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Wednesday, Jan. 13, 2010

State of Ohio v. Toby Palmer, Case no. 2008-2047
1st District Court of Appeals (Hamilton County)

Nursing Care Management of America, Inc., d.b.a. Pataskala Oaks Care Center v. Ohio Civil Rights Commission, Case no. 2009-0756
5th District Court of Appeals (Licking County)

State of Ohio v. Stephen J. McConville, Case no. 2009-0893
9th District Court of Appeals (Lorain County)


Did Court of Appeals Abuse Its Discretion in Granting Delayed Reconsideration of Offender’s Sentence?

State of Ohio v. Toby Palmer, Case no. 2008-2047
1st District Court of Appeals (Hamilton County)

ISSUE:  Did the 1st District Court of Appeals abuse its discretion in granting delayed reconsideration of a 2002 decision on the basis that a 2008 Supreme Court of Ohio decision cited the 1st District’s 2002 ruling as an erroneous application of the law?

BACKGROUND:  In 2001, Toby Palmer was tried and convicted on separate charges of aggravated robbery and robbery arising from the same events, and on an additional specification that a gun had been used in the commission of those crimes. Palmer was sentenced to separate prison terms of 10 years for aggravated robbery and eight years for robbery, plus an additional three years for the firearm specification, with all sentences to be served consecutively (one after the other).

Palmer appealed his convictions and sentence. Among other claims, he asserted that the trial court had erred in imposing separate convictions and sentences for robbery and aggravated robbery because those crimes are “allied offenses of similar import,” and under R.C. 2941.25, convictions for allied offenses based on the same conduct must be merged into a single conviction subject to a single sentence. In its decision, the 1st District Court of Appeals “reluctantly” affirmed the trial court’s judgment, citing what it believed to be the Supreme Court of Ohio’s 1999 holding in State v. Rance defining when two crimes do and do not constitute allied offenses subject to merger.

Palmer continued to litigate the allied offenses issue in the federal courts, but was unsuccessful. In March 2008, the 1st District upheld separate convictions and sentences for robbery and aggravated robbery in another case, State v. Madaris, citing Rance and its own 2002 decision in Palmer’s case as precedents. In April 2008, the Supreme Court of Ohio issued a decision, State v. Cabrales, specifically finding that the 1st District’s 2002 decision in Palmer’s case was based on an incorrect interpretation of the Rance criteria for determining when crimes are allied offenses subject to merger.  In response to the Supreme Court’s holding in Cabrales, the 1st District reconsidered and reversed its ruling in Madaris and held that the defendant in that case should not have been sentenced separately for robbery and aggravated robbery because those crimes are allied offenses subject to merger. 

Several weeks after the Madaris reversal was announced, Palmer filed a motion asking the 1st District to extend the normal time limit for reconsideration of an earlier decision and to reconsider its 2002 decision in his case in light of the Cabrales and Madaris decisions. Citing Ohio Appellate Rule 14(B), which gives courts of appeals discretion to grant time extensions based on “extraordinary circumstances,” the 1st District agreed to reconsider its ruling in Palmer’s 2002 appeal. The court subsequently held that that Palmer’s separate 2001 convictions and sentences for robbery and aggravated robbery were contrary to R.C. 2941.25, and remanded his case to the trial court with a directive to merge those counts into a single conviction and impose a single sentence for that offense.  The state sought and was granted Supreme Court review of the 1st District’s grant of delayed reconsideration of Palmer’s sentence.

Attorneys for the state assert that Ohio Appellate Rule 26(A), which  sets a time limit of 10 days for the losing party to seek reconsideration of a court of appeals decision, is designed to preserve the finality of appellate judgments and preclude indefinite re-litigation of claims that have been decided.

While acknowledging that App.R.14(B) allows extensions of time for seeking reconsideration under “extraordinary circumstances,” they argue that the 1st District erred in holding that a Supreme Court decision reinterpreting a law six years after Palmer’s appeal was denied qualifies as an “extraordinary circumstance” within the scope of that rule.

They point to prior court decisions, including Ali v. State (2004), in which the Supreme Court of Ohio has held that its decisions may be applied retrospectively only to cases that were pending in a trial or appellate court on the date that decision was announced.  In this case, they assert, by holding that a 2008 Supreme Courtdecision issued six years after Palmer’s appeal was denied qualifies as an “extraordinary circumstance” sufficient to reopen his case, the 1st District has effectively created a new rule of law that would allow criminal offenders a virtually unlimited time period in which to seek reconsideration of appellate decisions if those decisions are contrary to a future Supreme Court ruling.

