Tuesday, June 16, 2020
State of Ohio v. LaShawn Pettus, Case Nos. 2019-0914 and 2019-1027
First District Court of Appeals (Hamilton County)
State of Ohio v. Albert Townsend, Case No. 2019-0606
Eighth District Court of Appeals (Cuyahoga County)
State of Ohio v. Mark A. Price, Case Nos. 2019-0822 and 2019-0729
Eighth District Court of Appeals (Cuyahoga County)
State of Ohio v. Lamont Rue, Case Nos. 2019-0897 and 2019-1128
Eleventh District Court of Appeals (Trumbull County)
Can Bank Forgeries Be Combined to Make Them Felonies?
State of Ohio v. LaShawn Pettus, Case Nos. 2019-0914 and 2019-1027
First District Court of Appeals (Hamilton County)
ISSUE: Does R.C. 2913.61(C)(1) allow theft offenses to be combined only when the victims are elderly or disabled, in the military, or the spouse of someone in the military?
BACKGROUND:
In December 2017, LaShawn Pettus was convicted in Hamilton County Common Pleas Court of 11 counts of forgery and four counts of theft. Pettus had opened accounts, deposited fraudulent checks, and withdrawn money at multiple branches of four banks from June 18 through July 8, 2016. The losses totaled approximately $20,000: U.S. Bank, $12,985; Fifth Third Bank, $4,747; PNC Bank, $2,000; and Huntington Bank, $400. The trial court sentenced Pettus to 60 months in prison.
Pettus appealed to the First District Court of Appeals, which upheld his convictions and sentence. The First District also determined that its decision conflicts with State v. Phillips, a 2010 ruling from the Twelfth District Court of Appeals.
The Ohio Supreme Court agreed to review the conflict and also accepted an appeal from Pettus. The Court consolidated the cases for briefing and oral argument. To comply with state directives during the COVID-19 pandemic, the Court will hear the cases via videoconference.
Man Contends Law Combining Offenses Doesn’t Apply to Banks
In Pettus’ indictment, the prosecutors combined, or “aggregated,” the individual thefts into single theft offenses for each bank, making the thefts felonies. Each act alone was a misdemeanor theft offense, Pettus notes. Combining the charges was based on R.C. 2913.61(C)(1).
Pettus argues that R.C. 2913.61(C)(1) applies only when the victims are elderly, disabled, in the military, or spouses of someone in the military. Because his thefts didn’t involve any of these categories of individuals, combining the multiple thefts at each bank into one offense wasn’t permitted under the statute, he contends.
He points out that the Twelfth District in Phillips concluded that all of division (C)(1) is limited to thefts involving the classes of victims identified in the law. Although the First District ruled that only crimes pertaining to R.C. 2913.31 (forged identification cards) or R.C. 2913.43 (securing writings by deception) apply to those groups of victims, that view contradicts the statute’s plain language, he asserts. He concludes there is no reason these groups don’t apply to all of the offenses listed in R.C. 2913.61(C)(1).
State Argues Certain Thefts Are Combined for Any Victim
The Hamilton County Prosecutor’s Office notes that the General Assembly listed the theft offense – R.C. 2913.02 – twice in each of the relevant sentences of the statute. There would be no need to do that if all of violations listed had to involve the elderly or disabled, or someone in the military or a military member’s spouse, the prosecutor argues.
The prosecutor states that the law gives greater protection to the elderly and disabled victims, or military members and their spouses, for “violations of, attempts to commit a violation of, conspiracies to violate, or complicity in violations of” seven different sections of the Revised Code. However, the banks that were victims of Pettus’ thefts also receive the benefits of this law combining the offenses if the thefts were completed and the defendant is the principal offender, the prosecutor argues.
The office maintains that no other court has adopted the Twelfth District’s holding on this issue. Any R.C. 2913.02 theft offenses are combined under R.C. 2913.61(C)(1) if committed by the offender “in the offender’s same employment, capacity, or relationship to another,” the office states, noting that Pettus had a relationship with the banks. The office concludes that the First District ruling was correct.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket (2019-0914 and 2019-1027).
