Oral Argument Previews

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Wednesday, Oct. 15, 2008

Special Off-Site Session at Shelby County Courthouse

State of Ohio v. Michael Goldsberry, Case no. 2007-2182
3rd District Court of Appeals (Union County)

State of Ohio v. Kevin Peterson, Case no. 2007-2232
2nd District Court of Appeals (Montgomery County)

In Re: J. F., a Minor Child, Case no. 2007-2239
2nd District Court of Appeals (Greene County)

State of Ohio v. Corey Hoover, Case no. 2007-2295
3rd District Court of Appeals (Union County)


Is Sentence Imposing a Single Term of Community Control for Multiple Counts a ‘Final’ Order?

State of Ohio v. Michael Goldsberry, Case no. 2007-2182
3rd District Court of Appeals (Union County)

ISSUE: In a criminal case involving a defendant charged with multiple counts or offenses, is a trial court’s sentencing order imposing a single term of community control a “final” order subject to review by a court of appeals, or does the trial court’s failure to specify a separate sentence for each individual count render the sentencing order incomplete and therefore ineligible for appellate review?

BACKGROUND: In March 2005, Michael Goldsberry was charged in a single indictment with 10 felony counts of non-support of dependents, and entered guilty pleas to all charges. The trial court sentenced him to three years of “community control” (a range of penalties less severe than a prison term that includes probation, house arrest, commitment to a halfway house, etc.). The court’s sentencing order did not specify that the term of community control was imposed for any particular count or for all 10 of the counts to which Goldsberry had pleaded, but did state that any additional violations he committed during the three-year term of community control could result in a “maximum prison term up to 120 months.”

Goldsberry subsequently violated the terms of his community control order in November 2005 and again in January 2007. Following his second violation, the court sentenced him to six months in prison for each of the 10 non-support counts on which he was convicted, for a total of 60 months imprisonment.  Goldsberry, who was immediately sent to prison, appealed the validity of his sentence for violating community control. He argued that the trial court’s original sentencing order was invalid because it stated a maximum term of imprisonment to which he could be subject for a violation of community control, but did not comply with a statutory requirement that such orders must advise the defendant of a specific prison term that will be imposed if he commits a future violation.

The Third District Court of Appeals initially accepted the appeal, and the parties submitted written pleadings. However the court subsequently dismissed the case on its own motion. In its dismissal order, the Third District held that it lacked jurisdiction to hear Goldsberry’s appeal because the trial court’s March 2005 sentencing order had not specified which of the 10 non-support counts against him were covered by the three-year community control sanction, and therefore the sentencing order was incomplete and not a “final appealable order” subject to appellate review. Both Goldsberry and the Union County prosecutor’s office sought Supreme Court review of the Third District’s refusal to hear and decide Goldsberry’s appeal, citing conflicts with rulings by other Ohio court of appeals districts and with an earlier decision of the Third District. The Court agreed to hear arguments in the case to resolve the conflict among appellate districts.

Attorneys for Goldsberry urge the Court to reverse the Third District and hold that the trial court’s sentencing order in his case was a “final appealable order” because it provided a penalty for all of the counts to which he pleaded. They point to specific language in R.C. 2929.15 stating that the “duration of all community control sanctions imposed on an offender ... shall not exceed five years.” They assert that, because the trial court’s original sentencing order specified a three-year term of community control, and imposing that term separately for even two of Goldsberry’s 10 counts would have exceeded the statutory maximum of five years, the only lawful and reasonable interpretation of the sentencing order is that the three-year term was a cumulative sentence applicable to all 10 charges.

Attorneys for the Union County prosecutor’s office also urge the Court to reverse the Third District and direct it to hear and decide Goldsberry’s appeal. However they urge the Court not to adopt the legal rationale set forth by Goldsberry. Instead, they argue that the trial court’s January 2007 order imposing  a 60-month sentence for Goldsberry’s violation of community control was a final, appealable order over which the Third District had jurisdiction, because that order cleared up the ambiguity in the March 2005 sentencing order by specifically imposing a separate criminal sanction for each of the 10 counts on which Goldsberry was found guilty.

