Oral Argument Previews

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Tuesday, August 20, 2013

State of Ohio v. Calvin Neyland, Jr., Case no. 2008-2370
Wood County Court of Common Pleas

HIN, LLC v. Cuyahoga County Board of Revision, the Cuyahoga County Fiscal Officer, and the Bedford Board of Education, Case no. 2012-0725
Appeal from the Board of Tax Appeals

In re: H.V., Case no. 2012-1688
Ninth District Court of Appeals (Lorain County)

Cleveland Metropolitan Bar Association v. Charles Walter Fonda, Case no. 2013-0571
Cuyahoga County


Death Penalty

State of Ohio v. Calvin Neyland, Jr., Case no. 2008-2370
Wood County Court of Common Pleas

Calvin Neyland, Jr., of Toledo, has appealed his convictions and death sentence for the 2007 aggravated murders of Douglas Smith and Tomm Lazar, employees of trucking company Liberty Transportation.

On August 8, 2007, Smith asked Neyland, who also worked at Liberty Transportation, to attend a meeting at the Liberty facility. Smith planned to fire Neyland at the meeting and had asked Lazar to also attend. Neyland shot Smith and Lazar several times and was arrested the same day in Erie, Michigan.

Following a jury trial, Neyland was found guilty of two counts of aggravated murder, with the death specification that the crime involved the “purposeful killing of two or more persons” and a firearms specification.

In his appeal to the Supreme Court, Neyland has advanced 19 claims of legal and procedural error during his trial as grounds for the court to reverse his convictions and/or reduce his death sentence to a term of life imprisonment.

Among the errors claimed, Neyland’s attorneys argue that:

Arguing for the state, attorneys from the Wood County Prosecutor’s Office respond that:

Contacts
Representing Calvin Neyland, Jr.: Spiros Cocoves, 419.241.5506

Representing the Wood County Prosecutor’s Office: Paul Dobson, 419.354.9250

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Is the Sale Price of a Property the Appropriate Property Value to Use When Determining Taxes?

HIN, LLC v. Cuyahoga County Board of Revision, the Cuyahoga County Fiscal Officer, and the Bedford Board of Education, Case no. 2012-0725
Appeal from the Board of Tax Appeals

ISSUES:

BACKGROUND: This case concerns the valuation of a property located at 17500 Rockside Road in Bedford, Ohio, which consists of nearly 35 acres of land and a two-story, 78,500 square foot office building. In December 2003, JBK Cuyahoga Holdings purchased the property for $4.9 million. After that purchase, US Bank became a tenant under a 15-year lease. JBK Cuyahoga Holdings then sold the property in April 2004 to HIN for $7.4 million.

For tax year 2006 the Cuyahoga County Auditor (now Fiscal Officer) valued the property at $8 million. HIN filed a complaint with the Cuyahoga County Board of Revision requesting a reduction in the market value to $5 million. The Bedford Board of Education (BOE) filed a counter-complaint requesting the auditor’s value be used for tax purposes. The board of revision decided the property value was $7.4 million, the April 2004 sale price. HIN appealed to the Ohio Board of Tax Appeals, which affirmed the board of revision’s valuation. HIN then appealed to the Supreme Court.

Attorneys for HIN argue it has never been the intent of R.C. 5713.03, which describes how county auditors determine the taxable value of real property, to “artificially inflate” property values when the sale price includes the value of a lease on the property. Recent amendments to the statute, they say, clarify that the sale price is used for tax valuation only when it reflects the “fee simple” estate, or the value of the property “unencumbered by any other interest or estate,” and that county assessors have discretion to determine whether the sale price is appropriate for tax valuation.

They state that the Supreme Court has acknowledged that sometimes a sale price doesn’t reflect the “fee simple” value for taxation. They point to Alliance Towers, Ltd. v. Stark Cty. Bd. of Revision, saying the court refused to include leases and other intangible assets not reflective of a property’s market value when determining the taxable property value. Yet, they note the Board of Tax Appeals in this case used the $7.4 million sale price, which includes a significant leasehold interest as well as other interests, for its tax valuation. HIN attorneys argue Ohio law requires use of the “fee simple” value for taxes. Otherwise, they argue, some taxpayers will be taxed on “fee simple” values while others will be taxed on values including additional assets such as leases – a “non-uniform assessment” that violates the Ohio Constitution.

