Wednesday, Sept. 13, 2017
State of Ohio v. Mark H. Pountney, Case no. 2016-1255
Eighth District Court of Appeals (Cuyahoga County)
Rebecca L. Cyran v. Curtis P. Cyran, Case nos. 2016-1737 and 2016-1870
Second District Court of Appeals (Montgomery County)
In re R.K., Case no. 2017-0433
Tenth District Court of Appeals (Franklin County)
Cleveland Metropolitan Bar Association v. Rosel C. Hurley III, Case no. 2017-0798
Cuyahoga County
Can Fentanyl Possession Crime Be Based on Morphine Dosages?
State of Ohio v. Mark H. Pountney, Case no. 2016-1255
Eighth District Court of Appeals (Cuyahoga County)
ISSUE: Because there is no “usual dosage range” for fentanyl, may prosecutors use the dosage range for morphine specified in a standard pharmaceutical reference manual to establish a bulk amount for fentanyl when considering an illegal drug possession charge?
BACKGROUND:
Mark H. Pountney acquired the personal identification information of an elderly man and used the information to intercept 10 prescription patches from a CVS pharmacy. Each patch contained 5,000 micrograms of fentanyl dispensed at a rate of 50 micrograms per hour. Pountney confessed to stealing the patches.
A Cuyahoga County grand jury indicted Pountney on two counts of theft and one count of identity theft, which are fourth-degree felonies. He also was charged with one misdemeanor count of possession of acetaminophen with codeine, and possession of between five and 50 times the bulk amount of fentanyl, a second-degree felony.
In the trial court, Pountney stipulated to being guilty of all counts, but only “partially guilty” of fentanyl possession. He argued the amount he possessed didn’t exceed five times the bulk amount and he wasn’t guilty of a second-degree felony, but rather for possessing an amount that could lead only to a lesser, fifth-degree drug possession charge. State laws regarding drug possession don’t list a usual dose range for fentanyl.
State Calculated Drug Dosage
The sole witness at Pountney’s trial was Paul Schad, compliance specialist for the Ohio State Board of Pharmacy, who testified that he was responsible for calculating the bulk amounts of prescription drugs and for compiling the pharmacy board’s Controlled Substance Reference Table. He noted that fentanyl is a “synthetic opiate” used for moderate to severe chronic pain and is 50 to 100 times more powerful than morphine. To calculate the bulk rate, he used the American Hospital Formulary Service reference manual.
For schedule II opiates such as fentanyl, the Revised Code defines “bulk amount” as: “An amount equal to or exceeding twenty grams or five times the maximum daily dose in the usual dose range specified in a standard pharmaceutical reference manual of a compound, mixture, preparation, or substance that is or contains any amount of a schedule II opiate or opium derivative.”
Schad testified that because there’s no usual dose range for fentanyl, the range is derived by basing it on the dose range of morphine. He determined from the reference manual that the maximum daily dose of morphine was 180 milligrams. The manual’s conversion table indicated that amount converted into a maximum fentanyl dosage of 50 micrograms per hour per day. That translated into 1,200 micrograms as a maximum daily dose range. A “bulk amount” of five times the daily maximum equals 6,000 micrograms, and because a fentanyl patch contains 5,000 micrograms, Pountney had to be in possession of 1.2 patches to have five times the bulk amount, Schad said. Because the patches can’t be split, a person illegally in possession of two patches would have more than five times the bulk amount of fentanyl. A bulk amount of more than 50 times the daily maximum would equal 300,000 micrograms. Since Pountney possessed 50,000 micrograms, his possession fell between five and 50 times the bulk amount, the prosecution concluded.
The trial court found Pountney guilty on all charges. For sentencing purposes, the four possession charges were merged as allied offenses, and the prosecution sought a sentence based on the fentanyl possession, the most severe of the charges against Pountney. He was sentenced to three years in prison, fined $7,500, and placed on three years of community control. He received an 18-month sentence for identity theft to be served concurrently with the three-year sentence.