Contacts
David W. Phillips, 937.645.4190, for the state and Union County prosecutor’s office.

Alison Boggs, 937.578.0214, for Michael Goldsberry.

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Is Warrantless Search of Home Constitutional When Based on Police Look Through Basement Window?

State of Ohio v. Kevin Peterson, Case no. 2007-2232
2nd District Court of Appeals (Montgomery County)

ISSUE: Does a warrantless entry and search of a private home by police violate a resident’s constitutional right against unreasonable searches and seizures when the “exigent circumstance” justifying the search is based on what an officer saw by entering a side yard and looking into a basement window from within a few feet of the house?

BACKGROUND: In October 2004, Dayton police set up a nighttime surveillance of a private residence that had been identified by two informants as a suspected site of drug trafficking activity. After observing a van stop in front of the house and one passenger enter and leave within three minutes while a second  occupant of the van walked to a nearby street corner and talked on a cell phone, the surveillance team decided to conduct a “knock and advise,” a procedure in which officers knock on the front door of a residence, advise whoever answers that suspected drug activity has been reported at their address, and ask if that person will consent to a warrantless search of the premises. 

In executing the knock and advise, a total of eight officers were deployed on the front porch and at various locations around the house to prevent any occupants from exiting through the rear or throwing contraband out of other doors or windows. The officer in charge knocked on the front door and identified himself, and a resident of the house, Kevin Peterson, answered the door. A few seconds later Detective David House, who had entered the side yard and positioned himself within a few feet of the house, heard the sound of someone running inside the house. From his vantage point, House was able to look through a basement window and saw a person running down the basement stairs carrying a glass container. House ran to the front porch, announced that he was going to enter the house to prevent the destruction of evidence of drug trafficking, and forcibly entered the house without a warrant or Peterson’s consent. The other officers followed, forcing Peterson to the floor and handcuffing him. 

An immediate search of the basement disclosed a duffle bag containing illegal drugs and a gun, and a broken glass jar or beaker and liquid residue on the basement floor. Officers subsequently obtained a warrant to search the rest of the premises, where they found more drugs and other contraband. At trial, Peterson filed a motion to exclude all evidence procured through the warrantless search and the subsequent warranted search of the house, arguing that House and the other officers acted unconstitutionally in entering and searching the residence without a warrant. The trial court denied the motion, ruling that under the circumstances of the case, the police had reasonable grounds to conduct a warrantless search. Peterson appealed that ruling. 

On review, the Second District Court of Appeals reversed the trial court and granted Peterson’s motion to exclude all evidence obtained by the state through both the original warrantless search and the subsequent warranted search. The court of appeals held that House’s entry and search of the house was unreasonable because he had only been able to see something that gave him a reasonable suspicion that evidence was being destroyed by improperly intruding into the “curtilage” (land or yard surrounding a private residence) of the suspected drug house without a warrant. 

Attorneys from the Montgomery County prosecutor’s office now ask the Supreme Court to overrule the Second District and reinstate the evidence against Peterson. They argue that the prior complaints about drug activity they had received and the suspected drug trafficking incident officers had observed that evening gave them reasonable grounds to conduct a knock and advise operation at Peterson’s residence. Because the efficient conduct of the knock and advise operation required deployment of additional officers near the house to protect the officers approaching the front door and to prevent the flight of suspects or destruction of evidence, they assert, Detective House enjoyed a legal privilege to be in the curtilage of the suspected drug house, where he was able to see in plain sight a person within the house fleeing to the basement carrying what appeared to be illegal drugs. 

The state points to prior court decisions holding that police are not precluded from noticing and acting on evidence of illegal conduct within a private residence without a warrant when that evidence is “in plain sight” from a location where an officer has a legal right to be.

Attorneys for Peterson urge the Court to affirm the Second District’s ruling that the warrantless search conducted by Detective House was contrary to law. They point to several U.S. Supreme Court decisions holding that the owner or resident of a private home enjoys an expectation of privacy not only inside the four walls of the residence, but also in the adjacent yard and outdoor areas, and that any police entry into or search of either the home or curtilage without a warrant violates the Fourth Amendment right against unreasonable search and seizure.

