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Tuesday, Dec. 6, 2011

In re: J.V., Case no. 2011-0107
8th District Court of Appeals (Cuyahoga County)

State of Ohio v. Wesley Lloyd, Case no. 2011-0212
5th District Court of Appeals (Holmes County)

In re: M.W., Case no. 2011-0215
8th District Court of Appeals (Cuyahoga County)

S/O ex rel. Teamsters Local Union No. 436 et al. v. Board of County Commissioners, Cuyahoga County, Case no. 2011-0569
8th District Court of Appeals (Cuyahoga County)

In re: Application of Daniel Paul Poignon, Case no. 2011-1423
Board of Commissioners on Character & Fitness

Can Adult Portion of Juvenile's 'Blended' Sentence Be Imposed Based on Findings by Judge Rather Than Jury?

When Serious Youthful Offender Commits New Crime While in Juvenile Prison

In re: J.V., Case no. 2011-0107
8th District Court of Appeals (Cuyahoga County)


BACKGROUND: In Blakely v. Washington, decided in June 2004, the U.S. Supreme Court held that when a criminal defendant is found guilty by a jury, it is unconstitutional for the defendant’s sentence to be enhanced beyond the minimum penalties applicable to the crime for which he was convicted unless any factual findings (except a finding of a prior conviction) justifying the enhanced sentence are made by a jury, rather than by the judge.

In State v. Foster, decided in February 2006, the Supreme Court of Ohio reviewed various parts of Ohio’s criminal sentencing scheme in light of Blakely and related U.S. Supreme Court decisions. The Court ruled that parts of Ohio’s criminal sentencing statutes were unconstitutional because they authorized the imposition of enhanced sentences based on factual findings made by judges rather than by juries. The Court severed the sections of the Ohio sentencing statute that required judges to make specific findings to support sentence enhancements, and left the remainder of the statute in place.

This case involves a juvenile identified by the initials J.V. who received a blended juvenile/adult sentence as a serious juvenile offender (SJO) under R.C. 2152.14. That statute addresses cases involving the most severe and violent juvenile crimes.  It authorizes a juvenile court to sentence an offender classified as an SJO not only to a term of incarceration in a juvenile prison, but also to a stayed adult prison term. The statute authorizes the juvenile court to activate the stayed adult portion of the offender’s sentence by conducting a hearing at which the judge finds by clear and convincing evidence that the defendant has engaged in specified types of criminal conduct while serving his juvenile sentence.

While J.V. was serving his juvenile sentence, the state moved to activate the stayed adult prison term of six years that was included in his blended SJO sentence based on evidence that J.V. had assaulted a corrections officer and another inmate in the juvenile facility.  After a hearing pursuant to R.C. 2152.14, the juvenile court found that J.V.’s conduct met the criteria for invoking his adult sentence, and ordered that he serve six years in adult prison. 

The 8th District Court of Appeals later vacated J.V.’s sentence and remanded the case for resentencing because the juvenile court had not included a required term of postrelease control as part of the adult portion of the sentence.  The juvenile court conducted a new sentencing hearing at which it imposed the same blended juvenile/adult sentence as it had at J.V’s original trial, this time including a potential five-year term of postrelease control.   The judge then made new findings activating the six-year adult prison term and postrelease control requirement pursuant to R.C. 2152.14. The revised sentences were upheld on appeal by the 8th District.

J.V. now asks the Supreme Court to overturn the 8th District’s ruling based on two different propositions of law. 

His attorneys argue that the R.C. 2152.14  hearing through which the adult portion of his blended SJO sentence was activated by the juvenile court was unconstitutional under Blakely and Foster because the factual findings required to impose that additional penalty on him were made by a judge rather than by a jury. They also note that the statutory standard of proof the judge applied to invoke J.V.’s adult sentence was “clear and convincing evidence,” and assert that standard violated the constitutional requirement that in order to impose an adult prison sentence on a defendant, a court must find that he committed the charged offense “beyond a reasonable doubt.”

With regard to his resentencing to remedy the omission of postrelease control, J.V. asserts that the omission rendered his original sentence void because it lacked an element required by law, and the juvenile court had no jurisdiction to resentence him because he had passed his 21st birthday before the resentencing hearing was held, and the jurisdiction of the state’s juvenile courts over an offender terminates as a matter of law once that person reaches 21 years of age.

