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Wednesday, Nov. 16, 2011

State of Ohio v. Maxwell D. White, Jr., Case no. 2009-1661
5th District Court of Appeals (Ashland County)

State of Ohio v. Michael T. Swidas , Case no. 2011-0244
11th District Court of Appeals (Lake County)

State of Ohio ex rel. Ohio Attorney General v. The Shelly Holding Co., et al., Case no. 2011-0252
10th District Court of Appeals (Franklin County)

In the Matter of the Complaint of Thomas and Derrell Wilkes v. Ohio Edison Company, Case no. 2011-0737
Direct Appeal from Order of Public Utilities Commission of Ohio

Does Resentencing Under 2005 Law for Murder Committed In 1996 Violate Constitutional Ban on 'Retroactive Laws?'

Where Defendant Was Not Subject to New Death Sentence Under 1996 Statute, But Death Penalty Can Be Reimposed Under Amended Version of Law

State of Ohio v. Maxwell D. White, Jr., Case no. 2009-1661
5th District Court of Appeals (Ashland County)

BACKGROUND: Maxwell White of Ashland was convicted of aggravated murder and sentenced to death for a crime committed in January 1996. On the date White’s crime was committed, Ohio’s statute governing the resentencing of a capital offender whose death sentence is vacated on appeal, R.C. 2929.06, provided that in resentencing such an offender a trial court could not impose a new  sentence of death, but instead must impose either a term of life imprisonment with eligibility for parole after 20 years, or a term of life imprisonment with parole eligibility after 30 years. 

In March 2005, the General Assembly revised R.C. 2929.06 to a) allow trial courts resentencing capital offenders on remand to impose either a new death sentence or a term of life imprisonment; and b) made the new guidelines applicable to the resentencing of any capital offender whose crime was committed after Ohio reinstated the death penalty in 1981.

After his conviction and death sentence were upheld by the Supreme Court of Ohio in 1998, White pursued multiple appeals in the federal courts. In December 2005, the U.S. Sixth Circuit Court of appeals vacated his death sentence based on a legal error in the jury selection process, and remanded the case to the trial court for resentencing. When the state sought to resentence White under the amended 2005 version of R.C. 2929.06 – which would expose him to a possible new death sentence – White filed suit in the Ashland County Court of Common Pleas. Among other claims, White asked the court to declare that he must be resentenced under the law that was in effect on the date his crime was committed, and that applying the current version of R.C. 2929.06 to his resentencing would violate the prohibition in the Ohio Constitution against retroactive laws.

The trial court held that resentencing White under the revised statute was unconstitutional.  The state, represented by the Ashland County prosecutor’s office, appealed that ruling. On review, the 5th District Court of Appeals reversed and remanded the case to the trial court for resentencing under the current version of R.C. 2929.06. White sought and was granted Supreme Court review of the 5th District’s decision.

Attorneys for White cite court decisions holding that the retroactivity clause (Article II, Section 28) of the Ohio Constitution prohibits the enforcement of a law that imposes  new “burdens, duties, obligations or liabilities” based on a past transaction, or that increases the punishment for a crime after that crime was committed.  They urge the Court to reinstate the trial court’s holding that, because the resentencing law in effect at the time of White’s crime exposed an offender whose death sentence was vacated only to a term of life imprisonment, subjecting White to an amended resentencing process in which a new death sentence was possible imposed a new “burden or liability” not imposed by the former version of the statute.  They also assert that application of the post-2005 resentencing statute to White’s 1996 crime allows the state to pursue a more severe punishment for a past  offense than it could have pursued under the law that was in effect at the time the offense was committed.

Attorneys for the state argue that the constitutional prohibition against retroactive laws applies only to laws that affect a substantive right, and does not apply to statutes like R.C. 2929.06, which merely sets procedural guidelines for trial courts to follow in resentencing capital offenders.  They point out that nothing in the 2005 amendments to the statute increased the maximum penalty for White’s crime of aggravated murder, which remains what it was in 1996 – a potential sentence of death.  They also assert that White did not become eligible for resentencing, and therefore subject to the provisions of R.C. 2929.06, until his original sentence was vacated in December of 2005, several months after the legislature amended the resentencing statute. Therefore, they argue, the 5th District correctly held that White had no vested right to be resentenced under any former version of R.C. 2929.06, and conducting his resentencing under the current version  is not a “retroactive” application of that law.

