Ohio Sentencing HB 86 Questions & Review

At once being described as landmark legislation being the first substantive revision & updating of Ohio sentencing law in 15 years, recently enacted HB 86 has also generated its share of concern, apprehension, and confusion as well – So much so that the General Assembly and Ohio Criminal Sentencing Commission are being reported as being in the process of weighing those changes even as the corrections overhaul goes into effect.

Ohio Capital Connection’s Hanna Report last Wednesday commented that "Concerns voiced by the Ohio Supreme Court, Ohio Department of Rehabilitation and Correction (DRC), trial judges, law enforcement, and other interested parties since its passage in June range from technical discrepancies with major repercussions to larger constitutional questions around separation of powers and rights of the accused," and a Supreme Court announcement that same day reported "Judges and lawyers across the state's now studying how House Bill 86 changes the way they issue sentences in criminal cases and learning about the new law through training seminars..."

Sentencing Commission minutes from its last meeting addressed some of those perceived problems along with the Commission’s initial responses. (See Here)

The Sentencing Commission has also issued its summary of 2011 Changes to Criminal & Juvenile Law, and Felony Sentencing and Drug Offense Quick Reference Guides.

Elsewhere:

• The full text of HB 86 is 420 pages with a 140-page analysis by the Ohio Legislative Commission.

• The Ohio Judicial Conference issued summaries on the bill generally (here), Juvenile Justice Provisions more specifically (here), and an outline of Changes in Juvenile Bindovers (here)

• The Ohio Public Defender’s website has a summary by the Franklin Public Defender’s Office posted

• The Ohio Prosecuting Attorneys Association has a briefing on major Fully Retroactive H.B. 86 Changes to Judicial Release

Ohio Supreme Court advisory opinions

The Ohio Supreme Court's Board of Commissioners on Grievances & Discipline this past October 7th. for the first time addressed Professional Conduct Rule 5.5 (Unauthorized practice of law; multijurisdictional practice of law), which took effect back in 2007, deciding that "out-of-state debt settlement lawyers are not authorized to provide legal services on a temporary basis to Ohio clients."

Section (c) of the rule contains "safe harbors" that permit an out-of-state lawyer to provide legal services in Ohio temporarily, the Board said, but, in applying the "reasonable relationship" factors found in the comments to Rule 5.5, concluded that allowing the multijurisdictional practice at issue would not serve the interests of clients and public when the "matters are not connected to the lawyers' home state of admission, there is not a pre-existing relationship between the lawyers and the Ohio clients, and the lawyers do not have a recognized expertise in a particular body of federal, nationally-uniform, foreign, or international law that is applicable to the consumer debt matters." [ Announcement and Advisory Opinion 2011-2 ]


Also on October 7th., the Court's Board on the Unauthorized Practice of Law outlined activities non-attorneys can and cannot engage in concerning Medicaid benefits.

Opinion UPL 11-01 says in essence non-attorneys may review documents, prepare and file Medicaid applications and attend state hearings on behalf of an individual "to the extent that those activities are authorized by federal law," but draws the line for non-attorneys at performing "Medicaid planning" for current and prospective nursing-home patients and/or their families regarding qualification for Medicaid benefits "if it requires specialized legal training, skill, and experience." [Announcement]

Ohio Supreme Court Traffic Rule amendment

The Ohio Supreme Court is also accepting public comment on a proposed amendment to Ohio Traffic Rules that clarifies the authority of traffic violations bureaus.

The proposed addition to Rule 13(B)(4) states that driving while under suspension or revocation of a driver’s or commercial driver’s license cannot be processed by a traffic violations bureau "when jail is a possible penalty."

Text of Proposed Amendment

Submitted comments in writing to:

Jo Ellen Cline, Government Relations Counsel
Supreme Court of Ohio
65 S. Front St., Seventh Floor
Columbus, Ohio 43215
or
j.cline@sc.ohio.gov.

Ohio Supreme Court seeking comments on Rule of Practice & Procedure amendments

The Ohio Supreme Court will accept public comment until Nov. 22 on amendments to annual updates to the Rules of Practice and Procedure recommended by the Supreme Court Commission on the Rules of Practice and Procedure.

