Oral Argument Previews

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Wednesday, Nov. 7, 2007

Andrea Helen Sangrik, Trust v. Carole M. Radey, Trustee & Individually, Case no. 2006-2343
8th District Court of Appeals (Cuyahoga County)

State of Ohio v. Curtis Simpkins, Case no. 2007-0052
8th District Court of Appeals (Cuyahoga County)

Disciplinary Counsel v. Scott R. Roberts, Case no. 2007-1090
(Franklin County)

State of Ohio v. Vincent Colon, Case nos. 2006-2139 and 2006-2250


When Daughter Leaves Trust for Surviving Father, at His Death Do Trust Assets Pass to Her Heirs, or His?

Andrea Helen Sangrik, Trust v. Carole M. Radey, Trustee & Individually, Case no. 2006-2343
8th District Court of Appeals (Cuyahoga County)

ISSUE: Where a daughter who dies before her father placed her estate in a testamentary trust for the care and benefit of the father, but made no provision for distribution of any remaining trust proceeds after her father's death, when the father dies, should the probate court distribute the residual trust assets to the statutory heirs of the daughter as of the time of her death, or to the beneficiaries of the father's estate at the time of his death?

BACKGROUND: This complex probate law case asks the Court to interpret and apply Ohio's statutes governing the distribution of the proceeds of a testamentary trust following the death of the sole beneficiary of that trust when the grantor of the trust left no instructions for the disposition of any unexpended funds that might remain.

One set of potential heirs argues that the residual amount remaining in the trust should be distributed among the surviving relatives of the grantor, Andrea Sangrik, under Ohio's statute of descent and distribution applicable to persons who die intestate (without leaving a will). The trustee of the trust, Carole Radey, contends that the remaining trust proceeds should be distributed according to the will of Andrea's father, Andrew Sangrik, to whom she contends it was Andrea's intention to convey all of her assets at the time of her death.

Contacts
Angela G. Carlin, 216.241.6602, for Trustee Carole Radey.

John M. Widder, 216.283.8617, for the statutory heirs of Andrea Sangrik.

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May Post-Release Control Be Added Later When State Did Not Appeal Offender’s Original Sentence?

State of Ohio v. Curtis Simpkins, Case no. 2007-0052
8th District Court of Appeals (Cuyahoga County)

ISSUE: When a trial court's sentencing order imposing a term of imprisonment on a felony offender failed to include a period of post-release control by the Adult Parole Authority, and the state did not timely appeal the omission of a post-release control sanction from the sentence, may the offender later be resentenced to post-release control, or is the subsequent imposition of post-release control barred by the doctrine of res judicata (i.e., that if not timely appealed, matters decided by a court should not be disturbed)?

BACKGROUND: In 1998, Curtis Simpkins of Cleveland entered guilty pleas to three felony charges and was sentenced to eight years in prison. At the hearing where sentence was pronounced, the Cuyahoga County Court of Common Pleas failed to advise Simpkins that, after serving his prison term, Ohio's felony sentencing laws required that he be subject to an additional five years of post-release control under the supervision of the Ohio Adult Parole Authority.

In December 2005, shortly before Simpkins completed serving his prison sentence, the state moved for resentencing. Over Simpkins' objections, the trial court held a new sentencing hearing at which it reimposed the same eight-year prison term previously imposed, but added the requirement that Simpkins would be subject to post-release control after his release from prison. Simpkins appealed the after-the-fact addition of post-release control to his sentence. The 8th District Court of Appeals affirmed the action of the trial court.

Simpkins sought and was granted Supreme Court review of the 8th District's ruling. His attorneys argue that, just as the principle of res judicata bars an offender from later challenging the legality of his sentence if he failed to file a timely appeal immediately after sentencing, that principle also applies to bar the state from waiting more than seven years and then seeking revision of a trial court's defective sentencing order. They point to a 2006 Supreme Court of Ohio decision, Hernandez v. Kelly, in which this Court voided the after-the-fact imposition of post-release control on an offender who had completed the prison sentence imposed in his original sentencing order.

Arguing for the state, the Cuyahoga County prosecutor's office asserts that the Court's ruling in Hernandez is not applicable to this case because the defendant in Hernandez had already finished serving his original sentence and been released from prison prior to the state's motion for resentencing, whereas the motion for resentencing and imposition of post-release control in this case took place before Simpkins had completed his original sentence. The state argues that, because the legislature has mandated that a term of post-release control must be imposed on felony offenders, a felony sentence missing that component is legally void, and the state cannot “waive” its duty to seek correction of a void sentence unless it fails to take action before the offender has completed serving that sentence.

Contacts
David King, 216.443.3667, for Curtis Simpkins.

Matthew E. Meyer, 216.443.7800, for the State of Ohio and Cuyahoga County prosecutor's office.

