Court News Ohio
Court News Ohio
Court News Ohio

Wednesday, Feb. 4, 2015

Brandon Moore v. State of Ohio, Case no. 2014-0120
Seventh District Court of Appeals (Mahoning County)

State of Ohio v. David M. Bundy, Case no. 2014-0189
Second District Court of Appeals (Montgomery County)

Apple Group Ltd. v. Board of Zoning Appeals Granger Twp., Case no. 2014-0301
Ninth District Court of Appeals (Medina County)

Cleveland Metropolitan Bar Association v. Jalal T. Sleibi, Case no. 2014-1394
Cuyahoga County

Is Juvenile’s Sentence for Multiple Crimes That Prevents Any Possibility of Release Unconstitutional?

Brandon Moore v. State of Ohio, Case no. 2014-0120
Seventh District Court of Appeals (Mahoning County)

ISSUE: Does the Eighth Amendment (which bars cruel and unusual punishment) prohibit sentences for juveniles convicted of multiple offenses that preclude any possibility of release during the juvenile’s life expectancy?

During the evening of August 21, 2001, a masked male robbed three people in a driveway. Later, a Youngstown State University student arrived at work and parked her car. As she went to her trunk to retrieve some items, a person in a mask approached her. The robber pointed a gun at the student and demanded her money and belongings. When a light went on at the group home where she worked, the guy – who she later identified as 15-year-old Brandon Moore – told her to get in her car, and he took the driver’s seat.

Moore began following a black automobile. Eventually another male, later determined to be Chaz Bunch, got out of the black car and into the woman’s vehicle. After both cars pulled into a gravel lot, Moore and Bunch repeatedly raped the woman at gunpoint. An altercation ensued with two other men, who had been in the black car, and the group eventually left. The woman drove for help.

She had memorized the black vehicle’s license plate, and she identified her attackers and the other two men.

Case History
In May 2002, Moore was charged with aggravated robbery, rape, complicity to rape, kidnapping, conspiracy to commit aggravated robbery, and aggravated menacing.

A jury convicted Moore on all counts in October 2002. After an appeal and remand, the trial court issued a 112-year prison term for the offenses. Additional appeals followed, including one in September 2013. In his “delayed application for reconsideration,” Moore asserted that his sentence was unconstitutional based on decisions in two U.S. Supreme Court cases – Graham v. Florida (2010) and Miller v. Alabama (2012). The Seventh District Court of Appeals rejected his claims.

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

Moore Contests De Facto Life Sentences for Juveniles
Attorneys for Moore contend the Graham court created a bright line against sentencing a juvenile convicted of crimes other than murder to remain in prison for the rest of his or her life. In 2003, Graham pled guilty to two charges. He was 16 at the time of the offenses. The trial court didn’t rule on his guilt but instead gave him three years of probation. In early 2004, just before his 18th birthday, Graham was arrested following a home invasion robbery. The trial court found him guilty of the earlier charges and this time sentenced him to life imprisonment for the armed burglary and 15 years for the attempted armed robbery. (Florida had no life without parole sentence because the state had eliminated its parole system.)

The U.S. Supreme Court ruled that it is unconstitutional for a juvenile to be sentenced to life in prison without parole for a non-homicide offense.

In this case, Moore’s attorneys maintain that Moore cannot be given a sentence that denies him a “meaningful opportunity” for release. They identify the reasoning in Graham they believe supports their arguments. First, basic ideas of proportionality are defied when giving youth who don’t commit homicide life in prison without parole, which is the most severe penalty a juvenile can receive for the more egregious crime of murder. Second, the U.S. Supreme Court has equated life without parole for juveniles to the death penalty for adults. Just as the harshest sentence – the death penalty – can only be imposed on adults for murder, then the harshest sentence for juveniles – life without parole – should be reserved only for juveniles convicted of homicide. Third, none of the goals of imprisonment, such as retribution, deterrence, incapacitation, and rehabilitation, justify sentencing youth non-homicide offenders to die in prison.

Moore’s attorneys argue that a juvenile convicted of non-homicides, “no matter how many or how severe,” can’t be given a sentence that amounts to life without the possibility of parole.

