Tuesday, June 24, 2025
State of Ohio v. Demarco Gowdy, Case No. 2024-0882
First District Court of Appeals (Hamilton County)
State of Ohio and City of Cincinnati v. J.B., Case No. 2024-0951
First District Court of Appeals (Hamilton County)
Omni Energy Group LLC v. Eric Vendel, chief, Ohio Department of Natural Resources, Division of Oil and Gas Resources Management, Case No. 2024-1121
Tenth District Court of Appeals (Franklin County)
In re application of Ohio Power Co., Case No. 2024-1142
Public Utilities Commission of Ohio
Should Guilty Plea Be Vacated Because Trial Judge Misstated Self-Defense Law?
State of Ohio v. Demarco Gowdy, Case No. 2024-0882
First District Court of Appeals (Hamilton County)
ISSUE: Must a criminal defendant’s guilty plea be vacated when the trial judge, before accepting the plea, misstated the law regarding self-defense?
BACKGROUND:
In August 2023, Demarco Gowdy fought with Mohammad Diol in a McDonald’s parking lot in Cincinnati. The store video surveillance camera captured the fight. Gowdy was seen hitting Diol with a gun and shooting at him once, injuring Diol. Gowdy was charged with two counts of felonious assault, along with a firearm specification and a gun forfeiture specification.
At a pretrial hearing, Gowdy informed the trial judge he intended to claim self-defense at trial. The trial judge learned of the surveillance video and asked Gowdy if he, the trial judge, Gowdy’s defense attorney, and the prosecutor could watch the video. The judge stated, “[s]ometimes I shortcut a lot a trials by watching the video.” Gowdy initially declined, but when the trial judge told him that modifying his bond would be influenced by the video, Gowdy agreed.
After watching the video, the judge told Gowdy the video “does not look good for you.” Gowdy and the judge engaged in an exchange in which the judge said Gowdy brought a gun to a fistfight. The judge told Gowdy that the video showed Gowdy waiting for Diol outside of the McDonald’s, and then Gowdy starting the fight before shooting Diol.
At a subsequent pretrial hearing, Gowdy’s lawyer stated that his client wanted a trial. The judge told Gowdy he was facing 28 years in prison if convicted of the crimes and specifications. Gowdy stated he was requesting a self-defense jury instruction. The trial judge said he wasn’t inclined to offer the self-defense instruction and explained that Gowdy had to “satisfy certain elements in order to get me to give the jury the instruction on self-defense.” The judge told Gowdy he couldn’t meet his “burden of proof” for self-defense because Gowdy wouldn’t be able to show that he did not start the altercation.
Gowdy said the judge was mischaracterizing the event and that he could justify a self-defense jury instruction. The judge continued to dispute the account. After a brief recess, Gowdy stated he reached a plea agreement with the prosecutor, in which he agreed to plead guilty to a lesser offense and a three-year gun specification for a total of four years in prison.
Defendant, Judge Debate at Plea Hearing
Before pleading guilty, Gowdy asked the judge if the jury would receive a self-defense instruction. The judge replied, “No.” Gowdy responded that the court was putting him “in a box” because the only thing the jury would consider was whether Gowdy shot Diol or not, but Gowdy didn’t dispute the shooting. Gowdy argued that without the self-defense instruction, he was in a “lose-lose situation,” in which he either pleaded guilty or didn’t have a chance to claim self-defense and faced the maximum sentence.
The judge responded that Gowdy’s argument was “making it sound like we’re coercing you into it rather than assisting you in making a good decision.” The judge told Gowdy that he wouldn't accept the plea if Gowdy felt like he was being coerced. After consulting with his attorney, Gowdy agreed to plead guilty, was sentenced to four years in prison, and was required to forfeit his gun.
Gowdy appealed to the First District Court of Appeals, arguing his constitutional rights were violated because his plea was based on the trial court’s misstatement of the law regarding self-defense. The First District found the trial judge wrongly stated the rules on receiving a self-defense jury instruction and overstated the maximum time Gowdy could receive in prison. Nevertheless, the First District affirmed the conviction, finding Gowdy pled to the charge without being coerced.
