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Wednesday, January 9, 2013

State of Ohio v. Demetrius Darmond, Case nos. 2012-0081 and 2012-0195
Eighth District Court of Appeals (Cuyahoga County)

In re: J.S., A Minor Child, Case no. 2012-0118
Eighth District Court of Appeals (Cuyahoga County)

Andrea Riffle, et al. v. Physicians and Surgeons Ambulance Service and City of Akron, Case no. 2012-0205
Ninth District Court of Appeals (Summit County)

State of Ohio ex rel. John Nese, Donald Williams, and Catherine Miles v. State Teachers Retirement System Board of Ohio and Jefferson County Educational Service Center Governing Board, Case no. 2012-0251
Tenth District Court of Appeals (Franklin County)


Did Trial Court Abuse Its Discretion By Dismissing Charges Based on Discovery Violation by the State in Criminal Case?

Prosecutor Argues Court Must Impose ‘Least Severe’ Sanction that Remedies Violation

State of Ohio v. Demetrius Darmond, Case nos. 2012-0081 and 2012-0195
Eighth District Court of Appeals (Cuyahoga County)

ISSUE:  Does the Supreme Court of Ohio’s 1987 holding in Lakewood v. Papdelis that a trial court must impose the “least severe sanction” necessary to remedy a criminal defendant’s discovery violation also require a court to determine and apply the “least severe sanction” for a discovery violation committed by the state in a criminal case?

BACKGROUND: Demetrius Darmond of Cleveland was charged with felony counts of drug trafficking, drug possession and possession of criminal tools based on evidence obtained by police who, based on a tip, intercepted and then made undercover delivery of two Federal Express packages containing marijuana that were addressed to Darmond’s residence.  

Law enforcement reports made available to Darmond’s defense attorney by the state prior to trial did not disclose that on the same dates the packages sent to his address arrived at the FedEx terminal in Richwood, police had also intercepted five other virtually identical packages, apparently from the same sender, that had been shipped to other addresses in Cleveland and Lorain County.

At trial, the state’s narcotics expert disclosed the existence of the additional packages for the first time during her testimony as the first prosecution witness. Darmond’s attorney moved for a mistrial, asserting that the state’s failure to disclose the existence of the other packages prior to trial had  deprived defense counsel of an opportunity to explore potential exculpatory implications or to develop a defense theory that incorporated that information.

After listening to arguments from both sides and adjourning for an hour to consider the impact of the state’s discovery violation, the court granted Darmond’s motion for a mistrial and dismissed the charges against him with prejudice (i.e. with a directive that the state was barred from further prosecution of the charged offenses.)

The state appealed, asserting that the trial court’s action was excessive and disproportionate to the impact of the discovery violation.  On review, the Eighth District Court of Appeals affirmed the action of the trial court, holding that the judge had discretion to impose sanctions up to and including dismissal  of charges as the appropriate remedy for a discovery violation by the state.  In response to a motion by the state, the Eighth District subsequently certified that its holding was in conflict with decisions of the First and Third districts.  The Supreme Court agreed to review the case to resolve the conflict among appellate districts.

Attorneys for the Cuyahoga County prosecutor’s office argue that the Eighth District erred by failing to follow the Supreme Court of Ohio’s holding in Lakewood v. Papadelis (1987) that a trial court setting the sanction for a discovery violation in a criminal case must consider the circumstances of the violation and impose the “least severe sanction” sufficient to remedy the offending party’s noncompliance with discovery rules.

They assert that the procedural rule governing discovery in criminal cases, Ohio Criminal Rule 16, places the prosecution and defense on equal footing with regard to their responsibility to disclose material information. Pursuant to Lakewood, they argue, the trial judge in this case was required not to “automatically” grant the defendant’s motion for  dismissal of charges, but rather to consider the full range of possible remedies for the state’s discovery violation and impose the “least severe sanction” adequate to protect Darmond’s right to a fair trial.

Attorneys for Darmond respond that the Lakewood decision addressed a much different situation in which a trial court had disqualified all of a criminal defendant’s witnesses from testifying at trial based on defense counsel’s failure to provide a list of those witnesses to the prosecutor.  They assert that the rationale underlying Lakewood was that, because barring all of a criminal defendant’s witnesses from testifying amounted to depriving him of his constitutional right to a defense, a trial court should not impose that extreme sanction, but should rather consider the prejudicial effect of the discovery violation on the state, and impose the least severe sanction that allows the state to prepare an effective case without depriving the defendant of his right to a fair trial.

