|
|
State of Ohio v. David L. Pelfrey, Case nos. 2005-2075 and 2005-2211
2nd District Court of Appeals (Montgomery County)
State of Ohio v. Cameron Sterling, Case no. 2005-2388
11th District Court of Appeals (Ashtabula County)
American Interstate Insurance Company v. G & H Service Center, Inc. et al., Case no. 2006-0051
3rd District Court of Appeals (Shelby County)
Girl Scouts-Great Trail Council v. J. Patrick McAndrew [William W. Wilkins], Tax Commissioner of Ohio, Case no. 2006-0266
Ohio Board of Tax Appeals (Stark County)
Akron Bar Association v. Julius P. Amourgis, Case no. 2006-1189
Board of Commissioners on Grievances & Discipline
State of Ohio v. David L. Pelfrey, Case nos. 2005-2075 and 2005-2211
2nd District Court of Appeals (Montgomery County)
ISSUE: A provision in Ohio's criminal sentencing statutes, R.C. 2945.75(A)(2), requires that: “A guilty verdict shall state either the degree of the offense of which the offender is found guilty or that (an aggravating) additional element or elements are present. Otherwise, a guilty verdict constitutes a finding of guilty of the least degree of the offense charged.” In this case the Supreme Court is asked to determine if a trial court may convict and sentence an offender for a higher-than-minimum degree of a charged offense if the indictment in the case stated a non-minimum degree of the offense, the trial evidence clearly established an aggravating element and the jury verdict found the defendant guilty of the offense “as charged in the indictment.”
BACKGROUND: David Pelfrey, an employee of a private company that conducts auto emissions testing under a contract with the Ohio Environmental Protection Agency, solicited and accepted a $30 payment from an undercover auditor to record false information in a state database and issue a fraudulent waiver exempting the auditor's non-complying car from state vehicle emissions standards. Pelfrey was arrested and charged with tampering with records.
A minimum count of record tampering is punishable as a misdemeanor, however the indictment obtained by the Montgomery County prosecutor charged Pelfrey with a third-degree felony based on the aggravating element that the inspection document Pelfrey falsified was a “government record.” Pelfrey entered a plea of no contest in the Montgomery County Court of Common Pleas and was found guilty by a jury. Following state sentencing guidelines for a third-degree felony conviction, the trial court sentenced Pelfrey to four years in prison.
Pelfrey appealed. The 2nd District Court of Appeals vacated his felony conviction and sentence, and remanded the case to the trial court with instructions to re-sentence Pelfrey under the guidelines for a first degree misdemeanor. The court of appeals decision noted that the verdict form signed by the jury found Pelfrey “guilty of the offense of Tampering With Records as charged in the indictment.” Because the verdict form did not indicate any degree of the offense, and did not state a finding of any specific aggravating element, the 2nd District held that under R.C. 2945.75(A)(2), the trial court was required to convict and sentence Pelfrey for the “least degree” of the offense charged – in this case, a first degree misdemeanor count of tampering with records.
The 2nd District certified that its ruling on the jury verdict issue was in conflict with earlier decisions of the 4th, 8th and 12th District courts of appeals. The Supreme Court agreed to hear arguments to resolve the conflict among appellate districts.
Arguing for the state, the Montgomery County prosecutor's office asserts that other Ohio courts of appeals have upheld jury verdicts similar to the verdict in this case based on a finding that the trial court “substantially complied” with R.C. 2945.75(A)(2). They point out that, in those cases as in Pelfrey's case, the reviewing court found that the indictment clearly identified the degree of the offense charged, the jury's verdict found the defendant guilty “as charged in the indictment,” and the trial record showed that the state had clearly proven an aggravating factor that justified a conviction for a higher-than-minimum level of the charged offense.
Pelfrey did not submit a brief supporting the 2nd District's verdict in the case within the time limit set by the Supreme Court's rules of procedure, and will not participate in oral argument of the case before the Justices.
Contacts
Jennifer B. Frederick, 937.225.5775, for
the State of Ohio and Montgomery County prosecutor's office.