Gowdy appealed to the Supreme Court of Ohio, which agreed to hear his case.
Plea Not Adequate When Law Misstated, Accused Argues
Because a plea constitutes a conviction, the due process clauses of the U.S. and Ohio constitutions require that the plea is “knowing, intelligent, and voluntary,” Gowdy explains. He could only enter a plea if he understood the circumstances and consequences of his plea, and by misstating the law, the trial judge denied him the ability to understand the circumstances, Gowdy argues.
Gowdy cites the Court’s 1996 State v. Engle decision and others to note that even when a defendant is represented by a lawyer, if a judge misstates the law when accepting a guilty plea, the plea wasn’t made knowingly and intelligently.
Gowdy argues the trial judge misstated what the law required to meet a “burden of proof” to get a jury instruction. The defendant doesn’t have a burden of proof but only a “burden of production” under Ohio’s self-defense law, and that could be any evidence supporting his claim, Gowdy notes. The prosecution bears the burden to prove that the evidence doesn’t support self-defense, he adds. The time to present evidence and consider if it is enough to earn an instruction is supposed to happen after the evidence is fully presented to a jury, he explains. Gowdy argues the trial judge short-circuited the process by concluding from the video alone that Gowdy couldn’t successfully argue for self-defense. Finally, the judge misrepresented what Gowdy needed to present for the jury instruction, which the judge stated was enough evidence supporting a self-defense claim to outweigh evidence negating it, Gowdy asserts. Gowdy maintains the trial court only considers the adequacy of the evidence presented and not its persuasiveness when considering a jury instruction.
By misstating the law, Gowdy asserts he was led to feel he had no choice but to plead guilty. He argues he repeatedly complained to the judge during sentencing that he was being placed in a position where he had no other option. While the judge stated on the bench that he was not coercing Gowdy to take a plea, Gowdy argues the judge’s inaccurate decision not to consider a self-defense claim amounts to coercion.
Plea Should Stand, Prosecutor Asserts
The Hamilton County Prosecutor’s Office expressed that it understands criminal defendants must make very difficult choices when deciding whether to plead guilty or go to trial. While making errors in his presentation about a self-defense claim, the trial judge repeatedly said he wouldn’t coerce Gowdy into taking a plea and would allow his attorney to request a self-defense instruction at trial, the prosecutor notes. The judge also warned Gowdy that the prosecutor might object to his request, leaving the trial court to reject giving a self-defense instruction.
The prosecutor asserts that Gowdy presented no credible evidence that supported a self-defense jury instruction. The judge listened to Gowdy’s explanation of the events and his comments about the video, and then the judge explained why he believed Gowdy wasn’t entitled to a self-defense instruction. At no time did Gowdy state he had other witnesses or evidence to refute the facts captured on the video, the prosecutor notes.
The judge and Gowdy discussed the video at a preliminary hearing before his trial, which gave Gowdy time to consider his options, the prosecutor notes. Gowdy was able to confer with his attorney and had time to learn about the potential consequence of not producing enough information to earn a self-defense instruction, the office asserts. It argues Gowdy had to weigh the uncertainty of claiming self-defense against a solid offer from the prosecution of a reduced charge. Despite the trial court’s misstatements, the prosecutor concludes that Gowdy weighed his options and knowingly and voluntarily agreed to plead guilty.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Demarco Gowdy from the Ohio Public Defender’s Office: Russell Patterson, russell.patterson@opd.ohio.gov
Representing the State of Ohio from the Hamilton County Prosecutor’s Office: Judith Lapp, judi.lapp@hcpros.org
Did Trial Court Properly Assess Factors When Denying Request To Seal Criminal Records?
State of Ohio and City of Cincinnati v. J.B., Case No. 2024-0951
First District Court of Appeals (Hamilton County)
ISSUES:
- For an application to seal or expunge a criminal record, does the extent of the applicant’s criminal history speak to the issue of rehabilitation and provide a sole basis for denying the request?
- Can a trial court on its own consider the legitimate government interests in maintaining the record of a conviction?
