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Tuesday, June 8, 2010

State of Ohio v. Jermaine C. Baker, Case no. 2009-1198
9th District Court of Appeals (Summit County)

State of Ohio v. Adrian L. Johnson, Case no. 2009-1552
10th District Court of Appeals (Franklin County)

State of Ohio v. Frank Robert Hamilton, III, Case nos. 2009-1878 and 2009-1958
2nd District Court of Appeals (Montgomery County)

John Doe v. Mary Ronan, Cincinnati Public Schools, and Ohio Department of Education, Case no. 2009-2104
U.S. District Court, Southern District of Ohio


Does U.S. Supreme Court’s Ruling in Old Chief v. U.S. Apply to State Criminal Prosecutions?

Or Is Decision Applicable Only to Prosecutions Under Federal Law

State of Ohio v. Jermaine C. Baker, Case no. 2009-1198
9th District Court of Appeals (Summit County)

ISSUE:  Does the U.S. Supreme Court’s holding in Old Chief v. United States (1997) that a criminal defendant has a right to stipulate (admit ) to a prior criminal conviction rather than having prosecutors inform jurors about the nature or details of that offense apply to cases brought in state courts, or is it limited to prosecutions under federal law?

BACKGROUND: In Old Chief v. United States, the U.S. Supreme Court held that when a current charge against a defendant requires federal prosecutors to prove that the defendant was previously convicted of a felony offense, the defendant has a right to avoid having potentially prejudicial information about his or her past offenses presented to the jury by entering a stipulation (written admission) that he or she has a prior conviction that meets the statutory requirements of the current charge. In this case, the Supreme Court of Ohio is asked to decide whether the rule of law set forth in Old Chief applies only to prosecutions under federal law, or is also binding on state courts when they hear criminal cases alleging violations of Ohio law.

As part of a multi-count criminal indictment, Jermaine Baker of Akron was charged with possession of a firearm while under disability in violation of R.C. 2923.13(A)(2) and (A)(3). In order to prove the “disability” element of that charge, the state was required to establish that Baker had previously been convicted of a crime of violence or a crime involving possession of a drug of abuse, and was therefore legally barred from possession of a deadly weapon. Prior to trial, Baker offered to stipulate that he had prior convictions that met the statutory requirements to establish a violation of R.C. 2923.13. He asked the trial court to exclude any other evidence that would inform the jury about the identity and nature of his prior offenses. The court denied that motion and allowed the state to provide the jury with copies of journal entries from Baker’s prior trials that identified his earlier offenses as robbery and possession of cocaine. Baker was subsequently acquitted on two of the four counts in the indictment, but was found guilty on the firearm charge, a third-degree felony, and on a misdemeanor count of obstructing official business. He was sentenced to two years in prison.

Baker appealed. Among other assignments of error, he argued that the trial court had violated his constitutional right to due process by failing to apply the U.S. Supreme Court’s holding in Old Chief to exclude admission of the judgment entries documenting his prior convictions. The 9th District Court of Appeals affirmed the trial court’s action, citing two earlier cases in which it had concluded that because Old Chief involved interpretation of a federal statute, the decision was not binding on state courts considering alleged violations of Ohio law.  The 9th District subsequently certified that its ruling on the stipulation of prior convictions issue was in conflict with the 11th District’s 2007 holding in a similar case, State V. Hatfield. The Supreme Court of Ohio has agreed to review the case to resolve the conflict between appellate districts.

Attorneys for Baker argue that the principle underlying the Old Chief decision is that because information about a defendant’s past criminal acts is very likely to prejudice jurors against him regardless of the evidence in his current trial, defendants accused of crimes that require proof of a prior conviction should be able to stipulate to a qualifying prior offense without having the state inform jury members about the specific identity and details of his or her prior crime(s). They assert that this principle is just as crucial to a defendant’s fair trial in a state court as in a federal court.  They  urge the Supreme Court of Ohio to adopt as a rule of law in Ohio that in cases where a current defendant offers to stipulate to a qualifying prior offense, trial courts must accept that stipulation as sufficient to prove that element of the current offense and must exclude as unduly prejudicial prior judgment entries or other evidence providing jurors with irrelevant information about the specific nature or details of the defendant’s past crimes.