They argue that the “least severe sanction” standard set forth in Lakewood does not apply equally to discovery violations by the state because the state does not have the same constitutionally guaranteed fair trial right as an individual defendant.  They also contend that because the standard of appellate review for a trial court’s discovery sanction is “abuse of discretion,” the Eighth District did not commit reversible error when it deferred to the judgment of the trial court absent a showing by the state that the trial judge’s action was “unreasonable, arbitrary or unconscionable.”

Contacts
Representing the state and Cuyahoga County prosecutor’s office: Katherine Mullin, 216.698.7919

Representing Demetrius Darmond: John Parker, 216.881.0900

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State Challenges Ruling That Incorrect Sentencing Entry Bars Enforcement of Serious Youthful Offender’s Adult Sentence

Where Offender Committed Violent Crime While Serving Juvenile Portion of Sentence

In re: J.S., A Minor Child, Case no. 2012-0118
Eighth District Court of Appeals (Cuyahoga County)

ISSUE:  When a juvenile court has correctly imposed a “blended” juvenile/adult sentence on a minor classified  as a Serious Youthful Offender (SYO), but also included in its sentencing entry an incorrect reference to a separate indefinite prison term, if the offender subsequently commits a violent crime while in juvenile custody, does the error in the original sentencing entry render the defendant’s entire sentence void, and thereby bar the state from invoking the stayed adult portion of the SYO sentence?

BACKGROUND: Ohio’s Serious Youthful Offender (SYO) statute, R.C. 2152.14, addresses the most severe and violent juvenile offenders. The law authorizes a juvenile court to sentence a juvenile classified as an SYO not only to a term of incarceration in a juvenile prison, but also to a stayed adult prison term.

The  offender can avoid serving the stayed adult sentence if he or she completes  the juvenile portion of the sentence without committing additional crimes.  However, the law authorizes a juvenile court to invoke (activate) the stayed adult portion of the offender’s sentence if, while in juvenile custody, he or she commits an offense that would be chargeable as a violent felony or first degree misdemeanor if committed by an adult.

This case involves a juvenile identified by the initials J.S. who was declared to be an SYO in 2006 based on his convictions on delinquency counts of aggravated robbery, kidnapping and rape. J.S. received a blended SYO sentence that included five years of incarceration in juvenile facility, plus a an agreed adult prison term of nine years that the court would invoke (actually impose) if J.S. committed a violent offense while serving his term of juvenile confinement.  In its sentencing entry, the court added language incorrectly stating that J.S. also could be subject to indeterminate adult  sentences of from three to ten years for each of his first-degree felony offenses, and staying those sentences. Despite this discrepancy in the court’s journal entry, neither J.S. nor the state objected or sought to appeal his sentence.

In 2007, while serving his juvenile sentence, J.S. committed a felony rape offense.  In 2011, the state filed a motion in the juvenile court seeking to invoke the stayed nine-year adult prison term included in his blended SYO sentence based on the 2007 rape offense.  After a hearing, the court granted the state’s motion and invoked the nine-year adult sentence.  J.S. appealed that ruling, raising for the first time a challenge to the validity of the original sentencing order in his case based on its reference to indefinite adult sentences in addition to the definite nine-year adult sentence to which the parties had agreed.

The Eighth District Court of Appeals held that the imposition and suspension of both definite and indefinite adult prison terms was improper, and remanded the case to the juvenile court with a directive that it resentence J.S.  The court issued a new sentencing order imposing  the same five-year juvenile sentence and nine-year conditional adult sentence it had imposed in 2006, this time excluding any reference to indefinite adult terms.  After a new hearing, the court again granted the state’s motion to invoke the adult portion of the SYO sentence based on his 2007 rape offense while in juvenile custody.

J.S. appealed that ruling, arguing that the improper inclusion in his 2006 sentencing order of indefinite adult prison terms had rendered that order legally void from the moment it was issued, and therefore he was not subject to a stayed term of adult imprisonment at the time he committed the 2007 rape offense. The Eighth District agreed, and reversed the trial court’s order invoking the nine-year adult sentence. The state sought and was granted Supreme Court review of the Eighth District’s ruling.

Attorneys for the state urge the court to reverse the court of appeals decision pursuant to the legal reasoning of its 2010 decision in State v. Fischer.  In Fischer, they assert, the court held that when a criminal defendant’s otherwise proper sentence completely omitted or imposed a term of postrelease control other than the term required by law, only the incorrect portion of the defendant’s sentence was void and subject to correction through resentencing, while the lawfully imposed portions of the defendant’s sentence remained in effect and were not subject to review at a resentencing hearing.