Arguing for the state, attorneys from the Cuyahoga County prosecutor’s office respond that the legal analysis set forth in Blakely and Foster with regard to the jury rights of adult offenders does not apply  in this case because juvenile offenders do not have the same jury trial rights as adults.  They argue that the non-jury hearing procedure set forth in R.C. 2152.14 for imposing the adult portion of a blended  SYO sentence closely mirrors the constitutionally upheld hearing process that is employed by adult courts when they send an offender back to prison for a parole violation or activate a conditionally stayed prison term that was part of a defendant’s original sentence upon a showing that the defendant has violated the conditions of the stay.  

With regard to the issue of continuing jurisdiction to resentence a juvenile offender after his 21st birthday, the state cites the Supreme Court of Ohio’s 2008  holding in State v. Simpkins that when a sentence imposed by a trial court is void for failure to include a required element, the trial court retains jurisdiction over the case for the limited purpose of correcting its previous error and imposing a valid sentence. They also point out that the misconduct on which activation of  J.V.’s adult sentence was based took place while he was 20 years old and therefore clearly under the jurisdiction of the juvenile court, even though his resentencing did not take place until after his 21st birthday.

NOTE: The Office of the Ohio Public Defender has entered an amicus curiae (friend of the court) brief supporting the position of defendant J.V., and the Ohio Attorney General’s Office has entered an amicus brief supporting the position of the state.

Kristen Sobieski, 216.698.2226, for the state and Cuyahoga County prosecutor's office.

Cullen Sweeney, 216.443.3660, for juvenile offender J.V.

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Must Court Compare Elements of Ohio, Foreign State Laws In Setting Penalty for Sex Offender Registration Violation?

When Out-of-State Offender Fails to Comply With Ohio Registration Duties

State of Ohio v. Wesley Lloyd, Case no. 2011-0212
5th District Court of Appeals (Holmes County)

ISSUE:  In setting the penalty for a violation of Ohio’s sex-offender registration requirements by a person whose sexually oriented offense was committed in another state, must a trial court strictly compare the statutory elements of the foreign state offense for which the defendant was convicted with the statutory elements of Ohio’s various sex crimes, and base the offender’s penalty on the level of offense for which he could be convicted in Ohio based on elements of the foreign state crime?

BACKGROUND: Under Ohio’s sex-offender registration statutes, an offender who fails to register or to maintain accurate registration of his current address with the sheriff in his county of residence is subject to the same punishment applicable to the sex crime upon which his duty to register is based.
When the crime on which a registration requirement is based was committed in a state other than Ohio, R.C. 2950.99(A)(1)(ii) provides that  an offender’s failure to register is punishable as “a felony of the same degree as the offense committed in the other jurisdiction would constitute if committed in this state.”

In this case Wesley Lloyd was convicted in Texas of “aggravated sexual assault” based on an incident in which he used force or threats of force to compel his ex-wife, who was currently living with him, to engage in sexual conduct with him.  The Texas statute under which he was convicted required a finding that a defendant acted with the guilty mental state of “knowingly” in committing the prohibited conduct.

Lloyd served a prison term in Texas. Following his release, he moved to Auglaize County in western Ohio in 2005. Upon establishing a residence there, Lloyd registered with the Auglaize County sheriff as a former sex offender pursuant to Ohio’s registration laws. He re-registered with the Auglaize County sheriff in 2006 and 2007.  On June 2, 2008, Lloyd called the Auglaize County sheriff’s office to report  that he had just completed relocating to Holmes County in northeast Ohio and provided his new address.  According to trial testimony, the sheriff’s employee he spoke with told Lloyd that he was required to register his address with the Holmes County sheriff, but could not do so until he had physically returned to Auglaize County and appeared at the sheriff’s office there to officially change his residence. Lloyd did not immediately contact the Holmes County sheriff to register at his new address.

Ten days later, on June 12, 2008, acting on information provided by the Auglaize County sheriff’s office, the Holmes County sheriff came to Lloyd’s new residence and arrested him for failing to register in Holmes County within three days after establishing a residence there and for failing to give the Holmes County sheriff 20 days advance notice that he planned to relocate there as required by law.  Lloyd was later also charged in Auglaize County with failure to give the Auglaize County sheriff 20 days advance notice that he was planning to move out of the county.