Attorneys for the state point out that the defendant in Old Chief was charged with violating a federal weapons-under-disability statute that required only proof of any prior felony offense to support a conviction on the current charge. They contend that while a defendant’s generic stipulation to a prior felony conviction would have been sufficient to support his conviction under that specific federal statute, the decision in Old Chief should not be extended to require state courts to accept a similar generic admission of a prior offense in cases where a defendant’s current charge requires proof of a prior conviction for a specific type of offense or even for a specific crime. If  the Supreme Court of Ohio finds that Old Chief is applicable to state-level prosecutions, they urge the Court to require that any stipulation proffered by a defendant must identify the specific identity and nature of the prior offense or offenses for which he or she was convicted, and must include an express admission of that prior conviction by the defendant in open court to prevent any future claim of ineffective assistance of counsel.

Contacts
Donald Gallick, 330.631.6892, for Jermaine Baker.

Richard S. Kasay, 330.643.2800, for the state and Summit County Prosecutor’s Office.

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Is View of Marijuana Cigar in Car Probable Cause For Police to Search Pockets of Vehicle Occupant?

Where State Law Bars Custodial Arrest for a Minor Misdemeanor

State of Ohio v. Adrian L. Johnson, Case no. 2009-1552
10th District Court of Appeals (Franklin County)

ISSUE:  When police officers approaching a vacant parked car smell burnt marijuana and observe a marijuana “blunt” (cigar) in plain view on the front seat console, and multiple persons later emerge from a nearby store and begin to enter the car, do officers have probable cause to conduct a warrantless search the pockets of an apparent back-seat passenger who moves away from the car when police approach and speak to the driver?

BACKGROUND:  In a 2003 decision, State v. Brown, the Supreme Court of Ohio ruled that although a prior U.S. Supreme Court decision had held that evidence obtained through the arrest and search of a person suspected only of committing a minor misdemeanor was not barred by the Fourth Amendment to the U.S. Constitution, the search and seizure provision of the Ohio Constitution, Article I, Section 14, provided greater protection than the Fourth Amendment against unreasonable searches and seizures by agents of the state. The Brown decision went on to hold that under Article I, Section 14, evidence obtained by police through the custodial search of a person whom officers have reasonable ground to suspect only of a minor misdemeanor must be excluded in any subsequent prosecution of  the defendant.

In this case, the state urges the Court to revisit and abandon or limit its holding in State v. Brown in light of recent U.S. Supreme Court decisions addressing issues of police search and seizure, including Herring v. United States (2009) and Virginia v. Moore (2008).

The case involved the arrest of Adrian Johnson of Columbus for possession of cocaine based on a search of his pockets conducted by a Columbus police officer. Johnson and two other men made a late night trip to a convenience store and left the windows of their car rolled down while all three went inside. Three police officers who were part of a seasonal task force patrolling locations with a high incidence of drug trafficking and other street crime approached the empty four-door vehicle and smelled burnt marijuana through the open windows. One of the officers shined a flashlight into the car and identified a partially smoked marijuana cigar on the console between the driver’s seat and front passenger seat.

The officers waited nearby until Johnson and his companions approached the car and prepared to enter it, with Johnson approaching the rear driver side door.  The lead officer quickly approached the driver and questioned him about the marijuana smell in the vehicle and blunt visible in the front seat.  The driver admitted that he was the owner of the vehicle, apologized for the marijuana and offered to throw it away.  During that exchange, Johnson slowly moved away from the vehicle. The lead officer told one of the other officers to stop Johnson because “he was in the car too.” Johnson stopped walking. The supporting officer announced that he was going to perform a “pat down” of the outside of Johnson’s clothing to determine if he was armed.  Finding nothing suspicious during the pat down, and without asking for Johnson’s consent, the officer then reached into Johnson’s pants pockets and removed the contents, which included small amounts of powder and crack cocaine.

The driver and front seat passenger were not arrested and were permitted to leave in the vehicle after surrendering the blunt. Johnson was arrested and charged with possession of crack and powder cocaine. 

During pretrial proceedings, Johnson’s attorneys moved to exclude the evidence obtained through the search of his pockets. The trial court overruled the motion to exclude the search evidence. Johnson subsequently entered a plea of no contest to the possession charges. He was convicted and sentenced to a term of community control.

