Oral Argument Previews

2014 Archive | 2013 Archive | 2012 Archive | Calendar
Live Streaming Video Coverage

Tuesday, September 11, 2012

State of Ohio v. Alfred Jackson III , Case no. 2011-1925
Ninth District Court of Appeals (Lorain County)

Disciplinary Counsel v. Christopher Thomas Cicero, Case no. 2012-0278
Franklin County

Disciplinary Counsel v. Paul Nickolas Peterson, Case no. 2012-0996
Geauga County

Columbus Bar Association v. Stanlee Earl Culbreath, Case no. 2012-0999
Franklin County


Is Drug Trafficking Indictment Invalid If It Identifies Category, But Omits Specific Drug Defendant Is Charged With Selling?

State of Ohio v. Alfred Jackson III , Case no. 2011-1925
Ninth District Court of Appeals (Lorain County)

ISSUE: Is a grand jury indictment for the crime of drug trafficking fatally defective if it alleges that the defendant sold or offered for sale a “Schedule I or II controlled substance” but does not name the specific drug or drugs in which the defendant is accused of trafficking?

BACKGROUND: Alfred Jackson of Lorain was indicted by a grand jury for multiple offenses including three counts of trafficking in illegal drugs, possession of criminal tools, and possession of drug paraphernalia.  

During pretrial proceedings, Jackson moved for dismissal of the counts charging him with drug trafficking on the basis that the indictment failed to identify the specific drug or drugs he was accused of selling. The trial court denied Jackson’s motion to dismiss. He then entered no-contest pleas to the drug trafficking counts, and was sentenced to a year in prison.

Jackson appealed the trial court’s denial of his motion to dismiss the drug-trafficking counts in the indictment.  On review, the Ninth District Court of Appeals cited a 1983 Supreme Court of Ohio  decision, State v. Headley, in which the court held that a drug-trafficking indictment that failed to identify the “type of drug” a defendant was charged with trafficking was legally insufficient and therefore invalid. Applying Headley to this case, the court of appeals held that the indictment was invalid because it failed to identify the specific drug or drugs Jackson was charged with trafficking. Accordingly, the Ninth District vacated his drug-trafficking convictions and remanded the case to the trial court for further proceedings. 

The state, represented by the Lorain County prosecutor’s office, sought and was granted Supreme court review of the Ninth District’s decision.

Attorneys for the state point out that R.C. 2925.03, the state law that defines and prohibits the crime of trafficking in controlled substances, does not individually prohibit trafficking in each of the hundreds of different chemical substance covered by that statute, but rather groups those drugs into eight different categories or “schedules,” and then sets the identity and level of an individual offense based on which of the eight statutory schedules the trafficked drug falls under.

They argue that the indictment in the Headley case was found deficient not because it failed to mention the specific drug the defendant was charged with trafficking, but because it failed to identify  the “type” or category of drug involved, and thus failed to inform the defendant of the identity and felony level of the offense with which he was charged.  In this case, they say, the drug Jackson was trafficking in was Benzylpiperazine, commonly referred to as BZP, which is a Schedule I drug under R.C. 2925.03. Because the portion of Jackson’s indictment charging him with trafficking in “a Schedule I or II controlled substance” mirrored the language of the statute, and accurately informed Jackson of the identity and level of offense with which he was being charged, the state asserts that the indictment was not deficient and the Ninth District erred by reading Headley too broadly.

Attorneys for Jackson urge the court to affirm the Ninth District’s decision, which they say correctly held that an indictment for drug trafficking does not sufficiently allow a defendant to prepare a defense against  the offense with which he is charged unless the indictment not only lists the category of drugs allegedly involved, but also identifies the specific chemical substance he is accused of selling or preparing for sale.

Contacts
Peter J. Gauthier, 440.329.5389, for the state and Lorain County prosecutor’s office.

Jack W. Bradley, 440.244.1811, for Alfred Jackson.

Return to top

Attorney Discipline

Disciplinary Counsel v. Christopher Thomas Cicero, Case no. 2012-0278
Franklin County

The Board of Commissioners on Grievances & Discipline has recommended that the license of Columbus attorney Christopher T. Cicero be suspended for six months because Cicero improperly disclosed to former Ohio State University football coach Jim Tressel information Cicero obtained during a meeting with a prospective client.

The board found that after meeting with Ed Rife, the owner of a Columbus tattoo parlor frequented by a number of OSU football players, Cicero sent emails to Tressel informing him that during a drug-related raid on Rife’s home, law enforcement officers had discovered and confiscated “several boxes” of championship rings, signed jerseys and other memorabilia that Rife had obtained from members of the 2010 OSU football team in exchange for tattoos.  

The board concluded that, although Rife never retained his services, Cicero had violated Rule 1.18 of the Rules of Professional Conduct, which requires an attorney to maintain the confidentiality of information gained through consultation with a prospective client.  The board also found that Cicero had engaged in conduct that reflected adversely on his fitness to practice law.