Contacts
Representing LaShawn Pettus: James Anzelmo, 614.532.5123
Representing the State of Ohio from the Hamilton County Prosecutor’s Office: Scott Heenan, 513.946.3227
Did Law Change, Clarify, or Substantially Alter Sexually Violent Predator Sentence?
State of Ohio v. Albert Townsend, Case No. 2019-0606
Eighth District Court of Appeals (Cuyahoga County)
ISSUE: Did a 2005 amendment to R.C. 297.01 (H)(1) clarify, or substantially change, the definition of “sexually violent predator” for the purpose of enhancing a criminal sentence?
BACKGROUND:
Cuyahoga County’s initiative to examine previously untested rape kits led to the 2017 indictment of Albert Townsend for three rapes committed between 2003 and 2006. Two of the rapes occurred prior to April 29, 2005, and one after. As part of the indictment, prosecutors sought the inclusion of a sexually violent predator specification for all three attacks.
In April 2018, Townsend was convicted of most of the charges against him, and a jury also found Townsend guilty of the sexually violent predator specifications. He was sentenced to consecutive terms of five years to life in prison and 10 years to life in prison.
Townsend appealed his conviction to the Eighth District Court of Appeals, making several arguments. One of his arguments was that the sexually violent predator specifications elevated his sentence from a definite prison term to an indefinite term with the potential for life in prison. Because the law changed on April 29, 2005, imposing the specifications on the two rape charges that occurred prior to that date violated the ex post facto clause of the U.S. Constitution and the Ohio Constitution’s ban on retroactive laws, Townsend claims.
The Eighth District affirmed his conviction for the crimes, but found the trial court improperly imposed the specifications for the two counts prior to April 2005. Both Townsend and Cuyahoga County prosecutors appealed the decision to the Ohio Supreme Court.
The Court declined to review Townsend’s appeal, but accepted the prosecutor’s cross-appeal, and agreed to consider whether the imposition of the sexually violent predator enhancements violated Townsend’s constitutional rights. To comply with state directives during the COVID-19 pandemic, the Court will hear the appeal via videoconference.
State Courts Differ on Law’s Application
Ohio adopted a sexually violent predator specification in January 1997. The law allows prosecutors to seek the specification to enhance the penalty for certain sexually related offenses. As enacted, the law defined a sexually violent predator as “a person who has been convicted of or pleaded guilty to committing” a sexually violent offense and who “is likely to engage in the future in one or more sexually violent offenses.”
The law requires the state to prove beyond a reasonable doubt that the person will likely to engage in future offenses, and the law provides several factors that a jury must consider to determine if the state has proven its case.
Ohio courts interpreted the law differently, with some allowing the specification to be sought during a suspect’s first indictment for a sexually related offense. Other courts interpreted the law to mean the suspect had to have been previously convicted or pleaded guilty to an unrelated sexually violent offense before the specification could be requested in the current case.
Ohio lawmakers were aware of the split among appellate courts and proposed a change in the language of the law to replace “has been convicted of or pleaded guilty to committing” with “commits.” The prosecutors maintain this step was taken to clarify that the designation, found in R.C. 2971.01(H)(1), was always intended to apply to first-time prosecutions.
As lawmakers were debating the issue, the Ohio Supreme Court was considering the question in its State v. Smith case. In December 2004, the Court ruled the law was ambiguous and that the specification couldn’t be sought in the same indictment as the sexual offense if there had been no prior conviction or plea to a sexually related offense.
A week after the Smith decision, the Ohio General Assembly adopted House Bill 150, with the change to R.C. 2971.01(H)(1), and the revised law took effect on April 29, 2005.
