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Tuesday, April 22, 2008

State of Ohio v. Jakeena Brown, Case no. 2007-0184
8th District Court of Appeals (Cuyahoga County)

Environmental Network Corp. et al. v. Goodman Weiss Miller, L.L.P., et al., Case no. 2007-0739
8th District Court of Appeals (Cuyahoga County)

Knickerbocker Properties Inc. XLII v. Delaware County Board of Revision, Delaware County Auditor and Olentangy Local Schools Board of Education , Case no. 2007-0896
State Board of Tax Appeals (Delaware County)

State of Ohio v. James Dankworth, Case no. 2007-12115
2nd District Court of Appeals (Miami County)


May Defendant Be Convicted on Two Different Counts of Aggravated Assault Based on Single Act?

State of Ohio v. Jakeena Brown, Case no. 2007-0184
8th District Court of Appeals (Cuyahoga County)

ISSUE:  Under R.C. 2941.25 and the Supreme Court of Ohio’s 1999 holding in State v. Rance, may a defendant be convicted and sentenced on two separate counts of aggravated assault based on the single criminal act of stabbing one person one time? 

BACKGROUND: Under R.C. 2941.25, often referred to as Ohio’s “multiple-count” statute, when the conduct of a defendant arguably constitutes more than one criminal violation, the state may charge the defendant with multiple crimes based on that conduct. However, if the defendant is found guilty on multiple counts, the trial court must then determine whether any or all of those counts involve “allied offenses of similar import,” and must merge all counts involving allied offenses into a single conviction for which the court will impose a single sentence. In State v. Rance (1999), the Supreme Court of Ohio held that to determine whether different criminal charges brought against a defendant based on the same conduct are “allied offenses” subject to merger, a trial court must examine the statutory elements of each charged offense, and must merge charges as allied offenses “if  the elements of the crimes correspond to such a degree that the commission of one crime will result in the commission of the other crime.”

In this case, Jakeena Brown of Cleveland was found guilty on two counts of aggravated assault and one count of domestic violence for stabbing her boyfriend, Kevin Johnson, once with a kitchen knife during an argument. One assault count alleged a violation of R.C. 2903.12(A)(1), which prohibits causing “serious physical harm to another.” The other assault count charged Brown with violating a different subsection of the same statute, R.C. 2903.12(A)(2), which prohibits causing physical harm to another “by means of a deadly weapon or dangerous ordnance.” The trial court entered separate convictions on each of the three counts and imposed a separate sentence for each conviction.

Brown appealed, arguing that the two aggravated assault charges should have been merged into a single conviction with a single sentence. The 8th District Court of Appeals reversed the trial court’s imposition of separate convictions on the two aggravated assault charges and remanded the case to the trial court for merger of those convictions and resentencing.

The state, represented by the Cuyahoga County prosecutor’s office, now asks the Supreme Court to reverse the 8th District’s ruling. The prosecutors argue that the court of appeals did not follow the requirements of Rance by comparing the elements of the two assault offenses. They assert that application of the Rance test to the different sections of R.C. 2903.12 under which Brown was charged shows that the “deadly weapon” form of aggravated assault is not an allied offense of the “serious physical harm” form, because it is possible for a defendant to commit either version of the crime without committing the other version.

Attorneys for Brown urge the Court to affirm the 8th District’s ruling that R.C. 2941.25 and the Rance test require a comparison of statutory elements only where a defendant has been charged with and found guilty of two different crimes arising from the same conduct. In this case, they argue, Brown was not charged under two different criminal statutes but rather with alternative forms of the same crime, (aggravated assault) that are set forth in the same statute and are therefore by definition “allied offenses of similar import.” They argue that applying Rance to allow multiple convictions and sentences for alternative versions of the same criminal offense based on a single act committed against a single victim is contrary to the legislative intent underlying R.C. 2941.25, and contrary to a long line of “double jeopardy” jurisprudence holding that an offender may not be subjected to multiple prosecutions for a single illegal act.

Contacts
Pamela Bolton, 216.443.7800, for the state and Cuyahoga County prosecutor’s office.

David M. King, 216.443.3667, for Jakeena Brown.

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What Proof Is Required To Establish ‘Better Result’ Client Claims Was Lost Via Lawyer’s Malpractice?

