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Tuesday, April 29, 2014

State of Ohio v. Willie Herring, Case no. 2011-0451
Seventh District Court of Appeals (Mahoning County)

Vanderbilt Mortgage and Finance, Inc. v. Janette Donaker, Coshocton County Treasurer et al., Case no. 2013-0713
Fifth District Court of Appeals (Coshocton County)

Norfolk Southern Railway Company v. Cleo J. Renfrow, Case no. 2013-0761
Eighth District Court of Appeals (Cuyahoga County)

Disciplinary Counsel v. Christopher T. Cicero, Case no. 2013-1980
Franklin County

Death Penalty

State of Ohio v. Willie Herring, Case no. 2011-0451
Seventh District Court of Appeals (Mahoning County)

The state of Ohio is appealing the decision of the Seventh District Court of Appeals that overturned the death sentence of Willie S. Herring of Youngstown.

On April 30, 1996, a group of five masked men, including Herring, stormed into a Youngstown bar called the Newport Inn to rob it. They shot five people, and three of them died. Herring, then 18 years old, shot the bar’s owner multiple times, and he shot one of the customers in the bar. These two victims lived.

In 1998, a jury found Herring guilty of three counts of complicity to commit aggravated murder, two counts of attempted aggravated murder, and two counts of aggravated robbery, along with death-penalty and firearms specifications.

During the sentencing phase of Herring’s trial, his attorneys presented evidence that Herring was helpful to his family. Herring’s counsel did not describe negative aspects of his family background nor his criminal history. They also raised an issue of proportionality because none of his accomplices, some of whom were juveniles, faced the possibility of the death penalty.

The trial court sentenced Herring to death, and the Ohio Supreme Court later affirmed his convictions and the death penalty.

Herring filed a petition asking the trial court for relief on 17 grounds. The trial court denied the request. On appeal, the Seventh District reversed the decision and ordered the trial court to hold a hearing to determine whether the decision by Herring’s attorneys to present only positive mitigating evidence was reasonable.

The trial court found that Herring’s counsel acted reasonably during the sentencing phase. Herring appealed again, and the Seventh District in February 2011 vacated Herring’s death sentence and returned the case to the trial court for resentencing.

The state appealed the decision to the Ohio Supreme Court, which agreed to hear the case. (The parties in this post-conviction appeal will each be allotted 15 minutes for oral argument.)

Attorneys from the Mahoning County Prosecutor’s Office assert that the mitigation expert hired by Herring’s defense to investigate Herring’s background for factors that might persuade the jury not to impose the death penalty did not complete his investigation. However, the prosecutors contend that Herring’s attorneys still provided effective assistance of counsel in their strategy to focus on only positive aspects about Herring and on the disparity between his sentence and those of his accomplices.

They maintain in their brief to the court that a 1984 U.S. Supreme Court decision (Strickland v. Washington) requires a defendant claiming ineffective assistance of counsel to show “1) counsel’s performance was deficient (falling below an objective standard of reasonableness), and (2) the deficient performance prejudiced the defense.”

The prosecutors argue that the mitigation expert did not inform Herring’s trial counsel that he was not able to finish his investigation, so it was reasonable for Herring’s attorneys to believe it had been completed. Herring also refused to discuss negative aspects of his upbringing, which the prosecutors contend affected the strategies his attorneys could employ during the sentencing phase. They also maintain that several courts have recognized that keeping negative information from a jury is a sound strategy. One of Herring’s attorneys, they note, testified at the hearing ordered by the appellate court that the defense “‘thought that any kind of information that … Mr. Herring had been involved in a life of crime would simply be more ammunition for [the sentencing jury] to find a death verdict.’” The prosecutors conclude that Herring’s counsel performed effectively by presenting a reasonable and competent mitigation theory at the sentencing hearing.

The prosecuting attorneys also argue that the Seventh District did not determine whether the second prong of the Strickland test was met – that Herring suffered prejudice from the actions of his attorneys. On appeal, Herring has argued that the death sentence would not have been imposed if the jury had been told that his father was shot and killed when he was a child, his mother abused drugs, he began selling drugs and carrying a gun in his early teens, he was involved in gangs and abused drugs and alcohol, and he may have learning disabilities. However, the prosecutors point to the U.S. Supreme Court’s ruling in Schriro v. Landrigan (2007) that it is not unreasonable for a court to decide that a defendant who refuses to allow mitigation evidence to be presented cannot later establish prejudice under Strickland. They conclude that the additional mitigation evidence the jury did not hear was weak and would not have changed the jury’s decision recommending the death penalty.

