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Wednesday, Sept. 15, 2010

State of Ohio v. Andrew E. Miller, Case no. 2009-1606
8th District Court of Appeals (Cuyahoga County)

State of Ohio v. Kenneth Hodge, Case no. 2009-1997
1st District Court of Appeals (Hamilton County)

Rumpke Sanitary Landfill, Inc. v. State of Ohio and Colerain Township, Case no. 2009-2004
1st District Court of Appeals (Hamilton County)

State of Ohio v. Denny F. Ross, Case no. 2009-1619
9th District Court of Appeals (Summit County)


When Restitution Is Not Imposed at Time Sentence Pronounced, May It Be Added Later Via a Journal Entry?

State of Ohio v. Andrew E. Miller, Case no. 2009-1606
8th District Court of Appeals (Cuyahoga County)

ISSUE:  When the judge who conducts a sentencing hearing in a criminal case does not impose a requirement of restitution at the time sentence is pronounced in court, and no mention of restitution is included in the original journal entry recording the defendant’s sentence, may a different judge later alter the defendant’s sentence to impose restitution by means of a “nunc pro tunc” (now for then) entry in the court’s journal?

BACKGROUND:  Andrew Miller of Cleveland was indicted on two counts of felonious assault. On the date his trial was scheduled, a visiting judge, Judge Michael J. Corrigan, was filling in for the judge to whom Miller’s case had been assigned, Judge Lillian Greene. Miller was offered a plea bargain based on his entry of a guilty plea to a reduced charge. During Judge Corrigan’s colloquy (discussion) with Miller to ensure that he understood the consequences of entering a guilty plea, Judge Corrigan indicated that in sentencing Miller at a later proceeding the court intended to include a term of community control (as opposed to imprisonment) and a requirement of restitution of approximately $20,000 to the victims of the assaults. Judge Corrigan indicated that those sanctions were consistent with sentencing guidelines for the case that Judge Greene had previously discussed with the prosecutor and Miller’s counsel. Miller accepted the plea bargain and the court accepted his plea of guilty.

Two weeks later, at a sentencing hearing in court at which Judge Corrigan presided and no representative of the prosecutor’s office or the victims appeared,  the court pronounced  a sentence that included community control sanctions and costs, but made no mention of restitution. An entry recording Miller’s sentence as pronounced by the court, with no mention of restitution, was subsequently made in the court’s journal. 

Seven weeks later, the state filed a motion asking the court to reconsider its sentencing order and amend it to include a requirement of restitution to the victims. Following a hearing to consider the state’s motion, at which Judge Greene presided, the court granted the motion to reconsider Miller’s sentence and amended its earlier  journal entry by adding a requirement of restitution in the amount of $20,409.35. In response to Miller’s objection to the modification of his sentence after it had been journalized, Judge Greene stated that because the record of his plea hearing with Judge Corrigan showed that Miller had been advised that restitution was a potential part of his sentence, and he had agreed to restitution as part of his plea bargain, the omission of restitution from the sentence pronounced at his sentencing hearing had been inadvertent, and the later amendment of the court’s sentencing entry was merely a correction of the record to accurately reflect the plea bargain agreed to by the parties.

Miller appealed the addition of restitution to his sentence. In a 2-1 decision, the 8th District Court of Appeals affirmed the action of the trial court. Miller then sought and was granted Supreme Court review of the 8th District’s ruling.

Attorneys for Miller argue that the belated addition of restitution to the sentence that was pronounced in court by Judge Corrigan and entered in the court’s journal as a final judgment in his case violated his constitutional rights to due process of law and protection against double jeopardy. They also cite the Supreme Court of Ohio’s 2006 holding in State ex rel. Cruzado v. Zaleski  that the final judgment of a trial court in a criminal case, as reflected in the court’s journal entry, may not later be modified by the trial court except under the limited circumstances that 1) the sentence set forth in the journal entry is contrary to law and therefore void; or 2) a modification of the judgment entry is necessary to correct what was clearly a clerical error, i.e., a mechanical mistake or omission that caused the court’s original journal entry to inaccurately reflect what the court actually did or said, as reflected in the trial record. 