Law Not Retroactive, Prosecutor Asserts
The U.S. Supreme Court has explained the four types of laws the ex post facto clause of the constitution prohibits. One of those types are laws that change the punishment or inflict a greater punishment, the Cuyahoga County Prosecutor’s Office explains. The Eighth District ruled the sexually violent predator specification enhanced the punishment Townsend received and was a violation of the ex post facto clause. The prosecutor maintains that the U.S. Supreme Court has held the clause doesn’t pertain to laws that clarify existing law, and H.B. 150 was only a clarification. Because it was a clarification, it could be applied to all of Townsend’s rape charges and sought in the same indictment, the prosecutor maintains.
The prosecutor argues the law was a clarification because the change didn’t enhance the punishment Townsend faced. The new law still applied to the same sexually related offenses as in the past, and the state still had the same burden to prove Townsend would likely engage in future sexually violent crimes, the prosecutor maintains. The office concludes the only thing the legislature accomplished was to clarify how the 1997 was supposed to be applied.
The change also didn’t violate the Ohio Constitution’s restriction on retroactive laws, the prosecutor asserts. To make a law retroactive, the legislature must express the intent to apply the law retroactively, and the law cannot impact a “substantial” right, the prosecutor explains. Because the law only clarified how it is to be applied, the change wasn’t substantial and didn’t violate Townend’s state constitutional rights, the prosecutor concludes.
Legislators Can’t Clarify Law after Court Rules, Offender Asserts
State lawmakers can change a law to apply to future cases, but cannot retroactively overrule the Ohio Supreme Court’s interpretation of what a prior law meant, Townsends argues. The Eighth District correctly ruled that the specifications couldn’t be applied to the charges for crimes committed before the April 2005 effective date of revised law, he argues.
Townsend notes the Court in Smith stated it declined to “subject first-time offenders of certain sexual offenses to such draconian sentence enhancements without an unambiguous mandate from the General Assembly.” The amendment arrived shortly after and made a substantive change in the law, he argues. Because the change was substantive and made after a Court pronouncement of how the earlier law applied, it can only be imposed for offenses after the law’s effective date, he maintains.
Because the Supreme Court ruled the specification could be sought only against those with a prior conviction, subjecting a person in the same indictment as the first offense would inflict a greater punishment, Townsend asserts. That violates the ex post facto law, and makes the imposition of specifications on him a violation of his federal and state constitutional rights, Townsend concludes.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Daniel Van, 216.443.7800
Representing Albert Townsend from the Ohio Public Defender’s Office: Patrick Clark, 614.466.5394
In Drug Dealer’s Trial for Manslaughter, Was Jury Given Correct Guidance on Causation?
State of Ohio v. Mark A. Price, Case Nos. 2019-0822 and 2019-0729
Eighth District Court of Appeals (Cuyahoga County)
ISSUE: Must a jury be instructed that a drug distributor is responsible for causing the death of the user of those drugs only when the evidence proves that the distributor’s drugs were an independent cause of death and that, but for the ingestion of those drugs, the user wouldn’t have died?
BACKGROUND:
In the early morning hours of Aug. 1, 2016, James Dawson contacted his neighbor Tierra Fort to buy heroin. Fort contacted Mark Price to make the purchase, and he traveled to Fort’s Lakewood apartment to deliver the drugs. Fort kept some of the drugs and sold the rest to Dawson for $100.
Lakewood police were called at 11 a.m. on Aug. 2 about an apparent overdose in the apartment building. The police discovered Dawson dead on his living room couch. In the apartment, investigators found a residue on the kitchen table, later determined to be a mixture of heroin and fentanyl. They also noticed more residue, which wasn’t tested, on Dawson’s nightstand, plus six prescription pills and empty prescription bottles on the floor near Dawson’s body.
Price was indicted on 22 counts, including involuntary manslaughter and two counts of corrupting another with drugs, a violation of R.C. 2925.02(A)(3).
