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Tuesday, Sept. 15, 2009

State of Ohio v. Darnell Whitfield, Case no. 2008-1669
8th District Court of Appeals (Cuyahoga County)

State of Ohio v. Antwaun Smith, Case no. 2008-1781
2nd District Court of Appeals (Greene County)

Cynthia C. Lambert v. Greg Hartmann [Patricia M. Clancy], Hamilton County Clerk of Courts, Case no. 2008-2183
1st District Court of Appeals (Hamilton County)

Disciplinary Counsel v. Justin Martus Smith, Case no. 2009-1144
Cuyahoga County


Does Law Require Merger of Convictions for ‘Allied Offenses,’ or Only Merger of Sentences?

State of Ohio v. Darnell Whitfield, Case no. 2008-1669
8th District Court of Appeals (Cuyahoga County)

ISSUE:  When a criminal defendant is charged with multiple crimes based on the same conduct, and is found guilty of two or more charges that are “allied offenses of similar import,” is the trial court required to merge the allied offenses into a single conviction, or may the court record multiple convictions but merge the penalties for the allied offenses into a single sentence?

BACKGROUND: Darnell Whitfield of Cleveland was stopped by police for running a stop sign. When a computer check revealed that his driver’s license was under suspension, officers placed him under arrest and searched the car, where they discovered 26 grams of crack cocaine, $6,000 in cash and a loaded handgun.

Whitfield was indicted on multiple charges and found guilty of possession of illegal drugs, drug trafficking, having a weapon while under a disability and carrying a concealed weapon, with a firearm specification attached to each of those charges. The trial court entered convictions on all charges and specifications and sentenced Whitfield to four-year prison terms with an additional year for the firearm specification for the drug possession, drug trafficking and weapon under disability counts, and to one year in prison for the concealed weapons count, with all sentences to run concurrently. 

Whitfield appealed. The 8th District Court of Appeals found that drug possession and drug trafficking are allied offenses of similar import, and under Ohio’s multiple-count statute, R.C. 2941.25(A), a trial court must merge its guilty verdicts for allied offenses into a single conviction and impose a single sentence for that conviction. The court of appeals remanded the case to the trial court, with instructions to “vacate the conviction and sentence” for the drug possession charge.

The Cuyahoga County prosecutor’s office sought and was granted Supreme Court review of the 8th District’s ruling. 

The prosecutor urges the Court to revisit its 2004 holding in State v. Yarborough that when a defendant is found guilty of different crimes that are allied offenses of similar import, R.C. 2941.25(A) requires the trial court not only to merge the allied offenses for sentencing purposes, but also to dismiss or vacate the defendant’s conviction for one of the charged allied offenses. He argues that the intent of the multiple-count statute is to prevent defendants from being punished twice for the same conduct, and asserts that nothing in the language of the statute requires that a judge’s or jury’s finding of guilt on any charge, whether or not it is allied to another charge brought against the same defendant, must be dismissed or deleted from the trial record.

The state argues that Yarborough and subsequent decisions following it go beyond the limited legislative intent underlying R.C. 2941.25(A), and create the possibility that a defendant who has been found guilty of multiple  crimes could avoid punishment for any of them if a trial court is forced to vacate one or more of its guilty verdicts under Yarborough, and the defendant’s remaining convictions are subsequently overturned on appeal.

Attorneys for Whitfield note that the plain language of the multiple-count statute specifies that while a defendant may be indicted for multiple allied offenses of similar import arising from the same conduct “(he) may be convicted of only one.” They note that the term “conviction” has historically been used in different ways by the legislature, sometimes referring only to a judge or jury’s finding of guilt on a given charge and sometimes encompassing both a finding of guilt and the sentence imposed for that offense. In interpreting R.C. 2941.25(A)’s reference to “one conviction,” they urge the Court to hold that, when an indictment charges multiple allied offenses based on the same conduct, the state should identify which of the allied charges it will pursue against the defendant at trial, and seek a jury verdict or judicial finding of guilt on only that charge.

Contacts
Lisa Williamson, 216.348.4460, for the Cuyahoga County prosecutor’s office.

