Oral Argument Previews

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Tuesday, April 5, 2011

State of Ohio v. Duane Short, Case no. 2006-1366
Montgomery County Court of Common Pleas

State of Ohio v. Joseph Wilson, Case no. 2010-0897
8th District Court of Appeals (Cuyahoga County)

David Ward et al. v. United Foundries, Inc., et al. v. Gulf Underwriters Insurance Company, Case nos. 2010-1049 and 2010-1275
5th District Court of Appeals (Stark County)

State of Ohio v. Thomas E. Everette, Jr., Case no. 2010-1325
2nd District Court of Appeals (Montgomery County)

Disciplinary Counsel v. Percy Squire, Case no. 2010-2021
Franklin County


Death Penalty

State of Ohio v. Duane Short, Case no. 2006-1366
Montgomery County Court of Common Pleas

Duane Short has appealed to the Supreme Court seeking reversal of his death sentence for the 2004 aggravated murders of his estranged wife, Rhonda Short, and Donnie Sweeney, a male friend who had assisted Rhonda in leaving Short and taking two of the couple’s children with her.

At trial, Short admitted that after searching for several days to discover his wife’s whereabouts, he purchased and sawed off the barrel of a shotgun, took the weapon to his wife’s new residence and shot and killed her and Sweeney. Short returned to the crime scene and surrendered to police after the shootings. After initially entering into a plea bargain in which he agreed to plead guilty to the murders and other felony charges in exchange for the state’s recommendation of life imprisonment without parole rather than the death penalty, Short withdrew his guilty pleas and contested the charges in a jury trial.  He was found guilty on all counts.

On the first day of the penalty phase of the trial, Short’s attorneys advised the court that he did not wish to present any mitigation witnesses or new evidence to the jury during the penalty phase of the trial. The jury reconsidered the prosecution and defense evidence from the guilt stage of the trial along with additional evidence introduced by the state setting forth aggravating factors that favored imposition of the death penalty, and returned a verdict recommending a sentence of death. Short and his attorneys then attempted to present new mitigation evidence to the judge prior to her independent determination of whether to follow the jury’s recommendation or impose an alternative sentence of life imprisonment. The judge refused to admit or consider the proffered new evidence, citing a 1989 Supreme Court of Ohio decision, State v. Roe, which held that when a capital murder case has been tried to a jury, only mitigation evidence presented to the jury may be considered by the court in arriving at its final sentencing decision. The judge adopted the jury’s recommendation and imposed a sentence of death.

In his appeal to the Supreme Court, Short’s attorneys have advanced 14 assignments of legal and procedural error by the trial court that they argue require a new sentencing hearing or a directed reduction of Short’s sentence to life imprisonment. Eight of those claims of error challenge Ohio’s death penalty statutes and procedures as unconstitutional or contrary to international compacts. 

Among other assignments of error, attorneys for Short argue that the trial judge failed to properly determine that Short was mentally competent and that he fully understood the consequences of his action before allowing him to waive his right to present any mitigation evidence or witness testimony to the jury. They point out that Short’s declaration to the court that he did not wish to present any mitigation evidence was made on the first day after the jury’s guilty verdict was announced, meaning that he had virtually no intervening time to consider what witnesses or evidence he might be able to present, to consult with an outside expert, or to understand the dynamics of the capital sentencing process, in which jurors are instructed to impose a death sentence if the defendant’s mitigation evidence is found less compelling than the state’s aggravation evidence. They note that before deciding that Short was making a competent and rational decision to waive mitigation evidence after he was found guilty, the judge should have conducted a new competency hearing instead of relying on a pretrial psychologist’s report that had been completed 15 months earlier. 

Defense counsel also assert that the judge erred by refusing to allow Short to present mitigation evidence to her after the jury had made its sentencing recommendation, but before she made her final sentencing decision. In support of that argument, they cite U.S. Supreme Court decisions holding that the defendant in a capital case must be given every available opportunity to present the court with arguments against imposition of the death penalty.  In this case, they say, the judge was the final finder of fact, and was obliged to consider mitigating information proffered by Short whether or not it had been considered by the jury before she made her final sentencing decision in the case.

Attorneys for the state respond that Short did not waive all mitigation evidence or testimony because defense counsel moved for and the court allowed the jury to reconsider during their sentencing phase deliberations  all the defense evidence that had previously been presented during the guilt phase of the trial.  They say the trial record shows that the judge conducted an extensive discussion with Short prior to accepting his waiver of additional mitigation evidence, and that Short’s waiver was affirmed only after he indicated full understanding of the penalty phase process and the potential consequences of waiving mitigation.

