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Wednesday, January 8, 2014

Gregory C. Osie v. State of Ohio, Case no. 2010-1105
Butler County Court of Common Pleas

Bank of America, N.A. v. George M. Kuchta et al., Case no. 2013-0304
Ninth District Court of Appeals (Medina County)

Donald L. Johnson v. State of Ohio, Case no. 2013-0332
Twelfth District Court of Appeals (Butler County)


Death Penalty

Gregory C. Osie v. State of Ohio, Case no. 2010-1105
Butler County Court of Common Pleas

Gregory Osie is appealing his aggravated murder conviction and death sentence. Osie was arrested in February 2009 after Butler County resident David Williams was found stabbed to death.

Williams funded a contracting company in which Robin Patterson worked as the office manager. At some point, Williams’ business partner, Nick Wiskur, discovered money missing from the company. During a statement after his arrest, Osie said Patterson was his girlfriend, and Williams suspected she had stolen money from the company. Osie said he went to Williams’s house that night to try to convince Williams not to file charges against Patterson for stealing the money. During an argument, he grabbed a knife from Williams’s kitchen and stabbed Williams. Osie also admitted that he took several items from the house to make it look like a robbery.

Osie pled not guilty, then waived his right to a jury trial. He was tried by a three-judge panel of the Butler County Court of Common Pleas. In May 2010, Osie was convicted of aggravated murder, murder, aggravated robbery, tampering with evidence, and three death-penalty specifications. He has exercised his right to appeal the convictions and death sentence directly to the Supreme Court.

In his appeal, Osie’s attorneys have advanced 19 claims of legal and procedural error during his trial as grounds for the court to reverse his convictions and death sentence.

Among the arguments they make in their brief to the court:

On behalf of the state, attorneys from the Butler County Prosecutor’s Office make several responses:

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing Gregory C. Osie: Pamela Prude-Smithers, 614.466.5394

Representing the State of Ohio from the Butler County Prosecutor’s Office: Michael Oster, 513.887.3474

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May a Foreclosure Defendant Who Does Not Appeal a Trial Court’s Decision Later Argue in a Motion That the Other Party Did Not Have the Right to Sue?

Bank of America, N.A. v. George M. Kuchta et al., Case no. 2013-0304
Ninth District Court of Appeals (Medina County)

ISSUE: In a foreclosure action in which the defendant does not appeal the trial court’s judgment, may the defendant later raise the issue that the other party lacked standing in a motion for relief from judgment?

BACKGROUND:
On June 1, 2010, Bank of America filed a foreclosure action against George and Bridget Kuchta on a property in Hinckley. The promissory note attached to the complaint was payable to Wells Fargo Home Mortgage, and the mortgage documents listed Wells Fargo as the lender. Nine days after Bank of America filed its complaint, Wells Fargo assigned the note and mortgage to Bank of America.

A year later, Bank of America filed a motion asking the court for summary judgment for the amount due and to foreclose on the property. The Kuchtas did not respond, and the trial court granted the motion.

The Kuchtas filed a motion in September 2011 arguing that the note was not assigned to Bank of America at the time the lawsuit was filed, so the trial court’s decision should be vacated. The trial court denied their request.

The Kuchtas appealed to the Ninth District Court of Appeals, which reversed the trial court’s decision. The Ninth District notified the Supreme Court of a conflict between its decision and one from the Tenth District Court of Appeals.

The Supreme Court determined that a conflict exists between the appellate districts and agreed to hear the case.

Attorneys for Bank of America note that in Fed. Home Loan Mortg. Corp. v. Schwartzwald (2012), the Ohio Supreme Court held that the lender had to show that it had the right to sue, or had standing, at the time it filed a foreclosure complaint. In this case, however, Bank of America’s attorneys assert that the Kuchtas did not raise the issue of standing when the bank requested summary judgment and that they did not directly appeal the trial court’s decision but instead filed a motion on the issue after their time for an appeal had expired. As a result, Bank of America’s attorneys contend that Schwartzwald does not apply to this case.

The attorneys state that the Kuchtas raised the issue of standing and the trial court determined that Bank of America was entitled to file the foreclosure complaint. They argue that the legal principle of “res judicata” prevents the Kuchtas from raising the same issue of standing in a motion after the trial court made its judgment. (Res judicata refers to an issue that already has been settled by judicial decision.) In addition, even if the Kuchtas had not brought up the issue earlier in the case or even if the trial court’s jurisdiction in the matter had been disputed, the bank’s attorneys claim that the Kuchtas still could not have raised this issue.

“The practical consequences of a contrary rule would be significant,” Bank of America’s attorneys write in their brief to the court. “If the law were otherwise, a defendant could enter an appearance in a case, raise standing as a defense, and then ‘test the waters’ to see if there are other viable defenses. Having lost, the defendant could then try to get a second attack by filing a post-judgment motion. Even worse, the defendant could deliberately keep the defense in their ‘back pocket,’ and never raise the issue at all. … Every court action would be followed by a second court action to see whether the court in the first action had jurisdiction. No judgment would ever be final.”

In addition, they contend that a party that does not appeal a court’s final judgment cannot later challenge the court’s decision by arguing issues in a motion that could have been raised in a direct appeal. If a party could do that, or could use a motion to correct errors in the record, that motion is effectively and improperly extending the time allowed for an appeal, they maintain.

