Ohio Law

News and Announcements from the Supreme Court of Ohio and Other Governmental Entities Within the Buckeye State.

Thursday, July 28, 2005

Supreme Court of Ohio Case Announcements and Administrative Actions - 7/28/2005

Here is the link.

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Elections Redux

According to a story in the Columbus Dispatch (subscription required) this morning, a coalition of voter advocates led by the League of Women Voters of Ohio plan to file a suit in the Toledo federal district court. The suit alleges that Ohio Secretary of State J. Kenneth Blackwell, Gov. Taft, and their predecessors failed to ensure the right to vote in Ohio. The filers are calling it a "historic, nonpartisan lawsuit." A Blackwell spokesman stated that the suit was "misdirected," and foisted any possible blame upon county boards of election.

The suit seems to be all about the procedural aspects of voting and not any one election.

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Wednesday, July 27, 2005

Ohio Board of Tax Appeals Decisions Posted 7/22/2005

MERIT DOCKET

2003-A-1326 National City Bank, Northeast, c/o National City Corporation v. Thomas M. Zaino, Tax Commissioner of Ohio. Corporation Franchise Tax. Tax Commissioner affirmed. Board members concur.

2003-A-1327 National City Bank, Northwest, c/o National City Corporation v. Thomas M. Zaino, Tax Commissioner of Ohio. Corporation Franchise Tax. Tax Commissioner affirmed. Board members concur.

2003-A-1328 National City Bank, Cleveland (n/k/a National City Bank), c/o National City Corporation v. Thomas M. Zaino, Tax Commissioner of Ohio. Corporation Franchise Tax. Tax Commissioner affirmed. Board members concur.

2003-A-1329 National City Bank, Columbus, c/o National City Corporation v. Thomas M. Zaino, Tax Commissioner of Ohio. Corporation Franchise Tax. Tax Commissioner affirmed. Board members concur.

2003-A-1330 National City Bank, Dayton c/o National City Corporation v. Thomas M. Zaino, Tax Commissioner of Ohio. Corporation Franchise Tax. Tax Commissioner affirmed. Board members concur.

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Supreme Court of Ohio Decisions Released 7/27/2005

Wednesday, July 27, 2005

2003-1710. Cambridge Commons Ltd. Partnership v. Guernsey Cty. Bd. of Revision, 2005-Ohio-3558.
Board of Tax Appeals, No. 2002-V-1272. Decision affirmed.
Moyer, C.J., Resnick, Pfeifer, Lundberg Stratton, O'Connor, O'Donnell and Lanzinger, JJ., concur.
Opinion: http://www.sconet.state.oh.us/rod/newpdf/0/2005/2005-Ohio-3558.pdf

2004-0819. Brickman & Sons, Inc. v. Natl. City Bank, 2005-Ohio-3559.
Cuyahoga App. No. 81428, 2004-Ohio-1447. Judgment reversed.
Moyer, C.J., Resnick, Pfeifer, Lundberg Stratton, O'Connor, O'Donnell and Lanzinger, JJ., concur.
Opinion: http://www.sconet.state.oh.us/rod/newpdf/0/2005/2005-Ohio-3559.pdf
Summary: Administrative Judge May Reassign a Case Without Stating Reason When Reason is Clear From Record

2004-1301. Ward v. Kroger Co., 2005-Ohio-3560.
Jefferson App. No. 03 JE 40, 2004-Ohio-3637. Judgment affirmed.
Moyer, C.J., Resnick, Pfeifer, Lundberg Stratton, O'Connor, O'Donnell and Lanzinger, JJ., concur.
Opinion: http://www.sconet.state.oh.us/rod/newpdf/0/2005/2005-Ohio-3560.pdf
Summary: Court Appeals in Workers’ Comp Cases Limited to Conditions Addressed In Administrative Order

2004-1435. State ex rel. Bryson v. GAC Merchandising, Inc., 2005-Ohio-3556.
Franklin App. No. 03AP-650, 2004-Ohio-3723. Judgment affirmed consistent with the opinion of the court of appeals.
Moyer, C.J., Pfeifer, Lundberg Stratton, O'Connor and Lanzinger, JJ., concur.
Resnick and O'Donnell, JJ., dissent and would reverse the judgment of the court of appeals.
Opinion: http://www.sconet.state.oh.us/rod/newpdf/0/2005/2005-Ohio-3556.pdf