The Court's announcement last Friday says that the proposed amendments concern changes to the state’s rules of appellate procedure, civil procedure, criminal procedure, juvenile procedure and rules of evidence, many of which target inconsistencies, allow for electronic means of service, remove outdated concepts, or move certain rules to other sections that make more sense. There are, however, a few new rules proposed.

-- Civil Procedure Rule 65.1, for instance, has been proposed regarding civil protection orders. Currently, existing civil rules governing protection order proceedings and the requirements and purposes of two Ohio Revised Code statutes are in conflict. "Sections 3113.31 and 2903.214 of the Ohio Revised Code," the amendment brief states, "establish special statutory proceedings for obtaining domestic violence, stalking, and sexually oriented offense civil protection orders. Both statutes state that the proceedings 'shall be conducted in accordance with the Rules of Civil Procedure.' However, the civil rules governing magistrates, discovery, and other procedures applicable to civil actions in general interfere with the process and requirements set out in the statutes. It is difficult, if not impossible, to apply the existing civil rules in these protection order proceedings and still comply with the requirements and purposes of the statutes.

"The legislature has also adopted R.C. 2151.34, a statute dealing with civil protection orders against a minor. This statute must also be addressed in drafting a new rule because, like the other two statutes, it states that the proceedings 'shall be conducted in accordance with the Rules of Civil Procedure.'

" The procedures for obtaining the protection orders provided by these three statutes are designed for the benefit of pro se parties and the orders are generally sought pro se—a significant consideration in drafting the proposed rule."


Another new rule – Juvenile Procedure Rule 5 – has been proposed to require juvenile courts to use a juvenile's initials rather than his or her full name in court decisions and press releases.

A clean-up amendment to Juv. R. 22 is also proposed. "The current rule requires the filing of a motion for discovery within ten days of appearance of counsel which leaves little time for the juvenile’s defense to file a request for discovery, for the prosecutor’s office to comply, and a subsequent motion for discovery to be filed. Although the rule allows for the court to extend time for making prehearing motions in the interest of justice, if the rule is strictly adhered to, the defense may be out of time to file a motion legitimately certifying that the request was refused The proposed amendment will provide more workable timelines and consistency of notice in these circumstances."


Text of Proposed Amendments

Comments should be submitted in writing to:

Jo Ellen Cline, Government Relations Counsel
Supreme Court of Ohio
65 S. Front St., Seventh Floor
Columbus, Ohio 43215
Or via e-mail to j.cline@sc.ohio.gov.

Gallup Poll has 35% opposing death penalty

A new Gallup poll released this morning indicates that more than one-third of Americans now oppose the death penalty — the highest level in nearly 40 years.

USAToday reports that the poll found that 35% of those polled oppose the death penalty — the highest opposition since March 1972 --- "moreover, those who believe the death penalty is being applied fairly, and those who say it isn't used often enough, are at the lowest levels in a decade, underscoring significant changes in those attitudes."

The Gallup poll was conducted shortly after two controversial cases drew national attention: Troy Davis’ execution in September, and last week's Supreme Court hearing involving Alabama death row inmate Cory Maples.

"Recent years have seen renewed controversy over the death penalty's use," the poll reported, "including the 2010 execution of Teresa Lewis in Virginia, the first woman to be executed in that state in almost 100 years, and the execution of Davis in September of this year. It is not clear whether the death penalty will be an issue in next year's presidential race, although Texas Gov. Rick Perry was asked in a recent Republican debate about his state's status as the most frequent in carrying out the death penalty.

"A separate trend question, not asked this year, explicitly offers respondents the opportunity to choose between the death penalty and life imprisonment with no possibility of parole, and last year's update found about half of Americans preferring the latter option. On the other hand, Gallup has found support for the use of the death penalty rising when Americans are asked about specific cases involving high-profile mass killings, such as the Oklahoma City bomber, Timothy McVeigh."


