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Wednesday, March 31, 2010

State of Ohio v. James Leslie Dye, Case no. 2009-1149
11th District Court of Appeals (Lake County)

FirstCal Industrial 2 Acquisitions, LLC v. Franklin County Board of Revision, the Franklin County Auditor and the Boards of Education of the South-Western City Schools and the Hilliard City Schools, Case no. 2009-1505
Ohio Board of Tax Appeals

Disciplinary Counsel v. David Jerome Robinson, Case no. 2009-2267
Franklin County

Disciplinary Counsel v. Bradley M. Kraemer, Case no. 2009-2336
Butler County


May Defendant Be Indicted for Homicide after Court Accepts Guilty Plea to Assault Based on Same Conduct?

When State Did Not Reserve Right to Pursue Additional Charges if Victim Died

State of Ohio v. James Leslie Dye, Case no. 2009-1149
11th District Court of Appeals (Lake County)

ISSUE:  In a 1993 decision, State v. Carpenter, the Supreme Court of Ohio ruled that “(t)he state cannot indict a defendant for murder after the court has accepted a negotiated guilty plea to a lesser offense and the victim later dies of injuries sustained in the crime, unless the state expressly reserves the right to file additional charges on the record at the time of the defendant’s plea.”  In this case, the Court is asked to determine whether its holding in Carpenter should have been applied to prevent the state from indicting and convicting James Dye of  Lake County for aggravated vehicular homicide after a trial court accepted his guilty plea and he completed a prison term for aggravated vehicular assault arising from the same traffic accident.

BACKGROUND:  In 1999, Dye struck 13-year-old Robbie Arnold with his pickup truck while Dye was driving under the influence of alcohol and with a suspended  driver license. Arnold suffered life-threatening injuries that rendered him quadriplegic and permanently unable to breathe without the assistance of a respirator. Dye, who admitted drinking seven beers prior to the accident but refused to take a breathalyzer test, was charged with DUI and aggravated vehicular assault with three specifications, any of which would enhance his sentence on the assault charge. Dye entered not guilty pleas on all counts and specifications. 

At a subsequent plea hearing, Dye changed his not guilty pleas to guilty on both the vehicular assault and DUI charges and on one of the three specifications. The state dismissed the other two specifications and advised the court that it had agreed to continuation of Dye’s bond until sentencing was completed on the conditions that he not drive and abstain from any use of alcohol or drugs. After conducting the required colloquy with Dye advising him of the rights he was giving up by pleading guilty, the court accepted his guilty pleas, convicted him of the charged offenses and specification, and continued his trial bond pending sentencing. The hearing record does not reflect a reservation of rights by the state to pursue additional charges against Dye in the event that Arnold should die from his injuries. The court subsequently imposed maximum sentences of 18 months in prison for the vehicular assault charge and six months for DUI, with those terms to be served concurrently. Dye served his full prison term and was released from custody in June 2001.

In December 2006, Robbie Arnold died from complications of the injuries he had received in the 1999 traffic accident.  In July 2007, the Lake County prosecutor’s office sought and obtained a grand jury indictment against Dye for aggravated vehicular homicide. Dye filed a pretrial motion seeking dismissal of the homicide indictment based on the Supreme Court’s holding in State v. Carpenter. The trial court overruled the motion to dismiss, finding that Carpenter did not apply to Dye’s case because his guilty pleas were not “negotiated” and because he pleaded to the original charges brought against him rather than to a “lesser charge.” Dye changed his initial not guilty plea to no contest. He was found guilty of aggravated vehicular homicide and sentenced to nine years in prison, with credit for the 18 months he had served on the assault charge.

Dye appealed.  On review, the 11th District Court of Appeals reversed the trial court and ordered that Dye’s homicide  indictment be dismissed and his conviction vacated.  The court of appeals based its ruling on findings that Dye’s 1999 guilty plea to vehicular assault was a “negotiated plea to a lesser offense” within the meaning of Carpenter, and the state was therefore precluded from seeking a future indictment for homicide because it had not expressly reserved in the trial record the right to pursue additional charges against Dye if Arnold should die from his injuries.

Attorneys for the Lake County prosecutor’s office now ask the Supreme Court to overrule the 11th District and reinstate Dye’s conviction and sentence for vehicular homicide. They contend that Carpenter is not applicable to Dye’s case because Dye’s guilty pleas at the 1999 hearing were not the result of any “negotiation” between the state and the defendant but rather were a unilateral decision by Dye and his attorney for which the state made no concessions. They also argue that Carpenter is applicable only in cases where a defendant entered a guilty plea to a “lesser offense,” which they say means a charge that has been reduced by the state from an original charge set forth in the defendant’s indictment as the result of a plea bargain. Because the assault charge to which Dye pleaded guilty was the same offense set forth in his indictment, and prosecutors continued to seek the maximum sentences for his offenses after his guilty pleas were entered,  they assert, the assault charge was not a “lesser offense” and the  pleas were not “negotiated,” and therefore the state was not obliged to make an express reservation of its right to pursue a homicide charge against Dye in the future if Arnold died.

