Court News Ohio
Court News Ohio
Court News Ohio

Thursday, February 9, 2017

State of Ohio v. Darlell Orr, Case no. 2015-1847
Eighty District Court of Appeals (Cuyahoga County)

State of Ohio v. Malik Rahab, Case no. 2015-1892
First District Court of Appeals (Hamilton County)

State of Ohio v. Bradley E. Grimes, Case no. 2016-0215
Fifth District Court of Appeals (Muskingum County)

Can Man Accused of Crime Allegedly Committed When He Was 13 Be Tried Decades Later in Adult Court?

State of Ohio v. Darlell Orr, Case no. 2015-1847
Eighty District Court of Appeals (Cuyahoga County)

ISSUE: Do state laws involving a person alleged to have committed a crime as a juvenile, apprehended after his or her 21st birthday, and subject to prosecution in criminal court violate the ex post facto clause of the U.S. Constitution and the retroactivity clause of the Ohio Constitution when applied to a person accused of committing rape before the age of 15?

In June 1993, a 14-year-old girl reported to police that she had been raped by a young male. A rape kit was collected at the hospital. Nineteen years later, as the state was in the midst of conducting forensic testing on more than 13,000 untested rape kits statewide, Darlell Orr was arrested for murder. Orr’s DNA was linked to the 1993 alleged rape, and he was indicted in May 2013 in Cuyahoga County for rape, sexual battery, and kidnapping. He was 13 years old at the time the rape was reported and in his 30s when indicted. He is currently in prison for another crime.

Orr pleaded not guilty and, in December 2014, asked the trial court to dismiss the case. He argued the court couldn’t prosecute him as an adult for a crime he allegedly committed as a juvenile, and he maintained the delay between the offense and the indictment was unconstitutional. The trial court dismissed Orr’s case without prejudice after determining that it had no jurisdiction, given the law regarding juveniles in 1993, and that transferring the matter to juvenile court was improper.

The Cuyahoga County Prosecutor’s Office appealed to the Eighth District Court of Appeals, which agreed with the trial court and concluded that prosecution of the case violated the U.S. and Ohio constitutions. The prosecutor filed an appeal with the Ohio Supreme Court, which agreed to review the issue.

Juvenile Statutes Amended in 1997
In 1993, state law prevented a 13-year-old accused of a crime from being transferred out of juvenile court for criminal prosecution in a common pleas court as long as the juvenile had no prior adjudications for certain murder offenses. However, in 1997 the legislature amended the juvenile statutes to state that a juvenile who commits an act that would be a felony if committed by an adult but who is taken into custody for the alleged offense after the age of 21 no longer is considered a “child” in relation to that act. The laws then deny juvenile courts jurisdiction in such cases and mandate that criminal prosecution instead be heard in the appropriate court with jurisdiction to handle the case if the juvenile had been an adult at the time of the alleged offense.

At the trial and appellate level, Orr challenged the 1997 amendments, asserting that they violate the retroactivity clause in the Ohio Constitution and the ex post facto clause in the U.S. Constitution. The two constitutional provisions generally prohibit a law that applies to events that took place before the law was enacted.

Defendant’s Rights Not Infringed by Trial in Adult Court, Prosecutor States
The Cuyahoga County prosecutor contends that the trial court was wrong to dismiss the case against Orr. The prosecutor argues that the law requires Orr to be tried as an adult in a criminal case in the county common pleas court. Though the 1997 amendments to the juvenile statutes apply retroactively to offenses committed before that date, they aren’t unconstitutional, the prosecutor maintains.

In State v. Walls (2002), the Ohio Supreme Court reviewed the case of a man indicted when he was 29 years old for a murder that took place when he was 15. The Court found that the same 1997 amendments weren’t impermissibly retroactive because they didn’t infringe on any of Walls’ substantive rights. Instead, the Court decided that juvenile court hearings concerning transfers for adult prosecution, called bindover hearings, were procedural matters, the prosecutor notes. Under the Ohio Constitution, the prosecutor reasons, the 1997 amendments are constitutional and don’t violate the retroactivity clause because they only change the court that hears these cases, and the amendments didn’t eliminate any substantive rights of defendants.

