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Tuesday, November 19, 2013

State of Ohio v. Lashawn Amos, Case no. 2012-2093
Eighth District Court of Appeals (Cuyahoga County)

Christopher Richmond v. State of Ohio, Case no. 2012-2156
Eighth District Court of Appeals (Cuyahoga County)

State of Ohio v. Giovanni Manocchio, Case no. 2013-0095
Eighth District Court of Appeals (Cuyahoga County)

City of Cleveland v. Erin McCardle and Leatrice Tolls, Case no. 2013-0096
Eighth District Court of Appeals (Cuyahoga County)


Is a Trial Court Required to Consider a Presentence Report in a Criminal Case Before Imposing a Sentence of Community Control?

State of Ohio v. Lashawn Amos, Case no. 2012-2093
Eighth District Court of Appeals (Cuyahoga County)

ISSUE: Is a trial court prohibited from sentencing a criminal defendant to community control sanctions without first obtaining and reviewing a presentence investigation report?

Editor’s Note: This case and the next, Christopher Richmond v. State of Ohio, both deal with whether presentence investigation reports are required prior to sentencing in certain cases. Separate panels of the Eighth District Court of Appeals issued decisions on the same day in these cases. The state sought review of the cases by the full appellate court arguing that the decisions conflicted, but the court denied the request, stating “[w]e find that although the panel in this appeal applied a different standard of review than the panel in State v. Richmond, the standard of review is not dispositive of these appeals.” Both cases have been appealed to the Supreme Court, and it is hearing each case separately today.

BACKGROUND:
LaShawn Amos was charged with drug trafficking and drug possession after selling .14 grams of crack cocaine for $20 to an undercover detective in the Cleveland Police Department. In December 2011, pursuant to a plea bargain, the drug possession charge was dismissed and Amos pled guilty to the trafficking count, a fifth-degree felony.

The trial court issued an immediate sentence of 30 days in jail, giving Amos credit for having already served 35 days; a $150 fine; and a six-month driver’s license suspension. No presentence investigation report was ordered or considered by the court before the sentence was imposed. A presentence investigation report, according to R.C. 2951.03, includes “the circumstances of the offense and the criminal record, social history, and present condition of the defendant,” among other information. The state objected to the court’s sentence, stating that fifth-degree felonies require a sentence of community control or prison.

The state appealed to the Eighth District Court of Appeals, which agreed with the trial court’s sentence. The appellate court noted that the state did not request a presentence investigation report at trial and only objected generally to Amos’s sentence. Referencing State v. Adams, a 1988 Ohio Supreme Court decision, the Eighth District held that “a trial court’s failure to order a presentence report pursuant to Crim.R. 32.2 when no objection is lodged does not make the sentence contrary to law.”

The state requested that the Supreme Court review the appellate decision, and the court agreed to hear the case.

Amos was sentenced to community control, and attorneys for the state argue that Ohio law requires a trial court to first obtain a presentence investigation report before it can impose a sentence of community control.

They point to an Ohio rule governing criminal cases (Crim.R. 32.2), which states:

In felony cases the court shall, and in misdemeanor cases the court may, order a presentence investigation and report before imposing community control sanctions or granting probation.

They also cite R.C. 2951.03(A)(1):

No person who has been convicted of or pleaded guilty to a felony shall be placed under a community control sanction until a written presentence investigation report has been considered by the court.

“Thus a presentence investigation report was mandatory, not discretionary, under the circumstances of [d]efendant’s case,” they assert. In support of this argument, they present a chart in their brief citing at least one case in each Ohio appellate district that has recognized this trial court duty when issuing community control sanctions for felony offenders.

The state’s attorneys further contend that the Eighth District’s reliance on State v. Adams in its decision was a misinterpretation of that case because the defendant there was sentenced to a prison term rather than to community control. “In this case the appellate court failed to recognize the distinction between the discretionary nature of ordering a presentence report when a prison term is imposed, versus the mandatory nature of ordering a presentence report when a community control sanction is imposed,” they argue. Had the appeals court correctly applied this distinction, the state’s attorneys assert the court would have then been expected to hold that Amos’s sentencing without a presentence report was contrary to law.

