State ex rel. FedEx Ground Package Sys., Inc. v. Indus. Comm., Slip Opinion No. 2010-Ohio-2451.
Franklin App. No. 07AP-959, 182 Ohio App.3d 152, 2009-Ohio-1708. Judgment of the court of appeals affirmed.
Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, and Cupp, JJ., concur.
Brown, C.J., and Lanzinger, J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2451.pdf
(June 8, 2010) The Supreme Court of Ohio today ruled that the Industrial Commission of Ohio did not abuse its discretion in including wages from a second job to calculate an injured worker’s average and full weekly wages in determining temporary total disability compensation for an injury he sustained on the first job.
The case centers on an injury sustained by Christopher Roper while employed by FedEx Ground Package System, Inc., where he had worked part-time since 2004. Roper took a second job in April 2006 with Integrated Pest Control that paid considerably more.
On Oct. 24, 2006, Roper was injured at FedEx, and subsequently applied for workers’ compensation benefits. As a self-insured employer, FedEx set Roper’s average weekly wage at $160.45 and his full weekly wage at $250.80, based solely on his earnings at FedEx. Roper asked the Industrial Commission to reset his average and fully weekly wages based on his combined earnings from FedEx and Integrated Pest Control. A district hearing officer, citing the “special circumstances” provision of R.C. 4123.61, granted Roper’s motion and reset his AWW at $417.05, and FWW at $457.36, based on income from both jobs. That order was administratively affirmed.
FedEx filed a mandamus action in the 10th District Court of Appeals seeking reversal of the Industrial Commission’s award of increased benefits based on Roper’s earnings from Integrated Pest Control. The appeals court denied the mandamus complaint. FedEx exercised its right to appeal the 10th District’s decision to the Supreme Court.
In today’s 5-0 per curiam opinion, which affirmed the court of appeals judgment, the Supreme Court found FedEx’s arguments unpersuasive by noting that state law does not bar the inclusion of concurrent wages in the calculation of a worker’s disability benefits; relevant case law does not limit the inclusion of concurrent wages to jobs involving ‘similar’ employment; the inclusion of concurrent wages will not discourage employment; and the inclusion of concurrent wages is not inherently unfair.
The Court found that “our review supports these calculations” and noted that “we have consistently recognized and generally deferred to the commission’s expertise in areas falling under the agency’s jurisdiction.”
The Court’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell and Robert R. Cupp.
Chief Justice Eric Brown and Judith Ann Lanzinger did not participate in the Court’s deliberations or decision in the case.
Contacts
John T. Landwehr, 419.241.6000, for FedEx.
Gerald H. Waterman, 614.466.6696, for the Industrial Commission.
Theodore A. Bowman, 419.843.2001, for Christopher Roper.
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."
Thursday, June 10, 2010
Major Drug Offender Penalty May Be Imposed if Substance Offered for Sale Never Recovered
Garr v. Warden, Madison Corr. Inst., Slip Opinion No. 2010-Ohio-2449.
Certified Question of State Law, United States District Court, Southern District of Ohio, Western Division, No. 1:08cv293. Certified question answered in the negative.
Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2449.pdf
(June 8, 2010) The Supreme Court of Ohio today ruled 6-0 that a decision in State v. Chandler, a 2006 Supreme Court case where the Supreme Court held that a detectable amount of the controlled substance must be present before a court may impose an enhanced major drug offender penalty, does not apply to trafficking cases where no drugs are recovered and therefore the major drug offender penalty may be imposed in those cases.
A federal judge submitted a certified question of state law to the Supreme Court inquiring whether its holding in Chandler extends to an offer-to-sell drug-trafficking case where no drugs are recovered during investigation of the crime.
Today’s 6-0 decision, authored by Justice Terrence O’Donnell, answered the certified question in the negative and clarified “that our holding in Chandler does not extend to cases where a substance offered for sale is not recovered or tested in order to ascertain whether it contains a detectable amount of controlled substance.”
Oliver Garr was arrested and charged with first-degree felony drug trafficking and a major drug offender specification based on his offer to sell an informant two kilograms of cocaine. Police never recovered any amount of cocaine or any other substance that had been offered for sale by Garr. The trial court convicted him and sentenced him to 10 years in prison as a major drug offender. He lost on appeal before the 1st District Court of Appeals, and the Supreme Court declined to hear his case. He then filed a federal habeas corpus action in the U.S. District Court for the Southern District of Ohio.
Justice O’Donnell noted that: “Our decision in Chandler that a substance offered for sale must contain ‘some detectable amount’ of the relevant controlled substance before a person can be sentenced as a major drug offender is limited to those cases where the substance offered for sale is recovered and subjected to testing to determine whether it contains a detectable amount of the drug offered for sale.”
“It does not apply to situations where no drug is recovered and no testing is performed. Hence, where an offender offers to sell a controlled substance in a quantity which would implicate the MDO specification, and where no substance is ever recovered or tested, Chandler is factually distinguishable, as it is a counterfeit drug case where the alleged drug was recovered and tested. Therefore, Chandler does not apply to the situation as presented here where Garr offered to sell a drug which was not recovered. In such a case, the offender may be convicted of an MDO specification in a properly proven case.”
Justice O’Donnell’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Maureen O’Connor, Judith Ann Lanzinger and Robert R. Cupp.
Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.
Contacts
Benjamin C. Mizer, 614.466.8980, for the warden of the Madison Correctional Institution.
Kristopher A. Haines, 614.466.5394, for Oliver Garr.
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."
Certified Question of State Law, United States District Court, Southern District of Ohio, Western Division, No. 1:08cv293. Certified question answered in the negative.
Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2449.pdf
(June 8, 2010) The Supreme Court of Ohio today ruled 6-0 that a decision in State v. Chandler, a 2006 Supreme Court case where the Supreme Court held that a detectable amount of the controlled substance must be present before a court may impose an enhanced major drug offender penalty, does not apply to trafficking cases where no drugs are recovered and therefore the major drug offender penalty may be imposed in those cases.
A federal judge submitted a certified question of state law to the Supreme Court inquiring whether its holding in Chandler extends to an offer-to-sell drug-trafficking case where no drugs are recovered during investigation of the crime.
Today’s 6-0 decision, authored by Justice Terrence O’Donnell, answered the certified question in the negative and clarified “that our holding in Chandler does not extend to cases where a substance offered for sale is not recovered or tested in order to ascertain whether it contains a detectable amount of controlled substance.”
Oliver Garr was arrested and charged with first-degree felony drug trafficking and a major drug offender specification based on his offer to sell an informant two kilograms of cocaine. Police never recovered any amount of cocaine or any other substance that had been offered for sale by Garr. The trial court convicted him and sentenced him to 10 years in prison as a major drug offender. He lost on appeal before the 1st District Court of Appeals, and the Supreme Court declined to hear his case. He then filed a federal habeas corpus action in the U.S. District Court for the Southern District of Ohio.
Justice O’Donnell noted that: “Our decision in Chandler that a substance offered for sale must contain ‘some detectable amount’ of the relevant controlled substance before a person can be sentenced as a major drug offender is limited to those cases where the substance offered for sale is recovered and subjected to testing to determine whether it contains a detectable amount of the drug offered for sale.”
“It does not apply to situations where no drug is recovered and no testing is performed. Hence, where an offender offers to sell a controlled substance in a quantity which would implicate the MDO specification, and where no substance is ever recovered or tested, Chandler is factually distinguishable, as it is a counterfeit drug case where the alleged drug was recovered and tested. Therefore, Chandler does not apply to the situation as presented here where Garr offered to sell a drug which was not recovered. In such a case, the offender may be convicted of an MDO specification in a properly proven case.”
Justice O’Donnell’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Maureen O’Connor, Judith Ann Lanzinger and Robert R. Cupp.
Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.
Contacts
Benjamin C. Mizer, 614.466.8980, for the warden of the Madison Correctional Institution.
Kristopher A. Haines, 614.466.5394, for Oliver Garr.
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."
Court Clarifies Role of County Developmental Disabilities Board in Action to Remove Guardian
In re Guardianship of Spangler, Slip Opinion No. 2010-Ohio-2471.
Geauga App. Nos. 2007-G-2800 and 2007-G-2802, 2008-Ohio-6978. Judgment of the court of appeals affirmed in part and vacated in part, and cause remanded to the court of appeals.
Lundberg Stratton, O'Connor, Lanzinger, and Cupp, JJ., concur.
Pfeifer and O'Donnell, JJ., concur in part and dissent in part.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2471.pdf
(June 9, 2010) The Supreme Court of Ohio ruled today that although a county board of developmental disabilities does not have legal standing to file a motion in probate court seeking the removal of a court-appointed guardian for an incompetent adult, the probate court has plenary authority to sua sponte (on its own initiative) conduct proceedings to remove a guardian based on information received from that board.
The Court’s 4-2 majority opinion, authored by Justice Judith A. Lanzinger, partially affirmed and partially vacated a decision of the 11th District Court of Appeals, and remanded the case to the appellate court for further proceedings.
The case involved John Spangler of Geauga County, a young adult male who suffers from autism, mitochondrial disease and mild mental retardation. After John turned 18, his parents, Gabriele and Joseph Spangler, applied to the local probate court to be appointed John’s permanent guardians. The Geauga County Board of Mental Retardation and Developmental Disabilities (renamed the Board of Developmental Disabilities in 2009) participated in the hearings on the matter and supported the parents’ application. At one of those hearings, the probate court warned the mother that if the court learned that she and her husband were not “making decisions that are in your son’s best interest, in terms of placement,” the court would consider appointing someone else as John’s guardian. In July 2006, the court appointed the parents as John’s unlimited guardians.
Three months later, the developmental disabilities board filed a motion to remove the parents as John’s guardians and to appoint a local social services agency, Advocacy and Protective Services, Inc. (APSI) as successor guardian. The motion alleged that the mother had created conflict with John’s service providers and had threatened to remove him from their care. The motion was supported by a letter from John’s current provider, who stated that there was “an immediate danger to the welfare and safety of John.” The probate court granted the motion to remove on a temporary basis, appointed APSI as temporary guardian for John, and set the matter for hearing the following week. At that hearing, the board and the parents agreed to a six-month continuance of the hearing and the appointment of APSI as temporary guardian.
Before the stipulated six-month period had elapsed, however, the Spanglers entered a new motion asking the probate court to terminate APSI as John’s guardian and instead appoint his father. The Spanglers also asked the probate court to dismiss the board’s still-pending motion to remove them as guardians, arguing that the board had no legal authority or standing to initiate such an action. Following several hearings, the probate court entered a judgment holding that the board had legal standing to file a motion for guardianship removal, that there was good cause and it was in John’s best interest to remove the parents, and that APSI’s legal guardianship over John would continue.
The Spanglers appealed the probate court’s ruling. In a split decision with three separate opinions, the appellate court reversed. The lead opinion concluded that the board had not been granted the statutory authority, express or implied, to file a motion to remove a guardian and thus lacked general standing to petition the court for removal. A separate concurrence focused on R.C. Chapters 2109 and 2111 and determined that because the board was not the real party in interest, it lacked standing. A third, dissenting opinion viewed the general duties of the board as sufficient to establish the board as an “interested party,” allowing it to object to the guardian. The court of appeals did not address additional claims of the Spanglers that the evidence considered at the probate proceedings was insufficient to remove them as John’s guardians because its ruling on lack of standing vacated the probate order.
The Supreme Court agreed to review: 1) whether a developmental disabilities board has the authority and standing to request that a probate court remove a guardian, and 2) whether a probate court has the authority to conduct proceedings to remove a guardian based on the board’s request.
Writing for the majority in today’s decision, Justice Lanzinger agreed with the 11th District’s majority holding that nothing in the statutes creating and defining the powers and duties of county boards of developmental disabilities empowers them to initiate a court action seeking the removal of a guardian. She wrote: “Because the board is governed by statute, there must be an express or implied grant of authority allowing county boards of developmental disabilities to file a motion to remove a guardian. The general duty under R.C. 5126.055(A)(4) ‘to ensure the health, safety, and welfare of individuals receiving services from a county board of developmental disabilities’ does not equate to or imply a grant of authority to interfere with the appointment of a guardian by the probate court. Similarly, the board’s reliance on R.C. 305.14(C) as authority to file such a motion is misplaced. That statute allows the board to hire legal counsel without authorization from the common pleas court; it does not allow the board to initiate any legal action it so chooses. We therefore hold that a county board of developmental disabilities does not have the statutory authority to file a motion in the probate court to remove a guardian.”
In reviewing the remainder of the 11th District’s decision, Justice Lanzinger wrote: “Amicus curiae (friend of the court) the state of Ohio and the board in its third proposition of law urge that, irrespective of the powers and duties of a county developmental disabilities board, the probate court has plenary authority to act upon the information brought before it and to remove the parents as guardians for their son. We agree. … The general grant of jurisdiction to probate courts regarding guardians is comprehensive. R.C. 2101.24 states: ‘(A)(1) Except as otherwise provided by law, the probate court has exclusive jurisdiction: … ‘(e) To appoint and remove guardians, conservators, and testamentary trustees, direct and control their conduct, and settle their accounts.’ In addition, the probate court is the ‘superior guardian,’ and other guardians must obey all probate orders. … It is also clear that the probate court has the plenary authority to investigate guardians.”