Environmental Network Corp. et al. v. Goodman Weiss Miller, L.L.P., et al., Case no. 2007-0739
8th District Court of Appeals (Cuyahoga County)

ISSUE: When a plaintiff alleges that malpractice by its attorney resulted in recovery of a lower amount through settlement of a civil lawsuit than the client would have been awarded by a judge or jury if the case had been tried to judgment, must the client prove a) that it would have won its lawsuit if the case had been tried to judgment, and b) a higher amount of damages the plaintiff would have recovered from the defendant if the attorney had not been negligent?

BACKGROUND: In this case the Cleveland law firm of Goodman Weiss Miller LLP (GWM) is appealing a 2005 jury verdict that awarded $2.4 million in legal malpractice damages to a group of the firm’s former clients including Environmental Network Corp (ENC). The malpractice award was based on the jury’s findings that GWM had breached its duty of professional care in representing ENC and other co-plaintiffs in a 2001 breach of contract lawsuit. The jury specifically found that negligent representation by GWM had placed the plaintiffs in a position where they were forced to accept a mid-trial settlement in which they recovered a significantly lower amount of damages from the defendants than they would have recovered in a court judgment if GWM had competently tried the case to its completion.

GWM appealed the trial court’s judgment to the 8th District Court of Appeals.  Among other alleged errors, they argued that the trial court gave the jury faulty instructions regarding the plaintiffs’ burden of proof. The law firm also alleged that the trial judge should have granted a post-verdict motion to set aside the jury verdict or order a new trial because the plaintiffs had not presented sufficient evidence to establish: a) that negligent representation by GWM was the proximate cause of the plaintiffs’ claimed losses; or b) that the plaintiffs would have recovered  a higher amount of damages from the defendants if the case had been tried to judgment. The 8th District rejected the law firm’s arguments and affirmed the jury award in favor of the plaintiffs.

GWM now asks the Supreme Court to overrule the 8th District and vacate the jury verdict. They argue that the trial and appellate courts both misapplied the Supreme Court of Ohio’s 1997 holding in Vahila v. Hall that a plaintiff alleging legal malpractice “is not required to prove in every instance” that it would have won its underlying case if its attorneys had provided competent representation. They assert that the trial court applied Vahila too broadly when it instructed jurors that ENC did not have to prove that it would have received a more favorable judgment in the breach of contract case, but was merely required to provide “some evidence” of the merits of its claim. 

Under a proper reading of Vahila, they argue, some plaintiffs might not be required to prove all of their underlying case if the malpractice they allege against their attorney does not hinge on his failure to obtain a judgment in that case; but substantial proof of the underlying case is required  in cases like this one, in which the major premise of the plaintiff’s malpractice claim is that a settlement obtained by his attorney was substantially less than the damage award the client could have recovered by winning in court.

Attorneys for ENC respond that the trial and appellate courts correctly interpreted and applied Vahila by finding that the jury’s award against GWM was based on substantial evidence produced by the plaintiffs showing the merits of their claims in the underlying breach of contract case. They note that the jury made six specific findings of substandard representation by the law firm during the aborted trial of EMC’s underlying case, including that the firm breached its duty to its clients by refusing to continue argument of the case or to seek recusal of the trial judge or a continuance despite EMC’s repeated demands that they do so, thereby leaving ENC with no option but to immediately accept an on-the-spot settlement offer it considered completely inadequate.

Contacts
Joel L. Levin, 216.928.0600, for the Environmental Network Corp. et al.

Richard A. Simpson, 202.662.2000, for Goodman Weiss Miller LLP.

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Does Failure to List Correct Address of Property Owner Invalidate Tax Valuation Complaint?

Knickerbocker Properties Inc. XLII v. Delaware County Board of Revision, Delaware County Auditor and Olentangy Local Schools Board of Education, Case no. 2007-0896
State Board of Tax Appeals (Delaware County)

ISSUE: When a complaint filed with a county Board of Revision (BOR) seeking an increase in the tax valuation of a parcel of real property lists an incorrect mailing address for the property owner, and the BOR relies on the faulty address in sending a required hearing notice to the property owner, does the failure of service on the property owner invalidate the results of an ensuing hearing at which the owner does not appear to oppose the complaint and the BOR grants the requested change in valuation?

