Oral Argument Previews

2014 Archive | 2013 Archive | 2012 Archive | Calendar
Live Streaming Video Coverage

Tuesday, April 20, 2010

State of Ohio v. Gregory Horner, Case no. 2009-0311
6th District Court of Appeals (Lucas County)

In the Matter of the Application of Middletown Coke Company, a Subsidiary of SunCoke Energy, for a Certificate of Environmental Compatibility and Public Need to Build a Cogeneration Facility, Case no. 2009-0941
Appeal from the Ohio Power Siting Board (Butler County)

Gerry E. Griffith, Jr. v. The State of Ohio, Case no. 2009-1363
10th District Court of Appeals (Franklin County)

Disciplinary Counsel v. David Jerome Robinson, Case no. 2009-2267
Franklin County

Disciplinary Counsel v. Judge Daniel Gaul, Case no. 2010-0062
Cuyahoga County

Disciplinary Counsel v. Sherry Darlene Davis, Case no. 2008-1729
Pike County


Does Failure to Object to Defective Indictment During Trial Waive All But ‘Plain Error’ Analysis on Appeal?

When Indictment Does Not State Required Guilty Mental State for Offense

State of Ohio v. Gregory Horner, Case no. 2009-0311
6th District Court of Appeals (Lucas County)

ISSUES:

BACKGROUND: In order to convict a defendant of a criminal offense, a trial court must find 1) that the accused committed an act that is prohibited by law (in Latin, the actus reus), and 2) that in committing the prohibited conduct, the accused acted with a specified guilty mental state (in Latin, the mens rea) that is set forth in the section of  law defining that offense. The guilty mental states set forth in Ohio criminal statutes, in increasing order of culpability, are “negligently,” “recklessly,” “knowingly,” and “intentionally.”  

R.C. 2901.21(B) provides that when a section of state law that defines a criminal offense does not specify a required mens rea for that offense, the court must determine whether or not the language of the statute “plainly indicates a purpose to impose strict criminal liability for the conduct described in that section.” If it is determined that the statutory language plainly indicates legislative intent to impose strict liability, then the state is required to prove at trial only that the accused engaged in the prohibited conduct, and is not required to establish any culpable mental state. If it is determined that the statutory language does not plainly indicate legislative intent to impose strict liability, the law requires the state to prove at trial that the defendant acted with at least the guilty mental state of “recklessly.”

In a pair of 2008 decisions, identified as State v. Colon I and State v. Colon II, the Supreme Court of Ohio held that:

In this case, Gregory Horner of Toledo was indicted on six criminal counts arising from an incident in which he and a codefendant assaulted two other men during a robbery. One charge was dismissed by the state. Two of the five remaining counts in the indictment alleged that Horner had committed aggravated robbery in violation of R.C. 2911.01(A)(3), which prohibits the infliction of “serious physical harm” on another person during the commission of a theft offense.  R.C. 2911.01(A)(3) does not specify a required guilty mental state. The state did not allege any mens rea in the aggravated robbery counts of Horner’s indictment. 

Horner did not object to the absence of a mens rea in the aggravated robbery counts of the  indictment at any point in the trial court proceedings. He entered no-contest pleas to each of the five counts of the indictment, and was convicted on all counts and sentenced to 11 years in prison.

In a subsequent appeal, Horner cited the Supreme Court’s ruling in Colon I and asked the 6th District Court of Appeals to reverse his convictions on the two aggravated robbery counts based on the state’s failure to include  the  required mens rea of “recklessly” in his indictment. The 6th District denied the appeal, stating that in Colon I and II the Supreme Court had considered only the required mens rea for a violation of the robbery statute, R.C. 22911.02(A)(2), and that its holding applied only to indictments for that offense rather than indictments for aggravated robbery under R.C. 2911.01(A)(3). Horner sought and was granted Supreme Court review of the 6th District’s ruling.

Attorneys for Horner argue that the wording of the robbery statute at issue in Colon and the aggravated robbery statute under which Horner was indicted are virtually identical, with the exception that the aggravated robbery section adds the element of “serious physical harm.”  They contend that, since neither code section sets forth a required guilty mental state and nothing in the additional wording of the aggravated robbery statute suggests legislative intent to impose strict liability, there was no rational basis for the 6th District’s refusal to apply Colon and find that the requisite mens rea for an aggravated robbery conviction must be the same “recklessly” standard applicable to robbery under R.C. 2901.21(B).