In this case, Justice Lanzinger observed, “(t)he parents do not contest that, had the board sent a letter to the probate court, the court could have sua sponte initiated a hearing on whether to remove them as guardians. Instead, they seem to argue that because the information came in the form of a motion from the board, the probate court was barred from acting. Form, however, should not be allowed to triumph over the substance of the issue involved. … The board had participated in the hearings on the parents’ request to be appointed guardians, and although the board ultimately supported the application, it expressed concern over several of the mother’s decisions regarding her son. Information obtained from the board actually led the probate court to warn the mother that the court would not hesitate to appoint another guardian if she failed to make good decisions. There was sufficient cause for the probate court to call the guardian in for a hearing after it heard allegations that, three months later, one of the guardians arrived unexpectedly late at night and intoxicated at the home of John’s service providers and threatening to remove him from a stable placement.”
“We hold that the General Assembly has not granted a county board of developmental disabilities the express or implied power to file a motion to remove a guardian. Nonetheless, the plenary power of the probate court as the superior guardian allows it to investigate whether a guardian should be removed upon receipt of sufficient information that the guardian is not acting in the ward’s best interest. Thus, the court of appeals erred when, based on its holding that the board lacked standing, it summarily ruled that the trial court erred in removing the parents as guardians and when it mooted the assignment of error challenging the removal order as being against the manifest weight of the evidence. We therefore affirm the judgment of the Eleventh District in part, vacate it in part, and remand the matter to the court of appeals for resolution of the parents’ second and third assignments of error.”
Justice Lanzinger’s opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor and Robert R. Cupp.
Justice Terrence O’Donnell entered a separate opinion, joined by Justice Paul E. Pfeifer, in which he agreed with the majority’s holding that the statutes defining the powers of county boards of developmental disabilities do not give them authority to initiate a motion to remove a guardian, but dissented from the majority’s holding that in exercising its plenary power as superior guardian, a probate court may, upon notice from a county board, conduct proceedings to remove a guardian.
Pointing out that the Geauga County developmental disabilities board did not raise the latter issue in its memorandum seeking Supreme Court review of the case, Justice O’Donnell wrote: “As the board did not raise this issue in its memorandum in support of jurisdiction, it is not properly before us and we should decline to address it now. … (E)ven if the issue were properly before us, I disagree with the majority’s conclusion that a probate court has plenary authority to act upon the information brought before it irrespective of the powers and duties of a county board. … The matter before the probate court in this case concerned a motion to remove John’s parents as his guardians filed by the Geauga County Board of Developmental Disabilities. Thus, the question for this court’s determination would be whether the board’s motion was properly before the probate court. Because a county board of developmental disabilities does not have the express or implied authority to file a motion to remove the guardian of an incompetent, its motion to remove the Spanglers as John’s guardians was never properly before the court. Consequently, the court lacked the plenary power to remove John’s parents as his guardians, and in doing so, the court exceeded its limited statutory jurisdiction.”
Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in this case.
Contacts
Judith A. Miedema, 440.279.2100, for the Geauga County Board of Developmental Disabilities.
Pamela W. Makowski, 614.245.0488, for Joseph and Gabriele Spangler.
Derek S. Hamalian, 614.466.7264, for John Spangler.
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."
Geauga App. Nos. 2007-G-2800 and 2007-G-2802, 2008-Ohio-6978. Judgment of the court of appeals affirmed in part and vacated in part, and cause remanded to the court of appeals.
Lundberg Stratton, O'Connor, Lanzinger, and Cupp, JJ., concur.
Pfeifer and O'Donnell, JJ., concur in part and dissent in part.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2471.pdf
(June 9, 2010) The Supreme Court of Ohio ruled today that although a county board of developmental disabilities does not have legal standing to file a motion in probate court seeking the removal of a court-appointed guardian for an incompetent adult, the probate court has plenary authority to sua sponte (on its own initiative) conduct proceedings to remove a guardian based on information received from that board.
The Court’s 4-2 majority opinion, authored by Justice Judith A. Lanzinger, partially affirmed and partially vacated a decision of the 11th District Court of Appeals, and remanded the case to the appellate court for further proceedings.
The case involved John Spangler of Geauga County, a young adult male who suffers from autism, mitochondrial disease and mild mental retardation. After John turned 18, his parents, Gabriele and Joseph Spangler, applied to the local probate court to be appointed John’s permanent guardians. The Geauga County Board of Mental Retardation and Developmental Disabilities (renamed the Board of Developmental Disabilities in 2009) participated in the hearings on the matter and supported the parents’ application. At one of those hearings, the probate court warned the mother that if the court learned that she and her husband were not “making decisions that are in your son’s best interest, in terms of placement,” the court would consider appointing someone else as John’s guardian. In July 2006, the court appointed the parents as John’s unlimited guardians.
Three months later, the developmental disabilities board filed a motion to remove the parents as John’s guardians and to appoint a local social services agency, Advocacy and Protective Services, Inc. (APSI) as successor guardian. The motion alleged that the mother had created conflict with John’s service providers and had threatened to remove him from their care. The motion was supported by a letter from John’s current provider, who stated that there was “an immediate danger to the welfare and safety of John.” The probate court granted the motion to remove on a temporary basis, appointed APSI as temporary guardian for John, and set the matter for hearing the following week. At that hearing, the board and the parents agreed to a six-month continuance of the hearing and the appointment of APSI as temporary guardian.
Before the stipulated six-month period had elapsed, however, the Spanglers entered a new motion asking the probate court to terminate APSI as John’s guardian and instead appoint his father. The Spanglers also asked the probate court to dismiss the board’s still-pending motion to remove them as guardians, arguing that the board had no legal authority or standing to initiate such an action. Following several hearings, the probate court entered a judgment holding that the board had legal standing to file a motion for guardianship removal, that there was good cause and it was in John’s best interest to remove the parents, and that APSI’s legal guardianship over John would continue.
The Spanglers appealed the probate court’s ruling. In a split decision with three separate opinions, the appellate court reversed. The lead opinion concluded that the board had not been granted the statutory authority, express or implied, to file a motion to remove a guardian and thus lacked general standing to petition the court for removal. A separate concurrence focused on R.C. Chapters 2109 and 2111 and determined that because the board was not the real party in interest, it lacked standing. A third, dissenting opinion viewed the general duties of the board as sufficient to establish the board as an “interested party,” allowing it to object to the guardian. The court of appeals did not address additional claims of the Spanglers that the evidence considered at the probate proceedings was insufficient to remove them as John’s guardians because its ruling on lack of standing vacated the probate order.
The Supreme Court agreed to review: 1) whether a developmental disabilities board has the authority and standing to request that a probate court remove a guardian, and 2) whether a probate court has the authority to conduct proceedings to remove a guardian based on the board’s request.
Writing for the majority in today’s decision, Justice Lanzinger agreed with the 11th District’s majority holding that nothing in the statutes creating and defining the powers and duties of county boards of developmental disabilities empowers them to initiate a court action seeking the removal of a guardian. She wrote: “Because the board is governed by statute, there must be an express or implied grant of authority allowing county boards of developmental disabilities to file a motion to remove a guardian. The general duty under R.C. 5126.055(A)(4) ‘to ensure the health, safety, and welfare of individuals receiving services from a county board of developmental disabilities’ does not equate to or imply a grant of authority to interfere with the appointment of a guardian by the probate court. Similarly, the board’s reliance on R.C. 305.14(C) as authority to file such a motion is misplaced. That statute allows the board to hire legal counsel without authorization from the common pleas court; it does not allow the board to initiate any legal action it so chooses. We therefore hold that a county board of developmental disabilities does not have the statutory authority to file a motion in the probate court to remove a guardian.”
In reviewing the remainder of the 11th District’s decision, Justice Lanzinger wrote: “Amicus curiae (friend of the court) the state of Ohio and the board in its third proposition of law urge that, irrespective of the powers and duties of a county developmental disabilities board, the probate court has plenary authority to act upon the information brought before it and to remove the parents as guardians for their son. We agree. … The general grant of jurisdiction to probate courts regarding guardians is comprehensive. R.C. 2101.24 states: ‘(A)(1) Except as otherwise provided by law, the probate court has exclusive jurisdiction: … ‘(e) To appoint and remove guardians, conservators, and testamentary trustees, direct and control their conduct, and settle their accounts.’ In addition, the probate court is the ‘superior guardian,’ and other guardians must obey all probate orders. … It is also clear that the probate court has the plenary authority to investigate guardians.”
In this case, Justice Lanzinger observed, “(t)he parents do not contest that, had the board sent a letter to the probate court, the court could have sua sponte initiated a hearing on whether to remove them as guardians. Instead, they seem to argue that because the information came in the form of a motion from the board, the probate court was barred from acting. Form, however, should not be allowed to triumph over the substance of the issue involved. … The board had participated in the hearings on the parents’ request to be appointed guardians, and although the board ultimately supported the application, it expressed concern over several of the mother’s decisions regarding her son. Information obtained from the board actually led the probate court to warn the mother that the court would not hesitate to appoint another guardian if she failed to make good decisions. There was sufficient cause for the probate court to call the guardian in for a hearing after it heard allegations that, three months later, one of the guardians arrived unexpectedly late at night and intoxicated at the home of John’s service providers and threatening to remove him from a stable placement.”
“We hold that the General Assembly has not granted a county board of developmental disabilities the express or implied power to file a motion to remove a guardian. Nonetheless, the plenary power of the probate court as the superior guardian allows it to investigate whether a guardian should be removed upon receipt of sufficient information that the guardian is not acting in the ward’s best interest. Thus, the court of appeals erred when, based on its holding that the board lacked standing, it summarily ruled that the trial court erred in removing the parents as guardians and when it mooted the assignment of error challenging the removal order as being against the manifest weight of the evidence. We therefore affirm the judgment of the Eleventh District in part, vacate it in part, and remand the matter to the court of appeals for resolution of the parents’ second and third assignments of error.”
Justice Lanzinger’s opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor and Robert R. Cupp.
Justice Terrence O’Donnell entered a separate opinion, joined by Justice Paul E. Pfeifer, in which he agreed with the majority’s holding that the statutes defining the powers of county boards of developmental disabilities do not give them authority to initiate a motion to remove a guardian, but dissented from the majority’s holding that in exercising its plenary power as superior guardian, a probate court may, upon notice from a county board, conduct proceedings to remove a guardian.
Pointing out that the Geauga County developmental disabilities board did not raise the latter issue in its memorandum seeking Supreme Court review of the case, Justice O’Donnell wrote: “As the board did not raise this issue in its memorandum in support of jurisdiction, it is not properly before us and we should decline to address it now. … (E)ven if the issue were properly before us, I disagree with the majority’s conclusion that a probate court has plenary authority to act upon the information brought before it irrespective of the powers and duties of a county board. … The matter before the probate court in this case concerned a motion to remove John’s parents as his guardians filed by the Geauga County Board of Developmental Disabilities. Thus, the question for this court’s determination would be whether the board’s motion was properly before the probate court. Because a county board of developmental disabilities does not have the express or implied authority to file a motion to remove the guardian of an incompetent, its motion to remove the Spanglers as John’s guardians was never properly before the court. Consequently, the court lacked the plenary power to remove John’s parents as his guardians, and in doing so, the court exceeded its limited statutory jurisdiction.”
Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in this case.
Contacts
Judith A. Miedema, 440.279.2100, for the Geauga County Board of Developmental Disabilities.
Pamela W. Makowski, 614.245.0488, for Joseph and Gabriele Spangler.
Derek S. Hamalian, 614.466.7264, for John Spangler.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
Tuesday, June 08, 2010
Wadsworth Man Pleads to Eight Felony Charges in Judge Kimbler's Courtroom
William C. Beck of 272 N. Pardee Street in Wadsworth, Ohio, entered eight pleas of "no contest" to four counts of Vandalism and four counts of Breaking and Entering. All eight charges were felonies of the fifth degree. Prior to changing his plea to the eight counts, Mr. Beck's attorney, Mr. Russell Buzzilli renewed his motion for intervention in lieu of conviction. Judge Kimbler denied that motion.
After conducing a change of plea hearing, Judge Kimbler found Mr. Beck guilty of all eight counts and ordered a pre-sentence investigation. Judge Kimbler will impose sentence on July 15, 2010. Judge Kimbler continued Mr. Beck's bond pending sentencing.
After conducing a change of plea hearing, Judge Kimbler found Mr. Beck guilty of all eight counts and ordered a pre-sentence investigation. Judge Kimbler will impose sentence on July 15, 2010. Judge Kimbler continued Mr. Beck's bond pending sentencing.
Brunswick Man Changes Plea in Judge Kimbler's Court
On Monday, June 7, 2010, Mr. Raymond V. Gunderman of 270 Manitoulin Pike in Brunswick, Ohio appeared in Judge Kimbler’s courtroom with his attorney Mr. L. Ray Jones. Originally Mr. Gunderman had been charged with two counts.
The first count of his indictment alleged that he committed the crime of Unlawful Possession of a Dangerous Ordinance, a second degree felony. The second count alleged that he committed the crime of the Illegal Manufacture of Drugs or the Illegal Cultivation of Marijuana, a fourth degree felony.