In this case, they say, the Second District correctly ruled that officers conducting the knock and advise operation had a right to be on the front porch of the house and to observe anything inside that was in plain sight from that location, but had no right to trespass in the curtilage of the house so closely that they were able to peer into a basement window and observe things that would not be visible to a normal passerby.

Contacts
R. Lynn Nothstine, 937.225.4117, for the state and Montgomery County prosecutor’s office.

Daniel J. O’Brien, 937.228.6001, for Kevin Peterson.

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Does Juvenile’s Release from Community Control Bar Court From Later Reimposing Suspended Sentence?

In Re: J. F., a Minor Child, Case no. 2007-2239
2nd District Court of Appeals (Greene County)

ISSUE: When a juvenile offender’s sentence includes a term of commitment (incarceration) with the Ohio Department of Youth Services (DYS), but that term is suspended on conditions of community control and successful completion of “monitored time” until the age of 18, does a subsequent court order releasing the offender from community control bar a juvenile court from later reimposing the suspended term of commitment to DYS if the offender commits a new offense prior his 18th birthday?

BACKGROUND:  In this case, the Court is asked to determine whether a court that has officially released a juvenile offender from “intensive community control” imposed for prior offenses retains jurisdiction over that juvenile by virtue of a separate requirement in its sentencing order requiring the juvenile to successfully complete “monitored time” until he reaches the age of 18.

In February 2004, a juvenile identified by the initials J.F. admitted his guilt on six delinquency counts of theft that would have been felony offenses if committed by an adult.  The Greene County Juvenile Court sentenced him to a six-month term of commitment to DYS on each count, with the terms to be served consecutively. However the court suspended the entire term of commitment on the conditions that J.F. (1) not commit any future violations of the law; (2) successfully comply with “monitored time” until the age of 18; (3) successfully complete a period of community control; (4) complete a felony offenders’ program; (5) complete a stop shoplifting program; (6) undergo psychiatric evaluation; and (7) pay fines, court costs and restitution in a timely manner.

While J.F. was guilty of a number of parole violations over the ensuing two year period, in March 2006 the court issued an order terminating his “intensive community control.”  Five months later, before his 18th birthday, J.F. was arrested and charged on new misdemeanor counts of possession of illegal drugs and drug paraphernalia. At a subsequent hearing at which he waived his right to an attorney, J.F. admitted the new offenses. In its sentencing order, the court revoked its suspension of J.F.’s commitment to DYS arising from the 2004 felony counts, and ordered that he be committed to DYS for a minimum of six months up to a maximum of until he reached the age of 21. 

J.F. appealed the reinstatement of the DYS commitment for his 2004 offenses, arguing that the juvenile court no longer had jurisdiction over him for those offenses because its March 2006 order had released him from the terms and conditions of community control for those charges. He also challenged the validity of the juvenile court proceeding at which he admitted the new drug-related offenses. The 2nd District Court of Appeals remanded the case to the trial court for further proceedings based on procedural errors, but ruled that the juvenile court’s March 2006 order releasing J.F. from community control had not relinquished  its jurisdiction over him with regard to the 2004 felony counts.

Attorneys for J.F. now ask the Supreme Court to overrule the court of appeals.  They contend that the trial court order releasing J.F. from community control terminated that court’s jurisdiction over him for his 2004 offenses – including the authority to reinstate the suspended term of DYS commitment that was imposed as punishment for those violations. They urge the Court to follow its 2002 decision in In Re Cross, holding that a juvenile court loses its jurisdiction to reimpose a suspended commitment to DYS after a juvenile’s term of probation has ended. Because the section of law authorizing juvenile courts to require “monitored time” (good conduct with no illegal acts) is part of the state statute that defines community control sanctions, they assert that monitored time was just one more condition of community control from which J.F. was released by the court’s March 2006 order.

Attorneys for the state respond that the juvenile court’s 2004 sentencing order in this case included not only a series of community control measures but also a separate “monitored time to age 18” requirement. They argue that because the juvenile court’s March 2006 order releasing J.F. from “intensive community control” did not refer to the separate monitored time requirement, that ongoing requirement continued the jurisdiction of the juvenile court over J.F. until his 18th birthday. When J.F. committed subsequent violations of law prior to reaching age 18, they assert, he violated the monitored time requirement, and the juvenile court acted within its authority by reinstating his suspended sentence and committing J.F. to DYS for six months based on the felony counts for which he was adjudicated in 2004.

