant’s conduct. This result supports the traditional goal of compensatory damages—making the plaintiff whole.”

Justice O’Donnell acknowledged Jaques argument that R.C. 2315.20 prohibits trial evidence about insurance benefits received by a plaintiff when those benefits are subject to subrogation (reimbursement of the insurer from any damages recovered by the plaintiff through a lawsuit against the at-fault party), and that admitting evidence of the care providers’ write-offs would allow jurors to calculate the amount Jaques received in insurance benefits that were subject to subrogation. He wrote, however, that: “While Jaques’ concerns may not be unfounded, we see no indication of those concerns in the language of the statute. We are required to apply the plain language of a statute when it is clear and unambiguous. ... A write-off indicates only that the provider accepted less than the amount originally billed for its services. While this may typically occur due to an insurance agreement, that is certainly not always the case. R.C. 2315.20 does not indicate a legislative intent to bar such evidence.”

“Because R.C. 2315.20 does not prohibit evidence of write-offs, the admissibility of such evidence is determined under the Rules of Evidence. A plaintiff is entitled to recover the reasonable value of medical expenses incurred due to the defendant’s conduct. ... The reasonable value may not be either the amount billed by medical providers or the amount accepted as full payment. ‘Instead, the reasonable value of medical services is a matter for the jury to determine from all relevant evidence. Both the original medical bill rendered and the amount accepted as full payment are admissible to prove the reasonableness and necessity of charges rendered for medical and hospital care.’ The trial court and court of appeals both erred in refusing to admit evidence of write-offs by medical providers relating to Jaques’ care. R.C. 2315.20 does not apply to write-offs, and therefore, our conclusion from Robinson controls—evidence of write-offs is admissible to show the reasonable value of medical expenses.”

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

Justice Paul E. Pfeifer entered a dissent stating that in his view the majority failed to apply R.C. 2315.20 according to the plain terms of that statute.

He wrote: “At issue in this case is whether a defendant may introduce evidence of a write-off. In this case, Jaques was billed $21,874.80 for medical expenses. The medical provider accepted $7,483.91 as payment in full, effectively writing off $14,390.89. Jaques understandably wants the jury to think that he incurred $21,874.80 in medical expenses; Manton understandably wants the jury to think that Jaques incurred only $7,483.91 in medical expenses. R.C. 2315.20(A) answers the question before us: evidence of the amount payable may not be introduced because ‘the source of the collateral benefits has a ... contractual right of subrogation.’ Jaques did not negotiate the write-off, neither did Manton. The provider of Jaques's medical care did not initiate the lesser payment. Who is left to be the source of the collateral benefits? It can only be Jaques’s insurance company. They initiated and negotiated the write-off and they have a contractual right of subrogation. Accordingly, evidence of the collateral benefits may not be introduced.”

Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.

Contacts
Alan B. Dills, 419.249.7100, for Patricia Manton.

Michael D. Bell, 419.843.2001, for Richard Jaques.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."

Judge Collier's Criminal Docket for May 3, 2010

Medina County Prosecutor Dean Holman reports that the following people appeared in court May 3:

Matthew Buettner, 26, of West Smith Road in Medina, was sentenced to five years of community controls sanctions, with 180 days in jail, on one count of Possession of Drugs, a fifth-degree felony.

James Foote Jr., 31, of Larkins Way in Medina, was sentenced to six months in prison on one count of Trafficking in Marijuana, a fifth-degree felony.

Sean McManus, 27, of Sturbridge Boulevard in Medina, was sentenced to nine months in prison on one count of Theft, a fifth-degree felony.

Kody Romans, 19, of Medina Street in Lodi, was sentenced to two years of community control sanctions on three counts of Trafficking in Marijuana, all of which are fifth-degree felonies. His driver’s license was suspended for six months and his car, along with $270, was forfeited to law enforcement.

Dianna Casto, 39, of 20th Street in Canton, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for August 9.

Anna Lamb, 26, of Wooster Road in Barberton, pleaded no contest to two counts of Theft from the Elderly, both of which are fourth-degree felonies. Sentencing is scheduled for June 14.

