Tuesday, May 10, 2022
State of Ohio v. Tracy K. McNeal, Case No. 2021-0744
Second District Court of Appeals (Montgomery County)
Tuscarawas County Public Defender’s Office v. Kristy Goudy, Case No. 2021-0831
Fifth District Court of Appeals (Tuscarawas County)
In re T.A., a minor child, Case No. 2021-1018
Ninth District Court of Appeals (Medina County)
Butler County Bar Association v. Dennis C. Mahoney, Case No. 2022-0155
Butler County
Do Lab Tests Results Obtained After Conviction Entitle Man to New Trial?
State of Ohio v. Tracy K. McNeal, Case No. 2021-0744
Second District Court of Appeals (Montgomery County)
ISSUE: Must a trial court consider a new trial when a defendant obtains evidence after trial through a public records request that was likely to have affected the trial’s outcome?
BACKGROUND:
In September 2014, Tracy McNeal, his wife Leesa, and their children moved temporarily into the two-bedroom Dayton apartment of their friend, identified in court documents as C.R. The couple and C.R. had known each other about six years. C.R. and her 3-year-old son stayed in C.R.’s bedroom, and the McNeal family used the second bedroom.
The McNeals, C.R., and C.R.’s sister and brother-in-law gathered one evening at C.R.’s apartment. They were drinking vodka. C.R. said she takes prescribed benzodiazepine for anxiety and smoked marijuana earlier that evening. Later that night, she became ill, urinating on herself and vomiting. C.R.’s sister and Leesa cleaned C.R. and put her in her bed. C.R.’s sister checked on C.R. a few times, then the sister went to her apartment, which was next door. The sister’s husband soon returned home intoxicated.
C.R.’s sister went back to C.R.’s apartment looking for McNeal to help with her husband. McNeal appeared in the doorway of C.R.’s bedroom. He was wearing a T-shirt, and his pants were down. He said he was having sex with his wife. C.R.’s sister returned to her apartment.
Later, C.R.’s sister went back to C.R.’s unit. She heard C.R. call for her and flipped on the lights to the bedroom. C.R. was crying and asked who had been in the room. Her sister said McNeal had been there, and C.R. said he had raped her.
Drug and Alcohol Tests Taken at Hospital
Police were called. The officers later testified that C.R. appeared intoxicated, smelled of alcohol, and slurred her speech. She was taken to a hospital, where a sexual assault interview and evaluation were conducted. Samples of C.R.’s blood and urine were taken for testing.
In October 2014, a Montgomery County grand jury indicted McNeal on two counts of rape – one stemming from this incident. The charge involving C.R. alleged that her ability to resist or consent was substantially impaired. A jury convicted McNeal in 2016 of C.R.’s rape. The trial court sentenced him to 20 years in prison. The Second District Court of Appeals upheld the trial court’s decision.
After Conviction, Offender Argues Lab Report Was Withheld
In January 2018, McNeal made a postconviction claim to the trial court. He argued in part that his trial lawyer failed to investigate C.R.’s blood and urine test results. He also asked for a court order to obtain the blood and urine test results from the regional crime lab. The trial court denied his requests.
McNeal made a public records request to the Dayton Police Department and obtained the crime lab’s report. McNeal got a statement from one of his trial lawyers that the report wasn’t provided during the case. In February 2020, McNeal asked the trial court for permission to request a new trial based on the lab report, which found no alcohol in C.R.’s blood. He argued that C.R. testified she was impaired because she was extremely drunk. The trial court denied his request, and the Second District upheld the decision.
McNeal appealed to the Supreme Court of Ohio, which accepted the case.
Report Should Have Been Given to Defense, Offender Argues
In Brady v. Maryland (1963), the U.S. Supreme Court ruled that prosecutors have a duty to disclose evidence that is favorable to a defendant . The trial court in McNeal’s case found that the state didn’t know of the report to provide it in discovery. However, McNeal argues, the report was sent to a police department investigator who was a witness for the state at trial. McNeal asserts that the state had the report but didn’t provide it to the defense and he was unaware of the results in the report until after his trial. He maintains he was unavoidably prevented from discovering the report. A Brady violation occurs even if a prosecutor doesn’t know of the evidence, but police investigators do, McNeal adds.
McNeal states that C.R. said she was too impaired by alcohol to consent to sexual activity. He notes, however, that about 3.5 hours after the alleged sexual assault the test results showed her blood alcohol content was zero. Had jurors learned of C.R.’s blood alcohol content, there is a reasonable probability that one or more jurors would have found reasonable doubt that C.R. was impaired – an element of the rape charge, McNeal concludes.