BACKGROUND:  In December 2003, Knickerbocker Properties, Inc. XLII acquired ownership of a 300-unit apartment complex located in the Olentangy Local School District in Delaware County for a purchase price of $27.6 million. Because the purchase price of the complex was significantly higher than the tax valuation that had previously been established by the county auditor for that property, the school district initiated a complaint with the Delaware County Board of Revision (BOR) in March 2004 seeking an increase in the tax valuation to reflect the recent purchase price. On the complaint form it filed with the BOR, the school district listed the address of Knickerbocker Properties as “c/o Eproperty Tax Department 117, P.O. Box 4990, Scottsdale AZ 85261.” The address listed by Knickerbocker on the deed and conveyance fee form it filed with the Delaware County Recorder was “c/o Sentinel Real Estate Corp., 1251 Avenue of the Americas, New York, NY 10020.”

In compliance with R.C. 5715.19, the state law that regulates adjustments to property tax valuations, the Delaware County auditor mailed a notice to Knickerbocker that the school district had requested a new valuation of its property and that Knickerbocker had a right to oppose that request at a scheduled hearing before the BOR. The auditor’s office directed its notice to the Arizona address for Eproperty that was listed on the school district’s complaint form. Eproperty forwarded the notice to Knickerbocker’s tax address in New York. In a reply letter to the auditor displaying its New York address, Knickerbocker asked for a continuance of the original hearing date. The auditor sent Knickerbocker a second notice setting a later hearing date, but again directed that notice to the Arizona mailing address.  Having received no further contact from Knickerbocker, the BOR held its rescheduled hearing, at which the school board presented unopposed testimony supporting its complaint for revaluation of the property and Knickerbocker did not appear. The BOR approved the school board’s recommended revaluation.

Knickerbocker subsequently appealed the ruling of the BOR to the State Board of Tax Appeals (BTA), claiming that its due process rights had been violated because it was never served with a notice of the rescheduled hearing date and as a result was deprived of its statutory right to be heard by the BOR before its property taxes were increased. The BTA denied Knickerbocker’s appeal. 

The company now asks the Supreme Court to overrule the BTA and void the BOR’s revaluation of its property. They argue that the school board’s complaint was fatally defective because it lacked required information (i.e. Knickerbocker’s correct mailing address) necessary for the county auditor to make proper service upon the property owner. They urge the Court to rule that the school board’s defective filing deprived the BOR of jurisdiction to accept or consider its complaint.

Attorneys for the school district respond that there is no requirement in R.C. 5715.19 that a third party requesting revaluation of property must supply the auditor with contact information necessary to send notices to the property owner. They state that the Arizona address for Knickerbocker listed in the complaint was the latest information on file in the county auditor’s office at the time their complaint was drafted, and argue that in any case Knickerbocker was not “deprived of notice” regarding their complaint because the company admittedly received and responded to the initial hearing notice sent by the auditor. They also point out that Knickerbocker was clearly on notice that the auditor had used an outdated mailing address in his first mailing, and could have easily prevented any future problems by simply pointing out in their response to the first mailing that future notices in the case should be sent to their New York address.

Contacts
Todd W. Sleggs, 216.771.8990, for Knickerbocker Properties Inc. XLII.

Mark H. Gillis, 614.228.5822, for the Olentangy Local School District.

David Yost, 740.833.2690, for the Delaware County Auditor and Board of Revision.

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When Indictment Charges Multiple Crimes, Must Jail Time be ‘Triple Counted’ Toward All Charges?

State of Ohio v. James Dankworth, Case no. 2007-12115
2nd District Court of Appeals (Miami County)

ISSUES:

BACKGROUND: Under R.C. 2945.71 to 2945.73, Ohio trial courts are required to dismiss charges pending against a criminal defendant if the state does not bring the defendant to trial within 270 days after he is arrested. The statute includes a requirement that, when a defendant awaiting trial is held in jail in lieu of bond, every day of incarceration must be triple-counted toward the speedy trial deadline The law sets forth certain circumstances under which the speedy-trial “clock” in a case is tolled (temporarily stops running). One of these “tolling” circumstances is a period of delay resulting from a motion or continuance requested by the defendant.