They argue that the Eighth District failed to follow the rule announced in Fischer when it held in this case that J.S.’s entire blended SYO sentence was rendered void by the trial court’s incorrect sentencing entry, despite the fact that both the five-year juvenile sentence and nine-year suspended adult sentence imposed on J.S. by the trial court were lawful. They assert that, under Fischer,only the portion of the 2006 sentencing order incorrectly imposing indefinite sentences should have been declared invalid.

Attorneys for J.S. respond that the Supreme Court’s Fischer decision is not applicable to this case because the entire blended SYO sentence imposed on J.S. by the juvenile court in 2006 was contrary to law, and therefore that entire sentence, including the suspended adult prison term it included, was void and of no legal force from the moment it was pronounced.

They assert that because the state did not appeal the void 2006 sentence and seek to have J.S. resentenced to a lawful SYO sentence that included a suspended adult prison term, there was no adult prison sentence in force against J.S. until he was resentenced in 2011.  They urge the court to affirm the Eighth District’s conclusion that the trial court acted without  authority when it “activated” an adult sentence based on 2007 conduct that J.S. committed four years before he was subject to punishment as an adult.

Contacts
Representing the state and Cuyahoga County prosecutor’s office: Kristen Sobieski, 216.698.2226

Representing juvenile offender J.S.: Sheryl Trzaska, 614.466.5394

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Does a State Law Granting Limited Immunity to EMTs ‘Impose Liability’ For Acts Excluded from That Immunity?

Andrea Riffle, et al. v. Physicians and Surgeons Ambulance Service and City of Akron, Case no. 2012-0205
Ninth District Court of Appeals (Summit County)

ISSUES:

BACKGROUND:  An Akron city emergency medical services team responding to a report of serious vaginal bleeding by a woman in her third trimester of pregnancy checked the woman’s vital signs but did not check the vital signs of her unborn child. The team then called a private ambulance service to transport the woman to Akron City Hospital rather than immediately transporting her themselves.
Upon arrival at the hospital, doctors determined for the first time that the child’s heartbeat was abnormally slow, and performed an emergency caesarean delivery. The child died three days later.

The child’s mother and father, Andrea and Dan Riffle, subsequently filed suit against the City of Akron and other defendants. In their complaint, the Riffles asserted that the Akron EMS team’s failure to immediately check the unborn child’s vital signs and transport the mother to the hospital had been significant factors in the child’s death.

The city filed an answer and a motion for judgment on the pleadings. The motion was based on the city’s assertion that it and its EMS team were immune from civil liability for any injury they might have caused while performing a governmental function under the state’s political subdivision immunity law, R.C. Chapter 2744.

The Riffles opposed the city’s motion, arguing that their claim fell under an exception to  immunity set forth in R.C. 2744.02(B)(5), which excludes from immunity claims based on a statute that “expressly imposes liability” on a government entity or employee. They asserted that their claim against the city arose under R.C. 4765.49(B), a state law that grants limited immunity to EMTs and other first responders for injuries that occur while they are responding to an emergency call, but explicitly excludes from immunity acts that “constitute willful or wanton misconduct.”

The trial court denied the motion for judgment on the pleadings, agreeing with the Riffles’ argument that R.C. 4765.49(B) “expressly imposes liability” on political subdivisions for EMT conduct that  constitutes willful or wanton misconduct, and therefore some of the conduct alleged in the Riffles’ complaint fell under an exception to the general immunity statute.

The city appealed that trial court’s ruling.  On review, the Ninth District Court of Appeals disagreed with the trial court’s finding that R.C. 4765.49(B) “expressly imposes liability” on EMTs and their employers, but nevertheless affirmed the trial court’s action on the alternative basis that there was an irreconcilable conflict between the general immunity statute and the language in R.C. 4765.49(B) precluding immunity for wanton or willful conduct by an EMT.  In cases where a general and a specific statute cannot be reconciled with each other, the Ninth District held that the more specific law (in this case R.C. 4765.49(B)) must be applied.

Akron sought and was granted Supreme Court review of the Ninth District’s decision.

Attorneys for the city argue that the court of appeals should have concluded its review of the case when it found that R.C. 4765.49(B) does not “expressly impose liability” on EMTs and their public employers, because that holding eliminated the only possible exception to the general immunity statute applicable to the Riffles’ complaint, and therefore required that the court grant judgment in favor of the city based on immunity.  