To evaluate the claim regarding the U.S. Constitution’s ex post facto clause, the prosecutor turned to a four-part test described in Calder v. Bull, a 1798 decision from the U.S. Supreme Court. The test looks at aspects such as whether a law makes an action illegal that had been legal at the time it occurred or whether a law increases the penalty for a crime committed earlier. The prosecutor concludes the 1997 amendments don’t fall into any of the four categories spelled out in Calder that would violate the U.S. Constitution’s ex post facto clause.

The Eighth District’s conclusion that Orr was placed in “legal limbo” – because it was improper to try Orr in adult criminal court given that he was 13 at the time of the alleged rape and because he couldn’t at his current age be tried in juvenile court – was incorrect, the prosecutor asserts in urging reversal of the appellate court’s decision.

Trial in Adult Court Could Result in Greater Punishment Than as Juvenile, Orr Argues
Orr emphasizes that his alleged crime took place before the enactment of the 1997 amendments. He maintains that a law runs afoul of the state constitution’s retroactivity clause if it reaches back and creates new burdens, duties, obligations, or liabilities. A statute violates the federal constitution’s ex post facto clause if it alters the definition of criminal conduct or increases the punishment for a crime, he notes.

He argues that his case is different from Walls because Walls was 15 at the time of the crime and he was accused of murder. Because of Walls’ age and offense, he was always subject to criminal prosecution as an adult in the common pleas court, Orr contends. But Orr’s case at the age of 13 would’ve remained in juvenile court. Trying his case in criminal court would eliminate his right to be treated as a child and would transform his right to a civil, juvenile proceeding at the time of the crime into a criminal prosecution now, Orr argues.

“[U]nder the amended statutory framework, Orr necessarily faced adult prosecution, a potential criminal conviction, and a lengthy prison sentence,” the brief to the Court stated. “Under the law in effect at the time of the alleged incident, however, his only concern would have been a juvenile adjudication (which is not criminal in nature) and involvement of some kind in the juvenile system. … Solely due to the Cuyahoga County Prosecutors Office’s failure to diligently do its job, Orr faced starkly contrasting legal landscapes and consequences.”

In his case, the transfer to adult court was more than a procedural step and instead infringed on his substantive rights, Orr asserts.

If the Court adopts the prosecutor’s position, Orr suggests that county prosecutors might delay charging some juvenile offenders until after they turn 21 years old to try cases in criminal, rather than juvenile, court. In Orr’s view, when prosecutors delay filing charges against juveniles until after they turn 21, then filing charges shouldn’t be allowed in either juvenile or criminal court. He believes this approach would ensure timely consideration of juvenile cases and the intervention needed for those children.

Groups Submit Friend-of-the-Court Briefs
The Ohio Prosecuting Attorneys Association submitted an amicus curiae brief supporting the Cuyahoga County prosecutor’s position. The association maintains that the dismissal of Orr’s case has prevented the state from seeking justice for the girl who was raped and from holding Orr accountable for the alleged crime. Orr’s substantive rights and liberty interests weren’t at stake by a trial in the common pleas court, the organization insists, adding that many other victims will be denied justice if the Eighth District’s ruling dismissing this case is upheld.

An amicus brief supporting Orr’s arguments was filed collectively by the Office of the Ohio Public Defender, Juvenile Law Center, and National Juvenile Defender Center. The groups argue that adult prosecution of Orr and those in the same situation is “irreconcilable with Ohio law’s commitment to protecting young children in the justice system.” They point out that only older youths are subject to transfer for criminal prosecution and greater punishment, noting that if tried as an adult Orr may also be subject to sex-offender registration.

- Kathleen Maloney

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: Daniel Van, 216.443.7800

Representing Darlell Orr from the Cuyahoga County Public Defender’s Office: Erika Cunliffe, 216.443.7580

Is Harsher Sentence Imposed After Plea Bargain Refused Unconstitutional if Trial Judge Infers That Losing at Trial Will Lead to Longer Sentence?