Patrick J. Conboy, 937.227.9485, for David Pelfrey.
State of Ohio v. Cameron Sterling, Case no. 2005-2388
11th District Court of Appeals (Ashtabula County)
ISSUE: Does a state law that bars any judicial review of a prosecutor's refusal to authorize post-conviction DNA testing of a defendant who entered a guilty plea violate the constitutional separation of powers between the executive and judicial branches of state government?
BACKGROUND: In 2003, the Ohio General Assembly enacted R.C. 2953.82, a state law that authorized post-conviction DNA testing of prison inmates who have been convicted of felonies. Subsection (D) of that statute states that, in cases where the defendant entered a plea of guilty or no contest, a court may authorize DNA testing only if the county prosecutor who brought the charges against the inmate consents to such testing. The law goes on to specify that, if the prosecutor does not agree to DNA testing in such cases, “the prosecuting attorney's disagreement is final and is not appealable by any person to any court, and no court shall have authority, without agreement of the prosecuting attorney, to order DNA testing regarding that inmate and the offense or offenses for which the inmate requested DNA testing …”
In 1991, Cameron Sterling of Ashtabula entered an “Alford” plea of guilty to a charge of non-forcible rape of a child under 13 years of age. He was convicted and sentenced to a prison term of from six to 25 years. In an “Alford” plea, the defendant enters a plea of guilty to the statutory offense with which he is charged, but denies that he actually committed the criminal act that is the basis for that charge.
In 2003, after the legislature enacted R.C. 2953.82, Sterling filed a motion in the Ashtabula County Court of Common Pleas seeking authorization of DNA testing to compare his genetic material to the DNA of semen samples recovered from the child he was convicted of raping. The Ashtabula County prosecutor's office did not agree to the testing, and the trial court denied Sterling's motion. The judge cited the statutory requirement that the prosecutor must consent to testing in cases where a defendant entered a guilty plea, and found that, in the absence of prosecutorial consent, the court had no power to grant Sterling's motion.
Sterling appealed that ruling to the 11th District Court of Appeals. The appellate court reversed the trial court and ordered it to authorize testing of Sterling's DNA despite the prosecutor's disagreement. In its opinion, the 11th District agreed with Sterling's argument that R.C. 2953.82 (D) is unconstitutional because it violates the separation of powers between the executive and judicial branches of state government by effectively giving an executive branch official (the prosecutor) power to prevent judicial review of the prosecutor's action in a case that is under the court's jurisdiction.
The prosecutor has appealed the court of appeals decision to the Supreme Court. He argues that statutes enacted by the legislature enjoy a strong presumption of constitutionality, and asserts that the Court must uphold the language adopted by the General Assembly in R.C. 2953.82(D) if it finds any rational basis for mandating prosecutorial approval of DNA testing. The state points out that, in years-old cases where there is no trial record to review because the defendant pleaded guilty, a prosecutor is in a better position than a judge to know what biological evidence was collected at the time of arrest, whether such evidence still exists or has been preserved so that it can be reliably tested, and whether the identity of the offender was even in question at the time of the offense. In order to make those factual determinations, they note, a court would have to conduct the equivalent of a “mini-trial” before ruling on motions to allow DNA testing, wasting the court's time and judicial resources.
The state also points out that prosecutors, unlike other attorneys and executive branch officials, are held to an affirmative ethical duty by the Code of Professional Responsibility to objectively “seek justice” rather than simply pursuing convictions as an advocate. These distinctions, they say, are enough to establish a reasonable basis for the legislature's decision to require a prosecutor's consent to testing.
Attorneys for Sterling urge the Court to affirm the 11th District's ruling. They argue that that legislature clearly intruded into the constitutional powers of the judiciary by effectively giving prosecutors “veto power” over a defendant's right to post-conviction DNA testing, and by including in the language of a statute an absolute prohibition against any judicial-branch review of a prosecutor's decision to bar scientific evidence that could represent an inmate's only chance to be freed from wrongful imprisonment.
Contacts
Shelley M. Pratt, 440.576.3662, for
the State of Ohio and Ashtabula County prosecutor's office.