2004-1535. State ex rel. McCoy v. Indus. Comm., 2005-Ohio-3555.
Franklin App. No. 03AP-886, 2004-Ohio-4219. Judgment affirmed consistent with the opinion of the court of appeals.
Moyer, C.J., Resnick, Pfeifer, Lundberg Stratton, O'Connor, O'Donnell and Lanzinger, JJ., concur.
Opinion: http://www.sconet.state.oh.us/rod/newpdf/0/2005/2005-Ohio-3555.pdf

2004-1615. Akins v. Harco Ins. Co., 2005-Ohio-3557.
Lucas App. No. L-03-1279, 158 Ohio App.3d 4267, 2004-Ohio-4267. Discretionary appeal of Old Republic Insurance Company accepted, discretionary appeal of Owners Insurance Company not accepted, and judgment reversed in part.
Moyer, C.J., Lundberg Stratton, O'Connor and O'Donnell, JJ., concur.
Resnick and Pfeifer, JJ., dissent.
Lanzinger, J., not participating.
Opinion: http://www.sconet.state.oh.us/rod/newpdf/0/2005/2005-Ohio-3557.pdf

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Tuesday, July 26, 2005

Harper's Story Claims Ohio Presidential Election Was Hijacked

A story in the August 2005 issue of Harper's is entitled, "None Dare Call It Stolen." It concerns the 2004 presidential election and the author's concerns that the media simply gave up on the story despite ample evidence available to them that would have proved that the election was not above-board. There is no hypertext link to the story, but the story is probably available on Lexis or Westlaw, other online databases, or at the local public library in hardcopy.

After author Mark Crispin Miller exhausts his supply of evidence, he states, "[t]his democracy can survive a plot to hijack an election. What it cannot survive is our indifference to, or unawareness of, the evidence that such a plot has succeeded."

While I don't personally agree with the author's conclusion, the story is a good read and takes up only six pages.

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Supreme Court of Ohio Case Announcements and Administrative Actions - 7/26/2005

Here is the link.

Later

CRS Report on US Supreme Court Appointment Process

This 53-page report from the Congressional Research Service is entitled Supreme Court Appointment Process: Roles of the President, Judiciary Committee, and Senate. For those of you interested in this process, it should provide insight into the coming battle over the Roberts nomination.

Thanks to beSpacific for the tip.

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Monday, July 25, 2005

National Sex Offender Public Registry Now Online

21 states for now, including Ohio. I saw this last week, but a post on the Stark County Law Library Blog jogged my memory. Here is the link for the site.

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Supreme Court of Ohio Oral Arguments - 7/26/2005

Criminal Sentencing – Must Jury Make All Findings To Justify Non-Minimum, Consecutive Sentences?

State v. Foster, Case no. 2004-1568
Licking County

State v. Quinones, Case no. 2004-1771
Cuyahoga County

NOTE: These two cases will be argued separately before the Supreme Court at its July 26, 2005 session. The cases are summarized together below because they address the same legal issues, and the parties have advanced very similar arguments regarding the constitutionality of Ohio 's current criminal sentencing scheme.

ISSUE: Under the U.S. Supreme Court's 2004 decision in Blakely v. Washington, do current Ohio criminal sentencing laws violate the U.S. Constitution by: 1) authorizing judges, rather than juries, to make factual findings that justify increasing an offender's sentence from the statutory minimum for his offense to a non-minimum or maximum sentence, and 2) empowering judges, rather than juries, to make findings that justify imposition of consecutive (rather than concurrent) prison sentences against a defendant convicted of multiple offenses?

BACKGROUND: In a 5-4 decision issued in June 2004, the U.S. Supreme Court ruled that a Washington state sentencing statute violated the constitutional due process rights of a criminal defendant, Ralph Blakely. Blakely entered a guilty plea and was convicted of 2nd degree kidnapping for the knifepoint abduction of his estranged wife. Under Washington 's statutory scheme of determinate sentences for various offenses, the “standard sentencing range” for 2nd degree kidnapping was from 49 to 53 months of imprisonment. Rather than imposing a sentence in that range, however, the trial judge exercised his discretion under a provision in the Washington statute that allowed judges to impose an enhanced or “exceptional” sentence – in Blakely's case a term of 90 months in prison – based on the judge's finding from the facts of the case that the offender had acted with “deliberate cruelty” in the commission of his crime.

