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Tuesday, May 8, 2012

State of Ohio v. Jeffrey L. Gwen, Case no. 2011-0632
Ninth District Court of Appeals (Summit County)

State of Ohio v. Desmond A. Billingsley, Case no. 2011-0827
Eleventh District Court of Appeals (Portage County)

Julie Rose Rowell v. Julie Ann Smith, Case no. 2011-1053
Tenth District Court of Appeals (Franklin County)

To Enhance Later Domestic Violence Offense, Must State Produce 'Judgments of Conviction' for Prior Offenses?

Court Asked Whether Journal Entries Must Comply With Requirements of Crim.R. 32(C)

State of Ohio v. Jeffrey L. Gwen, Case no. 2011-0632
Ninth District Court of Appeals (Summit County)

ISSUE: In order to use a defendant’s prior domestic violence convictions to enhance a subsequent domestic violence charge against him, must the state prove the prior offenses by producing journal entries that meet all the requirements for a “judgment of conviction” under Criminal Rule 32(C)?

BACKGROUND: Jeffrey Gwen of Akron was arrested and charged with domestic violence and possession of drug paraphernalia after police responded to a 911 call made by his girlfriend, Monee Fannin. 

Under Ohio’s domestic violence law, R.C. 2929.25, a defendant’s first conviction for domestic violence is punishable as a first-degree misdemeanor; a second offense is punishable as a fourth-degree felony; and a third offense is punishable as a third-degree felony.  Because local court records indicated that Gwen has been found guilty of domestic violence on two prior occasions, he was charged with a third-degree felony under the section of law, R.C. 2929.25(D), applicable to third-time offenders.

At trial, Gwen objected to the admission into evidence of court records offered by the state as proof of his prior domestic violence convictions. He argued that the information set forth in those documents did not meet all the criteria for a valid “judgment of conviction” required under Ohio Criminal Rule 32(C), and therefore the entries were not legally sufficient to prove his prior convictions − which were an essential element of the third-offense count with which he was charged. The trial court overruled Gwen’s objections, holding that the state was not required to meet all the criteria set forth in Crim.R.32(C) so long as it produced evidence that showed Gwen had previously been charged with domestic violence on two occasions, and in each case there had been either a finding of guilt by the court or a guilty plea. Gwen was found guilty on both the third-degree felony count of domestic violence and drug paraphernalia charge, and was sentenced to one year in prison.

Gwen appealed his convictions to the Ninth District Court of Appeals. On review, the court of appeals upheld the trial court’s ruling that the state did not have to produce “judgments of conviction” compliant with Crim.R. 32(C) in order to establish his prior offenses, but found that the documentation produced by the state for one of Gwen’s prior offenses lacked the necessary information to meet even the reduced standard set by the trial court. Accordingly, the Ninth District vacated Gwen’s third-degree felony conviction and remanded the case to the trial court with a directive to enter a conviction for a fourth-degree felony (second offense) count of domestic violence.

On Gwen’s motion, the Ninth District certified that its ruling on the applicability of Crim.R. 32 (C) in this case was in conflict with a 2006 decision of the Sixth District in a similar case, State v. Finney.  The Supreme Court agreed to review the case to resolve the conflict between appellate districts.

Gwen’s attorneys  argue that when a defendant’s prior convictions not only increase the punishment for a later crime, but elevate that crime to a higher-level offense, R.C. 2945.75 requires that the state must substantiate those prior convictions by producing a journal entry recording a “judgment of conviction.” for each prior offense.  They cite the Supreme Court of Ohio’s 2011 holding in State v. Lester that in order to constitute a valid “judgment of conviction,” a trial court’s journal entry must include: 1) the fact of the conviction, including the specific offense; 2) the sentence imposed; 3) the signature of the trial judge; and 4) a time stamp by the court clerk noting the recording of the court’s order in its journal.

In Gwen’s case, they assert, neither of the journal entries proffered by the state contained all the information required by Crim.R. 32(C) and the Lester decision, and therefore the Ninth District erred by accepting either of those documents as sufficient to prove a prior domestic violence conviction.
They ask the court to remand the case for further proceedings based on no more than a misdemeanor count of domestic violence, and also urge that the court clarify that when prior convictions are an essential element of a charged offense, the state is required to prove those convictions by producing a “judgment of conviction” that meets the requirements of Crim.R. 32(C).

Attorneys for the state respond that the language in the domestic violence statute defining who is a repeat offender does not refer to a “judgment of conviction” but merely indicates that if court records show a defendant has either entered a guilty plea or been found guilty on a domestic violence count in two prior instances, that person is subject to enhancement of any future domestic violations charge.

They argue that although the journal entries of Gwen’s two previous trials may not fully comply with the requirements of Crim.R. 32(C), they plainly show that he was found guilty of a domestic violence count in one case and entered a guilty plea to domestic violence in the other, and that is all R.C. 2929.25 requires to establish prior offenses for the purpose of enhancing a subsequent offense to felony status.

