Court News Ohio
Court News Ohio
Court News Ohio

Wednesday, Feb. 10, 2016

State of Ohio v. Clinton Richardson, Case nos. 2015-0629 and 2015-1048
Second District Court of Appeals (Montgomery County)

State of Ohio v. William D. Sergent, Case no. 2015-1093
Eleventh District Court of Appeals (Lake County)

Wells Fargo Bank, N.A. v. Allstate Insurance Company, Case no. 2015-1252
U.S. District Court for the Northern District of Ohio, Eastern Division

State of Ohio v Joseph Heinz, Case no. 2015-1288
Eighth District Court of Appeals (Cuyahoga County)

Without Expert Testimony, Can Jury Sufficiently Evaluate Whether Apparent Impairment Is Due to Influence of Drug of Abuse?

State of Ohio v. Clinton Richardson, Case nos. 2015-0629 and 2015-1048
Second District Court of Appeals (Montgomery County)

ISSUE: Is evidence from a police officer that a defendant was driving impaired as well as evidence that he took a specific drug of abuse at the time of the offense enough to meet a sufficiency of the evidence challenge under state law?

At 4 p.m. on Oct. 31, 2012, Clinton Richardson drove his pickup truck into the back end of Deborah Leopold’s car. Leopold exited her car to check for damage then walked back to Richardson’s truck to speak with him. She later testified that Richardson’s speech was so slurred she couldn’t understand him and when he fumbled for his insurance card, dropped the cards from his wallet onto the street, and wouldn’t make eye contact with her, she knew something was amiss. Despite Richardson’s plea not to call the police, Leopold said she did so mainly because she feared for the safety of the small child also riding in the truck.

Police Arrest Richardson for OVI
On the scene, a Dayton police officer assessed Richardson by asking a series of questions, including if he had taken any medication. Richardson responded that he had taken “painkillers” that day.

Richardson failed three field sobriety tests including a horizontal gaze nystagmus, walk-and-turn test, and one-legged stand test. Based on Richardson’s admission, conduct, and demeanor, police arrested him for operating a vehicle under the influence of drugs or alcohol (OVI). He refused to take a blood test, and the officer took him to jail. Richardson was later charged with OVI with a prior OVI conviction in the past 20 years and child endangering.

Under the Influence or in Withdrawal?
In contrast to the officer’s report that he took “painkillers” that day, at trial, Richardson testified that he hadn’t taken the prescription drug hydrocodone since Oct. 29 – two days before the crash. Rather than being under the influence of it, he asserted he was in withdrawal from it when he drove into Leopold’s car. Richardson indicated he thought he could manage the withdrawal himself but testified that his symptoms became so bad he needed to get to the hospital for more hydrocodone. That is when he strapped his young son into his car seat and headed to the hospital. His trip was cut short when he crashed into Leopold’s car.

Richardson further testified that he had taken hydrocodone for so long he had become opiate tolerant and suffered no side-effects from the drugs. But when he was in withdrawal, he testified he suffered from insomnia, disorientation, fatigue, and other ailments, which he said he was experiencing at the time of the accident.

A doctor who testified on behalf of Richardson relayed to the court an extensive list of common symptoms of opiate withdrawal, including but not limited to chills, vomiting, nausea, insomnia, and tremors. According to the doctor, the confusion, disorientation, and unsteadiness Richardson admitted to at trial aren’t commonly primary symptoms of opiate withdrawal, but could be secondary, concluding there was a “decent possibility” he was in withdrawal. The doctor testified he could not say with a reasonable degree of medical certainty that Richardson was in withdrawal.

Judge Finds Richardson Guilty of OVI and Child Endangerment
Because Richardson opted for a bench trial rather than a jury trial, the judge assigned to his case was solely responsible for determining Richardson’s guilt or innocence. The only question for the judge was whether Richardson was under the influence of a drug of abuse at the time of the incident. A “drug of abuse” is defined in R.C. 4729.11, and hydrocodone is considered one. Based on evidence provided by Richardson, Leopold, and police, the judge found Richardson guilty of child endangerment and OVI.

Richardson appealed, and the Second District Court of Appeals vacated the judgment citing insufficient evidence linking his impairment to the painkiller. The court, citing its own decision in State v. May (2012), found the state’s evidence insufficient to support the verdict. In that decision, the court noted more than 1,000 U.S. Food and Drug Administration approved prescription medications fall into the “drug of abuse” definition in Ohio law. Indicating the law isn’t intended to criminalize all who are taking prescribed medications, the court held that to obtain a conviction of OVI based on medication, the state must introduce expert testimony about how a particular medication actually affects the defendant, and/or that the particular medication has the potential to impair a person’s judgment or reflexes.

