Court News Ohio
Court News Ohio
Court News Ohio

Tuesday, March 8, 2022

State of Ohio v. Victoria Michelle Drain , Case no. 2020-0652
Twelfth District Court of Appeals (Warren County)

State of Ohio v. Denny W. Blanton Jr. , Case no. 2021-0172
Fourth District Court of Appeals (Adams County)

Karen Michael [F.K.A. Miller] v. David Miller (Appeal by Cody Miller, Third-Party Appellant/Cross-Appellee.), Case no. 2021-0361
Eighth District Court of Appeals (Cuyahoga County)

Death Penalty Appeal Concerns Prisoner Who Killed Another Prisoner in Psychiatric Unit

State of Ohio v. Victoria Michelle Drain, Case No. 2020-0652
Warren County Common Pleas Court

While serving a prison sentence at the Warren Correctional Institution, Victoria Drain attacked and murdered someone else incarcerated at the facility. Drain pleaded no contest to multiple offenses and was sentenced to death for the April 2019 murder. Individuals facing the death penalty in the state receive an automatic appeal to the Supreme Court of Ohio.

Drain’s brief states that Drain was identified as male at birth but is a transgender person who prefers the name Victoria and to use female pronouns. The Warren County prosecutor’s brief uses male pronouns for Drain. The prosecutor writes that the state’s use of male pronouns is based on the evidence in the trial court record and a statement Drain made to a psychologist during the trial expressing a preference for male pronouns.

Prison Sentence Imposed for 2016 Murder
While in her 30s, Drain confronted her father in 2016 about sexual and other abuse during her childhood. Drain stabbed her father, injuring him. Soon after, Drain argued with Randy Grose about the stabbing. Drain said Grose had paid her when she was a teenager to have sex with him and other men. During the 2016 argument, Drain attacked and killed Grose.

Drain pleaded guilty in Hancock County to felonious assault and aggravated murder, and was sentenced to 38 years to life in prison.

Prisoner Transferred to Mental-Health Treatment Unit
In 2019, Drain was transferred to the residential treatment unit of the Warren Correctional Institution in Lebanon. The unit provides intensive psychiatric services to incarcerated men.

Drain had an individual cell in the unit, but everyone could leave their cells during mealtimes. In April 2019, Christopher Richardson, also incarcerated in the residential treatment unit, went into Drain’s cell to smoke K2, a synthetic marijuana. Drain left the cell about 15 minutes later, and Richardson was discovered unconscious.

Officers located Drain, who got down on her knees and put her hands in the air. She confessed to attacking Richardson and answered officers’ questions. Richardson died two days later.

Drain told officers she had planned to kill another prisoner that day who was a child molester. Drain fashioned a heavy, metal motor from a fan in her cell as a weapon. When Richardson was in her cell, she decided she could kill him as well as the other person, she said. Drain repeatedly hit Richardson in the head with the fan motor, shoved a pencil into Richardson’s eye, choked him with cords, and kicked and stomped on him.

Death Penalty Becomes Possibility After Prison Attack
A Warren County grand jury indicted Drain in August 2019 on aggravated murder, possession of a deadly weapon while under detention, and death-penalty specifications.

Drain waived the right to a jury trial and pleaded no contest in May 2020 to all offenses and specifications. A three-judge panel found Drain guilty of each count and specification. In the proceeding’s mitigation phase, Drain declined a presentence investigation report and psychological exam, presented two witnesses, and made an unsworn statement. The judges sentenced Drain to death.

Drain’s appeal to the Supreme Court presents 16 legal issues.

Mitigating Evidence Supports Sentence Other Than Death, Offender’s Brief Argues
An exhibit containing the report from a psychologist who evaluated Drain for the defense, and roughly 2,000 pages of underlying documentation, was admitted in court under seal. Drain’s lawyers said at trial that the exhibit contained additional mitigating evidence, but Drain didn’t want it presented. The court made the exhibit part of the record under seal only for the purpose of Drain’s appeal and didn’t consider the information in its decision. Drain argues the Supreme Court should consider all mitigating evidence in the record as part of its independent review of her death sentence.

