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Tuesday, May 13, 2014

Donald J. Ketterer v. State of Ohio, Case no. 2011-0093
Butler County Court of Common Pleas

State of Ohio v. Sharlene Aguirre, Case nos. 2013-0870 and 2013-0876
Tenth District Court of Appeals (Franklin County)

Toledo Bar Association v. Beauregard M. Harvey, Case no. 2013-1995
Lucas County


Was Resentencing in Death Penalty Case Conducted Properly?

Donald J. Ketterer v. State of Ohio, Case no. 2011-0093
Butler County Court of Common Pleas

ISSUES:

BACKGROUND:
Donald J. Ketterer waived a jury trial and pled guilty in January 2004 to the aggravated murder and aggravated robbery of Hamilton resident Lawrence Sanders, the theft of Sanders’s vehicle, and the burglary and aggravated burglary of Sanders’s home. About a year earlier, Ketterer had visited Sanders to borrow $200 to pay a court fine. They argued, and Ketterer killed Sanders when he hit him in the head three times with a skillet and stabbed him. Ketterer then stole more than $60 and drove away in Sanders’s car.

The murder charge included three death-penalty specifications, and a three-judge panel sentenced Ketterer to death. He appealed the convictions and death sentence to the Ohio Supreme Court, but the court affirmed both in 2006.

In April 2007, the Ohio Supreme Court ordered the trial court to resentence Ketterer on the offenses that were not punishable by death. The trial court reconsidered its sentences and imposed the same punishment as it had before.

Ketterer appealed again. The Supreme Court held that the trial court did not properly issue the sentences of postrelease control and returned the case to the lower court another time for resentencing.

That hearing was conducted in 2010, and the trial court resentenced Ketterer and explained the mandatory and optional parts of his sentences of post-release control. The court imposed five years of mandatory post-release control for the aggravated robbery, five years mandatory for the aggravated burglary, three years of optional post-release control for the grand theft of the vehicle, and an optional three years for the burglary.

Ketterer filed an appeal of this resentencing to the Ohio Supreme Court.

Discovery at resentencing
The state public defender representing Ketterer asserts that Ketterer was entitled to discovery at his 2010 resentencing hearing under a rule of criminal procedure. The trial court had denied the request. The attorney claims that the Ohio Supreme Court in 2010 adopted a broader version of the criminal rule, which would give Ketterer access to witness statements from the prosecutor.

Attorneys from the Butler County Prosecutor’s Office contend that the state had already provided Ketterer before his January 2004 guilty plea with the documents he is requesting. They also argue that the criminal rule requires the state to provide witness statements only from the witnesses who are expected to testify during the state’s main case or in rebuttal. The rule does not require discovery during resentencing hearings, they maintain.

Allied offenses
The public defender claims that the trial court erred in its sentences for aggravated robbery and aggravated burglary. He argues that those two offenses and the murder were a single act, yet the trial court did not merge the offenses. He contends that the Ohio Supreme Court, in State v. Johnson (2010), held that allied offenses must be merged. (Two crimes are “allied” when they arise from and are committed by the same conduct. Courts must treat these offenses as one for sentencing.) He maintains that the indictment’s language regarding the death specifications – which states that the murder took place while Ketterer was committing aggravated robbery and aggravated burglary – supports this view.

The prosecutors respond that the trial court was limited at the resentencing hearing to addressing the issue of the post-release control sentences. But on Ketterer’s argument, they counter that the Ohio Supreme Court already concluded, in its 2006 decision in this case (as well as in other cases), that the aggravated burglary and aggravated robbery were separate offenses that did not arise from the same act. When analyzing this case in light of Johnson, the prosecutors maintain that Ketterer had separate intentions when he killed Sanders, later took money from his pocket, then searched the house for more items to steal, and subsequently drove off in his car, so the offenses are not allied and cannot be merged.

Consecutive sentences of postrelease control
Ketterer’s attorney claims that state law does not permit consecutive sentences of post-release control. He quotes the statute: “Periods of post-release control shall be served concurrently and shall not be imposed consecutively to each other.” The attorney asserts that the three-judge panel did not consolidate the terms of post-release control, as evidenced by its use of the word “terms” in its entry and the statement “… that’s consecutive” by one of the judges during the hearing.