In this case, they say, regardless of what Judge Corrigan’s or Judge Greene’s earlier intention may have been, the sentence  pronounced on Miller by Judge Corrigan in open court was not contrary to law; and there was no “clerical error” because the journal entry recording Miller’s sentence – consisting of a term of community control plus costs and not including restitution –  accurately reflected the sentence that was pronounced by the court. Thus, they argue, the trial court acted without jurisdiction in reopening Miller’s case and adding restitution to his sentence, and the 8th District erred in upholding the trial court’s improper action.

NOTE: The Cuyahoga County prosecutor’s office did not file a responsive brief in this case.  Pursuant to the Supreme Court’s rules of practice and procedure, the state will therefore not participate in oral argument, and only attorneys for Miller will appear and argue before the Justices.

Contacts
T. Allan Regas, 216.443.7800, for the state and Cuyahoga County Prosecutor's Office.

John T. Martin, 216.443.3675, for Andrew Miller.

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Does 2009 U.S. Supreme Court Decision Require Ohio to Follow Former Law In Imposing Consecutive Sentences?

Sentencing Provisions Voided as Unconstitutional in 2006 'Foster' Decision

State of Ohio v. Kenneth Hodge, Case no. 2009-1997
1st District Court of Appeals (Hamilton County)

ISSUE: In State v. Foster (2006), the Supreme Court of Ohio severed (declared unenforceable) on constitutional grounds two provisions of Ohio’s criminal sentencing statute that authorized judges (rather than juries) to make factual findings that supported: 1) the imposition of a non-minimum sentence on an offender for a single criminal offense and 2) the imposition of consecutive, rather than concurrent, sentences on an offender convicted of multiple crimes. By severing those provisions, the Foster decision effectively gave Ohio trial court judges full discretion to impose any sentence within the statutory sentencing range for a defendant’s offense, and to determine whether it was appropriate for an offender convicted of multiple crimes to serve his sentences for those crimes concurrently (at the same time) or consecutively (one after the other) without making the specific factual findings in support of a non-minimum or consecutive sentence that were previously required under the severed provisions. In this case, the Supreme Court of Ohio is asked to determine whether, in light of the U.S. Supreme Court’s 2009 holding in Oregon v. Ice that an Oregon law authorizing judges to make factual findings to support consecutive sentences was not unconstitutional, Ohio courts must resume making the judicial findings that were required under the state’s pre-Foster sentencing law in order to validly impose consecutive sentences.

BACKGROUND: In July 2008, Kenneth Hodge of Cincinnati entered guilty pleas to five counts of aggravated robbery, each of which included a firearm specification, for his role in the armed robbery of  a group of boy scouts and their fathers who were selling Christmas trees in the city’s Northside neighborhood. Pursuant to Ohio’s post-Foster sentencing procedures, the trial judge sentenced Hodge to three years’ imprisonment for each of the robbery counts and an additional three years for the firearm specification. Without making factual findings that would have been required under the pre-Foster statute, the judge ordered that each of Hodge’s sentences be served consecutively. The result was a total prison term of 18 years.
Hodge appealed his sentence. In January 2009, while Hodge’s appeal was pending before Ohio’s 1st District Court of Appeals, the U.S. Supreme Court announced its decision in Oregon v. Ice. In that decision, a 5-4 majority upheld as constitutional an Oregon criminal sentencing statute similar to Ohio’s pre-Foster statute that required trial judges to make factual findings regarding the seriousness of the crime, the victim’s likelihood of reoffending and other factors before ordering that a defendant’s sentences for multiple offenses be served consecutively. Arguing that the Ice decision had overruled the Supreme Court of Ohio’s holding in Foster with regard to consecutive sentences, and that Ice had therefore reinstated the requirement of judicial fact-finding that Foster had invalidated, Hodge asked the 1st District to remand his case to the trial court and order that he be resentenced pursuant to the requirements of the pre-Foster statute. 

The court of appeals rejected Hodge’s argument and affirmed the trial court’s imposition of consecutive sentences as valid. In its judgment entry, the 1st District stated that because the Ice decision directly addressed only Oregon’s sentencing statute, Foster remained binding precedent for Ohio courts until and unless the Supreme Court of Ohio ruled on the applicability of Ice to this state’s criminal sentencing procedures. Hodge sought and was granted Supreme Court review of the 1st District’s decision.

Attorneys for Hodge note that although the U.S. Supreme Court did not expressly state that it was overruling Foster in its Ice opinion, the Court did specifically refer to Foster and in doing so indicated that Ohio, like Oregon, had mistakenly interpreted prior U.S. Supreme Court decisions barring judicial fact-finding to enhance a defendant’s sentence for a single crime as also barring judicial fact-finding in support of consecutive sentencing.