Even if the Court declines to review the material, the trial record demonstrates that the mitigating factors outweighed the aggravating circumstances – supporting a sentence less than death, Drain’s brief asserts. It points to Drain’s troubled and traumatic childhood, including sexual abuse by her father and stepmother; detention throughout childhood that at times included 20 hours of lockdown per day; Drain’s own substance dependence; health issues including gender dysphoria, HIV, and post-traumatic stress disorder; a history of self-injury; and experiences of physical violence in her relationships. The brief acknowledges the “horrific” nature of the crime, but maintains that Drain’s placement in the residential treatment unit, which helps incarcerated individuals with severe mental illness, is a mitigating factor.

Offender Didn’t Want Mitigating Factors Submitted, State Asserts
The Warren County Prosecutor’s Office responds that Drain decided not to have the evidence in the exhibit presented at trial. Drain’s lawyers submitted the exhibit to show that they had conducted a thorough investigation of mitigating factors and were prepared to present the information if Drain changed her mind. The prosecutor contends that Drain’s brief describes content from the exhibit and isn’t properly before the Court. Because those details weren’t considered by the three-judge panel, the Court cannot review them now, the office argues.

The state also maintains that the allowable mitigating evidence, including Drain’s cooperation with law enforcement, acceptance of responsibility for the crimes, and refusal to let her daughter testify at trial, were entitled to minimal weight. Those factors were substantially outweighed by the aggravating circumstances, such as Drain’s prior offenses and committing a crime while incarcerated, the state concludes.

Role of Pandemic Weighed
Drain’s brief raises concerns about the effect of the COVID-19 pandemic on Drain’s constitutional rights. During a pandemic, an individual cannot receive both a speedy trial and a trial by an impartial jury free from outside influences, Drain asserts. She argues that fears surrounding the pandemic made a fair jury trial unlikely in her case and affects court proceedings when health and safety guidelines for the defendant, lawyers, and court personnel must be followed.

The prosecutor describes these claims as “speculative.” Nothing indicates that Drain pushed to expedite the proceedings because of concerns about COVID-19, the prosecutor maintains. The trial court also took appropriate precautions to protect everyone’s health and safety, the prosecutor adds.

Death Penalty for Crimes Committed While Imprisoned Discussed
Drain questions the constitutionality of the specification that allows the death penalty for committing a crime while “under detention” – meaning, while under arrest or confined in connection with an arrest or conviction. The elevation of a non-death-penalty crime to one that imposes death is “arbitrary and capricious” because it makes killing a person in prison “more heinous” than killing the same person outside of prison, Drain argues.

The state counters that Ohio’s high court has repeatedly upheld convictions for this death-penalty specification. Nor can Drain prove that the outcome would’ve been different if the specification was unconstitutional because she was convicted of another specification that permitted the death penalty, the state maintains.

Kathleen Maloney

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

Representing Victoria Drain from the Ohio Public Defender’s Office: Michelle Umana, 614.466.5394

Representing the State of Ohio from the Warren County Prosecutor’s Office: Kirsten Brandt, 513.695.1325

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Should Ineffective Assistance of Counsel Claims Be Made Separately from Trial Appeal?

State of Ohio v. Denny W. Blanton Jr., Case No. 2021-0172
Fourth District Court of Appeals (Adams County)


  • Does the doctrine of res judicata bar a criminal defendant from raising a claim of ineffective assistance of trial counsel for the first time in a post-conviction proceeding if the claim could have been raised on direct appeal?
  • Does res judicata apply to claims of ineffective assistance of trial counsel if additional evidence must be presented in court to meaningfully explain how the original trial lawyer was ineffective?

The parties dispute when in the appeals process a criminal defendant should raise a claim of ineffective assistance of counsel. The argument centers on how the concept of res judicata a centuries-old legal theory that prevents the same legal issues from being repeatedly argued, should be applied when criminal defendants claim their trial lawyers made critical errors and provided ineffective counsel.

Denny Blanton is challenging his trial lawyers’ performance in two related cases and is seeking postconviction relief. The Adams County Prosecutor’s Office asserts that Blanton previously raised the same criticisms of his attorneys during his direct appeal, and the doctrine of res judicata prevents him from “repackaging” his claims in order to file additional appeals.

The case has drawn statewide attention from organizations including the Ohio Public Defender’s Office and the Hamilton County Prosecutor’s Office, which are participating in the case through the filing of amicus curiae briefs.

