Ohio Victim Notification--Offender Release

Ohio Governor John Kasich signed a bill on Dec. 20th., introduced by Senators Kevin Bacon and Jim Hughes last Spring that will now require crime victims and their families to be notified when the incarcerated party in their case is being considered for parole or early release. (Senate Bill 160 and Analysis)

Current Ohio law provides that kind of notification when an offender is to appear before the parole board, but only if requested by the victim or victim’s family. (See Ohio Department of Rehabilitation and Correction Office of Victim Services or Attorney General’s sites). Under Senate Bill 160, it is a mandatory notification system that will ensure victims and their families are automatically notified when parole hearings are scheduled for offenders whom committed crimes against them, though victims can also choose to opt-out of receiving notification.

Modifications of Ohio mayor's courts statutes

Articles in The Chillicothe Gazette, Toledo Blade, Columbus Dispatch, Cleveland Plain Dealer and elsewhere over the past few weeks have been abuzz about the Ohio Legislature's moving to eliminate mayors' courts in the state. The Blade reporting on Nov. 27th. that Ohio & Louisiana were the only two states still having mayors' courts in the country, and commenting that "the late Chief Justice Thomas B. Moyer had been a longtime advocate of abolishing mayor's courts in Ohio, while current Justice Paul E. Pfeifer has said people come out of those courts 'feeling like they just participated in a spaghetti western.'"

The changes eliminate nearly 30 percent of Ohio's 318 courts, according to Ohio Supreme Court records.

We tracked three bills in the Ohio House and Senate all aimed at the same measure, the first of which was SB 254, introduced by Senator Tom Patton in November of last year, providing for a population of 200 or more as being necessary for a municipality to have a mayor's court, but allowing "any municipal corporation located entirely on an island in Lake Erie to establish a mayor's court and to have jurisdiction over certain specified matters," along with modifications to the state's texting/ cell phone laws. It was reported out as amended on Dec. 19th..

Representative Courtney Combs introduced HB 253 in April of this year, proposing that that number be 1,000, but again exempting municipal corporations located on Lake Erie islands.

House Bill 606, introduced by Robert Hagen last month, retained the 200 population figure and Lake Erie community considerations, along with those described in Senator Patton's Senate proposal above. SB 254, in fact, was amended, being incorporated into HB 606 with the Senate then concurring, and was sent to Governor Kasich for his signature on Dec. 19, 2012.

HB 606 also expressly abolishes one of the three full-time judgeships of the Youngstown Municipal Court.

Ohio Intervention In Lieu of Conviction statutes clarified

In April 2009, a Warren County, Ohio grand jury indicted a Regina Niesen-Pennycuff on multiple counts of deception to obtain a dangerous drug, each count a fifth-degree felony.

Niesen-Pennycuff initially entered not guilty pleas on all counts, but later petitioned the court to refer her case to an intervention in lieu of conviction (ILC) program through which she would be able to participate in a drug abuse intervention program in lieu of going to trial on the pending criminal charges, the Ohio Supreme Court's summary latter related. Under the terms of Ohio's ILC in ORC 2951.041, Niesen-Pennycuff, having successfully completed the intervention program and with a period of court-monitored abstinence from drug use, the charges against her would be dismissed without a finding of guilt, and she would be free to petition the court for an expungement of her record.

In August 2010, the court filed its entry recognizing Niesen-Pennycuff's successful completion of the ILC program and dismissing all of the charges pending against her, but, in September 2010 when Niesen-Pennycuff filed an application asking the court to seal her record, the state opposed that application, arguing that she would not be eligible to have her record sealed until three years after the date of the dismissal order, which would be August 2013. The trial court agreed and denied the application, advising Niesen-Pennycuff that she would be eligible to reapply in 2013.

The Supreme Court's summary reported that Niesen-Pennycuff appealed the decision with the Twelfth District Court of Appeals affirming the trial court's ruling, but certifying that its decision was in conflict with State v. Fortado, a 1996 decision in which the Ninth District had held that a defendant whose charges had been dismissed following completion of an ILC program was immediately eligible to apply for sealing of his record.

Ohio's supreme court resolved the issue on June 21st., holding that, by virtue of the wording in statute, trial courts have the discretion either to grant the motion immediately under R.C. 2953.52(A)(1), or to impose a waiting period before the record is sealed pursuant to R.C. 2953.32(A)(1).  [ See Opinion Here and Correction Here ]

Supreme Court Justice Paul E. Pfeifer, earlier this week in a Circleville Herald posting on Dec. 17th.,, explained that "when a court such as ours interprets a law, we have to determine the legislative intent behind it; that means we examine the words and phrases used in the language of the law. The ILC law states that the court 'may order' the records to be sealed. The use of the word 'may' instead of 'shall' indicates that the court has discretion on the issue of sealing the records."