Pountney Appeals Sentence
Pountney appealed to the Eighth District Court of Appeals. The Eighth District ruled the law, R.C. 2925.01(D)(1)(d), requires the dose range be taken “directly” from a standard reference manual, and not from a separate conversion table produced by the authors of the reference manual. It ruled the state failed to prove beyond a reasonable doubt that Pountney possessed the bulk amount to convict him of a second-degree felony, but instead proved he should be convicted of the fifth-degree possession charge.
The Cuyahoga County Prosecutor’s Office appealed the decision to the Supreme Court, which agreed to hear the case.
State Proved Its Case, Prosecutor Maintains
The prosecutor explains that Ohio law allows the state to prove a drug’s maximum daily dose through expert testimony as to what a standard pharmaceutical reference manual prescribes. Schad was an expert witness, who introduced a written report using the American Hospital Formulary Service reference manual, which the state recognizes as a standard pharmaceutical reference manual.
The Eighth District ruled that the law doesn’t say the usual dose range of a drug can be proven using the usual dose range of a different drug. Prosecutors counter that fentanyl is typically prescribed after a patient has already been prescribed another opioid. Because it is prescribed so rarely, there is no usual dose listed in a manual, but rather the physician is advised to prescribe an amount that is close to the range of the painkiller the patient is currently taking. The state notes that morphine is the “prototype drug” for opioids. Because the manual’s table makes a comparison of fentanyl to morphine, the table dose range is sufficient to meet the law’s requirement, the prosecutor asserts.
“Ohio’s General Assembly purposely drafted R.C. 2925.01(D)(1)(d) to rely upon standard pharmaceutical reference manuals to define what was the ‘usual dose range’ of a particular drug. The General Assembly further empowered the state board of pharmacy to approve which manuals would be classified as standard pharmaceutical reference manuals,” the prosecutor’s brief states.
Because Schad followed the approved reference manual, the Eighth District was required to accept the analysis, and should have ruled that Pountney possessed between five and 50 times the bulk amount.
Prosecutors Want Fentanyl Exception, Pountney Argues
Pountney argues the prosecutors erroneously persuaded the trial court to borrow the daily dose rates for morphine in a reference manual to use for fentanyl. He alleges the state wants to “carve out for fentanyl cases a new standard,” which isn’t in R.C. 2925.01(D)(1)(d), that says the state can use morphine for fentanyl.
“If the prosecution wants a special provision for fentanyl that is more to the prosecution’s liking, then the General Assembly is the place to go. This Court is not a legislative body,” Pountney’s brief states.
Pountney noted that Schad believed the morphine-to-fentanyl comparison in the reference manual would be inadequately low for about half of all patients and would have to be increased. Schad also testified that there are 100-microgram per-hour fentanyl patches, and sometimes patients are prescribed to wear multiple patches at the same time to increase their daily dosage of fentanyl.
Pountney argues the law doesn’t allow an expert to state what that expert believes is the usual dosage range, but only allows the expert to help the trial court understand is the dosage range specified in the reference manual. If there is no dosage range in the manual, then the state must use the weight to prove possession of a bulk amount, which is 20 grams. The case documents note it would take 4,000 fentanyl patches to reach 20 grams.
Pountney urges the Court to reject the prosecutor’s appeal and notes the Ohio General Assembly is crafting a new law that includes a bulk amount definition for fentanyl. He notes that the bulk amount definition for 10 patches – the amount Pountney possessed – would be a fourth-degree felony under the new law if it were to pass.
Friend-of-the-Court Brief
An amicus curiae brief supporting the Cuyahoga County prosecutor’s position has been submitted by the Ohio Attorney General’s Office.
- Dan Trevas
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 Cuyahoga County Prosecutor’s Office: Christopher Schroeder, 216.443.7800
Representing Mark H. Pountney from the Cuyahoga County Public Defender’s Office: John Martin, 216.443.7583
Can Expired Domestic Violence Protection Order Be Appealed to Argue Its Possible Negative Consequences?