Spencer Cahoon, 614.466.5394, for Darnell Whitfield.

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Is Warrant Required for Police to Search Contents of Arrestee’s Cell Phone?

State of Ohio v. Antwaun Smith, Case no. 2008-1781
2nd District Court of Appeals (Greene County)

ISSUE:  When a criminal suspect has been taken into custody and his cell phone has been lawfully seized by police incident to his arrest, do police officers violate the defendant’s Fourth Amendment right against unreasonable searches and seizures by conducting a warrantless search of the electronic files stored in the cell phone?

BACKGROUND:  Antwaun Smith was arrested for trafficking in crack cocaine after responding to a call to his cell phone placed by a drug customer who was acting as a police informant. After Smith was placed under arrest, the police searched his clothing and the passenger compartment of the vehicle he was riding in and took possession of his cell phone. Later that evening, after Smith had been booked into jail and without obtaining a search warrant, the officers conducted a search of the contents of his phone including call logs that listed prior calls between Smith’s phone and the informant’s phone number, and other electronic files. He was charged with possession of cocaine, trafficking in cocaine, tampering with evidence and two counts of possession of criminal tools.

At trial, Smith moved to suppress all evidence police had obtained through the search of his cell phone, arguing that in conducting that search without first obtaining a warrant, the officers had violated his constitutional rights against unreasonable search and seizure. The trial court denied the motion to suppress, ruling that the cell phone was “analogous to a closed container” that was on the person or within the reach of an offender at the time of his arrest and therefore was subject to search by an arresting officer without a warrant. Smith was convicted on all counts and sentenced to 12 years in prison.

He appealed his convictions and sentence, asserting among other claims that the trial court had erred in denying his motion to suppress evidence obtained through the warrantless phone search. In a 2-1 decision, the 2nd District Court of Appeals affirmed the action of the trial court, with a concurring opinion holding that police were justified in searching the phone without waiting to obtain a warrant because there was a chance that important evidence might be deleted if new incoming calls resulted in older calls being deleted from the call log. Smith sought and was granted Supreme Court review of the 2nd District’s ruling with regard to the constitutionality of the phone search.

Attorneys for Smith argue that prior court decisions allowing police to conduct an immediate search of a “closed container” found on or near an arrestee are based on an arresting officer’s need to ensure that an offender is not able to access weapons or destroy evidence while the arrest is being completed.  In this case, they point out, the search of Smith’s phone was conducted hours after he had been taken into custody and his phone had been in the secure possession and control of the police. Under those circumstances, they assert, the phone search was not “incident to” Smith’s arrest and therefore required a warrant. Rather than functioning as a “container” like a box or bag, they assert that current-generation cell phones are much more analogous to personal computers, in which their owners store a wide range of electronic information of a personal nature for which they have a strong expectation of privacy, and which courts have held may not be searched by police without first obtaining a warrant.  With regard to the possibility of old call records being accidentally deleted by new incoming calls, they contend that all the police had to do to avoid that possibility was turn the phone off until they obtained a warrant and completed a lawful search.

Attorneys for the state argue that the trial court and court of appeals properly followed earlier court decisions holding that a closed “container” that was on the person or in the immediate control of an arrested person at the time the arrest is made is subject to search without a warrant. They note that state and federal courts have held that the contents of a woman’s purse or a man’s wallet are subject to a warrantless search incident to an arrest, and argue that the contents of a cell phone should enjoy no greater protection or expectation of privacy than those items. They also assert that when a suspect has been lawfully placed under arrest, allowing police to immediately search the call records stored in a cell phone helps to verify the identity of the suspect and confirm that phone calls that may have been the basis for the arrest were in fact made to or from the suspect’s phone.

Contacts
Stephen K. Haller, 937.562.5250, for the Greene County prosecutor’s office.

Craig M. Jaquith, 614.644.1568, for Antwaun Smith.

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Is Elected Official Covered by Immunity Statute That Applies to ‘Political Subdivisions’?