“The fact that Brandon’s sentence is based on aggregate consecutive sentences is not a basis for distinguishing Graham,” Moore’s attorneys write in the brief to the court.“Graham’sreasoning applies equally to ‘de facto’ life without parole sentences based on aggregate consecutive non-homicide sentences as to ‘true’ life without parole sentences.”

“The Supreme Court sets forth basic principles of constitutional law, and their decisions cannot be evaded by wordplay or by focusing on meaningless distinctions,” they add. “The categorical rule articulated in Graham is about outcomes, not labels.”

They note that the Graham ruling pointed out there is no guarantee of freedom for a juvenile convicted of non-homicide offenses, only that a decision about release cannot be made up front at the juvenile’s sentencing. Moore’s 112-year sentence is the equivalent of life without parole, they contend.

They also assert that federal and state courts have applied Graham to invalidate aggregate sentences for non-homicide offenses that exceed the life expectancy of a juvenile.

Mahoning County Prosecutors Counter That Graham Doesn’t Apply
Attorneys from the Mahoning County Prosecutor’s Office respond that the Eighth Amendment and Graham don’t bar trial courts from sentencing non-homicide juvenile offenders to consecutive fixed-term sentences that might preclude release during the juvenile’s lifetime.

They assert that Moore had to show an extraordinary circumstance for the Seventh District to entertain his reconsideration application. They agree with the appeals court’s determination that Moore’s application was delayed unreasonably, because it was filed more than three years after Graham, and that neither Graham nor Miller were on point because they didn’t address multiple, consecutive sentences with fixed terms. No extraordinary circumstance was established, they contend.

If the Ohio Supreme Court applies Graham to consecutive fixed-term sentences for juveniles convicted of multiple crimes that aren’t homicides, the state’s attorneys question how courts will decide at what age a defendant is given a meaningful opportunity for release. Courts will be forced to conduct a case-by-case analysis to determine at what point a prison term could prevent the possibility of parole for a juvenile, they argue.

They counter that Graham forbids life imprisonment without parole for juveniles convicted of a single non-homicide crime, rather than of multiple offenses. They reject the idea that a long sentence made up of several prison terms is the same as one life sentence.

They cite a Tenth District Court of Appeals decision (State v. Watkins), which stated that the Ohio Supreme Court has focused its evaluation of proportionality under the Eighth Amendment on individual sentences rather than the total prison term. Watkins is one of several cases they point to as ruling that Graham applies only to life without parole sentences for one non-homicide offense.

They argue the Ohio Supreme Court’s analysis in State v. Hairston (2008) should instead be used to determine whether Moore’s sentence was disproportionate. In that decision, when no individual sentence is “grossly disproportionate” to the crime, a total prison term doesn’t constitute cruel and unusual punishment. Moore’s individual sentences are proportionate and therefore constitutional, they conclude.

Based on their calculation, the attorneys also state that Moore must serve 77 years of his sentence before being considered for judicial release. If the Ohio Supreme Court decided to apply Graham to Moore’s case, they note that Moore will be 92 years old at the time he might be allowed to leave prison, which in their view provides a meaningful opportunity for release.

Friend-of-Court Briefs
Amicus curiae briefs supporting Brandon Moore’s position have been submitted by:

  • Criminal Law Scholars
  • National Association of Criminal Defense Lawyers
  • Office of the Ohio Public Defender
  • James M. Petro (former Ohio attorney general), Nancy Hardin Rogers (former Ohio attorney general), and Evelyn Lundberg Stratton (former Ohio Supreme Court justice)

The following organizations filed an amicus brief collectively in support of Moore:

  • Campaign for the Fair Sentencing of Youth
  • Campaign for Youth Justice
  • Center for Children’s Law and Policy
  • Children’s Law Center, Inc.
  • Coalition for Juvenile Justice
  • Juvenile Justice Project of Louisiana
  • Juvenile Law Center
  • National Association of Counsel for Children
  • National Center of Youth Law
  • National Juvenile Defender Center
  • National Juvenile Justice Network
  • San Francisco Office of the Public Defender

The Ohio Prosecuting Attorneys Association has filed an amicus brief supporting the State of Ohio.