Attorneys for Palmer respond that in order to overrule the 1st District’s grant of reconsideration in this case, the Supreme Court must find that the court of appeals abused its discretion, which requires not merely a finding of legal error but rather a determination that the court acted irrationally and without any reasonable basis. They argue that App.R.14(B) does not place any time limit on a court’s discretion to grant delayed reconsideration of a decision where there are extraordinary circumstances, and argue that the Supreme Court’s specific identification of the 1st District’s 2002 ruling in Palmer’s case as legal error justified its grant of delayed reconsideration. They also point out that, if the 1st District’s grant of reconsideration in this case is reversed, Palmer will be faced with at least eight additional years of imprisonment for a conviction and sentence that the Supreme Court has identified as clearly improper and contrary to law.

Contacts
Scott M. Heenan, 513.946.3227, for the state and Hamilton County prosecutor’s office.

Stephen P. Hardwick, 614.466.5394, for Toby Palmer.

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Must Employer Grant Maternity Leave Despite Policy Denying Leave Eligibility for All First-Year Employees?

Nursing Care Management of America, Inc., d.b.a. Pataskala Oaks Care Center v. Ohio Civil Rights Commission, Case no. 2009-0756
5th District Court of Appeals (Licking County)

ISSUE:  When a company has a uniform policy denying eligibility for any type of leave during an employee’s first year of employment, does its denial of maternity leave to a pregnant first-year employee violate the Ohio civil rights statute that prohibits sex discrimination based on pregnancy?

BACKGROUND:  Tiffany McFee applied for but was denied maternity leave during her first year of employment at the Pataskala Oaks Care Center. She was subsequently terminated from her position based on her absence from work without leave. McFee filed a sex discrimination complaint with the Ohio Civil Rights Commission (OCRC), alleging that Pataskala Oaks had violated R.C. 4112.02, the state civil rights statute that requires employers to grant leave for a reasonable period of time to workers who must be absent from their jobs due to pregnancy or childbirth. After conciliation of the dispute failed, OCRC issued an administrative complaint charging Pataskala Oaks with sex discrimination based on pregnancy.

Pataskala Oaks filed objections to the complaint. After reviewing evidence submitted by the parties, an administrative law judge recommended dismissal of the complaint, holding that because the company uniformly denied eligibility for any type of leave during any employee’s first year on the job, and McFee had not completed one year of employment at the time she requested maternity leave, McFee had not established a prima facie (sufficient on its face) claim of  discrimination. The OCRC disapproved the judge’s report and recommendation, and made a finding that Pataskala Oaks had engaged in illegal discrimination against McFee. Pataskala Oaks petitioned for review by the Licking County Common Pleas Court, which reversed the decision of the OCRC and dismissed the complaint. 

OCRC then appealed the common pleas court’s ruling to the 5th District Court of Appeals, which reversed the trial court and reinstated McFee’s claim. The appellate panel ruled that Pataskala Oaks’ admission that it had fired McFee for the sole reason she was absent from work because of pregnancy constituted a prima facie violation of R.C. 4112.02, which the court said requires employers to grant employees a reasonable term of pregnancy leave notwithstanding any company practice or policy to the contrary. Pataskala Oaks sought and was granted Supreme Court review of the 5th District’s ruling.

Attorneys for Pataskala Oaks and its parent company, Nursing Care Management of America, argue that the court of appeals erred in holding that R.C. 4112.02 imposes an absolute and unconditional requirement that employers must grant leave to any pregnant worker who requests it. They point out that the civil rights statute does not mandate what benefits must be provided to workers but rather prohibits discrimination against individuals based on their sex, race, age and other specified factors.  They urge the Court to affirm the holding of the common pleas court in this case that, because Pataskala Oaks uniformly denies eligibility for any type of leave to any employee during his or her first year of employment with the company, it cannot be guilty of sex discrimination by applying that policy uniformly to a first-year employee who requests leave based on pregnancy or childbirth. 

Attorneys for the civil rights commission respond that the 5th District correctly applied the plain language of R.C. 4112.02, which prohibits firing an employee “because of ... pregnancy, childbirth, or related medical conditions.”  In this case, they say, it is undisputed that Pataskala Oaks discharged McFee for the sole reason that she was absent from work as a result of her pregnancy. In taking that action rather than providing McFee with any minimal, reasonable period of leave for childbirth and medical recovery, they argue, the employer committed a per se violation of the civil rights statute.

NOTE:  The position of Pataskala Oaks is supported by amicus curiae (friend of the court) briefs submitted by the Ohio Health Care Association, National Federation of Independent Businesses and Ohio Management Lawyers Association. A joint amicus brief supporting the position of the Ohio Civil Rights Commission has been filed by the Ohio Employment Lawyers Association, the Ohio Poverty Law Center and the Ohio NOW Legal Defense and Education Fund.

Contacts
Benjamin C. Mizer, 614.466.8980, for the Ohio Civil Rights Commission.

Jan E. Hensel, 614.227.4267, for Nursing Care Mgt. of America d.b.a. Pataskala Oaks Care Center.

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Does Trial Court Have Discretion to Waive Community Notification for Sex Crime Conviction After Jan. 1, 2008?