The State of Ohio dismissed the first count and filed a bill of information charging Mr. Gunderman with the Illegal Manufacture of Fireworks, a third degree felony. Following the filing of the bill of information, Mr. Gunderman waived his right to have the new charge presented to a grand jury and entered guilty pleas to the new charge and the original second count charging him with drug possession.
Judge Kimbler then ordered a presentence investigation and continued his bond. Judge Kimbler will sentence Mr. Gunderman on July 15, 2010.
The first count of his indictment alleged that he committed the crime of Unlawful Possession of a Dangerous Ordinance, a second degree felony. The second count alleged that he committed the crime of the Illegal Manufacture of Drugs or the Illegal Cultivation of Marijuana, a fourth degree felony.
The State of Ohio dismissed the first count and filed a bill of information charging Mr. Gunderman with the Illegal Manufacture of Fireworks, a third degree felony. Following the filing of the bill of information, Mr. Gunderman waived his right to have the new charge presented to a grand jury and entered guilty pleas to the new charge and the original second count charging him with drug possession.
Judge Kimbler then ordered a presentence investigation and continued his bond. Judge Kimbler will sentence Mr. Gunderman on July 15, 2010.
Judge Kimbler's Court Schedule for June 9 through June 15, 2010
You can see the court's schedule by clicking here. The schedule is in pdf format so you do need a pdf reader installed on your computer to see the schedule.
Monday, June 07, 2010
Judge Collier's Criminal Docket for June 7, 2010
Medina County Prosecutor Dean Holman reports that the following defendants appeared in Judge Collier's court on Monday, June 7, 2010 for criminal cases:
Cindy Arnold, 29, of East Bowman Street in Wooster, was sentenced to two years of community control sanctions, with 90 days in jail, on one count of Theft, a fifth-degree felony.
Mary Sanders, 28, of West Sunset Drive in Rittman, was sentenced to two years of community control sanctions, with 30 days in jail, on one count of Theft, a fifth-degree felony.
Joseph Bowes, 20, of West North Street in Wadsworth, pleaded no contest to two counts of Unlawful Sexual Conduct with a Minor, both of which are fourth-degree felonies. Sentencing is scheduled for July 19.
Elisa Derringer, 42, of Congress Road in Lodi, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for September 20.
Marie Espie, 23, of Portage Street in Wadsworth, pleaded not guilty to one count of Obstructing Justice, a fifth-degree felony. A jury trial is scheduled for September 20.
Robert Neura, 44, of Boston Road in Brunswick, pleaded not guilty to one count of Trafficking in Cocaine, a fifth-degree felony. A jury trial is scheduled for July 26.
Shane Powers, 36, of Bronson Street in Medina, pleaded not guilty to one count of Violation of a Protection Order, a fifth-degree felony. A jury trial is scheduled for August 16.
Jerome Santora, 27, of Princeton Drive in Brunswick, pleaded not guilty to one count of Trafficking in Marijuana, a fifth-degree felony. A jury trial is scheduled for September 20.
Thomas Sawyer, 54, of Beau Bay Boulevard in Chippewa Lake, pleaded not guilty to one count of Corrupting Another with Drugs, a second-degree felony. A jury trial is scheduled for August 12.
Jessica Spangler, 20, of Vandemark Road in Litchfield, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for July 12.
Samantha Simonik, 22, of Center Road in Clinton, pleaded not guilty to one count of Theft of a Check, a fifth-degree felony. A jury trial is scheduled for September 27.
Philip Wadsworth, 21, of Engle Road in Brook Park, pleaded not guilty to one count of Permitting Drug Abuse, a fifth-degree felony. A jury trial is scheduled for September 20.
Cindy Arnold, 29, of East Bowman Street in Wooster, was sentenced to two years of community control sanctions, with 90 days in jail, on one count of Theft, a fifth-degree felony.
Mary Sanders, 28, of West Sunset Drive in Rittman, was sentenced to two years of community control sanctions, with 30 days in jail, on one count of Theft, a fifth-degree felony.
Joseph Bowes, 20, of West North Street in Wadsworth, pleaded no contest to two counts of Unlawful Sexual Conduct with a Minor, both of which are fourth-degree felonies. Sentencing is scheduled for July 19.
Elisa Derringer, 42, of Congress Road in Lodi, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for September 20.
Marie Espie, 23, of Portage Street in Wadsworth, pleaded not guilty to one count of Obstructing Justice, a fifth-degree felony. A jury trial is scheduled for September 20.
Robert Neura, 44, of Boston Road in Brunswick, pleaded not guilty to one count of Trafficking in Cocaine, a fifth-degree felony. A jury trial is scheduled for July 26.
Shane Powers, 36, of Bronson Street in Medina, pleaded not guilty to one count of Violation of a Protection Order, a fifth-degree felony. A jury trial is scheduled for August 16.
Jerome Santora, 27, of Princeton Drive in Brunswick, pleaded not guilty to one count of Trafficking in Marijuana, a fifth-degree felony. A jury trial is scheduled for September 20.
Thomas Sawyer, 54, of Beau Bay Boulevard in Chippewa Lake, pleaded not guilty to one count of Corrupting Another with Drugs, a second-degree felony. A jury trial is scheduled for August 12.
Jessica Spangler, 20, of Vandemark Road in Litchfield, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for July 12.
Samantha Simonik, 22, of Center Road in Clinton, pleaded not guilty to one count of Theft of a Check, a fifth-degree felony. A jury trial is scheduled for September 27.
Philip Wadsworth, 21, of Engle Road in Brook Park, pleaded not guilty to one count of Permitting Drug Abuse, a fifth-degree felony. A jury trial is scheduled for September 20.
Judge Kimbler's Criminal Docket for June 4, 2010
Medina County Prosecutor Dean Holman reports that the following defendants appeared in Judge Kimbler's court on Friday, June 4, 2010 for criminal cases:
Amanda Justice, 29, of Northpark Drive in Wadsworth, was sentenced to one year in prison on the following charges: one count of Complicity to Commit Breaking and Entering; one count of Receiving Stolen Property; one count of Possession of Heroin; one count of Possession of Drugs, six counts of Breaking and Entering, and six counts of Vandalism; all of which are fifth-degree felonies.
William Burley, 42, of Cook Avenue in Lakewood, pleaded not guilty to one count of Possession of Cocaine, a fifth-degree felony. A jury trial is scheduled for August 3.
Lucas Carter, 19, of Villa Street in Rittman, pleaded not guilty to two counts of Robbery, one of which is a second-degree felony and one of which is a third-degree felony. A jury trial is scheduled for August 9.
Carl Curry, 39, of Pepperwood Drive in Brunswick, pleaded not guilty to one count of Trafficking in Cocaine, a fifth-degree felony. A jury trial is scheduled for August 9.
Joshua Darby, 27, of East Reagan Parkway in Medina, pleaded not guilty to one count of Domestic Violence, a fourth-degree felony. A jury trial is scheduled for August 9.
Robert Dunn, 46, of West 73rd Street in Cleveland, pleaded not guilty to one count of Failure to Give Notice of Change of Address, a first-degree felony. A jury trial is scheduled for August 2.
Greg Finnegan, 47, of Beverly Hills Drive in Brunswick, pleaded not guilty to one count of Trafficking in Drugs and one count of Trafficking in Cocaine, both of which are fifth-degree felonies. A jury trial is scheduled for August 4.
Kevin Foy, 40, of Essex Drive in Brunswick, pleaded not guilty to two counts of Trafficking in Cocaine, both of which are fifth-degree felonies. A jury trial is scheduled for August 3.
Erin Gebhard, 22, of Maplewood Avenue in Brunswick, pleaded not guilty to two counts of Trafficking in Cocaine, both of which are fifth-degree felonies. Forfeiture specifications are attached to both charges. A jury trial is scheduled for August 3.
Desiree O’Neill, 24, of Beverly Hills Drive in Brunswick, pleaded not guilty to two counts of Trafficking in Cocaine, both of which are fifth-degree felonies. A jury trial is scheduled for August 3.
Michael Porach, 32, of Manitoulin Pike in Brunswick, pleaded not guilty to one count of Trafficking in Cocaine and one count of Trafficking in Drugs, both of which are fifth-degree felonies. A jury trial is scheduled for August 2.
Scott Reisland, 27, of Grafton Road in Brunswick, pleaded not guilty to one count of Trafficking in Drugs, a fourth-degree felony. A forfeiture specification is attached to the charge. A jury trial is scheduled for August 10.
Deaire Ricks, 25, of Valdes Avenue in Akron, pleaded not guilty to one count of Trafficking in Cocaine, a fifth-degree felony. A forfeiture specification is attached to the charge. A jury trial is scheduled for August 10.
Jeff Starecheski, 35, of Carlisle Drive in Brunswick, pleaded not guilty to one count of Trafficking in Heroin, a fifth-degree felony. A jury trial is scheduled for August 12.
Sean Swarthout, 18, of North Jefferson Street in Medina, pleaded not guilty to two counts of Robbery, one of which is a second-degree felony and one of which is a third-degree felony. A jury trial is scheduled for August 10.
Adam Szwec, 25, of River Road in Valley City, pleaded not guilty to one count of Trafficking in Drugs, a fourth-degree felony, and two counts of Trafficking in Cocaine and one count of Trafficking in Drugs, Counterfeit Controlled Substance, all of which are fifth-degree felonies. A jury trial is scheduled for August 2.
Thomas Traut, 32, of Gaylann Drive in Brunswick, pleaded not guilty to two counts of Trafficking in Marijuana, both of which are fifth-degree felonies. A jury trial is scheduled for August 4.
Daniel Watson, 24, of Southwick Boulevard in Brunswick, pleaded not guilty to one count of Trafficking in Drugs, a fifth-degree felony. A jury trial is scheduled for August 4.
Jeffrey Wiseman, 30, of West 10th Street in Cleveland, pleaded not guilty to three counts of Trafficking in Cocaine Within the Vicinity of a School or Juvenile, all of which are fourth-degree felonies. A forfeiture specification is attached to each charge. A jury trial is scheduled for August 11.
Amanda Justice, 29, of Northpark Drive in Wadsworth, was sentenced to one year in prison on the following charges: one count of Complicity to Commit Breaking and Entering; one count of Receiving Stolen Property; one count of Possession of Heroin; one count of Possession of Drugs, six counts of Breaking and Entering, and six counts of Vandalism; all of which are fifth-degree felonies.
William Burley, 42, of Cook Avenue in Lakewood, pleaded not guilty to one count of Possession of Cocaine, a fifth-degree felony. A jury trial is scheduled for August 3.
Lucas Carter, 19, of Villa Street in Rittman, pleaded not guilty to two counts of Robbery, one of which is a second-degree felony and one of which is a third-degree felony. A jury trial is scheduled for August 9.
Carl Curry, 39, of Pepperwood Drive in Brunswick, pleaded not guilty to one count of Trafficking in Cocaine, a fifth-degree felony. A jury trial is scheduled for August 9.
Joshua Darby, 27, of East Reagan Parkway in Medina, pleaded not guilty to one count of Domestic Violence, a fourth-degree felony. A jury trial is scheduled for August 9.
Robert Dunn, 46, of West 73rd Street in Cleveland, pleaded not guilty to one count of Failure to Give Notice of Change of Address, a first-degree felony. A jury trial is scheduled for August 2.
Greg Finnegan, 47, of Beverly Hills Drive in Brunswick, pleaded not guilty to one count of Trafficking in Drugs and one count of Trafficking in Cocaine, both of which are fifth-degree felonies. A jury trial is scheduled for August 4.
Kevin Foy, 40, of Essex Drive in Brunswick, pleaded not guilty to two counts of Trafficking in Cocaine, both of which are fifth-degree felonies. A jury trial is scheduled for August 3.
Erin Gebhard, 22, of Maplewood Avenue in Brunswick, pleaded not guilty to two counts of Trafficking in Cocaine, both of which are fifth-degree felonies. Forfeiture specifications are attached to both charges. A jury trial is scheduled for August 3.
Desiree O’Neill, 24, of Beverly Hills Drive in Brunswick, pleaded not guilty to two counts of Trafficking in Cocaine, both of which are fifth-degree felonies. A jury trial is scheduled for August 3.
Michael Porach, 32, of Manitoulin Pike in Brunswick, pleaded not guilty to one count of Trafficking in Cocaine and one count of Trafficking in Drugs, both of which are fifth-degree felonies. A jury trial is scheduled for August 2.
Scott Reisland, 27, of Grafton Road in Brunswick, pleaded not guilty to one count of Trafficking in Drugs, a fourth-degree felony. A forfeiture specification is attached to the charge. A jury trial is scheduled for August 10.
Deaire Ricks, 25, of Valdes Avenue in Akron, pleaded not guilty to one count of Trafficking in Cocaine, a fifth-degree felony. A forfeiture specification is attached to the charge. A jury trial is scheduled for August 10.
Jeff Starecheski, 35, of Carlisle Drive in Brunswick, pleaded not guilty to one count of Trafficking in Heroin, a fifth-degree felony. A jury trial is scheduled for August 12.