In 2016, Blanton was convicted of rape and kidnapping and sentenced to 30 years to life in prison. While awaiting trial on the rape and kidnapping charges, Blanton was incarcerated in the Adams County jail. While there he engaged in fights and was charged with felonious assault and other crimes. He was sentenced to six years in prison.

Blanton was indicted on rape and kidnapping charges. Adams County has one common pleas court judge. Prior to the trial, Blanton’s attorneys filed a three-sentence-long request for the judge to recuse himself, alleging a conflict because of the judge’s wife’s employment. The judge admonished the attorneys for making the motion rather late in the process and refused to recuse himself.

Blanton said the two had consensual sex. He said when he told J.S. he had a girlfriend, her demeanor changed dramatically.

Blanton was indicted on rape and kidnapping charges. Adams County has one common pleas court judge. Prior to the trial, Blanton’s attorneys filed a three-sentence-long request for the judge to recuse himself, alleging a conflict because of the judge’s wife’s employment. The judge admonished the attorneys for making the motion rather late in the process and refused to recuse himself.

Appeals Fail, Defendant Raises New Claims
In separate proceedings, Blanton appealed his convictions. The Fourth District Court of Appeals affirmed the convictions.

Blanton then filed for postconviction relief, asserting his constitutional rights were violated by the ineffective assistance of trial counsel. His claims included his lawyer’s failure to have the judge recuse himself and a mistake made related to the assault charges while in jail.

The Adams County judge did recuse himself for the postconviction appeal, and a visiting judge was appointed. The visiting judge denied the ineffective assistance claims because they were barred by res judicata. He ruled Blanton could have raised the issue on direct appeal because all the evidence to support his claims was available to him at that time.

Blanton appealed to the Fourth District, which affirmed the visiting judge’s decision. Blanton appealed the decision to the Supreme Court of Ohio, which agreed to hear the case.

Rules Thwart Law for Ineffective Assistance Claims, Offender Asserts
Blanton notes that more than 50 years ago, Ohio lawmakers enacted R.C. 2953.21, which allows for postconviction claims on issues that aren’t suitable for a direct appeal. A direct appeal generally must be filed 30 days after a trial court verdict. Blanton argues the Supreme Court of Ohio’s 1982 State v. Cole decision limits the viability of postconviction relief, especially when the offender claims ineffective assistance of trial counsel. The Cole decision found that if a defendant is represented by a different lawyer on appeal than his trial lawyer, the new lawyer must raise the issue of ineffective assistance of trial counsel, or the claim will be barred by res judicata in future proceedings. The decision states the requirement to raise the issue on direct appeal only applies if the issue could have been determined by the evidence in the trial record, Blanton explains.

The Cole decision places a defendant’s attorney in a difficult position, Blanton explains. Often a lay person on trial doesn’t know at the time if his or her attorney is making critical mistakes and rarely does the opposition or the judge note during the proceedings that the defendant’s attorney is making mistakes. If a new attorney attempts to raise the issue on direct appeal, there is not much in the trial record to explain the trial attorney’s errors, Blanton explains. And if a new attorney waits to raise the claims in a postconviction petition, then under Cole the court might rule that the issue is barred because it should have been raised in the direct appeal, Blanton argues.

Blanton asserts that after the 2003 U.S. Supreme Court Mascaro v. United States decision, the federal courts and majority of state court systems adopted the rule that ineffective trial counsel claims should be pursued in postconviction proceedings. This is because a trial judge could hold a separate hearing in which the previous criminal trial can be reviewed, and arguments can be made that explain how the trial attorney’s errors impacted the case.

Blanton suggests that Ohio adopt a bright-line rule that a defendant can raise the issue of ineffective assistance for the first time in a postconviction relief petition.

If the Court is unwilling to establish a blanket rule, Blanton advocates for an alternative that allows for arguing ineffective assistance for the first time in a postconviction relief petition if it is clear that some of the evidence from the original trial record could be clarified or explained with additional evidence.

