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Tuesday, March 9, 2010

State of Ohio v. Donald J. Ketterer, Case nos. 2007-1261 and 2007-2425
Butler County Court of Common Pleas

State of Ohio v. Larry Bess, Case no. 2009-1196
8th District Court of Appeals (Cuyahoga County)

City of Zanesville v. Ronald T. Rouse, Jr., Case no. 2009-1282
5th District Court of Appeals (Muskingum County)

Oliver Lucien Garr v. Warden, Madison Correctional Institution, Case no. 2009-1323
U.S. District Court for the Southern District of Ohio

Butler County Bar Association v. William Eric Minamyer, Case no. 2009-2284


Must New Sentencing Order Identify Defendant’s Guilty Plea As Basis for Original Conviction, Sentence?

In Resentencing Offender Under 2006 ‘Foster’ Decision

State of Ohio v. Donald J. Ketterer, Case nos. 2007-1261 and 2007-2425
Butler County Court of Common Pleas

ISSUES:

BACKGROUND:  In Apprendi v. New Jersey (2000) and Blakely v. Washington (2004), the U.S. Supreme Court held that it is unconstitutional for a criminal defendant’s sentence to be enhanced beyond the minimum penalties applicable to his crime based on factual findings made by a trial court unless those findings were made by the  jury  rather than by the judge. In State v. Foster, announced on Feb. 27, 2006, the Supreme Court of Ohio analyzed Ohio’s felony sentencing scheme in light of Apprendi and Blakely and ruled that portions of Ohio’s criminal sentencing statute requiring judges to make factual findings to support non-minimum sentences were unconstitutional. 

In setting post-Foster sentencing guidelines, the Court held that, with the former fact-finding-to-support-non-minimum-sentences provisions removed, the remaining language of Ohio’s criminal sentencing statute now gives  judges discretion to resentence an offender to any term of imprisonment within the prescribed statutory range for that offender’s crime. The Court ordered that all criminal cases then pending on appeal in state courts in which a judge had made findings supporting a non-minimum sentence must be remanded to the trial court for resentencing consistent with Foster.

In this case, Donald Ketterer of Butler County entered guilty pleas to charges of  aggravated murder, aggravated robbery, grand theft and aggravated burglary based on events leading up to and following his 2003 killing of Lawrence Sanders. He was sentenced to death for the aggravated murder conviction, and to a total of 22 years in prison for his other offenses. In 2006, the Supreme Court of Ohio reviewed and affirmed Ketterer’s aggravated murder conviction and death sentence. Because the trial judge had made factual findings supporting non-minimum prison terms for Ketterer’s non-capital crimes, however, the Supreme Court remanded his non-capital sentences to the Butler County Court of Common Pleas for resentencing consistent with Foster.

On remand, the trial court imposed identical prison terms, totaling the same 22 years as it had imposed at Ketterer’s first sentencing for his non-capital offenses. At the resentencing hearing, the court orally advised Ketterer that, in addition to his prison terms, if he should ever be released from prison he would be subject to five years of postrelease control by the Adult Parole Authority based on his convictions on “counts two and five.” In its written sentencing entry, the trial court indicated that Ketterer would be subject to postrelease control based on his convictions on  “Counts Two, Three, Four and Five,” but left blank the number of years of postrelease control to which he would be subject and did not fill in another space in which it was supposed to indicate whether postrelease control was mandatory or discretionary for his offenses. Finally, the trial court’s new sentencing order made reference to Ketterer’s original convictions and the fact that he had pleaded guilty to all charges at his original trial, but did not specifically state that his new sentences for the non-capital offenses were based on those guilty pleas.

Ketterer has appealed the resentencing order to the Supreme Court.  His attorneys argue that the trial court committed three separate errors in resentencing him, each of which was sufficient to render the new sentencing order in his case invalid and entitle him to a new sentencing hearing. Specifically, they assert that:

  1. The new sentencing order is not a “final” order subject to appellate review because it did not indicate that Ketterer entered guilty pleas to the charges against him, and therefore does not comply with requirement in Criminal Rule 32 (C) that in order to be valid a judgment of conviction must state “the plea, the verdict or findings and the sentence.”
  2. In its oral pronouncement of his new sentence, the trial court inaccurately stated that five years of post-release control was being imposed for his convictions on counts “two and five,” when the law required that his conviction on count three (aggravated burglary) also required post-release control.  They cite a line of recent decisions in which this Court has held that failure by a trial court to accurately inform a defendant of a term of postrelease control at the time of sentencing renders the sentence void.
  3. Citing the same line of Supreme Court decisions, they assert that the trial court’s failure to accurately state in its journal entry recording the resentencing the length of time Ketterer would be subject to postrelease control and the fact that postrelease control was mandatory also rendered his new sentence invalid and unenforceable.