Attorneys for Dye argue  that the crucial holding in Carpenter is that when a court accepts a guilty plea to a charge lesser than homicide from a defendant who has caused life-threatening injuries to another, unless the state expressly declares on the record at the time of that plea that it is reserving the right to pursue additional charges in the future, the defendant has a reasonable expectation that his guilty plea to the current charge disposes of the criminal case against him, and that when he has served his sentence for that offense, the state may not prosecute or punish him further for the conduct to which he pleaded guilty.

They argue that the language of Carpenter does not require that the “lesser offense” to which a defendant pleads guilty must have been reduced by the state, but merely that the charge be less severe than homicide.  They also urge the Court to uphold  the 11th District’s findings that by pleading guilty Dye  gave up significant rights and allowed the state to convict him without the risks or expense of a trial, while the state’s dismissal of two of the three specifications included in his indictment and agreement to a continuation of his trial bond until sentencing were benefits Dye received in consideration of his guilty pleas. Based on those facts, they contend, Dye’s guilty plea to the assault charge was “negotiated” and under Carpenter the state was precluded from indicting him for homicide when Arnold subsequently died.

NOTE: Dye has waived his right to support his written brief by presenting an oral argument. Therefore only the attorneys for the state will appear before the Court to present oral argument in this case.

Contacts
Teri R. Daniel, 440.350.2683, for the state and Lake County Prosecutor.

Michael B. Bowler, 330.253.3337, for James Dye.

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Did Board of Revision Err in Adjusting Tax Value of Multiple Properties by Allocating Bulk Purchase Price?

FirstCal Industrial 2 Acquisitions, LLC v. Franklin County Board of Revision, the Franklin County Auditor and the Boards of Education of the South-Western City Schools and the Hilliard City Schools, Case no. 2009-1505
Ohio Board of Tax Appeals

ISSUE: When multiple parcels of real property within a county are purchased by the same buyer in a single transaction, and the sale is reported to the county auditor on a single conveyance form with only the aggregate purchase price listed, if the school districts in which those properties are located seek adjustment of the tax valuation of individual parcels, does a County Board of Revision err in adjusting the valuation of each parcel by allocating to it a percentage of the bulk sale price based on the county auditor’s relative tax valuations of those properties prior to the bulk sale?

BACKGROUND:  In September 2005, FirstCal Industrial 2 Acquisitions purchased five industrial warehouses in different areas of Franklin County in a single transaction. FirstCal reported its purchase to the county auditor on a single conveyance fee form that listed all five parcel numbers and reported the aggregate  sale price of the five properties as $34,336,100. Four of the properties were located in the Hilliard City School District and one was located in the South-Western City School District.

The two school districts filed complaints with the Franklin County Board of Revision (BOR) seeking increases in the tax valuations of the five properties. The BOR consolidated the five cases and reviewed them in a single hearing. At that hearing, neither party disputed that the transaction in which FirstCal purchased the properties was an arm’s-length sale between a willing buyer and seller. FirstCal characterized its purchase of the five properties as a “bulk sale” that could not be broken down into separate transactions with separate “sale prices,” and provided no documentation or other evidence suggesting stand-alone valuations for each the five properties.

The school districts produced records showing that the aggregate tax valuation of the five properties set by the county auditor for 2005 was $24,750,000, or roughly $10 million less than the purchase price paid by FirstCal.  Citing R.C. 5713.03, which provides that the price paid for property in a recent arm’s length sale between and willing buyer and seller is presumed to be the true value of that property for tax purposes, the school districts argued that 1) the five properties should be collectively revalued at the $34,336,100 purchase price paid for them by FirstCal in September 2005; and 2) the BOR should set a new individual valuation for each of the five properties by determining what percentage of the auditor’s previous $24.7 million aggregate valuation of the properties was attributable to each parcel, and valuing each of the parcels at that same percentage of the new $34.3 million total valuation. The BOR agreed that pursuant to R.C. 5713.03 the properties should be collectively revalued for 2005 based on the purchase price paid by FirstCal, and adopted new individual tax valuations for each of the five properties by applying the allocation method proposed by the school districts

FirstCal exercised its right to appeal to the Ohio Board of Tax Appeals (BTA), which affirmed both the revaluation of the property at the September 2005 sale price and the allocation formula adopted by the BOR. FirstCal now asks the Supreme Court to overrule the actions of the BOR and BTA as unlawful and unreasonable, and to reinstate the county auditor’s prior valuation of the five properties.

Attorneys for FirstCal point to prior court decisions holding that when a County Board of Revision reviews a challenge to the current tax valuation of a property, the party challenging the current valuation has the burden of proving by evidence that the auditor’s valuation of that specific property is inaccurate and the complainant’s alternative valuation is closer to true market value. In this case, they say, the school boards challenging the auditor’s 2005 valuations of the five warehouses purchased by FirstCal did not meet that burden of proof because they did not submit expert appraisals of those specific properties or data from the sale of comparable properties, but merely submitted a copy of FirstCal’s conveyance form listing the combined sale price it paid in a bulk purchase of all five parcels. They argue that the Franklin County BOR and the BTA acted contrary to law in throwing out the auditor’s 2005 valuations of  the five properties at issue without any evidence in the record that those valuations were faulty; and in adopting the school board’s proposed higher valuations of the properties without any supporting evidence except the bulk sale price of five very different properties located in different parts of the county.

