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Tuesday, March 1, 2011

State of Ohio v. Dantae Chambliss et al., Case no. 2008-2251
8th District Court of Appeals (Cuyahoga County)

State of Ohio v. George D. Williams, Case no. 2009-0088
12th District Court of Appeals (Warren County)

State of Ohio v. Lambert Dehler, Case no. 2009-1974
11th District Court of Appeals (Trumbull County)

Couple to Couple League International, Inc. v. Richard A. Levin, Tax Commissioner of Ohio, Case no. 2010-0864
State Board of Tax Appeals (Trumbull County)

Disciplinary Counsel v. Tom John Karris, Case no. 2010-1898
Cuyahoga County


Is Pretrial Ruling Disqualifying Defendant's Attorney of Choice a 'Final' Order Subject to Immediate Appeal?

Or May Disqualification Be Appealed Only After Trial Completed?

State of Ohio v. Dantae Chambliss et al., Case no. 2008-2251
8th District Court of Appeals (Cuyahoga County)

ISSUE:  When a trial court issues a pretrial order dismissing a criminal defendant’s attorney of choice from the case, is that ruling a “final” order subject to immediate review by a court of appeals, or is such an order eligible for appeal only after the defendant’s trial has been completed with a replacement attorney?

BACKGROUND: Dantae Chambliss, James Bennett and Travis Sanders of Cleveland were charged as co-defendants in several drug-related crimes. If convicted of the charged offenses, they faced mandatory prison time. Each defendant retained his own attorney. All three  posted bond and were released from jail pending trial.

During pretrial proceedings, defense counsel moved the court to suppress evidence obtained by police through a search warrant, to compel the state to produce and unseal the affidavit that was the basis for the search warrant, and to disclose the identity of a confidential informant. Before the court ruled on those motions, the state entered into a plea negotiation with the defendants to avoid unsealing the affidavit and disclosing the identity of the informant. That negotiation resulted in a plea bargain in which the defendants agreed to withdraw their motions to unseal the affidavit and plead guilty to reduced charges that did not carry a mandatory prison term, and the state agreed to recommend a sentence of community control for one defendant and two-year prison terms for the others. The agreement included a proviso that the state would not object to a withdrawal of the guilty pleas if the court did not accept the state’s sentencing recommendations. The trial judge assigned to the case was unavailable on the day of the plea hearing. A replacement judge accepted the pleas.

On the date set for sentencing, the judge assigned to the case refused to accept the plea agreement, and the defendants entered oral motions to withdraw their guilty pleas and proceed to trial. On the date set for trial, Bennett’s attorney noted that the court had not yet taken action on the still-pending defense motion to unseal the search warrant affidavit. He stated that if he proceeded to trial without that information, to which he asserted his client was entitled, he would not be providing his client with effective assistance of counsel under the Sixth Amendment. 

In response, the judge dismissed all three of the defendants’ attorneys from the case, ordered the defendants to obtain new counsel within 10 days, and ordered that all three defendants’ bonds be revoked and they be returned to jail. The defendants appealed the revocation of their bonds and the trial court order disqualifying their attorneys of choice from representing them at trial. The 8th District Court of Appeals reversed the trial court order revoking bond and ordering the defendants back to jail.  In addressing the disqualification of counsel issue, however, the 8th District “reluctantly” held that it was required to follow a 1994 Supreme Court of Ohio decision, State ex rel Keenan v. Calabrese, in which this Court held that the dismissal of counsel by a trial court was not a final appealable order. In the absence of a final order, the 8th District held that it lacked jurisdiction to review the trial court’s order dismissing the defendants’ counsel of choice.

The defendants sought and were granted Supreme Court review of the 8th District’s ruling that the order disqualifying their attorneys was not a final order subject to immediate appellate review.

Attorneys for Chambliss and the other defendants jointly argue that the Court should reverse the 8th District on the dismissal of counsel issue and overrule its own 1994 holding in Keenan in light of the U.S. Supreme Court’s 2006 ruling in United States v. Gonzalez-Lopez.  In that decision, they say, the Court held that the wrongful denial of a criminal defendant’s right to his attorney of choice is a “structural error” so fundamental that it infects all subsequent proceedings in the case, and therefore a successful appeal automatically invalidates all parts of a previous trial.  Because tactical decisions made by defense counsel, such as whether to seek exclusion of certain evidence, how to phrase questions to witnesses and whether to have the defendant testify have an irreversible effect on any subsequent proceedings, they say, delaying the appeal of a claim of wrongful dismissal of counsel until after a trial with substitute counsel has been completed denies the defendant an effective legal remedy, and therefore denial of counsel of choice is a final appealable order under the criteria of R.C. 2505.02(B)(4).