Pointing to what they describe as multiple similarities between the Oregon statute upheld as constitutional in Ice and the consecutive sentencing provision that was severed as unconstitutional by this Court in Foster, they contend it is clear that the portions of the Foster decision addressing consecutive sentencing conflict with the U.S. Supreme Court’s holding in Ice. Because the Ohio legislature has amended Ohio’s sentencing statute several times since Foster was decided, but has not excised the pre-Foster language that required judicial fact-finding to justify consecutive sentences, they argue that the pre-Foster fact-finding provisions were “automatically” restored to validity by the Ice decision, and there was no need for the legislature to reenact them. Accordingly, they assert, Hodge and other Ohio defendants who have been sentenced to consecutive prison terms without judicial fact-finding since the Ice decision was announced in January 2009 are entitled to be resentenced under the pre-Foster version of the Ohio sentencing statute.

The Hamilton County prosecutor’s office, supported by an amicus curiae (friend of the court) brief submitted by the Ohio Prosecuting Attorneys Association, argues that the judicial fact-finding required by the  Oregon consecutive sentencing stature at issue in Ice is of a completely different nature than the fact-finding required under Ohio’s pre-Foster statute, and it is not at all clear that the provisions severed from the Ohio statute by Foster would have been upheld if they had been before the U.S. Supreme Court.

In fact, they assert, the underlying rationale of the Ice decision was that it is appropriate and not intrusive into the historical function of juries for judges to exercise wide discretion in determining whether an offender guilty of multiple crimes should serve his sentences concurrently or consecutively. They argue that because the severance remedy applied by Supreme Court of Ohio in its Foster decision significantly increased rather than restricted the exercise of judicial discretion in imposing consecutive sentences, there is no substantive conflict between Ice and Foster, and no grounds for this Court to require trial courts to resurrect the pre-Foster statutory procedures.

Contacts
Ronald W. Springman Jr., 513.946.3052, for the state and Hamilton County Prosecutor's Office.

Janet Moore, 513.600.4757, for Kenneth Hodge.

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Is Township a Necessary Party in Property Owner's Constitutional Challenge to Legislative Enactment?

When Outcome of Challenge Could Affect Pending Lawsuit Against Township

Rumpke Sanitary Landfill, Inc. v. State of Ohio and Colerain Township, Case no. 2009-2004
1st District Court of Appeals (Hamilton County)

ISSUE: When a private landowner sues the state to challenge the constitutionality of a legislative enactment based on the “single subject” clause of the Ohio Constitution, if the plaintiff landowner is also currently engaged in separate litigation against a township, and a favorable ruling in the single-subject case could affect the outcome of that pending litigation, does the township have legal standing to intervene in the landowner’s single-subject lawsuit against the state?

BACKGROUND: In 2006, Rumpke Sanitary Landfill Inc. and the owners of property adjacent to a 509-acre sanitary landfill operated by Rumpke in Colerain Township near Cincinnati sought zoning approval from the township trustees to expand the existing landfill  by an additional 350 acres. The trustees denied the requested zoning.

Rumpke and other property owners affected by the ruling filed suit in the Hamilton County Court of  Common Pleas. Among other relief and damages, Rumpke sought a judgment that its landfill operation qualified as a “public utility,” and that under R.C. 519.211, a state law that exempts property owned by a public utility from the control of local zoning authorities, Rumpke was free to proceed with the expansion of its landfill without the approval of the township.

In June 2008, before Rumpke’s landfill expansion lawsuit against the township came to trial, the General Assembly enacted H.B. 562, an omnibus bill setting forth the state’s capital improvement spending appropriations for the upcoming two-year budget period. Included in that bill was language amending R.C. 519.211 to specifically state that solid waste facilities like the Rumpke landfill did not qualify as public utilities, and therefore such facilities were subject to the local zoning authority of the political subdivision in which the facility was located. The bill had an effective date of Sept. 23, 2008.