Ronnie Speedy, 37, of Bloomfield Avenue in Akron, pleaded not guilty to one count of Possession of Drugs, a third-degree felony. A jury trial is scheduled for August 9.

James Tosatto, 45, of Boston Road in Brunswick, pleaded not guilty to one count of Domestic Violence, a fourth-degree felony. A jury trial is scheduled for August 16.

LawTalk Show: DWI Defense

Attorney John Celebrezze, host of the award-winning community access television show, LawTalk, interviews Medina attorney Kris Aupperle of the David McArtor law office on the topic of defending drunk driving cases.

Part One


Part Two


Part Three

Judge Kimbler's Criminal Docket for Thursday, April 29, 2010

Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Kimbler's court on Thursday, April 29:

Jessica Daversa, 23, of Chatham Road in Spencer, was sentenced to three years of community control sanctions on one count of Trafficking in Drugs, a fourth-degree felony, and one count of Possession of Drugs, a fifth-degree felony.

Anna Fraczek, 55, of North Jefferson Street in Medina, was sentenced to three years of community control sanctions on one count of Forgery, a fifth-degree felony.

Daniel Hapsic, 46, of Main Street in Mineral Ridge, was sentenced to six months in prison on one count of Possession of Cocaine, a fifth-degree felony.

Amber Haughawout, 20, of West Market Street in Akron, was sentenced to three years of community control sanctions on one count of Possession of Heroin, a fifth-degree felony.

Alycia Hines, 28, of Jefferson Avenue in Brunswick, was sentenced to three years of community control sanctions on one count of Possession of Marijuana, a third-degree felony.

Michelle Just, 45, of Heather Lane in Medina, was sentenced to three years of community controls sanctions on two counts of Trafficking in Drugs within the Vicinity of a Juvenile and two counts of Possession of Drugs, all of which are third-degree felonies.

Jerrell Neptune, 22, of Graton Road in Brunswick, was sentenced to three years of community control sanctions on one count of Trafficking in Marijuana, a fifth-degree felony.

Joseph Strehl III, 54, of Columbia Road in Valley City, was sentenced to 180 days in jail on one count of Driving Under the Influence of Drugs or Alcohol, a fourth-degree felony.

Steven Warden, 35, of Jefferson Avenue in Medina, was sentenced to two years in prison on one count of Illegal Manufacture of Drugs within the Vicinity of a Juvenile, a second-degree felony.

Stephanie Arthur, 24, of North Harmony Street in Medina, pleaded not guilty to one count of Failure to Comply with a Police Officer, a third-degree felony, and one count of Endangering Children, a first-degree misdemeanor. A jury trial is scheduled for July 17.

William Carson, 53, of Cree Avenue in Akron, pleaded not guilty to the following charges: one count of Burglary, a second-degree felony; one count of Attempted Burglary, a third-degree felony; two counts of Breaking and Entering, both of which are fifth-degree felonies; and one count of Possessing Criminal Tools, a fifth-degree felony. A jury trial is scheduled for July 12.

Amanda Justice, 29, of Northpark Drive in Wadsworth, pleaded not guilty to one count of Possession of Heroin and one count of Possession of Drugs, both of which are fifth-degree felonies. A jury trial is scheduled for July 13.

Michael Kirby, 44, of Grant Street in Medina, pleaded not guilty to one count of Domestic Violence, a fourth-degree felony. A jury trial is scheduled for July 6.

David Walker, 24, of North Lyman Street in Wadsworth, pleaded not guilty to the following charges: one count of Burglary, a second-degree felony; one count of Theft of a Dangerous Drug, a third-degree felony; and one count of Theft from the Elderly, a fourth-degree felony. A jury trial is scheduled for July 6.

Ohio Supreme Court Submits "Open Discovery" Criminal Rule Change to General Assembly

he Supreme Court of Ohio today filed with the Ohio General Assembly final amendments to the annual update of the Rules of Practice and Procedure, including changes to the criminal discovery process that were developed through a collaborative process led by the late Chief Justice Thomas J. Moyer and including the criminal defense bar and prosecutors.

