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Wednesday, May 12, 2010

State of Ohio v. Aaron K. Richey, Case no. 2009-1423
10th District Court of Appeals (Franklin County)

State of Ohio v. Steven Johnson, Case no. 2009-1469
8th District Court of Appeals (Cuyahoga County)

Marian C. Whitley and Patricia A. Mazzella, Individually and as Co-Administrators for the Estate of Ethel V. Christian v. River's Bend Health Care et al., Case no. 2009-1484
4th District Court of Appeals (Lawrence County)

Does 2008 Increase in Penalty for Registration Violation Entitle Prior Sex Offender to Withdraw No Contest Plea?

Where New Legislation Changed Violation from Misdemeanor to Felony

State of Ohio v. Aaron K. Richey, Case no. 2009-1423
10th District Court of Appeals (Franklin County)

ISSUE:  When the legislature enacted the Ohio Adam Walsh Act (AWA) in 2008, and in that act retroactively increased the registration requirements for pre-2008 sex offenders and elevated a registration violation by a misdemeanor sex offender from a misdemeanor to a felony offense, did those changes violate the contractual agreement under which a pre-2008 offender entered a plea of no contest, and create a “manifest injustice” sufficient to allow such an offender to withdraw his no-contest plea and be re-tried on the original charge?

BACKGROUND:  Under Ohio Criminal Rule 32.1, a defendant is permitted to withdraw his or her plea of guilty or no contest to a criminal charge prior to being sentenced, but after sentence is pronounced a court may only allow withdrawal of a guilty or no-contest plea “to prevent manifest injustice.”

In this case, Aaron Richey of Columbus entered a plea of no contest to a misdemeanor count of sexual imposition in September 2006.  At the time he entered that plea, Richey was advised by the court that it could result in his being sentenced to 60 days in jail and a fine of up to $500, and that under Ohio’s then-current sex offender law he also could be required to register as a sexually oriented offender with the sheriff in his county of residence once a year for 10 years after completing his jail term.  The court also advised Richey that noncompliance with the registration requirements would subject him to the criminal penalties applicable to a third degree misdemeanor. Richey affirmed his plea of no contest. He was convicted and sentenced to 60 days in jail and a $500 fine, and signed written forms that accurately informed him about his post-release registration obligations.

Effective Jan. 1, 2008 the General Assembly enacted S.B. 10, also known as the Ohio Adam Walsh Act.  S.B. 10 replaced the state’s existing sex offender classification scheme with a new and more restrictive set of registration requirements, and applied the new requirements not only to persons convicted of sex crimes after Jan. 1, 2008, but also to all prior sex offenders who were still serving prison terms or still subject to registration requirements under the former version of the law. Richey received a notification that, under the provisions of the new law, he would be subject to annual registration for 15 years rather than 10 years, and that, rather than being punishable as a misdemeanor, any violation of the new registration requirements would be punishable as a fourth-degree felony.

Richey filed a motion in the Franklin County Municipal Court seeking to reopen his case, withdraw his plea of no contest, and undergo a new trial on the 2006 sexual imposition charge. The municipal court denied Richey’s motion.  He appealed that ruling.  On review, the 10th District Court of Appeals affirmed the decision of the trial court, finding that Richey had not demonstrated that retroactive application of the increased registration requirements and more severe penalties for failure to register set forth in S.B. 10 constituted a “manifest injustice” that would entitle him to withdraw his no contest plea.  Richey sought and was granted Supreme Court review of the 10th District’s ruling.

Attorneys for Richey argue that he agreed to forego a contested trial and plead no contest to a misdemeanor sex charge in 2006 based on the trial court’s explanation of the consequences of that plea — including the length of time to which he would be subject to registration as a sex offender and the potential sanctions he would face for any violation of the registration requirements.  By applying the more punitive provisions of S.B. 10 retroactively to his 2006 conviction, they assert, the state has in effect reneged on the terms of his plea agreement, which prior court decisions have held are enforceable under Ohio contract law. By impairing contract rights that were in place before the law changed, they contend, the retroactive application of S.B. 10 to Richey’s registration requirements is manifestly unjust and a sufficient basis to allow him to withdraw his no contest plea under Crim.R. 32.1.

Attorneys for the state and the Franklin County Prosecutor’s Office respond that the trial court did not abuse its discretion in denying Richey’s motion to withdraw his plea because it found that he was accurately informed of the consequences of his no contest plea under the law as it existed at the time that plea was entered. They assert that the registration requirements imposed by S.B. 10 and its predecessor statute are not part of the court-imposed sentence for a sex offense, but are rather a collateral consequence of the offender’s conviction that is  imposed by statute and not subject to any form of “bargaining” by the state in exchange for a defendant’s plea. They cite prior court decisions holding that the statutory registration and community notification requirements imposed on sex offenders are administrative rather than punitive in nature, and therefore are not subject to the constitutional ban against “ex post facto” (after the fact) increases in the punishment for a criminal offense.

John W. Keeling, 614.462.3960, for Aaron Richey.