BACKGROUND:
In August 2023, a person identified in court documents as “J.B.” represented herself in Hamilton County Municipal Court to apply to seal the records of seven convictions. Between 2012 and 2016, she had pled guilty to misdemeanors , including unauthorized use of property, disorderly conduct, and resisting arrest. Five of the cases were prosecuted by Hamilton County, and two by the city of Cincinnati. In 2018 and 2019, J.B. was convicted of theft outside of Hamilton County in two other cases.
At a hearing to consider the applications, the judge asked J.B. why she wanted to seal the records. J.B. responded that she was going to school to pursue a career in social work and was concerned about employment background checks. She noted she already was denied a job at the justice center when her criminal record was disclosed. She said she was currently employed as a licensed parenting counselor and wasn’t planning to seek a different job at that time. She wanted to seal her records to avoid the need to explain her convictions when applying for positions in the future. She stated, “… that’s just not me anymore.” She also noted that in 2021, she obtained a certificate of qualification for employment (CQE), which permits her to be licensed as a social worker.
Neither the Hamilton County nor the Cincinnati prosecutor objected to J.B.’s request to seal the municipal court records. No victims objected to the sealing requests.
Municipal Court Denies Request To Seal Records
The judge continued the matters for additional time to consider the requests. In written decisions issued later, the court denied the applications. The court concluded that J.B. didn’t provide evidence
of her rehabilitation, except for her statement that the criminal behavior didn’t reflect who she was any longer. The court also found that the government’s interest in maintaining the records and protecting the public’s need to know outweighed J.B.’s interest in having the records sealed. Social work is a profession involving trust, and future employers had the right to know about the convictions and address them as they saw fit, the court stated.
J.B. appealed to the First District Court of Appeals, which overturned the trial court and instructed it to seal the records. The First District ruled that the record didn’t support a finding of insufficient rehabilitation and the trial court didn’t provide a sufficient government interest for maintaining the records.
The two convictions prosecuted by the city were sealed. The Hamilton County Prosecutor’s Office appealed the decision on the other five convictions to the Supreme Court of Ohio, which agreed to review the issues.
State Argues Trial Court Had Discretion To Deny Record Sealing
R.C. 2953.32(D)(1) lists several determinations a trial court must make before approving an application to seal or expunge a record. They include “whether the applicant has been rehabilitated to the satisfaction of the court” and weighing the applicant’s interests in having the records of a conviction sealed “against the legitimate needs, if any, of the government to maintain those records.”
The Hamilton County prosecutor contends that according to the First District, the trial court denied J.B.’s application based solely on the number of her offenses. The prosecutor notes that the statute requires the trial court to evaluate each listed factor and a failure on any one of those factors means the court must deny the application. In this case, J.B. had a criminal history that spanned seven years and at least nine convictions, and it had been only four years between her last out-of-county conviction and her application for sealing, the prosecutor explains. An assessment of J.B.’s lengthy criminal history was enough for the trial court to decide that she hadn’t been rehabilitated to the court’s satisfaction, the prosecutor maintains.
The prosecutor adds that the trial court also rejected the application for a second reason, the government’s interest in maintaining the record. Although the prosecutor didn’t identify a government interest to the trial court, the court determined on its own that the government’s interest in keeping J.B.’s records public outweighed her interest in sealing them. The First District concluded that because the prosecutor didn’t raise a government interest, J.B. didn’t have the opportunity to respond, and the adversarial system didn’t have a chance to function. The prosecutor disagrees, arguing that the statute is silent about who must raise this issue. The prosecutor contends that trial courts have the right to exercise their discretion on each of the factors listed in the statute.
Applicant Responds That Trial Court Didn’t Consider All Evidence
J.B. counters that the number of convictions on a person’s record cannot be the sole basis for finding that an applicant hasn’t been rehabilitated. J.B. maintains that the General Assembly made this clear when it decided a few years ago to no longer restrict the sealing and expunging of records based on a person’s number of convictions. Rehabilitation is assessed based on more than the total number of convictions alone, J.B. maintains. She adds that the First District also found the trial court failed to consider all relevant evidence of rehabilitation that was in the record.