Meanwhile, here in southwestern Ohio, USAToday also reported that Democratic State Reps. Ted Celeste of Columbus and Nickie Antonio of suburban Cleveland are asking Gov. John Kasich for a moratorium on Ohio executions while a recently appointed Supreme Court committee studies the state’s death penalty provisions. The two co-sponsor House Bill 160 – the “Execute Justice” bill – that would do away with capital punishment in Ohio. ( See Press Release )

The 20-member task force convened by the Supreme Court and the Ohio State Bar Association, will consist of judges, prosecuting attorneys, criminal defense lawyers, lawmakers and academic experts, who will review Ohio's current laws, practices elsewhere, data and costs, as well as a 2007 report released by the American Bar Association that called for a moratorium while problems the report said it had identified were examined. ( Report )( executive summary )

Third Circuit "crack sentencing" conflict cases

Law.com’s Daily Report yesterday morning carries word of “the full 11th U.S. Circuit Court of Appeals last week deciding to take up a question about the scope of a 2010 federal statute designed to reduce the disparity between crack and powder cocaine sentences. The court's decision to use its power of en banc review—usually doled out sparingly—is remarkable because the government has signed on to the defense position in the cases to be reheard.

"At issue,” the article continued, “is a category of defendants who committed drug crimes before President Barack Obama signed the federal Fair Sentencing Act into law on Aug. 3, 2010—but weren't sentenced until after the bill became law.

“Although Attorney General Eric H. Holder Jr. supported the bill, the Justice Department initially argued defendants who committed their crimes before it became law were ineligible for the new mandatory minimum rules if they hadn't been sentenced by then. Prosecutors argued the new law couldn't help those defendants because the statute didn't expressly say it applied retroactively.”

In May, an 11th Circuit panel adopted the prosecution's view in the case of Charles Hudson, serving a 20-year mandatory minimum sentence for crack convictions out of South Florida. The unpublished decision said the panel's conclusion was mandated by language from a 2010 ruling by the 11th Circuit on the new fair sentencing law, United States v. Gomes, 621 F.3d 1343. [US Supreme Court certiorari denied Apr. 4, 2011 ] Then in late June, a second 11th Circuit panel went the other way in an unsigned but published opinion that was to decide the fate of Carmelina Vera Rojas, another South Florida drug defendant sentenced under a pre-FSA mandatory minimum, this one 10 years. While the Rojas panel didn't mention the earlier decision in Hudson's case, its June 24 opinion said that the 2010 Gomes decision didn't mandate a ruling for the prosecution because, in that case, Gomes had been sentenced by the time the Fair Sentencing Act was signed into law.


The majority of federal appeals courts have followed Gomes in holding that the Federal Sentencing Act was not retroactive. A conflict in 3rd. Circuit cases was qualified this past August with that Court’s foootnoted proviso in United States v. Dixon, 648 F.3d 195, 2011 U.S. App. LEXIS 16374 (3d Cir. Pa. 2011):

"As a threshold issue, we determine that our previous decision in United States v. Reevey, 631 F.3d 110 (3d Cir. 2010), upon which the District Court relied, does not resolve the question presented in this appeal. When considering whether a law applies retroactively, the question is always “to whom”? In Reevey, we held that it did not apply retroactively to the group comprised of defendants who committed their crimes and who were sentenced before the Act was enacted. In doing so, we joined every Court of Appeal to consider the issue. See United States v. Doggins, 633 F.3d 379, 384 (5th Cir. 2011); United States v. Bell, 624 F.3d 803, 814-15 (7th Cir. 2010); United States v. Brewer, 624 F.3d 900, 909 n.7 (8th Cir. 2010);
United States v. Carradine, 621 F.3d 575, 580 (6th Cir. 2010); United States v. Lewis, 625 F.3d 1224, 1228 (10th Cir. 2010); United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir. 2010) (per curiam). The “to whom” question here is different. The issue in this case is whether the FSA applies to the separate group of defendants who committed their crimes before the Act was enacted, but who were sentenced afterwards. We specifically abstained from answering this question in Reevey. 631 F.3d at 115 n.5 (distinguishing a defendant in Dixon’s position from Reevey because Reevey, unlike Dixon, committed his crime and was sentenced before the FSA was enacted). Our answer to the question whether Congress intended to apply the FSA to one group – defendants in Reevey’s position – has no bearing on whether Congress intended to apply the FSA to another – defendants in Dixon’s position. See United States v. Fisher, 635 F.3d 336, 339 (7th Cir. 2011) (concluding that a case similar to Reevey did not control whether the Act applies to defendants like Dixon)".