State of Ohio v. Malik Rahab, Case no. 2015-1892
First District Court of Appeals (Hamilton County)

ISSUE: When a sentencing court infers that a sentence is based on a decision to go trial and doesn’t make an unequivocal statement that the sentence wasn’t based on the refusal to accept a plea bargain, is the sentence unconstitutional?

Malik Rahab was charged with burglary for opening a window to a home, reaching in, and taking a purse. He pleaded not guilty and requested a jury trial. Prior to trial, Hamilton County prosecutors offered to recommend a three-year prison sentence for Rahab in exchange for a guilty plea. Rahab refused the offer. At a pretrial hearing, the trial judge explained to Rahab that if he were found guilty at trial, the court would decide the sentence, and warned the sentence would probably be more than three years.

Rahab was found guilty and a presentence report indicated that he admitted to a probation officer that he took the purse. During his sentencing he admitted to the crime. When the judge asked why he chose to go to trial, Rahab replied that he thought three years was excessive. Before imposing a sentence, the judge noted Rahab had a juvenile record and refused to take responsibility for the crime until after he was convicted. The judge also stated that the trial caused the victim to be traumatized by breaking into her home and traumatized again by having to relive the incident through the trial. The judge told Rahab, “You gambled, you lost.”

When imposing the sentence, the trial judge stated: “I don't think this warrants eight years, but you're getting more than the three.... I looked at you and said, do you want the three or not; you’re looking at eight. And you told me, I don’t want three. That’s what you told your attorney. Well, guess what, you lost your gambling. You did this. You had no defense, and you wouldn’t take responsibility. You wanted to go to trial. All right, big winner you are. Six years Ohio Department of Corrections.”

Rahab appealed his sentence to the First District Court of Appeals, which affirmed the trial court. He appealed to the Supreme Court, which agreed to hear his case.

Plea Refusal Can’t Be Basis for Enhanced Sentence, Rahab Asserts
Citing the Ohio Supreme Court’s 1998 State v. Scalf decision, Rahab maintains that any increased sentence based on the decision by a defendant to stand on his right to trial rather than plead guilty is improper and violates the right to due process. He also cited the U.S. Supreme Court’s 1968 North Carolina v. Pearce decision that found a court violates a defendant’s constitutional right to due process if an enhanced sentence is “motivated by vindictive retaliation” He notes that vindictiveness isn’t presumed because the sentence is harsher than the plea offer, but instead the record shows retaliation was the result of a rejected plea.

The trial court judge addressed Rahab at a pretrial hearing to discuss the plea agreement offered by the prosecutors and warned him that the court “does not look highly on cases where people don’t take responsibility and accept that they did something wrong if they’re found guilty.” The judge told Rahab the sentence would likely be more if he was found guilty and expressed displeasure in his choice to go to trial.

“The record affirmatively demonstrated the sentencing court vindictively punished Mr. Rahab for exercising his right to a trial and refusing to plead guilty. Moreover, the record shows the court gave improper weight to his decision go to trial when imposing sentence,” Rahab’s brief states.

Rahab noted the First District found the comments were “inappropriate” and could have been deemed to cross the line into punishment, but concluded that there was enough evidence to show the judge based the sentence on other factors, such as Rahab’s juvenile adjudications and lack of remorse for his actions. Rahab counters that the First District was required to review the record for an unequivocal statement that the sentence was not based on the decision to go to trial, and there isn’t a statement “to overcome the overwhelming evidence” that the sentence was vindictive.

No Evidence Backs Allegation of Retaliation, State Maintains
The Hamilton County prosecutor argues that Rahab must present clear and convincing evidence that the trial court’s sentence was unconstitutional and vindictive. The prosecutor explains a court can’t impose a “trial tax” by punishing defendants for going to trial, but to determine if a sentence is a punishment, the Supreme Court must review the entire record. The prosecutor maintains the record reveals the trial court based its decision on the purposes and principles of Ohio’s sentencing laws.