Cicero, a former OSU football player,  has filed objections asking the court to overrule the board’s findings that his actions violated the Rules of Professional Conduct, or if it affirms rule violations to reduce the board’s recommended sanction to a stayed suspension. Specifically, Cicero asserts that he initially obtained the information he passed on to Tressel through a former client, Joe Epling, prior to meeting with Rife. Cicero also asserts that he never considered Rife to be a prospective client whose communications with Cicero were confidential.

The Office of Disciplinary Counsel, which prosecuted the charges against Cicero before the board, has filed a response to Cicero’s objections in which counsel asserts that the content of Cicero’s emails to Tressel made it clear that he had already spoken with Rife, and was awaiting Rife’s decision on whether or not to retain Cicero as defense counsel in Rife’s upcoming drug case.

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

John M. Gonzales, 614.643.5050, for Christopher Cicero.

Return to top

Attorney Discipline

Disciplinary Counsel v. Paul Nickolas Peterson, Case no. 2012-0996
Geauga County

The Board of Commissioners on Grievances & Discipline has recommended that Chagrin Falls attorney Paul N. Peterson be permanently disbarred for professional misconduct that resulted in his 2010 felony conviction for multiple thefts from a client’s business totaling approximately $80,000.

The board also found that Peterson violated provisions of the Rules of Professional Conduct that prohibit an attorney from entering into a business relationship with a client without notifying the client of potential conflicts between the interests of the client and attorney, and without recommending that the client obtain independent legal advice before entering into such a  relationship.

Peterson has filed objections to the board’s recommended sanction of disbarment.  He points out the three-member hearing panel that heard testimony and reviewed the documentary evidence in his case recommended that his law license be indefinitely suspended rather than permanently revoked. He also asserts that the board erred in refusing to consider as a mitigating factor medical testimony that he suffered from clinical depression and symptoms of bipolar disorder during the time period in which his misconduct occurred. He urges the court to follow the precedent of other discipline cases in which attorneys who misappropriated client funds have been suspended from practice rather than disbarred where there was evidence that mental illness was a contributing factor in the attorney’s misconduct.

The Office of Disciplinary Counsel, which prosecuted the charges against Peterson before the disciplinary board, urges the court to follow the board’s recommendation of permanent disbarment.

Counsel points out that prior court decisions have held that an offending attorney’s diagnosis with a mental health condition should be considered as a mitigating factor only where the treating physician certifies that the diagnosed condition played a material role in the attorney’s misconduct, and also affirms that the diagnosed condition is responding positively to treatment and there is a strong probability that the attorney can be restored to the competent and ethical practice of law.  In this case, they say, Peterson’s treating psychologist indicated in her hearing testimony that when she signed a letter stating her opinion that his mental condition had contributed to his misconduct, Peterson had not disclosed to her the number or scope of his thefts, or that he had falsely represented to a bank that he was the president of his client’s company. When provided with that information at the hearing, disciplinary counsel notes that the psychologist modified her written opinion by stating that Peterson’s condition might have contributed to his unethical actions, but his failure to be candid with her raised questions about whether he was responding positively to treatment and the probability of his return to ethical practice.

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

Mary L. Cibella, 216.344.9220, for Paul N. Peterson.

Return to top

Attorney Discipline

Columbus Bar Association v. Stanlee Earl Culbreath, Case no. 2012-0999
Franklin County

The Board of Commissioners on Grievances & Discipline has recommended that Columbus attorney Stanlee E. Culbreath be disbarred based on a pattern of misconduct over a multi-year period during  which the board found that Culbreath routinely commingled his own funds with funds he held in trust for clients, failed to maintain coherent  records of settlements he received and disbursements he made to or on behalf of individual clients, and routinely made personal withdrawals and paid his own law practice, personal and family bills from funds on deposit in his client trust account.

In its report to the court, the disciplinary board noted that Culbreath failed to produce numerous requested documents or otherwise fully cooperate with the investigation of his misconduct, persistently refused to acknowledge the wrongfulness of his actions, blamed his office staff and others for his violations of the Rules of Professional Conduct, and gave evasive and conflicting testimony during his hearing.  Based on the severity of his misconduct and these aggravating factors, the board concluded that Culbreath is unable or unwilling to practice law in a competent and ethical manner, and that his law license should therefore be permanently revoked.

Culbreath has filed objections to the board’s findings and recommended sanction of disbarment.  He asserts that the vast majority of rule violations found by the board were the results of admittedly sloppy record-keeping that he can and will correct, under the oversight of a court-appointed monitor.

Culbreath also argues that disbarment is  disproportionate to the penalties imposed on other attorneys in similar disciplinary cases, and is excessive in light of the fact that the board received no complaints from any of his clients and found no evidence that he acted with a selfish or dishonest motive or that any client suffered financial losses as a result of his rule violations. He asks the court to give weight to the mitigating factor that he has been receiving treatment for depression and other mental health issues following the deaths of his law partner and several members of his extended family.

Contacts
Terry K. Sherman, 614.444.8800, for the Columbus Bar Association.

Kenneth R. Donchatz, 614.255.4257, for Stanlee E. Culbreath.

Return to top

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.