Akron, Ohio's Domestic Violence Court

The first court in the state of Ohio devoted exclusively to handling felonies stemming from domestic violence issues opened in Akron last Monday with its first 15 cases. Summit County Common Pleas Court Judge Paul Gallagher, who’ll preside over the new court, told the Akron Legal News he expects to handle at least 350 cases a year.

"The goal of this court is to hold offenders accountable, increase the safety of victims and ensure consistency in the way these cases are handled," Summit County Prosecutor Sherri Bevan Walsh said in a USAToday article this morning. "This is not a diversion program. Our ultimate goal is to stop the cycle of violence."

Offenders who have at least two misdemeanor domestic violence charges from a municipal court will move to the common pleas domestic violence court. The second offense is a 4th degree felony and the third offense is a 3rd degree felony. The Summit County's prosecutor's office indicted 353 felony cases last year. Judge Gallagher said he expects to have a steady docket of at least that many or more.

Quite often victims will recant, Gallagher said in the Akron News article, in part because of dependency issues. "Trials are also interesting to jurors -- to hear on a 911 tape 'he's going to kill me,' then on stand have them say he's the picture of a near-perfect spouse. To hear women recant is hard to understand, so we often have experts in these issues come in and explain, to the jury, why women recant."

"Everybody charged with domestic violence is screened through normal plea negotiations with the prosecutor's office," he said. "I agree with their philosophy, that just because a victim recants, that doesn't mean the case would go away." The prosecutor's office in Summit County has been very successful in prosecution even when victims recant, he added.

Coincidentially, The Columbus Dispatch last week reported the Ohio Supreme Court's hearing oral arguments that same day on a domestic violence case that could have wide-reaching affect across the state. There, the Cuyahoga County prosecutor's office wants the high court to instruct judges across the state to consider calling accusers to the stand in domestic-violence cases, which would give prosecutors a chance to cross-examine them on statements and complaints made to police before they then refused to testify. ( Memorandum in support of jurisdiction ) Our post last Thursday has more.

Ohio Supreme Court seeking public comment on "limited liability" language

The Ohio Supreme Court is accepting public comment on proposed amendments designed to conform the Court’s Rules for the Government of the Bar of Ohio and the Ohio Rules of Professional Conduct to the language now updated in the Ohio Revised Code and statutory references to the Ohio Uniform Partnership Act. (Announcement)

From the amendment’s background:

Gov. Bar Rule III authorizes lawyers to practice through legal professional associations, corporations, legal clinics, limited liability companies, and partnerships having limited liability. Regarding partnerships having limited liability, Gov. Bar Rule III references both Chapter 1775 and section 1775.62 of the Revised Code as the applicable statutory provisions. However, the General Assembly repealed R.C. Chapter 1775 in its entirety effective January 1,2010, and replaced it with R.C. Chapter 1776, the Ohio Uniform Partnership Act. R.C. Chapter 1776 now governs the creation of partnerships having limited liability. Accordingly, the proposed amendment to Gov. Bar Rule III adds citations to R.C. Chapter 1776. To cover partnerships formed under prior law, the general reference to R.C.Chapter 1775 remains. The citation to R.C. 1775.62 is changed to R.C. 1776.82, which now controls the designations of limited liability partnerships.

Written comments on the proposed amendments to Rule III, Sections 1-4, and Rule VI, Section 1, of the Supreme Court Rules for the Government of the Bar of Ohio and Rule 1.4, Comment [8], and Rule 7.5(a) of the Ohio Rules of Professional Conduct must be received no later than November 8, 2011 and submitted to:

Michelle A. Hall, Senior Staff Counsel
Board of Commissioners on Grievances and Discipline
65 South Front Street, 5th Floor
Columbus, Ohio 43215-3431
or via e-mail to: michelle.hall@sc.ohio.gov

Burglars' tipoff leads to California child porn arrest

CNN this morning carries a report about a central California man’s being arrested for possession of child pornography, thanks to a tip from burglars who robbed the man's property in the first place, authorities said.

Two juveniles broke into the man’s barn and stole approximately 50 CDs they believed were blank, according to the article. Some weren’t, but rather contained pornographic images of children.

Despite having obtained the CDs under decidedly shady circumstances, the pair decided to inform police…. A search warrant was served and three more computers, along with three laptops and several external hard drives were seized.