Michael A. Partlow, 216.621.4244, for Cameron Sterling.
American Interstate Insurance Company v. G & H Service Center, Inc. et al., Case no. 2006-0051
3rd District Court of Appeals (Shelby County)
ISSUE: This case involves a lawsuit filed in an Ohio court in which: (1) a Louisiana resident seeks to recover civil damages for on-the-job injuries that he suffered in Ohio as a result of alleged negligence by an Ohio company; and (2) an insurance company that has paid for the injured worker's medical expenses under a Louisiana workers' compensation policy seeks to recover some or all of those outlays under a Louisiana law that allows insurers to subrogate (recover from) any damage award the injured worker may obtain from the party responsible for his injuries through a civil judgment. The injured worker disputes the right of the insurer to subrogate any civil damages he may recover through an Ohio judgment, noting that the Supreme Court of Ohio has voided as unconstitutional a subrogation provision in Ohio's workers' compensation law that is virtually identical to the Louisiana law the insurer is trying to enforce against him.
Two provisions (Sections 145 and 146) of the Restatement of Laws (2 nd ), a multi-state compendium of legal rulings that is followed by Ohio courts, hold that when a tort or personal injury action involves parties from different states, the law of the state in which the alleged negligent acts causing injury took place should control legal proceedings. However a different provision of the Restatement of Laws (Section 185) holds that when a court action involving parties from different states addresses workers' compensation insurance issues, the law of the state in which the workers' compensation claim was filed and benefits were awarded should control legal proceedings.
BACKGROUND: Louisiana-based truck driver Claude Britton was seriously injured while making a stop in Sidney, Ohio when he was struck by an unattended tow truck belonging to G&H Service Center of Sidney. Britton filed a Louisiana workers' compensation claim under a policy purchased by his employer from a Louisiana insurance company, American Interstate. The insurer subsequently paid Britton's medical bills and other benefits totaling more that $75,000.
Britton and his wife filed a civil lawsuit against G&H in Shelby County ( Ohio ) Common Pleas Court, seeking money damages for personal injury, pain and suffering, loss of consortium and other tort claims. Upon learning of the Brittons' civil suit, American Interstate filed a complaint with the trial court claiming the right under Louisiana's workers' compensation law to recover some or all of their medical expense outlays from the proceeds of any judgment the Brittons might obtain from G&H. The Brittons and G&H sought and obtained summary judgment dismissing American Interstate's subrogation claim.
The trial court agreed with their arguments that the case was an Ohio personal injury suit that must be decided according to Ohio law, and cited a 2001 decision of the Supreme Court of Ohio, Holeton v. Crouse Cartage, in which the Court voided as unconstitutional the portion of Ohio's workers' compensation law that had previously allowed subrogation of workers' compensation payments from a claimant's civil judgment against a third party.
American Interstate appealed, and the 3rd District Court of Appeals reversed the trial court's ruling. The court of appeals held that American Interstate's complaint was a workers' compensation subrogation claim, which (under Restatement of Laws Section 185) must be heard and decided according to Louisiana's workers compensation law. Since Louisiana law authorizes subrogation of an injured claimant's civil damage awards by an insurer, the 3rd District held that the trial court erred in granting summary judgment against American Interstate. The 3rd District certified that its decision in this case was in conflict with rulings by several other Ohio courts of appeals in similar cases, and the Supreme Court has agreed to hear argument to resolve the conflict.
Attorneys for the Brittons ask the Supreme Court to overrule the 3rd District and reinstate the trial court's summary judgment in their favor. They argue that, because the underlying complaint in this case is their negligent personal injury claim against G&H, the conflict-of-laws issues in the case should be resolved pursuant to Restatement of Laws Sections 145 and 146 – which require that the dispute be decided according to Ohio law. Even if the Court should decide that Louisiana workers' compensation law are applicable, the appellants argue that an Ohio trial court should not enforce a foreign state subrogation provision when Ohio's highest court has held as a matter of this state's public policy that such takings from injured workers' judgment awards are unconstitutional.
