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Wednesday, December 11, 2013

James Mammone III v. State of Ohio, Case no. 2010-0576
Stark County Court of Common Pleas

Panther II Transportation, Inc. v. Village of Seville Board of Income Tax Review, et al., Case nos. 2012-1589 and 2012-1592
Ninth District Court of Appeals (Medina County)

State of Ohio v. Amber M. Limoli, Case no. 2013-0403
Tenth District Court of Appeals (Franklin County)

Death Penalty

James Mammone III v. State of Ohio, Case no. 2010-0576
Stark County Court of Common Pleas

Canton residents James Mammone III and Marcia Eakin married and had two children, Macy and James. Eakin later sought a divorce, which Mammone opposed. When Mammone became threatening, Eakin secured a protection order. Their divorce was finalized in April 2009.

On June 7, 2009, Mammone picked up his children for a scheduled visitation. While they were sitting in their car seats in the back of his vehicle, Mammone fatally stabbed them. He then drove to his former in-laws’ house, where he beat and shot his ex-mother-in-law, Margaret Eakin, killing her. He traveled next to his ex-wife’s home, set fire to a truck and broke into the residence, but then left. Sometime later, he returned to his apartment where police arrested him.

Mammone was convicted of the aggravated murders of his 5-year-old daughter, 3-year-old son, and former mother-in-law. Following the trial’s penalty phase, the court imposed the death sentence for each murder count.

Mammone exercised his right to appeal his death sentence directly to the Ohio Supreme Court.

In his appeal, Mammone’s attorneys have advanced nine claims of legal and procedural error during his trial as grounds for the court to reverse his convictions and death sentence and give him a new trial.

Among the errors claimed, Mammone’s attorneys highlight these four issues:

Arguing for the state, attorneys from the Stark County Prosecuting Attorney’s Office make several responses.

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

Representing James Mammone III: Robert Lowe, 614.466.5394

Representing the State of Ohio from the Stark County Prosecuting Attorney’s Office: Kathleen Tatarsky, 330.456.7780

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Does Ohio Law Exempt Transportation Companies from Local Taxes?

Panther II Transportation, Inc. v. Village of Seville Board of Income Tax Review, et al., Case nos. 2012-1589 and 2012-1592
Ninth District Court of Appeals (Medina County)

ISSUE: Does former R.C. 4921.25 (now R.C. 4921.19) exempt motor transportation companies from taxes imposed by local authorities?

Editor’s Note: The Supreme Court accepted separate appeals filed by the Seville Board of Income Tax Review (2012-1589) and by the Central Collection Agency (2012-1592). The court consolidated the appeals for oral argument.

Panther II Transportation, Inc., paid $161,761 in net profits tax for 2005 and 2006. In March 2007, Panther requested a refund for that amount from the Central Collection Agency, which is the tax administrator for the Village of Seville. Based on its reading of state law, Panther claimed it was exempt from these taxes as a motor transportation company, regulated by the Public Utilities Commission of Ohio (PUCO).

The agency denied the refund, and Panther appealed to the Seville Income Tax Board of Review, which also denied the refund. The expedited shipping company then appealed the decision to the Ohio Board of Tax Appeals. The board reversed the lower ruling.

Seville and the collection agency both asked the Ninth District Court of Appeals to review the board’s decision. The Ninth District affirmed the Ohio tax board’s decision granting a refund.

The village and collection agency each again appealed, this time to the Supreme Court, which agreed to hear the cases.

Attorneys for the Village of Seville argue that the Ohio Constitution allows the state and municipalities to each exercise full taxing powers unless the Ohio legislature expressly prohibits municipal taxes.

They assert that Ohio’s municipal income tax statute (R.C. 718.01) requires the village to tax the net profits of all businesses in its jurisdiction, and the statute nowhere exempts a transportation company from municipal tax. They note that electric and telephone companies, both regulated by the PUCO, are expressly exempted from taxes in this statute; however, transportation companies are not mentioned in that law.

They also point to a 1950 Ohio Supreme Court case (Angell v. City of Toledo), in which the court held that the General Assembly had not passed any law that limited the power of municipalities to levy and collect income taxes. At that time, former R.C. 4921.25 had been in effect for nearly 30 years. They conclude that the court essentially determined that former R.C. 4921.25 did not limit municipal taxation, as Panther claims.