The attorneys for the Kuchtas respond that the Schwartzwald court held that when a court does not have jurisdiction in a case, any judgment that court issues is void. They also counter that res judicata does not apply to cases in which the court does not already have subject matter jurisdiction.

In the Ninth District’s decision in this case and the Tenth District’s 2012 holding in the conflict case (PNC Bank, Nat’l Ass’n v. Botts), they argue that both courts determined that a defense claiming a lack of standing through a later motion is allowed and that a mistake in jurisdiction cannot be waived.

“[Bank of America] argues unpersuasively that a party may not raise subject matter jurisdiction for the first time on appeal,” Kuchtas’ attorneys write in their brief. “It has been long established that the issue of subject matter jurisdiction cannot be waived and therefore can be raised at any time, even the first time on appeal, or in a collateral or direct attack upon the judgment. … Orders which are erroneous for lack of subject matter jurisdiction are void and subject to collateral attack.”

They contend that the bank did not have the proper evidence that the note and mortgage had been transferred to Bank of America at the time the complaint was filed, so Bank of America did not have the right to sue. Because there was no justiciable controversy at the time of the filing between Bank of America and the Kuchtas, the trial court did not have subject matter jurisdiction to decide the case, Kuchtas’ attorneys argue.

The timing of the appeal in this case also is not a legitimate grounds for reversal, they assert, adding:

“The mere passage of time before a party attacks a void judgment may be inefficient, it may be inconvenient, it may be cumbersome, and it may be slow[.] [I]n the final analysis since no one has a vested right in a void judgment, no one can claim to be prejudiced by a void judgment being vacated. Due process is fundamental to our system of jurisprudence.”

An amicus curiae (friend of the court) brief supporting the Kuchtas’ position has been submitted collectively by Advocates for Basic Legal Equality; Community Legal Aid Services; Legal Aid of Western Ohio; the legal aid societies of Cleveland, Columbus, and Southwest Ohio; the Ohio Poverty Law Center; Pro Seniors; Southeastern Ohio Legal Services. Joseph and Lori LaPierre have also filed an amicus brief supporting the Kuchtas.

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing Bank of America: Scott King, 937.443.6560

Representing George and Bridget Kuchta: Grace Doberdruk, 216.373.0539

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Is a Newly Appointed Lawyer Entitled to Presentence Investigation Report?

Donald L. Johnson v. State of Ohio, Case no. 2013-0332
Twelfth District Court of Appeals (Butler County)

ISSUE: Does state law entitle newly appointed appellate counsel to obtain a copy of the defendant’s presentence investigation report?

BACKGROUND: 
Donald Johnson pled no contest to aggravated robbery with a gun specification, felonious assault, robbery, and aggravated possession of drugs on September 19, 2011, in the Butler County Court of Common Pleas. The judge ordered a presentence investigation report before sentencing Johnson on October 31, 2011, to 13 years in prison and a $19,000 fine. Generally, these reports include details of the crime, statements from victims, the defendant’s criminal history, and the defendant’s financial status.

Johnson’s first attempt at an appeal in the Twelfth District Court of Appeals was dismissed because a brief was not filed in time, but a second attempt by his newly appointed lawyer from the Ohio Public Defender’s Office was successful. The appeals court denied the defense lawyer’s request to review the trial court’s presentence investigation report on the basis that there is no authority that permits such access after the defendant has been sentenced. According to Johnson’s lawyer, this conflicts with two rulings made by the Fourth District Court of Appeals, State v. Jordan (2003) and State v. Doss (2010). Johnson’s lawyer argues that the Due Process Clauses of the United States and Ohio constitutions “compels courts to grant newly appointed appellate counsel access to any presentence investigation report prepared in a case prior to filing an appellate brief.”

The Twelfth District notified the Supreme Court of a conflict between its decision and one from the Fourth District Court of Appeals. The Supreme Court determined there was a conflict and agreed to hear the case.

Both sides in the appeal point to R.C. 2951.03 to make their case about whether the presentence investigation report should be made available to the appellant counsel.

In a brief filed with the Ohio Supreme Court, Johnson’s lawyer states, “Any reading that does not allow defendant’s appellate counsel to review the report renders words in the statute meaningless.” According to the brief filed by the Butler County Prosecutor’s Office, the report is confidential and not reviewable by either side in an appeal: “The plain statutory language of R.C. 2951.03 makes it clear that a defendant and his counsel are permitted to review the report solely prior to the sentence.”

Johnson’s lawyer cites State v. Belew (2013) and State v. Long (2013) as cases in which the Ohio Supreme Court allowed defense counsel access to presentence investigation reports. The prosecutor lists numerous decisions to the contrary from district appeals courts, and notes the Supreme Court’s emphasis on the importance of sealing the presentence investigation report in In re Disqualification of Winkler (2013).

The prosecutor denies Johnson’s constitutional rights are being violated because his lawyer cannot review the report on appeal by stating, “Access to the presentence investigation report is not necessary to render effective assistance on appellate counsel to challenge a defendant’s sentence. Moreover, since the presentence investigation report is part of the appellate record, an appellate court is required to examine it when reviewing a trial court’s sentencing determination.”

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing the State of Ohio from the Butler County Prosecutor’s Office: Lina N. Alkamhawi, 513.887.3474

Representing Donald L. Johnson: E. Kelly Mihocik, 513.466.5394

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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.