Oral Argument Previews

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Tuesday, Oct. 18, 2011

State of Ohio v. Lamont Hunter, Case no. 2007-2021
1st District Court of Appeals (Hamilton County)

James Spencer v. FHI, LLC, Case no. 2010-2138
2nd District Court of Appeals (Miami County)

State of Ohio v. Jack Carlisle, Case no. 2010-2158
8th District Court of Appeals (Cuyahoga County)

Cleveland Metropolitan Bar Association v. Robert J. Berk, Case no. 2011-1049

Death Penalty

State of Ohio v. Lamont Hunter, Case no. 2007-2021
1st District Court of Appeals (Hamilton County)

Lamont Hunter of Cincinnati has appealed his convictions and death sentence for aggravated murder arising from the death of three-year-old Trustin Blue, the son of Hunter’s girlfriend, Luzmilda Blue, while the victim was being cared for by Hunter. Hunter’s attorneys have advanced 10 allegations of legal and procedural error during his trial as grounds for the Supreme Court to vacate his convictions and/or reduce his death sentence to a term of life imprisonment.

Hunter called Ms. Blue at work and told her Trustin had lost consciousness after falling down a flight of stairs and striking his head. Medical personnel who examined the child, who died at a hospital a few hours later, found that he had suffered major brain and neck injuries that were not consistent with falling down a flight of carpeted stairs but were consistent with being violently shaken or having his head slammed into a wall or struck by a blunt object. They also found a deep wound in the child’s anus consistent with penetration by a sharp object. Hunter denied that he had caused any of Trustin’s injuries.

Hunter was indicted on charges of child endangerment, rape and aggravated murder with the death penalty specifications that he killed Trustin in the course of committing a violent felony (rape), and that he purposely caused the death of a child under the age of 13. Hunter entered not guilty pleas on all charges and specifications. Shortly before his trial was scheduled to begin, Hunter retained Cincinnati attorney Clyde Bennett to replace two attorneys who had been appointed by the court to represent him.  

Hunter subsequently waived a jury trial in favor of a trial before a three-judge panel. The court returned guilty verdicts on all charges. Following consideration of aggravating and mitigating factors during the penalty phase of the trial, the panel concluded that the aggravating factors outweighed the mitigating factors and pronounced a death sentence for the aggravated murder charge.  The court also imposed a life sentence on the rape count and eight years imprisonment on the child endangering count.

Among the arguments advanced in his appeal, Hunter’s attorneys argue that he did not receive effective legal representation from attorney Bennett because:
1) Bennett acted incompetently when he advised and assisted Hunter in waiving his right to a jury trial because capital case defense experts believe that a defendant should always insist on a jury trial because the dissent of even a single juror requires the court to impose a life sentence rather than the death penalty.
2)  Bennett was not fully engaged in conducting Hunter’s defense because Bennett was facing imminent prosecution on federal money laundering charges throughout Hunter’s trial, and in fact entered a guilty plea to those charges less than a week after Hunter’s sentencing hearing.
3) Bennett failed to follow up on arrangements made by Hunter’s original attorneys to obtain the assistance of a mitigation specialist in preparing for the penalty phase of the trial, and instead relied on his own, unassisted efforts in assembling and presenting mitigation evidence.

Hunter also alleges that the trial court abused its discretion by allowing the state to present prejudicial  “other acts” evidence that informed the trial court about previous incidents of alleged violence by Hunter involving Trustin and Hunter’s former spouse. 
Attorneys for the state respond that Hunter was accused of physically abusing and killing a three-year-old, and in light of the predictable emotional response of jurors to the youth of the victim and the severity of  his injuries, Bennett’s recommendation of a trial before a three-judge panel rather than a jury was a reasonable tactical decision and not evidence of incompetent representation. 

Similarly, they cite prior court decisions holding that a trial counsel’s decision not to engage the services of a mitigation expert in a capital case is a tactical decision that does not imply incompetent or ineffective representation. They also assert that nothing in the trial record shows that Bennett’s own pending legal problems prevented him from conducting an aggressive defense in which he challenged the state’s medical testimony that Trustin’s injuries could not have been caused by an accidental fall; or from presenting a strong argument in favor of a life sentence in the penalty phase of the trial, during which he personally prepared seven of Hunter’s friends and family members who testified that he was not a violent person and would adapt well to life in prison if spared the death penalty.