The state’s attorneys assert that the panel clearly explained that the mandatory five-year post-release control applies only if the murder charge is set aside, and the three-year optional post-release control applies only if the aggravated robbery and aggravated burglary are dismissed. Ketterer’s interpretation of the context surrounding the “consecutive” statement is irrelevant, the state maintains, because courts speak only through their journal entries or decisions. In this case, the court’s journal entry discusses consecutive prison terms for the offenses but says nothing about consecutive sentences of post-release control. The entry does state “a prison terms of up to one-half ….” While confusing, prosecutors contend that it is just as likely that the “s” in “terms,” rather than the “a,” is the typo.

Fines and court costs
Ketterer’s attorney notes that state law mandates that courts must consider a defendant’s present and future ability to pay a fine before imposing a financial sanction. The court improperly charged a $5,000 fine in this case, he argues. The attorney contends that the court did not have any information, such as a presentence investigation report, to consider Ketterer’s financial situation and did not ask him about his finances during the resentencing hearing. Ketterer’s attorney also maintains that the three-judge panel was required to inform Ketterer in open court that it was going to charge court costs to him, but did not do that.

The prosecutors again respond that the trial court was limited during resentencing as to what it could review, and it had no authority to reconsider the fine or court costs imposed during the first sentencing hearing.

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

Contacts
Representing Donald J. Ketterer: Randall Porter, 614.466.5394

Representing the Butler County Prosecutor’s Office: Lina Alkamhawi, 513.887.3474

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May Conviction Be Sealed When Offender Still Owes Restitution?

State of Ohio v. Sharlene Aguirre, Case nos. 2013-0870 and 2013-0876
Tenth District Court of Appeals (Franklin County)

ISSUE: May a court seal an offender’s record of conviction when the offender has not finished paying court-ordered restitution to a third-party insurance company?

Editor’s Note: The Supreme Court determined that a conflict exists between two appellate districts on this issue and ordered that the certified-conflict case (2013-0870) be consolidated with an appeal from the state (2013-0876) for oral arguments.

BACKGROUND:
Sharlene Aguirre was arrested in 2001 for the theft of about $34,000. After pleading guilty to the charge in 2002, Aguirre was sentenced to five years of community control and ordered to pay $2,000 to Columbus company Economy Enterprises, which operates gift shops, and $32,562 to two insurance companies through the probation department. Westfield Insurance Company and Harleysville Insurance had paid on the claim and were seeking reimbursement.

In June 2007, the trial court ended Aguirre’s community control. In January 2012, Aguirre applied to have her conviction sealed. She had repaid Economy Enterprises, but still owed the insurance companies $14,152.

The trial court granted the request to seal her conviction. The state appealed to the Tenth District Court of Appeals, which agreed with the trial court’s decision.

The state appealed to the Ohio Supreme Court, which agreed to hear the case. The Tenth District Court of Appeals also notified the Supreme Court that its decision conflicts with a judgment from the Eighth District Court of Appeals. The Supreme Court agreed and consolidated the two scases for oral arguments.

Attorneys from the Franklin County Prosecutor’s Office assert that state law (R.C. 2953.32) requires that a felony offender must be finally discharged and then wait three years before applying to have a conviction sealed. Citing at least ten Ohio appeals court decisions to support their argument, the prosecutors contend that there is no final discharge until all the conditions imposed by the sentencing court are met, including full payment of restitution. Because Aguirre still owes court-ordered restitution, the prosecutors maintain that she has not received a final discharge and complied with the statutory three-year waiting period, so she is not yet eligible to have her record sealed.

The prosecuting attorneys claim that the Tenth District’s decision determined that Aguirre had received final discharge from her case because the only part of her sentence not completed was payment to the third-party insurance companies. The attorneys counter that the identity of those receiving restitution is irrelevant to whether an offender has obtained a final discharge. They argue that the appeals court’s view improperly changes the original sentence.

The public defenders representing Aguirre assert that the Tenth District reasoned that statutes governing sealing of records (also called expungement) should be liberally construed and that if her conviction were not sealed it would be a continuing punishment, which would not benefit the insurance companies. They also note that Aguirre continues to pay back the money.

The attorneys contend that a person is “finally discharged” when he or she completes and is released from the court’s supervision and the court can no longer extend the person’s term of supervision, jail, or prison for the offense. Aguirre’s final discharge occurred in June 2007, her attorneys maintain, and she was eligible by statute to apply for sealing of her conviction in June 2010. The attorneys argue that the prosecutors’s interpretation of “final discharge” expands the meaning beyond how the General Assembly uses the phrase in criminal statutes.