Sean Swarthout, 18, of North Jefferson Street in Medina, pleaded not guilty to two counts of Robbery, one of which is a second-degree felony and one of which is a third-degree felony. A jury trial is scheduled for August 10.
Adam Szwec, 25, of River Road in Valley City, pleaded not guilty to one count of Trafficking in Drugs, a fourth-degree felony, and two counts of Trafficking in Cocaine and one count of Trafficking in Drugs, Counterfeit Controlled Substance, all of which are fifth-degree felonies. A jury trial is scheduled for August 2.
Thomas Traut, 32, of Gaylann Drive in Brunswick, pleaded not guilty to two counts of Trafficking in Marijuana, both of which are fifth-degree felonies. A jury trial is scheduled for August 4.
Daniel Watson, 24, of Southwick Boulevard in Brunswick, pleaded not guilty to one count of Trafficking in Drugs, a fifth-degree felony. A jury trial is scheduled for August 4.
Jeffrey Wiseman, 30, of West 10th Street in Cleveland, pleaded not guilty to three counts of Trafficking in Cocaine Within the Vicinity of a School or Juvenile, all of which are fourth-degree felonies. A forfeiture specification is attached to each charge. A jury trial is scheduled for August 11.
Conclusions of Law in Board of Revision Appeal Judgment Entry
Below are Conclusions of Law that I recently filed in a case involving an appeal from the denial of a reduction in the taxable value of a commercial property. This case is subject to appeal.
In an action under R.C. 5857.05, the Court of Common Pleas must make an independent valuation on the property that is the subject of the appeal. JRB Holdings, LLC v. Wayne County Bd. of Revision, 2006 Ohio App. LEXIS 943, 2006 Ohio 1042, (2006).
A trial court does not conduct a trial de novo in such a proceeding. It may base its decision on a review of the evidence offered to the county’s board of revision. Black v. Bd. of Revision, 16 Ohio St. 3d 11, 475 N.E.2d 782 (1985).
In reviewing a board of revision's valuation of property, the common pleas court should make its own independent decision but is not required to conduct an independent proceeding. It should reach its own decision without any deference to the administrative finding. However, it should consider the administrative record, giving that record whatever weight the court deems appropriate, even if the court accepts additional evidence. Black v. Bd. of Revision (1985), 16 OS3d 11, 16 OBR 363, 475 NE2d 1264, Park Ridge Co. v. Franklin Cty. Bd. of Revision, (1987) 29 Ohio St. 3d 12, 504 N.E.2d 1116.
When challenging the valuation and assessment of real property for taxation, the taxpayer bears the burden of proving his or her right to a reduction in value. R.R.Z. Associates v. Cuyahoga Cty. Bd. of Revision (1988), 38 Ohio St. 3d 198, 527 N.E.2d 874. Fair market value is a question of fact primarily within the province of the taxing authorities. Cardinal Federal S. & L. Assn. v. Bd. of Revision (1975), 44 Ohio St. 2d 13, 336 N.E.2d 433, 73 Ohio Op. 2d 83, paragraph four of the syllabus. In an R.C. 5717.05 appeal, the common pleas court has wide discretion to determine the weight of the evidence and it need not adopt the valuation recommended by any expert witness. J.C. Penney Properties, Inc. v. Franklin Cty Bd. of Revision (Aug. 27, 1992) 1992 Ohio App. LEXIS 4583, Franklin App. Nos. 91AP-872, 91AP-873, 91AP-874, unreported.
In an action under R.C. 5857.05, the Court of Common Pleas must make an independent valuation on the property that is the subject of the appeal. JRB Holdings, LLC v. Wayne County Bd. of Revision, 2006 Ohio App. LEXIS 943, 2006 Ohio 1042, (2006).
A trial court does not conduct a trial de novo in such a proceeding. It may base its decision on a review of the evidence offered to the county’s board of revision. Black v. Bd. of Revision, 16 Ohio St. 3d 11, 475 N.E.2d 782 (1985).
In reviewing a board of revision's valuation of property, the common pleas court should make its own independent decision but is not required to conduct an independent proceeding. It should reach its own decision without any deference to the administrative finding. However, it should consider the administrative record, giving that record whatever weight the court deems appropriate, even if the court accepts additional evidence. Black v. Bd. of Revision (1985), 16 OS3d 11, 16 OBR 363, 475 NE2d 1264, Park Ridge Co. v. Franklin Cty. Bd. of Revision, (1987) 29 Ohio St. 3d 12, 504 N.E.2d 1116.
When challenging the valuation and assessment of real property for taxation, the taxpayer bears the burden of proving his or her right to a reduction in value. R.R.Z. Associates v. Cuyahoga Cty. Bd. of Revision (1988), 38 Ohio St. 3d 198, 527 N.E.2d 874. Fair market value is a question of fact primarily within the province of the taxing authorities. Cardinal Federal S. & L. Assn. v. Bd. of Revision (1975), 44 Ohio St. 2d 13, 336 N.E.2d 433, 73 Ohio Op. 2d 83, paragraph four of the syllabus. In an R.C. 5717.05 appeal, the common pleas court has wide discretion to determine the weight of the evidence and it need not adopt the valuation recommended by any expert witness. J.C. Penney Properties, Inc. v. Franklin Cty Bd. of Revision (Aug. 27, 1992) 1992 Ohio App. LEXIS 4583, Franklin App. Nos. 91AP-872, 91AP-873, 91AP-874, unreported.
Higher Percentage of Ohio Attorneys Report Doing "Pro Bono" Work in 2009
A higher percentage of reporting Ohio attorneys performed pro bono work in 2009 than those who reported for 2008, according to the second annual results of pro bono activities statewide.
The Supreme Court of Ohio, working in conjunction with the Ohio Legal Assistance Foundation (OLAF), asked lawyers in January to voluntarily and anonymously report their pro bono activities and financial support for legal aid programs in 2009. The program, referred to as “Justice in Action,” provides information used to identify gaps in the delivery of legal services and to strengthen the network of services available to Ohioans in need.
Seven percent of the state’s 35,000 attorneys on “active” status who received an electronic invitation to participate in the process reported information. About 66 percent of those who responded to the invitation reported pro bono work last year totaling more than 96,000 hours, which equaled an average of about 56.6 hours per attorney. About 61 percent of reporting attorneys performed pro bono work in 2008.
Using an average hourly rate of $135, Ohio attorneys who chose to report their pro bono service for 2009 provided more than $13 million in legal services to low-income Ohioans. The most common areas where attorneys offered their legal expertise for free included family law matters, wills and probate, and foreclosure issues.
Ohio lawyers supplemented their delivery of more than $13 million in direct legal services to the poor by making financial contributions of $250,000 to organizations that provide legal services to low-income Ohioans. The average contribution was $464 per attorney in calendar year 2009.
“Ohio’s attorneys continue to volunteer their time and efforts to meet the needs of Ohioans who cannot afford access to civil legal services,” said Steven C. Hollon, Supreme Court administrative director. “The Supreme Court will maintain its efforts to increase pro bono participation and provide access to justice for all.”
“Voluntary reporting is an important tool used by the legal aid delivery system to direct resources to areas of identified need,” said Jane Taylor, OLAF Associate Director for Pro Bono. “OLAF is grateful to those attorneys who reported their activities, and because it will help us to better serve Ohio’s low-income residents, we encourage the many, many lawyers whom we know perform pro bono work to report it, voluntarily and anonymously, each January.”
Improvements made to the 2009 reporting program more reliably reflect pro bono legal services in the state because fewer responses contained information about pro bono work outside the state.
In September 2007, the Supreme Court issued its “Statement Regarding the Provision of Pro Bono Legal Services by Ohio Lawyers,” urging them to “engage in new or additional pro bono opportunities.” In addition, the Court announced its intention to document the efforts of the legal profession to ensure equal access to justice by working with OLAF.
Access the report.
Contact: Chris Davey or Bret Crow at 614.387.9250.
The Supreme Court of Ohio, working in conjunction with the Ohio Legal Assistance Foundation (OLAF), asked lawyers in January to voluntarily and anonymously report their pro bono activities and financial support for legal aid programs in 2009. The program, referred to as “Justice in Action,” provides information used to identify gaps in the delivery of legal services and to strengthen the network of services available to Ohioans in need.
Seven percent of the state’s 35,000 attorneys on “active” status who received an electronic invitation to participate in the process reported information. About 66 percent of those who responded to the invitation reported pro bono work last year totaling more than 96,000 hours, which equaled an average of about 56.6 hours per attorney. About 61 percent of reporting attorneys performed pro bono work in 2008.
Using an average hourly rate of $135, Ohio attorneys who chose to report their pro bono service for 2009 provided more than $13 million in legal services to low-income Ohioans. The most common areas where attorneys offered their legal expertise for free included family law matters, wills and probate, and foreclosure issues.
Ohio lawyers supplemented their delivery of more than $13 million in direct legal services to the poor by making financial contributions of $250,000 to organizations that provide legal services to low-income Ohioans. The average contribution was $464 per attorney in calendar year 2009.
“Ohio’s attorneys continue to volunteer their time and efforts to meet the needs of Ohioans who cannot afford access to civil legal services,” said Steven C. Hollon, Supreme Court administrative director. “The Supreme Court will maintain its efforts to increase pro bono participation and provide access to justice for all.”
“Voluntary reporting is an important tool used by the legal aid delivery system to direct resources to areas of identified need,” said Jane Taylor, OLAF Associate Director for Pro Bono. “OLAF is grateful to those attorneys who reported their activities, and because it will help us to better serve Ohio’s low-income residents, we encourage the many, many lawyers whom we know perform pro bono work to report it, voluntarily and anonymously, each January.”
Improvements made to the 2009 reporting program more reliably reflect pro bono legal services in the state because fewer responses contained information about pro bono work outside the state.
In September 2007, the Supreme Court issued its “Statement Regarding the Provision of Pro Bono Legal Services by Ohio Lawyers,” urging them to “engage in new or additional pro bono opportunities.” In addition, the Court announced its intention to document the efforts of the legal profession to ensure equal access to justice by working with OLAF.
Access the report.
Contact: Chris Davey or Bret Crow at 614.387.9250.
Thursday, June 03, 2010
Ohio Supreme Court decision: ‘Adam Walsh’ Provision Requiring Attorney General to Reclassify Sex Offenders Violates Separation of Powers
State v. Bodyke, Slip Opinion No. 2010-Ohio-2424.
Huron App. Nos. H-07-040, H-07-041, and H-07-042, 2008-Ohio-6387. Judgments of the court of appeals reversed.
Lundberg Stratton, O'Connor, and Lanzinger, JJ., concur.
Pfeifer, J., concurs in the syllabus and judgment.
O'Donnell, J., concurs in part and dissents in part.
Cupp, J., dissents.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2424.pdf
(June 3, 2010) In a narrowly tailored decision announced today, the Supreme Court of Ohio voided as unconstitutional two sections of the Ohio Adam Walsh Act (AWA) that authorize the state attorney general to reclassify sex offenders who had already been classified by judges under a previous version of the law, “Megan’s Law.” The Court held that the challenged provisions violate the separation-of-powers doctrine of the Ohio Constitution.
Today’s decision leaves in place all of the law enforcement registration and community notification requirements of the AWA applicable to sex offenders who were classified on or after the Jan. 1, 2008, effective date of that law, and reinstates the pre-AWA registration and community notification requirements that judges had ordered offenders to comply with pursuant to Megan’s Law.
In this case, Christian Bodyke, David Schwab and Gerald Phillips were separately convicted of sex-related crimes prior to 2007. Pursuant to the pre-AWA version of Ohio’s sex offender classification statute (known as Megan’s Law), the trial court in which they were convicted conducted a formal hearing in each case at which the judge reviewed factors enumerated in the statute and issued a final order assigning each of the offenders to a classification that imposed a duty of postrelease registration with the sheriff in their county of residence.
In 2007, the General Assembly enacted the AWA, which repealed the former Megan’s Law classification system and replaced it with a new statutory scheme in which persons convicted of sex crimes after the effective date of the act are categorized as Tier I, Tier II or Tier III offenders based solely on the offenses for which they were convicted. The AWA imposes new postrelease registration and community notification requirements for each tier of offenders that are more restrictive in most cases than the requirements imposed on similar offenders under Megan’s Law.
The 2007 legislation also includes provisions, codified in R.C. 2950.031 and 2950.032, that order the state attorney general to reclassify all sex offenders who had previously been classified by a court under the Megan’s Law scheme into one of the three new AWA tiers based solely on the crime for which they were convicted. The attorney general was ordered to notify these prior offenders that their reclassification would be effective Jan. 1, 2008, and that as of that date they would be subject to the new AWA registration and community notification requirements applicable to the tier of offenders into which they had been placed.
Bodyke, Schwab and Phillips received letters from the attorney general in November 2007 notifying them that pursuant to the AWA, as of Jan. 1, 2008, they would be reclassified as Tier III offenders and therefore subject to more stringent registration requirements and to community notification requirements to which they had not been subject under their judicially ordered classification under Megan’s Law. All three men appealed their reclassifications on various constitutional grounds to the 6th District Court of Appeals, which consolidated the cases for review. The 6th District rejected the appellants’ arguments, and affirmed their reclassification under the AWA as constitutional. Bodyke sought and was granted Supreme Court review of the 6th District’s decision.