Kentucky Post-conviction DNA Testing

Cincinnati.com this morning (Dec. 18) carried an article about Kentucky State Sen. John Schickel's, speaking at a criminal law reform symposium last month at Northern Kentucky University, throwing his support behind legislation previously championed by liberals that would allow a Cincinnati man to proceed with DNA testing on evidence he claims will exonerate him of a 1987 rape and killing in Newport.

Schickel pre-filed legislation Dec. 14th. that would afford DNA testing to inmates like 60-year-old William Virgil, who is serving a 70-year sentence in LaGrange for the killing of VA Medical Center nurse Retha Welch; Rep. Johnny Bell, D-Glasgow, had filed similar legislation in the House earlier this month. DNA testing was not available at the time of Virgil’s conviction.

“Of the 49 states that have laws governing prisoners’ rights to DNA testing on evidence,” the article says, “Kentucky stands with only Alabama in permitting just those on death row to seek the testing, according to the Innocence Project, a New York nonprofit dedicated to exonerating wrongfully convicted people. In neighboring Ohio and Indiana, any person convicted of a serious felony may apply for DNA testing of evidence.

The only state with no law addressing what has become known as post-conviction DNA testing is Oklahoma.

Illinois gun-control measure unconstitutional

The University of Pittsburgh's Jurist Paperchase yesterday (Dec. 12) reported the Seventh Circuit Court of Appeals' finding the state if Illinois' ban on carrying concealed weapons unconstitutional & invalid. [ Moore v. Madigan, 12-1269 ]

"Relying on the Supreme Court's 2008 decision in District of Columbia v. Heller, 554 U.S. 570 (2008), Judge Richard Posner opined that the Second Amendment 'confers a right to bear arms for self-defense, which is as important outside the home as inside,' and that Illinois failed to provide the court with 'more than merely a rational basis for believing that its uniquely sweeping ban is justified by an increase in public safety.' Posner also relied," the article said, "on the absence of such a law in all 49 other states, reasoning that, if the Illinois ban were 'demonstrably superior,' one may 'expect at least one or two other states to have emulated it.'"

The Seventh Circuit also referenced McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), which held Heller applicable to the states, stating that "both Heller and McDonald say that 'the need for defense of self, family, and property is most acute' in the home, id. at 3036 (emphasis added); 554 U.S. at 628, but that doesn't mean it is not acute outside the home. Heller repeatedly invokes a broader Second Amendment right than the right to have a gun in one's home, as when it says that the amendment 'guarantee[s] the individual right to possess and carry weapons in case of confrontation.' 554 U.S. at 592… Confrontations are not limited to the home."

Ohio Supreme Court reaffirms No Individual May Be Detained 'Even Momentarily' Without Cause

The Ohio Supreme Court on Dec. 6 found that the subject of an outstanding arrest warrant still retains Fourth Amendment rights to privacy and cannot be improperly seized or arrested by an officer unaware of that warrant. [ State of Ohio v. Gardner ]

Appellee was in company of a second individual being arrested on an outstanding bench warrant issued for failing to appear at a trial in Butler County in a drug case. Acting in a suspicious manner, he was detained, searched, and subsequently arrested for possession at the scene. After his arrest, police then determined that appelle was subject of an arrest warrant for a traffic violation.

The case summarized, "Gardner was indicted on one count of possession of crack cocaine and had unsuccessfully moved the trial court to suppress the cocaine found in his possession. Trial court denied the motion, the judge describing the arrest warrant as 'a big elephant in the room.' According to the judge, 'If there's an arrest warrant for Mr. Gardner, the ballgame's over, right? Then everything's cleansed. Even if I agree totally with the defense up till [sic] now.' Ultimately, the judge, citing an unreported Second District decision, Dayton v. Click, Montgomery App. No.14328, 1994 WL 543210, 1994 Ohio App. LEXIS 4551 (Oct. 5, 1994), stated, 'Presuming for a moment * * * there was an illegal stop or illegal search, it matters not. I mean, because in this case we know Officer House didn't discover the arrest warrant until after the stop, search, pat-down and that had all occurred. But it makes no difference under this authority.'

"Upon conviction,Gardner appealed. After characterizing Click and its progeny as 'labyrinthine, if not desultory,' a divided panel of the Second District Court of Appeals reversed, noting that it was not bound by the doctrine of stare decisis to apply Click because the case involved a constitutional question.