With regard to the “other acts” trial evidence challenged as improper by Hunter, the state points out that such evidence is permissible in order to prove the absence of a mistake or accident. They note that Hunter’s defense opened the door for such evidence by asserting that Trustin’s injuries were the result of an accidental fall rather than deliberate acts of physical abuse.

Ronald W. Springman Jr.: 513.946.3052, for the state and Hamilton County prosecutor's office.

Bruce K. Hust, 513.421.7700, for Lamont Hunter.

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Does Trial Court Have Jurisdiction to Hear Workers' Comp Appeal if BWC Administrator Not Served With Appeal Notice?

James Spencer v. FHI, LLC, Case no. 2010-2138
2nd District Court of Appeals (Miami County)

ISSUE:  When a claimant appeals the administrative denial of his or her application for state workers’ compensation benefits to a court of common pleas, must the appellant name the administrator of the Bureau of Workers’ Compensation (BWC) as a party in the notice of appeal, and serve the administrator with a copy of that notice, in order to confer jurisdiction on the common pleas court to hear the claimant’s appeal?

BACKGROUND: James Spencer filed a claim for state workers’ compensation benefits based on a shoulder injury that he allegedly suffered while performing his job duties with Freight Handlers Inc. (FHI) in Miami County. Spencer’s claim was denied by a BWC hearing officer, and that ruling was upheld through several levels of administrative review, culminating with the denial of his claim by the Ohio Industrial Commission.

Spencer then exercised his right under R.C. 4123.512 to appeal the Industrial Commission’s decision to the Miami County Court of Common Pleas (after mistakenly first filing in Darke County). The notice of appeal named Spencer as the claimant and FHI as the employer involved in the case, but did not name the administrator of the BWC as a party. Spencer’s attorneys served a copy of the appeal notice on FHI, but did not also send a copy to the BWC. 

FHI filed a motion asking the trial court to dismiss Spencer’s appeal on the grounds that, under R.C. 4123.512(B), every notice of appeal of a workers’ compensation decision filed in a common pleas court must include the BWC administrator as a party and must be served on the administrator. Because Spencer had failed to take those actions, FHI argued that his appeal was fatally defective and therefore the court had no jurisdiction to consider it. Spencer filed objections to FHI’s motion to dismiss, and moved the court for leave to file an amended petition that corrected the defects identified by FHI. 

Before the trial court ruled on either motion, Spencer filed an amended petition that included the administrator as a party, and served a copy of the amended petition on the administrator. The administrator filed an answer to the amended petition.  Two days later, the trial court granted FHI’s motion to dismiss based on lack of jurisdiction and denied Spencer’s motion to amend, holding that because Spencer’s defective notice did not properly place his appeal before the court in the first place, the court had no standing to consider his motion to amend it.   

Spencer appealed.  On review the 2nd District Court of Appeals reversed and remanded the case to the trial court for further proceedings.  The court of appeals found that the paragraph of R.C. 4123.512(B) that specifies what information must be included in a valid notice of appeal lists five items, all of which were included in Spencer’s notice.  The court acknowledged that a subsequent paragraph in the same statute requires that the BWC administrator must be a party to every appeal and must be served with a copy of the appeal notice, but held that failure to comply with the latter requirements in an initial filing did not deprive a reviewing court of jurisdiction to hear a claimant’s appeal, so long as the defects were corrected and the BWC was given notice and an opportunity to appear in the appeal proceedings.

FHI and the BWC administrator sought and were granted Supreme Court review of the 2nd District’s ruling.

Attorneys for the BWC assert that all of the requirements set forth in R.C. 4123.512(B), including the naming of the BWC administrator as a party and service on the administrator, are prior conditions that must be met before a common pleas court is vested with jurisdiction over a workers’ compensation appeal.  They urge the Court to reject the 2nd District’s holding that the division of the statutory language into two separate paragraphs indicates legislative intent to distinguish between the requirements set forth in those paragraphs, and assert that the legislature’s true intent in drafting the statute was to ensure that the BWC is promptly notified and able to respond when an appeal of a claim is filed in a local court.