In addition, the Eighth District released a decision (State v. Richmond) on the same day as Amos that the state’s attorneys say held that a trial court erred when it did not first consider a presentence investigation report before imposing a community control sentence.

Attorneys for Amos counter that Crim.R. 32.2 and R.C. 2951.03(A)(1) are relevant to sentences in which there will be ongoing supervision by the state. The language “placed under a community control sanction” in the statute conveys that there will be an ongoing relationship between the convicted person and the probation department, they assert. When a defendant’s sentence is “time served,” then his relationship is ending and the case is over, they conclude.

They also argue that the purpose of felony sentences under Ohio law is to protect the public from future crime and punish the offender to the point that the sentence does not impose “an unnecessary burden” on government resources. If the court rules in favor of the state in this case, they contend that criminal defendants found to have already served their punishment will likely be held in jail for additional time, up to 30 days, waiting for a presentence report to be issued, and that delay will incur costs on the state.

“[I]t would be appropriate, under the changing circumstances of Ohio law under 2929.11 and the increased scrutiny of the cost of administering criminal justice, that a more appropriate reading of this rule and statute is to conclude that the statutory intent regarding the requirement of a presentence report involves cases where some sort of ongoing SUPERVISION is necessary,” they contend.

Contacts
Representing the State of Ohio: Kristen Sobieski, 216.698.2226

Representing Lashawn Amos: Brian McGraw, 216.574.2516

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When Neither Party Requests a Presentence Report at Trial, May an Appeals Court Reverse the Sentence Based on the Absence of That Report?

Christopher Richmond v. State of Ohio, Case no. 2012-2156
Eighth District Court of Appeals (Cuyahoga County)

ISSUE:  Is it appropriate, without the most exigent circumstances, for an appellate court to disturb a trial court’s sentence of community control sanctions in a felony case when neither party requests a presentence investigation report?

Editor’s Note: This case and the prior one, State of Ohio v. LaShawn Amos, both deal with whether presentence investigation reports are required prior to sentencing in certain cases. Separate panels of the Eighth District Court of Appeals issued decisions on the same day in these cases. The state sought review of the cases by the full appellate court arguing that the decisions conflicted, but the court denied the request, stating that “[w]e find that although the panel in this appeal applied a different standard of review than the panel in State v. Amos, the standard of review is not dispositive of these appeals.” Both cases have been appealed to the Supreme Court, and it is hearing each case separately today.

BACKGROUND:
Following a bar fight in September 2011 in Mayfield Heights, Christopher Richmond spit at a police lieutenant who was trying to speak with him. Richmond was charged with “harassment with a bodily substance” and inciting violence. Richmond agreed to plead guilty to the harassment charge, a fifth-degree felony, in exchange for dismissal of the inciting violence misdemeanor.

The trial court sentenced Richmond to 30 days in jail, with credit for time served, and a $200 fine. The court did not obtain or review a presentence investigation report before it issued the sentence, and the state did not object to the court moving forward to sentencing without the report. A presentence investigation report, according to R.C. 2951.03, includes “the circumstances of the offense and the criminal record, social history, and present condition of the defendant,” among other information.

The state appealed to the Eighth District Court of Appeals, which reversed Richmond’s sentence finding that the trial court did not follow the legal requirements that it must first obtain and consider a presentence report before sentencing a criminal defendant to community control sanctions.

Attorneys for Richmond appealed the decision to the Ohio Supreme Court.

Richmond’s attorneys argue that the state cannot identify anything in the trial court’s proceedings that shows that the sentence in this case was inappropriate. When no objection is made at trial, his attorneys assert that the Supreme Court need only focus on whether there has been either structural or plain error.