Bedford BOE attorneys counter that when a property includes a lease at the time of sale it does not create a split between real and personal property. They argue the lease in this case couldn’t exist without the underlying real property, and the lease was simply the owner’s attempt to maximize the property’s value.

They point out that the amendments to R.C. 5713.03 cited by HIN were not in effect at the time of the January 1, 2006 valuation date, the board of revision hearing and decision, or the board of tax appeals hearing and decision, and there is no indication in the statute that the amendments are meant to be retroactive.

They also assert HIN is making the same argument rejected by the Supreme Court in Meyer Stores Ltd. Partnership v. Franklin Cty. Bd. of Revision, which notes that the distinction between “fee simple” and “leased fee” is not one recognized by the law.

They contend that HIN’s argument would create an unworkable situation for valuing any income-producing property, such as office buildings, retail buildings, and apartments. Income-producing property would have two parts – the real property, or the physical building and the underlying land, and personal property, or the lease. Under HIN’s argument, the BOE asserts, only the value of the physical building and land would be taxable, and the value of the lease on the property would not be taxable. When appraising real property, they say county auditors would have to somehow separate the lease value from the total value, so only the real property value would be taxed.

The Cuyahoga County Board of Revision and the Cuyahoga County Fiscal Officer waived oral argument in this case.

Contacts
Representing HIN: James Jennings, 216.763.1004

Representing the Bedford Board of Education: Thomas Kondzer, 440.835.1200

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Who Has the Authority to Determine a Juvenile’s Sentence Beyond the Statutory Minimum, and Are Juveniles Required to Serve Certain Sentences Consecutively?

In Re: H.V., Case no. 2012-1688
Ninth District Court of Appeals (Lorain County)

ISSUES: 

BACKGROUND: In December 2010, the Lorain County Juvenile Court found a juvenile identified by the initials H.V. delinquent of attempted domestic violence, a fourth-degree felony if committed by an adult, and sentenced H.V. to DYS for a minimum period of six months.

After H.V. completed his minimum sentence and was granted parole, he was charged with a parole violation. He failed to appear for the parole violation hearing. After being detained, he assaulted another resident of the detention facility, resulting in a felonious assault charge.

The juvenile court found H.V. delinquent of felonious assault, a second-degree felony if committed by an adult. The court committed H.V. to DYS for the new assault for a minimum period of one year. The court also revoked H.V.’s parole in the attempted domestic violence case and committed him to DYS for a minimum period of 90 days, to be served consecutively to the one-year felonious assault sentence.

H.V. appealed to the Ninth District, arguing the juvenile court wasn’t permitted to commit him to DYS for the parole violation for a minimum period longer than the statutory minimum of 30 days, and erred by ordering the parole revocation to be served consecutively to the new sentence. However, the court of appeals affirmed the juvenile court’s decision. H.V. appealed to the Supreme Court.

Conflict in the appeals courts
Attorneys for H.V. ask the court to resolve the conflict among Ohio’s appeals courts on the issue of who decides the length of institutionalization beyond the statutory minimum sentence. They cite Revised Code 5139.52(F), which states that a child returned to DYS “shall remain institutionalized for a minimum period of 30 days” and “the release authority, in its discretion, may require the child to remain in institutionalization for longer than the minimum 30-day period, and the child is not eligible for judicial release or early release ….” H.V.’s attorneys argue that when a juvenile court revokes a child’s parole and orders its own minimum sentence, that sentence “violates the tenets of statutory interpretation.”  They assert that the Eighth and Ninth Districts have misread the statute, while the Second and Twelfth Districts have correctly applied it. In a June decision in In re J.C., the Eleventh District partially reversed its holding in the case In re N.P. and is now in agreement with the Second and Twelfth Districts on this issue.

Attorneys for the state argue that the Eighth and Ninth Districts have held the statute establishes a minimum, not an exact, sentence for a parole revocation. They state the legislative intent is clear – if the court can hold the juvenile for a minimum of 30 days, then the court may order the delinquent held for longer. A different interpretation of the statute, they say, would limit the juvenile court’s long recognized broad discretion to impose any sentence it believes is proper.

