Court News Ohio
Court News Ohio
Court News Ohio

Wednesday, Feb. 24, 2016

In re: Aaron K. Von, Case no. 2015-0619
Eleventh District Court of Appeals (Trumbull County)

In re Grand Jury Proceeding of John Doe, Case nos. 2015-1181 and 2015-1182
Eighth District Court of Appeals (Cuyahoga County)

Cleveland Metropolitan Bar Association v. Tasso Paris, Case no. 2015-2009
Cuyahoga County


Are Sex Offenders Convicted Before 2008 Eligible to Terminate Registration Obligations?

In re: Aaron K. Von, Case no. 2015-0619
Eleventh District Court of Appeals (Trumbull County)

ISSUES:

  • Does the registration procedure in R.C. 2950.15 apply retroactively to sex offenders who committed their crimes before Jan. 1, 2008, and who were convicted and sentenced before that date?
  • Did the appellate court properly sever R.C. 2950.15 from the rest of state’s enactment of the federal Adam Walsh Act in light of the Ohio Supreme Court’s decision in State v. Williams (2011) that provisions of the act had been unconstitutionally applied retroactively?

BACKGROUND:
In January 1997, Aaron K. Von was convicted in Colorado for sexually assaulting a child. The court sentenced Von to a one-year prison term, plus nine years on probation. He later moved to Taos, New Mexico, and then to Ohio in 2011. During this time, he registered as a sexual offender with the appropriate county sheriffs.

A little more than a year after he moved to Trumbull County, Von applied to end his continuing registration requirements as a sex offender. His application referenced the federal Adam Walsh Act (AWA), which became effective on Jan. 1, 2008. The act created tiered categories of sex offenders and permits certain offenders to ask a court, after a certain period of time, to terminate the mandate to register periodically with authorities. Ohio implemented the AWA’s sex offender registration and notification requirements, and the termination provisions were enacted in R.C. 2950.15. Before 2008, state law didn’t provide the option to stop registration obligations.

The trial court denied Von’s application in July 2013, concluding that the statute didn’t pertain to Von and couldn’t be applied retroactively.

Appeals Court Rules Pre-2008 Offenders Can Benefit from AWA Process
Von appealed to the Eleventh District Court of Appeals, which reversed the trial court. The appeals court decision examined the Ohio Supreme Court’s 2011 decision in State v. Williams. In that case, the Court ruled the Ohio enactment of the AWA, when applied to defendants who committed sex offenses before the act’s 2008 effective date, violated the state constitution’s provision banning retroactive laws.

However, in a divided decision, the Eleventh District reasoned that Williams found only the act’s punitive provisions to be unconstitutional when applied to pre-2008 sex offenders. But the appeals court ruled the procedure in R.C. 2950.15 allowing sex offenders to request termination of their registration requirements isn’t punitive and therefore Williams doesn’t control in this case.

Division (A) of R.C. 2950.15 reads:

“As used in this section and section 2950.16 of the Revised Code, ‘eligible offender’ means a person who is convicted of, pleads guilty to, was convicted of, or pleaded guilty to a sexually oriented offense or child-victim oriented offense, regardless of when the offense was committed, and is a tier I sex offender/child-victim offender or a child who is or was adjudicated a delinquent child for committing a sexually oriented offense or child-victim oriented offense, regardless of when the offense was committed, and is a public registry-qualified juvenile offender registrant.”

Division (A) of R.C. 2950.15 reads:

“As used in this section and section 2950.16 of the Revised Code, ‘eligible offender’ means a person who is convicted of, pleads guilty to, was convicted of, or pleaded guilty to a sexually oriented offense or child-victim oriented offense, regardless of when the offense was committed, and is a tier I sex offender/child-victim offender or a child who is or was adjudicated a delinquent child for committing a sexually oriented offense or child-victim oriented offense, regardless of when the offense was committed, and is a public registry-qualified juvenile offender registrant.”

In reviewing R.C. 2950.15’s language, the Eleventh District concluded the phrase “regardless of when the offense was committed” indicates that the date of the crime is irrelevant when deciding whether a defendant is eligible to end the registration conditions.

In addition, the court determined that R.C. 2950.15 can be severed from the act’s unconstitutional provisions and applied retroactively to earlier sex offenders, such as Von, as the General Assembly intended.

The Trumbull County prosecutor appealed to the Ohio Supreme Court, which agreed to hear the case.

State Maintains Law Doesn’t Apply Retroactively to Earlier Sex Offenders
On behalf of the state, the prosecutor contends in the brief filed that the Eleventh District’s ruling “throws open the door” to allow those convicted of sex offenses before Jan. 1, 2008, to terminate their registration obligations, thereby benefitting improperly from AWA provisions.