With regard to the trial judge’s refusal to admit or consider additional mitigation evidence after the jury had deliberated and recommended the death penalty, they urge the Court to affirm the judge’s reliance on State v. Roe, in which the Supreme Court of Ohio specifically held that: “(a) defendant may not wait for an unfavorable jury recommendation before presenting all relevant evidence in mitigation of sentence.”

Contacts
Carley J. Ingram, 937.225.5757, for the state and Montgomery County prosecutor's office.

Gary W. Crim, 937.276.5770, for Duane Short.

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When Criminal Sentence Remanded for State to Elect Between Allied Offenses, Is New Hearing 'De Novo?'

State of Ohio v. Joseph Wilson, Case no. 2010-0897
8th District Court of Appeals (Cuyahoga County)

ISSUE:  When a court of appeals holds that a trial court erred by imposing separate sentences for two “allied offenses of similar import” that should have been merged for sentencing, is a remand of the case to the trial court for resentencing limited to an election by the state of which offense the defendant will be sentenced for, or may the appellate court order a “de novo” resentencing hearing at which the defendant may raise other issues and arguments not related to the allied offenses issue?

BACKGROUND: Joseph Wilson of Cleveland was convicted in a jury trial of aggravated robbery, felonious assault and kidnapping.  The trial court sentenced him to 10 years in prison for the robbery charge,  eight years for the assault charge and seven years for kidnapping and ordered all sentences to be served consecutively, resulting in an aggregate prison term of 25 years.

Wilson appealed, arguing that the charges against him were “allied offenses of similar import” that should have been merged into a single conviction subject to a single sentence because they arose from the same conduct, and were committed simultaneously and with the same criminal intent.  Wilson also asserted that statements made by the trial court judge at the time of sentencing showed bias against him, and that his sentence was disproportionate to those imposed against several co-defendants involved in the same incident.

The 8th District Court of Appeals affirmed Wilson’s convictions, but held that kidnapping was an “allied offense” of both aggravated robbery and felonious assault, and therefore the trial court erred in imposing separate sentences for all three crimes.  The court of appeals declined to consider Wilson’s additional claims of judicial bias and  disproportionate sentencing, instead remanding the case to the trial court with instructions to: 1) allow the state to choose which of the allied offenses Wilson should be sentenced for and 2) conduct a de novo (not limited to the court’s previous proceedings) review of Wilson’s claims of judicial bias and disproportionate sentencing.

The state sought and was granted Supreme Court review of the 8th District’s holding that the resentencing hearing on remand must address not only the allied offenses issue, but also Wilson’s claims of judicial bias and disproportionate sentences.

Arguing for the state, attorneys from the Cuyahoga County prosecutor’s office contend that a 2010 Supreme Court of Ohio decision cited by the 8th District, State v. Whitfield, addressed only the need for a new sentencing hearing on remand where separate sentences have incorrectly been imposed for two or more allied offenses that should have been merged.  They argue that Whitfield did not require or authorize a court of appeals to order the trial court on remand to also consider non-allied offense issues that were raised for the first time on appeal. They assert that Wilson did not preserve the issues of judicial bias or disproportionate sentencing of his co-defendants for future review because he did not raise them in the trial court, and say the 8th District acted contrary to other Supreme Court decisions that have held that in cases involving multiple offenses, a remand to cure a  defect in the sentence for one offense does not allow the trial court to reconsider or relitigate the portions of a defendant’s sentence that were properly imposed for other offenses.

Attorneys for Wilson respond that while the defendant in Whitfield sought a new sentencing hearing based solely on a claim that the trial court failed to merge allied offenses, nothing in this Court’s Whitfield decision limited the scope of  the required rehearing in such cases exclusively to allied offense issues.  In this case, they assert, the 8th District had authority to remand Wilson’s case for a new hearing to consider not only the trial court’s failure to merge allied offenses, but also other issues most appropriate for  resolution at the trial court level.  They argue that there was no opportunity for Wilson to address the judicial statements evincing bias against him at trial because those statements were not made until the time of sentencing, and the disproportion of Wilson’s sentence to those of his co-defendants was not discovered until after his trial had been completed.

Contacts
Mary H. McGrath, 216.443.7800, for the state and Cuyahoga County prosecutor's office

Terrence K. Scott, 614.466.5394, for Joseph Wilson.