NOTE: The American Civil Liberties Union of Ohio and the Ohio Association of Criminal Defense Lawyers have filed amicus curiae (friend of the court) briefs supporting the position of Maxwell White. The Ohio attorney general’s office and Franklin County prosecutor’s office have submitted amicus briefs supporting the position of the state.

Ramona H. Rogers, 419.289.8857, for the state and Ashland County prosecutor's office.

Nathan A. Ray, 330.253.7171, for Maxwell White.

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Defendant Challenges Ruling That Shots Fired While Standing Next to Car Were Fired "From Vehicle"

Wording of Firearm Specification Contested as 'Unconstitutionally Vague'

State of Ohio v. Michael T. Swidas, Case no. 2011-0244
11th District Court of Appeals (Lake County)

ISSUE:  Is the five-year sentence enhancement for “discharging a firearm from a motor vehicle” set forth in R.C. 2941.146 unconstitutionally vague as applied by a trial court in enhancing the sentence of a defendant who fired a gun while standing on the ground outside of a car, from behind an open car door?

BACKGROUND:  Michael Swidas of Lake County was convicted of felonious assault, tampering with evidence and carrying a concealed weapon based on an incident in which he retrieved a pistol from his car and fired several shots in the direction of two men while he was standing outside of the car, behind a partially open car door. He was also found guilty of a “firearm specification” under R.C. 2941.146, which adds five years to an offender’s sentence if he caused or attempted to cause injury to another by “discharging a firearm from a motor vehicle.”

Swidas appealed his convictions and sentence, asserting among other claims that the trial court erred in imposing the sentence enhancement based on R.C. 2941.146.  In a 2-1 decision, the 11th District held that the evidence presented at trial was sufficient to support the jury’s finding that he had fired his gun “from a motor vehicle” and therefore was guilty of the firearm specification.

Swidas now asks the Supreme Court to overrule the 11th District and vacate his sentence for violating R.C. 2941.146.  He argues that, if the language of the statute can be read so broadly that it prohibits his conduct in this case, then the law is unconstitutionally vague and unenforceable as applied to his case.  Attorneys for Swidas cite court decisions holding that a law is void for vagueness if a person of normal intelligence cannot determine from the language of the statute what conduct would and would not constitute a violation. 

In this case, they assert, the plain language of the statute, which provides  for sentence enhancement if an offender “discharged a firearm from a motor vehicle,” does not reasonably inform the public that it applies to the firing of a gun while the shooter is standing with both feet on the pavement outside of a vehicle, and while no part of his body or the weapon is inside the vehicle.  They point out that R.C. 2941.146 is and was at the time of its enactment identified to as a “drive-by” firearm specification, and say that a review of court decisions in which that specification has been found applicable shows that those cases have involved a shooter who was fully or partially inside of a vehicle at the time shots were fired.

Attorneys for the state argue that the evidence presented at trial showed that Swidas had retrieved the gun from inside his car, stood within the area between the body of the car and an open driver side door, was in physical contact with the vehicle at the time he fired the shots, and immediately thereafter got into the car and used it to flee the scene.  Under the totality of those circumstances, they argue, the car was an integral part of the shooting incident and the trial court did not commit reversible error in instructing the jury on an R.C. 2941.146 firearm specification, or accepting the jury’s finding that Swidas’ sentence should be enhanced because he had  discharged a firearm “from” his vehicle within the meaning of that statute.

Alana A. Rezaee, 440.350.2683, for the state and Lake County prosecutor's office.

Michael A. Partlow, 216.621.4244, for Michael Swidas.

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Asphalt Company Disputes EPA's Calculation of Permit Violation 'Penalty Days' After Failed Emissions Test

State of Ohio ex rel. Ohio Attorney General v. The Shelly Holding Co., et al., Case no. 2011-0252
10th District Court of Appeals (Franklin County)

ISSUE: When an air quality test required by state and federal EPA regulations shows that emissions from an industrial facility contain a higher level of pollutants than allowed  by the operator’s permit, does that failed test create a rebuttable presumption that the facility remains noncompliant with its permit, and subject to penalties for non-compliance, until the operator demonstrates that the facility has been brought into compliance?

