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Wednesday, Feb. 17, 2010

State of Ohio v. Byron Clayborn, Case no. 2009-0971
10th District Court of Appeals (Franklin County)

City of Barberton v. Mark W. Jenney, Case no. 2009-1069
9th District Court of Appeals (Summit County)

International Business Machines Corporation and IBM Credit Corporation v. Richard A. Levin, Tax Commissioner of Ohio, Case no. 2009-1296
State Board of Tax Appeals


Is Appeal of Sex Offender Classification a Civil Matter Subject to ‘Tolling’ of Filing Deadline under Civil Rules?

State of Ohio v. Byron Clayborn, Case no. 2009-0971
10th District Court of Appeals (Franklin County)

ISSUE:  When a criminal defendant is convicted and sentenced for sex-related offenses, and is classified by the trial court at his sentencing hearing as a Tier II offender under R.C. Chapter 2950, if the defendant appeals only his classification (and not his convictions or sentence), is that appeal a criminal matter that must  be filed within 30 days after judgment in his case was entered, or is it a civil matter for which the 30-day appeal deadline is tolled (stopped from running) under Civil Rule 4(A) until the defendant has been served with a copy of the judgment entry?

BACKGROUND:  On May 30, 2008, Byron Clayborn of Columbus was convicted on multiple counts of pandering sexually explicit material involving a minor  based on events that took place in March and April 2007.  Clayborn was sentenced to two years in prison and was notified at the time of sentencing that, pursuant to amendments to the state’s sex offender classification statute that took effect Jan. 1, 2008, he would be classified as a Tier II offender and therefore after his release from prison would be required to register in person with the county sheriff  every 180 days for the next 25 years.  Clayborn’s attorney objected, arguing that because his offenses were committed prior to the effective date of the 2008 amendments, the less restrictive classification statute in force at the time of his offenses should be applied. The trial court overruled that objection.

Clayborn, who was represented by the public defender’s office, appealed the retroactive application of the 2008 sex offender registration scheme to his convictions for crimes that were committed in 2007, asserting claims under both the U.S. and Ohio constitutions.  Because of a clerical error by the public defender’s office, however, his notice of appeal was not filed until July 15, 2008, 45 days after judgment had been entered by the trial court. The 10th District Court of Appeals dismissed his appeal without considering the merits, on the basis that Clayborn had missed the 30-day deadline for appealing the judgment in a criminal case. Clayborn sought and was granted Supreme Court review of the 10th District’s ruling.

Clayborn’s attorneys urge the Court to reverse the 10th District and order it to accept and review his appeal on the merits.  They point to recent Supreme Court of Ohio decisions holding that Ohio’s sex offender classification statute, R.C. Chapter 2950, and classification proceedings under it are civil rather than criminal in nature. They argue that because Clayborn was not  immediately served with a copy of the trial court judgment entry in his case as required by the rules of civil procedure, under Civil Rule 4(A) the 30-day time limit for him to file an appeal of his classification under the sex offender statute did not begin to run until he was served with a copy of the judgment. Because his July 15 notice of appeal was filed within 30 days after he received that notice, Clayborn asserts, his appeal was timely and the court of appeals erred in refusing to review it.

Attorneys for the state respond that under the 2008 version of Ohio sex offender classification statute, the assignment of a sex offender one of three “tiers” or classifications is not a matter decided by the trial court, but is a statutory requirement completely determined by the specific criminal offense for which that person was convicted.  Because a trial judge does not exercise any judicial discretion in assigning an offender to a classification, but merely notifies the defendant which tier applies to his offense under the statute, they argue that there is no “judgment” on that issue for a court of appeals to review, and so the 10th District was correct in dismissing Clayborn’s appeal regardless of whether it  is civil or criminal in nature. If Clayborn wanted to challenge the constitutionality of the classification statute or its retroactive application to his offenses, they assert, he should have filed a declaratory judgment action rather than a belated appeal of his classification.

Contacts
Allen V. Adair, 614.719.2061, for Byron Clayborn.