The Second District also found there was no evidence showing 'when and how the officers discovered Gardner's name or that there was a warrant; whether the court found facts justifying—or not justifying—a Terry patdown; or whether, if such a patdown were justified, whether the seizure of the drugs was within the plain feel exception.' Id., ¶ 39; thus remanding to the trial court for further proceedings. [State v. Gardner, 2d Dist. No. 24308, 2011-Ohio-5962]


"Click is not good law," the Supreme Court explained in its opinion. "Click and its progeny stand for the proposition that an individual subject to an arrest warrant has 'no reasonable expectation of privacy in being free from being stopped arbitrarily by police' because the warrant is the embodiment of a court's command to arrest the individual. State v. Smith, 2d Dist. No. 22434, 2008-Ohio-5523, ¶ 11; see State v. Williams, 2d Dist. No. 22535, 2008-Ohio-6030, ¶ 21. Under Click, '[t]he mere existence of an outstanding warrant, in other words, renders a seizure lawful, whether or not the officer is aware of the warrant at the time of the seizure.' State v. Gray, 2d Dist. No.22688, 2009-Ohio-1411, ¶ 12.

"{¶ 23} We will not condone the notion that the unlawfulness of an improper arrest or seizure always can be purged by the fortuitous subsequent discovery of an arrest warrant," the Court summiuzed. "As one federal court succinctly stated, 'This argument is preposterous; the Fourth Amendment does not countenance such post hoc rationalization.' Bruce v. Perkins, 701 F.Supp. 163, 165 (N.D.Ill.1988).

"…we recognize that Gardner was the subject of an outstanding warrant (albeit for a traffic violation) and that he had possessed crack cocaine. But efforts 'to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land.' Weeks v. United States, 232 U.S. 383, 393, 34 S.Ct. 341, 58 L.Ed. 652 (1914). There is always a temptation in criminal cases to let the end justify the means, but as guardians of the Constitution, we must resist that temptation. See United States v. Mesa, 62 F.3d 159, 163 (6th Cir.1995)… Fourth Amendment freedoms are not second-class rights; they are indispensable to all members of a free society. See Brinegar v. United States, 338 U.S. 160, 180-181, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) (Jackson, J., dissenting).

"Although we have rejected the state's constitutional claim, we intimate no opinion about whether suppression was proper. We agree with the court of appeals that the trial court denied the motion to suppress without finding whether there was a reasonable, articulable suspicion to justify Officer House's patdown of Gardner and whether the contraband seized could be justified… We thus affirm the appellate court's judgment, including its order to remand this cause to the common pleas court to make the necessary findings and for any other proceedings that may be necessary after those findings are made."

Ohio Supreme Court Rules of Practice/ Code of Judicial Conduct amendments

The Ohio Supreme Court last Friday, Dec. 7th., announced the adoption of reorganized and renumbered Rules of Practice that mirror the flow of a case before the Supreme Court, along with the adoption of several changes to the Code of Judicial Conduct, including an increase in judicial campaign contribution limits that take effect January 1, 2013.

The Court's news service reported "the reorganized Rules of Practice present a more logical ordering of the rules for attorneys and self-represented litigants that is intended to help them locate filing requirements. Many of the changes are clarifying and non-substantive, but there are a few substantive changes. They include:

•Allowing certain documents to be filed by e-mail instead of fax under S.Ct. Prac. R. 3.02(C).
•Adopting rules for cases involving the practice of law to address the procedural and mechanical requirements not specified in the Gov. Bar and Gov. Jud. Rules.

Among the changes the Judicial Rules the service noted are Jud.Cond.R. 4.4(J) and (K) enacting the 5.3 percent increase in the Consumer Price Index for campaign contribution limits that occurred over the four-year period since the Supreme Court was last required by the rules to compute the percentage change. See  chart to view the new limits (in green) for individuals, organizations, and political parties according to the primary and general elections and judges’ jurisdictional levels. ( Full text of Code of Judicial Conduct rule changes here )

Papers of Supreme Court Justice Lewis Powell

Lewis Franklin Powell, Jr. (September 19, 1907 - August 25, 1998) was an Associate Justice of the Supreme Court of the United States from January 7, 1972 until his resignation on June 26, 1987, being nominated by President Richard Nixon on the same day as William Rehnquist and taking over the seat vacated by Hugo Black, the fifth longest-serving justice in Supreme Court history.

Wikipedia's entry relates he "compiled a decidedly moderate record on the Court, cultivating a reputation as a swing vote with a penchant for compromise, and working hard at familiarizing himself with the issues and arguments in the cases, coming up with distinct and well-reasoned positions on them."

Now, twenty years after they first became available to the public, the papers of the late justice are still yielding interesting nuggets, and, a National Law Journal article (subscription) reveals, you don't have to go to Washington and Lee University School of Law in Lexington, Virginia to view them.... They're now being online at the school's website.