The county medical examiner concluded that Dawson’s death was caused by acute intoxication from the combined effect of anti-psychotic medication and fentanyl. The medical examiner determined that Dawson didn’t die from a heroin overdose. Dawson also suffered from two heart conditions and lung disease, according to the medical examiner. However, an expert for the defense testified at the trial that the levels of the anti-psychotics and the fentanyl were too low to have caused his death, and that Dawson’s body had already metabolized the heroin by the time of his death.
Man Found Not Guilty of Manslaughter, but Guilty on Other Charges
The Cuyahoga County jury acquitted Price of involuntary manslaughter, but convicted him for corrupting another with drugs and the remaining counts. The court imposed a 16-year prison sentence.
Price appealed, and the Eighth District Court of Appeals upheld the convictions. The appeals court determined that its ruling conflicts with a 2018 decision from the Fifth District Court of Appeals (State v. Kosto). Price stated that a few other state appellate courts offer conclusions similar to the Eighth District’s in his case.
The Ohio Supreme Court agreed to review the conflict among the state’s appellate courts. The Supreme Court also accepted Price’s appeal on one issue regarding instructions given to the jury, but declined to consider arguments related to whether Dawson’s death may have been suicide. The Court consolidated the cases for briefing and oral argument. To comply with state directives during the COVID-19 pandemic, the Court will hear the case via videoconference.
Drugs Sold Must Be More Than Contributing Factor in Man’s Death, Dealer Maintains
Price’s brief argues that to be held criminally responsible for Dawson’s death, Price must have supplied drugs that, “but for” that conduct, Dawson wouldn’t have been harmed. The drugs can’t be merely a contributing factor in Dawson’s death along with other possible causes, the brief states. The argument is based on Burrage v. United States, a 2014 U.S. Supreme Court ruling.
Burrage interpreted a federal law imposing a 20-year mandatory minimum sentence on a defendant who illegally distributes certain drugs when “death or serious bodily injury results from the use of such substance.” The U.S. Supreme Court ruled that “[t]he language Congress enacted requires death to ‘result from’ use of the unlawfully distributed drug, not from a combination of factors to which drug use merely contributed.” The Court added that “… at least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision … unless such use is a but-for cause of the death or injury.”
Price’s brief states that the jury instructions during his trial were flawed because the term “cause” wasn’t defined as meaning “independently sufficient cause” of the victim’s death or serious bodily injury. Without this guidance, the jury couldn’t correctly decide to what extent the drugs from Price must contribute to Dawson’s death for Price to be convicted, the brief argues. It contends there is reasonable doubt about whether Dawson actually died from an overdose, died from an overdose of fentanyl supplied by someone else, or died by suicide.
Price points to the medical examiner’s testimony that Dawson had metabolized heroin and fentanyl at the time of his death, indicating he had taken the mixture up to four hours before he died. This suggests the drugs supplied by Price weren’t the cause of Dawson’s death, Price’s brief maintains, adding that Fort didn’t die after taking the same drugs.
Although Price requested an instruction for the jury based on Burrage, the state countered that Burrage wasn’t relevant because it interpreted a federal statute. The trial court rejected the request. The jury instructions provided confused the jury as to what was necessary to find him guilty, Price asserts. He asks for a new trial with the Court’s clarification about the correct standard of causation the jury should use.
County Public Defender Describes Instructions as ‘Woefully Inadequate’
The Cuyahoga County Public Defender’s Office filed an amicus curiae brief supporting Price’s position. The office notes that it represents defendants charged with homicides based on distributing drugs or corrupting another with drugs.
“The causation instructions in this case were woefully inadequate to the task at hand,” the public defender’s brief states. “What might suffice in a civil case or a more straightforward criminal case is not satisfactory in a complex, multi-faceted drug overdose involving multiple potential causes and actors….”
The Court will allow the public defender to share the 15 minutes allotted to Price for oral argument.