Attorneys for the state respond that the trial court’s resentencing order specifically referenced and incorporated its earlier judgment of conviction on each of the charges against Ketterer, and that judgment clearly stated that Ketterer had entered guilty pleas to each of the charges. They argue that the “judgment of conviction” from his resentencing hearing is a valid and final order because it incorporates both the findings of guilt from his original trial and the new sentence pronounced in compliance with Foster.

With regard to the term of postrelease control set forth in the trial court’s oral advisement and journal entry, they argue that 1) the trial record shows that although the sentencing judge misspoke on one occasion in referring only to counts two and five, she later corrected that mistake by accurately informing Ketterer that any term of postrelease control he might serve would be a mandatory five-year term based on counts “two through five;” and 2) upon discovering that its written entry recording Ketterer’s new sentence had inadvertently omitted the length and mandatory nature of his postrelease control, the trial court amended its original entry by inserting the words “five years” and “mandatory.” They contend that the amendments were permissible because they merely corrected clerical errors by bringing the court’s journal into agreement with the record as reflected in the trial transcript.

Contacts
Randall L. Porter, 614.466.5394, for Donald Ketterer.

Michael A. Oster, 513.887.3474, for the state and Butler County Prosecutor.

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Is Statute of Limitations ‘Tolled’ for Crimes Not Charged at Time Defendant Fled to Avoid Trial on Other Charges?

Where New Charges Not Filed Until After Legal Deadline Had Expired

State of Ohio v. Larry Bess, Case no. 2009-1196
8th District Court of Appeals (Cuyahoga County)

ISSUE:  R.C. 2901.13(G) “tolls” (stops the running of) the legal time limit within which the state must prosecute a criminal offense during time periods “when the accused purposely avoids prosecution.” In this case, the Court is asked to apply that statute to a case in which a defendant fled the state in 1989 to avoid prosecution for criminal acts for which an indictment was then pending, remained at large for 18 years before being returned to Ohio to face those charges, and was subsequently indicted for additional crimes that were committed before he fled, but that were not discovered or charged until 2007, after the statutory deadline for prosecution of those crimes had expired.

BACKGROUND: In 1989, Larry Bess of Cleveland was indicted on multiple counts of rape and related crimes committed against a child identified as Jane Doe.  Bess fled to Georgia and remained there until 2007, when he was apprehended and returned to Ohio. In the course of preparing its 2007 case against Bess on the Jane Doe charges, the Cuyahoga County prosecutor’s office interviewed the victim’s brother, identified as John Doe, who disclosed for the first time that he also had been sexually molested by Bess between 1983 and 1989.  Based on that information, the state sought and obtained additional indictments against Bess for his sexual contact with John Doe.

Bess moved for dismissal of both sets of charges, arguing that the statutes of limitations for rape and the other charges in his indictments had expired, and therefore the state was barred from prosecuting him on those charges as a matter of law. In opposing the motions to dismiss, the state cited R.C. 2901.13(G), which stops the running of a statute of limitations during any time period in which a defendant has fled the court’s jurisdiction or otherwise “purposely avoided prosecution.” The trial court denied Bess’ motion to dismiss the charges involving Jane Doe, holding that because he had purposely fled the state to avoid prosecution on those charges, the statute of limitations had not begun to run until he returned to Ohio in 2007. However, the court granted the motion to dismiss the charges involving John Doe. The judge ruled that because there were no charges pending against Bess based on his unknown crimes involving John Doe at the time he fled, he was not “purposely avoiding prosecution” for those crimes during the time he was in Georgia and therefore  the state’s deadline for prosecuting those charges had not been tolled and had expired prior to 2007.

The state appealed the dismissal of the John Doe charges. On review, the 8th District Court of Appeals voted 2-1 to affirm the trial court’s decision.  Arguing on behalf of the state, the Cuyahoga County prosecutor’s office now asks the Supreme Court to reverse the 8th District and reinstate the charges against Bess based on his crimes against John Doe.