The public defenders also assert that the state’s view that restitution must be fully paid before an offender’s record can be sealed would require low-income offenders to surmount a greater burden than wealthier offenders. They note that a criminal record limits a person’s access to jobs, education, and housing – all making it more challenging for a poor person to pay restitution. A low-income offender, such as Aguirre, who is consistently making payments will suffer the negative impact of an unsealed conviction only because the offender cannot quickly pay off the court-ordered restitution, they contend.

Citing the Ohio Supreme Court’s 2013 decision in Schussheim v. Schussheim, the attorneys argue that trial courts should examine whether the state has a compelling interest to prevent a record from being sealed. If not, the court has discretion to seal the record before restitution is fully paid, they assert. Once a conviction is sealed, the attorneys maintain that there are still consequences if offenders do not continue to repay outstanding financial sanctions. The public defenders note that it has taken nearly ten years for Aguirre to pay the tens of thousands of dollars she has to date. They argue that it may take another ten years for Aguirre to repay the remainder, meaning that she would not be eligible to have her record sealed for another decade or more under the state’s argument. This is not what the state legislature intended, the attorneys contend.

The public defenders also claim that another statute (R.C. 2929.18) prohibits insurance companies from recovering money they pay to an insured who is a crime victim. The attorneys argue that the trial court actually had no authority under this law to order Aguirre to pay restitution to the insurance companies. This further supports their arguments, they assert, because only the invalid portion of Aguirre’s sentence continued after her community control ended in 2007, so under this reasoning Aguirre was also eligible to apply to have her records sealed in 2010.

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket (2013-0870 and 2013-0876).

Contacts
Representing the state of Ohio from the Franklin County Prosecutor’s Office: Barbara Farnbacher, 614.462.3555

Representing Sharlene Aguirre from the Office of the Ohio Public Defender: Stephen P. Hardwick, 614.466.5394

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Attorney Discipline

Toledo Bar Association v. Beauregard M. Harvey, Case no. 2013-1995
Lucas County

The Board of Commissioners on Grievances & Discipline recommends to the Ohio Supreme Court that Beauregard M. Harvey be suspended for two years with reinstatement to the practice of law subject to certain conditions.

In its report, the board found that Harvey committed 25 disciplinary rule violations in his representation of four clients. In one case, the board found Harvey lacked the knowledge to properly file a bankruptcy, did not provide competent representation, did not act with reasonable diligence and promptness, and failed to inform and obtain consent from his client. In a fee dispute, Harvey did not pay a former client more than $2,000 he was ordered to pay by a fee arbitration committee. He also failed to file a different bankruptcy claim, repaid a filing fee to the client more than 18 months after being asked to, did not provide requested documentation to the Toledo Bar Association, failed to maintain appropriate records, and sent a threatening text message to a company vice president involved in an employment case.

The board’s panel that reviewed this matter recommended that Harvey be suspended for two years with six months stayed if he meets some conditions. While the board adopted the facts and legal conclusions made by the panel, the board recommends no six-month stay within the two-year suspension.

Harvey has filed objections to the findings, conclusions, and recommendations of the board. The board found no mitigating factors, but Harvey presented several circumstances that he believes should be considered by the court to lessen the recommended suspension. Specifically, he argues that one client’s father paid off some debt without informing him while he was working on the first bankruptcy case, he paid the refund in the fee dispute, he delayed a filing in the other bankruptcy case because a federal tax refund had to be filed first, and the bar association’s investigator asked for privileged documentation not for only one client but for multiple clients.

Harvey also contends that the alleged violations related to the bankruptcy matters occurred before he was sanctioned with a stayed one-year suspension by the court in 2012. He claims he has committed no new violations in bankruptcy cases since he was sentenced in 2012 by the court.

The Toledo Bar Association, which brought the charges against Harvey, has responded to Harvey’s objections. They note that Harvey has not disputed the violations found by the board, but rather asks the court to consider several mitigating factors.

The bar association asserts that the actions of the client’s father in the first bankruptcy case are not factors that may be considered mitigating according to the board’s regulations, and the father’s actions do not lessen Harvey’s misconduct in the case. In the fee dispute, the bar association states that no evidence of payment to the client was ever provided to the panel or the board. If the payment was made, the bar association contends that a long overdue partial payment does not qualify as a circumstance that would lessen his sentence. Harvey’s other claims are not proper mitigation either, the bar association concludes.

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

Contacts
Representing the Toledo Bar Association: Gordon Barry, 419.241.6285

Beauregard M. Harvey, pro se: 419.720.0400

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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.