The charges were consolidated for trial in Holmes County.  Lloyd was found guilty on all three counts.  In sentencing him for the registration violations, the trial court determined that the Texas aggravated sexual assault charge on which Lloyd had been convicted was substantially equivalent to a charge of rape, a first degree felony, under Ohio law. Accordingly the trial court imposed the minimum sentence for a first degree felony, three years of imprisonment, for each of Lloyd’s registration violations, with those terms to be served concurrently (at the same time). 

 Lloyd appealed.  Among multiple assignments of error, he argued that the trial court erred in finding that the Texas offense for which he was convicted is “substantially equivalent” to the crime of rape as defined by Ohio law, and in imposing the penalty for a first-degree felony for his registration violations based on rape as his underlying offense. The 5th District Court of Appeals rejected Lloyd’s argument on that assignment of error. 

Lloyd sought Supreme Court review on multiple rulings by the 5th District. The Court agreed to hear argument solely on the issue of whether the trial court erred in finding that the Texas sexual assault statute that Lloyd was convicted of violating defines a crime that is substantially equivalent to rape as defined by Ohio law.

Attorneys for Lloyd point out that in order to convict a defendant of rape under Ohio R.C. 2907.02(B), a judge or jury must find that the accused “purposely compelled” another to engage in sexual conduct by force or threat of force.  They contrast that burden of proof with the lower level of culpability (“knowingly”) that was required  to convict Lloyd under the Texas  sexual assault statute that is the basis for his registration requirement.  They cite a 1980 Supreme Court  of Ohio decision, State v. Wilkins, in which the Court noted a substantive difference between proving that an act was “knowing” and  proving that it was  “purposeful” in the context of a rape offense.  Because the Texas sexual assault law sets a lower standard of culpability than Ohio’s rape statute, they assert, those two crimes are not substantially equivalent to each other, and the trial court erred in basing Lloyd’s penalty for failing to register on the minimum sentence for a first degree felony rape conviction.

Lloyd asserts that the Texas offense of which he was convicted is also not “substantially equivalent” to the Ohio crimes of gross sexual imposition, sexual imposition or sexual battery because the latter crimes all require the state to show that the defendant’s actions involved another person who is “not the spouse” of the accused, while the Texas statute includes no such requirement.  Under a strict comparison of the elements of Texas and Ohio laws, Lloyd argues, the only Ohio offense that he could be convicted of based on the elements of the Texas sexual assault statute is aggravated menacing, a misdemeanor that would support only a one-year prison term if it were the basis for Lloyd’s registration requirement.

Attorneys for the state assert that in adopting the sentencing provisions of Ohio’s sex offender registration statute for out-of-state offenders, the General Assembly did not mandate a strict element-to-element comparison of a defendant’s foreign state sex crime and a corresponding Ohio statute, but merely required the sentencing court to identify an Ohio offense that is “substantially” the same.

They urge the Court to apply that standard in this case, affirm the 5th District’s holding that because the Texas sexual assault offense of which Lloyd was convicted is a first degree felony in Texas, and the statute defining that crime prohibits exactly the same conduct (compelling sexual conduct against the will of another by force or threat of force) as is prohibited by Ohio’s rape statute, Lloyd’s Texas offense was substantially equivalent to rape in Ohio.  Accordingly, they say, the trial court properly sentenced Lloyd for his registration violations as if his duty to register was based on having committed rape in Ohio, and the court of appeals properly affirmed that sentence.

Sean M. Warner, 330.674.4841, for the state and Holmes County prosecutor's office.

Stephen P. Hardwick, 614.466.5394, for Wesley Lloyd.

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Can Juvenile Waive Right to Counsel Without First Consulting With Parent, Adult Custodian or Lawyer?

When Interrogated in Police Custody Prior to Filing of a Juvenile Complaint

In re: M.W., Case no. 2011-0215
8th District Court of Appeals (Cuyahoga County)

ISSUE: Does language in R.C. 2151.352 indicating that a child has a right to counsel at “all stages of the proceedings” in a delinquency case require that a juvenile in police custody prior to the filing of a delinquency complaint must be allowed to consult with a parent, guardian, adult custodian or attorney before the juvenile can validly waive his or her right to counsel during his interrogation?