Writing for a 5-1 majority of the Court in today’s decision, Justice Maureen O’Connor observed that, just as the judicial branch is bound by the constitution to faithfully apply the law as written by the legislature, the legislative and executive branches are barred by the constitution from enacting or enforcing laws that encroach on the powers of the judiciary.
In this case, she wrote: “The AWA’s provisions governing the reclassification of sex offenders already classified by judges under Megan’s Law violate the separation-of-powers doctrine for two related reasons: the reclassification scheme vests the executive branch with authority to review judicial decisions, and it interferes with the judicial power by requiring the reopening of final judgments. It is well settled that a legislature cannot enact laws that revisit a final judgment. We have held for over a century that ‘the Legislature cannot annul, reverse, or modify a judgment of a court already rendered ...’”
Citing the Supreme Court of Ohio’s 1902 decision in Gompf v. Wolfinger, Justice O’Connor wrote: “‘A judgment which is final by the laws existing when it is rendered cannot constitutionally be made subject to review by a statute subsequently enacted ...’ The reclassification scheme in the AWA works to ‘legislatively vacate the settled and journalized final judgments of the judicial branch of government.’ ... (T)he General Assembly cannot vest authority in the attorney general to reopen and revise the final decision of a judge classifying a sex offender.”
“The power to review and affirm, modify, or reverse other courts’ judgments is strictly limited to appellate courts (under) Section 3(B)(2), Article IV, Ohio Constitution. The AWA intrudes on that exclusive role and thus violates the separation-of-powers doctrine. Moreover, once the final judgment has been opened, the AWA requires that the attorney general ‘shall determine’ the new classifications of offenders and delinquent children who were classified by judges under the former statutes. ... In doing so, it violates a second prohibition by assigning to the executive branch the authority to revisit a judicial determination. ... Thus, we conclude that R.C. 2950.031 and 2950.032, which require the attorney general to reclassify sex offenders who have already been classified by court order under former law, impermissibly instruct the executive branch to review past decisions of the judicial branch and thereby violate the separation-of-powers doctrine. We further conclude that R.C. 2950.031 and 2950.032, which require the attorney general to reclassify sex offenders whose classifications have already been adjudicated by a court and made the subject of a final order, violate the separation-of-powers doctrine by requiring the opening of final judgments.”
The court’s decision also discussed an important legal doctrine, stare decisis, which provides that judges should follow prior, relevant precedent when deciding cases. Justice O’Connor, who authored the 2003 decision that announced the Ohio standard for overruling precedent, Galatis v. Westfield Insurance Co., clarified Ohio law on stare decisis in two important regards. First, quoting from this Court’s 1989 decision in Rocky River v. State Emp. Relations Bd., she reiterated the rule that ‘stare decisis applies to rulings rendered in regard to specific statutes, [but] it is limited to circumstances “where the facts of a subsequent case are substantially the same as a former case.”’ ... Noting that the AWA is substantially different from Megan’s Law, she concluded that the court’s prior decisions that had upheld that the constitutionality of Megan’s Law were not dispositive of Mr. Bodyke’s appeal, which involved a new statute, the AWA.
Second, Justice O’Connor wrote that “there is a more vital and compelling limitation on the doctrine as it has developed in Ohio: its inapplicability to constitutional claims.” Citing the Court’s decision in Rocky River, she noted that the Court then had acknowledged that stare decisis “does not apply with the same force and effect when constitutional interpretation is at issue.” She expressly stated in today’s opinion that “[n]othing in our decision in Galatis suggests otherwise. Rocky River retains its vitality, at least insofar as this principle is concerned: ‘Stare decisis is not inflexibly applicable to constitutional interpretation.’” Thus, as a result of today’s decision, “Stare decisis remains a controlling doctrine in cases presenting questions on the law of contracts, property, and torts, but it is not controlling in cases presenting a constitutional question.”
As the appropriate remedy for the separation of powers violations identified in today’s decision, the Court held that severance (deletion) of the reclassification provisions (R.C. 2950.031 and 2950.032) from the AWA while leaving the remainder of the statute in place would correct the constitutional defect identified by the Court without detracting from “the overriding objective of the General Assembly, i.e. to better protect the public from the recidivism of sex offenders.”
Justice O’Connor’s opinion was joined by Justices Evelyn Lundberg Stratton and Judith Ann Lanzinger. Justice Paul E. Pfeifer concurred in the majority’s judgment and syllabus holding.
Justice Terrence O’Donnell entered a separate opinion in which he concurred with the portion of the majority opinion with respect to its decision on separation of powers, but dissented from any discussion of stare decisis, which garnered only three votes, because it is not necessary to the determination of the separation of powers issue.
He wrote: “We usually decline to rule on questions that are not necessary to a proper disposition of a case. ... Here, there is no actual controversy between the parties over how the doctrine of stare decisis should apply when the meaning of the Constitution is at issue, and any attempt to unnecessarily decide that question in this case contravenes well-settled law that this court will not issue advisory opinions. ... I am reminded of (U.S. Supreme Court) Chief Justice Roberts’s statement in PDK Laboratories, Inc. v. United States Drug Enforcement Adm.... where he wrote that the ‘the cardinal principle of judicial restraint [is that] if it is not necessary to decide more, it is necessary not to decide more ...’”
In a separate dissenting opinion, Justice Robert R. Cupp disagreed with the majority’s conclusion that the reclassification provisions of the AWA violate the separation of powers doctrine by empowering the attorney general to overturn or vacate the final judgments of state courts. He wrote that, in his view, the inclusion of Bodyke’s classification as a sexually oriented offender in the trial court’s judgment entry in his case did not elevate that classification to a “final judicial judgment” because the classification was required as a matter of law under the former Megan’s Law scheme as a collateral consequence of Bodyke’s conviction for sexual battery.
Justice Cupp noted that in enacting the AWA, the legislature repealed the former offender categories set forth in Megan’s Law and replaced them with the three tiers of the current classification system. He wrote: “Rather than burden the courts with sifting the hundreds or thousands of sex offenders to which new and different requirements apply, the General Assembly assigned that administrative task to an executive officer, the attorney general. For the reasons explained above, however, this task neither requires nor permits the attorney general to open, overturn, or otherwise disturb the final judgments of conviction and sentence of any offender.”
Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.
Contacts
Jeffrey M. Gamso, 419.243.3800, for Christian Bodyke.
Russell V. Leffler, 419.668.8215, for the Huron County prosecutor’s office.
Benjamin C. Mizer, 614.466.8980, for Ohio Attorney General Richard Cordray.
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."
Huron App. Nos. H-07-040, H-07-041, and H-07-042, 2008-Ohio-6387. Judgments of the court of appeals reversed.
Lundberg Stratton, O'Connor, and Lanzinger, JJ., concur.
Pfeifer, J., concurs in the syllabus and judgment.
O'Donnell, J., concurs in part and dissents in part.
Cupp, J., dissents.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2424.pdf
(June 3, 2010) In a narrowly tailored decision announced today, the Supreme Court of Ohio voided as unconstitutional two sections of the Ohio Adam Walsh Act (AWA) that authorize the state attorney general to reclassify sex offenders who had already been classified by judges under a previous version of the law, “Megan’s Law.” The Court held that the challenged provisions violate the separation-of-powers doctrine of the Ohio Constitution.
Today’s decision leaves in place all of the law enforcement registration and community notification requirements of the AWA applicable to sex offenders who were classified on or after the Jan. 1, 2008, effective date of that law, and reinstates the pre-AWA registration and community notification requirements that judges had ordered offenders to comply with pursuant to Megan’s Law.
In this case, Christian Bodyke, David Schwab and Gerald Phillips were separately convicted of sex-related crimes prior to 2007. Pursuant to the pre-AWA version of Ohio’s sex offender classification statute (known as Megan’s Law), the trial court in which they were convicted conducted a formal hearing in each case at which the judge reviewed factors enumerated in the statute and issued a final order assigning each of the offenders to a classification that imposed a duty of postrelease registration with the sheriff in their county of residence.
In 2007, the General Assembly enacted the AWA, which repealed the former Megan’s Law classification system and replaced it with a new statutory scheme in which persons convicted of sex crimes after the effective date of the act are categorized as Tier I, Tier II or Tier III offenders based solely on the offenses for which they were convicted. The AWA imposes new postrelease registration and community notification requirements for each tier of offenders that are more restrictive in most cases than the requirements imposed on similar offenders under Megan’s Law.
The 2007 legislation also includes provisions, codified in R.C. 2950.031 and 2950.032, that order the state attorney general to reclassify all sex offenders who had previously been classified by a court under the Megan’s Law scheme into one of the three new AWA tiers based solely on the crime for which they were convicted. The attorney general was ordered to notify these prior offenders that their reclassification would be effective Jan. 1, 2008, and that as of that date they would be subject to the new AWA registration and community notification requirements applicable to the tier of offenders into which they had been placed.
Bodyke, Schwab and Phillips received letters from the attorney general in November 2007 notifying them that pursuant to the AWA, as of Jan. 1, 2008, they would be reclassified as Tier III offenders and therefore subject to more stringent registration requirements and to community notification requirements to which they had not been subject under their judicially ordered classification under Megan’s Law. All three men appealed their reclassifications on various constitutional grounds to the 6th District Court of Appeals, which consolidated the cases for review. The 6th District rejected the appellants’ arguments, and affirmed their reclassification under the AWA as constitutional. Bodyke sought and was granted Supreme Court review of the 6th District’s decision.
Writing for a 5-1 majority of the Court in today’s decision, Justice Maureen O’Connor observed that, just as the judicial branch is bound by the constitution to faithfully apply the law as written by the legislature, the legislative and executive branches are barred by the constitution from enacting or enforcing laws that encroach on the powers of the judiciary.
In this case, she wrote: “The AWA’s provisions governing the reclassification of sex offenders already classified by judges under Megan’s Law violate the separation-of-powers doctrine for two related reasons: the reclassification scheme vests the executive branch with authority to review judicial decisions, and it interferes with the judicial power by requiring the reopening of final judgments. It is well settled that a legislature cannot enact laws that revisit a final judgment. We have held for over a century that ‘the Legislature cannot annul, reverse, or modify a judgment of a court already rendered ...’”
Citing the Supreme Court of Ohio’s 1902 decision in Gompf v. Wolfinger, Justice O’Connor wrote: “‘A judgment which is final by the laws existing when it is rendered cannot constitutionally be made subject to review by a statute subsequently enacted ...’ The reclassification scheme in the AWA works to ‘legislatively vacate the settled and journalized final judgments of the judicial branch of government.’ ... (T)he General Assembly cannot vest authority in the attorney general to reopen and revise the final decision of a judge classifying a sex offender.”
“The power to review and affirm, modify, or reverse other courts’ judgments is strictly limited to appellate courts (under) Section 3(B)(2), Article IV, Ohio Constitution. The AWA intrudes on that exclusive role and thus violates the separation-of-powers doctrine. Moreover, once the final judgment has been opened, the AWA requires that the attorney general ‘shall determine’ the new classifications of offenders and delinquent children who were classified by judges under the former statutes. ... In doing so, it violates a second prohibition by assigning to the executive branch the authority to revisit a judicial determination. ... Thus, we conclude that R.C. 2950.031 and 2950.032, which require the attorney general to reclassify sex offenders who have already been classified by court order under former law, impermissibly instruct the executive branch to review past decisions of the judicial branch and thereby violate the separation-of-powers doctrine. We further conclude that R.C. 2950.031 and 2950.032, which require the attorney general to reclassify sex offenders whose classifications have already been adjudicated by a court and made the subject of a final order, violate the separation-of-powers doctrine by requiring the opening of final judgments.”
The court’s decision also discussed an important legal doctrine, stare decisis, which provides that judges should follow prior, relevant precedent when deciding cases. Justice O’Connor, who authored the 2003 decision that announced the Ohio standard for overruling precedent, Galatis v. Westfield Insurance Co., clarified Ohio law on stare decisis in two important regards. First, quoting from this Court’s 1989 decision in Rocky River v. State Emp. Relations Bd., she reiterated the rule that ‘stare decisis applies to rulings rendered in regard to specific statutes, [but] it is limited to circumstances “where the facts of a subsequent case are substantially the same as a former case.”’ ... Noting that the AWA is substantially different from Megan’s Law, she concluded that the court’s prior decisions that had upheld that the constitutionality of Megan’s Law were not dispositive of Mr. Bodyke’s appeal, which involved a new statute, the AWA.
Second, Justice O’Connor wrote that “there is a more vital and compelling limitation on the doctrine as it has developed in Ohio: its inapplicability to constitutional claims.” Citing the Court’s decision in Rocky River, she noted that the Court then had acknowledged that stare decisis “does not apply with the same force and effect when constitutional interpretation is at issue.” She expressly stated in today’s opinion that “[n]othing in our decision in Galatis suggests otherwise. Rocky River retains its vitality, at least insofar as this principle is concerned: ‘Stare decisis is not inflexibly applicable to constitutional interpretation.’” Thus, as a result of today’s decision, “Stare decisis remains a controlling doctrine in cases presenting questions on the law of contracts, property, and torts, but it is not controlling in cases presenting a constitutional question.”