An amicus brief supporting neither side was submitted by five professors – Beatriz Luna, University of Pittsburgh; Charles Alexander Nelson III, Harvard University; Silvia Bunge, University of California at Berkeley; Adriana Galván, University of California, Los Angeles; and Linda Patia Spear, Binghamton University.

- Kathleen Maloney

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

Representing Brandon Moore: Rachel Bloomekatz, 614.281.3918

Representing the State of Ohio from the Mahoning County Prosecutor’s Office: Ralph Rivera, 330.740.2330

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Must Defendant Show Actual Innocence When Claiming Wrongful Imprisonment?

State of Ohio v. David M. Bundy, Case no. 2014-0189
Second District Court of Appeals (Montgomery County)

ISSUE: After a criminal statute has been invalidated as unconstitutional, may a previously convicted person claim wrongful imprisonment?

While on parole from a burglary conviction, David Bundy was arrested and convicted of gross sexual imposition and other charges in 1995. In April 2003, Bundy was released from prison and was required to register yearly as a sex offender. Bundy failed to register in 2003 and was sentenced to community control.

In 2007, Bundy received a letter from the Ohio Attorney General notifying him of a change in the law pursuant to Ohio’s Adam Walsh Act, which authorized the reclassification of sex offenders. The new law required Bundy to register and verify his address every 180 days, instead of once a year, for a period of 25 years. On the initial registration deadline of March 14, 2008, Bundy failed to register. The Montgomery County trial court found Bundy guilty of failure to register his address and sentenced him to three years in prison.

On June 3, 2010, the Ohio Supreme Court, in State v. Bodyke, decided that two statutes requiring reclassification of sex offenders already classified by a court order were unconstitutional. The court then reversed Bundy’s conviction. Bundy brought a civil case against the state arguing that he was a wrongfully imprisoned person entitled to pursue damages under R.C. 2743.48.

Wrongful Imprisonment Actions
Ohio has a two-step process for a person claiming wrongful imprisonment and seeking damages. In order to sue for wrongful imprisonment, a person must first receive a determination of wrongful imprisonment by the court. Even though Bundy’s conviction was overturned, he had to seek a wrongful imprisonment declaration from the court to pursue damages.

The trial court ruled that Bundy was wrongfully imprisoned and able to commence a civil case for damages against Ohio. On appeal, the Second District Court of Appeals agreed with Bundy. The State of Ohio then appealed to the Ohio Supreme Court, which agreed to hear the case.

State’s Arguments
Attorneys for the state assert that wrongful imprisonment claimants must show that they did not engage in the offense they were convicted of. Section (A)(5) of the applicable statute, known as the actual innocence requirement, states that a wrongful imprisonment claim must satisfy the following factor:

“Subsequent to sentencing and during or subsequent to imprisonment, an error in procedure resulted in the individual’s release, or it was determined by the court of common pleas in the county where the underlying criminal action was initiated that the charged offense, including all lesser-included offenses, either was not committed by the individual or was not committed by any person.”

The attorneys argue that Bundy cannot establish a sentencing error, so he must prove, as a factual matter, that he didn’t commit the offense. They contend that the facts prove Bundy did fail to verify his address, so he isn’t actually innocent and wasn’t wrongfully imprisoned. They contend that their interpretation relies on the plain meaning of the text.

They stress that there is a difference between being actually innocent and not being held criminally liable, and they rely on Walden v. State (1989), decided by the Ohio Supreme Court, which states that the wrongful imprisonment statute’s purpose is to “separate those who were wrongfully imprisoned from those who have merely avoided criminal liability.”  The attorneys suggest that Bundy has merely avoided criminal liability.

Bundy’s Contentions
Attorneys for Bundy insist that he couldn’t have committed the statutory offense, because the offense was found unconstitutional. Relying on Black’s Law Dictionary, the attorneys point out that an offense is a “violation of the law; a crime.”  Using that definition, they emphasize that Bundy’s omission to register was innocent, not unlawful, and satisfies the actual innocence standard.

They maintain that the state’s understanding of the law changes the wrongful imprisonment statute, diverting the focus from whether an individual has committed an offense or crime to whether the individual has committed the act for which he or she was convicted. They declare that if the Ohio legislature wanted the statute to be read as the latter, then the legislature would have added additional language to the statute.