BACKGROUND:  A 15-year-old identified as M.W. was taken into custody by Cleveland police based on his suspected involvement in a street corner robbery. Prior to any consultation with his mother or father or an attorney, and prior to the filing of a complaint alleging that he had committed a delinquency offense, M.W. was informed of his Miranda rights to remain silent and to be represented by an attorney, and signed a written waiver of those rights.  Under subsequent questioning by officers without a parent or attorney present, M.W. admitted that he had “watched the back” of a second juvenile while the other boy robbed a victim at gunpoint, and that the two had agreed to share the proceeds of the robbery.

During his trial in juvenile court, a written transcript of M.W.’s statement to police admitting his role in the robbery was entered into evidence. M.W. was found guilty of a delinquency count of aggravated robbery with a firearm specification and committed to the custody of the Ohio Department of Youth Services for a minimum of two years up to a maximum of until his 21st birthday. 

M.W. appealed, asserting among other claims that his waiver of Miranda rights had not been made knowingly and voluntarily because he had not had the opportunity to consult with a parent or attorney before making that waiver.  Based on that alleged defect, M.W. asserted that his waiver was invalid and the juvenile court should not have admitted his statement into evidence because the statement had been elicited by police interrogation that violated his constitutional right against self-incrimination.

The 8th District Court of Appeals affirmed the juvenile court’s action. In its decision, the court of appeals ruled that under prior court decisions interpreting the Fifth Amendment rights to counsel and against self-incrimination, the evidence in this case did not show that M.W.’s waiver of those rights was uninformed or involuntary. The court also held language in R.C. 2151.352 stating that a juvenile defendant is entitled to legal representation “at all stages of the proceedings under this Chapter ...”  referred only to a defendant’s right to representation after a delinquency complaint has been filed in a juvenile court and during subsequent court proceedings, and did not apply to the interrogation of a juvenile suspect prior to the filing of a complaint.

M.W. sought and was granted Supreme Court review of the 8th District’s decision.

Attorneys for M.W. point to the Supreme Court of Ohio’s 2007 decision in In re C.S., in which this Court held that by enacting R.C. 2151.352 “the legislature provided a statutory right to counsel (for juvenile defendants) that goes beyond constitutional requirements.”  They quote the Court’s specific holding in C.S. that “if the juvenile is not counseled by his parent, guardian, or custodian and has not consulted with an attorney, he may not waive his right to counsel.”  While acknowledging that the waiver in C.S. involved a juvenile’s waiver of counsel during an in-court hearing, they assert that “proceedings” addressed in R.C.  Chapter  2151 include the detention, processing and interrogation of a juvenile before a complaint is filed, and argue that the extra protection of a child’s rights mandated by R.C. 2151.352 “at all stages” of juvenile proceedings should be read to at least require consultation with some independent adult adviser before a juvenile can validly waive his rights during police interrogation. 

Attorneys for the state, represented by the Cuyahoga County prosecutor’s office, cite prior state and federal court decisions holding that, just as an adult defendant, a juvenile accused of a crime is entitled to Miranda warnings but is capable of knowingly and voluntarily waiving his or her Miranda rights without prior consultation with anyone else. In cases involving juvenile offenders, they assert, courts have examined the accused’s age, mental competency and familiarity with law enforcement and court procedures in evaluating whether a waiver of rights was knowing and voluntary. In this case, they point out that M.W., who had multiple prior interactions with police and the juvenile justice system, was read his Miranda rights, and indicated prior to signing a written waiver that he could read and understood it, was not under the influence of alcohol or any other drug, and was voluntarily agreeing to talk to officers about the robbery. 

With regard to R.C. 2151.352, they argue that the 8th District correctly found that interrogation of a juvenile suspect prior to the filing of a delinquency complaint is not part of the juvenile court “proceedings” for which the statute requires legal representation. They also point out that this Court’s decision in In re C.S. addressed only the limited  issue of whether a juvenile is entitled to legal representation during a hearing before a juvenile court magistrate if the defendant is not represented at that hearing by a parent or other adult adviser. They assert that nothing in C.S. should be read to establish a juvenile’s absolute right to consultation with an adult prior to the filing of a complaint, or to invalidate a knowing waiver of rights by a juvenile simply because it was entered without prior adult consultation.