Rebecca L. Cyran v. Curtis P. Cyran, Case nos. 2016-1737 and 2016-1870
Second District Court of Appeals (Montgomery County)
ISSUES:
- In an appeal from a protection order that has expired, does an exception to mootness apply when the appellant faces possible collateral consequences that may not be ascertainable at the time of the appeal?
- Is there a rebuttable presumption that an appeal of an expired protection order isn’t moot?
BACKGROUND:
Curtis Cyran and Rebecca Cyran ended their marriage in 2013, and they shared parenting of their three minor sons.
On June 17, 2015, Rebecca and her fiancé arrived at Curtis’ house to pick up the children. Two of the boys had climbed into Rebecca’s car, but the third son was upset because he couldn’t find his iPod. Rebecca walked back to the house with her son. When he opened the door to the house, Rebecca said Curtis came flying out, grabbed her shoulders, and threw her back, causing her to hit the bushes. She stated that Curtis said, “She’s lucky I didn’t shoot her.”
Rebecca filed a police report and asked a court for a domestic violence civil protection order. Her fiancé and Curtis’ girlfriend each testified at the hearing. The girlfriend said she didn’t see the altercation, but heard Curtis say, “Next time you come in, I’ll shoot you.” The magistrate approved the protection order, and the Montgomery County Common Pleas Court agreed, stating the order would be effective until June 19, 2016.
Appeals Court Declines to Consider Curtis’ Claims
Curtis appealed the decision in February 2016 to the Second District Court of Appeals, arguing that a protection order can’t be put in place if it’s based on a conditional threat and that the court didn’t have enough evidence to issue the protection order.
The Second District, which issued its ruling on Oct. 14, 2016, didn’t address Curtis’ arguments, however, because the protection order had expired.
“We have consistently held that the appeal of a protection order is moot after the order has expired,” the court wrote.
The court noted, though, that other Ohio appellate courts have recognized exceptions that permit appeals when a protection order has expired. The Second District explained, “Several Ohio courts have relied on case law from [a 2006] Connecticut holding that ‘[c]ollateral consequences can include the effect on one’s credit rating, the ability to drive certain vehicles, the ability to obtain a weapons permit, the ability to obtain employment and the filing of the order in a national registry that is enforceable in 50 states.’”
The Second District concluded that nothing in the Cyran record suggested any negative consequences to Curtis’ current or future employment, his credit rating, or his ability to obtain or renew a driver’s license or acquire a weapons permit. Also, the court noted it found no Ohio law that imposes sanctions on an individual based on an expired civil protection order.
Curtis did raise other potential “collateral consequences,” asserting his ex-wife might try to use the civil protection order to her benefit in their continuing and contentious post-divorce legal battles, but the appellate court rejected the claim as conjecture.
“We will not speculate whether the parties are likely to suffer collateral consequences from an expired domestic relations protection order in unspecified future post-divorce litigation,” the opinion stated. “Without evidence of adverse collateral consequences, this court has no authority to accept hypothetical, unspecified consequences as grounds for an appeal of an expired order.”
Ohio’s Appellate Courts Have Ruled Inconsistently
Curtis appealed the Second District’s decision to the Ohio Supreme Court, which accepted the case. In addition, the Second District alerted the Court of the conflict among the state’s appellate courts on this issue. The Court agreed to review the conflict as well.
Ex-Husband Argues Negative Effects Can Arise After Order Expires
Curtis maintains that Ohio courts and courts across the country have ruled that an appeal is not moot if an appellant still suffers harm after the protection order expires.
In Wilder v. Perna (2007), the Eighth District Court of Appeals vacated an expired domestic violence civil protection order involving a dispute about injuries to a child. Although the order had expired by the time the appeal was decided, the Eighth District determined there wasn’t enough evidence for the trial court to have issued the order.
The court quoted the 2006 Connecticut decision, which stated that “in the sensitive and often explosively litigated context of family dysfunction and dissolution, there is a reasonable possibility that a domestic violence restraining order will have prejudicial collateral legal consequences for its subject, even after its expiration.”