Jury Was Instructed on Correct Causation Tests, Prosecutor Argues
The offense of corrupting another with drugs, found in R.C. 2925.02(A)(3), states, “No person shall knowingly…[b]y any means, administer or furnish to another or induce or cause another to use a controlled substance, and thereby cause serious physical harm to the other person, or cause the other person to become drug dependent.”
The Cuyahoga County Prosecutor’s Office contends there are two parts to determining causation in this case. The first is the “but for” test – that the death wouldn’t have occurred without Price’s conduct, the office states. Second, quoting the jury instructions, is that the accused is responsible for “the natural and foreseeable consequences or results that follow in the ordinary course of events from the act or failure to act.” The prosecutor maintains the jury in Price’s trial was instructed on both of these aspects.
The prosecutor asserts that Price is arguing Burrage requires both that Price’s conduct was the “but-for” cause of Dawson’s death and that the drugs were independently sufficient to cause the death. Noting it was unclear in Burrage which drug caused the victim’s death, the prosecutor quotes the U.S. Supreme Court, which recognized causation is established “when multiple sufficient causes independently, but concurrently, produce a result.”
In Kosto, the conflicting case from the Fifth District, a man who had heroin, cocaine, and marijuana in his system died, and his heroin dealer was convicted of involuntary manslaughter and corrupting another with drugs, among other charges. The Fifth District reversed the convictions, concluding that the prosecutors failed to give sufficient evidence to prove involuntary manslaughter and corrupting another with drugs. The prosecutor’s brief in this case states that Kosto was wrongly decided because the federal law is different than Ohio’s corrupting-another-with-drugs offense, and Ohio law defines causation differently. Burrage doesn’t apply to the “cause serious physical harm” requirement in Ohio’s statute, the prosecutor concludes.
Attorney General Argues Jury Was Properly Instructed
An amicus brief from the Ohio Attorney General’s Office supports the Cuyahoga County prosecutor. Noting the opioid epidemic has led to many deaths and serious consequences in Ohio, the office explains that it wants to ensure that the state’s drug laws are enforced and properly interpreted, and that drug dealers are appropriately punished. The office maintains that the trial court adequately instructed the jury in this case.
The prosecutor and the attorney general will share the time given for the prosecutor’s arguments before the Court.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket (2019-0822 and 2019-0729).
Contacts
Representing Mark A. Price: Susan Moran, 440.617.1528
Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Katherine Mullin, 216.698.6454
Representing the Cuyahoga County Public Defender’s Office: Robert McCaleb, 216.698.3207
Representing the Ohio Attorney General’s Office: Benjamin Flowers, 614.466.8980
Does Absconding Automatically Extend Community Control Sanctions?
State of Ohio v. Lamont Rue, Case Nos. 2019-0897 and 2019-1128
Eleventh District Court of Appeals (Trumbull County)
ISSUES:
- When an offender placed on a term of community control absconds, does the community control sentence toll automatically from the time the offender absconds without any additional action from the state?
- When the length of a community control term is extended by a tolling event, does the trial court retain jurisdiction to consider a community control violation after the time of the community control sentence elapsed?
BACKGROUND:
In 2012, Lamont Rue pleaded guilty to burglary. On May 24, 2012, Rue was sentenced to five years of community control sanctions and ordered to pay restitution. The sentence was set to expire on May 24, 2017.
Rue failed to report to his probation officer in November 2016, and in March 2017, a warrant was issued for Rue’s arrest for that violation. In April 2017, a little more than a month before his five-year community control sentence was to expire, he appeared in court and pleaded guilty to violating his community control sanctions. The trial court extended Rue’s community control term until he paid his restitution in full. Rue didn’t object to the extension.
Two months later, Rue again failed to report to his probation officer, and in December 2017, another arrest warrant was issued. He was arrested in July 2018, and a Trumbull County trial court conducted a hearing on the matter. At the hearing, Rue’s attorney argued the court lacked jurisdiction to revoke Rue’s community control because the five-year term expired in 2017. The court rejected the argument, and sentenced Rue to two years in prison for the offense.