Johnson appealed the denial of his motion to exclude the search evidence. On review, the 10th District Court of Appeals voted 2-1 to reverse the trial court and remanded the case to the trial court with directives to exclude any evidence obtained through the search of Johnson’s pockets or through statements he made to officers after being placed under arrest. The court of appeals found that the officer who searched Johnson had no probable cause to suspect him of any crime other than possible possession of the marijuana blunt seen in the car, a minor misdemeanor, and held that under R.C. 2935.26 and this Court’s decision in State v. Brown, police are barred from placing a suspect under arrest or performing a warrantless search of his person when the only offense observed or reasonably suspected is a minor misdemeanor. The state sought and was granted Supreme Court review of the 10th District’s decision.

Attorneys for the state point to several Ohio appellate court decisions including this Court’s holding in State v. Moore (2000) that the smell of burnt marijuana in a vehicle provides probable cause for police to perform a warrantless search of vehicle occupants for evidence of drug possession or use. They also cite the U.S. Supreme Court’s 2008 decision in Virginia v. Moore, in which the majority held that a Virginia state law that barred the arrest of minor misdemeanants was irrelevant to a constitutional analysis of whether officers had probable cause to detain and search a suspect under the Fourth Amendment.  They urge the Court to revisit and abandon or limit its holding in Brown barring the warrantless search of a minor misdemeanant because it deprives police of the crucial  ability to discover and preserve evidence of criminal conduct that a suspect would otherwise dispose of or destroy during the time it would take to obtain a search warrant.

Attorneys for Johnson argue that, unlike this case,  in State v. Moore a police officer stopped a driver who was the sole occupant of a vehicle for a traffic violation, and the officer testified that there was a strong smell of burnt marijuana not only in the vehicle but also on the person of the suspect. Because there was reasonable basis for the officer to believe the suspect had been driving under the influence of drugs, a first degree misdemeanor, and the officer could not leave the scene to obtain a warrant without allowing the suspect to destroy or dispose of evidence, they say, the Court properly held that the officer could conduct a lawful search of both the vehicle and the driver.

In this case, they contend, the 10th District correctly found that the officer who searched Johnson had not seen him commit any illegal act, and the driver of the vehicle had admitted to possession of the blunt seen in the front seat, and therefore the officer had no reasonable, articulable basis to go beyond a pat-down of Johnson and conduct a search of his pockets. They urge the Court to reaffirm its holding in Brown that officers may not use a minor misdemeanor such as jaywalking as a pretense to conduct a full custodial search of an individual in the hope of turning up drugs or evidence of some other offense they may suspect but for which they have no reasonable grounds to detain or search that person.

Contacts
Steven L. Taylor, 614.462.3555, for the state and Franklin County Prosecutor’s Office.

Allen V. Adair, 614.462.3960, for Adrian Johnson.

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May Indictment be Amended to Insert Omitted Guilty Mental State that Was Not Presented to Grand Jury?

Where Amendment Does not Change Identity or Severity of Offense

State of Ohio v. Frank Robert Hamilton, III, Case nos. 2009-1878 and 2009-1958
2nd District Court of Appeals (Montgomery County)

ISSUE: Does a trial court commit reversible error by permitting the state, before trial and over the defendant’s objection,  to amend the defendant’s indictment by adding a required guilty mental state that was not presented to or found by the grand jury that returned the indictment?

BACKGROUND: In order to obtain a conviction for a criminal offense, the state must prove two elements: 1) that the defendant committed an act that is prohibited by law (in Latin, the actus reus), and 2) that  in committing the prohibited conduct, the defendant acted with a guilty mental state (in Latin, the mens rea) that is specified in the statute that defines and prohibits that offense. The guilty mental states specified in Ohio’s criminal statutes are, in increasing order of culpability, “negligently,” “ recklessly,” “ knowingly,” and “intentionally.” 

In this case, Frank Hamilton III of Dayton was charged with violating R.C. 2923.162, which prohibits the “discharge of a firearm upon or over a public roadway.”  Because that statute does not specify a required guilty mental state, and also does not indicate legislative intent that it be enforced as a “strict liability” offense, it is undisputed by the parties that in order to obtain a conviction, the state was required to prove that Hamilton acted with at least the guilty mental state of “recklessly.” It is also undisputed that the bill of indictment submitted to and approved by the grand jury in Hamilton’s case recited the statutory language describing the prohibited conduct of which he was accused, but did not specify that he was accused of acting “recklessly” or with any other guilty mental state in committing that conduct.