Cynthia C. Lambert v. Greg Hartmann [Patricia M. Clancy], Hamilton County Clerk of Courts, Case no. 2008-2183
1st District Court of Appeals (Hamilton County)

ISSUE: When an elected county official is sued in his official capacity for alleged negligent performance of one or more of the duties of his office, may the official assert immunity from civil liability under the section of state law that confers immunity on “political subdivisions” (R.C. 2744.02), or is he subject to the terms and conditions of immunity set forth in a different section of state law (R.C. 2744.03) that applies to an “employee” of a political subdivision?

BACKGROUND: Cynthia Lambert of Cincinnati received a citation in September 2003 for a moving traffic violation. The citing police officer recorded the offense on a copy of the Uniform Traffic Ticket form mandated by the Supreme Court of Ohio. The ticket, a copy of which was filed with the Hamilton County Municipal Court, listed Lambert’s name, address, telephone number, date of birth, driver license number and Social Security number, and also bore her signature. Consistent with a practice of the Hamilton County Clerk of Courts office initiated in 1999, a copy of the ticket issued to Lambert was posted on the Clerk’s publicly accessible World Wide Web site without redaction of  personal identification information.

In October 2004, Lambert was notified that two credit cards had been taken out in her name by a person whose true identity was later established as Traci Lynn Southerland. Lambert filed a report with police, and Southerland was apprehended and charged with identity theft and other offenses after making approximately $20,000 in purchases on the falsely obtained credit cards. Lambert subsequently determined that Southerland had obtained personal identification information that helped her obtain the credit cards by viewing the copy of Lambert’s 2003 traffic citation posted on the Clerk of Courts’ Web site.

Lambert filed an unsuccessful lawsuit in federal court, and then filed suit in the Hamilton County Court of Common Pleas seeking to recover damages from Hartmann in his capacity as Clerk of Courts. The complaint alleged that Lambert’s exposure to identity theft “is the direct result of the knowing, reckless, willful and wanton policy, practice and custom of the Hamilton County Clerk of Courts” in posting citizens’ unredacted personal identifiers on that office’s Web site despite a known risk that information accessed through the site could be used to commit identify theft.

Hartmann moved for dismissal. The trial court granted his motion, holding that because the injurious conduct alleged by Lambert was performed in the exercise of Hartmann’s official duties as clerk of courts, and a government agency or office is immune from liability under R.C. 2744.02 for negligent performance of governmental duties other than in limited circumstances not present in this case, Lambert had failed to state a claim on which the court could grant her relief and Hartmann was therefore entitled to dismissal under Civil Rule 12(B)(6).

Lambert appealed the dismissal order. On review, the 1st District Court of Appeals reversed and remanded the case to the trial court for further proceedings. In its opinion, the court of appeals held that because Lambert’s complaint had not named only the clerk of courts office, but specifically named Hartmann as a defendant, her claims against Hartmann were not covered by the blanket immunity granted to “political subdivisions” under R.C. 2744.02.  Instead, the appellate panel ruled that Lambert’s claims against Hartmann must be reviewed under R.C. 2744.03, the section of the immunity statute applicable to claims against “an employee” of a government agency. Applying the latter statute to Lambert’s complaint, the appellate panel ruled that her claims against Hartmann should not have been summarily dismissed because Hartmann might not be entitled to immunity as a government employee if Lambert could prove at trial that he had acted with “willful and wanton disregard” of a known danger of identity theft.

Hartmann sought and was granted Supreme Court review of the 1st District’s decision. Attorneys for Hartmann contend that the 1st District’s ruling was based on a misreading of the Supreme Court of Ohio’s 2007 decision in Cramer v. Auglaize Acres, in which this Court held that the institutional immunity of a county agency under R.C. 2744.02 was trumped by a specific statute imposing civil liability against nursing home operators for violations of their patients’ rights. While acknowledging that Cramer held that the immunity of individual employees personally responsible for a patient’s injuries should be determined under R.C. 2744.03, they point out that Lambert’s complaint in this case does not allege that any individual action by Hartmann caused her damages, but rather alleges that the institutional policies and procedures of the clerk of courts’ office in posting unredacted public records on its Web site facilitated the theft of her identity. They argue that while such lawsuits may name the current holder of a public office as a nominal defendant, the plaintiff is actually seeking to recover for alleged negligent institutional acts by the public office or agency itself, and the defendant is therefore subject to the immunity conferred on political subdivisions by R.C. 2744.02.