On Sept. 2, 2008, Rumpke filed a separate legal action seeking a declaratory judgment that the provisions of H.B. 562 amending  R.C. 519.211  were unconstitutional because they violated the requirement of the Ohio Constitution that the content of a legislative enactment must be limited to a “single subject.” Rumpke’s complaint listed only the State of Ohio as a defendant.  A few days later, Colerain Township filed motions seeking to intervene as an interested and necessary party in the single-subject lawsuit, and asking the trial court to consolidate Rumpke’s single-subject claim with the already-pending landfill expansion case. The trial court denied both of the township’s petitions. Over the state’s and the township’s objections, the trial court then conducted a trial considering only  Rumpke’s single-subject challenge from which the township was excluded from participating. The court subsequently  granted an injunction prohibiting the state from implementing the amendments to R.C. 519.211 that were included in H.B. 562 on the basis that those provisions violated the single subject rule and were therefore void and unenforceable.

The township appealed the trial court’s denial of intervention in the single-subject rule case. On review, the 1st District Court of Appeals affirmed the action of the trial court.  The township sought and has been granted Supreme Court review of the 1st District’s ruling on whether or not the township was a “necessary party” whose improper exclusion from the single-subject case rendered the trial court’s proceedings invalid and its judgment void.

Attorneys for Colerain Township point to R.C. 2721.12(A), which states that in any Ohio lawsuit seeking a declaratory judgment, “all persons who have or claim any interest that would be affected by the declaration shall be made parties to the action or proceeding.”  In this case, they argue, Rumpke’s challenge to portions of H.B. 562 under the single subject rule did not arise in a vacuum, but was undertaken for the specific purpose of  preventing application of the challenged provisions to Rumpke’s already-pending lawsuit against the township. Clearly, they assert, the township was a party ”with an interest that would be affected” by the granting or denial of Rumpke’s single-subject declaratory judgment action, and therefore the trial court abused its discretion and committed reversible error in denying the township’s petition to intervene in that case.

Attorneys for Rumpke urge the Court to affirm the 1st District’s judgment that Rumpke’s constitutional challenge to portions of H.B. 562 raised only the narrow legal issue of whether the disqualification of privately owned solid-waste disposal facilities from treatment as “public utilities” was sufficiently linked to the underlying purpose of the state’s capital projects appropriations bill to survive judicial scrutiny under the single-subject rule. They argue that the trial court’s examination and resolution of that narrow issue did not require participation by the township, and assert that even if the township had participated, its interests were wholly aligned with those of the state, which advanced thorough arguments in favor of upholding the constitutionality of the challenged provisions.

Rumpke also points out that at the time the township petitioned  to participate in the single-subject case, which was prior to the effective date of H.B. 562, the version of R.C. 519.211 then in effect was silent as to whether private solid waste facilities could qualify as a public utility exempt from local zoning. Thus, they say, at the time it sought to intervene the township had no vested “interest” in any existing statutory scheme that gave it standing to participate in the single-subject litigation.

Contacts
Joseph L. Trauth Jr., 513.579.6515, for Rumpke Sanitary Landfill Inc.

Richard C. Brahm, 614.228.2030, for the Colerain Township Board of Trustees.

Craig A. Calcaterra, 614.466.2872, for the State of Ohio.

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May Judge Reconsider and Grant Post-Mistrial Motion for Acquittal After Initially Denying Same Motion?

State of Ohio v. Denny F. Ross, Case no. 2009-1619
9th District Court of Appeals (Summit County)

ISSUE:  Under Ohio Criminal Rule 29(C), when a criminal prosecution ends in a mistrial and the defendant files a motion for a judgment of acquittal within 14 days after the jury is dismissed, a trial court may enter a judgment of acquittal on one or more of the charges for which the defendant was indicted if the judge finds that the state’s evidence is insufficient to sustain a conviction for that offense. In this case, the Supreme Court is asked to decide whether a trial court that initially denied a defendant’s timely motion for post-trial acquittal under Crim.R. 29(C) had jurisdiction to subsequently reconsider its ruling and enter an order of  acquittal, or if a judicial ruling denying a motion for acquittal under Crim.R. 29(C) is a “final judgment” that is not eligible for reconsideration.

BACKGROUND:  This appeal involves a limited procedural issue that is part of a complex capital murder case dating back to 1999.

The underlying case, which remains unresolved, involves Denny Ross of Akron who was charged with kidnapping, rape, aggravated murder and several lesser charges in the death of Hannah Hill. After the state and Ross’ attorneys had argued their cases to a jury, the judge granted a defense motion for acquittal on the kidnapping count but denied similar motions on the other charges. After the jury had been deliberating for some time, the trial judge received a note from the foreperson stating that one juror had disclosed knowledge of inadmissible evidence in the case that had not been introduced during the trial.  In the course of notifying the jurors that she intended to declare a mistrial, the judge learned that the jury had already voted and completed verdict forms unanimously finding Ross not guilty of rape, murder and aggravated murder. Notwithstanding that information, the judge declared a mistrial and dismissed the jurors.