BACKGROUND: Shelly Materials Inc. and Allied Corporation, subsidiaries of Shelly Holding Co., operate approximately 100 Ohio industrial facilities that are located in 74 of the state’s 88 counties.  44 of those facilities are asphalt plants that heat liquid asphalt and aggregate to very high temperatures in order to combine them into road-paving material. Those plants, which emit pollutants including particulate matter, carbon monoxide, nitrogen oxides and sulfur dioxide, operate under air quality permits issued by the Ohio Environmental Protection Agency (EPA) that set limits on the amounts of various pollutants each plant can release into the air.

All facilities subject to EPA clean air permits must conduct regularly scheduled “stack tests” in which the amounts of various pollutants being released through their smokestacks are measured for compliance with the facility’s permit limits. When a test shows that a facility is emitting a higher level of one or more pollutants than is allowed under its permit, the owner can be subject to a variety of sanctions including daily fines of up to $25,000 for each day the facility is operated out of compliance with its permit. 

In this case, as part of a larger civil lawsuit involving multiple Shelly Holding Company facilities, the Ohio attorney general (on behalf of the state EPA director) sought to recover civil penalties for air quality violations found at five of Shelly’s Ohio asphalt plants. Shelly admitted that stack tests performed at each of the five plants had shown that higher-than-permitted levels of one or more pollutants were being emitted, but also submitted evidence that each facility had been brought into compliance at a later date either by passing a subsequent stack test or by obtaining a new permit that increased the facility’s emission limits.

In his arguments to the trial court regarding the appropriate fines to be assessed against Shelly for the permit violations, the attorney general noted the date of the failed emission test at each location and the date on which that plant was returned to compliance, and asked the court to impose a fine for every day between those two dates—yielding a total of 2,912 “penalty days” for the five plants.  Shelly objected,  pointing out that under EPA’s testing rules, the stack test at each of its plants had been performed while the plant was operating at or near maximum capacity, which generated a significantly higher level of emissions than was produced on an average business day, when the plants typically operated at a lower capacity. Because EPA had documented an excessive level of emissions only on the test day when each plant was operating at an artificially high capacity, and had not conducted tests on any subsequent days when the facilities were operating at normal capacity, Shelly argued that the EPA had documented only a single day of non-compliance at each site and Shelly’s civil penalties should be calculated on that basis. 

The trial court agreed with Shelly and limited its award of civil penalties to the single day on which the failed stack test had been performed at each facility.

The attorney general appealed that ruling.  On review, the 10th District Court of Appeals reversed the trial court and remanded the case for recalculation of Shelly’s non-compliance penalties based on the 
number of days between the failed emissions test at each site and that facility’s return to compliance. Shelly sought and was granted Supreme Court review of the 10th District’s decision.

Attorneys for Shelly argue that the provision of state law authorizing EPA to seek daily civil penalties based on non-compliance with air quality permits,  R.C. 3704.06(B), places the burden of proof on the state to show by evidence that a one-time violation was likely to be carried over to subsequent days of operation.  Because EPA did not document any additional days on which emissions exceeded permit limits, and the stack tests performed at its plants while they were operating at full capacity did not represent typical emissions on an average business day, Shelly asserts that the state did not establish prima facie proof of continuing violations, and the Court should reinstate the trial court’s ruling that only a single day of noncompliance at each site had been established.

Attorneys for the state respond that the 10th District followed the guidelines set forth in state and federal EPA administrative codes for establishing a continuing permit violation and setting the “penalty days” applicable to such violations.  Under those guidelines, they assert, once the state has documented by test results that a facility is out of permit compliance, the burden of proof shifts to the plant owner to show that the facility has been returned to compliance either by passing a new stack test, obtaining a new permit with higher emission limits, or showing that the owner performed necessary repairs or maintenance to reduce emissions. 

They contend that adopting Shelly’s proposed standard would create a situation in which a facility that could not pass an emissions test on one day would be legally “presumed” to be back in compliance the next day, absent any showing that the owner had made corrective changes to the plant’s equipment or operations. They argue that nothing in the applicable state or federal regulations bases the compliance of a permit facility on its emissions during “normal operations,” and urge the Court to affirm the 10th District’s ruling that the trial court erred by applying that standard to calculate the number of days Shelly’s plants were out of compliance.

April R. Bott, 614.761.2688, for Shelly Holding Company.

Alexandra T. Schimmer, 614.995.2273, for Ohio Attorney General Michael DeWine.

