Court News Ohio
Court News Ohio
Court News Ohio

Wednesday, June 17, 2020

Craig D. Corder et al. v. Ohio Edison Company, Case No. 2019-0951
Seventh District Court of Appeals (Harrison County)

State of Ohio v. Ursula Owens, Case No. 2019-0980
Eighth District Court of Appeals (Cuyahoga County)

Timothy D. Gerrity v. John E. Chervenak, trustee of the Chervenak Family Trust et al., Case No. 2019-1123
Fifth District Court of Appeals (Guernsey County)

State of Ohio v. David Castner II, Case No. 2019-1221
Fifth District Court of Appeals (Richland County)


Can Court Hear Dispute about Power Company’s Spraying of Herbicide to Clear Power Lines?

Craig D. Corder et al. v. Ohio Edison Company, Case No. 2019-0951
Seventh District Court of Appeals (Harrison County)

ISSUE: Does the Public Utilities Commission of Ohio have exclusive jurisdiction to determine whether a landowner’s easement determines the methods that an electric utility can use to maintain its power lines?

BACKGROUND:
In 1948, Ohio Edison Company signed easements to traverse land now owned by Craig, Jackie, and Scott Corder in Harrison County. The easements were legal agreements granting the company permission to maintain and remove brush near the high-powered electric line that ran across 12.1 acres of the Corders’ properties. In 2017, Ohio Edison notified the Corders it planned to use herbicide to remove brush and underbrush over 3.9 acres of the Corders’ land.

The three easements had identical language that allowed the company “the right to trim, cut and remove at any and all times such trees, limbs, underbrush or other obstructions” that Ohio Edison believes could interfere or endanger its lines and equipment. The Corders objected to the use of herbicides and requested that the company continue its former practice of trimming the vegetation on the property and removing the brush. Ohio Edison countered that the brush had become increasingly denser over the years and the only reasonable clearing method was the herbicide.

The Corders sought a declaratory judgment in Harrison County Common Pleas Court, asking the court to find that the easement language doesn’t allow Ohio Edison to use herbicides. The family also asked the court for an injunction to block Ohio Edison from proceeding with its brush removal plan. The trial court dismissed the case, finding that the Public Utilities Commission of Ohio (PUCO) had exclusive jurisdiction over the matter because it was a service-related utility issue.

The Corders appealed to the Seventh District, which reversed and remanded the case to the trial court. The Seventh District ruled the matter was a contract dispute concerning the language of the easement, and that a common pleas court has jurisdiction to consider the case.

Ohio Edison appealed the decision to the Supreme Court, which agreed to hear the case. To comply with state directives during the COVID-19 pandemic, the Court will hear the appeal via videoconference.

Removal Method is PUCO Matter, Power Company Asserts
Ohio Edison maintains the essence of the Corders’ dispute is the method of removing the brush by the use of herbicide. While the Corders couched their legal argument as a contract dispute based on the interpretation of the word “remove” in the easement, the company argues neither side is disputing the easement’s grant of a right to Ohio Edison to remove the brush from the area near its power lines.

The company explains that after the 2003 massive regional blackout, the Federal Energy Regulatory Commission required electric utilities to develop transmission vegetation management programs to ensure trees and other overgrowth don’t lead to widespread power line destruction. The PUCO has the authority in Ohio to approve electric utility vegetation management programs. Since 2003, the company has been introducing more modern control methods into its vegetation management plan, which includes the use of herbicides.

The company argues the easements don’t prevent the use of herbicide just because in the past the company hasn’t used chemicals to clear the Corders’ property. If the Corders want to dispute the removal plan, the matter must be considered by the PUCO, not a common pleas court, the company maintains.

Ohio Edison points to the Ohio Supreme Court’s 2008 Allstate Ins. Co. v. Cleveland Elec. Illm. Co. decision, in which the Court set up a two-part test to determine whether a matter must be considered first by the PUCO. If the PUCO’s administrative experience is required to resolve the dispute, and if the complaint constitutes a practice normally authorized by a utility, then the commission has exclusive jurisdiction.