Attorneys for Herring contend that his trial counsel’s representation was ineffective, incomplete, and substandard. They claim that his trial counsel had more than a year to hire the mitigation expert, yet he was brought on just weeks before Herring’s trial. Had a full investigation been done, the jury would have seen a different, more human picture of Herring, his attorneys argue.

They also assert that trial counsel has the ultimate responsibility to ensure that an expert’s investigation is complete, and in this case the trial attorneys did not fulfill this duty. Herring’s appellate attorneys maintain that, as a result, his trial counsel made decisions about sentencing phase strategy based on incomplete information. Multiple decisions in federal courts, along with the Ohio Supreme Court case State v. Johnson (1986), have held that only when a full investigation is done can trial counsel craft an informed strategy to not present certain evidence, they conclude.

On the issue of prejudice, Herring’s attorneys counter that the Seventh District did indeed make specific findings establishing prejudice in its decision to reverse Herring’s death sentence. They argue that the appeals court found that aspects of Herring’s background not presented at trial were compelling, were required by statute to be considered as mitigating factors, and proved prejudice against Herring. Herring’s attorneys maintain that had this evidence been put before the jury, it would have persuaded at least one juror to spare his life.

They conclude quoting part of the Seventh District’s ruling, which cites the U.S. Supreme Court’s decision in Rompilla v. Beard (2005): “[T]he undiscovered mitigating evidence in this case ‘might well have influenced the jury’s appraisal’ of appellant’s culpability[,] and the probability of a different sentence if counsel had presented the evidence is ‘sufficient to undermine confidence in the outcome’ reached by the jury.”

Docket entries, 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 Mahoning County Prosecutor’s Office: Ralph Rivera, 330.740.2330

Representing Willie S. Herring: Kimberly Rigby, 614.466.5394

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Do Mortgage Holders Have Right to Redeem Property from Tax Foreclosure Sales?

Vanderbilt Mortgage and Finance, Inc. v. Janette Donaker, Coshocton County Treasurer et al., Case no. 2013-0713
Fifth District Court of Appeals (Coshocton County)

[Note: The case was filed with the court under the name In the Matter of the Foreclosure of Liens for Delinquent Taxes v. Parcels of Land Encumbered with Delinquent Tax Liens et al.]

ISSUE: Does the phrase “any person entitled to redeem the land” in R.C. 5721.25 include mortgage holders because they have a right, independent and distinct from the rights of the delinquent property owner, to redeem land from a tax foreclosure sale?

On April 19, 2011, Coshocton County Treasurer Janette Donaker filed foreclosure actions for unpaid property taxes on various pieces of real estate, including land and a mobile home owned by Troy Wagner and her stepdaughter Brandi Wagner. Vanderbilt Mortgage and Finance received notice of the tax foreclosure because it held the mortgage on the property and home.

A sheriff’s sale of the property took place in October 2011. The highest bidder on the land then deeded it to Brandi Wagner’s father, Alan Donaker, who is married to the county treasurer. Vanderbilt purchased the mobile home.

The trial court was notified of the sale of the land, and Vanderbilt asked the court to delay confirmation of the sale and instead allow it to redeem the property. The mortgage holder paid $6,000 to the court for the property’s county tax bill and to satisfy the county’s interest in the property. The trial court then set aside the sheriff’s sale of the property.

Mr. Donaker appealed to the Fifth District Court of Appeals, which reversed the trial court’s decision. The appellate court determined that a mortgage holder is not a “person entitled to redeem the land” under state law.

Vanderbilt filed an appeal with the Ohio Supreme Court, which agreed to hear the case.

The attorney for Vanderbilt asserts that mortgage holders are lienholders with an interest in real property and also have the right, by contract and by statute, to redeem real property prior to an entry being filed in court to confirm a sale. He points out that Vanderbilt received notice, as a party with interest in the parcel, that stated this right.