Contacts
Elizabeth A. Ellis, 937.562.5669, for the state and Greene County prosecutor’s office.

Angela Miller, 614.466.5394, for J.F..

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Is Enhanced DUI Sentence for Repeat Offender’s Refusal of Blood Alcohol Test Unconstitutional?

State of Ohio v. Corey Hoover, Case no. 2007-2295
3rd District Court of Appeals (Union County)

ISSUE: Does a state law imposing a longer minimum jail term for a repeat DUI offender who refuses to take a blood alcohol test than for a similar offender who submits to the test violate the defendant’s constitutional right to withhold consent to a warrantless search?

BACKGROUND: A provision of Ohio’s “drunk driving” law, R.C. 4511.19(A)(2), expressly prohibits a person who has a prior DUI conviction within the past 20 years from refusing to submit to a blood alcohol test if he or she is arrested for a subsequent DUI violation. The sentencing portion of the DUI statute doubles from 10 to 20 days the mandatory minimum jail sentence that must be imposed against a repeat DUI offender if that person refused a blood alcohol test at the time of  their second arrest.

In this case Corey Hoover, a Union County motorist with a prior DUI conviction, was stopped by a deputy sheriff in September 2006 for a suspected DUI violation. After he displayed signs of intoxication and failed roadside field sobriety tests, Hoover was placed under arrest and asked to submit to a breathalyzer test to determine his blood alcohol level. Hoover refused to submit to the test. He was subsequently charged with a repeat-offender count of DUI, with the specification that he had refused to take a blood alcohol test in violation of R.C. 4511.19(A)(2). 

Hoover entered a motion to dismiss. Among other claims, his attorneys argued that R.C. 4511.19(A)(2) is unconstitutional and therefore unenforceable because it imposes a criminal penalty for the sole reason that a suspect has asserted his right to withhold consent to a warrantless search of his person or property. The trial court overruled the motion to dismiss. Hoover entered a plea of no contest and was convicted of DUI. The judge sentenced him to the mandatory 20-day jail term prescribed for repeat DUI offenders who refused a blood alcohol test at the time of arrest.

Hoover appealed.  On review, the Third District Court of Appeals reversed and remanded the case to the trial court for resentencing. The court of appeals ruled that the portion of the DUI statute enhancing the minimum jail sentence for a repeat DUI offense based solely on the offender’s refusal to take a blood alcohol test violated  the Fourth Amendment of the U.S. Constitution.  The state sought and was granted Supreme Court review of the Third District’s ruling.

Attorneys for the state assert that the Third District’s decision ignored a well-established body of case law upholding the constitutionality of “implied consent” DUI laws like Ohio’s, under which all drivers using a state’s roadways are presumed to consent to a blood alcohol test if they are arrested for DUI and are subject to penalties if they refuse such a test. They argue that, because a defendant who refuses to take the test denies the state the most reliable and persuasive evidence of a DUI offense, no sensible driver would ever submit to testing if the law did not provide a significant penalty for refusal. They contend that, if it is affirmed, the Third District’s ruling that Hoover had a constitutional right to “revoke” his implied consent to be tested would render Ohio’s implied consent statute meaningless and unenforceable.

Attorneys for Hoover point to prior court decisions holding that the Fourth Amendment guarantees every citizen’s right to withhold his or her consent to be searched by police without a warrant, and decisions holding that any law making it a crime to exercise a constitutional right is itself unconstitutional. They say the Third District’s ruling in this case does not bar the state from imposing administrative penalties such as an immediate license suspension against drivers who refuse to submit to blood alcohol tests, it merely prohibits the imposition of criminal sanctions such as increased jail time against a defendant solely for exercising his constitutional right to withhold consent for a warrantless search.

Contacts
Benjamin Mizer, 614.466.8980, for the State of Ohio.

Jonathan Tyack, 614.221.1341, for Corey Hoover.

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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.