Bundy’s attorneys also claim that the state’s interpretation of the law could lead to unjust results. They hypothetically suggest that a person who violated segregation laws, which were later deemed unconstitutional, would have no remedy under the state’s reading of the law.

- Miriah Lee

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

Representing the State of Ohio: Eric Murphy, 614.466.8980

Representing David. M. Bundy: Christopher Thompson, 937.227.3310

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Is Township’s Zoning Law Valid if There Is No Separate Comprehensive Zoning Plan?

Apple Group Ltd. v. Board of Zoning Appeals Granger Twp., Case no. 2014-0301
Ninth District Court of Appeals (Medina County)


  • Under Chapter 519 of the Revised Code, must townships adopt a comprehensive zoning plan that is distinct and separate from the zoning resolution?
  • Is a zoning resolution standing alone, without a comprehensive plan, insufficient to establish zoning regulations in a township?

Apple Group Ltd. purchased two adjacent pieces of land that encompass 88 acres in Granger Township. The land was located in a residential zone, which requires each residential lot to be a minimum of two acres. Apple planned to put 44 houses on the land in addition to keeping open, undeveloped space. Apple’s plan would have left each house a lot of approximately one acre, which wasn’t up to par with the town’s residential zoning requirement.

Between 2006 and 2007, Apple consulted with the township’s zoning commission to develop the 88 acres and rezone the land to be less restrictive. After the township denied the rezoning proposal in September 2007, Apple submitted 176 zoning variances for review. The Board of Zoning Appeals of Granger Township decided that the variances essentially were a request to rezone the property, which it denied. Apple asked for reconsideration, but the township board of trustees decided not to rezone the property.

Legal Steps
Apple sued Granger Township, the township board of zoning appeals, and Granger Township Zoning Inspector Nancy West asking the court to declare the township’s zoning ordinance non-compliant with Ohio statutes. The trial court, on the recommendation of a magistrate, ruled in favor of the township.

Apple then asked the Ninth District Court of Appeals to reconsider the case, but the court ruled in favor of the township. Apple appealed to the Ohio Supreme Court, which agreed to hear the case.

Property Owner’s Positions
Attorneys for Apple argue that under an Ohio statute the township must have a comprehensive zoning plan that is separate and distinct from the related zoning ordinance. Because Granger Township didn’t have a separate comprehensive zoning plan, the attorneys for Apple argue that the zoning ordinance is void.

The applicable statute, R.C. 519.02, states, “The board [of township trustees] by resolution, in accordance with a comprehensive plan, may regulate the location, set back lines for ….”

Apple’s attorneys point to the phrase “in accordance with” as evidence that the plain language of the statute requires a zoning resolution that is separate from a comprehensive zoning plan.

They also argue that the entire chapter 519 should be read in pari materia, meaning together in its entirety. By reading chapter 519 in pari materia, they argue that there is a distinct difference between a comprehensive plan, zoning plan, and a plan of zoning. This argument, they assert, discredits the theory of a singular hybrid comprehensive plan of zoning.

Township’s Responses
Attorneys for the board of zoning appeals and the township point to the township’s zoning resolution section 103, which explicitly states that the board of trustees “has found it necessary and advisable to adopt these zoning regulations as a comprehensive plan of zoning.” The attorneys argue that the zoning resolution was properly adopted in accordance with R.C. 519.02 and that Apple’s citation to R.C. 519.02 is incorrect, because that version has since been modified by court rulings.

They rely on Casell v. Lexington Twp. BZA (1955), decided by the Ohio Supreme Court, which set forth a test as to when a zoning resolution qualifies as a comprehensive plan. The test looks at the following factors: whether one is able to ascertain to what use the property may be put to use, whether the resolution’s text is consistent with the zoning map, and whether the plan includes business or industrial zoning districts. Relying on Cassell, they argue that Granger’s resolution meets the criteria to be considered a comprehensive plan.

Additional Brief
An amicus curiae brief supporting the Board of Zoning Appeals of Granger Township has been submitted by Ohio Township Association.