Ohio Supreme Court year-end transition cases

As part of a year-end transition process in which the Ohio Supreme Court is releasing a large number of decisions, the Court's news service staff report on December 6, 2012 reported holdings on 18 cases including:

• The Court's upholding the aggravated murder conviction and death sentence of Phillip L. Jones of Akron for the 2007 rape and strangulation killing of Susan Yates. (Case & Case Summary State v. Jones.)

• In Ruther v. Kaiser the Court upheld as constitutional a four-year statute of repose (time limit) for filing medical malpractice lawsuits set forth in R.C. 2305.113(C). The court reversed a decision of the 12th District Court of Appeals that had allowed a malpractice action to go forward despite the passage of more than ten years between the alleged malpractice and the filing of the plaintiff's suit. In its decision, the court applied the test in Westfield Ins. Co. v. Galatis (2003), and formally overruled a 1987 Ohio Supreme Court decision, Hardy v. VerMeulen, which held that a previous statute of repose for medical malpractice actions violated an injured party's constitutional right to a remedy.

• In Doss v. State, the Court held that the reversal by the court of appeals of a Cleveland man's convictions for rape and kidnapping, for lack of evidence was not "proof of innocence" sufficient to support a summary judgment declaring him to be a "wrongfully imprisoned person" entitled to obtain compensation from the state.

• The Court, in State v. Gardner, ruled that an individual who is the subject of an outstanding arrest warrant does not forfeit all expectations of privacy protected by the Fourth Amendment to the U.S. Constitution and the Ohio Constitution, Section 19, Article I. Based on that holding, the court remanded the case of a Dayton-area man to the trial court with instructions to consider whether he was improperly detained and searched by police who were not aware of the existence of the warrant at the time.

• In State v. Roberts the Court held that legislation taking effect July 6, 2010, requiring police and other governmental entities to preserve and catalog DNA evidence, applies to biological evidence already in the possession of those entities at the time of the statute’s effective date.

Elmwood, Ohio's traffic cameras in court

The Governors' Highway Safety Association, a non-profit organization located in Washington, DC. whose members are the state highway safety offices of the 50 states, U.S. territories, and the Indian Nations, evolving, in part, out of The Highway Safety Act of 1966, which established the State and Community Highway Safety Grant Program (U.S.C. Title 23, Section 402), commonly known as the '402 program' to address the problem of unsafe highways, shows that 13 states, the District of Columbia and the U.S. Virgin Islands have speed cameras, and 24 states, the District of Columbia and the U.S. Virgin Islands have red light cameras currently operating at least one location within their boundaries.

12 states have passed laws that prohibit (with very narrow exceptions) the use of speed cameras, and 9 states the use of red light cameras

But 20 states have no state law concerning red light camera enforcement, and 29 states don't have laws addressing speed cameras, according to that organization. All of the other states either permit the use of speed cameras (2 + D.C.) or limit their use by location or other criteria (7 + U.S. Virgin Islands).

But according to the GHSA, neither Ohio, Kentucky, nor Indiana have laws regarding either red light or speed cameras, but Ohio does have "programs operating under local ordinances" -- All of which muddles the issue Cincinnati.com began reporting about last month that on Nov. 29th. now has "irate motorists and businesses taking the Village of Elmwood Place's use of speed cameras to court, saying the village is putting money before people in an attempt to increase revenues." (Here)

We had reported back on Oct. 22 that that earlier article had, in fact, found "that the cameras are legal and enforceable based on the Ohio Supreme Court's 2008 decision in Mendenhall v Akron, where the Court "accepted a certified issue by the United States District Court for the Northern District of Ohio, Eastern Division determining 'Whether a municipality had the power under home rule to enact civil penalties for the offense of violating a traffic signal light or for the offense of speeding, both of which are criminal offenses under the Ohio Revised Code.' Although, as certified by the federal court, the issue embraces both speed-limit and red-light enforcement, the record here deals with a single city ordinance involving enforcement of speed limits. We will therefore confine our analysis to comparing the ordinance with the state statute dealing with speed regulations, acknowledging, however, that the same analysis will dispose of questions concerning red-light cameras..."

As of last May, however, the Ohio Supreme Court was still maintaining that position.

None the less, local attorney Michael Allen served the Village of Elmwood on Nov 29th., disputing not only the Village ordinance’s validity & enforceability, but also challenging it’s authority to “instigate a separate administrative procedure outside of it’s statutorily mandated mayors’ court,” and the fact that those procedures don’t follow rules applicable to Ohio trial courts irrespective, including rules of evidence & procedure. (Complaint)