Attorneys for the state respond that allowing the immediate appeal of a trial court’s pretrial dismissal of counsel is contrary to the established case law Ohio courts have followed since Keenan, and would open the door to future attempts by defendants to expand the range of trial court orders subject to immediate appeal to include claims such as the denial of speedy trial and double jeopardy motions. They assert that delays to accommodate such appeals will inevitably worsen the already-substantial backlogs of cases in state trial courts.  They also argue that appellate review after conviction can provide a defendant with an “effective or meaningful” remedy as required by existing law so long as any order requiring a new trial is carefully drawn to preserve the prerogatives of defense counsel in conducting a defense.

Contacts
Thorin Freeman, 216.443.7800, for the state and Cuyahoga County prosecutor's office.

Steven L. Bradley, 216.781.0722; Gregory S. Robey, 216.581.8200; and Mark B. Marein, 216.781.0722 for Dantae Chambliss, Travis Sanders and James Bennett.

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Is Application of 'Adam Walsh Act' to Crime Committed Before Law Took Effect Unconstitutionally Retroactive?

Under U.S., Ohio Constitutions’ Bans Against Ex Post Facto Laws

State of Ohio v. George D. Williams, Case no. 2009-0088
12th District Court of Appeals (Warren County)

ISSUE:  Does retroactive imposition of sex-offender registration requirements enacted in 2007 as part of the Ohio Adam Walsh Act (AWA) on offenders whose crimes were committed before the effective date of the AWA violate the ex post facto and due process clauses of the U.S. Constitution, and/or the provision of the Ohio Constitution prohibiting retroactive laws?

BACKGROUND: In a June 2010 decision, State v. Bodyke, the Supreme Court of Ohio voided as unconstitutional two sections of the Ohio Adam Walsh Act (AWA) that authorized the state attorney general to reclassify sex offenders who had previously been classified by judges under an earlier version of the law, “Megan’s Law.”  The Court held that the challenged provisions violated the separation-of-powers doctrine of the Ohio Constitution.  The defendants in Bodyke also argued that application of the AWA to crimes that were committed before the July 1, 2007  effective date of that legislation violated the constitutional prohibition against “ex post facto” laws (laws that retroactively increase the punishment for a crime after the crime has been committed).  However, because the Court’s ruling on the separation of powers issue voided the Bodyke defendants’ reclassifications under the AWA and reinstated their Megan’s Law registration status, the justices declined to review the appellants’ ex post facto arguments. In this case, a defendant not affected by the Bodyke decision challenges on ex post facto grounds a trial court order that applied the AWA classification scheme in sentencing him for a crime he committed before July 1, 2007.

When the General Assembly adopted the AWA, it specified that, regardless of when a defendant’s crime was committed, state courts sentencing sex offenders on or after July 1, 2007 must apply the new AWA sex offender classification scheme and include in the defendant’s sentence registration and community notification requirements set forth in the AWA that are more severe than similar provisions in the previous, Megan’s Law, version of the statute.

George Williams of Warren County was convicted in December 2007 of engaging in sexual conduct with a 14-year-old girl. The conduct on which his conviction was based took place in May 2007.  Prior to his sentencing hearing, Williams entered a motion asking the trial court to sentence him under the Megan’s Law sex offender classification scheme that was in effect on the date of his offense, rather than under the AWA classification scheme. The trial court overruled Williams’ motion. He was sentenced to three years of community control and classified as a Tier II offender under the AWA, requiring him to register with the sheriff in his county of residence every 180 days for the next 25 years. If he had been sentenced under the Megan’s law version of the statute, Williams, who had no prior sex-related convictions, would have been subject to once-a-year registration for 10 years.

Williams appealed, arguing that the retroactive application of the AWA registration requirements to his May 2007 offense violated the ex post facto, due process and double jeopardy clauses of the U.S. Constitution and the retroactivity clause of the Ohio Constitution. The 12th District Court of Appeals affirmed the trial court’s classification of Williams under the AWA as constitutional. The court of appeals cited several prior Supreme Court of Ohio decisions including State v. Cook (1998), State v. Wilson (2007), and State v. Ferguson (2008), in which this Court held that the statutory registration and community notification requirements imposed by the state on sex offenders were civil and  “remedial” measures designed to protect the public rather than punitive measures intended to punish or deter offenders. Applying that same analysis to Williams’ case, the 12th District held that retroactive imposition of the AWA registration requirements as part of Williams’ sentence did not retroactively “increase the punishment” for his crime, and therefore did not violate the ex post facto clause of the U.S. Constitution or the retroactivity clause of the state constitution.