Ohio Edison argues the Corders’ complaint meets both conditions. Rather than considering this a contract dispute, the company maintains the Corders are complaining about the vegetation management plan. Those plans are authorized based on the commission’s experience in regulating the methods utilities employ to operate safely, the company asserts. Vegetation management is a long-standing practice the PUCO normally authorizes Ohio Edison and other utilities to carry out, which meets the second part of the Supreme Court’s test, the company concludes.

Landowners Contest Removal Right, Not Method
The easement is a contract, and a dispute about the terms of the easement is a matter of law appropriately considered by a court, not a regulatory agency, the Corders maintain. They argue the dispute isn’t about the definition of the word “remove,” but rather the phrase in the easement stating Ohio Edison has the right to “cut, trim and remove” brush from around the power lines. The absence of the comma after the word “trim” is significant, and indicates the company’s rights under the 1948 easement are limited to physically trimming or cutting vegetation and then removing it. The Corders object to spraying herbicide on their land and leaving the brush to die in place.

The PUCO has no specialized experience in interpreting contract terms, and this isn’t a service-related matter, the family asserts. This case isn’t about Ohio Edison’s discretion to chose what methods it wants to deploy as long as that method complies with the easement’s terms, the Corders argue. The easement doesn’t permit the company to simply “remove” the brush, but permits removal once the vegetation has been trimmed or cut, the Corders assert. The contract doesn’t say “trim, cut, and remove,” nor does it say “trim, cut, or remove,” they note. The family points to the Seventh District’s opinion, which found that if Ohio Edison had a third, independent right to “remove” vegetation, the words “trim” and “cut” would be superfluous. The Corders cite case law stating courts must presume words are used for specific reasons, and should avoid interpretations that render portions of laws meaningless or unnecessary.

The family maintains Ohio Edison is fully aware that its 1948 easements limit the company’s
removal options because the company has updated the language twice since then, in 1979 and 1989. The 1989 version of the easement grants the utility “full authority to trim, cut, remove, or otherwise control” trees and other obstructions. The term “otherwise control” could give Ohio Edison the right to use herbicide, but that right isn’t granted for the Corders’ properties, the family argues.

The Corders state it would be helpful if the Court affirms the Seventh District’s decision and directs the trial court to block Ohio Edison from using the herbicide. However, they note, the issue before the Court is only whether the common pleas court can consider the matter. The family maintains the trial court, not the PUCO, is the proper venue  for the dispute.

Dan Trevas

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

Contacts
Representing Craig D. Corder et al.: Charles Kidder, 614.717.1788

Representing Ohio Edison Company: Denise Hasbrook, 419.242.7985

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Should Jury Have Received Instruction on Reckless Homicide in 5-Year-Old’s Death?

State of Ohio v. Ursula Owens, Case No. 2019-0980
Eighth District Court of Appeals (Cuyahoga County)

ISSUE: Did the trial court violate a defendant’s constitutional rights by not providing a jury instruction that would have allowed the jury to consider the lesser-included offense of reckless homicide on the felony murder charge?

BACKGROUND:
Ursula Owens and Tequila Crump lived in a Cleveland home with Crump’s 5-year-old daughter, identified in court documents as T.M. On March 17, 2017, at about 10 p.m., 911 was called. Owens told emergency medical services staff who arrived at the house that T.M. had a seizure around noon that day and had been sleeping ever since. At the hospital, doctors found that T.M. had a life-threatening brain injury. The child died the next day. The medical examiner concluded that T.M. died from blunt-force injuries.

Owens and Crump were indicted in April 2017 for multiple offenses related to the child’s death. Owens’ indictment included 15 counts of aggravated murder, murder, felonious assault, and endangering children. The Cuyahoga County prosecutor alleged that the couple assaulted the child that morning, leading to the brain injury that killed her. Owens and Crump denied the charges, stating that T.M. had a seizure due to an undiagnosed condition and her death was natural.