The taxes that Panther pays to the PUCO under former R.C. 4921.18 for specific types of vehicles does not prevent Seville from assessing a tax on Panther’s profits. Instead, the purpose of former R.C. 4921.25 is to prohibit municipal corporations from imposing nearly all fees and charges similar to those the PUCO collects under the other statute, they contend.

“The State of Ohio, through the PUCO, has already imposed a license fee upon each motor vehicle in R.C. 4921.18,” they argue in their brief. “Accordingly, it is illegal for a municipality to ‘exact’ a similar fee for each motor vehicle. This exaction does not contemplate or imply the prohibition of the imposition of municipal income and net profits taxes.”

The Central Collection Agency, which filed a separate brief, makes many arguments in line with the village’s, particularly with regard to the various referenced statutes and the Angell case.

Attorneys for Panther note that the PUCO has regulated motor transportation companies as public utilities since 1923. They argue that R.C. 4921.25includes three provisions addressing costs charged to transportation companies:

  1. A motor transportation company’s payment under R.C. § 4921.18 does not affect liability for other taxes, fees, payments and charges exacted by the state in other sections of the Revised Code, except assessments under R.C. § 4905.10;
  2. All fees, taxes and other exactions, except the general property tax, imposed by local authorities on motor transportation companies are illegal and superseded by Ohio’s state-wide regulation of motor carriers; and
  3. A motor transportation company that is in compliance with Ohio utility law is exempt from all local laws and rules, except for reasonable local police regulations not inconsistent with Ohio utility law.

They contend that the statute makes clear that all taxes, except the general property tax, are prohibited in order for the PUCO to regulate these companies statewide. This was “necessary and essential,” they assert, because transportation companies operate in many municipalities. If this law did not outlaw most taxation at the local level, the companies would have been subject to the regulations of multiple municipalities.

And they argue that Seville’s and the agency’s reading of the fees in former R.C. 4921.18 is “grossly twisted – and obviously wrong.” The view that former R.C. 4921.25 only prohibits fees and charges “similar” to those in former R.C. 4921.18 ignores a plain reading of the statute, they maintain. Former R.C. 4921.25 clearly states, they contend, that any fee, tax, or other money exaction, except the property tax, is prohibited with transportation companies.

In addition, Panther’s attorneys state that neither Ohio’s municipal income tax statute nor the Angell case apply here. The municipal income tax statute was not intended to exempt transportation companies because R.C. 4921.25 already did so, they argue. And they counter that Angell involved income tax on wages.

Overall, they conclude: “[L]ocal burdens placed on motor transportation companies will not be countenanced for as long as motor transportation companies are regulated as public utilities.”

An amicus curiae (friend of the court) brief supporting the Village of Seville and the Central Collection Agency has been submitted by the Ohio Municipal League.

Con-way Freight, the Dump Truck Carriers Conference, the Ohio Trucking Association, and United Parcel Service have each filed an amicus brief supporting Panther.

Court notices, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket (2012-1589 and 2012-1592).

Representing Village of Seville Board of Income Tax Review: Theodore Lesiak, 330.434.3000

Representing the Central Collection Agency: Linda Bickerstaff, 216.664.2070

Representing Panther II Transportation, Inc.: James Lang, 216.622.8563

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Does the Law in Effect at Time of Arrest for Crack Cocaine Possession or at Time of Sentencing Determine the Appropriate Sentence?

State of Ohio v. Amber M. Limoli, Case no. 2013-0403
Tenth District Court of Appeals (Franklin County)

ISSUE: Do provisions in 2011 legislation changing Ohio’s sentencing laws in part to address the disparity in sentencing for possession of crack cocaine and possession of powder cocaine require that defendants whose offenses occurred prior to the law’s effective date but who were sentenced after the effective date benefit from the law’s reduced sentencing for cocaine possession?

The Ohio General Assembly passed comprehensive reform of Ohio’s sentencing laws in H.B. 86 in 2011. As part of those changes, the legislature addressed the disparity in penalties for offenses involving powder cocaine versus crack cocaine by eliminating the difference in the criminal penalties for possession and trafficking of each. This provision went into effect on September 30, 2011.