Williams sought and has been granted Supreme Court review of the 12th District’s ruling.

Attorneys for Williams point out that the Cook, Wilson and Ferguson decisions cited by the 12th District all analyzed the pre-2008 sex offender classification scheme under Megan’s Law, not the more stringent requirements imposed by the AWA. They argue that these earlier decisions relied on the fact that, before a sex offender was classified under Megan’s Law, the court was required to conduct a hearing at which the judge reviewed the facts of that specific case and the defendant’s personal and social history to determine how likely that individual was to reoffend -- and then impose whatever level of registration and/or community notification the court found necessary to protect the community. They note that the AWA has eliminated judicial review of an individual offender’s history or the circumstances of his crime for purposes of classification, and instead imposes identical registration and community notification requirements on offenders based exclusively on their offense. The appellants argue that the AWA classification system is no longer primarily a remedial scheme related to the actual danger posed by individual offenders.

Attorneys for the state point to specific language included in the AWA stating that the legislature’s intent was “to protect the safety and welfare of the people of this state,” and that the exchange or release of information required by the statute “is not punitive.”  They argue that the registration and community notification requirements in the AWA are merely expansions of requirements that were already imposed under Megan’s Law, and assert that nothing in the 2007 changes to the law have changed the nature or intent of those requirements from remedial to punitive. Accordingly, they assert, the Court should follow its earlier holdings that requiring sex offenders to register with police and disclosing their presence to others who live, work or attend school nearby is not punishment, and applying those requirements retroactively does not offend the ex post facto provisions of the Ohio or U.S. constitutions.

NOTE: An amicus curiae (friend of the court) brief supporting the position of Williams has been submitted by the Cleveland Rape Crisis Center and Texas Association Against Sexual Assault. The American Civil Liberties Union also has submitted an amicus brief supporting Williams’ position. The Ohio attorney general’s office and Franklin County prosecutor’s office have entered amicus briefs supporting the position of the state. Copies of the amicus briefs and all other filings in the case can be accessed by going to the following hyperlink: http://www.supremecourt.ohio.gov/Clerk/ecms/searchbycasenumber.asp and entering the case number, 2009-0088, in the search box provided.

Contacts
Michael Greer, 513.695.1325, for the state and Warren County prosecutor's office.

Katherine A. Szudy, 614.466.5394, for George Williams.

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Is 'Adam Walsh' Classification of Sex Offender Who Was Never Classified Under Megan's Law Constitutional?

Case Also Asks If Offender Has Right to Counsel for Classification Hearing

State of Ohio v. Lambert Dehler, Case no. 2009-1974
11th District Court of Appeals (Trumbull County)

ISSUES:

BACKGROUND: Under Megan’s Law, which took effect Jan. 1, 1997, the cases of all prison inmates who were serving sentences for sexually-related crimes on that date were required to be reviewed by the trial court in which the offender was convicted prior to or within one year after the offender’s release from prison. The purpose of this review was for the court to determine, based on the circumstances of each offender’s crimes and his/her personal and social history, whether that person should be classified as a low-risk (sexually-oriented), medium risk (habitual) or high-risk (sexual predator) offender.  After classifying the offender, the court was then required to impose post-release registration and community notification requirements set by law for the class of offenders into which he or she had been placed.  From 1997 through June 2007, when an incarcerated  pre-1997 sex offender approached the completion of his/her prison term, the Ohio Department of Corrections notified the trial court in which that person was convicted. The court then reviewed the offender’s case, assigned the offender to a Megan’s Law classification, and notified the offender of his/her statutory post-release registration and (where applicable) community notification requirements.

Effective July 1, 2007, Megan’s Law was repealed and replaced by the AWA. Under the provisions of the AWA, pre-release judicial review of the cases of pre-1997 offenders was eliminated and the attorney general was empowered to automatically assign all past offenders to one of three newly-created “tiers” based exclusively on the crime(s) for which that person was convicted and assign new, more restrictive registration and community notification requirements on each offender. 