While the decision by the Fifth District held that the intent of the tax foreclosure redemption statute (R.C. 5721.25) is to give only the property owner the chance to take back the property, Vanderbilt’s attorney argues that other sections of Ohio law in Chapter 5721 give those with an interest in the property the same right of redemption before a sale is made and filed in court.

Vanderbilt’s attorney maintains that the language “any person entitled to redeem the land” in R.C. 5721.25 permits the redemption of the land by a broader group than the rights given only to the homeowner in a separate statute that deals with mortgage foreclosure redemption. This comparison shows the legislature’s clear intent in tax foreclosures to allow certain entities besides the property owner to redeem a property, he concludes.

In addition, the attorney contends that Vanderbilt was entitled to pay the delinquent taxes on behalf of Brandi Wagner so it could protect its interest in the property.

Attorneys for Mr. Donaker counter that Vanderbilt’s payment to the court was an attempt to redeem the property under R.C. 5721.25, not payment of the outstanding taxes. They are not the same, Donaker’s attorneys argue, and had the unpaid taxes been paid by Vanderbilt before the sale, the tax foreclosure would never have happened.

They contend that the intent of R.C. 5721.25 is to give the defaulting owner, not the mortgage holder, a chance to redeem the property. This is the conclusion made by the Fifth District and four other appellate courts, they assert. The right to redeem does not rest with the mortgage holder, they argue, because a lender’s interest is in the proceeds of the sale, not in the land itself.

Because Vanderbilt did not make the argument before the trial or appeals courts reading R.C. 5721.25 and other sections in that chapter together to conclude that mortgage holders have a right to redeem property, Donaker’s attorneys maintain the company cannot properly raise the issue now. They also assert that Vanderbilt did not even comply with the requirements of R.C. 5721.25 because it paid the clerk of courts rather than the county treasurer, so its claim is moot (not subject to a court ruling because there is no controversy).

Donaker’s attorneys claim that reading the notice requirement with R.C. 5721.25 to mean that mortgage holders have a right to redeem property will have ramifications. “Buyers have long operated under the presumption that [sheriff's sales of real property] were final, subject only to an eleventh-hour redemption by the actual owner,” they write in their brief to the court. “If [Vanderbilt’s] position is adopted, buyers will be completely at the mercy of mortgagees, who will be able to redeem any property not sold at a price of their liking.”

They also argue that Vanderbilt’s position would eliminate the long-held right of landowners to dispose of real property as they see fit. In this case, they assert that Brandi Wagner intended for the property to be sold to settle her debts. Vanderbilt did not have the right to redeem the property on her behalf, especially given that she did not want to take back the property, Donaker’s attorneys contend. They conclude that mortgage holders have multiple avenues besides the one Vanderbilt claims in this case to protect their financial interests.

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

Representing Vanderbilt Mortgage and Finance Co.: Eric Deighton, 216.360.7200

Representing Alan Donaker: Samuel Shamansky, 614.242.3939

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Who Qualifies as Competent Medical Authority in Asbestos Claims from Veterans With No Treating Physicians?

Norfolk Southern Railway Company v. Cleo J. Renfrow, Case no. 2013-0761
Eighth District Court of Appeals (Cuyahoga County)


Gerald Renfrow worked as a brakeman for Norfolk Southern Railway from 1968 to 1992. According to his medical records, Renfrow was also a long-time smoker of a pack-and-a-half or more of cigarettes a day. In March 2010, he was diagnosed with inoperable lung cancer that had spread to his brain. He was a veteran of the U.S. Air Force, so he received care and treatment through several facilities that are part of the Veterans Administration (VA). Renfrow died in January 2011.

His wife, Cleo J. Renfrow, filed a lawsuit on behalf of her husband’s estate in September 2011 claiming that Norfolk Southern negligently allowed Mr. Renfrow to be exposed to asbestos and diesel exhaust while he was employed with the railroad. The complaint also alleged that the asbestos exposure caused him to develop lung cancer.

Norfolk Southern asked the trial court to dismiss the lawsuit, contending that it did not meet the required criteria in the Ohio Asbestos Act. Ms. Renfrow submitted her husband’s medical records, a statement from one of his co-workers describing their exposure to asbestos on the job, and a report from Dr. L.C. Rao, an expert in internal and pulmonary medicine who reviewed Mr. Renfrow’s records but had never treated him.