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Must Dispute Between Property Owner and Utility Be Resolved by Local Court, or Public Utilities Commission?

In the Matter of the Complaint of Thomas and Derrell Wilkes v. Ohio Edison Company, Case no. 2011-0737
Direct Appeal from Order of Public Utilities Commission of Ohio

ISSUE: When a dispute between a private property owner and an electric utility involves structures built on the property owner’s land that intrude into an easement owned by the utility and violate a safety setback required by the National Electric Safety Code, and the sole disputed issue is whether the owner’s structures or the utility’s power line should be relocated to resolve the violation, does the dispute fall under the regulatory jurisdiction of the Public Utilities Commission of Ohio (PUCO), or under the jurisdiction of the local courts?

BACKGROUND:  In 1949, Ohio Edison Company acquired an easement over property in the city of Boardman along which the utility located a 69,000-volt electric transmission line. In 1993, Thomas and Derrell Wilkes, who owned residential property bordering the utility easement, erected a storage shed and an above-ground swimming pool in their back yard. Fifteen years later, in 2008, Ohio Edison determined that the shed and swimming pool were located within the utility easement, and were not far enough away from the company’s power lines to comply with the requirements of the National Electric Safety Code (NESC). 

After the Wilkeses refused to move the shed and pool, Ohio Edison filed a civil lawsuit in the Mahoning County Court of Common Pleas seeking a declaratory judgment that the structures were within the utility’s easement and ordering the Wilkeses to move them to comply with the minimum setback required by the NESC. While that suit was pending in court, the Wilkeses filed a complaint against Ohio Edison with the PUCO.  In their complaint, the Wilkeses asked the commission either to order the utility to move its electric line to eliminate the NESC violation or, in the alternative, issue an order finding that no actual safety hazard was created by the proximity of their shed and pool to the power line.

While the Wilkeses’ PUCO complaint was pending, the common pleas court issued a decision granting judgment in favor of Ohio Edison and ordering that the shed a swimming pool be moved.  Ohio Edison filed a motion asking the PUCO to dismiss the Wilkeses’ complaint on the basis that a) the disputed issue was not one that fell under the expertise or jurisdiction of the PUCO, and b) the dispute over how the NESC violation was to be corrected had been decided by a court of law and PUCO lacked the authority to overturn a valid court order. 

PUCO granted the motion to dismiss. In its decision, the commission held that the issue in dispute  did not involve application or interpretation of the NESC, and therefore was not a matter that fell under its expertise and jurisdiction. The Wilkeses have exercised their right to appeal the PUCO’s ruling denying jurisdiction over their complaint to the Supreme Court.

Attorneys for the Wilkeses argue that because the specific basis asserted by Ohio Edison as grounds to require the movement of their shed and pool was a violation of the NESC, and the PUCO has exclusive jurisdiction over disputes arising from NESC and other public utility statutes, the PUCO’s ruling denying jurisdiction over their case was in error and must be overturned.  In support of that position, they cite two recent Supreme Court of Ohio decisions, DeLost v. First Energy Corp. (2008) and Corrigan v. Illuminating Co. (2009), in which they say this Court held that disputes between individual customers and a utility over the proper enforcement of an easement were matters that required the PUCO’s special expertise and therefore must be decided by the commission rather than through the courts.

Attorneys for Ohio Edison and the PUCO argue that the commission correctly found that the issue in dispute between the parties in this case was not whether there was a violation of the NESC, a matter requiring the commission’s special expertise, because both sides acknowledged that the proximity of the shed and pool to the power line was a NESC violation.  Instead, they say, the disputed issue was what remedy was legally appropriate to rectify that violation − an issue that does not fall within the PUCO’s expertise but must rather be resolved through analysis of Ohio property and contract law by a state court. With regard to the DeLost and Corrigan decisions, they point out that both cases involved disputes over the manner in which a utility performed a specific service-related operation – the trimming and removal of trees located within its power line easements – and it was on that limited basis that the Court held those disputes should be resolved by the PUCO rather than local courts.

Brett M. Mancino, 216.241.8333, for Thomas and Derrell Wilkes.

Thomas G. Lindgren, 614.466.4395, for the Public Utilities Commission of Ohio.

David A. Kutik, 216.586.3939, for Ohio Edison Corp.

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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.