Curtis maintains that decisions from the Third, Fifth, Sixth, Ninth, and Eleventh district appeals courts in Ohio have allowed cases arguing collateral consequences to be heard on their merits even when a protection order has expired. Nine states, including Connecticut, also have permitted this exception, Curtis contends.
Because these appeals typically can’t move through the justice system fast enough to be heard before they expire denies due process to the appellant, he also argues. He describes an expired protection order as a “digital scarlet letter.”
“[B]eing subject of a protection order carries a stigma that affects every aspect of life, from employment, to government benefits, to future litigation, and even to dating and personal relationships,” his brief to the Court stated. “With the advent of Google, anyone can search the vast array of public records on a whim and find an expired protective order.”
He asks the Court to apply an exception that overrides mootness for collateral consequences in all cases in which a domestic violence civil protection order has expired, rather than placing the burden on the party to show he will experience adverse collateral consequences in the future.
Ex-Wife Can’t Argue Case
Rebecca is also named in this case. However, because she didn’t file a brief with the Supreme Court, she will not be permitted to participate in oral argument.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket (2016-1737 and 2016-1870).
Contacts
Representing Curtis P. Cyran: Stephen Behnke, 937.435.7500
Is Lawyer Permitted to End Representation if Parent Doesn’t Appear at Parental Rights Termination Hearing?
In re R.K., Case no. 2017-0433
Tenth District Court of Appeals (Franklin County)
ISSUE: In a parental rights termination hearing, does a parent have a right to counsel that cannot be deprived unless the parent has knowingly waived his or her right to counsel, which cannot be inferred by a parent’s unexplained failure to appear at the hearing?
BACKGROUND:
In December 2013, a child identified as R.K. was born and was found to have drugs and alcohol in his system. R.K.’s mother, A.S., attended a March 2014 court hearing where custody of the child was temporarily transferred to Franklin County Children Services, and R.K. was placed in foster care. The children services agency developed a case plan for A.S. to take steps to regain custody of her child.
Additional hearings were held in 2014 and 2015, and the agency retained temporary custody of the child. On Oct. 28, 2015, though, the agency filed a motion in court for permanent custody. A.S. and her lawyer appeared and signed forms to postpone the permanent custody hearings in December 2015, January 2016, and April 2016. The next hearing was scheduled for July 11, 2016.
A.S. did not appear at the July hearing, and her lawyer submitted a request to withdraw as her counsel because she wasn’t present. He told the court that he sent her a letter on June 29, informing her of the hearing time and purpose and indicating that, if she didn’t attend, the court would likely move forward with the case and he planned to withdraw as her attorney. He noted that she responded to his letter on July 5. The trial court granted the lawyer’s request, though the lawyer remained in court in the event that A.S. arrived.
The children services agency presented testimony that some of A.S.’s drug screens tested positive for alcohol, and for cocaine one time, and that she didn’t consistently visit her child, she didn’t complete drug and alcohol treatment, and she lacked steady housing and a stable income. The guardian ad litem, who was appointed by the court to determine what situation was in R.K.’s best interests, also testified that the then 2-year-old child wanted to stay with the foster mother. The trial court granted permanent custody of R.K. to the agency.
Mother Appeals, Contesting Lawyer’s Departure from Case
Acting pro se, the mother appealed the decision to the Tenth District Court of Appeals, arguing that the trial court didn’t properly determine whether her lawyer’s reasons for ending his representation were appropriate. In her motion to have the court appoint a lawyer to represent her on appeal, she noted that she was in the hospital on the July 2016 hearing date and indicated that she attempted to let the court know that she was under medical care through the hospital and her probation officer.
The Tenth District rejected A.S.’s claim, and she appealed to the Ohio Supreme Court, which agreed to review the issue.
Court Didn’t Review All Factors, Mother Argues
A.S. maintains that the state must ensure that permanent custody cases, given their gravity, are conducted fairly and meet due process requirements. Parents must have adequate and proper representation when the state is asking to permanently terminate a parent-child relationship, she argues. In her case, however, she contends that the trial court never made a finding that she had clearly waived her right to counsel or that her actions warranted a waiver.