The trial court did not dismiss the lawsuit. Norfolk Southern appealed to the Eighth District Court of Appeals, which affirmed the trial court’s decision.

Norfolk Southern then appealed to the Ohio Supreme Court, which agreed to hear the case.

The Eighth District’s opinion explained that the Ohio asbestos statutes mandate that a smoker making an asbestos lung cancer claim must present certain minimum evidence (a prima facie case) from a “competent medical authority” that he or she has a primary lung cancer, that exposure to asbestos was a “substantial contributing factor,” that he or she had substantial occupational exposure to asbestos, and other requirements.

In Sinnott v. Aqua-Chem, Inc. (2008), the Eighth District considered whether a veteran who received treatment for lung cancer through the Veterans Administration was bound by the prima facie requirements of the Ohio law given that he did not have one consistent treating physician but was instead treated by multiple doctors and medical personnel. The appeals court concluded that the law was not intended to penalize non-traditional patients, such as veterans, who may not have one treating doctor but who do have medical records and other evidence to support their claims under the statute.

Attorneys for Norfolk Southern argue that the appellate court created an exception in Sinnott that is not supported by the statute’s language. They assert that the law states that an opinion must be provided by a physician who has treated the exposed person and had a doctor-patient relationship with the person. They contend that this type of relationship can exist in VA facilities and question whether the exception created by the Eighth District is necessary. They also point out that Dr. Rao was a paid expert who never treated Mr. Renfrow.

Norfolk Southern’s attorneys maintain that Mr. Renfrow’s medical records make no reference to asbestos exposure, so the records do not support his wife’s claim that asbestos contributed to his lung cancer. Dr. Rao concluded in his report that Mr. Renfrow’s exposure to asbestos “in part contributed” to his lung cancer – a statement that Norfolk Southern’s attorneys argue does not meet the statute’s requirement that asbestos exposure was a “substantial contributing factor” in the development of a claimant’s lung cancer.

According to the statute, “substantial contributing factor” means that “[a] competent medical authority has determined with a reasonable degree of medical certainty that without the asbestos exposures the physical impairment of the exposed person would not have occurred.” In Ackinson v. Anchor Packing Co. (2008), Norfolk Southern’s attorneys assert, the Ohio Supreme Court interpreted this definition to mean that the medical authority must state that “but for” a plaintiff’s exposure to asbestos, the plaintiff would not have contracted lung cancer. In this case, they argue that Dr. Rao’s conclusion is not sufficient to meet the test.

Attorneys for Ms. Refrow explain that federal regulations have prohibited Mr. Renfrow’s physicians at the VA facilities from providing any expert opinions about the cause of his death. Based on the regulations that bar VA personnel from testifying in most legal proceedings, the VA’s Office of Regional Counsel rejected her request for an opinion from any of Mr. Renfrow’s doctors about his illness and death. As a result, Ms. Renfrow’s attorneys counter that there were no treating physicians who could submit a report. The exception created in Sinott is needed, they claim, for non-traditional patients such as Mr. Renfrow. They maintain that under these circumstances, Dr. Rao is an appropriate competent medical authority.

They also contend that the medical records do note that Mr. Renfrow had positive exposure to brake and coal dust while working, which was supported by the affidavit of one of his co-workers that they were exposed to asbestos on the job. Quoting Dr. Rao’s report in part, they argue that the documents provided the needed causal link required by the statute:

First, all of Dr. Rao’s opinions were “to a reasonable degree of medical certainty.” Second, Dr. Rao opined that asbestos is a known carcinogen that “increases the risk of lung cancer substantially.” Next, Dr. Rao opined that smoking and asbestos together “increases the risk of lung cancer substantially.” …Finally, it was his opinion that asbestos dust “in part contributed to the development of Mr. Renfrow’s lung cancer and eventual death.”…The trial court and the Eighth District found these opinions to be sufficient. The Eighth District held that even “without utilizing magic words, Dr. Rao’s opinion supplied the causal link between Mr.  Renfrow’s exposure to asbestos dust, diesel fumes and exhaust and him developing lung cancer and eventually dying.”