As the appropriate remedy for the separation of powers violations identified in today’s decision, the Court held that severance (deletion) of the reclassification provisions (R.C. 2950.031 and 2950.032) from the AWA while leaving the remainder of the statute in place would correct the constitutional defect identified by the Court without detracting from “the overriding objective of the General Assembly, i.e. to better protect the public from the recidivism of sex offenders.”
Justice O’Connor’s opinion was joined by Justices Evelyn Lundberg Stratton and Judith Ann Lanzinger. Justice Paul E. Pfeifer concurred in the majority’s judgment and syllabus holding.
Justice Terrence O’Donnell entered a separate opinion in which he concurred with the portion of the majority opinion with respect to its decision on separation of powers, but dissented from any discussion of stare decisis, which garnered only three votes, because it is not necessary to the determination of the separation of powers issue.
He wrote: “We usually decline to rule on questions that are not necessary to a proper disposition of a case. ... Here, there is no actual controversy between the parties over how the doctrine of stare decisis should apply when the meaning of the Constitution is at issue, and any attempt to unnecessarily decide that question in this case contravenes well-settled law that this court will not issue advisory opinions. ... I am reminded of (U.S. Supreme Court) Chief Justice Roberts’s statement in PDK Laboratories, Inc. v. United States Drug Enforcement Adm.... where he wrote that the ‘the cardinal principle of judicial restraint [is that] if it is not necessary to decide more, it is necessary not to decide more ...’”
In a separate dissenting opinion, Justice Robert R. Cupp disagreed with the majority’s conclusion that the reclassification provisions of the AWA violate the separation of powers doctrine by empowering the attorney general to overturn or vacate the final judgments of state courts. He wrote that, in his view, the inclusion of Bodyke’s classification as a sexually oriented offender in the trial court’s judgment entry in his case did not elevate that classification to a “final judicial judgment” because the classification was required as a matter of law under the former Megan’s Law scheme as a collateral consequence of Bodyke’s conviction for sexual battery.
Justice Cupp noted that in enacting the AWA, the legislature repealed the former offender categories set forth in Megan’s Law and replaced them with the three tiers of the current classification system. He wrote: “Rather than burden the courts with sifting the hundreds or thousands of sex offenders to which new and different requirements apply, the General Assembly assigned that administrative task to an executive officer, the attorney general. For the reasons explained above, however, this task neither requires nor permits the attorney general to open, overturn, or otherwise disturb the final judgments of conviction and sentence of any offender.”
Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.
Contacts
Jeffrey M. Gamso, 419.243.3800, for Christian Bodyke.
Russell V. Leffler, 419.668.8215, for the Huron County prosecutor’s office.
Benjamin C. Mizer, 614.466.8980, for Ohio Attorney General Richard Cordray.
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."
Wednesday, June 02, 2010
Judge Collier's Criminal Docket for June 1, 2010
Medina County Prosecutor Dean Holman reports that the following defendants appeared in Judge Collier’s courtroom on June 1, 2010 for criminal cases:
Kevin Hildebrand, 38, of Vine Street in Sandusky, was sentenced to two years of community control sanctions on one count of Forgery, a fifth-degree felony. He also was ordered to pay $500 in restitution to his victim.
Chastin McLeod, 21, of Abbeyville Road in Medina, was sentenced to three years of community control sanctions on two counts of Trafficking in Marijuana, both of which are fifth-degree felonies. His vehicle was ordered forfeited to law enforcement.
Terry Akers, 45, of Kennebec Avenue in Akron, pleaded not guilty to one count of Trafficking in Cocaine, a fifth-degree felony. A jury trial is scheduled for July 21.
Christopher Combs, 48, of North Huntington Street in Medina, pleaded not guilty to five counts of Trafficking in Drugs, all of which are fourth-degree felonies. Forfeiture specifications are attached to all the charges. A jury trial is scheduled for September 13.
William Combs, 44, of Gary Boulevard in Brunswick, pleaded not guilty to two counts of Trafficking in Drugs, both of which are fourth-degree felonies. A jury trial is scheduled for September 13.
Rafael Cruz, 50, of Kenilworth Avenue in Cleveland, pleaded guilty and was sentenced to one year in prison on four counts of Theft, all of which are fifth-degree felonies, and one count of Attempted Theft, a first-degree misdemeanor.
Nichole Estremera, 18, of Anderson Drive in Brunswick, pleaded not guilty to one count of Trafficking in Marijuana Within the Vicinity of a Juvenile or School, a fourth-degree felony, and one count of Trafficking in LSD, a fifth-degree felony. A jury trial is scheduled for September 8.
Ryan Fletcher, 26, of Jester Court in Brunswick, pleaded not guilty to two counts of Deception to Obtain Dangerous Drugs, both of which are fifth-degree felonies. A jury trial is scheduled for August 30.
Laura Gandolf, 25, of Hudak Drive in Brunswick, pleaded not guilty to four counts of Trafficking in Cocaine Within the Vicinity of a Juvenile or School, all of which are fourth-degree felonies. A jury trial is scheduled for August 30.
Anthony Glover, 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 June 21.
Sherrie Hawkins-Smalls, 40, of Beverly Hills Drive in Brunswick, pleaded not guilty to one count of Trafficking in Cocaine Within the Vicinity of a Juvenile or School, a fourth-degree felony, and one count of Trafficking in Cocaine, a fifth-degree felony. A jury trial is scheduled for July 7.
Charles Hudson, 22, of Lafayette Road in Medina, pleaded not guilty to one count of Failure to Give Notice of Change of Address, a fourth-degree felony. A jury trial is scheduled for August 2.
Avery Jackson, 22, of Canterbury Drive in Medina, pleaded not guilty to one count of Trafficking in Cocaine Within the Vicinity of a Juvenile, a third-degree felony, and one count of Trafficking in Cocaine, a fifth-degree felony. A jury trial is scheduled for July 14.
Mark Kanner, 23, of Glenmont Drive in Brunswick, pleaded not guilty to one count of Trafficking in Cocaine and one count of Trafficking in Drugs, Counterfeit Controlled Substance, both of which are fifth-degree felonies. A jury trial is scheduled for September 13.
Terra Lawrence, 24, of Larkens Way in Medina, pleaded not guilty to one count of Permitting Drug Abuse, a fifth-degree felony. A jury trial is scheduled for September 7.
David Martin, 29, of Medina, pleaded not guilty to one count of Failure to Give Notice of Change of Address, a first-degree felony. A jury trial is scheduled for July 12.
Shelly Matovich, 38, of Glenbrook Drive in Brunswick, pleaded not guilty to two counts of Trafficking in Drugs, both of which are fifth-degree felonies. A jury trial is scheduled for September 15.
Brandon Paserk, 25, of Alice Avenue in Brunswick, pleaded not guilty to three counts of Trafficking in Drugs, all of which are fourth-degree felonies. A jury trial is scheduled for July 28.
Todd Rafuse, 34, of Chelsea Drive in Brunswick, pleaded not guilty to two counts of Trafficking in Drugs, one of which is a fourth-degree felony and one of which is a fifth-degree felony. A jury trial is scheduled for September 13.
Renee Roditis, 32, of Substation Road in Brunswick, pleaded not guilty to three counts of Trafficking in Drugs Within the Vicinity of a Juvenile, all of which are fourth-degree felonies. A jury trial is scheduled for August 30.
Carla Rohr, 27, of Old Eagle Drive in Brunswick, pleaded not guilty to one count of Permitting Drug Abuse, a fifth-degree felony. A jury trial is scheduled for September 1.
Leonard Rohr Jr., 28, of Old Eagle Drive in Brunswick, pleaded not guilty to two counts of Trafficking in Marijuana Within the Vicinity of a Juvenile, a fourth-degree felony. A jury trial is scheduled for September 8.
Darrah Rowe, 31, of West Glenwood Avenue in Akron, pleaded not guilty to two counts of Possession of Drugs, both of which are fifth-degree felonies. A jury trial is scheduled for September 1.
Christopher Ruiz, 23, of Center Road in Brunswick, pleaded not guilty to one count of Trafficking in Drugs, a fourth-degree felony, and one count of Trafficking in Marijuana, a fifth-degree felony. A jury trial is scheduled for September 15.
Tiffany Schaufele, 29, of Holland Road in Brook Park, pleaded not guilty to one count of Deception to Obtain a Dangerous Drug, a fourth-degree felony. A jury trial is scheduled for September 7.
John Seamon, 40, of Oak Street in Medina, pleaded no contest and was sentenced to five years in prison on the following charges: one count of Abduction, which carries a Firearm Specification; one count of Having Weapons While Under Disability; and one count of Burglary, all of which are third-degree felonies; and one count of Assault, a first-degree misdemeanor.
Steven Seamon, 38, of Oak Street in Medina, pleaded no contest and was sentenced to two years in prison on one count of Complicity to Commit Abduction and one count of Having Weapons While Under Disability, both of which are third-degree felonies; and one count of Assault, a first-degree misdemeanor.
Frank Steele, 38, of Beverly Hills Drive in Brunswick, pleaded not guilty to two counts of Trafficking in Heroin, both of which are fifth-degree felonies. A jury trial is scheduled for July 12.
Karen Werner, 46, of Beverly Hills Drive in Brunswick, pleaded not guilty to two counts of Trafficking in Cocaine, both of which are fifth-degree felonies. A jury trial is scheduled for September 7.
Andrea Williams, 24, of Beverly Hills Drive in Brunswick, pleaded not guilty to five counts of Trafficking in Cocaine, all of which are fifth-degree felonies. A jury trial is scheduled for September 8.
Kevin Hildebrand, 38, of Vine Street in Sandusky, was sentenced to two years of community control sanctions on one count of Forgery, a fifth-degree felony. He also was ordered to pay $500 in restitution to his victim.
Chastin McLeod, 21, of Abbeyville Road in Medina, was sentenced to three years of community control sanctions on two counts of Trafficking in Marijuana, both of which are fifth-degree felonies. His vehicle was ordered forfeited to law enforcement.
Terry Akers, 45, of Kennebec Avenue in Akron, pleaded not guilty to one count of Trafficking in Cocaine, a fifth-degree felony. A jury trial is scheduled for July 21.
Christopher Combs, 48, of North Huntington Street in Medina, pleaded not guilty to five counts of Trafficking in Drugs, all of which are fourth-degree felonies. Forfeiture specifications are attached to all the charges. A jury trial is scheduled for September 13.
William Combs, 44, of Gary Boulevard in Brunswick, pleaded not guilty to two counts of Trafficking in Drugs, both of which are fourth-degree felonies. A jury trial is scheduled for September 13.
Rafael Cruz, 50, of Kenilworth Avenue in Cleveland, pleaded guilty and was sentenced to one year in prison on four counts of Theft, all of which are fifth-degree felonies, and one count of Attempted Theft, a first-degree misdemeanor.
Nichole Estremera, 18, of Anderson Drive in Brunswick, pleaded not guilty to one count of Trafficking in Marijuana Within the Vicinity of a Juvenile or School, a fourth-degree felony, and one count of Trafficking in LSD, a fifth-degree felony. A jury trial is scheduled for September 8.
Ryan Fletcher, 26, of Jester Court in Brunswick, pleaded not guilty to two counts of Deception to Obtain Dangerous Drugs, both of which are fifth-degree felonies. A jury trial is scheduled for August 30.
Laura Gandolf, 25, of Hudak Drive in Brunswick, pleaded not guilty to four counts of Trafficking in Cocaine Within the Vicinity of a Juvenile or School, all of which are fourth-degree felonies. A jury trial is scheduled for August 30.
Anthony Glover, 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 June 21.
Sherrie Hawkins-Smalls, 40, of Beverly Hills Drive in Brunswick, pleaded not guilty to one count of Trafficking in Cocaine Within the Vicinity of a Juvenile or School, a fourth-degree felony, and one count of Trafficking in Cocaine, a fifth-degree felony. A jury trial is scheduled for July 7.
Charles Hudson, 22, of Lafayette Road in Medina, pleaded not guilty to one count of Failure to Give Notice of Change of Address, a fourth-degree felony. A jury trial is scheduled for August 2.
Avery Jackson, 22, of Canterbury Drive in Medina, pleaded not guilty to one count of Trafficking in Cocaine Within the Vicinity of a Juvenile, a third-degree felony, and one count of Trafficking in Cocaine, a fifth-degree felony. A jury trial is scheduled for July 14.
Mark Kanner, 23, of Glenmont Drive in Brunswick, pleaded not guilty to one count of Trafficking in Cocaine and one count of Trafficking in Drugs, Counterfeit Controlled Substance, both of which are fifth-degree felonies. A jury trial is scheduled for September 13.
Terra Lawrence, 24, of Larkens Way in Medina, pleaded not guilty to one count of Permitting Drug Abuse, a fifth-degree felony. A jury trial is scheduled for September 7.
David Martin, 29, of Medina, pleaded not guilty to one count of Failure to Give Notice of Change of Address, a first-degree felony. A jury trial is scheduled for July 12.