The man admitted possessing the CD pornography, but has refused to say whether there is more on any of the computers. He was booked for possession of child pornography and posted $25,000 bail.

The two burglar suspects were not arrested, but their case has been sent to the Merced County District Attorney's Office for review.

Ohio Supreme Court domestic violence case

The Columbus Dispatch yesterday had an article about the Ohio Supreme Court's hearing oral arguments Tuesday morning about a case that could affect some domestic-violence prosecutions across the state.

In an altogether common problem alleged victims of domestic violence eventually recant what they told police and decide not to testify against their husbands or boyfriends. The Cuyahoga County prosecutor's office wants the high court to instruct judges to consider calling accusers to the stand in domestic-violence cases, which would give prosecutors a chance to cross-examine them on statements and complaints made to police before they then refused to testify. (Memorandum in support of jurisdiction )

"Until the decisions of the United States Supreme Court in Crawford v. Washington (2004), 541, U.S. 36, 124 S.Ct. 1354, and Davis v. Washington (2006), 547 U.S. 813, 821, 126 S.Ct. 2266," Cuyahoga’s petition read, "prosecutors had some latitude to introduce hearsay in accordance with the applicable evidentiary rules. In the aftermath of those decisions, it is nearly impossible to prove a domestic violence case when the complaining witness recants before trial….. Evid. R. 614(A) offers some hope. The rule allows the court to call the victim as its witness, affording the prosecutor the ability to cross-examine the victim on his or her prior statement and subsequent recantation., (but) as the facts of this case demonstrate, trial judges unaccustomed or openly hostile to the rule can place it out of reach, foreclosing any reasonable hope for proving a recanting-victim domestic violence case…"

Citing the 2003 Lake County case, State v. Sealey, Cuyahoga pointed out "the court's authority to call a witness pursuant to Evid. R. 614(A) is within its inherent authority, and should be exercised in fulfillment of its fundamental duty to arrive at the truth," and posits that "a review of Ohio decisional law by the undersigned reveals no other court that requires specific proof of a threat as a prerequisite to use of Evid. R. 614(A)."

Ohio Supreme Court's review of denial of new trial based on new evidence

The Ohio Supreme Court on Tuesday held that "in a case where a death penalty has been imposed, the state's intermediate courts of appeals have jurisdiction to review a ruling by the trial court denying the defendant's motion for a new trial based on newly discovered evidence, and also that a trial court has jurisdiction to decide a defendant's motion for a new trial based on newly discovered evidence even after the defendant’s death sentence has been affirmed on appeal by the Supreme Court of Ohio." [ State v. Davis ][ court’s summary ]

In particular the question here was "whether an intermediate court of appeals had jurisdiction to review a trial court's ruling on a new trial motion in a capital case, in light of a 1994 amendment to the state constitution that eliminated intermediate appellate review of death penalty cases in favor of direct review by the Supreme Court."

Justice Judith Ann Lanzinger noted in considerations that "among the state's 12 appellate districts, only the 11th District, appears to have reviewed that question: a) barred intermediate appellate review of a postconviction motion for a new trial in a death penalty case, or b) barred a court of appeals only from hearing the appeal of a final judgment in which a trial court actually imposes a death sentence."

On discussing that case, State v. Jackson from last year, Justice Lanzinger stated "the court concluded that '[Section 3(B)(2), Article IV, Ohio Constitution] refers expressly to a specific judgment that a court of appeals does not have the authority to review; i.e., the final sentencing judgment which sets forth the order regarding the imposition of the death penalty. Given the narrowness of the jurisdictional exception in Section 3(B)(2), logic dictates that the provision was not intended to totally deprive a court of appeals of all authority to review a final judgment stemming from a case in which the death penalty was imposed. Rather the wording of Section 3(B)(2) supports the conclusion that an appellate court has the jurisdiction to review final judgments rendered in such a proceeding, except for the entry containing the weighing exercise which leads to the imposition of the death sentence.'" (also see State v. Jackson initial appeal @ 2010 Ohio 1270)