In a 2000 case, Apprendi v. New Jersey, the U.S. Supreme Court had previously held that a defendant's due process and jury trial rights were violated when a judge (rather than the jury) made factual findings that increased a defendant's sentence “to a penalty exceeding the statutory maximum” for the offense of which the defendant was convicted by a jury or admitted in a guilty plea. The majority opinion in Blakely expanded on Apprendi by holding that the “statutory maximum” sentence that cannot be exceeded based on a judicial finding is not the maximum sentence that could legally be imposed for the charged offense after additional findings have been made, but is rather “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”

In two cases to be argued separately before the Supreme Court of Ohio on July 26, criminal defendants Jason Quinones of Cleveland and Andrew Foster of Licking County ask the Court to find that provisions of Ohio's current criminal sentencing statute, R.C. 2929, under which they were sentenced are unconstitutional because, contrary to Blakely, Ohio's sentencing scheme allows judges to increase the severity of a defendant's sentence based on the judge's finding of additional facts that have not been proved by the state to a jury or admitted by the defendant.

Quinones was charged with sexually molesting three different minor girls after he deliberately cultivated a trusting relationship with their families to gain access to the victims. He accepted a plea bargain in which he pleaded guilty to one count of rape and three counts of unlawful sexual contact with a minor. As justification for sentencing Quinones to the maximum statutory sentences for his crimes (10 years' imprisonment for rape and 18 months each for two of the unlawful sexual conduct charges), and ordering that his sentences be served consecutively rather than concurrently, the trial judge followed the requirements set forth in R.C. 2929.14 by making specific on-the-record findings that:

1) Imposing the statutory minimum sentences for Quinones' offenses would “demean the seriousness of the offender's conduct or will not adequately protect the public from future crime.”

2) Imposing the statutory maximum sentence for his offenses was appropriate because Quinones had “committed the worst form of the offense” and “posed the greatest likelihood of committing future crimes.”

3) Requiring Quinones to serve his 10-year rape sentence and two of his sentences for unlawful sexual contact consecutively rather than concurrently was justified because consecutive sentences “(are) necessary to protect the public from future crime or to punish the offender,” and that “consecutive sentences are not disproportionate to the seriousness of the offender's conduct.”

Foster was convicted of 26 felony charges including multiple counts of breaking and entering and grand theft in connection with a nine-month string of burglaries from commercial buildings for which Foster had either made keys for the owner or otherwise gained access through his training as a professional locksmith. He waived a jury trial, and was convicted for all of the charged break-ins plus additional counts of forgery and one count of engaging in a pattern of corrupt activity. The trial judge sentenced Foster to prison terms of six months for each of 14 fourth and fifth degree felony charges, and imposed a two-year term for the pattern of corrupt activity charge, and ordered that those terms be served consecutively—yielding a total sentence of nine years. In pronouncing sentence, the judge made findings prescribed in R.C. 2929.13 to justify imposition of prison terms rather than community control sanctions for Foster's fourth and fifth degree felony convictions, and also made the statutory findings required by R.C. 2929.14 (see above) to justify his order that the sentences be served consecutively rather than concurrently.

Foster and Quinones both appealed the trial courts' imposition of non-minimum and consecutive sentences in their respective cases. The 5th District Court of Appeals upheld Foster's sentence. The 8th District Court of Appeals found that the trial court had followed Ohio law in sentencing Quinones, but vacated his sentence and remanded the case to the trial court for re-sentencing based on the appellate panel's belief that Blakely had invalidated the provisions in Ohio's sentencing statute that empowered judges to make factual findings justifying non-minimum and/or consecutive sentences.

Foster appealed the 5th District's decision to the Supreme Court of Ohio, raising federal constitutional issues based on the Blakely and Apprendi cases. The state, represented by the Cuyahoga County prosecutor's office, appealed the 8th District's ruling in favor of Quinones. The state Supreme Court has agreed to hear both cases, and has since accepted and is holding approximately 50 similar criminal sentencing appeals from courts across the state pending its rulings in Quinones and Foster.

While Quinones urges the Court to affirm the court of appeals decision in his case, and Foster urges reversal of the appellate decision in his case, both defendants argue that the Justices should read Blakely as invalidating Ohio 's current statutes that allow judges to enhance criminal sentences by making independent judicial findings.

