Oral Argument Previews

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Wednesday, Sept. 16, 2009

In the Matter of the Application of Duke Energy Ohio, Inc. In the Matter of the Application of The East Ohio Gas Company d.b.a. Dominion East Ohio, Case nos. 2008-1837 and 2009-0314
Public Utilities Commission of Ohio

State of Ohio v. Kevin Williams, Case no. 2008-2037
8th District Court of Appeals (Cuyahoga County)

Dayton Bar Association v. Keith Brown, Case no. 2009-1231
Montgomery County

Cleveland Bar Association v. Leon Boyd, Case no. 2006-1613
Cuyahoga County


Did Sufficient Evidence Support PUCO Adoption of ‘Levelized’ Natural Gas Transmission Rate Model?

In the Matter of the Application of Duke Energy Ohio, Inc. In the Matter of the Application of The East Ohio Gas Company d.b.a. Dominion East Ohio, Case nos. 2008-1837 and 2009-0314
Public Utilities Commission of Ohio

ISSUE:  In 2008, the Public Utilities Commission of Ohio (PUCO) issued separate orders authorizing a change in the rate structures used by Duke Energy of Ohio and by East Ohio Gas Company, d.b.a. Dominion East Ohio, to calculate the portion of their customers’ monthly natural gas bills that covers transmission service. The city of Cleveland and several consumer groups, including the state Office of Consumers’ Counsel, Ohio Partners for Affordable Energy and the Natural Resources Defense Counsel, have appealed the commission’s orders to the Supreme Court. The appellants ask the Court to rule that the PUCO acted unreasonably and unlawfully in adopting the new transmission rate structures, and to order the commission to rescind those rates and develop new ones.

BACKGROUND: Approximately 75 to 80 percent of the bill natural gas customers receive from their utility company each month covers the cost of procuring gas, while the remaining 20 to 25 percent covers the  utility’s costs of providing distribution service.  Gas companies serving different parts of the state are permitted to bill their customers at different rates for distribution service based on their costs. Prior to 2008, however, the rate formulas approved by the PUCO for all gas companies serving Ohio required the utilities to recover a relatively small percentage of their distribution costs through a flat monthly charge assessed on each customer regardless of how much gas the customer used, and to recover the remainder of their distribution costs via a surcharge on each cubic foot of gas used during the billing period.

In its 2008 orders, the PUCO authorized Duke Energy and Dominion East to adopt a different “Straight Fixed Variable” (SFV) rate design for recovery of their distribution costs. Under the SFV rate structure, the utility companies were authorized to significantly increase the flat monthly distribution fee charged to each customer regardless of its level of gas consumption, and to significantly decrease the amount of distribution costs recovered by way of a surcharge on each cubic foot of gas used.

The appellants in this case assert that the commission had no hard data before it and conducted no research to determine what the impact of adopting an SFV or “levelized” rate model would be, and instead based its approval on unsupported speculation about the effects such a rate plan would have on utility customers. They also argue that the PUCO failed to comply with statutory provisions and case law holding that, as a requirement for approving any change in the method used to set a utility rate, the commission must make supportable findings that the change promotes energy conservation and does not unfairly favor one class or category of utility customers at the expense of other user groups.

In this case, they contend, the change to an SFV rate structure actually discourages energy conservation by eliminating the savings in distribution costs that a gas company customer could achieve under the prior rate structure by using less gas during a billing period. They also argue that, by decreasing the percentage of distribution service  costs recovered through a surcharge on actual gas use, and increasing the amount of those costs recovered through a flat fee that is the same for all customers, the SFV rate structure grants an unfair rate decrease for large-volume gas users at the expense of low-volume residential users, including low-income families already facing other economic hardships.

Attorneys for the PUCO and the gas companies point out that rulings of the commission are presumed to be lawful, and argue that the appellants have not met the burden of proving that the agency abused its discretion or exceeded its authority in adopting the SFV rate plan. They contend that the SFV approach was tailored to meet a specific problem confronting the state’s utilities, which is that their expenses for building, repairing and maintaining pipelines and other distribution infrastructure are largely fixed costs, but the prior formula for recovering those costs relied primarily on surcharges on actual gas use, which has been declining in the current economic downturn. They also contend that allowing utilities to recoup the majority of their distribution costs through predictable monthly fees, rather than through a surcharge on actual gas used, will remove a previous disincentive for the companies to move forward with programs that reward customers for using less energy.

Contacts
Joseph P. Serio, 614.466.8574, for the Office of Consumer Counsel.

Colleen L. Mooney, 614.488.5739, for Ohio Partners for Affordable Energy.

Duane W. Luckey, 614.466.4395, for the Public Utilities Commission of Ohio.

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Are Felonious Assault and Attempted Murder ‘Allied Offenses’ Subject to a Single Sentence?

State of Ohio v. Kevin Williams, Case no. 2008-2037
8th District Court of Appeals (Cuyahoga County)

ISSUE: Under Ohio’s multiple-count statute, R.C. 2941.25, when a criminal defendant is charged with both felonious assault and attempted murder based on the same actions directed toward the same victim, and is found to have committed both crimes, must the trial court merge those offenses into a single conviction subject to a single sentence?

BACKGROUND: After an argument broke out between Kevin Williams and another participant in an East Cleveland dice game, Williams pulled a gun. As the other players, including LayShawn McKinney, attempted to run away, Williams fired a shot that struck McKinney in the back, paralyzing him. McKinney and others identified Williams as the shooter, and he was arrested. 