Offender Knew of Lab Report During Trial, State Counters
The Montgomery County Prosecutor’s Office argues McNeal knew of the lab report long before his public records request. In his pro se brief in 2017 for an appeal, McNeal stated that there were blood and urine tests but the results weren’t presented in court. In his January 2018 postconviction request, he alleged that his trial lawyer was ineffective for not investigating the blood and urine test results, the prosecutor notes. McNeal also asked the court for an order to obtain the report.
After his public records request, McNeal waited months to submit his February 2020 motion asking to request a new trial, the prosecutor argues. The prosecutor maintains that the report was available at the time of trial and concludes that McNeal could have obtained it in a timely fashion. The report wasn’t new evidence that supports a request to file a motion for a new trial, the prosecutor asserts.
Nor was the report improperly withheld under Brady, the prosecutor argues. The prosecutor states that C.R. last ate at 2 p.m. the day of the assault. She stopped drinking alcohol around 8:30 or 9 p.m. The prosecutor points out that, at the time she was tested at 3:30 a.m., no alcohol was detected in her blood. However, alcohol was found in her urine. C.R. also had benzodiazepines and marijuana in her system. The state didn’t argue that her impairment was due only to alcohol, the prosecutor maintains. The prosecutor asserts that McNeal argues C.R.’s lack of a blood alcohol level was exculpatory evidence without considering C.R.’s individual characteristics and other drugs found in her system.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Tracy K. McNeal from the Ohio Public Defender’s Office: Craig Jaquith, 614.644.1568
Representing the State of Ohio from Montgomery County Prosecutor’s Office: Andrew French, 937.225.5757
Must Employee’s Reinstatement Be Rescinded Because Agency Didn’t Submit Full Hearing Record?
Tuscarawas County Public Defender’s Office v. Kristy Goudy, Case No. 2021-0831
Fifth District Court of Appeals (Tuscarawas County)
ISSUES:
- Does the appeals court’s decision disregard the due process guarantees to public employees in disciplinary actions where they have no control over the State Personnel Board of Review’s submission of the record of the board’s proceedings in an appeal?
- Will public employers and employees suffer economic loss and loss of rights if a court must find, with no evidence of harm, in favor of the appealing party because a state agency failed to submit a complete record?
BACKGROUND:
Kristy Goudy was hired as a full-time secretary for the Tuscarawas County Public Defender’s Office in August 1996. The employer alleged that Goudy engaged in misconduct in 2017 and 2018. She
she was fired in 2018 for insubordination, discourteous treatment of the public, dishonesty, and other misconduct.
Goudy appealed to the State Personnel Board of Review (SPBR), which held a two-day hearing in April 2019. The administrative law judge who presided at the hearing agreed with some charges, but not others. Instead of termination, the judge recommended a 10-day suspension and back pay.
Objections were filed by Goudy and the public defender’s office, and the SPBR heard arguments. In September 2019, the board upheld the administrative law judge’s decision.
Public Defender’s Office Appeals to Court, Contesting Employee’s Reinstatement
In October 2019, the employer appealed the board’s ruling to the Tuscarawas County Common Pleas Court. The SPBR stated it had certified the complete record of its proceedings to the court within 30 days.
The court set a schedule in early January 2020 for submission of briefs in the case. At the end of January, the employer alleged to the court that the SPBR didn’t comply with R.C. 119.12(I)’s requirements for filing the record of its proceedings. The board hadn’t included a transcript of the second day of its two-day hearing. Based on the law’s provisions about incomplete records, the employer requested that the court vacate the SPBR’s order reinstating Goudy. The board submitted the missing transcript to the court six days later, which was four months after the appeal had been filed.
The court overruled the employer’s request to overturn the SPBR order because of the late transcript. The court indicated that the missing transcript required changes to the briefing schedule but didn’t necessarily delay the overall resolution of the case. The employer wasn’t prejudiced by the incomplete filing of the transcript, the court determined. After the court held a hearing in August 2020, it ruled to uphold the SPBR’s order to reinstate Goudy.
The employer appealed to the Fifth District Court of Appeals, which reversed the trial court. The Fifth District concluded that because the SPBR didn’t submit a complete record of its proceedings by the deadline, R.C. 119.12(I) mandated a ruling in the employer’s favor -- overturning the SPBR order that gave Goudy back her job.