Heaven DiMartino, 330.643.7459, for the state and Summit County prosecutor's office.

Neil Agarwal, 330.554.7700, for Jeffrey Gwen.

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Does One County Prosecutor's Plea Bargain With Defendant Bar Prosecution for Crimes Committed in Another County?

When First Prosecutor Indicated Consent of Other Counties to Waive Additional Charges

State of Ohio v. Desmond A. Billingsley, Case no. 2011-0827
Eleventh District Court of Appeals (Portage County)

ISSUE: When a county prosecutor negotiates a plea agreement between the state and a criminal defendant for a string of similar crimes, and the prosecutor indicates during that negotiation that other counties have agreed either not to prosecute or to impose concurrent sentences for any crimes the defendant admits  committing in the those counties, if the defendant provides truthful information pursuant to the plea agreement disclosing additional crimes he committed in the other counties, are the other counties contractually bound by the terms of the plea agreement in their dealings with the defendant?

BACKGROUND:  Desmond Billingsley was among a group of defendants indicted in Summit County for a string of robberies of fast-food restaurants and other businesses in and around Akron. 

The Summit County prosecutor’s office offered Billingsley a court-approved plea bargain in which the state would agree to a sentence of eight years in prison in exchange for Billingsley’s guilty plea to two counts of aggravated robbery with a firearm specification, and his full cooperation with police in disclosing other robberies he and his co-defendants had committed in Summit and surrounding counties. The transcript of Billingsley’s plea hearing included an on-the-record statement by the assistant Summit County prosecutor assigned to the case indicating that she had been in touch with officials in nearby Stark and Portage counties, and they had agreed either not to prosecute Billingsley for any crimes he admitted to committing in those counties, or if he had already been charged there, to stipulate that any prison time imposed on those charges would be limited to eight years and would  be served concurrently with his Summit County sentence.

Billingsley accepted the plea agreement, entered guilty pleas and provided information to police that resulted in the clearing of approximately 35 unsolved robberies in Summit, Stark and Portage counties over the preceding several years. In November 2008 the Summit County Common Pleas Court sentenced Billingsley to the agreed upon eight-year prison sentence.

In January 2009, the Portage County prosecutor indicted Billingsley for his involvement in the January 2008 robbery of a McDonald’s restaurant in Kent, and later obtained additional indictments against him for robberies of a Wendy’s and a Subway in February 2008. All three robberies were among the crimes Billingsley had disclosed to police pursuant to his plea bargain with the Summit County prosecutor. All three Portage County indictments included firearm specifications that would require the trial court to impose a mandatory additional three-year prison term upon Billingsley if he was found guilty.

In November 2009, Billingsley filed motions in the Portage County case to enforce his plea agreement with the state in the Summit County case, and to dismiss the firearm specifications in his Portage County indictments pursuant to that agreement. The Portage County Common Pleas Court conducted a hearing on those motions at which Billingsley and his attorney testified and produced the transcript of the Summit County plea hearing at which the terms of his plea agreement had been stated. Akron Police Detective James Pasheilich also appeared and testified that Billingsley had complied with the conditions of the plea agreement and that the information he provided had been valuable in clearing multiple cases in Summit, Portage and Stark County cases.

The court denied Billingsley’s motions, holding that the evidence presented did not show that the Portage County prosecutor had agreed to be bound by Summit County’s plea agreement, and the Summit County prosecutor had no authority to waive future prosecution or reduce potential sentences for crimes Billingsley had committed in Portage County.  Billingsley subsequently entered no-contest pleas to the three Portage County aggravated robbery charges with firearm specifications. He was convicted on all counts and sentenced to consecutive prison terms totaling 33 years.

Billingsley appealed the denial of his motion to enforce the terms of the plea agreement. The Eleventh District Court of Appeals affirmed his convictions and sentence, holding that because the Portage County prosecutor was not a party to the plea agreement between Billingsley and the Summit County prosecutor, Portage County was not bound by the terms of that agreement. Billingsley sought and was granted Supreme Court review of the Eleventh District’s decision.

In their written pleadings, attorneys for Billingsley point out that while each of Ohio’s 88 counties elects its own county prosecutor, when a prosecutor enters an appearance in a criminal case, he or she does not act solely on behalf  of the county, but rather acts on behalf  of and exercises the sovereign authority of the state of Ohio, as reflected in the characterization of all criminal cases as “State v. (Defendant.)”  In this case, they contend, when the Summit County prosecutor entered into a binding  plea agreement with Billingsley, and placed the terms of that agreement on the record at his plea hearing, she was acting as an authorized agent of the state, which made the conditions included in that agreement binding on all officers of the state, including the prosecutors in other counties.

