Communications Office - 2006 Oral Argument SummariesWednesday, June 7, 2006 State v. Azbell, Case no. 2005-1788 State v. Cress, Case nos. 2005-1965 and 2005-2114 Columbus Bar Association v. Farmer, Case no. 2006-0491 Ameritech Publishing, Inc. v. Zaino, Case no. 2005-1862 Does ‘Speedy Trial’ Time Limit Run from Date of Arrest, or Date Formal Charges Filed In Case? State v. Azbell, Case no. 2005-1788 ISSUE: Under Ohio's “speedy trial” statute, R.C. 2945.71(C), does the 270-day time limit for the state to bring a criminal defendant to trial begin to run from the date the defendant is arrested, or the date on which formal charges are filed against the defendant by the bringing of an indictment? BACKGROUND: On May 30, 2003, Sandra Azbell was arrested by Ontario, Ohio, police officers after she attempted to call in a fraudulent prescription for a controlled substance to a local pharmacy, pretending to be a nurse employed by a local physician. When a suspicious pharmacy employee called the doctor's office and learned that the prescription was fake, local police were contacted and Azbell was taken into custody when she appeared at the pharmacy to pick up the prescription. She was transported to the police station where she was photographed and fingerprinted. When she declined to make a statement, officers released her without bond after approximately 30 minutes. No criminal charges were filed in the case until April 7, 2004, when Azbell was indicted on felony counts of using deception to obtain a dangerous drug and illegal processing of drug documents. During pretrial proceedings Azbell's attorney filed a motion seeking dismissal of the charges, asserting that her right to a speedy trial had been violated because the state did not bring her to trial within 270 days after her arrest, as required by R.C. 2945.71(C). The trial court overruled the motion to dismiss, and Azbell subsequently entered a plea of no contest. She was found guilty and sentenced to two years of community control. Azbell appealed the denial of her motion to dismiss on speedy trial grounds. In a 2-1 decision, the 5th District Court of Appeals vacated her convictions and sentence, ruling that the state had failed to comply with the requirements of the speedy trial statute and the trial court should have granted Azbell's motion to dismiss the charges against her. The state, represented by the Richland County prosecutor's office, has appealed the 5th District's ruling to the Supreme Court. They argue that the 270-day speedy trial time limit applies to persons “against whom a felony charge is pending,” and cite decisions in other Ohio appellate districts which have held that the statutory time limit does not begin to run until a charge has been formally brought against the defendant by the filing of a criminal complaint or indictment. The state also argues that the primary intent underlying the speedy trial requirement is to protect defendants who are being held in custody from prolonged incarceration before they receive a trial. In this case, they assert, Azbell was not “arrested” during the months between her initial 30-minute detention by police and the filing of an indictment because she was not held in custody or required to post bond during that period. Azbell's attorneys urge the Court to follow the 5th District's ruling that there is no ambiguity in the language of R.C. 2945.71 requiring that felony defendants “shall be brought to trial within two hundred seventy days after the person's arrest.” They argue that if the legislature intended that the time limit for bringing an offender to trial should start at the time he or she was indicted, it easily could have indicated that in the statute – but instead chose specific language starting the speedy trial “clock” on the date of a defendant's arrest. Contacts J. Banning Jasiunas, 614.466.5394, for Sandra Azbell. Does Intimidation of Victim/Witness Charge Require Threat To Engage in Unlawful Conduct? State v. Cress, Case nos. 2005-1965 and 2005-2114 ISSUE: Does a criminal charge of intimidation in violation of R.C. 2921.04(B) require the state to prove that the defendant has made a threat to engage in unlawful conduct? BACKGROUND: In April 2003, Shawn Cress and Tara Thacker occupied separate apartments in a “duplex” building in Marion owned by Cress' father. The two had been involved in a romantic relationship, but were quarrelling on the evening of April 25. Thacker invited several friends to spend the evening socializing in her apartment, and refused to admit Cress to her apartment when he tried to enter or talk with him when he tried to call her on the phone and threw rocks against an exterior wall of the apartment to get her attention. Later that evening, Cress entered Thacker's apartment through an attic access panel in an upstairs bedroom closet and began deleting files from her computer. When Thacker investigated noises coming from the bedroom, she found Cress hiding in the closet. She screamed and locked the closet door with Cress inside, then called police to report a break-in. Cress was subsequently arrested and taken to the Marion County jail, where he first called Thacker demanding that she withdraw her criminal complaint against him. When she