Court News Ohio
Court News Ohio
Court News Ohio

Tuesday, Jan. 13, 2015

Calvin S. McKelton v. State of Ohio, Case no. 2010-2198
Butler County Common Pleas Court

Kristel Wilkins v. Sha’ste Incorporated et al., Case no. 2013-1794
Eighth District Court of Appeals (Cuyahoga County)

Akron Bar Association v. Larry D. Shenise, Case no. 2014-1388
Summit County

Death Penalty

Calvin S. McKelton v. State of Ohio, Case no. 2010-2198
Butler County Common Pleas Court

Calvin S. McKelton is appealing his convictions and death sentence for the murder of a girlfriend and the murder of an acquaintance believed to have witnessed the murder and helped cover it up.

McKelton and Margaret Allen of Fairfield lived together for a few years. In July 2008, Allen was strangled, and her body was found in Schmidt Field in Cincinnati. Early the next year, a friend of the couple’s, Germaine Evans, was also murdered.

McKelton was arrested and charged with both murders. The case was considered by a jury, which found McKelton guilty in October 2010 of murdering Allen. It also convicted him of killing Evans to prevent him from testifying about Allen’s death – an aggravating factor that allows for a death sentence. McKelton was also convicted of felonious assault, domestic violence, arson, tampering with evidence, and gross abuse of a corpse. The trial court agreed with the jury’s recommendation to impose the death penalty.

In the appeal to the Supreme Court, McKelton’s attorneys make 21 arguments to persuade the court to overturn McKelton’s convictions, give him a new trial, or impose a life sentence.

Claims from the Defendant
Among the assertions made in McKelton’s brief to the court:

  • McKelton’s main lawyer at trial, Richard Goldberg, had to withdraw from the case a few weeks before the trial because the state informed him that one of its witnesses was someone Goldberg also represented. McKelton’s other two attorneys had been appointed by the court to focus on the death penalty parts of the case. Those attorneys asked to withdraw as his counsel after Goldberg’s departure, but the court denied the motion and their requests to postpone the proceedings. In this appeal, McKelton’s attorneys contend that the late notice and breakdown led to ineffective assistance of counsel for McKelton and denied him a fair trial.
  • They argue the state didn’t have appropriate grounds to withhold the names of eight witnesses until the night before trial because McKelton was in prison and couldn’t jeopardize the safety of any witnesses. They also maintain that defense counsel wasn’t given adequate time to review information from the witnesses to prepare for trial.
  • They contend that the potential jurors heard about media coverage of the case during voir dire, which violated McKelton’s right to an impartial jury. They assert that potential jurors should’ve been questioned individually to prevent tainting the jury.
  • They argue that statements about domestic abuse made by Allen to her friends before her death were inadmissible during the trial. They assert the court wrongly allowed the hearsay comments under the “forfeiture by wrongdoing exception,” which requires McKelton to have made Allen unavailable to testify as a witness. McKelton’s attorneys counter that McKelton wasn’t charged with killing Allen to keep her from testifying, and there is no evidence that Allen was planning to report any domestic violence to authorities. The state’s witnesses all testified that McKelton got into a physical fight with Allen and accidentally killed her, they maintain.

Responses from the State
On behalf of the state, attorneys from the Butler County Prosecutor’s Office respond with several arguments:

  • They maintain McKelton wanted to replace his court-appointed counsel because he disagreed with their recommendation that he consider a plea carrying no death sentence. This reason isn’t an appropriate ground for discharging counsel, the prosecutors contend. They also argue that McKelton’s request for a continuance was connected with his motion to get new lawyers, so no delay was needed once the court denied the appointment of new counsel.
  • They assert that McKelton has shown a willingness to intimidate possible witnesses and was convicted once for the offense. The prosecutors contend that eight of their witnesses wouldn’t have testified if their names had been disclosed before trial, and withholding their names until the night before is allowed by court rules for criminal cases.
  • On the issue of individual voir dire, the state maintains that the Ohio Supreme Court has refused to require individual questioning of potential jurors in death penalty cases. It was proper for the prosecution to ask the jury pool about their exposure to pretrial publicity, and the court also cautioned jurors that news reports aren’t reliable and aren’t evidence in a trial, the attorneys argue.
  • They maintain that the U.S. Supreme Court held in a case involving domestic violence that hearsay evidence can be admitted when the person who made the statements is unavailable because of the defendant’s actions and when the conduct was motivated in part to silence the person. The state concludes that testimony from two of Allen’s nieces, who had each called police about separate instances of violence in the house, and other evidence show that McKelton intended to isolate Allen and keep her from reporting any abuse to police or cooperating in a criminal case, which permits the admission of Allen’s prior statements.

- Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Calvin S. McKelton: Pamela Prude-Smithers, 614.466.5394

Representing the State of Ohio from the Butler County Prosecutor’s Office: Lina N. Alkamhawi, 513.887.3474

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Can Attorney Fees Be Awarded When Legal Services Were Provided Pro Bono?

Kristel Wilkins v. Sha’ste Incorporated et al., Case no. 2013-1794
Eighth District Court of Appeals (Cuyahoga County)

ISSUE: May a court award attorney fees as a discovery sanction regardless of whether the party seeking the award is obligated to pay for the legal services provided?

At the beginning of 2008, Kristel Wilkins purchased a distressed home in Cleveland and hired Sha’ste Incorporated to renovate it for $30,900. Financing was provided by Wells Fargo, which issued checks to Wilkins and Sha’ste. Wilkins alleges that Sha’ste engaged in a scheme to funnel money and that Process to Closing (PTC) cashed checks with her forged signature.

Around September 2008, Wilkins realized something was wrong because no work had been completed. William Mason Jr. had been hired by Sha’ste to serve as project manager and was part owner of PTC as well. Shortly thereafter, Wilkins canceled the renovation contract.

In April 2010, Wilkins retained a law clinic at Case Western Reserve University School of Law to represent her in the home repair dispute. Because the clinic represents low-income clients, it doesn’t charge its clients attorney fees. Even though she was not being charged for legal services, Wilkins entered into an agreement that specifically contemplated attorney-fee awards and obligated her to pay certain litigation expenses.

After a complaint was filed against Sha’ste and the other parties, Wilkins made a discovery request concerning the checks that PTC cashed with her forged signature. PTC failed to respond to the discovery requests by the deadline.

Wilkins filed a motion to require PTC to answer its discovery and pay for her expenses regarding the request pursuant to a procedural rule in civil cases. PTC didn’t oppose the motion, and on November 22, 2011, the trial court granted Wilkins’ motion, including an award of $1,000 in attorney fees as a discovery sanction.

On Appeal
After Wilkins resolved her claims against other defendants, Wilkins dismissed her claim against PTC. However, PTC appealed the judgment for attorney fees. The company argued that a party cannot be awarded attorney fees as a sanction under Civ.R. 37 if the party has not paid nor has an obligation to pay attorney fees.

The appellate court ruled that Wilkins was not entitled to an award of attorney fees. It relied on Ohio case law, particularly the Ohio Supreme Court’s 2007 decision in State ex rel. Citizens for Open, Responsive & Accountable Govt. v. Register, where the court held that an “an award of attorney fees as sanction for a discovery violation must actually be incurred by the party seeking the award.” The appellate court reasoned that Wilkins didn’t actually incur any attorney fees so she wasn’t eligible to receive the award.

Wilkins appealed to the Supreme Court of Ohio, which agreed to hear the case.

Wilkins’ Arguments
Attorneys for Wilkins argue that a party is entitled to an award of attorney fees resulting from a sanction regardless of whether the party is required to pay for the legal services received. They contend that Register should be overturned, because Civ.R. 37 supports a trial court’s power to award attorney fees as a sanction in a discovery dispute. Civ.R. 37 states that if a motion is granted the court shall require the opposing party to pay “the reasonable expenses incurred in obtaining the order, including attorney’s fees.”

Wilkins’ attorneys also rely on U.S. Supreme Court case Blanchard v. Bergeron (1989). In
Blanchard, the court stated that the phrase “reasonable attorney’s fee” is based on the value of the
attorney-fee awards instead of the amount owed. The attorneys maintain that because they presented
the court with an affidavit of the reasonable hourly rates of the attorney and legal interns who worked on the case and the time spent preparing the motion that they have satisfied the requirement to receive attorney’s fees.

Process to Closing Does Not Respond
PTC didn’t submit a merit brief to the court and won’t be permitted to participate in oral arguments.