With regard to Horner’s right to raise the sufficiency of his indictment for the first time at the appellate level, they point out that Horner’s pleas of no contest did not admit guilt, but rather admitted the accuracy of the facts stated in the indictment. They argue that when a defendant pleads no contest,  before finding him guilty of the offense(s) charged in his indictment a trial court is required to make a judicial determination that the indictment sets forth all the essential elements of those offenses. Because the aggravated robbery counts in Horner’s indictment were insufficient for failure to charge the required mens rea, they argue, the trial court’s judgment finding him guilty on those counts was incorrect as a matter of law, and Horner is entitled to appeal the trial court’s final judgment of guilt whether or not he objected to the sufficiency of the indictment during his trial. 

Attorneys for the state contend that this Court’s Colon I and Colon II decisions are legally flawed and should be overruled to the extent that they can be read to allow defendants to appeal the sufficiency of their indictments under any standard other than “plain error” after failing to challenge the indictment at trial. They argue that allowing such appeals would be contrary to the strong public interest in favor of judicial economy by allowing a defendant who suspects a defect in his indictment to “sit on” that error during his trial until it is too late for the court to correct it by amending the original indictment or obtaining a new one, then seek a new trial by raising the defective indictment on appeal.

They also urge the Court to reject Horner’s claim that his  no contest plea (as opposed to a guilty plea or jury verdict ) required the trial judge to make a judicial determination that the indictment was legally sufficient  despite his own failure to place that issue before the court through an objection. They assert that Horner’s agreement to enter no-contest pleas to the aggravated robbery counts admitted not only the facts set forth in his indictment but also the facts set forth in the prosecutor’s on-the-record supplemental statement to the court at his plea hearing.  In that statement, they argue, the state gave a detailed description of the crime that clearly alleged that Horner and his co-defendant acted intentionally in causing serious injuries to the robbery victims. Thus, they say, there is no question that Horner was fully advised that he was accused of acting with at least the mens rea of “recklessly” in committing aggravated robbery.

Contacts
David F. Cooper, 419.213.2061, for the state and Lucas County Prosecutor’s Office.

John F. Potts, 419.255.2800, for Gregory Horner.

Return to top

Are Coke Ovens Used to Power Electric Generator Subject to Approval by State Power Siting Board?

Where Ovens to be Constructed on Same Site as Generating Plant

In the Matter of the Application of Middletown Coke Company, a Subsidiary of SunCoke Energy, for a Certificate of Environmental Compatibility and Public Need to Build a Cogeneration Facility, Case no. 2009-0941
Appeal from the Ohio Power Siting Board (Butler County)

ISSUE: When the plans for a proposed new electric power generating facility call for side-by-side construction of industrial ovens that produce coke, heat recovery generators that convert the flue gases from the coke ovens to steam, and a turbine that converts the steam to electric power, does R.C. Chapter 4906 require the Ohio Power Siting Board (OPSB) to review and approve the environmental impacts of all three portions of the facility, or must the board consider only the impacts of the turbine portion of the facility that actually generates electricity?

BACKGROUND: Under R.C. Chapter 4906, any party seeking to construct a “major utility facility” in Ohio must first obtain a certificate from the OPSB.  In order to obtain the required certificate, the petitioner must submit detailed information about the facility’s anticipated impacts on air and water quality and on  recreational, wildlife, agricultural, cultural and historical resources in and around the proposed site. The OPSB is then required to investigate the application, require modifications to the proposal if necessary to protect the environment, and issue the required certificate only if it determines that  the proposed facility serves the public interest and “represents the minimum adverse environmental impact” considering available technology and the nature and economics of various alternatives.

In this case, Middletown Coke Company (MCC) filed a public information notice that it intended to construct an industrial facility near the city of Monroe in Butler County. The proposed facility was to consist of 1) ovens that convert coal to metallurgical coke for use at the nearby AK Steel Middletown Works,  2) heat recovery steam generators (HRSGs) that filter out pollutants and convert the superheated flue gases emitted by the coke ovens to usable steam, and 3) a steam-powered turbine capable of generating an average of 57 megawatts of electric power. 