State of Ohio v. Stephen J. McConville, Case no. 2009-0893
9th District Court of Appeals (Lorain County)

ISSUE:  A provision in Ohio’s current sex offender sentencing statute, R.C. 2950.11(F)(2), authorizes a trial court to waive (omit) the community notification sentencing requirement for a person convicted of a Tier III sex offense if the court finds at a hearing “that the person would not be subject to the notification provisions of this section that were in the version of this section that existed immediately prior to the effective date of this amendment.”  In this case, the Supreme Court is asked to determine whether that statutory language is applicable to all Tier III sex offenders regardless of the date of their conviction, or if it applies only to offenders who were convicted of a Tier III offense prior to the Jan. 1, 2008 effective date of the current statute.

BACKGROUND:  Effective Jan. 1, 2008, the General Assembly replaced Ohio’s former sex offender classification scheme with a new set of classifications based solely on the crime for which an offender was convicted.  Under the new statutory scheme, sexually oriented offenders are placed in one of three “Tiers.” After their release from prison, offenders in each Tier are subject to mandatory registration and/or community notification requirements based on the severity of their crimes. The law requires the lowest level offenders, those assigned to Tier I, to register once a year for 15 years with the county sheriff in their county of residence, but it does not require the sheriff to disseminate information about the offender’s residence to others in the community. Offenders convicted of Tier II offenses must register every six months for 25 years after their release from prison, but are also not subject to community notification. Offenders convicted of the most serious sex crimes, including rape, are assigned to Tier III. Tier III offenders are subject to mandatory registration with local law enforcement every 90 days for the rest of their lives, and sheriffs are required to regularly disseminate information about such offenders, including their current places of residence and employment, to schools and other individuals and organizations in the local community as specified in the law.

In the legislation adopting the new classification scheme, identified as the Ohio Adam Walsh Act (OAWA), the General Assembly specified that the new provisions applied not only to persons convicted of sex crimes on and after Jan. 1, 2008, but also to offenders who were currently serving prison sentences for sex crimes or were currently subject to post-release registration requirements for sex crimes they committed before Jan. 1, 2008. The assignment of some prior offenders to Tier III resulted in retroactive imposition of community notification requirements on persons whose sentences under the pre-2008 sex offender statute had not included community notification.

In this case, Stephen McConville of Lorain County entered guilty pleas to single counts of rape and gross sexual imposition in July 2008. He was subsequently convicted, classified as a Tier III offender under the OAWA, and sentenced to serve four years in prison. At the time he was sentenced, the court notified McConville that as a Tier III offender he would be subject to lifetime registration with local law enforcement after his release from prison. The judge declined, however, to also impose a requirement of community notification.  As his basis for that action, the judge cited language in R.C. 2950.11(F)(2) that authorizes trial courts to waive community notification for a Tier III offender if they make specific findings regarding the offender and his crime, and determine that the offender would not have been subject to community notification under the pre-2008 version of the statute.

The state, represented by the Lorain County prosecutor’s office, appealed the trial court’s refusal to include community notification in McConville’s sentence. On review, the 9th District Court of Appeals affirmed the action of the trial court. The appellate panel held that the statutory provision cited by the trial judge grants trial judges limited discretion to waive the imposition of a community notification requirement on a Tier III offender, and ruled that the judge in this case had made the required  findings and properly exercised his discretion to omit community notification from McConville’s sentence.

The state sought and was granted Supreme Court review of the 9th District’s decision.

Attorneys for the state argue that, when it is read in context with the rest of the Ohio Adam Walsh Act, the language in R.C. 2950.11(F)(2) relied on by the trial and appellate courts in this case is intended to allow a discretionary waiver of community control only in cases involving a sex offender who was convicted prior to Jan. 1, 2008, and who was not subject to community notification under the pre-2008 version of the statute.  In such cases, they say, the legislature intended to allow pre-2008 offenders who were effectively reclassified as Tier III offenders by passage of the OAWA to obtain a hearing at which they may contest the  retroactive imposition of community notification on them when the law in effect at the time of their conviction did not impose that requirement.

They point to a subsequent section of the same statute, R.C. 2950.11(H), that sets forth a specific process by which a Tier III sex offender may apply for cancellation of his or her community notification requirement after 20 years of compliance, and argue that the legislature intended that provision to be the only means by which Tier III offenders like McConville who were convicted after Jan. 1, 2008 may pursue relief from community notification.

Attorneys for McConville respond that nothing in the language of R.C. 2950.11(F)(2) restricts its application to persons who were convicted before Jan. 1, 2008. They argue that the legislature could easily have included such a restriction if that was its intention, and urge the Court to affirm the 9th District’s holding  that the plain language of R.C. 2950.11(F) authorized the trial court to review the facts of McConville’s case and conclude that it was not appropriate to include community notification as part of his sentence.

Contacts
Billie Jo Belcher, 440.329.5458, for the state and Lorain County prosecutor’s office.

John M. Prusak, 440.244.2434, for Stephen McConville.

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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.