Process Exists for Legitimate Postconviction Appeals, Prosecutor Asserts
The prosecutor’s office maintains that state law and the Cole decision already permit the raising of ineffective assistance in both the direct appeal and in postconviction relief for defendants “deserving” of the opportunity. The office notes that the ineffective assistance claim would be barred by res judicata only if the trial lawyer’s errors could have been determined without resorting to any information outside of the trial record. To argue a case during postconviction relief, the defendant must provide “competent, relevant, and material evidence” outside of the trial record, and that evidence must not have existed or been available to the defendant at the time of the trial, the prosecutor argues.

The office states the rule at its core bars the postconviction claim of ineffective counsel unless there is new evidence to specify why the original lawyer wasn’t effective. The prosecutor asserts Blanton wants a second chance to make the same arguments he did in his direct appeal, but only by repackaging them with some evidence or statements that existed at the time of the trial.

The prosecutor objects to Blanton’s suggestion that the Court should establish a bright-line rule allowing all claims of ineffective assistance be made in a postconviction petition. The office also claims that Blanton’s second suggestion is already the law. However, the current law doesn’t apply to Blanton because he doesn’t have any new evidence to present that merits the consideration in a postconviction relief proceeding, the prosecutor concludes.

Friend-of-Court Briefs Submitted
An amicus brief supporting Blanton’s position was submitted jointly by the Cuyahoga County Public Defender’s Office, Ohio Association of Criminal Defense Lawyers, and Ohio Public Defender’s Office.

The Hamilton County Prosecutor’s Office filed an amicus brief supporting the Adams County prosecutor. The Ohio Law and Liberty Foundation and the Rape, Abuse & Incest National Network jointly filed a brief also in support of the prosecutor.

Dan Trevas

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

Representing Denny W. Blanton Jr.: Dennis Belli, 614.300.2911

Representing the State of Ohio from the Adams County Prosecutor’s Office: Mark Weaver, 937.544.3600

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Does Ex-Wife Have Priority to Shares of Family Business That Spouse Promised to Both Her and Son?

Karen Michael v. David Miller, Case No. 2021-0361
Eighth District Court of Appeals (Cuyahoga County)

ISSUE: Does an equitable lien imposed by a trial court take precedence over an express lien secured using the Uniform Commercial Code?

David Miller attempted to resolve separate legal disputes he had with his ex-wife and adult son using the same shares of stock in a family-owned company as collateral. Those actions have led to a complex series of legal actions and filing of liens to secure payment of money owed to Karen Michael and Cody Miller.

Divorce Proceedings Reveal Family Company’s Troubles
Karen Michael was married to David Miller, and they are the parents of Cody Miller. In 1981, David’s father, Ronald Miller, founded Ram Sensors. In June 2009, Ronald gifted 50% of the company to David, and 50% to Cody, a minor whose shares were held in trust.

In 2013, Karen filed for divorce from David.

In 2014, David and Karen entered into a separation agreement, which had several conditions, including three distinct provisions regarding David’s ownership of Ram:

  • Repayment of company money taken from Cody
  • Spousal support to Karen of $14,000 a month for 20 years
  • Spousal support starting in 2034 of $18,750 a month for six years.

During the divorce proceedings, Karen learned that David and his parents had taken unspecified amounts of Ram profits that were to be paid to Cody. They also had taken money from a stock brokerage account that was supposed to be reserved for Cody.

As part of the divorce agreement, David was supposed to repay his son by the end of 2017. He agreed to use only his share of Ram profits to repay Cody. At the time of the agreement, the amount owed to Cody wasn’t calculated.

Support Agreement Required Securing Stock
The divorce agreement called for David to fulfill all his obligations for spousal support and any other money he owed Karen by transferring his ownership rights in Ram to her. The decree said he couldn’t “transfer, assign, or pledge” his interest in Ram without Karen’s written permission.

The decree also required that he pledge stock and sign a cognovit promissory note to secure the 2034 spousal payments. David signed the documents in January 2015, indicating that the total value of the payments starting in 2034 would be worth $450,000. More than a year later, Karen recorded a document governed by Ohio’s version of the Uniform Commercial Code (UCC) known as a UCC-1 Financing Statement. The document filed with the Ohio secretary of state indicated she had a $450,000 lien on Ram stock to secure the spousal support payments starting in 2034.