In a June 2010 decision, State v. Bodyke, the Supreme Court of Ohio severed (voided) the provisions of the AWA that authorized the attorney general to reclassify and impose more severe registration and community notification requirements on sex offenders who had previously been classified by a court under Megan’s Law. In this case, the Court is asked to decide whether its severance of the offending sections of law in Bodyke also bars the attorney general from imposing AWA registration and community notification requirements on pre-1997 sex offenders who did not become eligible for release from prison during the time Megan’s Law was in effect, and who therefore never came before a court for classification under the Megan’s Law version of the statute.

Lambert Dehler was convicted on two counts of rape and two counts of gross sexual imposition in 1992 and sentenced to long prison terms. Because he did not become eligible for release during the 1997-2007 period when Megan’s Law was in effect, the corrections department never referred Dehler’s case to the trial court for post-release sex offender classification. In January 2008, Dehler received a letter from the state attorney general’s office informing him that, pursuant to the AWA, the attorney general had classified Dehler as a Tier III (highest risk) offender based on his rape convictions, and that based on his classification, upon release from prison he would be subject to lifetime registration and community notification requirements.

Dehler filed a petition in the Trumbull County Court of Common Pleas contesting his classification, and requested that legal counsel be appointed to represent him in pursuing that petition. The trial court granted summary judgment in favor of the state, noting that under prior Ohio Supreme Court  decisions an order imposing registration or community notification requirements on a sex offender has been held to be a civil, remedial order that does not increase the “punishment” for a past crime. Applying that same analysis to Dehler’s claims, the trial court held that imposing AWA registration requirements on Dehler retroactively was not unconstitutional and Dehler had no right to appointed counsel in a civil proceeding that did not expose him to a threat of imprisonment.  Dehler appealed. The 11th District Court of Appeals affirmed the trial court’s award of summary judgment in favor of the state.

Dehler sought and was granted Supreme Court review of the 11th District’s holdings.

With regard to whether the AWA imposes “punishment,” and therefore may not be applied retroactively,  Dehler’s attorneys advance arguments similar to those offered in the preceding case.
(See State v. Williams preview above). They also assert the state attorney general has no legal authority to impose or change a criminal sentence except under the provisions of the AWA that have been voided by this Court’s decision in State v. Bodyke, and therefore the attorney general acted without jurisdiction in imposing AWA registration and notification requirements on Dehler.

With regard to the right to counsel, Dehler’s attorneys argue that because AWA registration and community notification requirements are now part of the sentence imposed on a defendant by a trial court at the conclusion of a criminal trial, any proceeding to contest the imposition of those requirements on Dehler based on his 1992 convictions is criminal in nature and invokes his right to appointed legal counsel.

As in State v. Williams (see preceding case preview above), attorneys for the state cite prior Supreme Court of Ohio decisions holding that sex offender classification, registration and community notification requirements are civil rather than criminal in nature, and therefore are not subject to constitutional challenges under either the ex post facto clause of the U.S. Constitution or the retroactivity clause of the Ohio Constitution.  For the same reason, they say, because imposition of the AWA’s registration and notification requirements is a remedial action intended to protect the public rather than to inflict “punishment”  on the offender, court proceedings to contest an AWA classification are civil rather than criminal in nature, and offenders challenging their classifications are therefore not entitled to appointed counsel.

Contacts
Deena L. DeVico, 330.675.2916, for the state and Trumbull County prosecutor's office.

Jason A. Macke, 614.466.5394, for Lambert Dehler.

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Tax Commissioner Challenges Appeals Board Grant of Tax Exemption for Family Planning Group's Activities

Sales of Books, Videos, CDs Cited As Non-Charitable Activities

Couple to Couple League International, Inc. v. Richard A. Levin, Tax Commissioner of Ohio, Case no. 2010-0864
State Board of Tax Appeals (Trumbull County)

ISSUE:  Did the State Board of Tax Appeals (BTA) act unreasonably or unlawfully in granting a real property tax exemption to a natural family planning group under R.C. 5709.12(B) based on a finding that the group’s property was “used exclusively for charitable purposes?”

BACKGROUND: Couple to Couple League International (CCLI) is a Cincinnati-based organization that conducts training classes and sells books, videos, compact discs and other merchandise explaining and encouraging the use of natural family planning practices approved by the Catholic Church. CCLI is classified by the Internal Revenue Service as a Section 501(c)(3) nonprofit corporation.