The prosecutor notes that evidence was presented of Rahab’s fingerprints on the window of the crime scene, and that Rahab presented no witnesses in his case and didn’t offer an alibi. The prosecutor also indicated that the record showed the judge found Rahab’s 22 prior adjudications in juvenile court to be “horrible” and that he showed no remorse for the crime. The prosecutor also noted that the six-year sentence was toward the high end of the maximum eight years that the court could impose and the sentence was within the guidelines.

Citing the Court’s 2004 State v. Stafford decision, the prosecutor explains that in order to presume a judge was vindictive when imposing a greater sentence than the plea bargain, Rahab must show by clear and convincing evidence that (1) the court engaged in plea or sentencing bargaining; (2) a tentative sentence was discussed; and (3) a harsher sentence followed a breakdown in negotiations.

The prosecutor asserts Rahab’s claims fail the Stafford test because the trial court didn’t engage in bargaining, only the prosecutor’s office was involved, and the court’s role was to ensure Rahab was aware and understood the offer; the court didn’t discuss the tentative sentence, but only relayed to Rahab what was offered by the state; and, finally, the trial court wasn’t involved in the breakdown between Rahab and the prosecutors.

The prosecutor suggests the harsher sentence could be attributed to the trial judge learning more about Rahab as the trial proceeded, such as his juvenile record.

“As the trial court explained, it was imposing a sentence based upon the ‘horrible’ criminal history that, in spite of multiple people trying to help him, Rahab had built up. It was based on the facts of the case which showed that Rahab absolutely committed the underlying offense. It was based on Rahab continuing to refuse to accept responsibility for his actions at sentencing and, instead, blaming his defense attorney for forcing him to go to trial,” the prosecutor’s brief concludes.

An amicus curiae brief supporting Rahab’s position has been submitted by Ohio Association of Criminal Defense Lawyers. The Ohio Attorney General’s Office has filed an amicus brief supporting the Hamilton County prosecutor.

Offices Split Time
The Court granted the Muskingum County Prosecuting Attorney’s Office and the attorney general’s office request to split the 15 minutes in oral argument time granted to the state.

- Dan Trevas

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

Representing Malik Rahab: Marguerite Slagle, 513.946.3838

Representing the State of Ohio from Hamilton County Prosecutor’s Office: Scott Heenan, 513.946.3227

Representing Ohio Attorney General’ s Office: Eric Murphy, 614.466.8980

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Must Notice of Consequences for Violating Postrelease Control be in Sentencing Entry?

State of Ohio v. Bradley E. Grimes, Case no. 2016-0215
Fifth District Court of Appeals (Muskingum County)

ISSUE: To impose a valid postrelease control, must the language in the sentencing entry advise the convict of the sanctions for violating postrelease control, or can the entry simply reference the postrelease control statutes in the Ohio Revised Code?

In 2011, Bradley Grimes was sentenced to 18 months in prison for robbery and vandalism. The Muskingum County Common Pleas Court also placed him on three years of postrelease control (PRC).

In 2014 while on PRC, Grimes was convicted of unlawful sexual conduct with a minor, a felony. The common pleas court judge sentenced Grimes to one year in prison for the new crime, and then imposed the penalty for committing a crime while on PRC, which is to impose the time he had left on PRC to be served in prison. The judge didn’t specify the exact amount of time, but the Department of Rehabilitation and Correction (DRC) calculated and imposed 1.97 years, which was 719 days.

In 2015, Grimes filed a motion to vacate the PRC sanction, arguing he was not advised of the consequences for violating PRC, which can require spending up to one half of the original sentence in prison. He argued the lack of advisement made the sentence void and he should be released from prison.

Grimes conceded the judge advised him of the consequence for violating his PRC at his sentencing hearing on the robbery and vandalism convictions, but didn’t advise him in the sentencing entry in the court records. The entry read: “The court further notified defendant that ‘postrelease control’ is mandatory in this case for three (03) years as well as the consequences for violating conditions of postrelease control imposed by parole board under Revised Code 2967.28. The defendant is ordered to serve as part of this sentence any term for violation of that postrelease control.”

The trial court denied his motion and he appealed to the Fifth District Court of Appeals. The Fifth District found the entry was not sufficient and reversed his PRC sentence. Grimes was released with 368 days still left on his sentence for the PRC violation.