Goudy appealed to the Supreme Court of Ohio, which accepted the case.
Employee Contends Agency’s Omission Not in Her Control
Goudy points out that both the SPBR and the trial court found she was improperly terminated from her job. Citing numerous court decisions, she argues if a party appeals an agency’s decision and the agency files and incomplete record, the party must show it was harmed by that omission to obtain a ruling in its favor.
She maintains that her employer wasn’t adversely affected by the missing transcript because the trial court eventually was able to review the entire record. The trial court determined that the delayed transcript didn’t prevent the employer from getting a court review of the SPBR’s order to reinstate her, Goudy argues. Without the employer showing it was harmed because of the omitted record, the statute doesn’t require a reversal of the agency’s order, she asserts.
Goudy’s brief argues that she will be prevented from returning to her job “through no fault of her own” if the Fifth District’s decision is upheld. Goudy will be left without any remedy, even though she prevailed in the SPBR hearing process, her brief contends. It maintains that when the agency’s record of its proceedings is updated quickly to the court, and no real harm is shown, then a decision against Goudy based on the statute’s deadline is improper.
Goudy also disputes her employer’s argument that it was harmed by the accrual of back pay while the appeal was delayed and pending. She was required to be reinstated after the board issued its order, so any delay in the proceedings before the trial court wouldn’t affect the employer’s back pay obligation, she asserts.
Employer Counters That State Law Mandates Reversal
The public defender’s office responds that the trial court had no authority in February 2020 to accept the missing transcript given the requirements in R.C. 119.12. The statute “imposes a clear legal duty” on state agencies to certify the complete record to the court within 30 days after an appeal is filed, the employer’s brief notes. It maintains that the SPBR submitted the missing transcript 67 days after the court was legally allowed to accept it. The employer argues that the trial court’s decision must be supported by “reliable, probative, and substantial” evidence in the record, but the court could not have ruled properly on the issues in this case because it had no authority to consider the transcript that wasn’t filed on time.
The Fifth District explained that the absence of the transcript in the record was prejudicial to both parties: “The five months delay from briefing to judgment arguably increased [the public defender’s] exposure for back pay and postponed the enforcement of the Order reinstating Ms. Goudy’s employment.”
The employer agrees, contending that the delays in the briefing schedule caused by the SPBR’s incomplete record incurred financial costs. The employer notes that it reinstated Goudy after the trial court upheld the SPBR order. Goudy was a paid employee in the public defender’s office from November 2020 until May 2021, when the Fifth District upheld her original termination.
The employer’s brief also points out that the state legislature passed the law decades ago to address “the flagrant disregard” by administrative agencies of their duty to provide complete records of their proceedings to courts. The legislature softened the mandatory reversal in the law by permitting a limited extension of time – if the agency requests an extension and made “a substantial effort” to comply with the original filing deadline. The employer contends that the SPBR did neither. Under the facts in this case, no additional filings to the record should have been accepted after Dec. 2, 2019 – 60 days after the appeal was filed, the employer maintains.
“It is preferable to resolve cases on their merits, but that does not mean that all procedural obligations are toothless suggestions, especially when the statute provides a clear sanction for noncompliance. If the General Assembly intended appeals to always be heard on their merits, it would not have authorized mandatory reversals under R.C. 119.12(I) when the agency fails to file a complete record,” the employer concludes.
Briefs Support Employee’s View
The Ohio Attorney General’s Office and Ohio Employment Lawyers Association have separately filed amicus curiae briefs supporting Goudy’s arguments. The attorney general also will share the 15 minutes allotted to Goudy for arguments before the Court.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Kristy Goudy: Michael Moses, 614.224.7294
Representing the Tuscarawas County Public Defender’s Office: Scott DeHart, 614.224.4411
Representing the Ohio Attorney General’s Office: Benjamin Flowers, 614.466.8980
Does Appeal Process for Adult Criminal Offenders Apply to Juveniles?
In re T.A., a minor child, Case No. 2021-1018
Ninth District Court of Appeals (Medina County)
ISSUE: Under the Ohio Rules of Appellate Procedure, do juvenile offenders have the right to reopen their direct appeals for claims of ineffective assistance of appellate counsel?
BACKGROUND:
In 2018, a 9-year-old girl identified in court records as “K.M.” lived in a Medina apartment with her mother, her siblings, and a man who was the father of a 13-year-old boy identified as “T.A.” T.A. was visiting his father for the weekend and spent the night at the apartment. The children slept downstairs, and the parents slept upstairs. K.M. reported that she woke up in the middle of the night and discovered T.A. was inappropriately touching her. She told her mother. After confronting T.A., the mother called the police.