In its application seeking certification of the project by the OPSB, MCC sought approval of only the turbine generator portion of the proposed facility, and submitted  estimates of only the anticipated environmental impacts arising from that portion of the project. The City of Monroe sought and was granted standing as an intervener in the case. In the same entry granting Monroe’s motion to intervene, the administrative law judge (ALJ) reviewing MCC’s certification on behalf of the OPSB stated that the coke plant portion of the proposed facility, within which he included the HRSGs, was not subject to review by the OPSB because it was not integral to the generation of electric power, and that “issues related to the coke plant will not be considered in this proceeding.”

Monroe filed a motion to vacate the portion of the ALJ’s entry limiting OPSB review to the turbine portion of the facility. The ALJ denied that motion, and throughout the subsequent application review proceedings repeatedly denied efforts by Monroe to introduce evidence regarding the anticipated  environmental impacts of the coke ovens and heat recovery steam generators on air and water quality, and alleged damage that construction and operation of those facilities would cause to local cultural, historical and archaeological features that were within or near the proposed project site. The OPSB reviewed and approved the rulings of the ALJ limiting the scope of its investigation to the turbine portion of the project, and granted MCC’s application to construct the facility as proposed.

Monroe has exercised its right to appeal the decision of the OPSB to the Supreme Court.

Attorneys for the city urge the Court to void the OPSB’s ruling as unreasonable and contrary to law on the basis that R.C. Chapter 4906 required the board to review the environmental and other impacts of the entire proposed facility, including the coke ovens and heat recovery steam generators. They argue that the coke ovens and HRSGs to be built on the same site as the turbine are not a “separate facility,” as claimed by MCC but are rather integral elements of a single facility, without which MCC would be unable to generate electric power at the site.

They point to language in R.C. 4906.01(B) that defines a “major utility facility” as an “electric generating plant and associated facilities designed for, or capable of, operation at a capacity of 50 megawatts or more.” They note that in reviewing proposals for coal and gas powered electric generating plants, the OPSB routinely evaluates the environmental impacts of the boilers used to produce the steam that drives a turbine generator.  In this case, they assert, MCC’s application makes it clear that the coke ovens and the HRSGs that convert their flue gases to steam are no different in function than a coal or gas boiler, and are equally subject to OPSB review as facilities essential to the generation of electric power. They argue that nothing in the applicable state laws exempts the on-site coke ovens that power MCC’s turbine from OPSB review simply because those ovens also create a separate byproduct that is not used in the power generation process.

Attorneys for MCC and the OPSB urge the Court to affirm the OPSB’s ruling that the coke ovens and HRSGs to be built at the same site as the turbine generator are separate facilities rather than parts of a single facility. They argue that the statutory review and approval authority of the OPSB is limited to facilities whose primary purpose is to produce electric power.  In this case, they contend, the primary purpose of the coke ovens is to produce coke for use in the furnaces of the AK Steel works adjacent to the proposed facility.  They also assert that  the company would have to install heat recovery steam generators or similar equipment adjacent to the coke ovens whether or not the recovered steam was used to create electricity in order to separate, capture and dispose of pollutants contained in the flue gasses. In light of these facts, they say, the OPSB acted according to law in reviewing only the portion of the MCC project that involved facilities whose primary purpose was the generation of electric power.

Contacts
Jack A. Van Kley, 614.431.8900, for the City of Monroe.

Samuel Peterson, 614.387.9090, for the Ohio Power Siting Board.

M. Howard Petricoff, 614.464.6414, for Middletown Coke Company.

Return to top

May Ohio Court of Claims Hear Declaratory Judgment Action Asserting Claim of Wrongful Imprisonment?

Where Plaintiff Was Freed from Prison Based on Procedural Error

Gerry E. Griffith, Jr. v. The State of Ohio, Case no. 2009-1363
10th District Court of Appeals (Franklin County)

ISSUE: Under R.C. 2743.48, does the Ohio Court of Claims have jurisdiction  to hear and decide declaratory judgment actions that establish a claimant’s eligibility to seek damages as a “wrongfully imprisoned individual” in cases where the plaintiff was released from prison because of a procedural error during his trial?

BACKGROUND:  In 1986, the General Assembly enacted R.C. 2743.46, which created a cause of action against the state for wrongful imprisonment.  Prior to 2003, the statute permitted recovery only in cases where the plaintiff could show that after being convicted and imprisoned for a criminal offense, he had subsequently been exonerated by a common pleas court’s official finding either that he did not commit the offense for which he was imprisoned, or that no one committed that offense.  The pre-2003 version of the statute  set forth a two-step process in which all claimants were required to: 1) obtain a judgment in common pleas court declaring that they met the statutory  requirements of a “wrongfully imprisoned individual,” and 2) submit that judgment to the Ohio Court of Claims as the basis for recovery for the time they were wrongfully imprisoned according to a schedule of money damages set forth in the statute.