Spencer failed to file an appellee brief within the time limit set forth in the Court’s rules, and therefore will not participate in oral argument of the case. However the Ohio Association of Claimants Counsel (OACC), which filed a timely amicus curiae (friend of the court) brief urging affirmance of the 2nd District’s decision, sought and was granted leave of the Court to use five minutes of the time allotted for appellee’s argument to argue in favor of its position.

Attorneys for OACC argue that the plain language of R.C. 4123.512(B) states that “the filing of the notice of appeal with the court is the only act required to perfect the appeal,” and then sets forth five specific items of information that must be included in a valid notice of appeal, none of which refer to the BWC or its administrator. They cite decisions in which the 10th and 11th District courts of appeals have also held, as the 2nd District did in this case, that a trial court gains jurisdiction over a workers’ compensation appeal when the appellant files a timely notice of appeal that contains the five elements specified in the first paragraph of R.C. 4123.512(B). They urge the Court to affirm these appellate decisions, and hold that subsequent statutory language requiring that the BWC administrator be a party to every appeal and be served with a copy of the appeal notice are not a priori jurisdictional requirements, but merely procedural steps that must be completed before the court can proceed to hear and decide an appeal.

Alexandra T. Schimmer, 614.995.2273, for Stephen Buehrer, administrator, Ohio Bureau of Workers' Compensation.

John J. Scaccia, 937.223.7848, for James Spencer.

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Does Trial Court Retain Ability to Modify Criminal Sentence After Offender's Conviction Affirmed by Court of Appeals?

When Sentence Was Not Reviewed by Appellate Court

State of Ohio v. Jack Carlisle, Case no. 2010-2158
8th District Court of Appeals (Cuyahoga County)

ISSUE: When a trial court has found a criminal defendant guilty and sentenced him to a term of imprisonment, but suspends execution of the sentence pending appeal, if a court of appeals affirms the defendant’s conviction and issues a mandate for the defendant’s sentence to be executed, does the trial court retain authority to modify the defendant’s sentence if the court of appeals’ decision did not address the defendant’s sentence, and the modification order is entered prior to the defendant’s transfer from the custody of trial court to the custody of correctional authorities?

BACKGROUND: Jack Carlisle of Cleveland was indicted on charges of gross sexual imposition and kidnapping. Prior to trial, the trial court judge released Carlisle from county custody to receive treatment under his own private medical insurance for failure of both of his kidneys. Carlisle was ultimately found guilty by a jury and sentenced to three years in prison. The trial court then suspended the imposition of its sentence, allowing Carlisle to remain free on bond while he appealed  his convictions.

The 8th District Court of Appeals affirmed Carlisle’s conviction and included in its judgment entry standard language issuing a mandate that the trial court proceed with execution of its sentence. Before the trial court acted on the court of appeals’ order, Carlisle filed a motion asking the trial judge to modify his sentence from a term of imprisonment to a term of community control.  In that motion, Carlisle informed the court that his renal condition had deteriorated to the point that he needed to be transported to  a medical facility multiple times each week to receive kidney dialysis treatments that cost between $25,000 and $30,000 per month. He further advised the court that Medicare and his private insurance would continue to pay for his treatment if he remained in the community, but that coverage would terminate if he were incarcerated, forcing the state to pay for his treatments. 

The trial judge granted Carlisle’s motion and entered an order modifying his sentence from three years’ imprisonment to five years of community control. The state, represented by the Cuyahoga County prosecutor’s office, appealed the sentence modification. On review, the 8th District held that the trial court’s sentence modification order was contrary to the mandate issued by the court of appeals when it upheld Carlisle’s convictions. The 8th District vacated the modification order and directed the trial court to execute its original sentence of three years’ imprisonment. Carlisle sought and was granted Supreme Court review of the 8th District’s ruling.