Shelly Matovich, 38, of Glenbrook Drive in Brunswick, pleaded not guilty to two counts of Trafficking in Drugs, both of which are fifth-degree felonies. A jury trial is scheduled for September 15.
Brandon Paserk, 25, of Alice Avenue in Brunswick, pleaded not guilty to three counts of Trafficking in Drugs, all of which are fourth-degree felonies. A jury trial is scheduled for July 28.
Todd Rafuse, 34, of Chelsea Drive in Brunswick, pleaded not guilty to two counts of Trafficking in Drugs, one of which is a fourth-degree felony and one of which is a fifth-degree felony. A jury trial is scheduled for September 13.
Renee Roditis, 32, of Substation Road in Brunswick, pleaded not guilty to three counts of Trafficking in Drugs Within the Vicinity of a Juvenile, all of which are fourth-degree felonies. A jury trial is scheduled for August 30.
Carla Rohr, 27, of Old Eagle Drive in Brunswick, pleaded not guilty to one count of Permitting Drug Abuse, a fifth-degree felony. A jury trial is scheduled for September 1.
Leonard Rohr Jr., 28, of Old Eagle Drive in Brunswick, pleaded not guilty to two counts of Trafficking in Marijuana Within the Vicinity of a Juvenile, a fourth-degree felony. A jury trial is scheduled for September 8.
Darrah Rowe, 31, of West Glenwood Avenue in Akron, pleaded not guilty to two counts of Possession of Drugs, both of which are fifth-degree felonies. A jury trial is scheduled for September 1.
Christopher Ruiz, 23, of Center Road in Brunswick, pleaded not guilty to one count of Trafficking in Drugs, a fourth-degree felony, and one count of Trafficking in Marijuana, a fifth-degree felony. A jury trial is scheduled for September 15.
Tiffany Schaufele, 29, of Holland Road in Brook Park, pleaded not guilty to one count of Deception to Obtain a Dangerous Drug, a fourth-degree felony. A jury trial is scheduled for September 7.
John Seamon, 40, of Oak Street in Medina, pleaded no contest and was sentenced to five years in prison on the following charges: one count of Abduction, which carries a Firearm Specification; one count of Having Weapons While Under Disability; and one count of Burglary, all of which are third-degree felonies; and one count of Assault, a first-degree misdemeanor.
Steven Seamon, 38, of Oak Street in Medina, pleaded no contest and was sentenced to two years in prison on one count of Complicity to Commit Abduction and one count of Having Weapons While Under Disability, both of which are third-degree felonies; and one count of Assault, a first-degree misdemeanor.
Frank Steele, 38, of Beverly Hills Drive in Brunswick, pleaded not guilty to two counts of Trafficking in Heroin, both of which are fifth-degree felonies. A jury trial is scheduled for July 12.
Karen Werner, 46, of Beverly Hills Drive in Brunswick, pleaded not guilty to two counts of Trafficking in Cocaine, both of which are fifth-degree felonies. A jury trial is scheduled for September 7.
Andrea Williams, 24, of Beverly Hills Drive in Brunswick, pleaded not guilty to five counts of Trafficking in Cocaine, all of which are fifth-degree felonies. A jury trial is scheduled for September 8.
Officer’s Unaided Visual Estimation of a Vehicle’s Speed Sufficient if Based on Training, Certification, Experience
Barberton v. Jenney, Slip Opinion No. 2010-Ohio-2420.
Summit App. No. 24423, 2009-Ohio-1985. Judgment of the court of appeals affirmed.
Pfeifer, Lundberg Stratton, O'Connor, Lanzinger, and Cupp, JJ., concur.
O'Donnell, J., dissents.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2420.pdf
(June 2, 2010) The Supreme Court of Ohio today ruled 5-1 that a police officer’s unaided visual estimation of a vehicle’s speed is sufficient to support a speeding conviction without independent verification of the vehicle’s speed if the officer is trained, certified by the Ohio Peace Officer Training Academy or a similar organization, and experienced in visually estimating vehicle speed.
In 2008 motorist Mark Jenney was convicted of speeding based on testimony by Copley police officer Christopher Santimarino that he observed Jenney’s SUV driving in the left lane “at a high rate of speed” which he visually estimated to be about 70 mph.
The 9th District Court of Appeals affirmed Jenney’s conviction on the basis of Santimarino’s visual estimate of his speed. Jenney sought and was granted Supreme Court review of the 9th District’s decision.
In an opinion authored by Justice Maureen O’Connor, she noted that a majority of the appellate districts that have considered the issue have held that an officer’s unaided visual estimation of a vehicle’s speed is sufficient to sustain a conviction for speeding.
“The Eighth District stands alone in holding that an officer’s visual estimation of the speed of a vehicle is insufficient to support a finding of guilt, and we agree with the courts that have found the opposite,” Justice O’Connor wrote. “Rational triers of fact could find a police officer’s testimony regarding his unaided visual estimation of a vehicle’s speed, when supported by evidence that the officer is trained, certified by OPOTA or a similar organization, and experienced in making such estimations, sufficient to establish beyond a reasonable doubt the defendant’s speed. Independent verification of the vehicle’s speed is not necessary to support a conviction for speeding. The officer’s credibility remains an issue for the trier of fact.”
The Supreme Court affirmed the appeals court judgment and upheld Jenney’s conviction and fine.
Justice O’Connor’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Judith Ann Lanzinger and Robert R. Cupp.
In his dissent, Justice Terrence O’Donnell wrote that a police officer’s credibility – just like that of any other witness – is to be determined by the jury or other fact-finder, which can believe all, part, or none of the testimony. “Thus, I would assert that a broad standard as postulated by the majority that a trained, certified, and experienced officer’s estimate of speed is sufficient evidence to support a conviction for speeding eclipses the role of the fact-finder to reject such testimony and thus such testimony, if found not be credible, could, in some instances, be insufficient to support a conviction.”
Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.
Contacts
John Kim, 330.434.2000, for Mark Jenney.
Michelle Banbury, 330.472.1511, for the Barberton city prosecutor.
Benjamin C. Mizer, 614.466.8980, for Ohio Attorney General Richard Cordray.
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."
Summit App. No. 24423, 2009-Ohio-1985. Judgment of the court of appeals affirmed.
Pfeifer, Lundberg Stratton, O'Connor, Lanzinger, and Cupp, JJ., concur.
O'Donnell, J., dissents.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2420.pdf
(June 2, 2010) The Supreme Court of Ohio today ruled 5-1 that a police officer’s unaided visual estimation of a vehicle’s speed is sufficient to support a speeding conviction without independent verification of the vehicle’s speed if the officer is trained, certified by the Ohio Peace Officer Training Academy or a similar organization, and experienced in visually estimating vehicle speed.
In 2008 motorist Mark Jenney was convicted of speeding based on testimony by Copley police officer Christopher Santimarino that he observed Jenney’s SUV driving in the left lane “at a high rate of speed” which he visually estimated to be about 70 mph.
The 9th District Court of Appeals affirmed Jenney’s conviction on the basis of Santimarino’s visual estimate of his speed. Jenney sought and was granted Supreme Court review of the 9th District’s decision.
In an opinion authored by Justice Maureen O’Connor, she noted that a majority of the appellate districts that have considered the issue have held that an officer’s unaided visual estimation of a vehicle’s speed is sufficient to sustain a conviction for speeding.
“The Eighth District stands alone in holding that an officer’s visual estimation of the speed of a vehicle is insufficient to support a finding of guilt, and we agree with the courts that have found the opposite,” Justice O’Connor wrote. “Rational triers of fact could find a police officer’s testimony regarding his unaided visual estimation of a vehicle’s speed, when supported by evidence that the officer is trained, certified by OPOTA or a similar organization, and experienced in making such estimations, sufficient to establish beyond a reasonable doubt the defendant’s speed. Independent verification of the vehicle’s speed is not necessary to support a conviction for speeding. The officer’s credibility remains an issue for the trier of fact.”
The Supreme Court affirmed the appeals court judgment and upheld Jenney’s conviction and fine.
Justice O’Connor’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Judith Ann Lanzinger and Robert R. Cupp.
In his dissent, Justice Terrence O’Donnell wrote that a police officer’s credibility – just like that of any other witness – is to be determined by the jury or other fact-finder, which can believe all, part, or none of the testimony. “Thus, I would assert that a broad standard as postulated by the majority that a trained, certified, and experienced officer’s estimate of speed is sufficient evidence to support a conviction for speeding eclipses the role of the fact-finder to reject such testimony and thus such testimony, if found not be credible, could, in some instances, be insufficient to support a conviction.”
Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.
Contacts
John Kim, 330.434.2000, for Mark Jenney.
Michelle Banbury, 330.472.1511, for the Barberton city prosecutor.
Benjamin C. Mizer, 614.466.8980, for Ohio Attorney General Richard Cordray.
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."
Medina County Prison Report for 2009
According to the Medina County Clerk of Courts Criminal Division, in 2009 Judge Christopher Collier and Judge James Kimbler of the Medina County Common Pleas Court sent 447 defendants to prison. Of these defendants 33 were re-sentenced to prison because of a Ohio Supreme Court decision.
Jury Finds for Medina Chiropractor
Last week a jury in Judge Christopher Collier's courtroom found in favor of Medina chiropractor, Dr. Bruno C. Rossi and his employer, Medina Centerpointe Chiropractic, Inc. Mr. William Clink of Runsen Road in Medina had alleged that Dr. Rossi had negligently treated him for a back problem. He further alleged that the corporation was liable because at the time he was treated Dr. Rossi was employed by the corporation. His wife, Dorothy, joined in the lawsuit claiming that because of Dr. Rossi's negligence she had suffered a loss of consortium.
Originally the lawsuit had been assigned to Judge Kimbler. Judge Kimbler removed himself because a member of his staff used to work for Dr. Rossi. The case was then transferred to Judge Collier, who also removed himself. The Ohio Supreme Court then assigned Judge Robert Brown from the Wayne County Common Pleas Court to hear the case.
This trial was the second trial in a malpractice case in less than a month to return a verdict for the doctor being sued.
Originally the lawsuit had been assigned to Judge Kimbler. Judge Kimbler removed himself because a member of his staff used to work for Dr. Rossi. The case was then transferred to Judge Collier, who also removed himself. The Ohio Supreme Court then assigned Judge Robert Brown from the Wayne County Common Pleas Court to hear the case.
This trial was the second trial in a malpractice case in less than a month to return a verdict for the doctor being sued.
Tuesday, June 01, 2010
Judge Collier's Probation Department Report for May, 2010
Veronica Perry, Chief Probation Officer for the Medina County Common Pleas Court, reports that Judge Christopher Collier made the following assignments and/or referrals to the Probation Department in May of 2010:
Intensive Supervision Assignments: 2
General Supervision Assignments: 5
Bond Reporting Referrals: 4
Pre-Sentence Investigation Report Referrals: 11
Expungment Referrals: 2
Intensive Supervision Assignments: 2
General Supervision Assignments: 5
Bond Reporting Referrals: 4
Pre-Sentence Investigation Report Referrals: 11
Expungment Referrals: 2
Judge Kimbler's Probation Department Report for May, 2010
Veronica Perry, Chief Probation Officer for the Medina County Common Pleas Court, reports that Judge James Kimbler made the following assignments and/or referrals to her department in May of 2010:
Intensive Supervision Assignments: 4
General Supervision Assignments: 1
Community Service Referrals: 6
Bond Reporting Referrals: 3
Pre-sentence Investigation Referrals: 14
Intervention in Lieu Referrals: 2
Expungment Referrals: 4
Intensive Supervision Assignments: 4
General Supervision Assignments: 1
Community Service Referrals: 6
Bond Reporting Referrals: 3
Pre-sentence Investigation Referrals: 14
Intervention in Lieu Referrals: 2
Expungment Referrals: 4
Saturday, May 29, 2010
Judge Kimbler's Criminal Docket for May 27, 2010
Medina County Prosecutor Dean Holman reports that the following defendants appeared in Judge Kimbler's courtroom on Thursday, May 27, 2010:
Jennifer Endean, 32, of Cuyahoga Falls, was sentenced to three years of community control sanctions on one count of Identity Fraud and one count of Forgery, both of which are fifth-degree felonies.
Thong Phaphouvaninh, 49, of Apple Blossom Lane in Orville, was sentenced to two years of community control sanctions on one count of Safecracking, a fifth-degree felony.
Robert Turba, 37, of Olde Eight Road in Northfield, was sentenced to three years of community control sanctions on one count of Theft, a fifth-degree felony. He also was ordered to pay $500 restitution to his victim.
Shannon West, 19, of Smith Road in Spencer, was sentenced to one year in prison on one count of Theft from the Elderly, a third-degree felony.
Anthony Zavesky, 26, of Williamsburg Oval in Strongsville, was sentenced to three years of community control sanctions on one count of Trafficking in Cocaine and one count of Trafficking in Marijuana, both of which are fifth-degree felonies.
James Brienzo, 36, of First Street N.W. in Barberton, pleaded not guilty to one count of Complicity to Commit Theft, a fifth-degree felony. A jury trial is scheduled for July 26.
