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Wednesday, August 22, 2012

State of Ohio v. Donny A. Howard, Case no. 2011-2126
Second District Court of Appeals (Montgomery County)

2200 Carnegie, LLC v. Cuyahoga County Board of Revision, et al., Case no. 2011-2147
Eighth District Court of Appeals (Cuyahoga County)

In re Bruce S., Case no. 2012-0059
First District Court of Appeals (Hamilton County)

Trumbull County Bar Association v. Joseph David Ohlin, Case no. 2012-0659
Trumbull County

Cincinnati Bar Association v. Kathleen Donohoe Mezher and Frank Eric Espohl, Case no. 2012-0684
Hamilton County


Do Adam Walsh Act Penalties Apply to Pre-2008 Sex Offender’s 2010 Registration Violation?

Where Registration Violation Was Committed After New Sentencing Law Enacted

State of Ohio v. Donny A. Howard, Case no. 2011-2126
Second District Court of Appeals (Montgomery County)

ISSUE:  In sentencing a pre-2008 sex offender for a violation of his post-release registration duties, if the failure to register violation took place after the Ohio Adam Walsh Act (AWA) and its companion sentencing bill, S.B. 97, became effective on January 1, 2008, should the offender be sentenced for his registration violation under the pre-AWA (Megan’s Law) penalty scheme that was in place on the date his duty to register arose, or under the enhanced AWA/ S.B. 97 penalty scheme that was in place on the date  his registration offense was committed?

BACKGROUND: In a series of recent decisions, the Supreme Court of Ohio has held that applying the sex offender classification scheme, registration, and community notification requirements of the AWA to offenders whose crimes were committed before the January 1, 2008 effective date of that legislation violated provisions of the Ohio Constitution.  Those decisions, including State v. Bodyke  (June 2010), State v. Gingell (April 2011) and State v. Williams (July 2011) have barred application of the AWA to pre-2008 offenders, and reinstated the registration requirements to which pre-2008 offenders were subject under the pre-AWA version of Ohio’s sex-offender statute, commonly referred to as Megan’s Law.

This case involves Donny Howard of Dayton, who was convicted of rape in 2000 and classified as an habitual offender under Megan’s Law.  Pursuant to that classification, he was required to register his address annually with the Montgomery County Sheriff for 20 years and to notify the sheriff 20 days in advance of any change of address. Under the penalty provisions of Megan’s Law, Howard was informed that a violation of his post-release registration duties would be punishable as a fifth-degree felony.

When the legislature enacted the AWA to replace Megan’s Law in January 2008, Howard was reclassified as a Tier III (most dangerous) offender subject to registration every 90 days for life. The new law made no change in the requirement that he must  give the sheriff 20 days advance notice of any change of address. Under the revised sentencing provisions of S.B. 97, which took effect the same day as the AWA, Howard was informed that a violation of his registration requirements would be punishable as a first-degree felony, which would require the imposition of  a mandatory minimum prison term.

In 2010, Howard was charged with a first-degree felony count of failure to register for changing his place of residence without providing the sheriff with the required notice.  He entered a plea of no contest to that charge and was sentenced to the mandatory minimum term of three years in prison.  Between the dates of his indictment and conviction on the failure to register charge, the Supreme Court announced its  decision in State v. Bodyke, which declared the reclassification of pre-2008 sex offenders under the AWA to be unconstitutional. 

Howard appealed his first-degree felony conviction and sentence, arguing that Bodyke barred application of the AWA and its enhanced penalties to his case and required that his failure to register offense be charged as a fifth-degree felony under the Megan’s Law penalty provisions that were in effect on the date his duty to register arose. The Second District Court of Appeals agreed with Howard’s argument, reversed his first-degree felony conviction and sentence, and remanded the case to the trial court for resentencing as a fifth-degree felony. The state sought and was granted Supreme Court review of the Second District’s ruling.

On behalf of the state, attorneys for the Montgomery County prosecutor’s office argue that the Supreme Court’s Bodyke, Gingell and Williams decisions held that the more severe registration and community notification requirements of the AWA may not be imposed retroactively against offenders for crimes they committed before the AWA took effect on January 1, 2008.  In this case, they point out, the 2010 failure to notify violation for which Howard was sentenced took place two years after the AWA and its enhanced sentencing requirements for registration violations became law.  Thus, they contend, charging and sentencing Howard with a first-degree felony under the 2008 statute for a violation he committed  in 2010 cannot be a “retroactive” application of the law, and the Second District’s decision should be reversed.