Even if the court finds that the Summit County prosecutor exceeded her actual authority in agreeing that crimes Billingsley admitted committing in other counties would be dismissed or subject to concurrent sentences, his attorneys assert that she acted with apparent authority to make that commitment.  They argue that because the Summit County court accepted the plea bargain as stated on the record, and Billingsley relied on that agreement when he disclosed his involvement in crimes outside Summit County, Ohio contract law entitles him to specific performance of the terms of the plea bargain, which were that any convictions in other counties arising from his admissions would not extend his prison time beyond the eight years imposed for his Summit County convictions.

Billingsley has waived oral argument in the case, so only attorneys for the state will appear and argue before the court.

The state, represented by the Portage County prosecutor’s office, asserts that the authority of a county prosecutor to act on behalf of the state in criminal matters is limited to crimes committed within the borders of that county. They urge the court to uphold the Eleventh District’s holding that Billingsley and his trial attorney should have verified on the record the willingness of the Portage and Stark County prosecutors to honor the terms he negotiated with Summit County, and that absent any evidence of an agreement to forego prosecution or sentencing for crimes he committed in Portage County, Billingsley’s Summit County plea agreement is not binding on the Portage county prosecutor and he is not entitled to relief from his convictions or sentence for the offenses he committed there.

Theresa Scahill, 330.297.3850, for the state and Portage County prosecutor's office.

John P. Laczko, 330.297.3665, for Desmond Billingsley.

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May Court Grant Non-Relative Temporary Visitation With Child Against Natural Parent's Wishes While Custody Suit Is Pending?

Without Court First Finding That Fit Natural Parent Consented to Shared Custody

Julie Rose Rowell v. Julie Ann Smith, Case no. 2011-1053
Tenth District Court of Appeals (Franklin County)

ISSUE: When a non-relative has filed a petition for shared custody of a child in a juvenile court, and that petition is opposed by the child’s natural parent, does the court have authority to issue an order directing the parent to temporarily allow visitation with the child by the non-relative while the custody case is pending,  without the court first determining that the parent previously entered into a legally binding shared custody agreement with the petitioner?

BACKGROUND: Julie Smith became pregnant by artificial insemination and gave birth to a daughter in 2003 while she was in a same-sex relationship with Julie Rowell. While the two women and Smith’s daughter  were living together, Smith did not execute a written shared-custody agreement granting Rowell permanent shared parenting rights. The relationship between Smith and Rowell ended in 2008 and they established separate residences.

In October 2008, Rowell filed suit in Franklin County Juvenile Court seeking an order granting her permanent shared custody of Smith’s daughter. Rowell also asked the court to grant her temporary visitation rights with the child while the custody action was pending. Smith opposed both the custody action and motion for temporary visitation. A magistrate issued an order declaring the two women to be “temporary shared custodians” of the child and granting Rowell temporary scheduled visitation pending the final outcome of the custody action. Smith filed motions seeking to set aside the magistrate’s order.  In February 2009 the trial court issued a new order specifying that Smith was the child’s “named legal custodian and residential parent,” but again granted Rowell scheduled temporary visitation while the underlying custody action remained pending. 

After more than a year of subsequent litigation in which Smith was found in contempt of court for refusing to comply with the order granting Rowell visitation, resulting in a stayed three-day jail sentence and award of attorney fees against her, Smith allowed Rowell to have visitation with the child while she pursued an appeal of the contempt finding and penalties in the Tenth District Court of Appeals.  In June 2011, the Tenth District reversed the trial court’s finding of contempt and vacated the penalties based on that finding.  The appellate panel held that the juvenile court had no authority to order Smith to grant Rowell visitation with Smith’s daughter, even on a temporary basis, until and unless the court first determined as a matter of law that Smith had made a binding commitment to share parenting rights with Rowell.

Rowell sought and was granted Supreme Court review of the Tenth District’s decision. Her attorneys argue that R.C. 2151.23(2) conferred authority on the Franklin County Juvenile Court to hear and determine Rowell’s claim to be entitled to shared custody of Smith’s daughter; and Rule 13(B)(1) of the Ohio Rules of Juvenile Procedure gives juvenile courts discretion to “issue temporary orders with respect to the relations and conduct of other persons toward the child ... as the child’s interest and welfare may require.”

They assert that after reviewing the positions of the disputants, including Rowell’s evidence that she had established the equivalent of a parental bond with Smith’s daughter over the first five years of the child’s life, the juvenile court acted within its sound discretion in determining that it was in the child’s best interest to temporarily require Smith to allow scheduled visitations between the child and Rowell during the potentially lengthy litigation of Rowell’s petition for permanent shared custody.

Attorneys for Smith respond that the fundamental right of a parent to the care, custody and control of his or her child may not be disturbed by a court except under very specific conditions defined by statute. They urge the court to affirm the Tenth District’s determination that none of the statutes setting forth the powers of the state’s juvenile courts authorizes them to force a fit natural parent to relinquish custody of a child, even temporarily,  by compelling visitation with a non-relative based on that person’s mere claim to have a right to shared custody.

Carol Ann Fay, 614.232.9100, for Julie Rowell.

Gary J. Gottfried, 614.297.1211, for Julie Smith.

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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.