For one, the trial court ignored the issuance of a CQE to her in 2019, J.B. maintains. The Hamilton County Common Pleas Court granted the CQE, which had to be based on finding she was rehabilitated. That was four years before the application to the municipal court to seal her records, J.B. notes. She also contends that the trial court failed to acknowledge her progress in furthering her education and career, and instead focused only on her past actions. J.B. argues the trial court’s reasoning on the rehabilitation factor was arbitrary and unreasonable.
On the second factor, J.B. argues that the General Assembly has determined that misdemeanor crimes involving dishonesty can be sealed or expunged, and the public doesn’t have the right to know about the existence of these types of offenses forever. She also notes that the prosecutor didn’t articulate a need to maintain the records. She maintains that the trial court abandoned its role as a neutral arbiter by articulating its own government interest, without input from the prosecutor on whether there was a need to maintain the records.
Additional Briefs Support Applicant
Amicus curiae briefs supporting J.B.’s position were submitted by the Addiction Response Coalition of Hamilton County and the Ohio Justice and Policy Center.
– Kathleen Maloney
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 Hamilton County Prosecutor’s Office: John Hill Jr., john.hill@hcpros.org
Representing J.B. from the Hamilton County Public Defender’s Office: Sarah Nelson, snelson@hamiltoncountypd.org
Can New Evidence Be Presented in Court When Appealing Injection Well Permit?
Omni Energy Group LLC v. Eric Vendel, chief, Ohio Department of Natural Resources, Division of Oil and Gas Resources Management, Case No. 2024-1121
Tenth District Court of Appeals (Franklin County)
ISSUE: Is the restriction on the introduction of new evidence in R.C. 119.12(L) for administrative appeals constitutional?
BACKGROUND:
Omni Energy Group constructed, owns, and operates two “class II saltwater injection wells” in Belmont County. The wells use injection methods to dispose of “production-generated brine water,” which is waste fluid produced from gas and oil exploration, drilling, and production. The fluids are injected deep below the ground’s surface for disposal.
For proper disposal, Omni Energy must obtain permits from the Division of Oil and Gas Resources Management in the Ohio Department of Natural Resources (ODNR). The permits set the maximum allowable injection pressure to prevent contamination of underground sources of drinking water. Pressure that is too high can lead to fractures that let the brine water move outside of appropriate zones.
The oil and gas division issued permits in 2021 with maximum pressures for Omni’s wells. Omni appealed the decisions to the Oil and Gas Commission, as allowed by R.C. 1509.36.
To prepare for a hearing before the commission, the oil and gas division chief hired a certified petroleum engineer to provide an expert report. The engineer concluded that the pressure allowed in one of the Omni injection wells was too high and would cause underground fractures. In 2022, the division chief revoked that permit and issued a replacement permit with a reduced maximum pressure for the injection operations.
Well Owner Appeals Revised Permit to Court
Based on processes explained in R.C. Chapter 119, Omni appealed the orders revoking and replacing the permit to the Franklin County Common Pleas Court. Omni dismissed its earlier appeals that were filed with the Oil and Gas Commission.
The division chief certified the record of the administrative proceedings to the court. Omni requested a hearing on the evidence and asked to take depositions. In July 2022, the court rejected the requests, finding that R.C. 119.12(L) prohibits the introduction of new evidence or depositions in an appeal from an administrative agency. The court upheld the orders revoking and issuing a replacement permit for the well.
Omni appealed to the Tenth District Court of Appeals, which reversed the trial court. The Tenth District concluded that the statute’s restriction violated Omni’s right to a full and fair hearing under the due process clause in the U.S. Constitution and the due course of law provision in the Ohio Constitution. The appellate court ordered the trial court to hold an evidentiary hearing and allow additional evidence.
ODNR appealed to the Supreme Court of Ohio, which accepted the case.
Court Can Consider Only Certified Record From Agency, State Contends
ODNR argues that Omni had options for appealing the division chief’s orders regarding the permits. One route was to appeal the replacement permit to the Oil and Gas Commission. The company chose another route, though – an appeal to a common pleas court based on R.C. 119.12. Under that statute, the court is confined to the record as certified to it by the agency, ODNR maintains. The department contends that additional evidence cannot be introduced, unless the evidence is newly discovered or is admissible based on another law. Neither exception applies in this case, the department maintains.