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Does Policy Exclusion Require Insurer to Provide Defense Until Court Finds Injury Was 'Substantially Certain'

David Ward et al. v. United Foundries, Inc., et al. v. Gulf Underwriters Insurance Company, Case nos. 2010-1049 and 2010-1275
5th District Court of Appeals (Stark County)

ISSUE:  Does an insurance policy exclusion of coverage for “bodily injury resulting from an act ... which is determined to have been committed by you [sic] with the belief that an injury is substantially certain to occur,” require the insurer to provide a legal defense to the policyholder until such time as a judge or jury makes a determination that the policyholder knew that the conduct that caused injury was substantially certain to do so?

BACKGROUND:  David Ward was injured in a workplace accident in the course of his employment  with United Foundries Inc. (United). Ward filed an “intentional tort” lawsuit against United, alleging that the workplace condition that resulted in his injuries was known to the company and was so dangerous that it created a “substantial certainty” of injury.

United filed a claim seeking coverage against Ward’s suit under a commercial liability insurance policy it had purchased from Gulf Underwriters (Gulf).  The insurer refused to provide a legal defense against Ward’s complaint, citing an exclusion in its policy that precluded coverage for injuries that were intentionally caused or aggravated by the policyholder.  United Foundries filed suit against Gulf in the Stark County Court of Common Pleas, seeking a declaratory judgment that Gulf’s policy required the insurer to provide a legal defense. The trial court granted summary judgment in favor of United.

Gulf appealed. On review, the 5th District Court of Appeals reversed and remanded the case to the trial court for a directed ruling that Gulf did not have a duty to defend United.  The court of appeals based its decision on a finding that Ward’s complaint against United specifically asserted an intentional tort claim, and Gulf’s policy specifically excluded coverage for such claims.  The 5th District later certified that its interpretation of the exclusion language in Gulf’s policy was in conflict with a ruling of the 3rd District Court of Appeals analyzing similar policy language in a different case.  The Supreme Court has agreed to review the case to resolved the conflict between appellate districts.

Attorneys for United argue that the phrase “has been determined” in the Gulf policy requires the insurer to provide a defense to a policyholder until a judge or jury has made a specific finding that the act or omission that caused a plaintiff’s injury falls within the legal definition of conduct that is “substantially certain to cause injury.”  They argue that allowing Gulf to deny coverage for defense  costs based on the mere accusation of intentional tortious conduct in a plaintiff’s complaint renders the coverage United thought it was purchasing useless.

Attorneys for the insurance company urge the Court to affirm the 5th District’s holding that because the language of its policy plainly excludes any coverage for an employee intentional tort based on the substantial certainty of a worker’s injury, and Ward’s lawsuit alleges only that exact type of claim, there is no potential or arguable coverage in the policy for the harm alleged, and therefore Gulf has no obligation to provide a legal defense for United. They contend that, while United might have misunderstood what coverage it was purchasing when it obtained a stop gap endorsement, that endorsement does provide coverage for several types of claims that are not covered under United’s general commercial liability policy, and is therefore not “illusory.”

Contacts
Craig G. Pelini, 330.305.6400, for United Foundries, Inc.

Ronald B. Lee, 330.376.4577, for Gulf Underwriters Insurance Co.

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Does Time Limit for Postconviction Relief Petition Run From Filing of Trial Videotape, or Written Transcript?

State of Ohio v. Thomas E. Everette, Jr., Case no. 2010-1325
2nd District Court of Appeals (Montgomery County)

ISSUE:   Does the 180-day time limit within which a petition for postconviction relief in a criminal case must be filed begin to run on the date videotapes of the trial court proceedings are received by the court of appeals, or from the date on which a written transcript of the trial court proceedings is received by the court of appeals?     

BACKGROUND: In June 2008 Thomas Everette Jr. was convicted in the Montgomery County Court of Common Pleas of aggravated murder, aggravated robbery, grand theft and having weapons while under a disability. He was sentenced to an aggregate term of life in prison with the possibility of parole after 28 years. 

Everette filed a notice of appeal of his convictions and sentence with the 2nd District Court of Appeals on July 16, 2008.  On that same day, Everette’s attorney requested that a transcript of the trial court proceedings be prepared.  On Aug. 26, 2008, six videotapes recording his jury trial, a hearing on a motion to suppress evidence and his sentencing hearing were filed with the court of appeals.  Seven weeks later, on Oct. 15, 2008, the 2nd District received and filed a written and certified transcript of the trial court proceedings.