The amendments concern changes to the rules of criminal procedure and the rules of appellate procedure. Specifically, the amendments to Criminal Rule 16 call for a more open discovery process, and the revision of several rules of appellate procedure implements a procedure for en banc consideration in courts of appeals when separate three-judge panels within the same court of appeals reach conflicting decisions on the same matter of law.

The new discovery process would allow defense counsel access to materials that, under the current rule, prosecutors did not have to divulge. Changes in Crim.R. 16 also call for establishing a defendant’s reciprocal duty of disclosure and seek to protect victims and witnesses from potential harassment.

The discovery reforms were developed through an extraordinary cooperative process that involved leaders of the Ohio Prosecuting Attorneys Association and Ohio Association of Criminal Defense Lawyers. Chief Justice Moyer had urged them to collectively develop proposed rules that would be considered for adoption by the Supreme Court.

“The patience and spirit of cooperation required to realize these important and necessary changes to the discovery process speak volumes about Chief Justice Moyer’s collaborative, collegial nature,” said Justice Paul E. Pfeifer. “His vision and persistence and, finally, his stubbornness in supporting a just cause, led to this remarkable achievement for our legal system. For well over a decade, he worked for this change, and we have been through numerous starts and stops. But today, we stand in a great place – the proposed Crim.R. 16 emerged from this court by a unanimous vote, has the support of prosecutors and defense attorneys, and, we think, bipartisan support in the General Assembly. All of that is the direct result of Tom’s stewardship.”

The en banc provisions of the appellate procedure rules result from the Supreme Court’s decision in McFadden v. Cleveland State Univ. The Court held that “if the judges of a court of appeals determine that two or more decisions of the court on which they sit are in conflict, they must convene en banc to resolve the conflict.” Language was also added to the proposed amendments to ensure that an order or entry in reconsideration that results in an intra-district conflict also could be subject to en banc consideration.

Other changes to the criminal procedure rules include amending Crim. R. 12(K) to accommodate the new interlocutory appeal to review a trial court’s ruling on a prosecutor’s non-disclosure of material granted under proposed Crim. R. 16(F)(2). Amendments to Crim. R. 41 permit applications and approvals of search warrants to be accomplished by electronic means, including facsimile transmission.

The amendments were adopted unanimously by the seven Justices of the Supreme Court, with the exception of Crim. R. 41, which was adopted 6-1 with Justice Terrence O’Donnell voting no.

According to the Ohio Constitution, amendments to rules of procedure must be filed with the General Assembly. After the initial filing, which must occur before Jan. 15, there was a period of public comment; the Court revised the amendments and filed final versions with the General Assembly before the constitutionally mandated deadline of May 1. The amendments take effect on July 1, unless before that date the General Assembly adopts a concurrent resolution of disapproval. The process also included another public comment period after the amendments were first published last October.

The text of the rule amendments are accessible through the Ohio Supreme Court website.

Judge Kimbler's Court Schedule for April 28-May 4, 2010

Click here to view Judge Kimbler's court schedule for April 28, 2010 through May 4, 2010.

Acting Chief Justice Removes Cuyahoga County Judge from Sowell Case

Acting Ohio Supreme Court Chief Justice Paul Pfeifer removed Cuyahoga County Common Pleas Judge Shirley Strickland-Saffold from the Anthony Sowell case last week. You can read Justice Pfeifer's decision by clicking here. The case was reassigned to Judge Dick Ambrose.

Judicial Procession to Lead Memorial Tribute for former Chief Justice Thomas Moyer on Law Day

A procession of Ohio judges led by a memorial pipe and drum corps will open a memorial tribute for the late Chief Justice Thomas J. Moyer on Law Day in the new Grand Ballroom of the Ohio Union on the campus of the Chief’s beloved Ohio State University.

The Supreme Court of Ohio today released details about the public event that will honor the life and legacy of the late Chief Justice, who died unexpectedly on April 2 eight months shy of the end of his fourth and final six-year term on the Court.

The memorial tribute – to be held this Saturday, May 1, at 11 a.m. – will be broadcast live on the Ohio Channel and streamed live on the Supreme Court’s Web site. The event will recognize Chief Justice Moyer’s significant contributions in a remarkable life dedicated to civility, public service and the rule of law.