During Owens’ and Crump’s trial, their lawyers asked the court to give a jury instruction on reckless homicide as a lesser offense. The court agreed and gave the instruction on reckless homicide for the aggravated murder counts. The court didn’t give the instruction to the jury on reckless homicide as a lesser offense for Count 3, referred to as felony murder.

Owens Convicted on Some Charges, Acquitted on Others
On the two aggravated murder counts, the jury found Owens guilty of the lesser offense of reckless homicide. The jury also convicted her on Count 3 and several of the charges for felonious assault and endangering children. In July 2018, the trial court sentenced her to 15 years to life on Count 3 and 10 years on the other counts, for a total prison sentence of 25 years.

Owens appealed to the Eighth District Court of Appeals, which upheld the trial court’s decision. She appealed to the Ohio Supreme Court, which agreed to review whether the jury should’ve been given instructions on the lesser offense of reckless homicide for the felony murder charge. To comply with state directives during the COVID-19 pandemic, the Court will hear Owens’ appeal via videoconference.

She Didn’t Intend to, or Purposely, Kill Child, Woman Argues
Owens notes that the jury unanimously rejected the aggravated murder charges and instead found her guilty of reckless homicide. She adds that, in Ohio, reckless homicide also is a lesser-included offense to a charge of felony murder. Reviewing various Court opinions on the topic, her brief maintains:

“The mens rea/causation element of Felony Murder is clearly different than the mens rea of reckless homicide. Reckless homicide requires ‘a heedless indifference to the consequences’ and a ‘disregard’ of a known risk, whereas Felony Murder requires a ‘knowing’ mens rea and an underlying felony that results in the death of the victim.”

However, Owens notes, the Eighth District concluded that reckless homicide no longer can be considered a lesser offense of felony murder in Ohio under R.C. 2903.02(B). The appeals court stated that felony murder doesn’t require a “culpable mental state.” Owens’ brief rejects that interpretation, arguing felony murder requires “knowingly causing death” when the underlying offense is felonious assault, as in this case. The “knowing” needed to commit a felonious assault is transferred to the homicide, making it a killing committed with the mental state necessary to be a murder offense under Ohio law, Owens maintains.

But, her brief argues, Owens was found guilty of murder without any proof of intent or purpose to kill the child. The critical issue of whether a jury instruction on reckless homicide as a lesser offense to felony murder should’ve been given wasn’t addressed by the appeals court, so it must be reviewed by the Supreme Court, Owens states. Noting that the jury found her guilty of reckless homicide instead of aggravated murder, she contends that decision proves the evidence supports reckless homicide rather than felony murder. She points out that the medical experts at the trial disagreed about whether T.M.’s death was caused by an assault that inflicted blunt-force trauma or by multiple seizures caused by a rare but undiscovered clotting condition. The jury was entitled to have the option of reckless homicide when deciding guilt on the felony murder charge, she asserts. Without the instruction, she was denied her rights to due process and a fair trial, she concludes.

Jury Instruction Request Not Made for Count 3, and Not Needed, State Maintains
The Cuyahoga County Prosecutor’s Office responds that although Owens asked for a jury instruction on reckless homicide as a lesser-included offense, she didn’t make that request for specific counts. She then failed to object when the court didn’t give the jury instruction for the felony murder charge, the office notes.

The prosecutor disputes Owens’ view that felony murder requires a mental state of knowingly causing death when felonious assault is the underlying offense. The prosecutor maintains the view isn’t supported by the legislature’s actions or by case law. Owens wants the Court to create a mens rea, or required state of mind, for R.C. 2903.02(B), even though earlier Court decisions – such as State v. Trimble (2009) and State v. Fry (2010) – concluded the legislature didn’t include a mens rea in the statute, the prosecutor argues.

The prosecutor’s brief also states that “[t]he controversial, hardline holding by the Eighth District does not alter the integrity of the jury’s conviction of [Owens].” She isn’t entitled to the reckless homicide jury instruction for the felony murder charge because the evidence doesn’t reasonably support both an acquittal of felony murder and a conviction for reckless homicide, the prosecutor maintains. Even though Owens was convicted of reckless homicide instead of aggravated murder, that conclusion doesn’t mean she can be found to be reckless only, and nothing more, in her actions surrounding T.M.’s death, the prosecutor argues. The office states that the jury found Owens purposely committed the felonious assault, so she can be held liable for murder.