CCLI filed an application with the state tax commissioner seeking exemption from real property tax for the 2002 tax year for its headquarters facility on Delhi Pike in Hamilton County.  The property includes a 13,500 square foot structure of which approximately 50 percent is devoted to administrative offices and the other 50 percent is used as a warehouse to store the books, educational videos and other materials CCLI uses in its educational programs and sells to consumers  across the country, primarily via orders placed on the organization’s website.

The commissioner denied the application for tax exemption on the basis that CCLI did not use the property “exclusively for charitable purposes” because it primarily used the property to sell training classes and informational materials on a fee-for-service basis, generated significant revenue from those sales, and did not document any significant number of its classes or percentage of its materials that were provided free or at a reduced charge.

CCLI appealed the commissioner’s determination to the BTA.  In a 2-1 decision the BTA reversed the commissioner and granted a charitable use tax exemption for all of the property except a portion used as a parking lot.  The commissioner has exercised his right to appeal the BTA’s ruling to the Supreme Court. 

Attorneys for the tax commissioner assert that the BTA’s decision is contrary to a line of earlier decisions in which this Court has held that property is not entitled to a charitable use exemption when a significant portion of the property is used for the sale of goods or services for a fee and there is no evidence that any significant portion of those goods or services were provided free or at a reduced rate to persons unable to pay for them.  In this case, they point out, CCLI’s income tax return for the 2002-2003 fiscal year shows that it sold more than $620,000 of merchandise and realized gross profits of $328,000 from those sales, and also generated revenue totaling $196,000 from instructional classes conducted during that time period. In light of that level of commercial activity, and the absence of any showing of significant donated goods or services, they contend, the BTA acted unreasonably and contrary to established legal precedent in holding that the CCLI property qualified for a charitable use tax exemption.

Attorneys for CCLI point out that the holding of the BTA must be presumed correct and affirmed if the board’s decision is supported by reasonable and probative findings.  They note that, prior to the denial of its request for exemption for 2002, the property at issue in this case had been approved for charitable use tax exemptions for two previous years during which CCLI had engaged in the same types of activities cited by the commissioner.  They urge the Court to affirm the BTA’s finding that, despite the positive revenue generated by CCLI’s merchandise sales and training programs, the proceeds were all used to advance the income-tax-exempt educational and spiritual purposes set forth in CCLI’s constitution and bylaws, and therefore those activities qualify as a “charitable use” of the property under the applicable section of state tax law.

Contacts
Ryan P, O'Rourke, 614.466.5967, for the state tax commissioner.

Robert J. Meyers, 513.579.1500, for Couple to Couple League International Inc.

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Attorney Discipline

Disciplinary Counsel v. Tom John Karris, Case no. 2010-1898
Cuyahoga County

The Board of Commissioners on Grievances & Discipline has recommended that Strongsville attorney Tom John Karris be publicly reprimanded for falsely notarizing signatures on four different legal documents when he did not personally witness the document being signed by the person identified in the notary affidavit.

The board found that Karris violated the state attorney discipline rules that prohibit conduct involving fraud, deceit, dishonesty or misrepresentation and conduct that adversely reflects on the lawyer’s fitness to practice. The board dismissed as not proved by clear and convincing evidence a second count of misconduct alleging that Karris knowingly made false statements during his disciplinary hearing.

The Office of Disciplinary Counsel, which prosecuted the complaint against Karris before the board, has filed objections to the dismissal of the additional count alleging that Karris made false statements during the disciplinary proceedings and asks the Court to find that the evidence presented was sufficient to support a finding of additional misconduct. Counsel urges the Court to impose a six-month license suspension rather than a reprimand as the appropriate sanction for Karris’ rule violations.

Karris filed an answer to Disciplinary Counsel’s objections pointing out that four different witnesses gave conflicting testimony about the events surrounding Karris’ notarization of the contested signatures, which took place more than 10 years prior to Karris’ disciplinary hearing in July 2010.  He asserts that the hearing panel and full board reviewed all the evidence presented in the case and considered the same arguments advanced in Disciplinary Counsel’s objections, and concluded that the count alleging that Karris knowingly made false statements was not proved by the required standard of clear and convincing.  Citing past cases in which the Court has held that the hearing panel that saw and heard witnesses’ testimony is the best judge of their credibility, Karris urges the Court to affirm the board’s findings and recommendation of a reprimand as the appropriate sanction in his case.

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

Mary Cibella, 216.344.9220, for Tom J. Karris.

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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.