Steven L. Taylor, 614.462.3960, for the state and Franklin County Prosecutor.

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Is Trained Officer’s Visual Estimate of Vehicle Speed Sufficient to Support Conviction for Speeding?

City of Barberton v. Mark W. Jenney, Case no. 2009-1069
9th District Court of Appeals (Summit County)

ISSUE: May a trial court rely exclusively on a police officer’s unaided visual estimate of a vehicle’s speed as sufficient evidence to support a conviction for speeding in violation of R.C. 4511.21?

BACKGROUND: In September 2008 motorist Mark Jenney was stopped and cited for speeding by Copley police officer Christopher Santimarino. Jenney disputed the citation and appeared before the Barberton Municipal Court.

At trial, Santimarino testified that while sitting in his stationary police car on a portion of highway with a 60 mile per hour speed limit, he observed Jenney’s SUV driving in the left lane “at a high rate of speed” which he visually estimated to be approximately 70 mph. Santimarino also stated that his car’s radar unit initially clocked Jenney’s vehicle at 73 mph, but later showed readings of 82 or 83 mph. On the citation he issued to Jenney, Santimarino recorded the vehicle’s speed as 79 mph. The officer testified that he listed that speed as a courtesy in order to allow Jenney to avoid a mandatory court appearance that would have been required if he was cited for traveling more than 20 mph over the posted limit.

Following cross examination of Santimarino by Jenney’s attorney and direct testimony by Jenney, the trial court found him guilty of speeding in violation of R.C. 4511.21 and based his fine on a speed of 70 mph. Jenney appealed, arguing that the radar evidence introduced against him at trial was inconsistent and unreliable, and that the only other evidence regarding his speed was the officer’s unaided visual estimate, which he argued was not legally sufficient to prove his guilt by the required standard of “beyond a reasonable doubt.”

The 9th District Court of Appeals held that the radar evidence was inconsistent and therefore  inadmissible, but nevertheless affirmed Jenney’s conviction on the basis of Santimarino’s visual estimate of his speed. Jenney sought and was granted Supreme Court review of the 9th District’s decision. The Ohio attorney general’s office filed an amicus curiae (friend of the court) brief supporting the position of the state, and has been granted permission to participate in oral argument before the Supreme Court.

Attorneys for Jenney point to decisions by the 3rd and 8th District courts of appeals holding  that a police officer’s unaided visual estimate of a vehicle’s speed, by itself, is not sufficient to prove  a speeding violation under R.C. 4511.21.  In those decisions, they say, the courts of appeals observed that the universal use and required close calibration of radar and laser technologies by traffic officers, and the reliance on those instrument readings by trial courts, illustrates widespread acknowledgment within the justice system that unaided visual estimates are not sufficiently accurate  to prove speeding violations beyond a reasonable doubt. They also argue that the use of precise technical instruments is essential to fair and consistent application of state and local speeding ordinances because those laws often impose significantly higher fines and other enhanced sanctions on violators based on differences in speed of only one or two miles per hour -- differences that they say cannot be accurately distinguished by even the most experienced officer’s unaided eyesight.

Attorneys for the state respond that five other Ohio court of appeals districts that have considered the issue have concluded that a trained officer’s visual estimate of a vehicle’s speed, without supporting  mechanical test results, can be sufficient to support a speeding conviction. They urge the Court to follow the principle that trial courts are in the best position to evaluate the credibility of witnesses and weigh the reliability of evidence, and that reviewing courts should not disturb a trial court’s decisions on evidentiary issues absent a clear abuse of discretion.

They point out that R.C. 4511.21 prohibits not only driving faster than a posted speed limit, but also driving at a speed that is “unsafe” based on changing road, weather, light and traffic conditions. In reviewing citations issued under the latter provision, they assert, courts routinely evaluate and either accept or reject the subjective visual observations and judgments of police officers regarding the speed at which a vehicle was traveling and whether that speed was or wasn’t “safe” under a given set of circumstances. They note that in this case the court did not convict Jenney of a more serious offense or punish him more harshly based on minute increments in his speed, but rather found him guilty of a minor misdemeanor based on an experienced traffic officer’s observation that he was traveling approximately 10 miles an hour over the posted speed limit.