Ohio’s appeals courts have addressed these cases differently, she notes. The Tenth District, in her view, equated only her failure to appear at the hearing as a waiver of her right to counsel, while other appellate courts have considered the total circumstances before deciding that a person’s right to counsel has been waived.
She states that her lawyer never explained to the court, and the court never asked about, the substance of her July 5 response to his letter regarding the hearing. Her lawyer didn’t indicate that she had failed to communicate with him or that he didn’t know her position about the hearing, and the court never considered other factors, she asserts.
“Other cases seem to require more than just a failure to appear to constitute an effective waiver of the right to counsel and mandate some obligation to examine other factors before finding that the right to counsel is waived,” her brief to the Supreme Court states. “It is suggested that this Court should set a standard that would make it difficult for the attorney to withdraw and would encourage counsel not to abandon their clients when the state is trying to permanently terminate their parental rights. This not only serves to protect the interests of the clients, but it serves the interest of justice and of the public as well.”
Mother’s Actions Conveyed Waiver of Counsel, Agency Contends
Although there isn’t a constitutional right to appointed counsel in permanent custody proceedings, the child services agency explains that the Ohio Supreme Court, state law, and juvenile court rules have provided parents the right to be represented by counsel when the termination of parental rights are involved. However, because the right isn’t absolute, a parent can be found to have waived this right, the agency notes.
The agency agrees that a trial court must consider all the circumstances of each individual custody case when considering whether to permit a lawyer to withdraw his or her representation of a parent. It counters, though, that the court did so in this case. In the agency’s view, the mother didn’t adequately communicate her wishes about the permanent custody hearing to her lawyer, didn’t cooperate with and provide information to her lawyer, didn’t keep her lawyer informed about why she couldn’t attend the hearing, and then failed to appear at the hearing. The mother’s claim that she was in the hospital and contacted her probation officer is information “outside the record and cannot be considered on appeal,” the agency states in its brief.
The trial court considered all of these circumstances, which supported the determination that A.S. had waived her right to counsel, the agency argues, concluding that the trial court didn’t err by allowing her lawyer to withdraw.
The agency adds that even if the trial court had rejected the lawyer’s request to withdraw from the case, substantially the same evidence would have been presented at the hearing. Because A.S. was failing to meet the requirements of her case plan, the child’s best interests still supported termination of the mother’s parental rights and the transfer of permanent custody, the agency asserts.
Guardian ad Litem Waives Oral Argument
Also named in the case is Mark Murphy, who was R.K.’s guardian ad litem. Murphy won’t be allowed to argue the case because he didn’t file a brief on the issues.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing A.S., mother, from the Franklin County Public Defender’s Office: John Keeling, 614.525.8783
Representing Franklin County Children Services: Robert McClaren, 614.275.2587
Attorney Discipline
Cleveland Metropolitan Bar Association v. Rosel C. Hurley III, Case no. 2017-0798
Cuyahoga County
The Ohio Board of Professional Conduct, which reviews complaints of misconduct by lawyers and judges, recommends that Cleveland attorney Rosel C. Hurley III be disbarred from practicing law in the state. The board concluded that Hurley, while suspended from practicing law, presented himself as an attorney in a series of letters to employers in which he demanded money as a settlement for alleged employment discrimination.
Attorney Convicted of Felony, Suspended from Practicing Law
The Ohio Supreme Court suspended Hurley on an interim basis in March 2013 because he had been convicted of a felony for misusing a law enforcement database to retrieve information about this ex-wife and children while he was an assistant Cuyahoga County prosecutor. In April 2015, the Supreme Court suspended Hurley for two years for this misconduct and for making harassing calls to his former spouse.