Days before the three-member panel of the Fifth District ruled on Grimes’ case, another three-member panel found the same language was sufficient to impose PRC. Recognizing the conflict, the state requested the Fifth District hold an en banc consideration to resolve the inconsistent rulings. Ultimately the full panel couldn’t concur on a decision and let the rulings of both panels stand. The state appealed Grimes’ case to the Supreme Court, which agreed to hear the case.

State Argues Referencing Statute Sufficient
The Muskingum County prosecutor notes there is no requirement in the law that a trial court cite any specific language in a sentencing entry when imposing PRC. Instead, R.C. 2929.19 requires that the trial court only needs to notify the defendant of their supervision under the Adult Parole Authority and that any violation could result in additional prison time of up to one half of the original sentence. The prosecutor notes the law on postrelease control has been developing since the General Assembly adopted the concept as part of sweeping criminal sentencing law reforms in the 1990s.

Ohio Supreme Court rulings have required the trial court to incorporate the consequences of violating PRC in the sentencing entry. The prosecutor suggests the Court’s 2010 State v. Ketterer decision has created a split among lower courts on interpreting what is required in the sentencing entry. Some courts have cited the case to claim that specific language of the PRC violation consequences must be in the entry, while others have used it to support that referencing the statute is acceptable. The prosecutor maintains that incorporation, not duplication, of what is stated at the sentencing hearing is acceptable.

Grimes Maintains Sanctions Must Be Stated In Entry
Grimes argues the state’s theory violates that maxim that a court speaks only through its journal entries. He notes that while it’s important for a judge to “notify” a defendant about PRC during a sentencing hearing, only a judgment entry can “impose” a criminal sanction. Grimes advocates that for the imposition of PRC to be valid, the judgment entry must state the correct term of the PRC and authorize the specific sanctions for violating it.

Grimes notes that by simply referencing the PRC statute and all the sanction options in it, the trial court is breaching the separation of powers by transferring the right to determine a violation and a sanction for violation to the executive branch, namely the Adult Parole Authority.

“Consistent with separation-of-powers principles, a trial court must actually impose postrelease control in order for it to become part of a defendant’s sentence,” Grimes’ brief states. “And in order to impose postrelease control, the trial court must convey certain information in its oral advisement at the defendant’s sentencing hearing and include that information in the judgment entry of sentence.”

Grimes argues that all PRC violations that require a possibility of a prison term must be stated in the defendant’s sentencing entry, and if it isn’t, the sentence is void. One practical reason, he cites, is that only the entry follows the convict to prison. DRC receives the indictment and the judgment entry when a convict enters the system, but doesn’t receive a court transcript or description of the oral pronouncements in the sentencing hearing. In instances where the specific sanction isn’t in the entry, the department and the Adult Parole Authority are left to speculate on which parts of the many varying sanctions in the law apply to a particular defendant.

“Postrelease control is unequivocally a criminal sanction, so it must be imposed by a court like any other criminal sanction. This Court should decline the state’s invitation to permit the executive to calculate and impose criminal penalties not specifically set forth in a court’s judgment entry,” Grimes brief states.

Friend-of-the-Court Briefs
An amicus curiae brief supporting the Muskingum County prosecutor’s position has been submitted by the Ohio Attorney General’s Office. The Cuyahoga County Prosecuting Attorney’s Office and the Franklin County Prosecuting Attorney’s Office have filed amicus briefs supporting the Muskingum County prosecutor. Both prosecutors noted they send thousands of convicts to Ohio prisons each year with most getting PRC orders. They advocate for clarity and note, that in many jurisdictions, Ohio courts of appeals have found entries that just reference the PRC statutes is sufficient.

Offices Split Argument Time
The Court has granted a request by Hamilton County prosecutor’s and the attorney general’s office to split their 15 minutes of oral argument time.

- 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 Muskingum County Prosecutor’s Office: Gerald Anderson, 740.455.7123

Representing Bradley E. Grimes: Stephen Hardwick, 614.466.5394

Representing Ohio Attorney General’s Office: Eric Murphy, 614.466.8980

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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.