“Structural error is always a constitutional error,” they contend, and in this case there is no constitutional requirement for a presentence report. Rather, the Eighth District in its decision relied on statute, R.C. 2951.03(A)(1), and an Ohio rule governing criminal cases, Crim.R. 32.2.

A plain error by the trial court must affect substantial rights, which Richmond’s attorneys assert has been interpreted to mean that the error affected the outcome of the trial. They argue that the state has not and cannot show that the sentence in this case would have been different if the court had considered a presentence report. As a result, they contend that the Eighth District should have affirmed the trial court’s sentence: “The Eighth District’s remand of Mr. Richmond’s case for resentencing for want of a [presentence investigation report] that no one requested is a waste of resources, further prolongs a case that should be over, and should be rejected by this Court.”

The state’s attorneys make arguments in this case similar to those in State v. Amos, which the Supreme Court is scheduled to consider first during these oral arguments. As in that case, they assert that Ohio law requires a trial court to first obtain a presentence investigation report before it can impose a sentence of community control.

They point to Crim.R. 32.2, which states:

In felony cases the court shall, and in misdemeanor cases the court may, order a presentence investigation and report before imposing community control sanctions or granting probation.

They also cite R.C. 2951.03(A)(1):

No person who has been convicted of or pleaded guilty to a felony shall be placed under a community control sanction until a written presentence investigation report has been considered by the court.

“Accordingly, a presentence investigation report was mandatory under the circumstances of [d]efendant’s case,” they assert, but that mandatory requirement is not dependent on a request from the parties for a presentence report. In support of this argument, they present a chart in their brief citing at least one case in each Ohio appellate district that has recognized this trial court duty when issuing community control sanctions for felony offenders.

The state’s attorneys further contend that the Eighth District in this case correctly held that the trial court must obtain and review a presentence investigation report prior to sentencing a person convicted of a felony to community control.

With regard to the Ohio Supreme Court’s decision in State v. Adams (1988), the state’s attorneys argue that the facts there are clearly distinguishable from this case. In Adams, the defendant was sentenced to a prison term rather than to community control. “Ohio law differentiates between the discretionary nature of ordering a presentence report when a prison term is imposed, versus the mandatory nature of ordering a presentence report when a community control sanction is imposed,” they assert. In this case, unlike in Amos, they contend that the Eighth District correctly held that sentencing Richmond without a presentence report was contrary to law.

Ultimately, the state’s attorneys ask the court to uphold the Eighth District’s ruling in this case and overturn the Eighth District’s decision in Amos.

Contacts
Representing Christopher Richmond: John Martin, 216.443.3675

Representing the State of Ohio: Kristen Sobieski, 216.698.2226

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Under a Lifetime Driver’s Suspension, When Are Limited Driving Privileges Allowed?

State of Ohio v. Giovanni Manocchio, Case no. 2013-0095
Eighth District Court of Appeals (Cuyahoga County)

ISSUE: Does a trial court have the authority to grant limited driving privileges to a person who received a lifetime driver’s license suspension if the person has not met the criteria in R.C. 4510.54, which governs modification or termination of suspensions?

BACKGROUND:
Giovanni Manocchio pled guilty in spring 2003 to driving under the influence (DUI), a third-degree felony because he had three earlier convictions. The court sentenced him to one year in prison, imposed a $1,000 fine, and ordered a lifetime suspension of his driver’s license.

Nine years later, Manocchio asked the trial court to restore some driving privileges. His lawyer told the court that Manocchio had participated in alcohol treatment programs. He sought driving privileges with the installation of an ignition interlock, to prevent him from driving if impaired, and he would use specialized license plates for DUI offenders. The trial court granted him driving privileges limited to daytime hours, contingent on the use of the interlock device and restricted plates.

In an appeal to the Eighth District Court of Appeals, the state argued that Manocchio was prohibited from receiving a change to his lifetime suspension until 15 years after it began – based on R.C. 4510.54, which details the criteria required to modify or terminate certain driver’s license suspensions. However, the appeals court determined that giving Manocchio limited driving privileges was not a modification of his suspension under the statute.