NOTE: A joint amicus curiae (friend of the court) brief supporting the position of M.W. has been submitted by the Juvenile Law Center, National Juvenile Defender Center, American Civil Liberties Union of Ohio and Children’s Law Center.

Daniel T. Van, 216.443.7800, for the state and Cuyahoga County prosecutor's office.

Amanda J. Powell, 614.466.5394, for juvenile offender M.W.

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Can County Commissioners Offer Early Retirement Incentive Plan to Employees of All But One Department?

S/O ex rel. Teamsters Local Union No. 436 et al. v. Board of County Commissioners, Cuyahoga County, Case no. 2011-0569
8th District Court of Appeals (Cuyahoga County)

ISSUE:  Under R.C. 145.297, the provision of state law that authorizes political subdivisions to establish an early retirement incentive plan (ERIP) for their employees, did Cuyahoga County have discretion to create an ERIP in which all employees of county government were potentially eligible to participate except those employed by the county’s Sanitary Engineering Division?

BACKGROUND:  In 2008, the Cuyahoga County Board of Commissioners adopted an ERIP that allowed  all county offices the opportunity to offer an early retirement incentive to their employees between Jan. 9, 2009, and Jan. 8, 2010, as a way to avoid layoffs and save money in the future by not replacing the workers who retired.

In their resolution adopting the plan, the commissioners authorized each office of county government to separately “opt in” or “opt out” of the incentive plan as an employing unit, with the sole exception that the Sanitary Engineer’s Division (SED) was explicitly excluded from participating. Thirteen  employees of the SED filed a grievance with the Board of Commissioners asserting that their exclusion from the incentive plan was contrary to law. After a hearing in January 2009, the board denied the grievance and the employees did not pursue an administrative appeal of that ruling.

In December 2009, Teamsters Local No. 436, in which some SED employees were members, and Kevin Lash, an SED employee who was not among the 13 workers who filed the earlier grievance, filed a request with the Cuyahoga County prosecutor to seek a court order to recover proceeds from ERIP payments that had been made by the county on behalf of other county employees during the preceding 11 months on the basis that the plan was illegal and void because it excluded SED employees from participating. 

When the prosecutor refused to file such a suit, the union and Lash filed a “taxpayer action” in the Cuyahoga County Court of Common Pleas under R.C. 309.13, which allows an individual citizen to seek a court injunction to restrain an agency or officer of government from unlawfully expending public funds or engaging in conduct that violates a public right if the local prosecutor has refused to take that action. The complaint was later amended to seek a declaratory judgment that the ERIP adopted by the commissioners was contrary to law, and a writ of mandamus compelling the commissioners to extend the incentive plan to SED employees.

The trial court granted a declaratory judgment holding that the ERIP ordinance was contrary to R.C. 145.297 because it improperly extended an early retirement incentive to some workers who were part of an employment unit but not to others in the same unit. The court denied the requested injunction and writ of mandamus on the basis that the plaintiff taxpayers had waited too long to seek that relief.

The commissioners appealed the trial court’s declaratory judgment that they had acted contrary to law in adopting an ERIP that excluded SED employees. The 8th District Court of Appeals rejected the board’s arguments and affirmed the ruling of the trial court. The commissioners sought and were granted Supreme Court review of the 8th District’s decision. 

Attorneys for the county commissioners argue that R.C. 145.297 and related administrative code provisions give boards of county commissioners wide discretion to designate specific “subordinate employment units” within the overall county work force, and to either extend or not extend ERIP incentives to them on a unit-by-unit basis.  In this case, they assert, the commissioners determined that including SED workers in the ERIP would have been contrary to the cost-saving intent of the plan, because sanitation contracts with surrounding communities would have required the county to both pay retirement incentives and then immediately replace virtually all of the 25 SED employees who were eligible to retire, resulting in a net loss to the county of over $2 million during the period of the ERIP. They argue that the commissioners acted within their discretion in identifying the overall ERIP-eligible employment unit as “Cuyahoga County Board of Commissioners excluding the SER,” and urge to court to overturn the lower court rulings that the ERIP was illegal based on that exclusion.