ODNR disputes the Tenth District’s conclusion that due process required the trial court to hold a hearing and consider additional evidence. Although R.C. 119.12 restricts evidence to the certified record “unless otherwise provided by law,” that exception refers to statutes – laws enacted by the General Assembly – not the state or federal constitutions, ODNR contends. Had Omni continued its appeal of the replacement permit before the Oil and Gas Commission, the company could have introduced additional evidence and taken depositions, ODNR argues.
ODNR concludes that Omni’s choice on how to appeal, not Ohio law, prevented the company from receiving the evidentiary hearing it wanted.
State Law Allows Court To Hold Hearing, Consider More Evidence, Company Argues
Omni contends that the division chief selected evidence for the certified record submitted to the trial court. Omni argues that the Supreme Court needs to understand the entire record. That should include witness depositions and the lack of an existing or developing danger to underground sources of drinking water from the well’s original injection pressure, which the well operated at for seven months, the company maintains. The state’s view of R.C. 119.12(L) improperly impedes the company’s right to present this evidence or to cross-examine the division chief or the engineer about the findings and legal conclusions, Omni argues.
Omni also points to R.C. 2506.01, which states that “every final order, adjudication, or decision of any officer, tribunal, authority, board, bureau, commission, department, or other division of any political subdivision of the state may be reviewed by the court of common pleas ….” The statute notes that the rights are in addition to other rights and remedies presented in the Revised Code. Omni argues that a court, for instance, can accept additional evidence if the appellant wasn’t permitted earlier to appear and present evidence supporting its positions or opposing the other side’s arguments. Because these provisions allow a court to hold an evidentiary hearing, the Supreme Court can resolve the case based on the statute and without reaching the constitutional due process arguments, Omni maintains.
However, if the Court doesn’t accept the company’s interpretation of the statutes, fundamental fairness as guaranteed by due process requires a hearing in the trial court and permits the presentation of additional evidence, Omni concludes.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Eric Vendel, chief, Division of Oil and Gas Resources Management, Ohio Department of Natural Resources from the Ohio Attorney General’s Office: T. Elliot Gaiser, thomas.gaiser@ohioago.gov
Representing Omni Energy Group LLC: Christopher Gagin, chris.gagin@gmail.com
Was Energy Manager Wrongfully Denied Access to Utility Company’s Rate Plan?
In re application of Ohio Power Co., Case No. 2024-1142
Public Utilities Commission of Ohio
ISSUES:
- Did the Public Utilities Commission of Ohio wrongly deny a power generation company’s request to have an in-house expert review documents related to AEP Ohio’s request for an electricity security plan?
- Did the Public Utilities Commission of Ohio illegally impose a rider on all customer bills to cover basic transmission costs?
BACKGROUND:
Ohio Power Company, which does business as AEP Ohio, is a regulated provider of electric distribution and transmission service in Ohio. In 2023, AEP Ohio filed for an electric security plan (ESP) with the Public Utilities Commission of Ohio (PUCO). An ESP is an option that a regulated electric utility can use to set rates for services it provides to customers. Customers can choose to purchase electric generation services through AEP Ohio or from alternative suppliers.
AEP Ohio’s proposal was challenged by One Power Company, which is a company that helps commercial operations manage and develop their energy needs. One Power states that it isn’t an alternate provider of energy to AEP Ohio, but rather a retail, industrial customer of AEP Ohio, which helps industrial energy users produce and manage electricity needs. One Power objected to AEP Ohio’s ESP proposal, claiming it heavily favored the company at the expense of its customers. One Power received PUCO approval to intervene in the rate case. Once part of the case, One Power made a discovery request for virtually all materials AEP Ohio provided to the PUCO to justify its ESP proposal.