In the state’s view, the appeals court ignored the Williams decision. The prosecutor argues the Supreme Court ruled in Williams that the AWA applies only to sexual offenders sentenced after the 2008 effective date. However, Von was sentenced in 1997.

The state also asserts that only “tier I sex offenders” can request termination of their registration mandates as described in R.C. 2950.15. Von isn’t a tier I sex offender, the prosecutor maintains, because the tiered system didn’t exist when Von was convicted. And R.C. 2950.15 didn’t “grandfather in” earlier sex offenders, he argues.

The state contests the Eleventh District’s interpretation of “regardless of when the offense was committed” in the statute. That language means the law applies to those sex offenders sentenced after Jan. 1, 2008, even if their offenses occurred before the effective date, the prosecutor asserts. He adds the Williams Court found all of R.C. Chapter 2950 punitive, so the appellate court can’t separate out one of the included sections and conclude that it isn’t punitive.

On the issue of severance, the state argues the Eleventh District didn’t conclude that R.C. 2950.15 was unconstitutional. Without that step, the state maintains that the appeals court wasn’t permitted to sever the statute from the rest of the act.

Party Barred from Oral Arguments
The Court granted a request in January from Von’s lawyer to withdraw as his counsel because Von hasn’t kept in contact with the lawyer, hasn’t responded to telephone calls or correspondence, and didn’t pay a filing fee. Von also didn’t file a merit brief with the Court in this case. Pursuant to Court rules, he will not be allowed to participate in oral arguments.

- Kathleen Maloney

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 Trumbull County Prosecutor’s Office: LuWayne Annos, 330.675.2426

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Can Appeals Court Hear Appeal of Denial to Quash Grand Jury Subpoena?

In re Grand Jury Proceeding of John Doe, Case nos. 2015-1181 and 2015-1182
Eighth District Court of Appeals (Cuyahoga County)

ISSUES:

  • Is a trial court’s order denying a motion to quash a grand jury subpoena and ordering a party to testify and/or produce documents a provisional remedy?
  • If the order is a provisional remedy, is it a final, appealable order that would allow an appeals court to review it?

BACKGROUND:
The Ohio Supreme Court has granted a joint motion from the parties in this case to place all pleadings and other filings under seal, which prevents public view of the details.

A Cuyahoga County grand jury issued a subpoenato individuals to testify and produce documents. The parties receiving the subpoena asked a Cuyahoga County trial court to block the subpoena. In April 2015, the trial court denied the motion to quash, which would allow them not to testify or produce documents. The parties appealed the decision to the Eighth District Court of Appeals. The Eighth District determined the trial court’s denial of the motion was not a final, appealable order and that it had no jurisdiction at that time to hear the appeal.

The Eighth District Court of Appeals found its decision was in conflict with two other Ohio appellate courts that have ruled that the denial of a motion to quash a grand jury subpoena is a final appealable order. The Eighth District notified the Supreme Court of the conflict and the Court agreed to hear the case.

Denial to Quash Can Be Heard on Appeal, Some Courts Rule
The Eighth District noted its decision was in conflict with the Fourth District Court of Appeals 2002 In re Grand Jury Subpoena Duces Tecum and the Tenth District Court of Appeals 2003 State v. Boschulte rulings (which relied in part on the Fourth District’s decision in 2002).

The Fourth District analyzed whether denying a motion to quash a grand jury subpoena was considered a final order that it could review under R.C. 2505.02, which defines a final, appealable order. The appellate court found that two steps under R.C. 2505.02 had to be followed to determine whether the order was final.

First, it decided that a motion to quash a grand jury subpoena was a “provisional remedy” as described in R.C. 2505.02(A)(3). The Fourth District wrote that grand juries are criminal proceedings and motions to quash are ancillary actions to help assist the grand jury by allowing or denying information it requests. A “provisional remedy” must be an ancillary proceeding according to the statute, so the motion to quash is a provisional remedy.

Second, under R.C. 2505.02(B)(4), a provisional remedy is a final order that can be appealed if the trial court either grants or denies a provisional remedy with two key characteristics. One, the trial court’s decision must be against the party appealing.  (In this case, the appellants assert that denying the motion to quash and requiring the information be produced is a decision that is adverse to them.) Two, that decision must leave the appealing party with no meaningful or effective remedy following final judgment on all of the proceedings.

The Fourth District found requiring the information to be turned over to the grand jury and then forcing the party to appeal wouldn’t be an effective remedy. However, in this specific case, the trial court explicitly stated its ruling denying the motion to quash was not a final order, and that it denied the motion in order to give the parties time to work out a settlement. For this reason, the Fourth District found the order denying the motion to quash was not a final order and could be reconsidered, as the trial court did when it later blocked the subpoena.