Attorneys for Howard argue that the Bodyke, Gingell and Williams decisions held that none of the provisions of the AWA may be applied retroactively to pre-2008 offenders like Howard, and that the pre-AWA classifications and registration requirements imposed on them under Megan’s Law must be reinstated.  They point out that Howard’s duty to report address changes to the sheriff was imposed at the time of his conviction and classification under Megan’s Law, and that duty remained in force and unchanged after the AWA was enacted.  Because his duty to register dates back to his original offense, Howard asserts that his 2010 violation of that duty remained punishable as a fifth-degree felony under Megan’s Law, and the Second District was correct in holding that applying the AWA and S.B. 97 to increase the severity of that offense to a first-degree felony was an unconstitutional retroactive application of those laws.

Contacts
Johnna M. Shia, 937.225.5757, for the state and Montgomery County prosecutor’s office.

Marshall G. Lachman, 937.743.9443, for Donny Howard.

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Does Auditor’s Failure to Timely Notify Property Owner of Tax Valuation Challenge Permanently Bar Review by County Board?

2200 Carnegie, LLC v. Cuyahoga County Board of Revision, et al., Case no. 2011-2147
Eighth District Court of Appeals (Cuyahoga County)

ISSUE: When an interested party files a timely complaint with a county Board of Revision seeking to change the tax valuation of a parcel of real property, but the county auditor fails to notify the property owner within 30 days after the statutory deadline for filing of such complaints as required by R.C. 5715.19(B), does that failure of notice permanently deprive the BOR of jurisdiction to hear and decide the complaint?

BACKGROUND:  In March 2007, the Board of Education of the Cleveland Municipal School District (BOE) filed a complaint with the Cuyahoga County Board of Revision (BOR) seeking an upward adjustment in the 2006 tax valuation of two parcels of real property within the school district that were owned by a business entity identified as 2200 Carnegie LLC. The complaint was based on a reported sale of the property at a price higher than its previous tax valuation that had occurred in October 2006.

The complaint came before the BOR, which granted the requested increase in valuation based on the October 2006 sale price of the property. 2200 Carnegie appealed the BOR’s decision to the Cuyahoga County Court of Common Pleas, asserting that it had never received notice of the complaint from the county auditor as required by R.C. 5715.19(B). On September 8, 2008, the common pleas court vacated the BOR’s decision and issued an order remanding the case to the BOR, instructing the county auditor to send notice of the BOE’s complaint to the property owner, and directing that, after the required notice had been given, the BOR should hear and decide the BOE’s valuation challenge. Neither party objected to or appealed the common pleas court’s order.

On remand, the BOR sent notice of the BOE’s complaint to 2200 Carnegie, which filed a counter-complaint. On April 16, 2009 the BOR conducted a hearing at which both parties were represented by counsel and during which the board considered both the complaint and counter-complaint. The BOE again argued that the property should be valued for the 2006 tax year based on the October 2006 sale price. 2200 Carnegie argued that the value of the property had declined between the October 2006 sale and the time of the April 2009 hearing. 

The BOR subsequently issued a new decision adjusting the 2006 tax valuation of the property to reflect the October 2006 sale price. That decision was appealed by 2200 Carnegie to the common pleas court, which affirmed the BOR’s valuation. The owner then appealed the common pleas court’s ruling to the Eighth District Court of Appeals.

In a 2-1 decision, the Eighth District reversed the common pleas court and ruled that the BOR had acted without jurisdiction in considering the BOE’s complaint. The majority opinion held that, even though the BOE had filed a valid complaint with the BOR prior to the March 31, 2007 statutory deadline for filing 2006 valuation complaints, the county auditor’s failure to send notice to the property owner within 30 days after that deadline had divested the BOR of jurisdiction to consider the complaint, and the error could not be remedied by a “do over” notification sent after the statutory time limit had expired. The BOR sought and was granted Supreme Court review of the Eighth District’s ruling.

Attorneys for the BOE, joined by an amicus curiae (friend of the court) brief submitted by the State of Ohio on behalf of the state tax commissioner, argue that the Eighth District erred in finding that the BOR’s administrative error in failing to send notice of the BOE’s complaint to the property owner was jurisdictional rather than merely directive in nature.  They point out that the practical effect of the court of appeals’ holding in this case was to deprive the BOE of its legal right to pursue an adjustment of property valuation despite its compliance with every requirement of the law, based on an administrative error by a government agency that was completely outside the control of the school board.

They also assert that the state laws establishing and defining the powers of county boards of revision do not give those boards discretion to dismiss a valid tax valuation complaint, and point to prior court decisions holding that when an administrative board such as a BOR has failed to comply with a statutory notice requirement, the appropriate remedy is not to dismiss an otherwise valid complaint, but to order the board to provide the required notice and then proceed to decide the complaint on its merits.