Attorneys for Carlisle argue that the 8th District erred by relying on the Supreme Court of Ohio’s 1978 decision in State ex rel. Special Prosecutors v. Judge, Court of Common Pleas, in which this Court held that a trial court did not have authority to grant a defendant’s post-appeal motion to withdraw his guilty plea after his case had been reviewed by a court of appeals. They assert that the facts of Carlisle’s case are significantly different, because the defendant in Special Prosecutors had specifically challenged the validity of his guilty plea on appeal, and the court of appeals had specifically rejected that challenge in its judgment.  In this case, they point out, Carlisle did not raise any legal challenge to his sentence as part of his direct appeal, and nothing in the 8th District’s judgment affirming his convictions addressed his sentence, so the trial court’s post-appeal modification of Carlisle’s sentence was not in conflict with the 8th District’s decision.

They also urge the Court to hold that the trial court retained jurisdiction to modify Carlisle’s sentence even after his convictions were upheld on appeal, because the modification was based on medical information that was not in the trial record reviewed by the court of appeals, and the modification was made before the trial court executed its original sentence by transferring custody of Carlisle to a prison facility.    

Attorneys for the state respond that the mandate issued by the 8th District after rejecting Carlisle’s appeal required the trial court to execute the sentence that was pronounced at the time of his conviction, which was a three-year prison sentence.  They cite court decisions holding that once a defendant has been sentenced and his appeal has been accepted by a higher court, the trial court no longer has jurisdiction over the prisoner other than jurisdiction to implement the judgment of the appellate court.  They also argue that, Carlisle had the opportunity to raise any issues related to his sentence in his original appeal to the 8th District, but did not do so.  Accordingly, they assert, even if the trial court retained jurisdiction over his case, he was barred by the doctrine of res judicata from belatedly raising those sentencing issues in a post-appeal motion for modification of his sentence.

T. Allan Regas, 216.443.7800, for the state and Cuyahoga County prosecutor's office.

Erika B. Cunliffe, 216.443.6911, for Jack Carlisle.

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Attorney Discipline

Cleveland Metropolitan Bar Association v. Robert J. Berk, Case no. 2011-1049

The Board of Commissioners on Grievances & Discipline has recommended that the license of Cleveland attorney Robert J. Berk be suspended for 18 months, with 12 months of that term stayed on conditions, for neglecting legal matters entrusted to him by two clients. The board found that in both cases, despite warning notices from the court, Berk failed to appear for scheduled pretrial proceedings, resulting in the dismissal of his clients’ cases to their detriment.

In setting the recommended sanction for his misconduct, the board noted that Berk received a stayed license suspension in 2007 and was placed on probation for five previous incidents in which he failed to represent clients with reasonable diligence and promptness.  While noting that Berk had taken steps to improve his office management practices since his prior suspension, made good-faith efforts to make restitution to the clients who were harmed by his neglect, and has a reputation for honesty and community service, the board also noted that he has continued to routinely handle a large volume of cases as a solo practitioner  since his prior discipline case, and committed his current violations despite being monitored by another attorney during the time period in which they occurred.

Berk has filed objections to the board’s findings and recommended sanction. He argues that the two current counts of neglect are not typical of his case management in his normal practice areas of bankruptcy and debtor representation, but arose from his acceptance of personal injury cases that presented unfamiliar calendaring requirements – cases he accepted only because the persons who brought them to him were past and loyal clients.  He also points out that a majority of the three-member panel that actually heard the evidence in his case recommended a fully stayed suspension, and argues that the full disciplinary board improperly considered anecdotal information about his practice that did not constitute misconduct as an aggravating factor supporting a  more severe penalty.

Attorneys for the Cleveland Metropolitan Bar Association, which prosecuted the complaint against Berk before the disciplinary board, urge the Court to adopt the board’s findings and recommended sanction of an actual suspension from practice.  They argue that, contrary to Berk’s assertions, his failure to appear for scheduled court proceedings in the two cases underlying this complaint are not isolated incidents but part of a continuing pattern of neglect dating back to his stayed 2007 suspension, and assert that an attorney’s repeated neglect of client cases and failure to appear for court proceedings does present a danger to clients and the justice system which merits an actual suspension.

David O. Simon, 216.621.6201, for the Cleveland Metropolitan Bar Association.

Michael E. Murman, 216.228.6996, for Robert Berk.

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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.