The office also maintains that any error by the trial court is “harmless” because the conviction was supported by the “manifest weight of the evidence.” In this case, the office notes, there was testimony from multiple eyewitnesses and medical experts, as well as her own statements, about what caused T.M.’s death.

Kathleen Maloney

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

Contacts
Representing Ursula Owens: Timothy Sweeney, 216.241.5003

Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Brandon Piteo, 216.443.3189

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Did Guernsey County Property Owner Take Appropriate Steps to Identify Mineral Rights Holder?

Timothy D. Gerrity v. John E. Chervenak, trustee of the Chervenak Family Trust et al., Case No. 2019-1123
Fifth District Court of Appeals (Guernsey County)

ISSUES:

  • Does R.C. 5301.56, Ohio’s Dormant Mineral Act, require strict compliance when mandating that each holder of a property’s mineral interests, or each holder’s successors and assignees, be served notice by certified mail of the abandonment of the mineral rights before resorting to publication in a general circulation newspaper?
  • To satisfy due process and the publication provision in R.C. 5301.56(E), must a property’s surface owner employ reasonable search methods reflecting due diligence to locate all holders of a severed mineral interest?

BACKGROUND:
In November 1961, T.D. Farwell sold approximately 108 acres in Guernsey County to Robert Schaefer, but Farwell retained his rights to the property’s coal, oil, and gas minerals. The transaction severed the ownership of the surface property from the minerals beneath it.

The mineral rights were transferred from Farwell to his daughter, Jane Richards, in October 1965. Richards died in December 1997 in Florida, where she lived. Her will conveyed her real estate interests to her son, Timothy Gerrity, who is Richards’ sole descendant and heir.

In November 1999, John and Gloria Chervenak acquired the surface property from Schaefer. The deed stated that, based on the 1961 deed, the property excluded the mineral rights. In 2012, in an effort to merge the surface property with the mineral interests, the Chervenaks searched Guernsey County records and found that Richards was the “record holder” of the mineral rights. The records listed a Cleveland address for Richards. 

They sent a notice of abandonment on March 23, 2012, by certified mail to Richards, but it was returned with the stamp “Vacant – Unable to Forward.” On May 4 of that year, the Chervenaks published a notice of abandonment in The Daily Jeffersonian. Receiving no response, they recorded an “affidavit of abandonment” in June with the Guernsey County Recorder’s Office. The title to the mineral estate transferred to the Chervenaks. Later that year, they leased the mineral rights to an oil and gas development company.

Heir to Mineral Rights Sues, Asserting He Wasn’t Notified
Five years later, Gerrity filed a lawsuit in Guernsey County Common Pleas Court in part against John Chervenak, the trustee of the Chervenak Family Trust. Gerrity argued the abandonment affidavit was invalid, and he owned the property’s mineral rights as his mother’s heir. The court, however, granted summary judgment to Chervenek.

Gerrity appealed to the Seventh District Court of Appeals, which upheld the trial court’s decision. He appealed to the Ohio Supreme Court, which accepted the case for review. To comply with state directives during the COVID-19 pandemic, the Court will hear Gerrity’s appeal via videoconference.

Notification Requirement in Ohio’s Dormant Mineral Act
R.C. 5301.56(E) states:

“Before a mineral interest becomes vested under division (B) of this section in the owner of the surface of the lands subject to the interest, the owner of the surface of the lands subject to the interest shall do both of the following:

(1) Serve notice by certified mail, return receipt requested, to each holder or each holder’s successors or assignees, at the last known address of each, of the owner’s intent to declare the mineral interest abandoned. If service of notice cannot be completed to any holder, the owner shall publish notice of the owner’s intent to declare the mineral interest abandoned at least once in a newspaper of general circulation in each county in which the land that is subject to the interest is located.