refused, and asked police to prevent Cress from calling her again, Cress made seven subsequent phone calls to family members in which he directed them to call Thacker and threaten her with a variety of negative consequences if she didn't come to the police station immediately and secure his release by telling police that the criminal complaints she had filed against him “were lies.” During those calls, which were made from a jail phone and recorded by police, Cress instructed his mother, father and brother to call Thacker and threaten her with, among other things, eviction from her apartment, loss of custody of her children, disclosure of her alleged past drug use and possession of stolen rental property and circulation of alleged embarrassing or scandalous photographs of her if she didn't drop the charges against him. Cress was subsequently tried on charges of burglary, intimidation, retaliation and extortion. He was acquitted on all charges except intimidation of a witness or victim of a crime. For that conviction he was sentenced to three years of community control, including 60 days in jail. Cress appealed, and the 3rd District Court of Appeals vacated his conviction and sentence for intimidation. In a 2-1 decision, the appellate panel ruled that the state had not proved the crime of intimidation because it had not proved that Cress had used “unlawful threats” to attempt to influence, intimidate or hinder Thacker. The 3rd District certified that its ruling was in conflict with decisions of other Ohio courts of appeals. The Supreme Court has agreed to hear oral arguments to resolve the conflict among districts. The state, represented by the Marion County prosecutor's office, argues that the 3rd District committed reversible error in holding that the Ohio law defining the offense of intimidation requires proof that a defendant threatened to engage in unlawful conduct. They note that the statute only requires a showing that the offender made an “ unlawful threat of harm,” and cite other Ohio cases in which a defendant's threats to harm the reputation or cause economic loss to a victim, without necessarily breaking a law, were still held to be “unlawful threats” when they were made for the purpose of coercing a crime victim or a witness to drop charges or change testimony. Attorneys for Cress urge the Court to affirm the 3rd District's decision. They argue that the state's interpretation of the statute is circular because it would convert any negative consequence mentioned by a defendant to a potential witness, no matter how permissible under the law, into an “unlawful threat.” They point out that in drafting the statute, the legislature specified that a threat of harm must be “unlawful” in order to constitute the criminal offense of intimidation. Since the intimidation statute doesn't define “unlawful,” they say, it therefore requires the state to prove that a defendant threatened to harm a victim or witness by doing something that is prohibited by a law other than the intimidation statute. Contacts Kevin P. Collins, 740.223.1470, for Shawn Cress. Attorney DisciplineColumbus Bar Association v. Farmer, Case no. 2006-0491 The Board of Commissioners on Grievances & Discipline has recommended that Columbus attorney Derek A. Farmer be suspended from practice for one year, with six months of that term stayed on conditions, for professional misconduct in his handling of two cases in which Farmer was retained by family members of prison inmates to pursue appeals and/or post-conviction relief. Based on seven days of hearings conducted by a hearing panel between March and October 2005, including testimony by 22 witnesses, the board found that in one case Farmer had quoted the family of inmate Charles Martin a flat fee of $41,000 to replace Martin's court-appointed counsel in pursuing an appeal and/or post-conviction relief from a life sentence for rape, aggravated murder and other felony offenses. The board found that Farmer had withdrawn an appellate brief already prepared and filed by Martin's prior counsel, describing it to Martin's family as worthless and promising to revise it extensively, but later filed a brief that was virtually an exact copy of the one that had been withdrawn, including verbatim reproduction of typographical errors included in his predecessor's work product. When Martin's family members learned that they had been misled about the brief, and were dissatisfied with other aspects of Farmer's representation, they demanded a refund of more than $8,000 in legal fees they had paid him to date. When Farmer refused, claiming he had earned the fees, the clients filed a grievance with the Office of Disciplinary Counsel. The board found that Farmer's actions in the case, including misleading statements he made to disciplinary authorities during the investigation of the Martins' complaint, violated the state attorney discipline rules that prohibit charging an excessive fee, engaging in conduct involving dishonesty, fraud deceit or misrepresentation and several other provisions of the Code of Professional Responsibility. In a second case, the board found that Farmer had accepted a $1,000 retainer from Ysabel Moore to investigate prospects for post-conviction relief