At the time of his death, he was the longest-serving current Chief Justice in the country and the second longest-serving Chief Justice in the history of the Supreme Court of Ohio. Certainly, that longevity will be among the focus of tributes on May 1, but hardly the only remembrance.

The ceremony will include a procession of robed judges from the federal bench, Ohio courts and out-of-state courts led by the Pipes and Drums of the Cleveland Police. Each of the six current Justices will offer personal reflections on the Chief. Former Justices and other national and state judicial and legal leaders will offer personal tributes in addition to a video tribute of those whose lives were touched by the Chief Justice. Ohio State University President E. Gordon Gee will also offer remarks.

The event is expected to conclude at about 12:30 p.m.

Members of the general public are welcome. For planning purposes, those attending are asked to make reservations by Wednesday, April 28, by emailing memorial@sc.ohio.gov or calling 614.387.9510.

There is a parking garage attached to the Union, 1739 N. High St. More information is available at the Court’s Web site, www.supremecourt.ohio.gov.

Medina Man Enters Plea and Is Sentenced to Six Months in Jail

Marian N. Potcovaru of Independence Drive in Medina appeared in Judge Kimbler's court on Monday, April 26, 2010 and entered a plea of no contest to one count of Forgery, a fifth degree felony. Judge Kimbler then imposed a six month jail sentence and gave him credit for the time he had spent in the Medina County Jail since his arrest on December 30, 2009.

Judge Collier's Criminal Docket for April 26, 2010

Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Collier's court on Monday, April 26:

Tina James, 43, of Township Road 101 in West Salem, was sentenced to two years of community control sanctions on one count of Trafficking in Drugs within the Vicinity of a School or Juvenile, a third-degree felony and one count of Trafficking in Drugs, a fourth-degree felony. Her vehicle was ordered forfeited to law enforcement and her driver’s license was suspended for six months.

Nicole Stys, 27, of Brainard Avenue in Cleveland, pleaded guilty and was sentenced to 10 months in prison on two counts of Forgery, both of which are fifth-degree felonies.

Billy Tingler, 41, of North Academy Street in Lodi, was sentenced to 40 years in prison on the following charges: two counts of Rape, both of which are first-degree felonies; two counts of Kidnapping, both of which are first-degree felonies; two counts of Endangering Children, both of which are second-degree felonies; and two counts of Breaking and Entering, both of which are fifth-degree felonies. Sexual Motivation Specifications are attached to the Kidnapping charges. He also was classified as a Tier III Sexually Oriented Offender.

Joseph Bowes, 20, of West North Street in Wadsworth, pleaded not guilty to two counts of Unlawful Sexual Conduct with a Minor, both of which are fourth-degree felonies. A jury trial is scheduled for June 7.

Daniel Curtis, 36, of West Bergey Street in Wadsworth, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for July 26.

Cassandra DeJesus, 28, of Homewood Drive in Lorain, pleaded not guilty to one count of Burglary, a second-degree felony, and one count of Theft, a fifth-degree felony. A jury trial is scheduled for June 16.

Anthony Glover II, 26, of Foundry Street in Medina pleaded not guilty to one count of Domestic Violence, a fourth-degree felony. A jury trial is scheduled for May 26.

Jamie Maynard, 23, of Abbeyville Road in Medina, pleaded not guilty to one count of Deception to Obtain a Dangerous Drug, a fifth-degree felony. A jury trial is scheduled for June 14.

Marla Trocchio, 22, of Wadsworth Road in Medina, pleaded not guilty to one count of Deception to Obtain a Dangerous Drug, a fifth-degree felony. A jury trial is scheduled for June 14.

The Linking of Voting and Jury Service in Ohio

by Judge James L. Kimbler

Ohio has long linked voting and jury service. In 1803, the year that Ohio was admitted to the Union, the Ohio General Assembly passed a law that required jurors to have the same qualifications as voters. This meant that jurors were drawn from those residents who had the qualifications of voters. Those qualifications were found in Article IV, Section One, which read as follows:

section 1. In all elections, all white male inhabitants above the age of twenty-one years, having resided in the State one year next preceding the election, and who have paid or are charged with a State or county tax, shall enjoy the right of an elector; but no person shall be entitled to vote, except in the county or district in which he shall actually reside at the time of the election.