After his indictment but prior to trial, Hamilton filed a motion seeking dismissal of his indictment because it did not specify a required guilty mental state.  In response, the state moved to amend the indictment to insert a mens rea of “recklessly.”  Over Hamilton’s objection, the trial court approved the requested amendment, holding  that under Ohio Criminal Rule 7(D) the state may amend an indictment in order to correct a defect at any time before, during or even after trial so long as the amendment does not change the name, identity or degree of the offense charged in the indictment and the court takes appropriate action to protect the defendant from any prejudice to his ability to prepare or present an effective defense that might result from the amendment.  Hamilton subsequently entered a plea of no contest, was convicted and was sentenced to a term of community control.

Hamilton appealed the denial of his motion to dismiss the defective indictment. On review, the 2nd District Court of Appeals reversed the trial court and vacated Hamilton’s conviction.  The appellate panel cited two 2008 Supreme Court of Ohio decisions (State v. Colon I and II) in which this Court held that the omission of a required guilty mental state from the bill of indictment reviewed and approved by a grand jury denied the defendant his constitutional right to grand jury review of all essential elements of the charge against him, and thereby rendered his indictment fatally defective.  The state sought and was granted Supreme Court review of the 2nd District’s decision.

Attorneys for the state argue the Supreme Court’s holdings in Colon I and II are not applicable to this case because in Colon the state never amended or tried to amend the defective indictment, but rather proceeded throughout a complete trial including jury deliberations with the jurors operating under the false belief that the crime with which the defendant was charged was a strict liability offense for which the state was not required to establish that the defendant acted with any culpable mental state. 

Instead, they urge the Court to follow its 1987 ruling in State v. O’Brien that Criminal Rule 7(D) authorizes a trial court to correct by amendment any defect in an indictment approved by a grand jury, including the omission of a required guilty mental state, so long as the insertion of the missing mens rea does not alter the identity or degree of the crime with which the defendant is charged.  In this case, they assert, the addition of the missing mens rea did not change the name or severity of the offense with which Hamilton was charged, and Hamilton and his attorney clearly knew even before the state sought to amend his indictment that the firearms offense with which he was charged required proof that he acted recklessly, because they moved to dismiss the indictment on precisely that basis. 

Attorneys for Hamilton argue that the Supreme Court’s more recent decisions in Colon I and II implicitly overruled State v. O’Brien by finding that the omission of a required mens rea from a bill of indictment considered and approved by a grand jury violates the defendant’s fundamental right to have felony charges brought against him reviewed and approved by a group of fellow citizens before the state may bring him to trial. They urge the Court to extend its reasoning in Colon to preclude amendment of an indictment under Criminal Rule 7(D) in any case where the grand jury has not been advised of and affirmatively found that the defendant acted with the guilty mental state required for conviction of the crime of which he is accused.

Contacts
Kirsten Brandt, 937.225.4117, for the state and Montgomery County Prosecutor’s Office.

Craig M. Jaquith, 614.644.1568, for Frank R. Hamilton III.

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Was 2007 Law Requiring Firing of School Worker for 1976 Criminal Conviction Unconstitutionally Retroactive?

John Doe v. Mary Ronan, Cincinnati Public Schools, and Ohio Department of Education, Case no. 2009-2104
U.S. District Court, Southern District of Ohio

ISSUE: Did 2007 state legislation that required non-licensed staff already employed by public school systems across the state to submit to a criminal background check, and required school districts to terminate any employees found to have past convictions for certain specified offenses, violate the prohibitions in the Ohio Constitution against enactment of laws that retroactively impair a vested substantive right of an individual or interfere with the obligations of a pre-existing contract?

BACKGROUND:  Prior to 2007, R.C. 3319.39 required that all licensed public school employees who were “responsible for the care, custody or control of a child” must submit to a criminal background check, and prohibited any person found to have a conviction for certain specified offenses from being employed in such a position unless that person could demonstrate that he or she had been rehabilitated under administrative guidelines developed by the Ohio Department of Education (ODE) and codified in Ohio Admin.Code 3301-20-01. The ODE guidelines specified that persons with past convictions for certain enumerated offenses, including trafficking in illegal drugs, could never demonstrate rehabilitation, in effect permanently barring a person with a conviction for an enumerated offense from being employed  in a licensed position by a public school system.