Lambert’s attorneys urge the Court to affirm the 1st District’s ruling that when an elected official or the head of a public agency is personally named as a defendant in a civil action, that person is not entitled to the institutional immunity conferred on “political subdivisions” by R.C. 2744.02, but may only assert the immunity afforded to public employees under R.C. 2744.03. Because Lambert’s complaint alleges that Hartmann acted recklessly and wantonly by failing to change his office’s practice of posting unredacted traffic tickets on the Web after being warned that its Web site had been used to facilitate identify theft, and because proof of  reckless conduct can overcome the personal immunity of a public employee under R.C. 2744.03, they argue that the court of appeals correctly ordered the trial court to reopen Lambert’s case and evaluate Hartmann’s claims of immunity under the proper legal standard.

Contacts
Michael G. Florez, 513.946.3229, for Greg Hartmann and the Hamilton County Clerk of Courts Office.

Stacy A. Hinners, 513.621.8800, for Cynthia Lambert.

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Attorney Discipline

Disciplinary Counsel v. Justin Martus Smith, Case no. 2009-1144
Cuyahoga County

The Board of Commissioners on Grievances & Discipline has recommended that the Court publicly reprimand Cleveland attorney Justin M. Smith for violating the state attorney discipline rules that prohibit entering in to an agreement for or charging a clearly excessive fee and handling a legal matter which an attorney knows or should know that he is not competent to handle without associating with a lawyer competent to handle the matter.

The board’s findings and recommendation were based on Smith’s dealings with an elderly New York couple, Louis and Florence Reiger, who were hospitalized in Akron after suffering serious injuries in a traffic accident while traveling through Ohio. Specifically, the board found that Smith and his employer, the Chapman Law Firm of Cleveland, charged a clearly excessive fee when the firm assessed a 40 percent contingent fee against $208,000 of “no fault” personal injury protection (PIP) benefits that were paid directly by the Reigers’ insurer to their medical service providers. The only services provided by the law firm toward the recovery of the PIP benefits were the completion and mailing of a standard insurance claim form.  Under New York state insurance laws, with which Smith was unfamiliar, the assessment or collection of attorney fees on PIP benefits is prohibited.

Smith has filed objections to the board’s finding of two disciplinary rule violations and its recommendation that he be reprimanded. He points out that he was a junior associate who had been in practice for only two years when the firm assigned him to work on the Reigers’ case, and states that all professional decisions governing his representation of the Reigers and all of the firm’s client fee calculations, billings and allocation of receipts between the firm and its clients were completely controlled by the firm’s sole principal, Frank Chapman. He urges the Court to overrule the board’s findings that he was guilty of rule violations, and to dismiss all counts on the basis that he had no control over how the firm conducted its representation of the Reigers or how it billed them for his services.

The Office of Disciplinary Counsel, which prosecuted the misconduct charges against Smith, has responded to his objections by noting that Smith admitted to a number of basic errors in filing suit on behalf of the Reigers, including failing to submit a settlement demand to the at-fault driver before filing suit and failing to name as a defendant in the suit either the insurance company of the at-fault driver or the Reigers’ own auto insurance company, which could have been a source of underinsured motorist coverage. They note that Smith also admitted making little or no effort to obtain information regarding the New York laws governing PIP benefits or get advice from a New York lawyer familiar with that state’s insurance laws, and acknowledged that he had prepared for Frank Chapman’s approval the disbursement sheets and fee statements that were sent to the Reigers, improperly charging them more than $85,000 in legal fees for obtaining “no fault” insurance benefits that required no legal services by the Chapman firm. They point out that all licensed attorneys are responsible for knowing and complying with the ethical canons that govern the practice of law, and cite prior disciplinary cases in which the Court has held law firm associates responsible for rule violations despite claims that they were subordinates who were merely following the instructions of more senior members of their firm.

Contacts
Jonathan E. Coughlan, 614.461.0256, for the Office of Disciplinary Counsel.

Richard S. Koblentz, 216.621.3012, for Justin M. Smith.

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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.