Consecutive sentences
H.V.’s attorneys argue that while Revised Code 2152.17(F) authorizes consecutive sentences for two or more acts that would be felonies if committed by an adult, it does not authorize consecutive sentences for a felony and a parole violation regulated by R.C. 5139.52(F). They note that the appeals court agreed that R.C. 2152.17(F) doesn’t apply in this case. However, the appeals court decided the juvenile court still had the authority to sentence H.V. to consecutive sentences for the felony and the parole violation based on its discretion to craft an appropriate disposition. H.V.’s attorneys assert this holding ignores that R.C.  2152.17(F) specifically spells out in what circumstances a juvenile court may impose consecutive sentences, and it doesn’t include sentences for a parole revocation.

The state’s attorneys point to Jordan v. Maxwell, where the Supreme Court recognized a court’s authority to run sentences for adult parole violations consecutively to those for new crimes. They ask the court to adopt the same finding for juvenile cases. They also argue the parole revocation should be treated as part of the original felony, which would then allow the sentences to be served consecutively based on R.C. 2152.17(F).

Counsel for H.V. counter in their response that Jordan is now obsolete for adult sentencing and doesn’t apply to juveniles. They add: “If the General Assembly had intended DYS commitments imposed by juvenile courts for parole violations to run consecutively to commitments for new felony offenses, it would have included a similar provision in the juvenile code.” They also argue that treating the parole violation as a felony would result in a “second punishment” for a crime where the juvenile has already served the sentence, resulting in double jeopardy.

Contacts
Representing H.V.: Sheryl Trzaska, 614.466.5394

Representing the state and the Lorain County Prosecutor’s Office: Christopher Pyanowski, 440.329.5389

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Attorney Discipline

Cleveland Metropolitan Bar Association v. Charles Walter Fonda, Case no. 2013-0571
Cuyahoga County

The Board of Commissioners on Grievances & Discipline has recommended that the law license of Cleveland attorney Charles W. Fonda be suspended for one year, to be stayed if certain conditions are met, for multiple violations of the Rules of Professional Conduct.

In its report, the board found that in two cases Fonda failed to act with reasonable diligence, failed to keep clients informed, failed to comply with reasonable client requests for information, and failed to promptly deliver client papers and property.

Fonda has filed objections in one of the cases to the board’s recommended sanction. In that case, his attorneys argue Fonda acted with reasonable diligence and promptness based on the attorney-client agreement and any delay resulted from the client’s failure to retain Fonda beyond the “initial representation” by providing court costs and a signed litigation agreement. They also assert that Fonda had no papers or property from this client, so there was nothing to return. Given these objections, they argue for a public reprimand, a lesser sanction, based on mitigating factors – Fonda has no prior disciplinary history and had no selfish or dishonest motive – as well as Fonda’s participation in the Ohio Lawyer’s Assistance Program.

Attorneys for the Cleveland Metropolitan Bar Association, which prosecuted the charges against Fonda before the board, respond to Fonda’s objections by noting he did not act with reasonable diligence and promptness even during the time defined by his attorneys as the “initial representation” and the attorney-client relationship wasn’t dissolved until the client sent a letter terminating Fonda’s representation. If Fonda believed he had withdrawn earlier from the attorney-client relationship, the bar association asserts he was required to give “due notice,” which wasn’t done. They contend he failed to keep the client reasonably informed about the case and to comply with the client’s requests for information by ignoring phone calls for weeks and months at a time. They also state there were client papers and property to be returned that weren’t returned promptly.

Association counsel argues the disciplinary board’s sanction is at the “low end of the spectrum” compared to similar cases. They state misconduct was found in both cases the board reviewed – Fonda is not contesting the charges in one, but is objecting in the other – so Fonda committed multiple offenses affecting two vulnerable clients who were harmed by his actions. The association asserts that the appropriate sanction is more than a public reprimand, and they urge the court to impose, at a minimum, the board's recommended sanction.

Contacts
Representing Charles W. Fonda: Lester Potash, 216.771.8400

Representing the Cleveland Metropolitan Bar Association: Joseph Huigens, 216.586.7533

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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.