Beginning in January 2016, Hurley sent letters to employers alleging that their postings for position openings violated the 1964 federal Civil Rights Act because the ads excluded any applicants with felony convictions. He stated in the letter that such blanket exclusions amounted to employment discrimination with “disastrous effect on individuals such as our client.” He added that “our client” would file an official complaint with the Equal Employment Opportunity Commission (EEOC) unless the employer paid Hurley’s law firm, Arnuma Law, a $500 settlement within 30 days and agreed to change their practices. He signed the letters with “J.D., Esquire.”
Hurley sent these letters to employers in Connecticut, Colorado, Florida, Georgia, Indiana, Maryland, Missouri, Pennsylvania, and Texas that had posted ads on sites such as Craigslist.com, Indeed.com, and ZipRecruiter.com. One employer sent Hurley a $500 check, which he cashed.
Letters Threatened Employers
The board’s report to the Supreme Court notes that Hurley’s letters didn’t explain that his “client” was actually himself, he was suspended from practicing law, and he wasn’t allowed to represent clients.
“[Hurley] misused his position as a lawyer in order to threaten and intimidate small businesses. This was his scheme,” the report states.
At a hearing before the panel that reviewed the disciplinary case, Hurley testified that he needed a job because he still owed $4,000 in court fines for his felony conviction, more than $1,200 in costs for his first disciplinary case, and $270 to the Supreme Court’s Office of Attorney Services.
The panel concluded, and the board agreed, that Hurley violated professional conduct rules because he claimed to represent a client while he was suspended, held himself out as a lawyer when he used “J.D.” and “Esquire” in his letters, made misleading statements, and acted dishonestly.
The board noted that there were several aggravating factors, including a pattern of misconduct and no acknowledgement of wrongdoing, but no mitigating circumstances, and recommended that Hurley be disbarred from practicing law in Ohio.
Attorney Defends Letters, Claims Mitigating Factors
Hurley objects to the board’s recommendation of disbarment. In his brief to the Court, he cites a 1963 U.S. Supreme Court case (Sperry v. Florida) involving a non-lawyer who was permitted to practice before the U.S. Patent Office. He argues that when a federal agency has a rule allowing a non-attorney to practice before it, a state can’t claim that the practice is unauthorized. Because the EEOC allows any individual to file a complaint on behalf of another person, his actions were proper, Hurley contends.
Hurley also maintains that he informed the panel of mitigating circumstances: he fully cooperated with the Cleveland Metropolitan Bar Association, which investigated his case; he wasn’t acting selfishly because his home had been foreclosed and he was trying to help his two children in college to pay their expenses; he had been diagnosed with a mental health disorder and was receiving treatment; he returned the $500 he received from one employer, so no one suffered monetary losses; and he has apologized to the bar association, the panel, and the Court.
Bar Association Points to Pattern of Misconduct
In response, the bar association notes that Hurley didn’t actually apply for jobs with the employers to which he sent the letters alleging employment discrimination. Two small business owners who testified at the hearing said they didn’t have lawyers on their staff and feared being sued based on the letters.
The bar association contends in its brief that Hurley sent the letters to try to make easy money, accepts no responsibility for his actions, and “has a pattern of allowing circumstances in his life to lead to ethical misconduct.” Hurley’s implication that his deceptive letter is allowed because a 1963 U.S. Supreme Court case ruled that non-lawyers are permitted to appear before federal agencies indicates his failure to understand his misconduct and his “blatant violation of this Court’s suspension order,” the association maintains.
The board also correctly found no mitigating circumstances, the bar association argues. Although Hurley was generally cooperative during the disciplinary process, the bar association states that he didn’t demonstrate full and free disclosure to the board, as shown by his repeated denial that the letters were misleading. His difficult personal financial situation supports a selfish motive in his actions, and he didn’t provide evidence that his mental health disorder played a role in his misconduct, the bar association adds.
Disbarment is necessary and appropriate in this case to protect the public, the bar association concludes.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Rosel C. Hurley III, pro se: 216.832.2544
Representing Kelly and Pamela Helminger: Michael Voorhees, 513.489.2555
Representing the Cleveland Metropolitan Bar Association: Heather Zirke, 216.696.3525
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