Darnell Milton, 40, of East 110th Street in Cleveland, pleaded not guilty to one count of Theft of a Motor Vehicle, a fourth-degree felony. A jury trial is scheduled for July 26.
Marvin Neal, 23, of Bursley Road in Spencer, pleaded not guilty to two counts of Felonious Assault, both of which are second-degree felonies. A jury trial is scheduled for July 27.
Donald Nichols, 30, of Indian Hollow Road in Grafton, pleaded not guilty to one count of Railroad Vandalism or Criminal Trespass; Interference with Operation of Train, a fourth-degree felony. A jury trial is scheduled for July 27.
Terry Starcher, 44, of 4th Street in Barberton, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for July 28.
Andrea Walker, 36, of Firsby Avenue in Cleveland, pleaded no contest and was sentenced to six months in prison on one count of Theft of a Motor Vehicle, a fourth-degree felony.
Jennifer Endean, 32, of Cuyahoga Falls, was sentenced to three years of community control sanctions on one count of Identity Fraud and one count of Forgery, both of which are fifth-degree felonies.
Thong Phaphouvaninh, 49, of Apple Blossom Lane in Orville, was sentenced to two years of community control sanctions on one count of Safecracking, a fifth-degree felony.
Robert Turba, 37, of Olde Eight Road in Northfield, was sentenced to three years of community control sanctions on one count of Theft, a fifth-degree felony. He also was ordered to pay $500 restitution to his victim.
Shannon West, 19, of Smith Road in Spencer, was sentenced to one year in prison on one count of Theft from the Elderly, a third-degree felony.
Anthony Zavesky, 26, of Williamsburg Oval in Strongsville, was sentenced to three years of community control sanctions on one count of Trafficking in Cocaine and one count of Trafficking in Marijuana, both of which are fifth-degree felonies.
James Brienzo, 36, of First Street N.W. in Barberton, pleaded not guilty to one count of Complicity to Commit Theft, a fifth-degree felony. A jury trial is scheduled for July 26.
Darnell Milton, 40, of East 110th Street in Cleveland, pleaded not guilty to one count of Theft of a Motor Vehicle, a fourth-degree felony. A jury trial is scheduled for July 26.
Marvin Neal, 23, of Bursley Road in Spencer, pleaded not guilty to two counts of Felonious Assault, both of which are second-degree felonies. A jury trial is scheduled for July 27.
Donald Nichols, 30, of Indian Hollow Road in Grafton, pleaded not guilty to one count of Railroad Vandalism or Criminal Trespass; Interference with Operation of Train, a fourth-degree felony. A jury trial is scheduled for July 27.
Terry Starcher, 44, of 4th Street in Barberton, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for July 28.
Andrea Walker, 36, of Firsby Avenue in Cleveland, pleaded no contest and was sentenced to six months in prison on one count of Theft of a Motor Vehicle, a fourth-degree felony.
Thursday, May 27, 2010
Ohio Supreme Court:Criminal Trial in Absentia Against Corporation Cannot Proceed in Municipal Court
Cleveland v. Washington Mut. Bank, Slip Opinion No. 2010-Ohio-2219.
Cuyahoga App. No. 91379, 2008-Ohio-6956. Judgment of the court of appeals affirmed, and cause remanded to the trial court.
Pfeifer, Lundberg Stratton, O'Donnell, Lanzinger, and Cupp, JJ., concur.
O'Connor, J., concurs separately.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2219.pdf
(May 26, 2010) The Supreme Court of Ohio today ruled that a state statute, which the city of Cleveland contended permitted a criminal trial in the absence of the defendant, does not apply to criminal trials against corporations in municipal court initiated by affidavit or complaint.
After failing to make ordered repairs to properties it owned in Cleveland and failing to appear at multiple hearings, the Cleveland Municipal Court found Washington Mutual Bank guilty of building and housing code violations and imposed a fine of $100,000. A three-judge panel of the Eighth District Court of Appeals overturned the housing court’s judgment and vacated the fine against the property owner. The City of Cleveland appealed and the Supreme Court agreed to take the case.
In an opinion authored by Justice Robert R. Cupp, the Court noted that R.C. 2941.47 only refers to a criminal case against a corporation instituted by indictment or information in common pleas courts not a misdemeanor prosecution instituted by complaint or affidavit in municipal courts.
“Because this criminal prosecution was brought by affidavit or complaint in municipal court rather than by indictment or information in common pleas court, R.C. 2941.47 does not apply,” Justice Cupp wrote.
Justice Cupp wrote that the cases cited by the city to prove its authority do not concern similar circumstances to this case. He also pointed out that the question of “whether R.C. 2941.47 provides for a trial of a corporation in absentia in proceedings other than those brought by affidavit or complaint in a municipal court” is not before the Court in this case.
The Supreme Court affirmed the appeals court judgment and remanded for further proceedings.
Justice Cupp’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Terrence O’Donnell and Judith Ann Lanzinger.
Justice Maureen O’Connor concurred separately and urged the General Assembly to study the problem of high rates of foreclosure in urban neighborhoods dominated by absentee landlords who permit properties to go into ruin and decay. “City prosecutors working in municipal and common pleas courts must have a mechanism through which they can constitutionally provide notice to landlords but proceed with trial in absentia if a landlord fails to respond to defend the claim. Legislative modification of R.C. 2941.47 to permit a municipal court to proceed in absentia is one manner in which this goal can be accomplished.”
Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.
Contacts
Karyn J. Lynn, 216.664.4504, for City of Cleveland.
Vladimir P. Belo, 614.227.2300, for Washington Mutual Bank.
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."
Cuyahoga App. No. 91379, 2008-Ohio-6956. Judgment of the court of appeals affirmed, and cause remanded to the trial court.
Pfeifer, Lundberg Stratton, O'Donnell, Lanzinger, and Cupp, JJ., concur.
O'Connor, J., concurs separately.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2219.pdf
(May 26, 2010) The Supreme Court of Ohio today ruled that a state statute, which the city of Cleveland contended permitted a criminal trial in the absence of the defendant, does not apply to criminal trials against corporations in municipal court initiated by affidavit or complaint.
After failing to make ordered repairs to properties it owned in Cleveland and failing to appear at multiple hearings, the Cleveland Municipal Court found Washington Mutual Bank guilty of building and housing code violations and imposed a fine of $100,000. A three-judge panel of the Eighth District Court of Appeals overturned the housing court’s judgment and vacated the fine against the property owner. The City of Cleveland appealed and the Supreme Court agreed to take the case.
In an opinion authored by Justice Robert R. Cupp, the Court noted that R.C. 2941.47 only refers to a criminal case against a corporation instituted by indictment or information in common pleas courts not a misdemeanor prosecution instituted by complaint or affidavit in municipal courts.
“Because this criminal prosecution was brought by affidavit or complaint in municipal court rather than by indictment or information in common pleas court, R.C. 2941.47 does not apply,” Justice Cupp wrote.
Justice Cupp wrote that the cases cited by the city to prove its authority do not concern similar circumstances to this case. He also pointed out that the question of “whether R.C. 2941.47 provides for a trial of a corporation in absentia in proceedings other than those brought by affidavit or complaint in a municipal court” is not before the Court in this case.
The Supreme Court affirmed the appeals court judgment and remanded for further proceedings.
Justice Cupp’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Terrence O’Donnell and Judith Ann Lanzinger.
Justice Maureen O’Connor concurred separately and urged the General Assembly to study the problem of high rates of foreclosure in urban neighborhoods dominated by absentee landlords who permit properties to go into ruin and decay. “City prosecutors working in municipal and common pleas courts must have a mechanism through which they can constitutionally provide notice to landlords but proceed with trial in absentia if a landlord fails to respond to defend the claim. Legislative modification of R.C. 2941.47 to permit a municipal court to proceed in absentia is one manner in which this goal can be accomplished.”
Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.
Contacts
Karyn J. Lynn, 216.664.4504, for City of Cleveland.
Vladimir P. Belo, 614.227.2300, for Washington Mutual Bank.
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."
Ohio Supreme Court: Criminal Complaint ‘Filed’ When Deposited With Clerk
Zanesville v. Rouse, Slip Opinion No. 2010-Ohio-2218.
Muskingum App. No. CT08-0035, 2009-Ohio-2689. Judgment of the court of appeals reversed, and judgment of the trial court reinstated.
Pfeifer, Lundberg Stratton, O'Connor, Lanzinger, and Cupp, JJ., concur.
O'Donnell, J., concurs separately.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2218.pdf
(May 26, 2010) The Supreme Court of Ohio today ruled that a document is “filed” when it is deposited properly for filing with the clerk of courts. The Supreme Court also ruled that even when a document lacks a clerk’s endorsement indicating it has been filed, filing may be proved by other means.
The case centers on whether a domestic violence case was validly filed with the clerk of the Zanesville Municipal Court. The clerk accepted the document and placed the document in a case file, but did not physically place a date stamp on the complaint document.
In the Court’s 6-0 decision, authored by Justice Judith Ann Lanzinger, she wrote: “We observe, however, that the filing of a document does not depend on the performance of a clerk’s duties. … The clerk’s duty to certify the act of filing arises only after a document has been filed.”
Justice Lanzinger pointed to several Supreme Court cases and the Rules of Superintendence that differentiate filing and certification of filing by the clerk. “In short, the time or date stamp does not cause the filing, the filing causes the certification,” she summarized.
As to situations when a document lacks an endorsement from a clerk, Justice Lanzinger wrote of other means available to prove a filing in this case.
“When the named defendant filed his motion to dismiss based upon lack of jurisdiction, Zanesville responded with a brief and exhibits including a printout of the electronic docket sheet and an affidavit from the clerk of courts as proof that the case had been filed. The clerk’s affidavit explains that it is clear from her records that the complaint was filed on February 28, 2006, because the electronic docket for this case indicates a ‘filing date’ of February 28, 2006. Furthermore, it was the clerk’s practice to create a new case file and corresponding electronic docket upon receipt of a complaint, and such a file and docket was created.”
The Supreme Court reversed the appeals court’s judgment and reinstated the trial court’s judgment.
Justice Lanzinger’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Maureen O’Connor and Robert R. Cupp.
Justice Terrence O’Donnell concurred separately, writing he would reverse the appeals court’s judgment based on the holding in King v. Penn, “which stands for the proposition that ‘[w]hen a paper is in good faith delivered to the proper officer to be filed, and by him received to be kept in its proper place in his office, it is ‘filed.’ The indorsement upon it by such officer of the fact and date of filing is but evidence of such filing.’”
Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.
Contacts
Scott T. Hillis, 740.455.3350, for the City of Zanesville.
Elizabeth N. Gaba, 614.586.1586, for Ronald Rouse Jr.
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."
Muskingum App. No. CT08-0035, 2009-Ohio-2689. Judgment of the court of appeals reversed, and judgment of the trial court reinstated.
Pfeifer, Lundberg Stratton, O'Connor, Lanzinger, and Cupp, JJ., concur.
O'Donnell, J., concurs separately.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2218.pdf
(May 26, 2010) The Supreme Court of Ohio today ruled that a document is “filed” when it is deposited properly for filing with the clerk of courts. The Supreme Court also ruled that even when a document lacks a clerk’s endorsement indicating it has been filed, filing may be proved by other means.
The case centers on whether a domestic violence case was validly filed with the clerk of the Zanesville Municipal Court. The clerk accepted the document and placed the document in a case file, but did not physically place a date stamp on the complaint document.
In the Court’s 6-0 decision, authored by Justice Judith Ann Lanzinger, she wrote: “We observe, however, that the filing of a document does not depend on the performance of a clerk’s duties. … The clerk’s duty to certify the act of filing arises only after a document has been filed.”
Justice Lanzinger pointed to several Supreme Court cases and the Rules of Superintendence that differentiate filing and certification of filing by the clerk. “In short, the time or date stamp does not cause the filing, the filing causes the certification,” she summarized.
As to situations when a document lacks an endorsement from a clerk, Justice Lanzinger wrote of other means available to prove a filing in this case.
“When the named defendant filed his motion to dismiss based upon lack of jurisdiction, Zanesville responded with a brief and exhibits including a printout of the electronic docket sheet and an affidavit from the clerk of courts as proof that the case had been filed. The clerk’s affidavit explains that it is clear from her records that the complaint was filed on February 28, 2006, because the electronic docket for this case indicates a ‘filing date’ of February 28, 2006. Furthermore, it was the clerk’s practice to create a new case file and corresponding electronic docket upon receipt of a complaint, and such a file and docket was created.”
The Supreme Court reversed the appeals court’s judgment and reinstated the trial court’s judgment.
Justice Lanzinger’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Maureen O’Connor and Robert R. Cupp.
Justice Terrence O’Donnell concurred separately, writing he would reverse the appeals court’s judgment based on the holding in King v. Penn, “which stands for the proposition that ‘[w]hen a paper is in good faith delivered to the proper officer to be filed, and by him received to be kept in its proper place in his office, it is ‘filed.’ The indorsement upon it by such officer of the fact and date of filing is but evidence of such filing.’”
Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.
Contacts
Scott T. Hillis, 740.455.3350, for the City of Zanesville.
Elizabeth N. Gaba, 614.586.1586, for Ronald Rouse Jr.
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."
Subscribe to:
Posts (Atom)