The Constitution of 1851 changed the qualifications for voting. Voting qualifications were found in Article V, Section One of the 1851 Constitution, which read as follows:

Section One. Every white male citizen of the United States of the age of twenty-one years, who shall have been a resident of the state one year next preceding the election, and of the county, township, or ward, in which he resides, such time as may be provided by law, shall have the qualifications of an elector and shall be entitled to vote in all elections.

Note that while only white males over 21 could vote, they no longer had to pay either county or state taxes. Since Ohio continued to link voting and jury service, this meant that the number of people who could serve on juries expanded with the change in voting qualifications.

Although the Constitution of 1851 was not amended until 1912, when Ohio's voters passed a series of amendments, the Civil War and the subsequent passage of the Thirteenth, Fourteenth, and Fifteenth Amendments changed the voting qualifications in Ohio. As a result of the passage of these amendments, both the number of voters and the number of potential jurors expanded. No longer could Ohio limit either voting or jury service to white males.

The next expansion of those eligible for jury service came when women got the right to vote with the passage of the Nineteenth Amendment in 1920. Since Ohio law required jurors to be drawn from those who were eligible to vote, the adoption of the Nineteenth Amendment meant that women were now eligible to serve as jurors.

So, by the early 1920s jurors were all residents of Ohio who were 21 years of age or older and who were eligible to vote. This was how things stayed until the adoption of the Twenty Sixth Amendment. That amendment gave the right to vote to all those who were 18 years of age or older and prohibited states from denying such persons the right to vote. Since Ohio law required jurors to have the same qualifications as voters, this meant that 18 year olds could serve on juries.

In 1985, the Ohio General Assembly authorized counties to draw jurors from a list of eligible voters and a list of residents with valid Ohio driver licenses. This was the first time since 1803 that Ohio had allowed residents other than those eligible to vote to serve on a jury. Only one county, Montgomery, has adopted this method. In the other 87 counties, including Medina, jury lists are drawn from voter lists.

So, in Ohio since 1803 there has been a constant expansion of those who are permitted to serve as jurors. Sometimes the expansion was because of changes in the Ohio Constitution and at other times it was because of the passage of amendments to the United States Constitution. Always, though, there has been expansion and never contraction of those who can serve on a jury.

Guardian ad litem Courses Open for Registration

Ohio attorneys have eight more opportunities this year to satisfy new requirements for guardians ad litem that took effect last year, according to the Supreme Court of Ohio Judicial College.

As the first state rule to set standards regarding the appointment, responsibilities, training and reporting requirements of guardians ad litem, Rule 48 of the Rules of Superintendence for the Courts of Ohio applies in all domestic relations and juvenile cases in common pleas courts where the court appoints a guardian ad litem. Among other requirements, the new rule mandates six hours of pre-service coursework for all guardians ad litem in Ohio.

Judicial College Director W. Milt Nuzum III noted that attorneys should not register for a free CLE if they are not interested in serving as a guardian ad litem. By registering for a course, the Judicial College is authorized to provide the attorney’s contact information to the local court noting the attorney’s willingness to serve as a guardian ad litem.

In addition, Nuzum said if attorneys have already completed a six-hour course provided by the Ohio Network of Children’s Advocacy Centers since March 2006 or if they have completed the 30-40 hour CASA pre-service course for CASA volunteers, there’s no need to attend the Judicial College course. These courses also meet the requirements of Sup. R. 48.

In order to be in compliance with this new rule, attendees must complete the entire educational program from 8:45 a.m. to 4:45 p.m.. Attendees who do not participate in the full six hours of instruction will not be qualified to serve as a GAL under the requirements of the rule. Registration will not be available at the training sites, so all attendees must pre-register.

Click here to learn more about the courses.

The Confrontation Clause and Pretrial Motions

By Judge James L. Kimbler

In an earlier note, I discussed whether the Ohio Rules of Evidence apply to pre-trial hearings on motions to suppress evidence. Ohio courts have held that it does not. As a result, a trial judge can consider evidence that would be objectionable at trial when ruling on a motion to suppress. Such evidence might well include hearsay evidence.