In Boschulte, the Tenth District followed the Fourth District’s logic, but in that particular case, it found the trial court did consider its denial of the motion to quash to be a final order. Finding that requiring the material to be turned over to the grand jury and then granting a right to appeal would be unfair, the Tenth District ruled there was a final, appealable order and heard the appeal. The Tenth District found the trial court was correct in making the individual turn over requested documents to the grand jury.

- Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket (2015-1181 and 2015-1182).

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Attorney Discipline

Cleveland Metropolitan Bar Association v. Tasso Paris, Case no. 2015-2009
Cuyahoga County

The Board of Professional Conduct recommends that Cleveland attorney Tasso Paris be suspended from practicing law for six months. The board concluded that Paris repeatedly tried to entice a client to have a sexual relationship with him and also failed to show up at the client’s sentencing hearing.

Lawyer Skips Client’s Hearing
Jennifer Cook hired Paris to represent her after she was arrested on March 17, 2013, for driving under the influence, with a suspended license, and without “full time and attention” to her driving. Paris was paid $1,000 to represent Cook.

Cook pled guilty to reduced charges in August 2013, and the court ordered her to appear a few weeks later at a sentencing hearing. Cook showed up, but Paris didn’t. Nor did he tell Cook that he wouldn’t be attending the hearing or ask another attorney to appear for him, according to stipulations he made in the disciplinary case. However, Paris later testified that he asked his father, also an attorney, to attend the hearing. When the judge asked Cook whether she had an attorney, she responded that he wasn’t there and that she was having problems with him propositioning her.

The court then set aside Cook’s plea, the case was reassigned to another judge, and a public defender was appointed to represent Cook through the rest of her case. She later filed a grievance against Paris with the Cleveland Metropolitan Bar Association.

Client Invited to Dinner, Hot Tub
Paris admitted that he referred to Cook as a “beautiful Irish girl” when telling her no one would believe her story about the St. Patrick’s Day accident. He also conceded that he asked her several times during his representation to go out with him and invited her more than once to go to his house and join him in his hot tub.

Bar Association, Attorney Agree to Six-Month Stayed Suspension
Paris agreed that he violated the professional conduct rule prohibiting sexual activity with a client and another rule requiring diligence in handling a client’s case. The bar association and Paris agreed on a six-month suspension, all stayed, on the condition that the lawyer commit no more misconduct and repay Cook $1,000.

However, the board’s report to the Supreme Court stated the panel reviewing the matter wasn’t convinced, based on his testimony at the hearing, that Paris understood why his conduct was wrong. The report noted that Paris used his position of dominance as her lawyer in a criminal case to solicit her. In addition, Cook testified that she thought Paris wouldn’t do a good job representing her if she didn’t at least act like she was considering going out with him. Given the lack of weighty mitigating factors and the serious nature of this type of conduct, which violates the trust essential between an attorney and client, the board recommended a six-month actual suspension.

Lawyer Objects to Board’s Conclusions, Requests Lesser Punishment
Paris asks the Supreme Court to impose the six-month stayed suspension agreed to by the parties before the board’s hearing. To support this view, he disputes specific conclusions made in the board’s report. While the report states no record showed whether the misconduct indicated a pattern or was an isolated incident, Paris counters that he has been a lawyer for 28 years without any disciplinary action. He claims Cook even referred a friend to him for legal representation. He also contends he has accepted responsibility, which is evident given that he “signed the stipulation and acknowledged that his conduct may have been mistakenly taken by [Cook].” In addition, he submitted a separate personal affidavit to present his thoughts to the Court.

Bar Association Sees Lack of Accountability
The bar association responds that several parts of the objections contain information and claims that aren’t part of the case record. Noting that Paris has already stipulated to soliciting Cook for sex, the bar association further stresses that the comment in Paris’ objections that his “conduct may have been mistakenly taken” by his client reflects the opposite of taking responsibility. Nor does he ever apologize for neglecting to appear at Cook’s sentencing, the bar association asserts.

The bar association also maintains that Paris’ affidavit is an “improper attempt to supplement the record,” and one that again attacks Cook. Paris hasn’t shown remorse for his conduct or apologized to her, it argues. The bar association asks the Court to “at a minimum” impose the board-recommended six-month actual suspension.

- Kathleen Maloney

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

Contacts
Representing the Cleveland Metropolitan Bar Association: Thomas Anastos, 216.375.9151

Representing Tasso Paris: Thomas Paris, 216.575.7500

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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.