Steven Taylor, 614.462.2555, for the state and Franklin county Prosecutor’s Office.

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Must State Show ‘Reckless’ Mental State To Prove Gun Charge Based on Defendant’s Prior Criminal Conviction?

Or Does Statute Impose Strict Liability Regardless of Mental State

State of Ohio v. Steven Johnson, Case no. 2009-1469
8th District Court of Appeals (Cuyahoga County)

ISSUE:  When a defendant is charged under R.C. 2923.13(A)(3) with possession of a firearm while under the disability of a prior criminal conviction, is the state required to show that the defendant acted “recklessly” with regard to the fact that his prior conviction barred him from possession of a firearm?

BACKGROUND:  In order to convict a defendant of a criminal offense, a trial court must find 1) that the accused committed an act that is prohibited by law, and 2) that in committing the prohibited conduct, the accused acted with a specified guilty mental state  that is set forth in the section of  law defining that offense. The guilty mental states set forth in Ohio criminal statutes, in increasing order of culpability, are “negligently,” “recklessly,” “knowingly,” and “intentionally.”  

R.C. 2901.21(B) provides that when a section of state law that defines a criminal offense does not specify a required guilty mental state for that offense, if the court determines that the statutory language does not indicate legislative intent to impose strict liability (i.e. does not criminalize  the prohibited conduct regardless of the defendant’s mental state) then the state must prove at trial that the defendant acted with at least the guilty mental state of “recklessly.”

In this case, Steven Johnson of Cleveland was charged with violating R.C.2923.13(A)(3), which prohibits any person from “knowingly” possessing, carrying or using a firearm or dangerous ordnance after “having been convicted of an offense involving the illegal possession ... of any drug of abuse.”

Neither the indictment obtained by prosecutors against Johnson nor the judge’s instructions to the jury in his case mentioned any guilty mental state that must be proven with regard to his awareness that his prior drug convictions barred him from possessing a firearm.  The jury found Johnson guilty on the firearm charge, and he was sentenced to one year in prison.

Johnson appealed, asserting among other claims that his indictment and conviction were invalid because the state had failed to establish a required guilty mental state for the prior drug conviction element of the crime.  The 8th District reversed his conviction and remanded the case for a new trial.  In its decision, the court of appeals held that in order to obtain a valid conviction under R.C. 2923.12(A)(3) the state was required to show not only that Johnson had “knowingly” possessed a firearm, but also, pursuant to R.C. 2901.21(b) that he had done so “recklessly” with regard to his prior drug conviction – i.e., that he knew or reasonably should have known that his prior convictions barred him from possessing a gun, but did so despite that knowledge. The state sought and was granted Supreme Court review of the 8th district’s ruling.

Attorneys for the Cuyahoga County Prosecutor’s Office argue that the 8th District based its decision on a mistaken reading of the Supreme Court of Ohio’s 2008 decision in State v. Clay. In Clay, they assert, this Court held that the state must prove that the defendant in a similar firearm possession case acted with at least the guilty mental state of “recklessly” with regard to being aware that there was a criminal indictment pending against him.  In this case, they contend, it is uncontested that Johnson was aware of his two prior convictions involving illegal drugs, and the 8th District erred in interpreting Clay to require not only awareness of the conviction but also awareness that the conviction barred possession of a firearm.

They point to a line of Supreme Court decisions that have held that when a statute such as R.C. 2923.13 sets forth a required guilty mental state for one element of an offense (in this case “knowing” possession of a firearm), but does not specify a required guilty mental state for another element of the same crime, that structure indicates legislative intent to impose strict liability for the latter element. They urge the Court to employ that rationale in analyzing R.C. 2923.13(A)(3), and conclude that the existence of Johnson’s  prior drug conviction was a strict liability element for which the state was not required to establish any guilty mental state in order to obtain a conviction.

Attorneys for Johnson dispute the state’s contention that this Court’s ruling in Clay is not applicable to the facts of this case.  They point out that the gun possession disability for a pending indictment that was addressed in Clay appears in the same sentence of R.C. 2923.13(A)(3) as the disability for a prior drug conviction that was the basis for the charge against Johnson. They argue that the 8th District’s decision in this case in consistent with the Supreme Court’s holding  in Clay that the existence of pending indictment (or a prior drug offense) is not a strict liability element, and therefore to obtain a conviction the state must prove not merely that a defendant knowingly possessed a firearm at a time he was under indictment or had a prior offense, but also that the defendant acted at least recklessly with regard to being aware that he was under a disability that barred him from legally possessing a gun.

In support of that argument, they point out that Johnson’s prior “illegal drug convictions” were for a single misdemeanor count of marijuana possession and a single count of possession of a substance that was later found not to be an illegal drug.  They contend that, in the normal course of arraigning and collecting fines from thousands of defendants on these types of low-level misdemeanors, it is virtually unheard of for a municipal or traffic court to inform the defendant that his otherwise inconsequential conviction will bar him from future gun ownership or possession. In light of that reality, they contend, it is proper and reasonable for the law to require a showing of awareness of the disability before convicting such persons of a felony firearm offense.