If a trial court does receive hearsay evidence at a pretrial hearing, has it violated the defendant's right to confront his or her accusers? That is, even if the Ohio Evidence Rules don't at hearing on motions to suppress, do the Confrontation Clause of the Ohio and Federal Constitutions prevent trial courts from considering hearsay evidence at such hearings?

Ohio courts have quoted language from United States Supreme Court decisions which refer to the right of confrontation as being a "trial right." An example is the following language from a decision of the Court of Appeals for the Ninth Appellate District on the issue of whether there is a right of confrontation at a hearing on a motion filed pursuant to Crim. R. 33:

"As for Cureton's arguments under the Crim.R. 33 motion, As for Cureton's arguments under the Crim.R. 33 motion, the Confrontation Clause provides two types of protections for a criminal defendant: the right physically to face those who testify against him and the right to conduct cross-examination. Pennsylvania v. Ritchie (1987), 480 U.S. 39, 51, 94 L. Ed. 2d 40, 107 S. Ct. 989. "The opinions of this Court show that the right to confrontation is a trial right, designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination." (Emphasis sic.) Id. at 52. Cureton has presented no authority that states his right to confront witnesses extends to a Crim.R. 33 hearing on a motion for a new trial."
(State v. Cureton, 2003 Ohio 6010 at P32)

In State v. Irwin, 2007 Ohio 4496, the Court of Appeals for the Seventh Appellate District wrote the following at P22:

"Appellant is correct that Crawford has a bearing on her assignment of error because Crawford, and the entire legal history of the confrontation clause, reveals the right of confrontation is a trial right."

Given the fact that at least two Ohio appellate courts have stated that the right of confrontation is a trial right, it would seem that the Confrontation Clause does not bar a trial court from receiving hearsay evidence at a hearing on a motion to suppress.

Whether, of course, a trial court would be persuaded by such evidence is another matter entirely.

Judge Kimbler's Criminal Docket for April 22, 2010

Medina County Prosecutor Dean Holman reported that the following people appeared in Judge Kimbler's court April 22:

Robert Krumwiede, 20, of Crestwood Avenue in Wadsworth, was sentenced to three years of community control sanctions on one count of Possession of Cocaine, a fifth-degree felony.

Val Scott McIntosh, 39, of High Street in Wadsworth, was sentenced to 90 days in jail on one count of Forgery, a fifth-degree felony.

Kimberlee Palma, 23, of Canal Fulton Road in Marshallville, was sentenced to three years in prison on two counts of Robbery, both of which are third-degree felonies and one count of Vandalism, a fifth-degree felony.

Bradley Shultzaberger Jr., 19, of Stanford Drive in Brunswick, was sentenced to two years in prison on one count of Burglary, a second-degree felony, and one count of Receiving Stolen Property, Credit Card, a fifth-degree felony.

Jennifer Endean, 32, of Cuyahoga Falls, pleaded no contest to one count of Forgery and one count of Identity Fraud, both of which are fifth-degree felonies. Sentencing is scheduled for May 27.

Stephen Kroska, 26, of Manchester Avenue, N.W., in Canal Fulton, pleaded not guilty to three counts of Trafficking in Marijuana, one of which is a fourth-degree felony, and two of which are fifth-degree felonies. A jury trial is scheduled for June 28.

Daniel Lanier, 51, of Clark Road in Wadsworth, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for June 23.

Christopher Meade, 30, of Charles Avenue in Parma, pleaded not guilty to one count of Misuse of Credit Cards, a fourth-degree felony, and one count of Theft, a fifth-degree felony. A jury trial is scheduled for June 16.

Sean Neale, 25, of Valley View in Broadview Heights, pleaded not guilty to one count of Illegal Processing of a Drug Document, a fourth-degree felony. A jury trial is scheduled for June 21.

Robert Patterson, 56, of Ocean Avenue in Akron, pleaded not guilty to one count of Possession of Heroin, a fifth-degree felony. A jury trial is scheduled for June 22.