Conflicting Findings among Ohio Districts
While the Second District Court of Appeals found there wasn’t sufficient evidence to convict Richardson, the Fourth District Court of Appeals ruled in State v. Stephenson (2006)that a judge or jury could draw a reasonable inference of drug abuse based on evidence showing the driver was impaired in addition to his admission of taking a drug of abuse.

The Second District notified the Ohio Supreme Court of the conflict, and the Court agreed to consider the issue. The state also appealed, and the Court combined the cases for review.

Montgomery County’s Link Supporting Conviction
Attorneys for the Montgomery County Prosecutor’s Office agree that to obtain a conviction for OVI in violation of R.C. 4511.19(A)(1)(a), it must show a link between the drug abuse and the impairment.  Here, they argue, the link is Richardson’s admission and police testimony.

They maintain the court of appeals erred in ruling that Richardson’s conviction can’t stand because an expert witness didn’t testify as to the potential side effects of the drug or because a lay witness didn’t testify as to how the drug affects the defendant. The state contends instead that an expert or lay witness isn’t essential to establish a causal link between the drug of abuse and how Richardson was acting on the day of the crash. And they assert that if another witness is necessary to support a conviction, the testimony of a police officer who is trained in detecting narcotics or impaired drivers should qualify as an expert.

Richardson Contends Expert Testimony Is Key
Richardson’s attorney argues the defendant’s due process rights were violated because additional testimony, whether from an expert or a layperson, is required for a judge or jury to properly evaluate whether the apparent impairment is caused by that medication. He also maintains that using police testimony to link drug abuse and impairment is baseless because an officer’s training to help determine impairment doesn’t mean he’s proficient at calculating the effect of specific drugs on individuals.

According to Richardson’s attorney, even though there was substantial evidence that his client was impaired, the state failed to provide sufficient evidence linking his client’s impairment to any drug of abuse.

- Rachael S. Ingram

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket (2015-0629 and 2015-1048).

Representing the State of Ohio from the Montgomery County Prosecutor’s Office: Carley Ingram, 937.225.5757

Representing Clinton Richardson: Adam Arnold, 937.716.2033

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Can a Jointly Recommended Criminal Sentence Be Appealed?

State of Ohio v. William D. Sergent, Case no. 2015-1093
Eleventh District Court of Appeals (Lake County)

ISSUE: When a sentence is jointly recommended, must the trial court make its own consecutive sentence finding in order for its decision to not be appealable?

In May 2013, William D. Sergent pleaded guilty to three counts of rape committed against his daughter beginning when she was 10 years old. The Lake County Prosecutor’s Office presented the charges in a bill of information that Sergent admitted were true in court. In June 2013, the trial court accepted a joint recommendation from Sergent’s attorney and the prosecutor agreeing to three eight-year terms to be served consecutively for a total of 24 years.

Sergent didn’t file an appeal immediately, but five months later received the court’s permission to file a delayed appeal. He also asked for new counsel to be appointed so he could argue his trial counsel was ineffective because he believed he was going to be sentenced to a much shorter prison term. The appointed counsel reviewed the record and filed a motion to withdraw believing the appeal was frivolous. However, he prepared the brief for Sergent with instructions on how to file it himself.

The Eleventh District Court of Appeals didn’t decide on the motion to withdraw until it did its own review of the brief and the claim of ineffective counsel. Despite Sergent not filing his own brief, the Eleventh District determined that in order to impose consecutive sentences, the trial court was required to make findings at a sentencing hearing and incorporate those findings in the sentencing entry. In Sergent’s case, the trial court put the findings in the entry, but didn’t make findings at a sentencing hearing. The appellate court reversed the conviction, holding the trial court was required to make the findings despite the sentence being jointly recommended.

The Eleventh District noted its decision conflicted with other appellate courts and certified a conflict to the Ohio Supreme Court, which agreed to hear the case.

Findings Not Required for Joint Sentences, Prosecutor Argues
Attorneys for the prosecutor’s office state that the Ohio Supreme Court has already answered the certified question in a 2005 case, which was also brought to it by the Eleventh District. In State v. Porterfield, the Supreme Court held that consecutive sentence findings weren’t required when a jointly recommended sentence was imposed by the trial judge. The sentence was not appealable, the Court ruled. However, the precedent of Porterfield became less clear after the Court’s 2010 State v. Underwood decision, which raised the issue of what type of sentences are “authorized by law.” While Underwood dealt with a sentence imposed for allied offenses, not consecutive sentences, the Court found the sentence in that case was not authorized by law and was appealable.