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Attorney Discipline

Disciplinary Counsel v. Scott R. Roberts, Case no. 2007-1090
(Franklin County)

The Board of Commissioners on Grievances & Discipline has recommended that Columbus attorney Scott R. Roberts receive a public reprimand for violating two state attorney discipline rules by falsely notarizing a client's signature on a document when he had not personally witnessed the signature of the client, and later falsely signing the names of the same client and his wife to a settlement agreement with an insurance company and falsely notarizing those signatures in order to speed the couple's receipt of the proceeds of the settlement.

When Roberts subsequently forwarded the “expedited” settlement proceeds to the couple, the wife forged her husband's endorsement on the check, deposited it in a bank account and eventually stole the money from her husband.

Roberts and the Office of Disciplinary Counsel entered into a consent to discipline agreement in which both parties agreed that a stayed six-month license suspension was the appropriate sanction for his misconduct. However, the disciplinary board found that mitigating factors in the case including the clear absence of a selfish motive and Roberts' acknowledgement of and contrition for his actions called for a reduction of the sanction to a public reprimand.

The Office of Disciplinary Counsel has filed objections to the board's recommendation. It argues that, regardless of his unselfish motive, Roberts knowingly falsified legal documents, and past attorney discipline cases have established the principle that conduct involving fraud, deceit, dishonesty or misrepresentation is punishable by a license suspension, with the possibility that mitigating factors may justify a stay of that suspension. Accordingly, disciplinary counsel urges the Court to impose the sanction originally agreed to by the parties, which is a stayed six-month license suspension.

Roberts points to several attorney discipline cases involving similar misconduct in which the Court has ruled that strong mitigating evidence, such as that found by the board in this case, has made a reprimand rather than a license suspension the appropriate sanction.

Contacts
Jonathan Coughlan, 614.461.0256, for the Office of Disciplinary Counsel.

William Mann, 614.224.4114, for Scott Roberts.

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May Material Defect in Indictment Be Raised on Appeal If No Objection Was Made at Trial?

State of Ohio v. Vincent Colon, Case nos. 2006-2139 and 2006-2250

ISSUE: When a criminal indictment does not include an essential element of the charged offense, but the defendant fails to object to that deficiency at trial, has the defendant waived (given up) his right to challenge the sufficiency of the indictment, or may the defect in the indictment be raised for the first time in an appeal of the trial court's judgment?

BACKGROUND: Vincent Colon of Cleveland was charged with robbery in an indictment that failed to include the essential element that he acted “recklessly” in inflicting or attempting to inflict physical harm on an elderly neighbor when Colon tried to take the neighbor's wallet. At trial, Colon did not object to the defective indictment. He was convicted of robbery and sentenced to seven years in prison.

Colon appealed his conviction and sentence alleging a number of legal and procedural errors during his trial, including a claim that the indictment against him was fatally deficient because it failed to allege that he acted with the guilty mental state necessary to support a conviction for robbery. The 8th District Court of Appeals remanded the case to the trial court for resentencing based on an unrelated legal finding, but affirmed Colon's robbery conviction. The court of appeals specifically rejected Colon's argument regarding the defective indictment, holding that he could not raise that issue on appeal because his failure to raise it at trial constituted a permanent waiver of the issue.

The 8th District certified, however, that its ruling with regard to the appealability of the defective indictment was in conflict with rulings by two other court of appeals districts. The Supreme Court accepted the case to resolve the conflict among appellate districts, and also agreed to hear arguments on a closely related proposition of law raised by Colon as a discretionary appeal.

Attorneys for Colon urge the Court to follow rulings by the 1st and 3rd appellate districts holding that the state's failure to charge an essential element of a crime in an indictment renders the indictment fatally defective and requires reversal of a defendant's conviction regardless of whether the defendant challenges the validity of the indictment before trial, in the course of his trial or in a post-conviction appeal of the trial court's judgment.

The state, represented by the Cuyahoga County prosecutor's office, responds that under Ohio's rules of criminal procedure, a defendant wishing to challenge the sufficiency of an indictment based on the absence of an essential element of the charged offense must do so “during the pendency of the proceeding.” They assert that this phrase requires such a challenge to be made before the trial court has entered its judgment and pronounced sentence. The state contends that a defendant who fails to object to a deficient indictment until after his trial is completed has waived that issue, and therefore a reviewing court of appeals may only reverse his conviction if it finds “plain error,” i.e., finds that but for the defective indictment the defendant would have been acquitted of the charged offense. They argue that the facts of Colon's case do not support a finding of plain error, and urge the Court to affirm the action of the 8th District in upholding his robbery conviction.

Contacts
Cullen Sweeney, 216.443.3660, for Vincent Colon.

Jon W. Oebker, 216.443.8146, for the State of Ohio and Cuyahoga County prosecutor's office.

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.