In July 2010, Columbus police stopped Amber Limoli and searched her. They found nine grams of crack cocaine. She was indicted for possessing cocaine and ultimately pled no contest to the charge.

She was sentenced on October 14, 2011, after H.B. 86’s effective date. The court imposed a one-year mandatory sentence based on the pre-H.B. 86 law in effect in in 2010, when she was arrested and indicted.

Limoli appealed to the Tenth District Court of Appeals, which ruled that H.B. 86 applied to her sentence and reduced it from a third-degree crack cocaine felony with a mandatory sentence to a fourth-degree cocaine felony with no mandatory sentence.

The state appealed the decision to the Ohio Supreme Court, which agreed to hear the case.

The 2011 act stated that amendments made to the drug laws involving cocaine “apply … to a person to whom division (B) of section 1.58 of the Revised Code makes the amendments applicable.” R.C. 1.58 provides:

(B) If the penalty, forfeiture, or punishment for any offense is reduced by a reenactment or amendment of a statute, the penalty, forfeiture, or punishment, if not already imposed, shall be imposed according to the statute as amended.

Attorneys for the Franklin County Prosecutor’s Office argue that R.C. 1.58(B) applies only when the penalty for an “offense” has been reduced by legislative changes. They contend that the General Assembly did not reduce the penalty for crack cocaine offenses; instead, it eliminated the offense of crack cocaine possession and substituted a different offense – cocaine possession – for it. The legislature merged crack and powder cocaine offenses into one offense, the state asserts, so Limoli does not receive the benefit of the sentencing change because she was convicted of an offense that no longer exists. Given that, she must be sentenced under prior law.

The state’s attorneys maintain that the Ohio Supreme Court agreed with this view in a 2003 decision (State v. Kaplowitz), which involved changes to the aggravated vehicular assault statute. They state that the case supports its view that R.C. 1.58(B) does not apply when legislative amendments change the “nature” of an offense. When the nature of an offense has changed, the offense itself has changed rather than just the penalty for the offense, they assert.

In its decision, the Tenth District determined that before H.B. 86, cases involving possession of crack cocaine resulted in charges of “possession of cocaine,” so Limoli’s offense prior to the act and after the act were the same.

The state’s attorneys counter that proving a crack cocaine charge required different elements than proving a powder cocaine charge. Under Kaplowitz then, the state’s attorneys argue that these were two different offenses, so the changes in H.B. 86 do not apply to offenders who possessed crack cocaine before the statute’s effective date.

Attorneys for Limoli argue that the clear language of H.B. 86 shows that the General Assembly intended that offenders, such as Limoli, should be sentenced for crack cocaine offenses at the new law’s lesser penalties.

They note that in Dorsey v. United States (2012), which involved changes to federal sentencing law for crack cocaine offenses, the U.S. Supreme Court held that applying earlier, harsher sentences to crack offenders being sentenced after the new law went into effect would run contrary to the intent of Congress in passing the law.

Limoli’s attorneys contend that the state is attempting to treat crack cocaine and powder cocaine as different drugs. They argue that “cocaine,” as defined by statute, includes all forms of cocaine, including crack. Even before H.B. 86 went into effect, they maintain that defendants with crack cocaine and with powder cocaine were charged with the same offense, “possession of cocaine,” – only the penalties were different.

In addition, Limoli’s attorneys claim that the Franklin County prosecutor has no legal authority to pursue this case in the Ohio Supreme Court. While they state that he is allowed to argue this case in his county’s common pleas court and in his appellate district, they assert that he is prohibited by statute from arguing this case on behalf of the state of Ohio unless it is done in conjunction with the state’s attorney general.

An amicus curiae (friend of the court) brief supporting the position of the Franklin County Prosecutor’s Office position has been submitted by Ohio Prosecuting Attorneys Association.

The Office of the Ohio Public Defender has filed an amicus brief supporting Amber Limoli.

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

Representing the State of Ohio from the Franklin County Prosecutor’s Office: Steven Taylor, 614.525.3555

Representing Amber M. Limoli: Dennis Belli, 614.300.2911

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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.