They explain that in the years after, some appellate courts have followed Underwood and extended it to consecutive sentences and allow appeals where consecutive sentence findings were not made. Others continue to follow Porterfield and did not allow appeals, they note. The Eleventh District is one of the appellate courts that believe the Underwood decision needs to apply to consecutive sentences even in jointly recommended cases, they state. They also point out that the Eleventh District decision conflicts with the Second and Fourth districts which found the sentences aren’t appealable as long as the prison terms do not exceed the maximum for each offense. They contend that Sergent’s terms for each count are less than the maximum, making the sentence authorized by law and not appealable.

Findings by Trial Court Required, Sergent Counters
Attorneys for Sergent argue the holdings in Porterfield are outdated and not in line with Ohio’s current criminal sentencing structure. They maintain this case calls for the interpretation of how two Revised Code sections intersect. The first is R.C. 2929.14(C)(4), which lists the findings a judge must make in order to impose consecutive sentences. The other is R.C. 2953.08(D)(1), which states a jointly recommended sentence that is authorized by law not appealable.

They argue that if a trial court doesn’t follow R.C. 2929.14(C)(4) and make an independent finding that consecutive sentences should be imposed, then that sentence is not “authorized by law.” If a sentence is not authorized by law, then R.C. 2953.08(D)(1) doesn’t apply and the sentence can be appealed. They contend that while Underwood didn’t involve consecutive sentences, it did involve a jointly recommended sentence, and that ruling required a trial court to make its own finding of the appropriateness of the sentence.

They also note that Ohio’s sentencing law was changed after the U.S. Supreme Court’s 2009 Oregon v. Ice decision, which led to the change that the trial court must make the findings to support consecutive sentences, but does not require the court to explain its reasons for imposing the sentence. That decision required state lawmakers to revise R.C. 2929.14 and they thoroughly examined its structure, they assert. They indicate that R.C. 2929.14(C)(4) doesn’t contain an exception for not making findings, and the legislature wanted trial courts to reach their own conclusions even when both sides recommend the same sentence or different sentences.

“By requiring trial courts to make the requisite findings, even in situations where consecutive sentences are jointly recommended, Ohio law would simply be enforcing one of the layers of the various protections provided in R.C. 2929.14 to ensure that offenders are not sentenced to terms which are harsher than those necessary under the particular facts of the case,” states the brief filed by Sergent’s attorneys.

Friend-of-the-Court Brief
An amicus curiae brief supporting Lake County’s position has been submitted by the Ohio Attorney General’s Office, which argues that while the sentencing structure might have changed over time, the Porterfield decision still applies, and the trial court took the correct steps to sentence Sergent. The brief filed notes that Sergent argues the trial court made a procedural error, but that the sentence imposed was within the range a judge can impose, which does make the sentence authorized by law. If it is authorized, then Sergent can’t argue that the sentence can be appealed, they conclude.

- Dan Trevas

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 from the Lake County Prosecutor’s Office: Teri Daniel, 440.350.2683

Representing William D. Sergent: Michael Partlow, 330.400.2290

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Does Insurance Policy Cover Arson of Abandoned Property?

Wells Fargo Bank, N.A. v. Allstate Insurance Company, Case no. 2015-1252
U.S. District Court for the Northern District of Ohio, Eastern Division

ISSUE: Is “arson” a subset of “fire” or an act of “malicious mischief or vandalism” when neither the “fire” nor “malicious mischief or vandalism” provisions in an insurance contract expressly include “arson”?

Antoniano Delsignore purchased a home in Poland, Ohio, in September 2010. The mortgage, through Wells Fargo Bank, required Delsignore to obtain insurance that included losses by fire. Delsignore’s policy was with Allstate Insurance.

Delsignore stopped paying his mortgage, and Wells Fargo foreclosed on the property in 2013. The property sat vacant by the end of the year. On Feb. 4, 2014, a fire damaged the residence, and the cause was found to be arson.

Wells Fargo filed an insurance claim with Allstate, and the insurance company denied coverage. Allstate pointed to a policy provision that excludes coverage for “vandalism or malicious mischief” when a property has been abandoned for more than 30 days before the loss.