They assert that the trial and appeals courts correctly concluded that Dr. Rao established that asbestos contributed to the harm to Mr. Renfrow, so it cannot be said that the harm would have occurred without exposure to asbestos. This conclusion meets the statute’s “substantial contributing factor” requirement and establishes the needed causal link, Ms. Renfrow’s attorneys maintain. To conclude otherwise, they contend, would mean that the statute is unconstitutional because it would violate the Ohio constitutional provision (in Article I, Section 16) that Ohio courts are open to every person to seek a remedy.

An amicus curiae (friend of the court) brief supporting the position of Norfolk Southern Railway Company has been submitted collectively by the Ohio Chamber of Commerce, the Ohio Council of Retail Merchants, and the Chamber of Commerce of the United States of America.

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

Representing Norfolk Southern Railway Company: David Damico, 412.995.3206

Representing Cleo J.Renfrow: Michael Torcello, 716.884.2000

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Attorney Discipline

Disciplinary Counsel v. Christopher T. Cicero, Case no. 2013-1980
Franklin County

The Board of Commissioners on Grievances & Discipline has recommended that Columbus attorney Christopher T. Cicero be disbarred from the practice of law in Ohio for unilaterally amending a speeding violation against him to remove any danger of a license suspension and engaging in deceitful, self-serving conduct to cover up his misdeed.

In its report to the Supreme Court, the board noted that as an attorney whose practice focuses primarily on criminal defense work, including many traffic cases, Cicero was familiar with the judges and prosecutors at the Franklin County Municipal Court, and he understood the court’s policies and practices.

In 2012, Cicero received a traffic citation for speeding, adding to the roughly 50 others he had received in the past. Because of his knowledge of the system, Cicero was able to obtain a signed, but otherwise blank, judgment entry from the court. He had his assistant fill out the form to alter the traffic citation from a speeding violation to a headlight violation – a change that is contrary to the policy of the prosecutor’s office. He later claimed that his assistant wrote down the wrong section of state law for the amended violation. Cicero’s judgment entry also failed to list the prosecutor who agreed to an amendment of his citation. When the omission was discovered, Cicero refused to give the court a prosecutor’s name.

After several failed attempts to discover the name of the prosecutor who made the offer to amend the citation, the judge who had originally signed the judgment entry issued an arrest warrant for Cicero for contempt of court. As the court and prosecutor’s office worked to resolve the matter, Cicero lied and gave evasive answers on several occasions, causing a delay in court proceedings.  

Cicero also was evasive during his disciplinary hearing, and blamed his failure to explain himself on the judge. The board’s panel that reviewed the case noted that Cicero refused to acknowledge his wrongdoing even after it had been discovered, and he continued to blame others, including his assistant, for the error in his amended citation. The panel found that Cicero “turned a minor speeding infraction into an ethical tar pit that drew in numerous other individuals and harmed the very administration of justice.”

The panel considered certain aggravating factors, including two previous one-year suspensions and a pattern of dishonesty and self-serving behavior, and concluded that Cicero’s behavior warranted an indefinite suspension with the opportunity to petition for reinstatement after two years. However, to ensure the protection of the public, the disciplinary board recommends that Cicero be permanently prohibited from practicing law in Ohio.

Cicero objects to the board’s recommended sanction. He argues that disbarment is too harsh a sanction, and the court should adopt the indefinite suspension recommended by the panel. Cicero contends that neither his previous nor current disciplinary matters have directly affected clients. To the contrary, he maintains that he has zealously and effectively advocated for his clients and that an indefinite suspension will sufficiently punish him for his wrongdoings.

The Disciplinary Counsel, which brought the complaint against Cicero, has responded to his objection. Counsel argues that the board’s conclusion that Cicero is “no longer fit to practice a profession grounded on trust, integrity, and candor” is well supported by his long history of misconduct.

The Disciplinary Counsel maintains that Cicero routinely engaged in deceitful and self-serving conduct, not only during this particular matter, but throughout his career. Counsel asserts that in Cicero’s first disciplinary case, he exaggerated the level of intimacy he had with a judge and then proceeded to provide false testimony during the disciplinary hearing to avoid punishment.

Counsel also asserts that the Ohio Supreme Court has disbarred lawyers even when their dishonesty does not affect lawyer-client relationships. The board’s recommendation of disbarment is fitting and justified, the Disciplinary Counsel concludes.

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

Representing the Office of Disciplinary Counsel: Joseph Caligiuri, 614.461.0256

Christopher T. Cicero, pro se: 614.228.2600

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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.