In 2007, the General Assembly amended R.C. 3319.39 and adopted R.C. 3319.391, which extended the background check and employment exclusion requirements of the pre-2007 statute to all employees of Ohio public school systems – including workers whose duties did not involve direct or unsupervised contact with students. The new statutory language specified that its requirements  applied not only to applicants being considered by school districts as new hires, but also to all current employees, regardless of their job duties or length of service. It specifically required that any current school employee found to have a prior conviction for one of the enumerated crimes for which rehabilitation was barred “shall be released from employment.”

This case involves an unlicensed employee of the Cincinnati Public Schools (CPS), identified in court documents as “John Doe” to protect his true identity, who was terminated from his non-teaching position in 2008 after 11 years of employment pursuant to the adoption of R.C. 3319.391. Doe was notified that his firing was based on a 1976 conviction for drug trafficking. Although he had sought and been granted expungement of that conviction by the Hamilton County Court of Common Pleas in 1997, CPS informed Doe that because drug trafficking was among those offenses designated as ineligible for rehabilitation in Admin.Code 3301-20-01, the district was legally required to terminate his employment. After being permitted to exhaust the unused hours of sick leave he had accumulated during his employment with CPS, Doe was fired in  April 2009.

Doe filed suit in common pleas court seeking damages for breach of contract, a declaratory judgment that the retroactive application of the 2007 statutory scheme to terminate his employment violated his constitutional rights, and an injunction ordering CPS to reinstate him. CPS exercised its prerogative to remove the case to the Federal District Court for the Southern District of Ohio. The district court determined that adjudication of Doe’s claims required a constitutional analysis of Ohio R.C. 3319.391 and Admin.Code 3301-20-01. Rather than conducting that analysis itself, the district court submitted certified questions of state law to the Supreme Court of Ohio. The Court agreed to review the challenged provisions of state  law and determine whether they violated the prohibitions in the Ohio Constitution that prohibit retroactive laws that impair a substantive right of an individual or that interfere with an existing contract.

Attorneys for Doe argue that the language of R.C. 3319.391 is plainly retroactive because it mandates application of the 2007 statute to all current employees of public school systems regardless of when their employment began, and because it requires the firing of employees found to have certain prior convictions, including convictions that occurred before the effective date of the 2007 legislation. They assert that under R.C. 3319.081, Doe and other public school employees who have successfully completed three years of  service have a presumptive right to continued employment and may be terminated “only for violation of written rules or regulations” or other misconduct specified in that law.  In this case, they say, CPS admits that its reason for removing Doe from his job was not any form of misconduct set forth in R.C. 3319.081, but rather was the retroactive application of  R.C. 3319.391 to a conviction that took place more than 30 years before that statute was enacted. Under those circumstances, they argue, retroactive application of  the 2007 statutory changes to terminate Doe’s employment violated both Doe’s vested, substantive right to keep his job and the contractual obligations imposed on Doe and CPS  by R.C. 3319.081.

Attorneys for CPS and ODE contend that the obligations imposed on public school districts by R.C. 3319.391, which were to begin conducting criminal background checks of non-licensed employees and to terminate those found to have disqualifying convictions, were prospective rather than retroactive in nature. They point out that the application of the 2007 statute in Doe’s case did not deprive him of any pay, retirement credit or any other benefits that he had accrued during his 11 years of employment with CPS, but rather imposed a new restriction on the school district regarding the qualifications of persons it could employ from that date forward. 

With regard to Does’ claims that he had a vested property right and a contractual entitlement to future employment with the school district, they point out that the employment contract between Doe and CPS that was in force at the time of his firing was signed by Doe in July 2008, several months after the enactment of the challenged statute.  They also note that the language of that contract made Doe’s continued employment contingent on his meeting all requirements of state certification – which in July 2008 included passing the background check required under then newly enacted R.C. 3319.391.  ODE also argues that the language cited by Doe from R.C. 3319.081 is not applicable to city school districts or their employees, and thus cannot be the basis of any claim by Doe of a vested right to continuing employment with CPS.

Contacts
Christopher R. McDowell, 513.977.8588, for John Doe.

Mark J. Stepaniak, 513.381.2838, for Cincinnati Public Schools.

Benjamin C. Mizer, 614.466.8980, for the Ohio Department of Education.

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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.