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Tuesday, March 30, 2010

State of Ohio v. Londen K. Fischer, Case no. 2009-0897
9th District Court of Appeals (Summit County)

Cincinnati Bar Association v. Paul Joseph Kellogg, Case no. 2009-2302
Hamilton County


Does Postrelease Control Sentencing Error Allow Defendant to Pursue New Direct Appeal of Conviction?

Where Original Sentence Is Void Under 2007 ‘Bezak’ Decision

State of Ohio v. Londen K. Fischer, Case no. 2009-0897
9th District Court of Appeals (Summit County)

ISSUE: In July 2007, the Supreme Court of Ohio ruled in State v. Bezak that if a trial court failed to properly impose a term of postrelease control at the time a criminal defendant was sentenced, the defendant’s sentence is void and the court must conduct a new sentencing hearing at which the defendant must receive a new sentence that includes a properly imposed term of postrelease control. In this case, the Court is asked to determine whether an offender who is entitled to be resentenced under Bezak is also entitled to pursue a new direct appeal of his convictions, on the basis that any prior appellate review of his case was invalid because the trial court’s original judgment of conviction did not include a lawful sentence.

BACKGROUND: In February 2002, Londen Fischer of Akron was convicted on multiple felony counts and sentenced an aggregate term of 14 years in prison.  At the time sentence was pronounced, the trial court properly advised Fischer that after his release from prison he would be subject to a mandatory five-year term of postrelease control by the Adult Parole Authority. The court failed, however, to also advise Fisher that any violation of his postrelease control could result in his reincarceration for up to an additional seven years. Fischer filed a timely appeal with the 9th District Court of Appeals, alleging that his convictions were not supported by the evidence presented at his trial. The 9th District overruled his assignments of error and affirmed his convictions.

In 2008, after the Supreme Court released its decision in Bezak, Fischer filed a motion seeking resentencing based on the trial court’s failure to fully inform him about the terms of his postrelease control at his original sentencing hearing. The court granted his motion, and subsequently conducted a new hearing at which it imposed an identical 14-year sentence, this time properly advising Fischer about the terms of postrelease control to which he would be subject.

Fischer appealed his resentencing to the 9th District. In his pleadings, he not only asserted claims related to the resentencing, but also made new allegations of legal and procedural errors during his original trial. Fischer argued that because the trial court’s original judgment of conviction had not included a valid sentence, it was not a final, appealable order and the 9th District had therefore acted without jurisdiction in accepting and deciding his original appeal. The 9th District affirmed the trial court’s  resentencing order and declined to review any of Fisher’s trial-related claims, holding that his original appeal was not invalid and he waived any additional trial-related claims by failing to raise them in his original appeal. Fischer sought and was granted Supreme Court review of the 9th District’s ruling.

Attorneys for Fischer point to recent decisions in which this Court has held that a criminal sentence that does not properly impose a mandatory term of postrelease control is not merely a defective sentence subject to being vacated on appeal, but is void ab initio (from the moment is was pronounced), and is thus a legal nullity that never was valid or enforceable. Because Fischer’s original sentence was never valid, and a judgment of criminal conviction is not final and appealable until the trial court has imposed a sentence, they contend, there was no final, appealable order in this case until the trial court resentenced Fischer in 2008. Since a court of appeals has jurisdiction to review only final orders, they say, the 9th District acted without jurisdiction in hearing and deciding Fischer’s earlier appeal, and Fischer has retained the right to pursue a direct appeal of his convictions, including any and all alleged errors that occurred during his 2002 trial.

Attorneys for the state respond that the prior Supreme Court decisions cited by Fischer have not held that improper imposition of a postrelease control sanction invalidated or rendered non-final the trial courts’ judgments of guilt for the defendant’s underlying convictions, but merely have held that  the defendant’s incorrect sentence was void, and that both the defendant and the state are entitled to a new sentencing hearing at which postrelease control is properly imposed. In this case, they point out, Fischer exercised his right to have a court of appeals  review alleged legal and procedural errors during his trial that would invalidate his convictions, and after reviewing each of his assignments of error the 9th District upheld his convictions.  They argue that, if the type of sentencing error at issue in Bezak and this case is held to nullify prior appellate proceedings and entitle a defendant to a new direct appeal, the state’s courts of appeals will be faced with potentially thousands of new cases seeking to relitigate claims that they have already considered and decided, and/or potential new trial-based claims in cases where trial records may have long since been lawfully destroyed or discarded.

Contacts
Claire R. Cahoon, 614.466.5394, for Londen Fischer.

Heaven DiMartino, 330.643.7459, for the state and Summit County Prosecutor.

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Attorney Discipline

Cincinnati Bar Association v. Paul Joseph Kellogg, Case no. 2009-2302
Hamilton County

The Board of Commissioners on Grievances & Discipline has recommended that the license of Cincinnati attorney Paul J. Kellogg be suspended for two years, with the final six months stayed on conditions, for conduct that resulted in his convictions on six federal felony counts including money laundering, conspiracy to obstruct proceedings before the Federal Trade Commission (FTC) and conspiracy to obstruct proceedings before the U.S. Food and Drug Administration (FDA).

The board found that Kellogg, acting as general counsel for Berkley Premium Nutraceuticals, engaged in professional misconduct when he improperly alerted a company warehouse manager that FDA inspectors would be inspecting that facility the following day and directed him to “get rid of” mislabeled dietary supplements stored in the warehouse. The supplements were loaded into a truck and removed from the warehouse during the FDA inspection, then returned to the warehouse. The board also found that Kellogg violated multiple provisions of the Code of Professional Responsibility and engaged in criminal money laundering when he helped to create and acted as trustee of two trusts through which the company’s owner, Steve Warshak, transferred $14 million into trusts in the names of his wife and child in the midst of an FTC investigation of the company.

Kellogg, whose license has been under an interim suspension since December 2009, did not object to the board’s findings or recommended sanction.  However, the Cincinnati Bar Association, which prosecuted the complaint against Kellogg, has filed an objection asserting that the two-year suspension recommended by the board is not commensurate with the fact that Kellogg was found guilty of six felony offenses. They point to several other cases in which the Court held that permanent disbarment was the appropriate sanction for attorneys convicted of money laundering, and argue that the facts of this case support a penalty of disbarment.

In his response to the bar association’s objections, Kellogg points to the federal court’s finding  that he did not draft or participate in the funding of the trust instruments by which Warshak diverted proceeds from his company’s fraudulent practices to family members, but merely reviewed the completed documents for compliance with Ohio law and agreed at the last minute to serve as trustee when the original designee was forced to withdraw from that role due to a potential conflict of interest.  His attorneys assert that the Cincinnati Bar is essentially asking the Court to depart from its traditional consideration of the  individual circumstances of disciplinary cases and instead to adopt a rigid policy that any attorney who engages in money laundering activity must be disbarred.

Contacts
Peter Rosenwald, 513.621.2257, for the Cincinnati Bar Association.

David C. Greer, 937.223.3277, for Paul J. Kellogg.

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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.

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