Of the second aspect – "a trial court's retaining jurisdiction to consider a post-conviction motion for a new trial under Crim.R. 33(B) after a defendant’s death sentence has been affirmed on appeal"-- Justice Lanzinger distinguished this circumstance from the issue analyzed in the supreme court's 1978 decision in State ex rel. Special Prosecutors v. Judges, Court of Common Pleas, where, she noted, a trial court improperly allowed a defendant to withdraw his earlier guilty plea and granted him a new trial after a court of appeals had reviewed and specifically affirmed the validity of that plea in upholding the defendant’s convictions. In this case, Justice Lanzinger observed, Davis' motion for a new trial was based on new postconviction evidence challenging the validity of DNA testimony, evidence that was not part of the trial record reviewed by the Supreme Court when it upheld Davis’ convictions and death sentence on direct appeal.

New FBI definition of rape

The Los Angeles Times over the past weekend reported that “the FBI was moving to change the federal definition of rape for the first time in 80 years, which authorities and women's advocacy groups hope will lead to improved tracking of such crimes and an attitude shift among investigators.”

The New York Times first reported on Thursday the potential for change after police chiefs, sex crime investigators, federal officials and advocates convened in Washington to discuss the limitations of the federal definition and the wider issue of local police departments not adequately investigating rapes.

“Critics,” the L.A.Times article related, “have maintained that the current definition – which since 1927 has been defined as forcible male penile penetration of a female and excludes cases involving oral and anal penetration, cases in which the victims were drugged or under the influence of alcohol, and male victims -- is archaic, too narrow, and leaves crimes uncounted in police statistics, resulting in fewer resources for victims and law enforcement.,”

The New Republic also had a recent article which referenced a 2007 study funded by the Department of Justice which suggested the current definition has distorted FBI statistics and that they are very misleading indeed. The study notes that rape prevention and intervention services, as well as federal policy, cannot be truly effective without an accurate picture of the incidence of the crime.

Health Care Reform case submitted to Supreme Court

Ohio, The U.S. Justice Department, and 25 other states, filed petitions last Wednesday seeking the Supreme Court review of last year's controversial federal health care reform law, the Cleveland Plain Dealer reports.

“This case offers the Court an ideal vehicle to resolve pressing and persistent constitutional questions arising out of the Patient Protection and Affordable Care Act,” the request for certiorari says. “It represents an unprecedented challenge—involving over half the States in the Nation—to an unprecedented legislative initiative….”

Three of the Act‘s core provisions are being challenged: “its significant Medicaid expansions, which Congress has forced upon the States by threatening to withhold billions in federal funding unless States comply; the employer mandates, which impose harsh penalties upon States that do not offer their employees a federally mandated level of insurance; and the Act‘s individual mandate, which requires nearly all individuals (including those currently eligible for, but not participating in, state-funded Medicaid) to maintain health care insurance or pay a penalty to the federal government.”

“The Eleventh Circuit correctly held that the individual mandate is unconstitutional, but it erred in rejecting the States‘ Medicaid challenge based on a reading of the coercion doctrine that would deprive it of all force as a meaningful limitation on Congress‘s vast spending power,” petitioners profess. “And it misapplied this Court‘s severance doctrine to leave the entire rest of the Act standing even though the mandate indisputably served as the centerpiece of the delicate compromise that produced the Act. Indeed, the Court of Appeals left standing provisions of the Act that even the government conceded were inextricably intertwined with the mandate.”


Also, Lyle Denniston at ScotusBlog reported over the weekend that “The state of Virginia, seeking to revive its constitutional challenge to a key part of the new federal health care law, asked the Supreme Court on Friday to rule that the state has a right to be in court -- the fifth petition seeking review of the new law’s mandate that virtually all Americans must have health insurance by the year 2014. Virginia is the only challenger now at the Court to have been denied ”standing” in lower courts. Its petition, with a lengthy appendix is here.

“Virginia’s challenge to the insurance mandate, unlike that of others who have appealed, is tied to a state law that declared that no resident of the state could be compelled to obtain a health care policy, as required by the federal law. The legislature passed it in anticipation of Congress’s enactment of the health care law, and, relying upon its statute, Virginia was the first to file a federal court case against the mandate. The Fourth Circuit Court, however, ruled last month that Virginia had no basis for challenging the mandate,; it found that the provision imposed no burden at all on the state.”