(2) At least thirty, but not later than sixty days after the date on which the notice required under division (E)(1) of this section is served or published, as applicable, file in the office of the county recorder of each county in which the surface of the land that is subject to the interest is located an affidavit of abandonment that contains all of the information specified in division (G) of this section.”

Notification Requirement in Ohio’s Dormant Mineral Act
R.C. 5301.56(E) states:

“Before a mineral interest becomes vested under division (B) of this section in the owner of the surface of the lands subject to the interest, the owner of the surface of the lands subject to the interest shall do both of the following:

(1) Serve notice by certified mail, return receipt requested, to each holder or each holder’s successors or assignees, at the last known address of each, of the owner’s intent to declare the mineral interest abandoned. If service of notice cannot be completed to any holder, the owner shall publish notice of the owner’s intent to declare the mineral interest abandoned at least once in a newspaper of general circulation in each county in which the land that is subject to the interest is located.

(2) At least thirty, but not later than sixty days after the date on which the notice required under division (E)(1) of this section is served or published, as applicable, file in the office of the county recorder of each county in which the surface of the land that is subject to the interest is located an affidavit of abandonment that contains all of the information specified in division (G) of this section.”

Heir Maintains that Mineral Rights Holders Must Be Identified
Gerrity stresses that, according to the law, notice must be served to each holder or each holder’s successors or assignees. It doesn’t say “any” holder, Gerrity notes, arguing the statute is unambiguous in its mandate that each mineral rights holder or successor be notified. However, he states, he wasn’t notified as the current holder of the mineral rights about the Chervenaks’ actions to declare the mineral rights abandoned. The Chervenaks’ attempt by certified mail to notify only his mother didn’t comply with the law because they didn’t notify him, Gerrity maintains.

He contends the Chervenaks never attempted to identify him. Oil and gas rights have substantial value, so the safeguards in R.C. 5301.56, Ohio’s Dormant Mineral Act (DMA), should require strict compliance, he argues.

In Gerrity’s view, the law mandates that all holders of the mineral rights must be identified. If the certified mail notice can’t be completed, then notice must be published in a general circulation newspaper. Gerrity notes that the DMA doesn’t offer a path, though, for surface property owners if the mineral rights holders aren’t identified.

“Surface owners, litigants , and the lower courts, have been reading into the DMA the opportunity for a surface owner to rely upon the statute as a remedy even in those instances where holders have not been identified,” his brief states.

Property Owner Contends Each Step in Law Was Followed
Chervenak responds that the General Assembly made clear the DMA’s intent: “Sections 5301.47 to 5301.56, inclusive, of the Revised Code, shall be liberally construed to effect the legislative purpose of simplifying and facilitating land title transactions by allowing persons to rely on a record chain of title ….”

He also notes in his brief that the Ohio Supreme Court has described the DMA’s legislative purpose as “‘to enable property owners to clear their titles of disused mineral interests’” and “to help clear title to dormant mineral interests and to encourage the development of Ohio’s mineral resources by allowing parties to rely on a record chain of title to them.” The challenges in finding every mineral rights holder for a severed estate is one of the reasons the legislature enacted the DMA, the Court has stated.

Chervenak points out that the Guernsey County public records gave no indication that Richards had died and left an heir.

“If the Court adopts Mr. Gerrity’s views, the legislature’s policy of ‘simplifying and facilitating land title transactions by allowing persons to rely on a record chain of title’ will be nullified because a previously unidentified holder could come forward, at any time, claiming that certified mail notice had to be attempted on him even though no suggestion of his purported interest appears anywhere as of record in the county where the mineral estate is located,” Chervenak’s brief states.

Chervenak maintains that the act gives holders of severed mineral rights six different methods – called “savings events” – to ensure that they keep their mineral rights. He argues that Gerrity failed to take these steps that would have preserved his mineral rights: record a certificate of transfer of the rights when his mother died; record any notice of preservation of those rights; sell, lease, or develop the mineral rights; create a separate tax parcel for the mineral estate; or obtain and record a drilling or mining permit.