On April 8, 2009, while his direct appeal was still pending, Everette filed a petition for postconviction relief in the common pleas court. The state moved to dismiss the petition on the ground that the 180-day time limit for seeking postconviction relief had expired.  The state asserted that the time limit had begun to run on Aug. 26, 2008 – the date the videotapes of Everette’s trial were received by the court of appeals – and therefore the deadline for filing a postconviction petition had expired on Feb. 23, 2009, nearly six weeks before Everette’s petition was filed.  Everette entered objections to the state’s motion, arguing that the time limit for seeking post conviction relief had not begun to run until Oct. 15, 2008, the date on which the court of appeals had received the written transcript of his trial, and therefore his April 8, 2009 filing had been made within the 180-day limit.

The trial court granted the state’s motion and dismissed Everette’s petition as untimely.  On review, the 2nd District affirmed the common pleas court’s ruling that the videotapes of his trial proceedings constituted the “official transcript” of his trial under the state’s rules of appellate procedure, and therefore the date the tapes were received by the court of appeals triggered the running of the 180-day deadline. Everette sought and was granted Supreme Court review of the 2nd District’s decision.

Attorneys for Everette contend that while the applicable rule, App.R. 9(A), states that a video recording of the trial court’s proceedings “constitutes the transcript of the proceedings other than hereinafter provided, and ... need not be transcribed into written form,” a subsequent provision in the same rule specifies that when a written transcript of trial proceedings has been prepared and certified “such written form shall then constitute the transcript of proceedings.” Pursuant to the latter provision, they argue, because a written transcript of the trial court proceedings in Everette’s case was prepared, certified and filed in the court of appeals, that written version became the official transcript of his trial, and the delivery of the written transcript to the court of appeals on Oct. 15, 2008, not the earlier delivery of the videotapes, was the event that triggered the 180-day time period for filing a petition for postconviction relief.

Attorneys for the state respond that the language in App.R. 9(A) cited by Everette applies only to cases in which the trial court proceedings were originally recorded by some means other than stenographic recording by court reporter or on videotape (for example, on audio tapes).  They argue that, when read in context with the rest of the rule, it is clear that the disputed language merely requires that such non-videotape recordings be transcribed into a written transcript that will thereafter be recognized as the official trial record.

Contacts
Andrew T. French, 937.225.5757, for the state and Montgomery County prosecutor's office.

Jeremy J. Masters, 614.466.5394, for Thomas Everette Jr.

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Attorney Discipline

Disciplinary Counsel v. Percy Squire, Case no. 2010-2021
Franklin County

The Board of Commissioners on Grievances & Discipline has recommended that the license of Columbus attorney Percy Squire be suspended for two years, with the second year of that term stayed on conditions, for violations of state attorney discipline rules arising from his mishandling of and failure to account for client funds held in his law office trust account.

The board found that in his dealings with multiple clients, Squire improperly commingled his personal funds with funds held in trust for clients, made disbursements from his client trust account to third parties without notifying the clients or keeping proper records of those transactions, entered into loan agreements and business transactions with clients in which his personal interest and the interest of the client might conflict without recommending that the clients obtain independent legal advice, and made false statements to disciplinary authorities about the amount and purpose of a $100,000 loan he obtained in part to repay a client whose unearned fee advance Squire had prematurely expended for personal purposes.

The Office of Disciplinary Counsel, which prosecuted the complaint against Squire before the board, has filed objections to a number of findings in which the board dismissed charges of additional rule violations based on a lack of clear and convincing evidence. Counsel argues that the evidence presented at Squire’s hearing supports a finding of additional rule violations including conversion of $84,000 Squire was holding for the benefit of a client to Squire’s own personal use. Based on these additional violations, disciplinary counsel urges the court to impose an indefinite suspension as the appropriate sanction for Squires’ misconduct.

In response to disciplinary counsel’s objections, Squire points out that the only client who filed a grievance against him is currently serving  prison sentences for felony theft and fraud convictions, and alleges that the other counts in the complaint resulted from a “wide-ranging and unnecessary” investigation of his finances in which none of the other affected clients has alleged that Squire caused them any financial loss or other harm. Squire acknowledges that his payment of law office and personal expenses through his client trust account and failure to maintain thorough records of disbursements from that account were contrary to disciplinary rules, but contends that he borrowed or withdrew funds from the account only with the knowledge and consent of the affected clients, and urges the court to fully stay any license suspension it might impose on condition of his future good conduct.

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

Percy Squire, pro se, 614.224.6528.

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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.