The Medina County Prosecutor’s Office filed a complaint in juvenile court accusing T.A. of committing a crime that would be gross sexual imposition if he were an adult. A juvenile court magistrate found him to be a delinquent child, and T.A. objected. The juvenile court adopted the magistrate’s decision, and placed T.A. on indefinite probation.
T.A. appealed to the Ninth District Court of Appeals, which affirmed the juvenile court’s decision.
Teen Seeks to Reopen Case
T.A. then sought to reopen his appeal, claiming his appellate attorney was ineffective. T.A. argued that in juvenile court there were “pivotal” determinations about the credibility of the witnesses against him, particularly K.M.
During his appeal, T.A.’s attorney noted the juvenile court stated it would not disturb the magistrate’s findings about the credibility of the witnesses. However, the rules of juvenile court require the juvenile judge to independently assess the credibility of the witnesses, and failing to so violates his rights, T.A. asserted. The teen claimed his appellate attorney should have argued that the juvenile judge failed to conduct an independent assessment of the witnesses. Because his attorney didn’t cite the error, T.A. argued he was provided ineffective appellate counsel.
T.A. then attempted to use Rule 26(B) of the Ohio Rules of Appellate Procedure to reopen his appeal. The Ninth District denied the request. In a split decision, the Ninth District ruled that App.R. 26(B) only applies to defendants in criminal cases. Because T.A. is a juvenile, he isn’t a criminal defendant and can’t invoke the rule to reopen his appeal. The Ninth District acknowledged its decision conflicted with a Sixth District Court of Appeals decision.
T.A. notified the Supreme Court of the appellate court conflict, and the Court agreed to consider the conflict.
Rules Allow Juvenile Right to Appeal, Minor Asserts
Citing the U.S. Supreme Court’s 1967 In re Gault decision, T.A. argues that children have a right to effective assistance of counsel during a trial and when the case is appealed. App.R. 26(B) provides protection when effective counsel isn’t provided, he explains. Juvenile offenders don’t lose their constitutional rights to effective counsel because they aren’t labeled criminal defendants, he maintains.
While juvenile proceedings are considered civil, they have criminal aspects and delinquent children are threatened with the substantial loss of their liberty, T.A. asserts. Children like him, who are subjected to juvenile sex offender registration, face consequences similar to criminal defendants even if the proceedings are labeled as civil, he notes.
App.R. 26(B) was instituted in 1993 following an Ohio Supreme Court ruling in an adult criminal case. The language of the rule indicates it applies to criminal defendants, T.A. notes, but he argues that the Ninth District wrongly limited the use to solely criminal defendants. The appeals court should have considered that juvenile offenders are afforded the same appellate rights as adults, and the rule should be extended to juvenile offenders, he asserts.
If the rule doesn’t apply to juveniles, then it would be an unconstitutional violation of the equal protection clauses of both the U.S. and Ohio constitutions, T.A. maintains. He submits that adult and juvenile offenders would be treated differently when appealing their cases without any rational reason for not treating them alike.
State Denies Conflict Among Courts
The Medina County Prosecutor’s Office argues the Court shouldn’t consider the case because there is no conflict between the ruling in T.A.’s case and the Sixth District’s decision. The Ninth District claimed its decision conflicted with the Sixth District’s 2017 In re L.N. decision. The prosecutor argues there is no discussion of App.R. 26(B) in the Sixth District decision, and in that case, the juvenile was allowed to reopen an appeal based on a procedural error made by the appellate attorney. However, In re L.N. doesn’t include a claim of ineffective assistance of counsel.
If the Court does hear the case, the prosecutor maintains that App.R. 26(B) clearly only applies to criminal defendants. The office argues that T.A. has three other ways to challenge the Ninth District’s original decision to deny his appeal. One of the options is to appeal directly to the Supreme Court, the prosecutor notes.
Because T.A. did not attempt to use one of the three methods available for a juvenile to claim ineffective assistance of counsel, the Ninth District correctly rejected his appeal, the office concludes.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing T.A. from the Ohio Public Defender’s Office: Timothy Hackett, 614.466.5394
Representing the State of Ohio from the Medina County Prosecutor’s Office: Vincent Vigluicci, 330.723.9542
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.