Bank’s Lawsuit
In February 2015, Wells Fargo sued in the U.S. District Court for the Northern District of Ohio. In a conference with the court, the parties agreed that the critical issue in the case is whether the Allstate insurance policy covers arson. They also pointed out that other states’ decisions conflict in their interpretations of arson coverage in insurance policies. In asking the Ohio Supreme Court to review the matter, the federal court noted the state hasn’t addressed whether arson is a type of vandalism or malicious mischief, and the Supreme Court agreed to take the case.

“Millions of Ohioans have homeowners insurance policies,” the judge wrote in the notice to the Supreme Court. “Even if less than 1 [percent] of these homeowners file arson-related insurance claims, the interpretation of this question could potentially affect tens of thousands of properties. Rather than speculate as to whether arson is considered vandalism or malicious mischief, the best course is to provide the Supreme Court of Ohio with the opportunity to decide this issue and create precedence in the State of Ohio.”

Policy Coverages
According to Delsignore’s policy, losses to specific personal property caused by fire or by vandalism or malicious mischief are covered. However, the policy doesn’t cover a loss to the dwelling, other structures, or personal property if the loss was caused by vandalism or malicious mischief when the dwelling was vacant or unoccupied for more than 30 consecutive days before the vandalism or malicious mischief took place. The terms “arson,” “vandalism,” and “malicious mischief” aren’t defined in the policy.

Insurance Company’s Arguments
Given the lack of policy definitions, Allstate’s attorneys contend that the common meaning of “arson” indicates a form of vandalism or malicious mischief given its intentional nature. In their view, arson didn’t need to be specifically identified in the policy as a type of vandalism or malicious mischief for it to be excluded from coverage based on the property’s vacancy.

They maintain it doesn’t matter that fire and vandalism/malicious mischief are listed as separate losses in the personal property provisions of the policy. The policy’s dwelling section covers any loss except for those specifically excluded, but they argue one of the exclusions is a loss caused by vandalism or malicious mischief of an abandoned property, and arson is a type of vandalism or malicious mischief. As a result, they conclude, coverage for the arson in this case is excluded by the policy.

Mortgage Bank’s Viewpoint
Attorneys for Wells Fargo counter that this case requires only a simple interpretation of the policy. Because arson is clearly a loss by fire, it can’t also be considered a type of vandalism or malicious mischief, they assert. Based on prior interpretations of Ohio law, they claim the meaning of the terms “vandalism” and “malicious mischief,” without definitions in the policy, must be informed by their use throughout the entire policy. The terms then must be given the same meaning in both the dwelling section and the personal property provisions, they argue. Because “fire” and “vandalism and malicious mischief” are separate perils in the personal property coverage, and “arson” is described one time as a “fire loss” in provision titled “Arson Reward,” then “arson” can’t also be considered an act of vandalism or malicious mischief, they maintain, regardless of whether the property was vacant.

However, if the Court concludes arson is vandalism or malicious mischief, then, in the view of Wells Fargo’s attorneys, the policy itself is unclear and must be interpreted under Ohio law in the favor of the mortgage bank, as the insured.

- Kathleen Maloney

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

Representing Allstate Insurance Company: Margo Meola, 330.286.3701

Representing Wells Fargo Bank: Philip Sineneng, 614.469.3217

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Do County Prosecutors, Not Probation Officers, Represent the State in Community Control Violation Hearings?

State of Ohio v Joseph Heinz, Case no. 2015-1288
Eighth District Court of Appeals (Cuyahoga County)


  • Is a county prosecutor a party to a community control sanctions violation or revocation hearing, entitling the prosecutor of notice and to be heard at those hearings?
  • Is requiring non-lawyer probation officers to be the state’s representatives at these hearings a violation of the doctrine of separation of powers?

In December 2011, Joseph Heinz pleaded guilty to attempted abduction and was sentenced to 24
months of community control sanctions (CCS), 80 hours of community service, random drug testing, and other sanctions. Four months later, a Cuyahoga County Common Pleas Court found he violated the CCS because of a positive drug test for marijuana, and the court ordered 50 more hours of community service. More than a year later, the trial court found another positive marijuana test and extended his CCS for another 18 months, and added 100 more hours of community service. In October 2014, Heinz was scheduled for a CCS violation hearing for submitting a diluted drug sample. While the Cuyahoga County Prosecutor’s Office didn’t appear or request to be present at Heinz’s prior violation hearings, an assistant prosecutor appeared and requested the right to be heard.