Attorneys for Quinones and Foster point to language in R.C. 2929.14 (B) that requires Ohio courts sentencing criminal offenders to impose the “shortest prison term authorized for the offense” unless the trial judge makes specific findings that justify a non-minimum sentence. Because these statutory sentence-enhancing findings go beyond the elements of the crimes that were admitted by either defendant when he entered his plea, and Blakely bars any enhancement of sentences based on judicial findings that go beyond the facts that were proved or admitted to convict the defendant, Quinones and Foster argue that the “statutory maximum” sentence that can be imposed against them under Ohio's current sentencing statutes without violating Blakely is the minimum sentence that can be imposed for their convictions. They argue further that, because current state law allows imposition of consecutive rather than concurrent prison terms only after statutory findings by a judge that have not been proved to a jury or admitted by the defendant, their cases should be remanded to the trial courts with directives to 1) reduce all sentences for their convictions to the statutory minimums, and 2) order that all prison terms to which they are re-sentenced be served concurrently.

Attorneys for the state dispute the defendants' interpretation of the Blakely decision. They urge the Court to hold that Blakely does not apply to Ohio's felony sentencing statutes because the Washington sentencing scheme analyzed and rejected in the Blakely case was significantly different than Ohio 's statutory sentencing process.

Under the Washington scheme rejected in Blakely, they argue, the legislature established a schedule of determinate sentences for specific crimes with narrow “standard sentencing ranges,” but then allowed judges to depart from those limits by imposing much-more-severe “exceptional” sentences based solely on an independent factual finding by the judge -- such as the Blakely trial court's finding that he acted with “deliberate cruelty.”

Under Ohio's recently overhauled felony sentencing scheme, the state asserts, elements such as the defendant's intent, deliberate infliction of physical harm and other aggravating factors are part of the charge which the state must prove to a jury (or to which the defendant must admit in a plea agreement) before sentence is passed. Rather than establishing narrow, fixed sentencing ranges, they note, the Ohio legislature has grouped felonies into five broad categories or degrees, has set a flexible but limited range of potential sentences for each category of offense, and has given judges discretion to impose either the minimum penalty or a more severe sanction within the authorized range if the judge makes specific findings established by the legislature to justify non-minimum, maximum or consecutive sentences.

The state argues that the statutory findings required to impose non-minimum or consecutive sentences under Ohio R.C. 2929.14 are not “findings of fact” like the Blakely finding of “deliberate cruelty,” but are rather judgments involving “sentencing factors” traditionally considered by judges, such as an individual offender's potential danger to the public and likelihood of repeat offenses. They note that these are factors that judges who decide hundreds of criminal cases each year are well-positioned to consider, but for which few jury members would have any experience on which to base a rational sentencing decision.

The prosecutors cite several U.S. Supreme Court decisions, including this year's post- Blakely ruling in United States v. Booker, in which the Court specifically affirmed the “broad discretion” of sentencing judges to analyze and apply traditional sentencing factors when selecting a specific sentence from within a defined, optional range of authorized sanctions.

Contacts
Lisa Reitz Williamson, 216.443.7730, for the state of Ohio and Cuyahoga County Prosecutor's Office.

Michael T. Fisher, 440.617.1528, for Jason Quinones.

Theresa G. Haire, 614.466.5394, for Andrew Foster.

Kenneth Oswalt, 740.349.6195, for the state of Ohio and Licking County Prosecutor's Office.

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Death Penalty

State v. Hand, Case no. 2003-1325
Delaware County

Gerald Hand appeals his death sentence for the aggravated murders of his fourth wife, Jill Hand, and Lonnie Welch, a longtime friend and former employee who was alleged at trial to be Hand's co-conspirator in the unsolved murders of his first two wives.

On the evening of Jan. 15, 2002 , Hand made a 911 call telling police that someone had just broken into the Delaware County home he shared with Jill, and he needed assistance. When police arrived, they found Jill dead in the front hall from a single gunshot to the head, and Welch's body in the back yard of a neighbor, approximately 50 yards from the Hands' front door. Welch had been shot once in the face from close range, and had five bullet wounds in his back. A ski mask was lying next to Welch's body.

Hand told police that Welch, whom he did not recognize because he was masked, had broken into the house and killed Jill and that Hand had then shot Welch in self-defense. When forensic evidence at the crime scene did not match Hand's description of events, and investigators learned that Hand had severe financial problems but had maintained premium payments on approximately $1 million in life insurance policies on his wife, he became a suspect. In subsequent interviews, both a relative and a former jail cellmate of Welch's told police he had admitted to them that he had conspired with Hand in the murders of both Hand's first wife, Donna, in 1976 and his second wife, Lori, in 1979. Both women were killed in the basement of Hand's home while he was away in the company of witnesses. In both cases the house was ransacked but there was no sign of forced entry. Neither Hand, who collected sizable insurance benefits in both cases, nor Welch were ever charged, and both earlier killings remained unsolved at the time of Jill's murder in 2002.