Attorneys for the union urge the Court to affirm the 8th District’s determination that R.C. 145.297 requires boards of county commissioners to either extend or withhold the opportunity to participate  in an ERIP to all employees within an employment unit that consists of either “a county” or “a county agency.”  In this case, they assert, the SED was not a separate “county agency” overseen by a separate elected official such as the county prosecutor, clerk of courts, coroner, or sheriff, but was rather an integral part of a single employment unit consisting of all divisions and departments that answer directly to the county commissioners. They contend that R.C. 145.297(C)(3) sets forth the only permissible exception to the requirement that all employees within the same employment unit be treated equally, and that exception allows limiting retirement incentives to a stated percentage of all employees in the unit, but does not allow including or  excluding certain workers in an incentive plan based solely on the office or division in which they work.

Dale Pelsozy, 440.248.4210, for the Cuyahoga County Board of Commissioners.

Joseph J. Guarino III, 216.397.5844, for Teamsters Local Union No. 436.

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Application to Take Bar Examination

In re: Application of Daniel Paul Poignon, Case no. 2011-1423
Board of Commissioners on Character & Fitness

The Supreme Court of Ohio’s Board on Character and Fitness has recommended that the application of Daniel P. Poignon of  Toledo to take the Ohio Bar Examination be disapproved, and that Poignon not be permitted to register as a candidate for admission to the practice of law in the future. That recommendation was based on a report filed with the board by the Toledo Bar Association and the board’s own determination that Poignon does not meet the character and fitness requirements for admission to the practice of law in Ohio.

The board noted that Poignon was previously licensed as a pharmacist in 1984 and worked at several jobs in that field over a 15 year period, but was dismissed from several positions for improper handling or use of prescription medications and had his pharmacy license permanently revoked by the Ohio Board of Pharmacy in 2000 based on two felony convictions for theft of drugs from a Toledo pharmacy where he was employed.  After completing a term in a correctional treatment facility and failing in an effort to compel the pharmacy board to allow him to apply for reinstatement, Poignon obtained a certificate in paralegal studies and worked for a time at a Toledo law firm. He was admitted to the University of Toledo Law School in 2007 and graduated in 2010.

Pursuant to its duties to certify to the Supreme Court the character and fitness of prospective applicants for admission to Ohio bar, the Toledo Bar Association admissions committee reviewed Poignon’s application to take the state bar examination and interviewed him. The committee subsequently recommended against allowing Poignon to take the 2012 bar examination, based on his past conduct involving fraud, deceit and misrepresentation; failure to comply with the ethical rules of another profession; failure to demonstrate personal accountability for his prior drug-related offenses; and neglect of his personal financial responsibilities over the 10 years since he completed his criminal sentence. The Board of Commissioners on Character and Fitness reviewed the bar association’s recommendation and Poignon’s appeal, and recommended not only that that the Court deny his current application for admission to the bar, but also that he not be permitted to reapply in the future.
Poignon has filed objections to the board’s findings and recommendation that he be permanently barred from reapplying for admission to the bar. While acknowledging that his recent lack of regular employment and unmet financial obligations, in combination with his past conduct, do not demonstrate current fitness for admission to the bar, he urges the Court not to impose a lifetime ban against him but rather to reserve judgment and allow him to take further actions that show his ability to be a competent and ethical attorney. 

Special Counsel for the Board of Commissioners has filed a response to Poignon’s objections in which counsel disputes Poignon’s claims that the board’s recommendation placed too much emphasis on potential negative public perceptions that might result from the admission as an attorney of a person who was previously stripped of another professional license. Counsel argues that the evidence reviewed by the board showed that Poignon was involved in the theft and/or abuse of prescription drugs for most of the 15 years he was licensed as a pharmacist, that he continues to blame his former employers, coworkers, attorneys and others for the conduct that resulted in his felony convictions, and that he has not held regular employment for more than a few months or demonstrated personal financial responsibility during the 10 years since he completed his sentence in 2001.  Counsel asserts that these factors support the board’s conclusion that Poignon failed to demonstrate either his current fitness or a reasonable likelihood of achieving future fitness for admission to the practice of law.

James E. Brazeu, 419.249.7900, for Daniel Poignon.

Michael Thomas, 614.464.5686, for the Bd. Of Commissioners on Character and Fitness.

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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.