Daniel Van, 216.443.7800, for the state and Cuyahoga County Prosecutor’s Office.

John T. Martin, 216.443.3675, for Steven Johnson.

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Does Substitution of Deceased Plaintiff’s Estate as Party Relate Back to Original Filing Date of Lawsuit?

When Plaintiff Died Before Suit Filed But Was Mistakenly Named in Complaint

Marian C. Whitley and Patricia A. Mazzella, Individually and as Co-Administrators for the Estate of Ethel V. Christian v. River's Bend Health Care et al., Case no. 2009-1484
4th District Court of Appeals (Lawrence County)

ISSUE:  When the complaint in a civil lawsuit alleging neglect of a nursing home patient was filed within the one-year time limit for filing such actions, but after the death of the injured patient, and the original complaint mistakenly named the deceased  patient and her guardian as plaintiffs rather than the deceased patient’s estate, did the trial court’s subsequent approval of an amendment to the original complaint substituting the estate as plaintiff  “relate back” to the filing date of the original complaint and thus preserve the timeliness of the neglect action?

BACKGROUND:  Ethel Christian was a patient at a Lawrence County nursing home run by River’s Bend HealthCare (RBHC) from February 2004 until April 25, 2004. On April 15, 2005, within the one-year time limit for doing so, Ethel’s daughter and legal guardian, Marcella Christian, filed a civil lawsuit alleging that her mother had been injured during her stay at the RBHC facility as a result of neglect by the nursing home staff.  In that complaint, Marcella mistakenly identified her mother, who had died in February 2005, and herself as her mother’s guardian as the plaintiffs seeking damages from RBHC when the suit should have been filed on behalf of her mother’s estate.

On June 8, 2005, after learning that Ethel had died and after the one-year deadline for initiating a new complaint based events that occurred in April 2004 had expired, the attorney representing Marcella notified the trial court that the plaintiff named in the original complaint was deceased, and sought the court’s approval to amend the original complaint to substitute the estate of Ethel Christian and the co-administrators of her estate, daughters Marian Whitley and Patricia Mazzella, as the proper plaintiffs.  Without objection by RBHC, the trial court allowed the substitution of parties and the case remained pending until March 2006, when the estate dismissed its claims without prejudice.

In February 2007, the estate exercised its right under Ohio’s saving statute to re-file its original claims against RBHC. RBHC subsequently entered a motion for summary judgment, asserting that the saving statute could not be applied to allow refilling of the Christians’ original claims because the trial court had erred in allowing the substitution of plaintiffs in the prior case after the one-year statute of limitations had passed.  The trial court granted summary judgment in favor of RBHC.  On review, the 4th District Court of appeals affirmed the holding of the trial court in a 2-1 decision.  The Christian estate sought and was granted Supreme Court review of the trial and appellate court decisions.

Attorneys for the estate argue that prior Ohio court decisions including the Supreme Court’s 1939 decision in Douglas v. Daniels Bros. Coal Co. have held that when the plaintiff named in an original civil complaint is later determined to lack the capacity to assert that complaint, the complaint may be amended to substitute the correct party in interest, and that substitution relates back to the date of the filing of the original complaint, so long as there is no change in the claims asserted by the plaintiff, the substitution does not assert claims against any new or different defendants than were named in the original complaint, and the substitution does not expose the defendant to multiple judgments based on the same conduct.

In this case, they say, the trial court and 4th District erred by ignoring the precedent of Douglas.  They also assert that, even if the trial court erred in allowing substitution of the estate as plaintiff after the April 2005 filing deadline had expired, RBHC waived that error when it failed to enter any objection to the substitution at the time it was granted or for nine months thereafter while the original suit remained pending.  Thus, they say, the trial court should have rejected RBHC’s statute of limitations claim when it was raised to oppose the refilling of the case in 2007.

Attorneys for RBHC urge the Court to affirm the ruling of the 4th District approving summary judgment in their favor. They point out that neither Ethel Christian, who was deceased, nor Marcella Christian, whose powers as her mother’s guardian expired upon the death of her mother, had legal standing to bring suit against the nursing home when the complaint naming them as plaintiffs was filed on April 15, 2005. Because the deadline for amending the original complaint to substitute Ethel’s estate as a valid plaintiff was April 25, 2005, the one-year anniversary of her discharge from the nursing home, and no substitution of parties was made within that statutory deadline, they assert, the underlying negligence suit became null and void at that time and the trial court acted without authority in approving the substitution of plaintiffs in June 2005. Thus, they argue, the trial court acted correctly when it granted summary judgment denying the estate’s 2007 attempt to “resurrect” its  null claims from the dismissed complaint by invoking the saving statute.

Philip A. Kuri, 440.442.6677, for the Estate of Ethel V. Christian.

Timothy A. Spirko, 216.621.5300, for River’s Bend Health Care.

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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.