Amanda Young, 32, of North Huntington Street, pleaded not guilty to one count of Obstruction of Justice, a fifth-degree felony. A jury trial is scheduled for June 22.

Timothy Zacharias, 20, of Debra Drive in Elyria, pleaded not guilty to one count of Telephone Harassment, a fifth-degree felony. A jury trial is scheduled for June 22.

Advisory Ethics Opinion for Lawyers Regarding When Notes Must be Turned Over to Clients

The Supreme Court of Ohio’s Board of Commissioners on Grievances & Discipline has issued an advisory opinion about whether a lawyer’s notes must be turned over to a client when requested.

Opinion 2010-2 addresses the following question: “Are a lawyer’s notes of an interview with a current or former client considered client papers to which the current or former client is entitled upon request?”

The opinion finds that it depends upon whether “the notes are items reasonably necessary to the client’s representation” pursuant to Prof. Cond. Rule 1.16(d), which requires the lawyer to exercise his or her professional judgment.

For example, the opinion states that: “A lawyer’s notes to himself or herself regarding passing thoughts, ideas, impression, or questions will probably not be items reasonably necessary to a client’s representation. … But, a lawyer’s notes regarding facts about the case will most likely be an item reasonably necessary to a client’s representation.”

The opinion also states that a lawyer may ethically redact portions from the note not reasonably necessary or prepare a note for the client that contains only the necessary items needed for representation.

Advisory Opinions of the Board of Commissioners on Grievances and Discipline are informal, nonbinding opinions in response to prospective or hypothetical questions regarding the application of the Supreme Court Rules for the Government of the Bar of Ohio, the Supreme Court Rules for the Government of the Judiciary, the Ohio Rules of Professional Conduct, the Ohio Code of Judicial Conduct, and the Attorney’s Oath of Office.

Contact: Ruth Bope Dangel at 614.387.9370 or Chris Davey at 614.387.9250.

Judge Collier's Criminal Docket for April 19, 2010

Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Collier’s courtroom on April 19, 2010, for criminal cases:

Brian Arnold, 31, of Frederick Street in Rittman, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for July 21.

Esker Casto, 29, of Lafayette Road in Medina, was sentenced to 180 days in jail for a probation violation on an original charge of Trafficking in Drugs, a fifth-degree felony.

Ethan Denk, 19, of Stone Manor Circle in Brunswick, pleaded not guilty to two counts of Forgery, both of which are fifth-degree felonies. A jury trial is scheduled for July 21.

Shamus Griffin, 33, of Lunn Road in Strongsville, pleaded not guilty to one count of Trafficking in Drugs, a fourth-degree felony. A jury trial is scheduled for July 19.

Ashley Krettler, 22, of Stone Road in Litchfield, pleaded not guilty to one count of Forgery, a fifth-degree felony. A jury trial is scheduled for July 19.

Michael Stephenson, 34, of Meadowbrook Boulevard, was sentenced to six months in prison for a probation violation on an original charge of Possession of Heroin, a fifth-degree felony.

Ruth Swartzbaugh, 45, of Woodcrest Drive in Wadsworth, pleaded not guilty to one count of Possession of Heroin, a fourth-degree felony. A jury trial is scheduled for July 19.

Judge Collier's Ohio Supreme Court Report for March, 2010

At the start of March Judge Collier had 740 cases pending on his docket. Of these cases, 102 were criminal cases and the rest were civil cases.

As used by the Ohio Supreme Court, the following categories had the most cases pending at the start of March: Foreclosures with 289; Other Civil with 230; Criminal with 102; and Other Torts with 83.

During the month Judge Collier’s court took in 144 cases. The categories which had the most cases filed during March were Foreclosures with 69; Other Civil with 44; and Criminal with 24. As a result of the new cases filed and cases pending at the beginning of March, along with reactivated or transferred cases, Judge Collier had 903 cases on his docket at some point during March.

During the month Judge Collier disposed of 167 cases. The categories with the most disposition were Foreclosures with 56; Other Civil with 52; and Criminal with 45. As a result of closing cases in those as well as the other categories listed on the Ohio Supreme Court report, Judge Collier had 736 pending cases on his docket at the end of March.