Attorneys for the Riffles assert that, by expressly precluding immunity for acts by an EMT that constitute wanton or willful misconduct, the practical effect of R.C. 4765.49(B) is to “impose liability” for such conduct. 

Even if the court does not agree with that analysis, however, the Riffles argue that the Ninth District was correct in finding that there is no way to harmonize a general statute that confers blanket immunity on all acts of an EMT regardless of whether they were negligent or willful with a different statute that explicitly denies immunity for an EMT’s willful or wanton acts. Because a specific law takes precedence over a more general one, they contend, the court should affirm the Ninth District’s decision allowing their suit against the city to go forward.

Contacts
Representing Andrea Riffle: Ann R. Combs, 513.381.0656

Representing City of Akron: John C. Reece, 330.375.2030

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Suit Challenges Exclusion of Contractors Who Teach Online Courses from State Teachers Retirement System

State of Ohio ex rel. John Nese, Donald Williams, and Catherine Miles v. State Teachers Retirement System Board of Ohio and Jefferson County Educational Service Center Governing Board, Case no. 2012-0251
Tenth District Court of Appeals (Franklin County)

ISSUE:  Did the State Teachers Retirement System Board abuse its discretion when it stopped accepting contributions from instructors who work for a private “educational option” company and who provide online instruction to public school students through a contract between that company and a countywide educational service center?

BACKGROUND:  This case involves a lawsuit filed by a group of teachers who work for a private company called Virtual Learning Academy (VLA). VLA provides distance learning instruction to students enrolled in public school districts in Jefferson County through a contract with the Jefferson County Educational Service Center (ESC).

John Nese and other teachers who filed the suit are paid on a per-student, per-course basis for providing online instruction to students in grades K-12 who attend school in a participating school district and who sign up through the ESC to take one of more than 90 classes offered by VLA.
For several years prior to 2008, the ESC made employer contributions to the State Teachers Retirement System (STRS)  and withheld employee contributions from the paychecks it issued to Nese and other VLA teachers. 

In October 2008, STRS notified Nese and other VLA faculty that it would no longer accept employer or employee contributions to the pension system on their behalf, and that contributions that had already been made would be returned, without interest.  The memo stated that STRS had reviewed the VLA program and determined that VLA faculty positions were not positions qualified to participate in the pension system.  No reason was stated for that determination.

Because the state law creating STRS gives its board sole authority to determine “in cases of doubt” whether a person is or is not a teacher eligible to participate in the pension system, states that the board’s decisions in such matters are “final,” and makes no provision for an appeal process, the VLA teachers filed suit in the Tenth District Court of Appeals seeking a writ of mandamus to compel STRS to re-enroll them in the pension system and accept future employer and employee contributions on their behalf.

In its answer to that complaint, STRS stated that its action was based on a finding that the VLA faculty members were not qualified to participate in the pension system because they were independent contractors rather than employees of the ESC.  In a 2-1 decision, the court of appeals held that because the law requires that decisions of the STRS board must be reviewed under a deferential “abuse of discretion” standard, and the board had shown that the VLA teachers were able to determine their own work hours and location, the court must affirm the board’s ruling that they were independent contractors since there was some evidence in the record to support that conclusion.
The VLA faculty members sought and were granted Supreme Court review of the Tenth District’s  decision.

Attorneys for the teachers argue that STRS’ action in this case was an abuse of discretion because it was directly contrary to the board’s own guidelines that a teacher must be considered an employee if he or she performs the same work as teachers under employment contracts, works under the supervision of school administrators and has employee taxes withheld on a W-2 form rather than being paid as a contractor.  They argue further that, even if the VLA faculty were correctly found to be independent contractors, nothing in the law excludes independent contractors who  meet all the requirements of a teacher from participating in STRS, and STRS’ own guidelines for local schools explicitly state that pension contributions must be withheld from the paychecks of contractors who perform the duties of a teacher.

Attorneys for the STRS board assert that they presented ample evidence that the VLA faculty did not operate under close supervision of the ESC, comply with any set requirements for the number of days or hours they interacted with students, or meet other criteria that apply to teachers working under normal employment contracts. They urge the court to affirm the decision of the Tenth District, which they say properly deferred to the board’s exclusive authority to determine which workers are and are not entitled to participate in the pension system, and followed the statutory language indicating that the board’s decisions are “final” so long as there is any evidence in the record to support them.

Contacts
Representing John Nese and other VLA teachers: Charles W. Oldfield, 330.743.5101

Representing STRS Board of Ohio: Robert P. Rutter, Allan K. Showalter, 614.466.2980

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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.