Contacts
John Kim, 330.434.2000, for Mark Jenney.

Michelle Banbury, 330.472.1511, for Barberton city prosecutor.

Benjamin C. Mizer, 614.466.8980, for Ohio Attorney General Richard Cordray.

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Is Company Entitled to Interest on Partial Refund of State Use Tax Under Special ‘EIS’ Incentive Program?

International Business Machines Corporation and IBM Credit Corporation v. Richard A. Levin, Tax Commissioner of Ohio , Case no. 2009-1296
State Board of Tax Appeals

ISSUE: Do provisions of state law that authorize the payment of interest on refunds of state sales and use taxes require the tax commissioner to pay interest on partial refunds of sales and use taxes that the legislature granted to Ohio companies for their purchases of computer equipment used in providing “electronic information services?”

BACKGROUND:  In 1993, the General Assembly enacted R.C. 5739.071 as an incentive to Ohio companies engaged in electronic information services (EIS) such as providing Internet access, providing access to database information and providing access to email systems. The statute granted a 25 percent refund of state sales or use taxes paid by Ohio companies on their purchases of computers, computer peripherals, computer software and telecommunications equipment used in providing EIS. Rather than waiving collection of a portion of  the tax at the time of a qualifying equipment purchase, the law requires participating companies to pay sales or use tax on the full purchase price, and then apply to the tax commissioner for a partial refund.

International Business Machines Corp. (IBM) and a subsidiary, IBM Credit Corporation, made significant purchases of qualifying equipment for use in their Ohio data center during the 1997 through 2006 tax years. They applied for and received partial refunds from the tax commissioner totaling nearly $4 million for taxes they had paid on those purchases. IBM also sought but was denied interest on the amounts of each of those refunds for the time between their payment of the tax and receipt of the refund.

IBM appealed the tax commissioner’s rulings denying interest to the State Board of Tax Appeals (BTA). The BTA affirmed the commissioner’s determination that there is no statutory authorization for the payment of interest on partial tax refunds obtained under R.C. 5739.071. IBM has exercised its right to appeal the ruling of the BTA to the Supreme Court.

Attorneys for IBM argue that the EIS partial refund statute, R.C 5739.071, specifically states that refunds of taxes paid on qualifying equipment purchases are to be made “in the same manner” and subject to the same time limitations as provided in two other code sections that discuss general refunds of state sales or use taxes. Because the two referenced code sections specifically require interest to be paid on sales and use tax refunds, they assert, interest must also be paid on EIS refunds made under R.C. 5739.071.

Attorneys for the tax commissioner respond that R.C. 5739.071 makes only a limited reference to the general tax refund statutes cited by IBM, and specifically requires only that “applications for an (EIS) refund shall be made in the same manner and subject to the same time limitations” as applications for general sales or use tax refunds. They point to language in the two general refund statutes that they say limits their application, including the calculation and payment of interest, only to cases in which a taxpayer  is entitled to a refund of “illegal or erroneous payments.” In this case, they argue, the partial EIS refunds granted to businesses under R.C. 5739.071 are not reimbursements for taxes that were collected in error or contrary to law, but are a voluntary “give-back” by the state of taxes that were accurately and lawfully collected from those taxpayers, but are being partially returned as an incentive to encourage the development and growth of high-tech businesses in Ohio. Because the interest-on-refunds provision is not referenced in R.C. 5739.071, and in any case is applicable only to refunds of illegal or erroneous payments, the state urges the Court to affirm the rulings of the tax commissioner and BTA denying IBM’s claims for interest.

Contacts
Edward J. Bernert, 614.462.2687, for IBM and IBM Credit Corporation.

Barton Hubbard, 614.466.5967, for State Tax Commissioner Richard A. Levin.

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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.