- Miriah Lee

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

Representing Apple Group Ltd.: Gary Werner, 216.831.8838

Representing Board of Zoning Appeals of Granger Township, Granger Township Board of Trustees, and Nancy West: Brian Richter, 330.723.9536

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Attorney Discipline

Cleveland Metropolitan Bar Association v. Jalal T. Sleibi, Case no. 2014-1394
Cuyahoga County

The attorney disciplinary board has recommended that Cleveland attorney Jalal T. Sleibi be suspended from practicing law for two years, with one year stayed if he meets certain conditions. Sleibi was found to have had inappropriate, intimate sexual relations with four clients between 2008 and 2011 in violation of attorney conduct rules.

Sleibi represented one woman in a criminal matter involving drug and alcohol driving charges. She was 18 at the time. Sleibi was hired by the three other women to handle separate bankruptcy filings. One of the women filed a police report in March 2011 alleging that Sleibi had raped her. After an investigation, Sleibi wasn’t charged with any criminal offenses. And the board concluded that the Cleveland Metropolitan Bar Association, which filed the complaint against Sleibi, didn’t prove that the sexual encounter was non-consensual.

While the sexual relationships with all four clients were found to be consensual, they took place during the time Sleibi was working as each woman’s attorney. In its report to the Supreme Court, the Board of Commissioners on Grievances and Discipline points out that because the attorney-client relationship is by its nature inequal, lawyers must ensure that all interactions with clients stay professional. Clients are vulnerable and dependent on their attorneys for legal guidance, the board explains. (In January 2015, the board was renamed the Board of Professional Conduct.)

Aggravating and Mitigating Circumstances
Sleibi sought treatment in 2011. The board’s report notes he was diagnosed with depression, anxiety, and a sexual disorder. Sleibi stipulated to four aggravating factors. As for mitigating factors, the parties agreed that Sleibi had no earlier disciplinary record and has been cooperative. Also, two of the former clients didn’t file grievances, but Sleibi disclosed the misconduct in those cases on his own.

The board’s panel that reviewed this matter determined that Sleibi’s mental disability was another mitigating factor. It found that his mental health issues contributed to his misconduct, he has undergone successful treatment for 39 months, he has completed a contract with the Ohio Lawyers Assistance Program (OLAP) and entered another contract, and he has avoided relapse.

Suggested Conditions for Stay
The board recommended that one year of his proposed two-year suspension be stayed if he continues with treatment, complies with his OLAP contract, attends six hours of education about ethical boundary dilemmas for professionals, and commits no more misconduct. Sleibi would also be on probation during the period of the stayed suspension and for two more years.

Bar Association Requests Harsher Sanction
The Cleveland Metropolitan Bar Association has objected to the board’s conclusions and recommendations. It asks the court to suspend Sleibi indefinitely.

The bar association contends that the board has downplayed each client’s vulnerability, the “flagrant” and “lewd” nature of the sexual activity and “incessant” text messages, and the deep emotional toll on the women.

It also argues that Sleibi didn’t establish a diagnosed mental disability. Sleibi’s treating therapist diagnosed sexual addiction, which isn’t a recognized mental health disorder, they maintain. They assert that the therapist later improperly expanded her diagnosis to include depression and anxiety to show a mental disability that would be recognized as a mitigating factor. But that diagnosis came from a treating physician who had never been identified as an expert witness and didn’t testify as would be required, they contend.

“In light of the serious nature of Sleibi’s admitted conduct, the recommended sanction is insufficient to protect the public, the courts, and the legal profession as a whole and is likely to have a negative effect on other lawyers who have sexual relations with clients and then seek an ‘after the fact’ diagnosis of sexual addiction, anxiety, or depression to excuse their improper behavior,” the association concludes in its objections.

Sleibi Barred from Oral Argument
Attorneys for Sleibi sought to respond to the bar association’s objections. However, they didn’t meet the deadline for filing a brief. A party that fails to file a merit brief waives its opportunity to participate in Supreme Court’s oral arguments.

- Kathleen Maloney

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

Representing Cleveland Metropolitan Bar Association: Robert Pollock, 216.348.5400

Representing Jalal T. Sleibi: Richard Koblentz, 216.621.3012

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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.