Chervenak also contends that when a mineral rights holder can’t be located through certified mail, the publication in a newspaper is the next required step in the law for attempting to find the mineral rights owners. This publication step applies any time a holder can’t be reached by certified mail, not only when the holders have been identified, Chervenak asserts.

Heir Also Argues for Reasonable Diligence from Property Owners
When property owners are trying to strip the mineral rights from unidentified holders, Gerrity asks the Supreme Court to at least require that courts determine whether the property owners used “reasonable due diligence” to find the mineral rights holders. He suggests that a surface owner’s affidavit include detailed information so courts can review whether reasonable diligence was made to identify and find the mineral rights holders. Such a process would offer “a reasonable, judicial safeguard” before severed mineral interests are taken from a lawful holder, his brief argues.

Gerrity maintains that searching county tax records, recorded documents, and probate filings isn’t adequate to show due diligence when more extensive information is readily available online to trace heirs and record holders. In this case, the Chervenaks indicated they searched only Guernsey County public records and nothing more, Gerrity notes, stating, “It was a mere gesture, at best.” He adds that Cuyahoga County records show his mother sold the Cleveland home in 1967, so the Chervenaks should have known she didn’t live at that address. Gerrity points to various internet resources that he contends would’ve produced his identity and longtime residence in Columbus. Such steps would provide appropriate due process in these property rights cases, he argues.

Property Owner Argues Due Diligence Unworkable and Not Part of Law
Chervenak maintains that the DMA doesn’t require service on mineral rights holders that “might exist outside the record chain of title.” Such holders have indicated their intent to abandon the rights by not taking any of the “savings” steps provided in the act, he argues.

Gerrity’s position advocating for “reasonable diligence” contradicts the DMA’s stated reliance on county public records and is an “unreasonable and unworkable standard,” Chervenak’s brief states. Noting that Gerrity conducted his internet search six years after the 2012 published notice, Chervenak points out that the internet constantly changes and search results vary based on factors such as the searcher’s geographic location, web browser, and search history. He also asks how far a surface property owner must go before “reasonableness” will be established. Regardless, this standard doesn’t reflect the standard lawmakers put in place, he argues.

As for due process, Chervenak contends that a constitutional argument can’t be made because Gerrity didn’t raise the issue in the lower courts or inform the Ohio Attorney General’s Office that he was making a claim about the constitutionality of the DMA. Even so, Chervenak states, this argument fails based on the U.S. Supreme Court’s decision in Texaco v. Short (1982), which reviewed Indiana’s dormant mineral act. The Supreme Court ruled that the statute’s provisions gave all the notice to mineral rights holders that is constitutionally required.

Individuals and Groups Submit Friend-of-the-Court Briefs
The following individuals who contend they hold mineral rights in Ohio have filed amicus curiae briefs supporting Gerrity’s position:

  • Harry A. Fonzi III and Linda Grimes, who are claiming mineral rights in separate cases pending before the Seventh District Court of Appeals
  • Jeffrey H. Sharp, Bradley W. Sharp, Gregory C. Smith, J. Kent Smith, Jeffrey S. Smith, Lelah Cline Smith, and Scott Johnson, who state they held mineral rights in Jefferson County and disagree with the Seventh District’s ruling in their case.

In support of Chervenak’s position, the Ohio Farm Bureau Federation and Guernsey County Farm Bureau jointly submitted an amicus brief, as did several property owners:

  • Allen B. Miller et al., who are parties in Monroe County cases
  • Cassandra Ridenour, Senterra, Stefan Toma, Pora Putney Ridge Properties, and Paines Run – surface property owners in Belmont, Guernsey, and Monroe counties involved in pending litigation
  • Ohio River Collieries Company, which is part of a pending Seventh District case over the mineral rights under 102 acres in Belmont County.

Kathleen Maloney

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

Contacts
Representing Timothy D. Gerrity: James Mathews, 330.499.6000

Representing John E. Chervenak, trustee of the Chervenak Family Trust et al.: Michael Dortch, 614.464.2000

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Is Failure to Complete Treatment a Technical Violation of Community Control?