for inmate Searcy Rutledge, who was serving a prison term of from 15 years to life for murder and assault. Farmer later accepted an additional $4,000 in fees from Moore for services related to Rutledge's case and her own legal problems. Moore subsequently sought a refund of the monies she had paid to Farmer, but was advised that the value of time he had invested in the case was more than the fees he had received. While the board found that Farmer did talk with witnesses and court officials, and took other actions on behalf of Rutledge and Moore, it concluded that his complete failure to maintain records to account for any of his time or work performed on behalf of Rutledge and Moore was a violation of state disciplinary rules that require attorneys to maintain and furnish clients with an accurate accounting of their time and charges. Farmer has filed objections to the board's findings and recommended sanction. His attorneys assert that the grievances amount to nothing more than fee disputes involving clients of highly questionable credibility and family members who were understandably unhappy when he was unable to secure reductions in their loved ones' sentences, and have now resorted to claims of unethical conduct to get back legal fees that he earned. He points to multiple hours of research, investigation and fact-checking he says he devoted to earn the fees charged in both cases, and disputes the Martins' claim that he misrepresented the pre-existing appellate brief as “not worth the paper it's printed on,” or told them that developing a new appellate brief was a major part of the work for which he was charging them. The Columbus Bar Association has also filed objections to the board's recommended sanction. They argue that Farmer should receive a two-year suspension with six months stayed for charging a clearly excessive fee to vulnerable clients when there was little or no chance he could achieve any reduction in their loved-one's sentence, and for making repeated misleading statements to his clients and to disciplinary authorities regarding his withdrawal and refiling of the appellate brief and other matters in the Martin case. Contacts David C. Greer, 937.223.3277, for Derek Farmer. Do ‘Paper Management’ Services by Printer Qualify As Personal Services Not Subject to Ohio Use Tax?Ameritech Publishing, Inc. v. Zaino, Case no. 2005-1862 ISSUE: Are fees paid by a customer to a printing company for “paper management services” subject to Ohio use tax, or are those fees non-taxable payments for “personal services?” BACKGROUND: Ameritech Publishing, Inc. (API) is a wholly-owned subsidiary of the regional telephone company formerly knows as SBC Communications and now known as AT&T. API publishes and distributes the AT&T white pages and yellow pages telephone directories. The actual printing of AT&T directories distributed in Ohio is procured by API through a contract with the R.R. Donnelley & Sons Company, which operates a large commercial printing and storage facility located in Illinois. In this case, API has appealed to the Supreme Court from a ruling by the state tax commissioner that API should have paid Ohio use tax on its contractual payments to Donnelley during a three-year audit period for “paper management services.” The commissioner's ruling was subsequently upheld by the state Board of Tax Appeals (BTA). API urges the Court to overrule the commissioner and BTA, and instead to hold that the paper management services for which API paid Donnelley during the audit period met the legal definition of “personal services” that are exempt from Ohio use tax. Attorneys for API point out that in the written agreement between API and Donnelley, Donnelley agreed to act as API's agent in: ordering paper as needed to maintain a “just-in-time” inventory at the Illinois printing plant; expediting paper shipments; negotiating claim settlements with shippers and paper suppliers; performing paper inspections and quality control procedures; and helping to identify new suppliers and assure the future availability of sufficient paper to meet API's publishing needs. API asserts that the tax commissioner and BTA ignored these terms in the agreement and other hearing evidence when they held that the contracted paper management services did not qualify as untaxed personal services because they “did not require intellectual or manual acts involving a recognized skill.” Attorneys for the tax commissioner point out that, in the written API-Donnelley agreement, the amount API claims that it paid to Donnelley for “paper management services,” is stated as a simple markup by Donnelley of 4.04 percent in the “price of paper.” They point to provisions of state law and earlier BTA rulings that, when contractual payments are part of the stated cost of tangible property, such as paper, those payments are subject to a use tax assessment. Contacts Cheryl Pokorny, 614.466.2980, for the State Tax Commissioner. These summaries are prepared by the Office of Public Information solely to help news reporters determine if they want to cover the arguments. The summaries are not part of the case record and are not considered by the Court at any point 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. |