AEP Ohio objected to the request, stating some of the materials filed were confidential, competitively sensitive, or restricted access documents. AEP Ohio insisted One Power sign the utility’s standard protective order, limiting which materials can be viewed. The PUCO agreed with AEP Ohio’s request that One Power attorneys and expert witnesses could review the materials. However, One Power employees engaged in work similar to AEP Ohio could not view the materials because One Power might gain a competitive advantage from the materials. One Power objected, arguing its in-house expert, who is also the company’s chief executive officer, was the most qualified person to review the plan and present One Power’s views on the ESP.
One Power stated in particular that it viewed a proposed basic transmission cost rider (BTCR) as an unlawful charge. One Power noted the charge was deemed “non-bypassable,” which in PUCO terms means it was mandatory for all customers regardless of whether AEP Ohio or one of its competitors provided electric generation service.
The PUCO overruled One Power’s objections and refused to allow One Power’s in-house expert to review AEP Ohio documents. The commission then approved AEP Ohio’s ESP in 2024. One Power appealed the plan’s approval to the Supreme Court of Ohio, which must hear this type of appeal.
Commission’s Order Stifles Review, Energy Company Asserts
One Power argues its due process rights were violated by the PUCO “rubber stamping” AEP Ohio’s overly broad protective order. The company says the order forced opponents of the plan to incur additional costs for outside experts to review the ESP proposal because in-house experts were not allowed to review the details. One Power also maintains it won’t gain a competitive advantage over AEP Ohio when examining the items because it is not a competitor. AEP Ohio is supposed to be a transmission-only regulated utility, not a competing electric generation company, so the PUCO shouldn’t deem the companies to be competitors. One Power notes AEP Ohio is a subsidiary of the larger American Electric Power Company. AEP Ohio is free to share its data with anyone in the larger, multistate company that owns it while also denying smaller customers from gathering all the information necessary to evaluate AEP Ohio’s proposal, One Power concludes.
One Power also argues the BTCR is unlawful because under R.C. 4928.143, state lawmakers limited the costs that regulated utilities could pass on to customers who switch to alternative generation suppliers. Transmission costs weren’t one of the costs the law allows to be passed on, yet the PUCO permitted the costs to be paid by all customers, One Power asserts.
Restricted Access Appropriate, Rider Lawful, Commission Argues
The PUCO maintains that it provided “ample” but not unrestricted access to the materials for One Power and all parties involved in AEP Ohio’s ESP case. The commission asserts the order was narrowly tailored to protect confidential and competitively sensitive information.
The PUCO considers One Power to be an AEP Ohio competitor. Allowing its leadership to review competitively sensitive information would give One Power a competitive advantage in the generation marketplace. Because One Power cannot articulate how the lack of access specifically harms the company, the Court should reject its argument, the commission argues.
The BTCR is similar to riders the commission has approved for large electric distribution companies for nearly a decade, the commission asserts. AEP Ohio received approval for its first mandatory rider covering transmission costs in 2015, and riders for these costs have been declared lawful in several cases, the PUCO asserts. The commission notes that AEP Ohio incurs transmission costs for both customers who get their electricity from AEP Ohio and those who receive it from competitors. The charge is reasonable because AEP Ohio must maintain the capacity to provide transmission service to all customers in its territory regardless of who provides the generation services, the PUCO concludes.
Competitor’s Complaint Should Be Rejected, Utility Maintains
The Court permitted AEP Ohio to intervene in the appeal and argue on its own behalf. AEP Ohio maintains that One Power is raising failed arguments that the PUCO soundly rejected. It notes One Power itself has a subsidiary that is a competing generation provider, and the One Power CEO oversees the subsidiary. AEP Ohio argues its protective order allowed One Power employees who weren’t part of the company functions competing with AEP Ohio to view the sensitive materials.
AEP Ohio also notes the BTCR has been in place since 2015 and includes charges for items that the PUCO agreed are fair to impose on all customers. The BTCR hasn’t substantially changed in a decade, and several other parties to the ESP case agreed to continue the rider, the company notes.
– 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 Public Utilities Commission Ohio from the Ohio Attorney General’s Office: Connor Semple, connorsemple@ohioago.gov
Representing Ohio Power Company: Steven Nourse, stnourse@aep.com
These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.
Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.