Based on this and other evidence, Hand was arrested and indicted for the murders of both Jill and Welch.

At trial, the judge admitted “hearsay” testimony by Welch's friends and family about his out-of-court statements admitting his own involvement and implicating Hand in the murders of Donna and Lori Hand, and about alleged recent conversations with his “boss” in which Welch said he was offered a large sum of cash to murder the boss's wife. This testimony was admitted over objections by Hand's attorneys pursuant to Ohio rules of evidence that allow third-party hearsay evidence when the person who actually made accusatory statements is unavailable to testify in person due to wrongdoing on the part of the defendant. The jury also heard testimony by a jail cellmate of Hand's about statements in which Hand had allegedly admitted to the cellmate that his purpose in killing Welch was to eliminate the risk of discovery of his past crimes and to conceal Hand's role in the murder of Jill. In June 2003, a jury convicted Gerald Hand of the aggravated murders of both his wife and Welch, and sentenced him to death.

Attorneys for Hand now assert 13 assignments of error by the trial court as grounds for the Supreme Court to reverse his convictions and/or reduce his sentence. Among these alleged errors, they claim that:

  • The trial court erred in admitting hearsay testimony about Welch's statements that he and Hand had conspired to kill Hand's first two wives. Under Evidence Rule 804(B)(6), Hand argues, hearsay evidence was inadmissible unless the state produced evidence other than the proffered hearsay testimony that supported the truthfulness of Welch's statements that he and Hand were co-conspirators, or evidence that disproved Hand's claim that he acted in self-defense and did not “wrongfully” kill Welch for the purpose of preventing his testimony. In the absence of any corroborating prosecution evidence that he killed Welch to silence him, Hand argues, the trial court improperly relied on the content of hearsay testimony as its sole basis for ruling that same hearsay testimony was admissible.
  • The state responds that third-party testimony relating Welch's out-of-court statements was properly admitted because Welch's unavailability to testify was a direct result of the defendant killing him, and forensic evidence from the crime scene contradicted Hand's self-defense claims and established that his shooting of Welch was “wrongful.” In addition, the state argues that the hearsay testimony about Welch's statements was properly admitted under separate evidence rules that allow such testimony when 1) the reported statements were against the speaker's interest (i.e., Welch's statements could have exposed him to prosecution for the conduct he admitted), and 2) the witnesses reporting Welch's statements included corroborating circumstances that supported their belief that what he told them was true.

  • Hand argues that the trial judge admitted prejudicial evidence regarding his prior acts and character that prevented him from getting a fair trial. The defense claims that prosecution evidence regarding Hand's fraudulent business practices and tax evasion was irrelevant to the murder charges against him, and unfairly portrayed him to jurors as the type of person who would commit murder. In addition, the defense says evidence introduced by the state that the defendant enjoyed reading “true crime” stories demonstrates the prosecution's strategy of attempting to convict Hand by making irrelevant attacks on his character rather than producing valid evidence of his guilt.
  • The state responds that evidence of “other acts” committed by the defendant was properly admitted as proof of his “motive, intent, preparation, plan, identity or absence of a mistake or accident.” Specifically, the state argues that evidence of Hand's bad business practices, tax evasion and financial problems helped to establish his financial motive for the killing of Jill. They also argue that Hand's reading of true crime stories was relevant to the state's argument that he faked details of the crime scene to support his manufactured version of the shootings.

  • Attorneys for Hand argue that the jury was improperly instructed during the guilt phase of the trial that it could find the defendant guilty of aggravated murder either as the actual shooter of Jill or as an aider and abettor of that crime if they believed that Welch shot her as Hand's co-conspirator. Because the state argued throughout the trial that Hand was the actual killer of both his wife and Welch, and only raised the complicity theory after all testimony in the case had been completed, the defense argues that Hand's right to a fair trial was violated because the defense was denied an opportunity to cross-examine witnesses or present its own case to the jury in a way that addressed charges of complicity rather than direct responsibility for Jill's murder.
  • Lawyers for the state respond that long-established case law holds that a defendant charged with a crime is also subject to conviction for complicity in that crime, and that jurors may be instructed on the issue of complicity whether or not that specific charge is included in the indictment or argued by the prosecution at trial.

Contacts
Marianne T. Hemmeter, 740.833.2690, for the state of Ohio and Delaware County prosecutor's office.

Pamela Prude-Smithers, 614.466.5394, for Gerald Hand.

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