In 2003, the General Assembly amended the statute to add language allowing recovery not only by persons who were officially exonerated of guilt for their crimes, but also by persons whose convictions and prison sentences were vacated, dismissed or permanently overturned on appeal because of procedural errors during their trials. 

In this case, Gerry Griffith Jr. of Cleveland was charged in federal district court with a firearms offense.  Police discovered the weapon during a search of Griffith’s home after arresting him on an unrelated charge that was subsequently dismissed. Before trial, Griffith moved to suppress all evidence obtained through the search of his home, arguing that the police had no probable cause to arrest him in the first place, and that the search was a direct consequence of the unlawful arrest. The trial court denied the motion to suppress. Griffith was convicted on the firearms charge and sentenced to a prison term.

On review, the U.S. Sixth Circuit Court of Appeals ruled that Griffith’s arrest was unlawful, and that the trial court should have suppressed the search results, which yielded the only evidence supporting the firearms charge for which he was imprisoned. The firearms charge was subsequently dismissed with prejudice and Griffith was released from custody.

Griffith filed a claim seeking damages from the state as a “wrongfully imprisoned individual” under R.C. 2743.48.  Rather than initiating his claim by filing a declaratory judgment action in common pleas court, Griffith filed a complaint directly with the Ohio Court of Claims. The state moved to dismiss his complaint, arguing that the Court of Claims did not have jurisdiction to consider a  wrongful imprisonment claim until the claimant’s eligibility for damages  had been certified by a common pleas court. The Court of Claims granted the motion to dismiss, holding that it lacked jurisdiction to consider Griffith’s claim.  On review, the 10th District Court of Appeals reversed the Court of Claims’ ruling and ordered it to accept and process Griffith’s claim. In its opinion, the 10th District held that the new language inserted in the statute in 2003 allowing wrongful imprisonment claims based on procedural error does not impose the requirement of a prior common pleas judgment of eligibility that is required for claims based on actual innocence.  

The state, represented by the Ohio Attorney General’s Office, sought and was granted Supreme Court review of the 10th District’s ruling.

Attorneys for the state assert that the language added to the wrongful imprisonment statute in 2003 is not clear regarding whether claims based on procedural error require prior certification by a common pleas court before they are ripe for submission to the Court of Claims. They argue that this ambiguity requires analysis of the legislative intent underlying the entire statute, and contend that a review of R.C. 2743.48 in its entirety makes it clear that the legislature intended to require all claimants, regardless of the basis for their claims,to establish their eligibility as a “wrongfully imprisoned individual” through proceedings in a common pleas court before submitting a claim for damages to the Court of Claims.

In support of that argument, they point out that the Court of Claims has no inherent powers under the Constitution but exercises only specific authority granted to it by statute. They say nothing in the laws creating and defining the powers of the Court of Claims grants it authority to conduct declaratory judgment proceedings such as those required to determine whether a claimant meets the statutory criteria for a “wrongfully imprisoned individual.” They also point out that R.C. 2743.48 sets forth only one procedural process for pursuing wrongful imprisonment claims, and that process begins with a common pleas court determination of the claimant’s eligibility as a mandatory precondition for consideration of his claim for damages by the Court of Claims. If the legislature had intended to establish a separate path for claims based on procedural error, they contend, it could and would have added language to the procedural portion of the statute spelling out a different process for such claims.  In the absence of any such language, or any statutory authority for the Court of Claims to issue declaratory judgments, they say, the 10th District erred in holding that Griffith was entitled to submit  his wrongful imprisonment claim directly to the Court of Claims.

Attorneys for Griffith respond that R.C. 2743.48 as amended in 2003 sets forth two distinct categories of wrongful imprisonment claims: those based on a procedural error during the claimant’s trial and those based on a common pleas court’s finding that a claimant was actually innocent of the crime for which he was imprisoned, or that no criminal offense was committed in the first place.  

They assert that all the subsequent procedural provisions in the statute refer  only to claimants whose claims are based on a common pleas court’s finding of innocence, and make no reference to claims based on trial court  errors.  Because the procedural provisions in the statute do not apply to claimants like Griffith, they argue, the Court should affirm the 10th District’s holding that nothing in R.C. 2743.48 requires Griffith to obtain a declaratory judgment of eligibility in common pleas court before submitting his petition for damages to the Court of Claims.