At the hearing, a probation officer testified that Heinz submitted the faulty test and recommended a 14-day jail sentence. The trial court judge refused to allow the assistant prosecutor to appear, stating the court’s long-standing practice that the probation office, not the prosecutor, represents the state in cases of community control violations. The judge had a standing order since February 2014 that the prosecutor could seek the court’s approval to appear if the prosecutor provided two-days advance notice to the court and the defense counsel and presented a list of specific charges or arguments the prosecutor wanted to make. The prosecutor didn’t comply with the order and didn’t speak at the violation hearing.

The prosecutor’s office appealed the decision to the Eighth District Court of Appeals and noted that it has 13 other cases pending on appeal to the Eighth District or Ohio Supreme Court based on the same argument that it was wrongly denied a right to participate in a CCS hearing. The Eighth District affirmed the trial court’s decision and the use of the standing order. The prosecutor’s office appealed to the Ohio Supreme Court, which agreed to accept the case.

Prosecutor Argues Office Represents the State in All Criminal Cases
Attorneys for the county prosecutor argue in the brief filed with the Supreme Court that by state law (R.C. 309.08) the prosecutor represents the state in all “complaints, suits and controversies,” unless the law specifies otherwise. Citing the Ohio Supreme Court’s 2003 State v. Young decision, they maintain violation hearings are part of suits, so it’s the right of the county prosecutor to represent the state’s interest in such hearings. They argue the Court has determined if an offender is in violation of sanctions, then the trial court conducts a second sentencing hearing. If the prosecutor’s office isn’t notified of the hearings, it is effectively eliminated from the sentencing hearings, which would be out of compliance with state sentencing statutes, they claim.

Further, they maintain, the appellate court’s decision violates the doctrine of separation of powers by supplanting the executive branch (prosecutors) with judicial branch non-attorney court employees (probation officers). For the court to revoke a community control violation and send a violator to prison, the state has the burden of proof to show by “substantial” evidence that the offender violated the court’s conditions, they contend. The prosecutor’s office is the one responsible for providing the argument, not a non-lawyer probation officer, they conclude.

Additionally, the attorneys note that attorneys for Heinz rely heavily on the U.S. Supreme Court’s 1973 Gagnon v. Scarpelli decision which grants the power of probation officers to lead probation and parole violation hearings. They note that in the more than 40 years since that decision, the structure of probation and CCS has changed and has since allowed defendants to be represented by an attorney at such hearings.

“As the Gagnon court recognized, the introduction of counsel at these hearings significantly alters their nature,” the brief states. “If the defendant is represented by legal counsel, the state should not be precluded from being represented by its attorney.”

Public Defender Contends Prosecutor Can Participate if Necessary
Attorneys for Heinz contend in the brief that Cuyahoga County trial courts have established a standing method for the prosecutor to participate in community control violation hearings when it is necessary, and there is no blanket standard in Ohio law stating the prosecutor represents the state in these cases.

They contend the prosecutor ignores the Gagnon ruling that found prosecutors don’t handle probation violations and that the Ohio General Assembly never established or envisioned a mandatory role for prosecutors in CCS violation hearings. They maintain by enacting R.C. 2929.15, lawmakers made the probation office responsible for reporting to the court all information about the status of the offender that is needed for the court to decide whether to change the sanctions. Additionally, they claim the probation office has the duty to report any subsequent crimes the offender committed while on community control to the prosecutors, and in those instances where a charge for a new crime plays into the consideration of revocation sanctions, the prosecutor’s office indisputably has a right to participate.

The attorneys note the revocation hearings aren’t criminal proceedings, and aren’t bound by the formality of a criminal trial. They suggest that unless there is a new criminal charge being raised by the prosecutor, there is no relevant information the prosecutor could bring to court that the probation office hasn’t already supplied to the judge for consideration.

They counter the separation-of-powers argument by noting the legislature is granted the power to assign duties traditionally assumed by one branch to another branch, and did so in the section of the law dealing with state criminals on probation. R.C. 2967.15 provides exclusive authority for non-attorneys with the Adult Parole Authority to determine violations of parole and the sanctions imposed for violations.

“If prosecutors are not indispensable to parole or (post-release control) violation hearings, they are no more necessary for CCS violation hearings,” states the brief.

- Dan Trevas

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 from the Cuyahoga County Prosecutor’s Office: Frank Zeleznikar, 216.443.7800

Representing Joseph Heinz: Cullen Sweeney, 216.443.7583

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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.