Rue appealed to the Eleventh District Court of Appeals, which vacated Rue’s conviction, stating that community control revocation proceedings must start during the term of supervision. The Eleventh District certified that its decision was in conflict with a Ninth District Court of Appeals decision.
Trumbull County prosecutors appealed the reversal of Rue’s conviction to the Ohio Supreme Court, which agreed to hear the case and address the conflict. To comply with state directives during the COVID-19 pandemic, the Court will hear the appeal via videoconference.
Control Automatically Extended, Offender Still under Supervision, Prosecutors Argue
The Trumbull County Prosecutor’s Office explain that, under R.C. 2929.15, the maximum time an offender can be placed under community control is five years. However, under R.C. 2951.07, the time period may be extended, or tolled, if the offender is incarcerated for another offense, or absconds. The law states the “period of community control ceases to run until the time that the offender is brought before the court.”
The office argues the extended time clock started to run from the time Rue failed to report to his probation officer and ended when he appeared in court. The prosecutor maintains that the first violation tolled Rue’s community control time from November 2016 until his April 2017 hearing, which was five months and 17 days. That automatically extended his community control until Nov. 10, 2017, the office argues. When Rue failed to report a second time in June 2017, that violation took place while he was under the extended community control, the prosecutor maintains, and the trial court retained jurisdiction over Rue’s supervision.
The prosecutor argues the offender’s action — absconding — automatically extends the time period of control, and the state didn’t have to take any further action to notify the offender that the community control sanctions were extended. The prosecutor notes the Eleventh District’s order conflicts with the Ninth District’s State v. Meyer decision, which allowed a trial court to retain jurisdiction to determine if a tolling event occurred, even though an arrest warrant was issued to the offender after her two-year community control sanction ended.
Court Lost Jurisdiction Because State Failed to Act Promptly, Offender Argues
Rue argues the Eleventh District correctly ignored the Ninth District’s decision and found that a warrant for arrest for a community control violation must take place during the time supervision is in place. Rue received the maximum five-year period, which expired in May 2017, and the trial judge mistakenly extended community control for an indefinite period of time, he maintains. If Rue did “abscond,” then the control period tolled until November 2017, he asserts, and the state didn’t issue a second arrest warrant for him until December 2017, which is a month after his term ended. He argues the state had between June, when he failed to report to his probation officer a second time, and November to notify Rue of an intent to revoke his community control.
Rue maintains the Supreme Court has found that a mere failure to report doesn’t constitute “absconding,” but rather more is required. “Abscond” has a clear legal meaning that requires the offender to be hiding or attempting to avoid being served with a warrant. The trial court didn’t discuss, let alone determine, whether Rue had absconded before sentencing him to two years in prison.
Rue notes the Court’s 2011 State ex rel. Hemsley v. Burnham Unruh decision indicates that revocation proceedings must commence prior to the expiration of the community control term. Under the decision, the Trumbull County court could have conducted the proceedings after the term ended, but that it had to notify Rue of its intent in May 2017, or at the latest in November 2017. Because a warrant wasn’t issued until December 2017, the time had expired and the court lacked the authority to sentence him to prison, Rue concludes.
Friend-of-the-Court Briefs Submitted
An amicus curiae brief supporting the Trumbull County prosecutor’s position has been submitted by the Ohio Attorney General’s Office. The Summit County Prosecutor’s Office also filed an amicus brief supporting the prosecutor.
The Ohio Public Defender’s Office submitted an amicus brief supporting Rue.
Oral Argument Time Divided
The Court has allowed the Trumbull County prosecutor to share oral argument time with the attorney general’s office.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket (2019-0897 and 2019-1128).
Contacts
Representing the State of Ohio from the Trumbull County Prosecutor’s Office: Ashleigh Musick, 330.675.2426
Representing Lamont Rue: Michael Partlow, 330.400.2290
Representing the Ohio Attorney General’s Office: Benjamin Flowers, 614.466.8980