Williams was subsequently charged and convicted on two counts of felonious assault: one for causing serious physical harm to McKinney and one for causing harm to McKinney with a deadly weapon;  and two counts of attempted murder: one for purposely attempting to kill McKinney and the second for attempting to kill McKinney during the commission of a felonious assault. At sentencing Williams’ attorneys moved the trial court to: 1) merge his two attempted murder counts into a single conviction, 2) merge his two felonious assault counts into a single conviction, and 3) merge the felonious assault conviction into his attempted murder conviction, resulting in a single conviction for attempted murder subject to a single sentence based on the statutory penalties for that offense. The trial court declined to merge any of the counts, and proceeded to convict and sentence Williams on all four felony charges. The resulting prison terms, including additional time for a firearm specification and a separate conviction for possession of a gun under disability, totaled 20 years.

Williams appealed. On review, the 8th District Court of Appeals reversed and remanded the case to the trial court, holding that the felonious assault and aggravated murder counts were allied offenses of similar import under R.C. 2941.25. The court of appeals directed the trial court to merge those four counts into a single conviction for attempted murder, and resentence Williams for that conviction plus the firearm specification and weapon under disability charge. The Cuyahoga County prosecutor’s office sought and was granted Supreme Court review of the 8th District’s ruling.

Attorneys for the state argue that the 8th District’s interpretation of the multiple-count statute in this case is contrary to earlier court decisions holding that different criminal charges based on the same conduct must be merged for sentencing only where the statutory elements of those crimes are so similar that there is no possible way one offense can be committed without also committing the other. In this case, they argue, the charged crimes are not “allied offenses” that must be merged because felonious assault can be committed without an intent to cause the death of the victim, and a deliberate attempt to cause someone’s death can be committed without actually causing serious physical harm to the victim.

Attorneys for Williams respond that the 8th District correctly followed more recent case law, including the Supreme Court of Ohio’s 2008 decision in State v. Cabrales, in which the Court abandoned the requirement of a strict textual comparison between the statutory elements of charged crimes. Under Cabrales, they argue, trial courts must merge convictions and sentences for two criminal counts based on the same conduct if there is a sufficient nexus between the crimes that there is no practical way for a defendant to have committed one crime without also committing the other. In this case, they say, the merged attempted murder counts required a showing that Williams tried to kill McKinney by shooting him, while the felonious assault counts charge that he used a deadly weapon in causing injury to McKinney. They urge the Court to affirm the 8th District’s conclusion that attempted murder and felonious assault are allied offenses under R.C. 2941.25 because, as a practical matter, it is impossible to shoot a victim with an intent to kill him without also using a deadly weapon with the intent of causing injury.

Contacts
Kristen Sobieski, 216.698.2226, for the Cuyahoga County prosecutor’s office.

John Martin, 216.443.3675, for Kevin Williams.

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Attorney Discipline

Dayton Bar Association v. Keith Brown, Case no. 2009-1231
Montgomery County

The Board of Commissioners on Grievances & Discipline has recommended that the Court indefinitely suspend the license of former Dayton attorney Keith J. Brown, who currently resides in Jasper, Ind., for neglect and other professional misconduct in his handling of trusts that Brown agreed to establish for two different clients.

In both cases the board found that Brown accepted fee advances and promised to complete the necessary legal procedures to first create a trust on the client’s behalf and then transfer legal ownership of real estate and other property from the client to the trust, but subsequently failed to complete those transactions, resulting in significant delays and additional expense by the clients. The board also found that in both cases Brown made false and misleading statements to the clients regarding the status of their legal matters, stopped responding to communications from the clients and ultimately abandoned their cases without returning any of their unearned legal fees, requiring both clients to retain other attorneys to complete the work Brown had promised to perform.

Through default proceedings made necessary by Brown’s failure to cooperate with investigating authorities, the board concluded that his actions violated, among others, the state attorney discipline rules that prohibit neglect of an entrusted legal matter, failure to complete a contract of professional employment, failure to provide competent representation to a client, conduct prejudicial to the administration of justice and conduct involving fraud, deceit, dishonesty or misrepresentation.

Brown has filed objections with the Court stating that he was unaware of the substance of the complaints against him and was unable to participate in disciplinary proceedings in Ohio because he had been under treatment in a substance-abuse recovery facility in Indiana for more than a year. Noting that he has been registered as inactive for the past several years and plans to remain inactive as an attorney and relocate to Florida, Brown asked the Court to delay acting on the board’s recommendation or to impose a sanction less severe than an indefinite suspension in light of his ethical practice as an attorney since 1981 without any prior disciplinary infractions. 

Counsel for the Dayton Bar Association urges the Court to go forward with the board’s recommended sanction, noting that copies of the complaint and repeated communications seeking Brown’s participation in the investigation were directed to same Indiana address at which he received and responded to the board’s final report. Rather than being grounds to delay or waive disciplinary action against him, bar counsel argues that the Court should not allow Brown to relocate to another state, in which he could later seek to reenter the practice of law, without placing an official notice of his misconduct and the resulting sanction in his Ohio attorney registration record.

Contacts
David M. Rickert, 937.223.6003, for the Dayton Bar Association.

Keith J. Brown, pro se: No current phone contact information available.

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Unauthorized Practice of Law

Cleveland Bar Association v. Leon Boyd, Case no. 2006-1613
Cuyahoga County

On Dec. 20, 2006, the Supreme Court of Ohio enjoined Leon Boyd of Cleveland from the unauthorized practice of law and imposed a $3,500 civil penalty against him. On July 29, 2009, the Cleveland Metropolitan Bar Association filed a motion requesting that the Court issue an order indicating that Boyd has failed to comply with the 2006 order and directing him to appear and show cause why he should not be found in contempt. The Court has ordered Boyd to appear in person and show cause why he should not be found in contempt for failure to comply with its 2006 order.

Contacts
Russell A. Moorhead, 216.344.3800, for the Cleveland Metropolitan Bar Association.

Leon Boyd: No telephone contact information available.

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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.