They contend that nothing in the language of R.C. 2901.13(G) limits its application to cases in which a defendant flees to avoid prosecution for a specific crime or crimes with which he has been charged, but simply states that criminal statutes of limitations are stopped from running during any time period in which the defendant “purposely avoids prosecution.”  In this case, they argue, it is undisputed that Bess fled the state for the purpose of avoiding prosecution for criminal charges that he knew were pending against him, and that fact stopped the running of any and all criminal statutes of limitations for the 18 years between the time of his flight and his return to the state. They argue that under the trial court and 8th District’s interpretations of the law, all a criminal would have  to do to become immune from prosecution for some or all of his crimes is flee the state prior to being indicted on those offenses, and wait until the statute of limitations has expired before returning.

Attorneys for Bess urge the Court to affirm the rulings of the trial court and court of appeals, which they say correctly held that a person cannot “purposely” avoid prosecution for a crime or crimes of which he has never been accused. They point out that  different  criminal offenses are subject to different statutes of limitations, and argue that the only reasonable way to read the tolling provision of R.C. 2901.13(C) is that it tolls the limitations period only for a specific crime or crimes of which a defendant was accused at the time he fled prosecution.

They point out that the underlying purpose of criminal statutes of limitations is to require that prosecutions be conducted in a timely manner, before crucial evidence has been lost or destroyed or witnesses have left the area or their memories of events have faded. Under the state’s interpretation of R.C. 2901.13(C), they assert, a defendant who evades prosecution for one offense would potentially remain subject to prosecution not only for that crime, but for completely unrelated crimes for the rest of his life, despite specific statutory provisions adopted by the legislature limiting the time within which the other charges must be brought against him.

Contacts
T. Allan Regas, 216.443.7800, for the state and Cuyahoga County Prosecutor.

David L. Doughten, 216.361.1112, for Larry Bess.

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Is a Criminal Complaint Validly ‘Filed’ Upon Delivery and Acceptance by Clerk of Courts?

Or is Filing Not Complete Unless Date Stamped and Docketed by Clerk

City of Zanesville v. Ronald T. Rouse, Jr., Case no. 2009-1282
5th District Court of Appeals (Muskingum County)

ISSUE: Is a criminal complaint validly “filed” with a trial court, conferring subject matter jurisdiction over the case with  that court, where a written complaint is delivered to the clerk of courts and the clerk assigns a case number and places the complaint in a case file, but the clerk does not date stamp the complaint or make a specific entry on the court’s docket stating that the complaint has been filed?

BACKGROUND:  In February 2006, Ronald Rouse Jr. of Zanesville was arrested on a charge of violating the city’s domestic violence ordinance. The next day, a copy of the summons and complaint issued to him at the time of his arrest was delivered to the Clerk of the Zanesville Municipal Court. The clerk accepted the document, assigned a case number and placed the document in a case file, but did not physically place a date stamp on the complaint document. The clerk’s office entered “Feb. 28, 2006” in a space on its electronic docket labeled “file date,” but did not make a separate line-item entry on the docket specifically stating that a complaint in the case had been received and filed on that date.

After several continuances, Rouse filed motions seeking dismissal of the domestic violence charge.

A visiting  judge to whom his case was assigned denied the motions to dismiss, found Rouse guilty as charged and sentenced him to 10 days in jail and a $50 fine, both of which were then suspended.

Rouse appealed. On review, the 5th District Court of Appeals reversed and vacated Rouse’s conviction, holding that the trial court had acted without jurisdiction in deciding the case because the complaint in which he was charged had not been properly filed. Citing its own earlier decision in State v. Sharp (April 2009), the 5th District ruled that the clerk of court’s failure to place a date stamp on the complaint document or to make a specific docket entry stating that the complaint had been accepted violated requirements for the filing of documents set forth in R.C. 1901.31(E) and therefore deprived the court of jurisdiction to try Rouse for the offense charged in that complaint. The city sought and was granted Supreme Court review of the 5th District’s ruling.