Attorney Argues No Need to Hold Disputed Funds in Personal Injury Case
Butler County Bar Association v. Dennis C. Mahoney, Case No. 2022-0155
Butler County
Cincinnati attorney Dennis Mahoney is facing a public reprimand for allegedly mishandling the settlement funds for medical costs in a personal injury case.
Mahoney objects to the Board of Professional Conduct’s findings and recommended discipline. He maintains he didn’t violate professional conduct rules. Because of his objections, the Supreme Court of Ohio will hear oral argument in the case.
The Ohio Association for Justice, whose members are trial attorneys in civil lawsuits, filed an amicus curiae brief supporting Mahoney.
Woman Seeks Medical Treatment After Auto Accident
Samantha Moody was in an auto accident in January 2018 caused by someone else. Moody received medical treatment from several providers, including Chiropractic Wellness Center, in Hamilton, and Open MRI of Eastgate in Cincinnati.
In December 2018, Moody hired Mahoney to represent her in a personal injury lawsuit stemming from the accident. Their agreement authorized the attorney to pay Moody’s unpaid medical expenses from any settlement. According to the disciplinary investigation, Chiropractic Wellness and Open MRI submitted bills to Mahoney.
Mahoney negotiated a settlement, finalized in January 2020, for $35,949. The funds were deposited into the client trust account (known as an IOLTA) for Mahoney’s law firm. His staff drafted a settlement statement, which included an addendum from Moody that she knew Chiropractic Wellness and Open MRI were owed for services, but she didn’t want those bills paid from her settlement and she would take care of the bills. Mahoney’s fee for legal services was $10,211, and Moody received $13,245 from the settlement after other obligations were paid.
Mahoney didn’t notify Chiropractic Wellness and Open MRI that a settlement had been reached or that Moody disputed their bills. Chiropractic Wellness was owed $7,849, and Open MRI was owed $2,000.
Chiropractic Wellness learned of the settlement and contacted Mahoney for an update. The attorney responded in an email that the settlement funds were insufficient to pay all of Moody’s outstanding medical bills and that she agreed to pay the bill on her own. However, the disciplinary investigation determined there were adequate funds.
Board Concludes Attorney’s Actions Were Professional Misconduct
The board concluded that Mahoney violated two professional conduct rules. One requires attorneys to hold disputed funds in trust until the dispute is resolved. The other prohibits dishonest conduct. The board found that Mahoney was dishonest with Chiropractic Wellness when he communicated that the settlement was insufficient to pay the bill.
After considering aggravating circumstances that could increase the penalty and mitigating factors that could lead to a lesser sanction, the board recommends a public reprimand for Mahoney. In addition, the board suggests that Mahoney pay $1,329 to Chiropractic Wellness and $48 to Ohio MRI within 60 days of the Supreme Court’s final order and pay the costs of the disciplinary proceedings. The amounts for the medical providers reflect what Moody owed them after her insurance coverage.
Attorney Says No Misconduct Occurred
In his objections, Mahoney argues that he violated no professional conduct rules and shouldn’t be sanctioned.
He maintains he had no knowledge that the medical providers had a “lawful interest” in the settlement funds. His brief states that Open MRI never claimed an interest in any settlement. He argues that no one testified that Chiropractic Wellness’ bill was reasonable or that the care was linked to injuries from the auto accident. A lawyer has no duty to protect funds for an illegal bill, he contends.
The Ohio Association for Justice also argues that the relevant rule applies only in cases involving certain types of third-party interests. Because Moody didn’t have a signed agreement to pay these medical providers, there was no lawful claim requiring Mahoney to reimburse them from the settlement, the association asserts.
Bar Association Argues Lawyer Must Safeguard Funds
The Butler County Bar Association, which investigated this matter, responds that an attorney cannot refuse to pay a medical provider from a settlement fund when a client insists on it to increase the client’s share of the settlement. An attorney must treat all those making claims reasonably and safeguard the funds, the bar association maintains.
The association contends that Mahoney and the Ohio Association of Justice confuse two conduct rules. Rule 1.15(d) of the Ohio Rules of Professional Conduct requires payment to certain third parties with lawful interests, the association states. However, it maintains, Rule 1.15(e) – the violation in this case – isn’t limited in the same way and instead requires lawyers to hold funds in which a third party claims an interest until the dispute is resolved.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Dennis C. Mahoney: William Mann, 614.763.2167
Representing the Butler County Bar Association: Christopher Pagan, 513.424.1823