Attorneys for 2200 Carnegie assert that a county BOR’s authority to review and decide tax valuation complaints is subject to specific conditions and limitations imposed by statute. They argue that the 30-day time limit imposed by R.C. 5715.19(B) for a BOR to notify a property owner after a valuation complaint has been filed is one of those statutory limitations, and urge the court to affirm the Eighth District’s holding in this case that the BOR’s failure to comply with that notice requirement rendered any subsequent action or decision of the board void for lack of jurisdiction.

Contacts
James H. Hewitt III, 216.241.5700, for the Cuyahoga County Board of Education.

Saundra Curtis-Patrick, 216.443.7795, for the Cuyahoga County Board of Revision.

Larry W. Zukerman, 216.696.0900, for 2200 Carnegie LLC.

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May Court Apply ‘Adam Walsh Act’ Sex Offender Provisions to Crimes Committed Between July 1, 2007 and January 1, 2008?

In re Bruce S., Case no. 2012-0059
First District Court of Appeals (Hamilton County)

ISSUE:  In sentencing  a defendant for a sexually related offense that was committed between July 1, 2007, and January 1, 2008, may a trial court impose the registration and community notification provisions enacted as part of the Ohio Adam Walsh Act, or must the court apply the registration and community notification provisions of the state’s previous sex offender statute (Megan’s Law)?

BACKGROUND: In June 2007, both houses of the Ohio General Assembly approved S.B. 10, also known as the Ohio Adam Walsh Act (AWA).  The bill, signed into law by Governor Strickland on June 30, 2007, repealed multiple provisions of the state’s then-existing sex offender classification statute, known as Megan’s Law, and imposed in their place stricter and more extensive registration and community notification requirements for persons convicted of sexually related crimes. 

S.B. 10 specified that most of the changes it made in the classification, registration and community notification requirements of Ohio sex offenders would take effect on January 1, 2008. However the legislature also included in the bill language specifying that it was an “emergency” enactment... i.e. a bill that becomes law immediately upon being signed by the governor.

This case involves a juvenile offender identified as Bruce S. who was convicted of a sexually related offense that was committed on September 1, 2007. In sentencing Bruce for that conviction, the Hamilton County Juvenile Court classified him as a Tier III (most dangerous) sex offender under the AWA, and ordered him to comply with the increased registration and community notification requirements imposed by S.B. 10. 

Bruce appealed, asserting that the trial court had violated the Ohio Constitution’s prohibition against retroactive laws by sentencing him under provisions of S.B. 10 for a crime that was committed before those provisions took effect.  The First District Court of Appeals ruled that the provisions of S.B. 10 applicable to Bruce’s offense did not become effective until January 1. 2008. Based on that holding, the court of appeals reversed Bruce’s classification as a Tier III sex offender under the AWA, and remanded the case to the juvenile court with a directive to reclassify and resentence him under Megan’s Law.

In its opinion, the First District certified that its holding regarding which statutory scheme should be applied was in conflict with State v. Scott, a 2011 decision in which the Eighth District Court of Appeals held that a trial court sentencing a defendant for a sex crime committed after July 1, 2007 had properly applied the AWA rather than Megan’s Law. The Supreme Court agreed to review the case to resolve the conflict between appellate districts.

Both sides cite the Supreme Court’s July 2011 decision in State v. Williams, which held that the increased penalties imposed by the AWA may not be imposed retroactively, as supportive of their positions.

Attorneys for the state point out that the Williams decision specifically and repeatedly states that the sentencing  provisions of the AWA may not be applied to offenders whose crimes were committed “prior to the enactment” of S.B. 10.  They argue that as “emergency” legislation, S.B. 10 became law on June 30, 2007, the day it was signed by the governor. Therefore, they assert, the Williams decision must be read to apply only to bar application of the AWA to crimes committed before June 30, 2007. Because Bruce’s offense in this case was committed on September 1, 2007, two months after enactment of the new law, they say, the court should overrule the First District and reinstate the trial court’s finding that sentencing Bruce under the AWA classification scheme was not an unconstitutional retroactive application of the law.

Attorneys for Bruce S. point out that the only crime at issue in the Williams case was committed before either the governor’s June 30, 2007 signature of S.B. 10 or the January 1, 2008 effective date of the AWA classification scheme set forth in that bill, so there was no need for the Williams court to consider or address the status of a crime committed between those two dates.

They urge the court to follow the rule set forth in its 1981 decision in Cox v. Ohio Department of Transportation for implementing legislation that repeals an old law, but sets a delayed effective date for the new law that replaces it.  In Cox, they say, the court held that under those circumstances the portion of a bill repealing  former provisions of law does not take effect until the portion of the bill creating new provisions takes effect. Because S.B. 10 clearly indicated the legislature’s intent that the new AWA classification scheme would not take effect until January 1, 2008, they assert that under the rule of Cox, Megan’s Law remained in force between July 1, 2007 and January 1, 2008, and therefore the First District was correct in holding that Bruce must be sentenced under the Megan’s Law classification scheme, not under the AWA.