Attorneys for Zanesville argue that the provisions of R.C. 1901.31 cited by the court of appeals are not jurisdictional  preconditions that must be met in order for a case to be properly before a trial court, but merely set forth ministerial procedures that clerks of court are required to follow in receiving and recording documents filed with the court. They cite Ohio case law including Supreme Court decisions dating back to 1820 which have held that a document is validly “filed” with a court “when a paper is in good faith delivered to the proper officer to be filed, and by him received to be kept in its proper place in his office.” They also cite multiple cases in which they say Ohio courts have held that a clerk of court’s clerical error in failing  to date stamp a document or make a proper entry in a court’s docket does not deprive that court of jurisdiction over a matter as long as the document is present in the case file and there is other  evidence, such as an affidavit signed by the clerk, to establish that the document was filed with the court in a timely manner.

Attorneys for Rouse contend that the requirements set forth in R.C. 1901.31 are not optional “guidelines” that clerks of court may ignore with impunity, but rather establish a mandatory procedural framework that parties and attorneys involved in court cases rely on in order to find and examine documents that have been filed with the court and to determine whether the parties and the court have acted within time limits set by law.  They urge the Court to affirm the 5th District’s holding in this case that the clerk’s failure to date-stamp the city’s complaint or to note its filing in the municipal court’s docket were clear violations of  statutory requirements and sufficient grounds to invalidate the complaint and vacate Rouse’s conviction.

Contacts
Scott T. Hillis, 740.455.3350, for the City of Zanesville.

Elizabeth N. Gaba, 614.586.1586, for Ronald Rouse Jr.

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May Defendant be Sentenced as ‘Major Drug Offender’ When No Detectable Amount of Illegal Drug Recovered?

Court Asked to Interpret 2006 Decision In Case Involving Counterfeit Drugs

Oliver Lucien Garr v. Warden, Madison Correctional Institution, Case no. 2009-1323
U.S. District Court for the Southern District of Ohio

ISSUE:  In a 2006 decision, State v. Chandler, the Supreme Court of Ohio ruled that a defendant convicted of drug trafficking based on his offer to sell a large quantity of cocaine to an undercover police officer was not subject to an enhanced sentence as a “major drug offender” (MDO) because the substance that he offered for sale turned out to be counterfeit, and the MDO sentencing statute requires that the substance an offender offered for sale must contain “some detectable amount” of an illegal drug. 

In this case, a federal judge has asked the Supreme Court to determine whether its ruling in Chandler also bars imposition of an MDO sentence enhancement in a case in which the defendant offered to sell a large amount of cocaine but the substance offered for sale was never observed, tested or recovered by the police to determine whether it contained any detectable amount of cocaine.

BACKGROUND: As part of a “sting” operation, Oliver Garr of Cincinnati offered to sell two kilograms of cocaine to a police informant for $42,000. Because of a dispute over payment that arose between Garr and the buyer at the time the drug transaction was supposed to take place, the sale was not completed, Garr never produced any cocaine and police monitoring the scene allowed Garr to leave without incident. Several months later Garr was arrested and charged with first degree felony drug trafficking and an MDO specification based on his offer to sell the informant two kilograms of cocaine. Police never recovered any amount of cocaine or any other substance that had been offered for sale by Garr.

Garr filed pretrial motions seeking reduction of the drug trafficking charge to a fifth degree felony for offering to sell an illegal drug, and dismissal of the MDO specification.  In those motions he cited the Supreme Court’s holding in Chandler that an MDO sentencing enhancement may not be imposed in the absence of proof beyond a reasonable doubt that the substance offered for sale contained some detectable amount of an illegal drug. The trial court overruled both motions.  Following a jury trial, Garr was convicted on both the first-degree felony trafficking charge and MDO specification. The trial court sentenced him to 10 years in prison without eligibility for early judicial release, which is the mandatory minimum sentence for drug convictions that include an MDO specification.

Garr appealed the trial court’s denial of his motions to reduce his trafficking charge and to dismiss the MDO specification based on Chandler.  The 1st District Court of Appeals affirmed the trial court’s denial of both motions. In its opinion, the court of appeals held that, despite the fact that no drugs were ever recovered from Garr or tested by the state, circumstantial evidence including tape recordings of several conversations between Garr and the police informant about the quantity and quality of the drug Garr was offering, was sufficient to support a reasonable inference by the jury that the substance was actually cocaine. Garr sought review of the appellate decision by the Supreme Court of Ohio, but the Court declined to hear the case.