Within the 14-day time limit for doing so, Ross moved for judgments of acquittal on all charges under Crim.R. 29(C). He also filed motions seeking a court order banning his retrial on the rape and aggravated murder counts based on the double jeopardy provisions of the U.S. and Ohio Constitutions, and a motion asking the court to recognize as valid the jury verdicts finding him not guilty on those counts. Ross petitioned to have the original trial judge disqualified from ruling on his post-trial motions because she was likely to be called as a witness in the proceedings on those motions. A replacement judge, Judge Joseph Cirigliano, was appointed, and he conducted a hearing on Ross’ post-trial motions. Judge Cirigliano issued an order barring a retrial of Ross on the aggravated murder and rape charges on grounds that he had already been acquitted on those counts and a second prosecution would unconstitutionally subject him to double jeopardy. Because that order rendered Ross’ motions under Crim.R. 29(C) moot, Judge Cirigliano did not rule on them. The state appealed. The 9th District Court of Appeals reversed the order barring Ross’ retrial on double jeopardy grounds, and remanded the case to the trial court for consideration of the Crim. R. 29(C) motions it had not addressed earlier.

Judge Cirigliano subsequently issued a summary journal entry without analysis denying Ross’ motion for a judgment of acquittal under Crim.R. 29(C). Ross’ attorneys filed supplemental pleadings seeking reconsideration of the judge’s ruling. After considering those pleadings and the state’s responses, and conducting a hearing, Judge Cirigliano reversed his earlier ruling and entered a judgment of acquittal on the rape charge and the death penalty specification based on rape, but denied acquittal on the remaining charges. The state again appealed, but before its appeal was heard, Ross filed a federal habeas corpus action that resulted in postponement of all state court proceedings in the case. After extensive litigation in the federal courts, in 2008 the U.S. Sixth Circuit Court of Appeals ruled that Ross’ case did not meet the requirements for relief via a writ of habeas corpus.

The 9th District Court of Appeals then took up the state’s postponed appeal of Judge Cirigliano’s  order granting acquittal on the rape charge and death penalty specification under Crim.R. 29(C). In July 2009 the 9th District affirmed the trial court’s judgment of acquittal. The state sought and has been granted Supreme Court review of the 9th District’s ruling.

Attorneys for the Cuyahoga County Prosecutor’s Office, which was appointed to act as special prosecutor on behalf of the Summit County prosecutor’s office, argue that Judge Cirigliano’s initial ruling denying Ross’ motion for acquittal under Crim.R. 29(C) constituted a “final judgment” on that matter that conclusively overruled Ross’ challenge to the sufficiency of the state’s evidence supporting the rape charge. They assert that the judge thereafter acted without jurisdiction when he allowed Ross to submit supplemental pleadings and relied on new information contained in those pleadings to reverse his original ruling and grant acquittal on the rape charge and death penalty specification. They contend that the judge’s improper “reconsideration” of his initial decision in effect allowed Ross to introduce and argue a new Crim.R. 29(C) motion for acquittal several years after his first trial concluded, despite the unconditional requirement that any such motion must be made within 14 days after the jury in a defendant’s original trial is dismissed. 

Attorneys for Ross urge the Court to affirm the 9th District’s determination that Judge Cirigliano’s original ruling denying acquittal under Crim.R. 29(C) did not satisfy the criteria for a “final judgment” set forth in R.C. 2505.02, and therefore that ruling was an interlocutory order in a criminal matter that was subject to  reconsideration by the trial court at any time prior to the sentencing of the defendant. They assert that a 1996 U.S. Supreme Court decision cited by the state, United States v. Carlisle, is not applicable to the facts of Ross’ case because the Carlisle decision hinged on the defendant’s  failure to file his original motion for post-trial acquittal within the seven-day federal deadline for doing so, whereas it is undisputed that Ross filed his motion for acquittal within Ohio’s 14-day deadline.

Contacts
Matthew E. Meyer, 216.443.7800, for state and Summit County Prosecutor's Office (as Special Prosecutor).

Lawrence J. Whitney, 330.253.7171, for Denny Ross.

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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.