Contacts
Paula E. Adams, 513.946.3228, for the state and Hamilton County prosecutor’s office.

Amanda J. Powell, 614.466.5394, for Bruce S.

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Attorney Discipline

Trumbull County Bar Association v. Joseph David Ohlin, Case no. 2012-0659
Trumbull County

The Board of Commissioners on Grievances & Discipline has recommended that Warren attorney Joseph D. Ohlin be permanently disbarred for multiple violations of state disciplinary rules in his dealings with five different clients.

The board found that Ohlin obtained settlements from defendants and insurance companies on behalf of his clients, but failed to notify the clients that he had received the settlement checks, did not provide a proper accounting to the clients of his disposition of the settlement proceeds, failed to respond to clients’ inquiries regarding the status of their funds, and failed to distribute amounts that were due to the clients despite their repeated requests that he do so.

The board also found that Ohlin, whose license has been under suspension since 2010 for prior disciplinary violations, failed to cooperate with the Trumbull County Bar Association during its investigation of the client grievances filed against him, and that the complaint lodged against him by the bar association had to be prosecuted before the disciplinary board through default proceedings because he did not file an answer to the complaint or appear for a hearing on those charges.

After being notified by the court that the disciplinary board had recommended his permanent disbarment, Ohlin filed objections asserting that his misconduct had been the result of unspecified mental health issues and asking the court to remand the case to the board of commissioners and allow him to introduce evidence in mitigation of the charged rule violations.

In response to those objections, counsel for the Trumbull County Bar Association cite multiple prior cases in which the court has refused to allow attorneys who failed to cooperate with disciplinary authorities during the investigation and prosecution of their misconduct to introduce mitigating evidence for the first time during the court’s review of the case.  They point out that Ohlin provided no supporting medical evidence for his mental illness claims, and urge the court to reject his last-minute attempt to have the case remanded for new proceedings after refusing to answer the complaint, appear before the board for a hearing, or otherwise cooperate with the disciplinary process as required by state bar governance rules.

Contacts
Edward L. Lavelle, 330.373.1035, for the Trumbull County Bar Association.

Joseph T. Dull, 330.652.5006, for Joseph Ohlin.

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Attorney Discipline

Cincinnati Bar Association v. Kathleen Donohoe Mezher and Frank Eric Espohl, Case no. 2012-0684
Hamilton County

The Board of Commissioners on Grievances and Discipline has recommended that the court publicly reprimand Cincinnati attorney Kathleen D. Mezher and an associate in Mezher’s law firm, Frank E. Espohl, for violating state disciplinary rules by advertising a “free initial consultation” on the firm’s website without disclosing to clients who accepted that offer that the firm would begin billing for its services for the portion of an initial consultation following the client’s completion of a written fee agreement.

The board found that by approving the “free consultation” language use on the firm’s website while
instructing firm members to charge fees for a portion of such consultations without prior notice to clients, Mezher violated the disciplinary rule that prohibits lawyers from making a false or misleading communication about their services.  The board also found that by not disclosing to a client that her completion of a probate fee agreement rendered the remainder of her “free consultation” with him billable, Espohl failed to promptly communicate a change in the fees or rates that the client was being charged.

Mezher and Espohl have both entered objections to the board’s findings of rule violations and recommendation that they be reprimanded, and urge the court to dismiss the complaint against them. 

Mezher argues that she did not mislead the complaining clients because she never met or spoke with them directly, and also asserts that because space on the firm’s website is limited, it is impossible to list all of the events that would reasonably trigger the conclusion of a free initial consultation and the beginning of a paid attorney/client relationship. The Cincinnati Bar Association, which prosecuted the complaint against Mezher and Espohl before the disciplinary board, responds that as the owner of her law firm, Mezher is responsible for the accuracy of information posted on its website, and for insuring that firm employees abide by the representations made to clients in the firm’s promotional materials.

Espohl asserts that the complaining clients knew or should have known that the portion of his initial consultation with them following the signing of a fee agreement was on a paid basis, and points out that attorneys are entitled to bill clients for the fair value of work performed. The bar association responds that Espohl admitted at his hearing that he made no indication to the complaining clients before or after they signed a fee agreement that that act terminated their “free consultation.” They also argue that in dealing with clients who are unfamiliar with legal billing practices, lawyers have an affirmative duty to accurately inform a client about what services are considered billable, and on what basis the client will be billed for them.

Contacts
James F. Brockman, 513.421.6630, for the Cincinnati Bar Association.

Thomas W. Condit, 513.731.1230, for Kathleen Mezher.

Frank E. Espohl, pro se, 513.474.3700.

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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.