The state sought review of the Eighth District’s decision by the Supreme Court, which agreed to hear the case.

Noting that a separate statute, R.C. 4510.021(A), allows courts to grant limited driving privileges in suspensions like Manocchio’s, the state’s attorneys point to the phrase “unless expressly prohibited by section 2919.22, section 4510.13, or any other section of the Revised Code” in that statute. They contend that R.C. 4510.54 is one of those other sections, so there is “no authority to exclude R.C. 4510.54 from the meaning of R.C. 4510.021(A).” Given that provision, they argue that trial courts may grant Manocchio limited driving privileges only if he meets the criteria in R.C. 4510.54, and, because 15 years have not passed, he has not met the requirements.

They also assert that giving Manocchio some driving rights qualifies as a modification of his suspension. “The original term of Manocchio’s suspension prohibited him from obtaining a driver’s license and driving a motor vehicle during his lifetime,” they write in their brief to the court. “A term of the suspension – a complete prohibition against driving – has been modified – Manocchio may now drive. Manocchio’s suspension has been modified and altered.”

Manocchio’s attorneys contend that R.C. 4510.54 does not “expressly prohibit” a court from giving a person limited driving privileges because the statute never mentions limited driving privileges at all. The Eighth District held, and they agree, that a “modification” and “limited driving privileges” are different. When all the relevant statutes are considered together, Manocchio’s attorneys ask, “[W]hy would the phrase ‘limited driving privileges’ be used numerous times but then forsaken in one section if that lone section was meant to apply to ‘limited driving privileges?’”

They assert that the term “modification” in R.C. 4510.54 is “a catch-all” meant to address issues that are not mentioned in other statutes, but “limited driving privileges” is a phrase clearly used in several other sections. Another statute, R.C. 4510.13(A)(5)(g), instead applies to Manocchio, they argue, and that section permits driving privileges after three years and with an ignition interlock device.

Contacts
Representing the State of Ohio: Mary McGrath, 216.443.7800

Representing Giovanni Manocchio: John Mizanin, 216.566.9477

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Does the City of Cleveland’s Law Requiring People to Obtain a Permit to Remain in Public Square Overnight Violate Free Speech?

City of Cleveland v. Erin McCardle and Leatrice Tolls, Case no. 2013-0096
Eighth District Court of Appeals (Cuyahoga County)

ISSUE: Is Cleveland’s ordinance requiring a permit to conduct an activity between 10 p.m. and 5 a.m. in Public Square a constitutional, content-neutral restriction on the area’s use that is narrowly tailored to meet a significant government interest and allowing for alternative channels of communication, or does the law violate the constitutional rights to freedom of speech and assembly?

BACKGROUND:
Around 10:30 p.m. on October 21, 2011, during an Occupy Cleveland event in the city’s Public Square protesting economic inequality, police officers told participants they needed to leave the area. A city ordinance prohibits activities in the square between 10 p.m. and 5 a.m. without a permit. Several people remained, including Erin McCardle and Leatrice Tolls, and they were arrested and charged with trespassing. In court, McCardle and Tolls separately pled no contest to violating the ordinance, and they were sentenced with fines.

Each appealed to the Eighth District Court of Appeals, which consolidated the cases for argument and its decision. The court reversed the trial court, holding that Cleveland’s law violated McCardle’s and Tolls’s First Amendment rights to free speech and assembly.

The City of Cleveland appealed the decision to the Ohio Supreme Court.

The city’s attorneys argue that, while the Eighth District correctly determined that the city’s ordinance is content-neutral, the appellate court incorrectly held that the city did not have substantial and significant government interests in enacting and enforcing the ordinance. The attorneys assert that the law was designed to serve vital government interests, such as controlling crowds, vehicles, and pedestrian traffic; maintaining the park and protecting it from overuse and unsanitary conditions; preventing dangerous and illegal uses; and more. The curfew and permit option are supported by “decades of judicial precedent,” they contend.