In this case, James Dankworth of Miami County was arrested and charged with multiple criminal offenses arising from separate incidents that took place between July 12 and July 20, 2005, and involved several different victims. Dankworth was arrested on July 20, 2005, and subsequently charged with multiple felony counts including forgery, theft, burglary, arson and two counts of violating a civil protection order. He remained in jail in lieu of the bond set by the trial court. The state subsequently dismissed the charges on Nov. 30, 2005, and immediately refiled them on Dec. 1. The trial court set new bonds. Dankworth was again unable to post bond and remained in jail. On Dec. 16, 2005, a grand jury issued a single indictment charging him with the same felony counts for which he had been arrested in July. On Dec. 22, a joint demand for discovery signed by both the prosecutor and defense attorney was filed. At a subsequent hearing, defense counsel indicated that the state had provided its discovery at arraignment and that Dankworth had no discovery to provide to the state.

On Dec. 28, Dankworth obtained a new defense attorney, who entered a new discovery request. A pretrial conference was held on Jan. 3, 2006, and a trial date of Feb. 28 was set. On Feb. 16 the prosecutor sent defense counsel an amended witness list.  On that same date Dankworth filed a motion for dismissal of all charges against him, alleging that, because the days he had spent in jail in lieu of bond must be triple-counted,  the state had failed to bring him to trial within the 270-day “speedy trial” time limit  The trial court denied the motion to dismiss, ruling that because the state had charged Dankworth with multiple offenses arising from different incidents, the triple-counting provision of R.C. 2945.72 did not apply. The court also held that the second discovery request entered by Dankworth’s new defense attorney had tolled the running of his speedy trial time from Dec. 28, 2005, to Feb. 16, 2006. Dankworth entered a no-contest plea to each of the charges and was sentenced to seven years in prison.

Dankworth appealed the denial of his speedy trial dismissal motion. On review, the 2nd District Court of Appeals reversed the trial court and vacated his convictions and sentence. The appellate panel ruled that the trial court was correct in holding that the days Dankworth spent in jail in lieu of bond from July 20 to Dec. 16, 2005, should not be triple-counted. It held, however, that the Dec. 16 indictment consolidating all of the charges against him into a single case had triggered the requirement of triple-counting all subsequent days he spent in jail against his speedy-trial time. The 2nd District also ruled that the discovery request entered by his new lawyer had only tolled Dankworth’s speedy trial time from Dec. 28 until the Jan. 3 pretrial, and that the remainder of the 50 days between the discovery request and the state’s delivery of an amended witness list should not be tolled. Applying those findings, the court of appeals ruled that the state had delayed more than 270 “countable” days in bringing the charges against Dankworth to trial, and they must therefore be dismissed.

The state now asks the Supreme Court to overturn the 2nd District’s ruling and reinstate Dankworth’s convictions.  They cite prior court decisions holding that the triple-counting provision of R.C. 2945.72 does not apply in cases where a defendant is facing not a single charge or multiple charges arising from the same incident, but multiple charges based on unrelated  incidents that involve different facts, different victims and different witnesses. They argue that if the triple-counting requirement is invoked in such cases, prosecutors would have to simultaneously  develop and bring to trial several different felony cases against the same defendant in as little as 90 days. They also argue that the trial court was correct in holding that the defense’s second demand for discovery tolled the running of speedy trial time, and that the time taken by the state in providing an amended witness list was not beyond the limits of reasonableness.

Attorneys for Dankworth respond that the state’s delivery of an amended witness list just before the scheduled trial date was not “in response” to the new defense attorney’s pro forma demand for discovery, but was rather a necessary pretrial disclosure required by the rules of criminal procedure, and therefore the trial court erred in holding that Dankworth should receive no speedy trial credit for the 50 days he spent in jail between those two events. They also suggest that both the trial and appellate courts were wrong in holding that the pendency of multiple charges against a defendant bars the application of the triple-counting rule when 1) a defendant is arrested and charged with those offenses at the same time, and 2) he remains in jail awaiting prosecution on those charges without any other intervening offense or indictment. Thus, they argue, Dankworth’s speedy trial time began to run on the date of his arrest, and every day he remained in jail thereafter should have been triple-counted toward the 270-day limit regardless of whether the state chose to indict and try him separately on each of the charges, or to consolidate the charges in a single indictment subject to a single trial.

Contacts
James D. Bennett, 937.440.5960, for the state and Miami County prosecutor’s office.

L. Patrick Mulligan, 937.258.1800, for James Dankworth.

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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.