Attorneys for the school boards respond that they could not submit market-based comparisons of the county auditor’s 2005 valuations to the purchase prices paid by FirstCal for each of the five warehouse properties because FirstCal refused to disclose the calculations it used to place a value on each individual property in the course of arriving at the aggregate purchase price of $34.3 million.

While acknowledging that they did bear the burden of proof in seeking revaluation of the five properties by the BOR, the school boards point out that FirstCal offered the BOR no alternative to their argument that the properties should be revalued at the price paid for them in a recent arm’s length sale; and no alternative to their proposal that the new aggregate valuation should be allocated among those properties according to the relative values  assigned to each parcel by the county auditor in his most recent previous appraisal.  In the subsequent appeal proceedings before the BTA, they assert, the burden of proving that the BOR’s new valuation was unlawful or unreasonable shifted to FirstCal as the appellant in that action, and the BTA correctly held that FirstCal had failed to produce any probative evidence that the BOR’s new valuation based on the September 2005 sale price was improper.

Contacts
Wayne E. Petkovic, 740.362.7729, for FirstCal Industrial 2 Acquisitions.

Mark H. Gillis, 614.228.5822, for the South-Western and Hilliard City School Districts.

Paul M. Stickel, 614.462.3500, for the Franklin County Board of Revision and Franklin County Auditor.

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Attorney Discipline

Disciplinary Counsel v. David Jerome Robinson, Case no. 2009-2267
Franklin County

The Board of Commissioners on Grievances & Discipline has recommended that the law license of Columbus attorney David J. Robinson be suspended for two years for making false and misleading statements under oath during a deposition and a court hearing regarding his alleged possession of confidential documents removed from his former law firm, and for subsequently destroying documents of potential evidentiary value, including documents he had previously claimed to be unaware of possessing.

The board found that Robinson’s acts and omissions violated the state attorney discipline rules that prohibit conduct involving dishonesty, fraud, deceit or misrepresentation; conduct prejudicial to the administration of justice, conduct that adversely reflects on an attorney’s fitness to practice and unlawfully destroying or concealing a document having potential evidentiary value.

Robinson has filed objections to the board’s findings and recommendations and urges the Court to dismiss the disciplinary charges against him. His attorneys argue that while Robinson had taken home several boxes of documents from his office when it became clear that his relationship with his former firm was deteriorating, he had not had an opportunity to examine or inventory those documents prior to being deposed and questioned in court, and so responded truthfully when he stated that he was “not aware” of possessing any confidential business records. They also assert that when Robinson subsequently examined the documents in his possession and found that some were confidential, he reacted unwisely but with an honest intent when he disposed of some of those documents to be sure he could not be accused of improperly passing them on his new law firm.

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

E. Bruce Hadden, 614.431.2000, for David J. Robinson.

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Attorney Discipline

Disciplinary Counsel v. Bradley M. Kraemer, Case no. 2009-2336
Butler County

The Board of Commissioners on Grievances & Discipline has recommended that the law license of Hamilton attorney Bradley M. Kraemer be suspended for two years, with the full term of suspension stayed on conditions, for misappropriating funds from his former law firm by depositing checks and cash he received for legal services into his personal bank account rather than a law firm account and failing to notify the firm that those payments had been received.

Kraemer was convicted of a fifth degree felony count of theft, and his license has been under an interim suspension since July 2008.

The board found that by misappropriating fees he received from eight different clients between June and October of 2007, Kraemer violated the state disciplinary rules that prohibit an attorney from engaging in an illegal act that reflects adversely on his trustworthiness, engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, engaging in conduct prejudicial to the administration of justice and engaging in conduct the reflects adversely on an attorney’s fitness to practice.

In recommending that both years of suspension be stayed, the disciplinary board noted that Kraemer has already been barred from practice for more than 18 months as a result of his interim suspension, and considered the mitigating factors that he has no prior disciplinary infractions, is being treated  for psychological issues that contributed to his actions, admitted and expressed remorse for his misconduct, made full restitution to his former  law firm, cooperated fully with disciplinary authorities, and submitted letters and personal testimony attesting to his reputation for honesty and professionalism from many members of the legal profession and local community.

The Office of Disciplinary Counsel, which prosecuted the ethics complaint against Kraemer, has objected to the board’s recommendation that both years of suspension be stayed.  They cite prior disciplinary cases in which the Court has held  that an attorney who misappropriates funds from his or her law firm should receive an actual suspension from practice. While taking no position on whether Kraemer should receive credit for the time he has already served under interim suspension, they urge to Court to impose a two-year suspension with only the first year stayed.

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

Michael R. Gmoser, 513.892.8251, for Bradley M. Kraemer.

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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.