Contacts
Benjamin C. Mizer, 614.466.8980, for the state and Ohio Attorney General's Office.

Charles W. Slicer, 937.223.1100, for Gerry Griffith Jr.

Return to top

Attorney Discipline

Disciplinary Counsel v. David Jerome Robinson, Case no. 2009-2267
Franklin County

The Board of Commissioners on Grievances & Discipline has recommended that the law license of Columbus attorney David J. Robinson be suspended for two years for making false and misleading statements under oath during a deposition and a court hearing regarding his alleged possession of confidential documents removed from his former law firm, and for subsequently destroying documents of potential evidentiary value, including documents he had previously claimed to be unaware of possessing.

The board found that Robinson’s acts and omissions violated the state attorney discipline rules that prohibit conduct involving dishonesty, fraud, deceit or misrepresentation; conduct prejudicial to the administration of justice, conduct that adversely reflects on an attorney’s fitness to practice and unlawfully destroying or concealing a document having potential evidentiary value.

Robinson has filed objections to the board’s findings and recommendations and urges the Court to dismiss the disciplinary charges against him. His attorneys argue that while Robinson had taken home several boxes of documents from his office when it became clear that his relationship with his former firm was deteriorating, he had not had an opportunity to examine or inventory those documents prior to being deposed and questioned in court, and so responded truthfully when he stated that he was “not aware” of possessing any confidential business records. They also assert that when Robinson subsequently examined the documents in his possession and found that some were confidential, he reacted unwisely but with an honest intent when he disposed of some of those documents to be sure he could not be accused of improperly passing them on his new law firm.

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

E. Bruce Hadden, 614.431.2000, for David J. Robinson.

Return to top

Judicial Discipline

Disciplinary Counsel v. Judge Daniel Gaul, Case no. 2010-0062
Cuyahoga County

The Board of Commissioners on Grievances & Discipline has recommended that the license of  Judge Daniel Gaul of the Cuyahoga County Count of Common Pleas be suspended for one year, with the entire term of suspension stayed,  for engaging in conduct prejudicial to the administration of justice in a criminal case before his court. The board also found that Gaul had called into question his own impartiality and the fairness and impartiality of the judicial process by improperly initiating an “Amber Alert” for two witnesses who had failed to appear for a scheduled trial in his court, and by making public statements in court and during an in-chambers meeting with the news media in which he accused the defendant of intimidating or interfering with the missing witnesses when there was no admissible evidence in the record to support those assertions.

Judge Gaul has entered objections to the board’s findings and recommended sanction.  He argues that the disciplinary proceedings against him were flawed because the hearing panel refused to admit evidence supporting his allegations of witness tampering or evidence supporting his conclusion that the assistance of the news media in locating the missing witnesses was necessary for their own protection and to prevent a dangerous offender from being released from jail.  He also contends that, if the Court should find that his conduct violated any disciplinary rules, it should impose a public reprimand rather than a license suspension as the appropriate sanction.

In contesting Judge Gaul’s objections, The Office of Disciplinary Counsel argues that after finding himself unable to act as an impartial finder of fact based on his suspicions of witness tampering by the defendant, Judge Gaul should simply have withdrawn from the case without publicly announcing his suspicions in an extensive on-the-record court proceeding or involving the media in an area-wide search for the no-show witnesses – who later stated that their failure to appear in court had not been the result of intimidation or pressure by the defendant.

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

Richard C. Alkire, 216.674.0550, for Judge Daniel Gaul.

Return to top

Attorney Discipline

Disciplinary Counsel v. Sherry Darlene Davis, Case no. 2008-1729
Pike County

Waverly attorney Sherry Darlene Davis has been ordered to appear before the Court and show cause why she should not be found in contempt of the Court’s February 2009 order suspending her license and directing her to return to clients with pending cases all legal papers and other property in her possession and to repay clients for fee advances that she accepted but did not earn. 

The order to appear was issued in response to a motion filed with the Court by the Office of Disciplinary Counsel, indicating that Davis has failed to either return files in pending cases or return unearned fees to clients in three different legal matters, and has not responded to multiple inquiries from disciplinary counsel regarding those matters.

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

Sherry Darlene Davis, pro se, 740.357.9659.

Return to top

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.