Amicus Briefs
An amicus curiae brief from several legal aid societies supporting the position of Wilkins has been submitted by:

  • Advocates for Basic Legal Equality, Inc.
  • Community Legal Aid Services
  • Legal Aid Society of Cleveland
  • Legal Aid Society of Columbus
  • Legal Aid Society of Southwest Ohio, LLC
  • Legal Aid Society of Western Ohio, Inc.
  • Ohio State Legal Services Association
  • Pro Seniors, Inc.
  • Southeastern Ohio Legal Services

An amicus brief from Ohio law firms supporting Wilkins’ position has also been submitted collectively by:

  • Baker & Hostetler
  • Benesch Friedlander Copland & Aronoff, LLP
  • Bolek Besser Glesius, LLC
  • Calfee, Halter & Griswold, LLP
  • Franz Ward LLP
  • Hanh Loeser & Parks, LLP
  • Roetzel & Andress, LPA
  • The Chandra Law Firm, LLC
  • Thompson Hine, LLP
  • Ulmer & Berne, LLP

Another amicus brief was filed collectively by the Cleveland Academy of Trial Attorneys and the Ohio Association for Justice backing Wilkins, and the State of Ohio also supports Wilkins in its amicus brief.

- Miriah Lee

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Kristel Wilkins: Andrew Pollis, 216.268.2769

Representing Process to Closing, LLC: William Moore, 216.771.6776

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Attorney Discipline

Akron Bar Association v. Larry D. Shenise, Case no. 2014-1388
Summit County

The Board of Professional Conduct (formerly known as the Board of Commissioners on Grievances & Discipline) has recommended that attorney Larry D. Shenise be suspended for two years from the practice of law but that both years be stayed provided Shenise adheres to certain conditions. In its report to the Ohio Supreme Court, the disciplinary board concluded that Shenise mishandled a client matter, didn’t have malpractice insurance during part of the time he represented clients, and displayed improper conduct toward a judge.

William Little and his father, Leonard, co-signed a lease for a mechanic’s garage in 2004. After a dispute with his brother-in-law’s company, which owned the garage, regarding an option-to-buy provision in the lease, William Little stopped paying rent. The company filed an eviction notice against the Littles in 2008, and the Littles hired Shenise to represent them. In May 2010, Judge Paul Gallagher granted a request for summary judgment in favor of the garage’s mortgage holder, Rundown Ghost Town, and ordered the Littles to pay $114,000.

The board determined that Shenise never told the Littles they were required to attend a deposition in August 2010 or about financial documents they needed to provide. Following further unanswered motions and court orders, the judge found William and Leonard in contempt and issued bench warrants for their arrest.

Following a car accident in January 2012, Leonard asked that police be called to file a report. When the officer checked his driver’s license, the warrant came up, and Leonard was taken to jail where he remained for six hours.

The Akron Beacon Journal published a story about the incident, which included comments from Shenise stating he wasn’t aware of the warrant for Leonard’s arrest, and had the court informed him, his clients would have appeared.

The board concluded Shenise didn’t provide competent representation to the Littles after the summary judgment decision, and he ignored discovery requests and the contempt motions. In addition, the board found that Shenise’s comments to the newspaper were degrading to Judge Gallagher and his staff.

Noting that Shenise has been representing the Akron police and fire departments in a separate class action lawsuit for many years, the board stated that an actual suspension isn’t needed to protect the public from Shenise and that the Littles’ case seems to be an isolated incident in his legal career. The board recommends that Shenise be placed on probation during the two-year suspension and that he pay $410 to Rundown Ghost Town for legal and court reporter fees, which the trial court had originally ordered the Littles to pay.

The Attorney’s Objections
Shenise has filed objections to the board’s report and recommendations. He argues he didn’t receive notice of a March hearing, he didn’t display a pattern of misconduct, he wasn’t aware of the bench warrants, and he believed the case had been stayed because Leonard had filed for bankruptcy. He counters that William Little testified they may have had conversations about the depositions and the requested documents – which contradicts the board’s conclusions.

Shenise also disputes telling the newspaper reporter the court hadn’t sent him the notices, only that he wasn’t aware of the notices because he was out of town during one period or may not have paid attention to them because he thought the bankruptcy filing had stayed the case. Regardless, Shenise further asserts that he didn’t directly attack the judge, or even name him, to the reporter, and his comments didn’t amount to misconduct.

The Bar Association’s Response
The Akron Bar Association, which filed the complaint in this case, contends that the record supports the board’s recommendations and that the proposed sanction is, in its view, lenient. It maintains that repeated failures to act in one client’s case can constitute a pattern of misconduct and that Shenise didn’t properly inform the Littles about important matters related to their case.

In addition, the association points out that the board dismissed some allegations related to Shenise’s comments in the newspaper article but did find that he violated the professional conduct rule requiring him to protect the dignity of the courts when commenting about judges. It concludes that Shenise’s actions severely harmed his clients financially and that he has shown no remorse.

- Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing the Akron Bar Association: Robert Gippin, 330.315.3400

Larry D. Shenise, pro se, 330.472.5622

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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.