They also argue that the city ordinance only needs to meet an intermediate level of scrutiny to be constitutional, but the appeals court incorrectly held that the city had to meet a higher, strict scrutiny standard. For laws that are neutral with regard to the content of the speech being affected, they assert that the government must show that it has a substantial or significant interest for the law to be constitutional. However, when a law restricts speech based on its content, they contend that the government must show that it has a compelling interest to prohibit the speech for the restriction to be constitutional. The Eighth District defined Cleveland’s law as content-neutral but then held, incorrectly they assert, that the city had to show a compelling interest to restrict speech in the park.

Instead, they contend that the ordinance meets the lower, intermediate level of scrutiny by being narrowly tailored to advance the city’s significant interests. “[I]t only prohibits presence in the park between the hours of 10:00pm and 5:00am, and allows unfettered and completely unrestricted access at all other times of day,” they write in their brief to the court. “Taking into account those seventeen hours of unrestricted time, and the minimalist nature of the ordinance’s restrictions during the seven hours at issue, the Eighth District’s characterization that the ordinance is a complete or wholesale ban on expression is without merit.”

They note that the appellate court’s decision proposes narrowing the ordinance by allowing open access at night to those people wanting to use the square for speech-related activity. If this proposal were implemented, the city’s attorneys argue that a city official then would have to evaluate the content of that use, which would transform the law into an impermissible, unconstitutional content-based restriction.

Attorneys for McCardle and Tolls assert that none of the interests the City of Cleveland claims as justification are actually furthered by the law, and the ordinance is not narrowly tailored in the way the First Amendment requires. For example, the city claims that illegal activity is prevented by the law, yet, McCardle’s and Tolls’s attorneys argue, a person walking through Public Square may litter or damage park property or engage in other activity harmful to the public – and may do so at any time, not just during the curfew hours. So, preventing illegal activity is not furthered by the law, they contend.

While the law prohibits a physical presence and speech during nighttime hours on Public Square, it does not prevent those activities in other public forums, such as the adjacent sidewalks, the attorneys argue. As a result, the law is “underinclusive,” they contend, and the U.S. Supreme Court ruled in 2011 (Brown v. Entertainment Merchant’s Assoc.) that “‘[u]nderinclusiveness raises serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint.’”

They also assert that the ordinance in fact is content-based rather than content-neutral. The language in the law requires the official granting permits to consider whether the activity would interfere with or detract from public health, wealth, and safety; may incite violence, crime, or disorderly conduct; and create burdensome expenses. Because an official must consider the possible response to and expected message of someone seeking a permit, the attorneys claim that the law is not “a content neutral time, place and manner restriction” on speech, so the law must serve a “compelling” government interest to be upheld. The city has not demonstrated a compelling interest here, they assert.

“The essence of free expression is that some messages might not be welcome, but it is no basis to deny a permit,” they argue. “[F]rom a First Amendment perspective, [the law] vests unbridled and impermissible discretion to the licensing official, which renders the [o]rdinance unconstitutional on its face.”

Amicus curiae (friend of the court) briefs supporting the City of Cleveland’s position have been submitted by the State of Ohio and the Ohio Municipal League.

On November 7, the Supreme Court granted a motion to allow the City of Cleveland and the State of Ohio to divide the city’s 15 minutes of oral argument.

Copies of the amicus briefs and all other filings in the case can be accessed by going to the following link: http://www.supremecourt.ohio.gov/Clerk/ecms/searchbycasenumber.asp and entering the case number, 2013-0096, in the search box.

Contacts
Representing the City of Cleveland: Connor Nathanson, 216.664.4825

Representing the State of Ohio: Eric Murphy, 614.466.8980

Representing Erin McCardle and Leatrice Tolls: John Murray, 216.781.5245

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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.