State of Ohio v. David Castner II, Case No. 2019-1221
Fifth District Court of Appeals (Richland County)

ISSUE: Is failure to complete a treatment program, which is part of a community control sanction, a technical violation of community control?

BACKGROUND:
In May 2018, David Castner pleaded guilty to aggravated possession of drugs, a fifth-degree felony. The trial court sentenced him to two years of community control. Part of his sentence included completion of Richland County’s “Re-Entry Court” and a program run by Volunteers of America (VOA).

In July 2018, Castner was terminated from the VOA program, and his failure to complete it led to a probation violation charge. The trial court found he violated his community control by not completing the VOA program. The court continued his community control with a new sanction, requiring he complete a program at Alvis House, a Columbus-based halfway house. While at Alvis House, Castner had contact with a young girl and attempted to have contact with other young girls, which violated his treatment program because he had a history of sexually assaulting juveniles.

By not completing the Alvis House program, he was removed from Re-Entry Court. The trial court then terminated his community control and sentenced him to one year in prison.

Castner appealed to the Fifth District Court of Appeals, arguing that failure to complete a treatment program is a “technical violation” of community control. He asserted that under R.C. 2929.15(B)(1)(c)(i), the maximum time a person convicted of a fifth-degree felony can be sentenced to prison for a technical violation is 90 days. The Fifth District cited its 2018 State v. Mannah decision, which found failure to complete a “substantive rehabilitative requirement” wasn’t a technical violation of community control and the appeals court affirmed the trial court’s decision.

Castner appealed the ruling to the Ohio Supreme Court, which agreed to hear the case. To comply with state directives during the COVID-19 pandemic, the Court will hear the appeal via videoconference.

Supreme Court Already Defined ‘Technical Violation,’ Offender Maintains
Castner notes the Ohio Revised Code doesn’t define a “technical violation” of a community control sanction. He argues the Ohio Supreme Court in its 1993 State ex rel. Taylor v. Ohio Adult Parole Auth. decision defined “technical violation” for parole violations. Technical violations are those “which are not criminal in nature,” the Court wrote, such as failure to report to a parole officer, or leaving employment. Castner explains the Court and lower courts have treated the terms probation and parole as similar concepts, and have extended the rules applying to those sanctions to community control.

Once words acquire “a settled meaning,” those definitions apply to subsequent interpretations of statutes, he maintains, and lower courts aren’t permitted to substitute their own meaning of the terms. The legislature is presumed to know how the Court interpreted the terms, and is empowered to change the definitions , but it hasn’t defined “technical violation” for a community control sanction, he asserts.

Failure to complete a program isn’t a crime, Castner notes, and must be considered a technical violation. He concludes the maximum prison sentence he could receive under R.C. 2929.15(B)(1)(c)(i) is 90 days.

Court Definition Not Applicable, Prosecutor Argues
The Richland County Prosecutor’s Office argues the definition of “technical violation” in Taylor isn’t applicable to community control and hasn’t been followed by several Ohio appellate districts. The prosecutor notes that at least seven appellate districts follow the Fifth District’s Mannah decision, finding that failing to abide by a “substantive rehabilitative requirement” isn’t a technical violation under the law.

The lower courts have reasoned that had the legislature wanted to limit technical violations to all actions that aren’t criminal in nature, it easily could have done so, the prosecutor notes. Instead, the law was written to give judges more discretion in crafting community control sanctions and determining which violations are substantive, the prosecutor explains.

Castner’s failure to complete treatment programs was more than a technical violation of community control, the prosecutor asserts. Further, Castner’s attempt to contact young girls while in Alvis House constitutes attempted importuning under R.C. 2907.07(A) or (C), which is criminal in nature, the prosecutor concludes. The trial court was within its rights to sentence Castner to one year in prison, the prosecutor maintains.

Dan Trevas

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

Contacts
Representing David Castner II: Darin Avery, 419.953.4773

Representing the State of Ohio from the Richland County Prosecutor’s Office: Joseph Snyder, 419.774.5676

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