Garr then filed a federal habeas corpus action  in the U.S. District Court for the Southern District of Ohio, seeking reversal of his first degree felony trafficking conviction and MDO specification and sentence  based on a constitutional claim that the state had not produced sufficient evidence at trial to prove the identity of the substance he offered for sale beyond a reasonable doubt. After reviewing written pleadings from the parties and the 1st District’s opinion, the federal court stayed proceedings in the case pending a ruling by the Supreme Court of Ohio on a certified question of state law. That question is whether this Court’s decision in Chandler bars an MDO conviction only in cases where the substance offered for sale by a defendant has been recovered, tested and affirmatively determined not to contain any detectable amount of an illegal drug, or if Chandler applies more broadly to bar an MDO sentence in cases where no amount of the  substance offered for sale by a defendant was observed, recovered or tested, but where no affirmative evidence is presented to raise a            question about the authenticity of the defendant’s offer or to refute a jury’s finding that the proffered substance contained a detectable amount of a real drug.

Attorneys for Garr assert that this Court’s opinion in Chandler clearly held that the state law setting enhanced penalties for major drug offenders, R.C. 2925.03(C)(4), imposes those penalties only where the state has proven beyond a reasonable doubt the elements that (in cases involving cocaine): 1) the substance sold or offered for sale by a defendant exceeded 1,000 grams in weight; and 2) the substance involved in the violation is ... cocaine or, at the very least, “a compound, mixture, preparation or substance containing cocaine,” Because Chandler held that the identity of the substance involved is a required element that must be established in order to impose an MDO sentence enhancement, they argue, it necessarily places the burden of proof on the state to show by evidence that the substance offered for sale actually contained some detectable amount of cocaine. In cases like this one, where no amount of the substance offered for sale was observed, recovered or tested, they say, the state cannot meet its burden of proof with regard to the identity of the proffered substance, and therefore courts cannot validly impose an MDO sentencing enhancement.

Attorneys for the state respond that Chandler only applied the MDO statute to a case where the defendant represented that he would sell cocaine to a prospective buyer, but where it was later proved by scientific  testing that the substance in his possession was not cocaine and did not contain any detectable amount of that drug. In cases like this one, where no amount of a proffered illegal substance is recovered for testing, they contend, a judge or jury may still make a reasonable inference from other direct or circumstantial evidence presented by the parties regarding whether the substance offered for sale did or did not contain cocaine. They argue that in drafting the state’s drug laws the legislature drew no significant distinction between the actual sale of an illegal drug and an offer to make such a sale. If the Chandler decision is expanded to bar MDO sentences in all cases where no drugs are recovered for testing, they contend, major traffickers who plainly intend to sell large amounts of real drugs will escape from the mandatory minimum  sentences that were put in place precisely to deter and punish them.

Contacts
Benjamin C. Mizer, 614.466.8980, for the warden of the Madison Correctional Institution.

Kristopher A. Haines, 614.466.5394, for Oliver Garr.

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Attorney Discipline

Butler County Bar Association v. William Eric Minamyer, Case no. 2009-2284

The Board of Commissioners on Grievances & Discipline has recommended that the license of  attorney William E. Minamyer of Loveland be suspended for two years, with the second year of that term stayed on conditions, for professional misconduct in his handling of a civil lawsuit that he agreed to file on behalf of a client.

The board found that Minamyer neglected his client’s case by failing to appear at two pretrial conferences  or to contest motions by the opposing party that resulted in dismissal of his client’s case without her knowledge. The board also found that Minamyer engaged in deceitful or dishonest conduct by failing to disclose to the client that her suit had been dismissed, failed to respond to the client’s repeated attempts to contact him over a period of several months to determine the status of her case, and failed to comply with the rule requiring attorneys who do not carry a minimum amount of malpractice insurance to notify their clients of that fact in writing.

Minamyer has filed objections to the disciplinary board’s findings and recommended sanction. He alleges that notices mailed to him from the Butler County Clerk of Courts regarding document filings and scheduled proceedings in his client’s case were mistakenly sent to a former address from which his mail was no longer being forwarded.  He also states that he was unable to attend one of the court proceedings in his client’s case because he had stopped to assist at the scene of a traffic accident on that day, and that he did promptly notify the client about the dismissal of her case although she denies any memory of that call.

Contacts
Bennett A. Manning, 513.896.6671, for the Butler County Bar Association.

William E. Minamyer, pro se, 513.885.6294.

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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.