Payments Missed, Son Rescues Business
Within a month of the divorce decree, Karen reported that David was defaulting on his payments. Meanwhile, Cody, now an adult, was informed by Ram Sensors’ operations manager that David had spent all the company’s assets and it had no money to make payroll or deliver its goods to customers. In 2015, Cody sued David to terminate his role in operating Ram and to collect the funds his father owed him.

Cody hired a forensic accountant and learned he was owed more than $2.8 million by his father. To keep Ram afloat, Cody invested his own money into the company to pay the employees and ensure continued operations.

To settle the lawsuit and repay Cody, David agreed to transfer all his ownership of Ram stock to Cody without Karen’s consent. Cody acknowledged that he took the stocks with full knowledge of the UCC-1 lien that secured $450,000 in payment to his mother.

Default Leads to Mother-Son Stock Dispute
As David continued to default on payments to Karen, she asked the domestic relations court that settled their divorce to issue an “equitable lien.” The lien was intended to confirm that her ownership in David’s stock was meant to secure all of her spousal support payments. She requested that the lien state that even if Cody claimed to own all the stock, she is entitled to $4 million of payments that are secured by the Ram stock shares.

The court granted the lien, indicating that if Karen didn’t receive payments from David, the stock could be used as collateral to compensate her for $4 million. The $4 million consisted of both the 20 years of $14,000 monthly payments and the $450,000 due after 2034.

Cody intervened in the case and appealed the ruling to the Eighth District Court of Appeals. The Eighth District affirmed the domestic relations court’s decision. Cody appealed the decision to the Supreme Court of Ohio, which agreed to hear the case.

UCC Liens Take Precedence, Son Argues
The UCC’s purpose is to simplify and clarify the laws governing commercial transactions so that interstate and international business can be conducted in the United States under a uniform set of laws, Cody explains. He notes that the Eighth District’s decision to ignore the debt stated in the publicly recorded UCC statement will have a significant impact on business transactions and commerce.

The UCC statement put the world on notice that Ram Sensor’s stockholders were subject to a $450,000 lien, which would impact anyone interested in the company’s financial health. Cody argues Ohio courts have allowed for equitable liens to help protect those owed money by a business, but only if the lien supplements a UCC lien. In this case, the UCC lien would be rendered meaningless by the equitable lien because creditors and others have no notice that Ram’s stock is subject to a $4 million lien, he asserts.

Cody argues the divorce decree clearly indicates the stock agreement’s purpose was to secure the $450,000 in payment due after 2034. He notes his mother stated she never intended to rescind or cancel the UCC lien, and argues that she is entitled to only the amount she gave notice to the world that she is owed.

Financing Statement Doesn’t Limit Spouse’s Ownership, Mother Maintains
In three separate agreements, David pledged to secure his financial obligations to Karen with his share of Ram stock, and each time he failed to abide by his promises, Karen maintains. The UCC statement was one method to help secure a portion of the divorce agreement, but wasn’t intended to be the exclusive means to protect her if David defaulted, Karen argues.

The divorce agreement stated that David was to transfer his share of Ram stock to Karen, and he provided the stock certificates to her, which are still in her possession, she notes. She argues that Cody was aware of the order to secure spousal payments with the Ram stock yet he took David’s stock that was subject to a lien. When it became clear to her that David wasn’t going to make any of the spousal support payments, she asked the domestic relations court for the equitable lien in the stock to assure she would receive payment at some point to recover from David’s defaults, Karen explains.

The Eighth District ruled that, under Court precedent, there are only three requirements for a court to impose an equitable lien. There must be a debt or obligation owed; there must be an identifiable source to use as collateral; and there must be express or implied intent for that property to serve as security for the payment of the debt or obligation. Karen notes the Supreme Court of Ohio hasn’t issued any decision that establishes any other requirements for issuing an equitable lien.

Because David expressed an intent to secure all his spousal support debt with the Ram stock, the domestic relations court was within its power to issue the equitable lien worth $4 million, she maintains.

Ex-Husband Not Participating in Oral Arguments
David Miller is named in the lawsuit, but did not file a brief in the case and can’t participate in oral arguments.

Dan Trevas

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

Representing Cody Miller: Scott Orille, 216.241.6602

Representing Karen Michael: John Heutsche, 216.241.1000

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 aren’t part of the case record, and aren’t considered by the Court during its deliberations.

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