Attorneys for American Interstate respond that their filing with the trial court asserted a straightforward claim for subrogation of the benefits they paid to or on behalf of Claude Britton. They urge the Court to affirm the 3rd District's holding that the conflict of laws dispute in this case must be resolved according to Section 185 of the Restatement of Laws, which requires application of Louisiana workers' compensation statutes that unequivocally entitle insurers to subrogation of civil damage judgments.
Contacts
Thomas W. Kerrigan II, 937.492.6125, for
Claude and Shon Britton.
Mechelle Zarou, 419.321.1460, for American Interstate Insurance Company.
Girl Scouts-Great Trail Council v. J. Patrick McAndrew [William W. Wilkins], Tax Commissioner of Ohio, Case no. 2006-0266
Ohio Board of Tax Appeals (Stark County)
ISSUE: Does the provision of Ohio law granting property tax exemption for property “used exclusively for charitable purposes” allow exemption for the portion of a property used by a girl scout council to operate a store that earns a “slight profit” by selling scouting-related materials at prices that are marked up from the price paid by the council for those materials.
BACKGROUND: In 2002, the Great Trail Girl Scout Council, a non-profit organization, built a 12,000-square-foot “service center” building on approximately three acres of donated land in North Canton. The council uses a small portion of that property, approximately 256 square feet or 3 percent, to operate a store that sells scout uniforms and other materials and supplies directly related to scouting.
The state tax commissioner granted exemption from property taxes for all of the council's land and building except the portion occupied by the store under R.C. 5709.12, a provision of state law that exempts property “used exclusively for charitable purposes.” In determining that the portion of the property occupied by the store was not eligible for exemption, the commissioner noted that the council marks up items sold at the store by roughly 20 to 30 percent from its cost of acquisition and realized a small profit from the store's operations. The commissioner cited prior court decisions holding that any property or portion of a property used “with a view to a profit” was not used exclusively for charitable purposes and therefore not entitled to tax exemption under R.C. 5709.12.
The council appealed the denial of tax exemption for the store area, and the State Board of Tax Appeals (BTA) reversed the commissioner's ruling. In a divided decision, the BTA majority noted that, although the store had turned a small profit of $2,363 in its first year of operation at the new service center location, it had recorded net losses for the previous 11 years at the council's prior headquarters. Because the store was operated solely as a service to scouts, and its price mark-ups were intended only to recover operating costs, not with the intention of generating a profit, the majority held that the store was entitled to the same tax exemption applicable to the rest of the service center facility and land.
The office of the tax commissioner has exercised its right to appeal the BTA's ruling to the Supreme Court. Attorneys for the commissioner argue that the BTA majority in this case abandoned the clear standard set forth in earlier court decisions that, when non-profit organizations operate revenue-generating activities, the portion of their property devoted to revenue-generating activity is not entitled to tax exemption because the use of that property is not “exclusively charitable.” By setting a new and uncertain standard that allows charitable-use exemption where there is a “small profit,” the state asserts, the BTA ruling could open the door for a flurry of new litigation by non-profit groups claiming exemption for their revenue producing properties based on the same ambiguous small-profit standard.
Attorneys for the girl scout council assert that the BTA applied the law correctly by recognizing that their store is not and never has been a profit-seeking commercial enterprise that offers goods to the general public, but is rather an integral part of the council's tax-exempt charitable mission to encourage and facilitate participation in scouting. They note that the “mark-ups” the store adds to its cost of acquiring scout uniforms and supplies are not discretionary, but rather are specified in their contractual agreement with the national girl scout organization that supplies those materials to local councils. In any case, they argue, the store's eligibility for tax exemption should be based on a long-term view of the charitable mission and intended use of the property, not on a single year's positive cash flow following 11 straight years of operating losses.
Contacts
Gregory D. Swope, 330.497.0700, for the
Girl Scouts – Great Trail Council.
Janyce C. Katz, 614.466.5967, the State Tax Commissioner.
Akron Bar Association v. Julius P. Amourgis, Case no. 2006-1189
Board of Commissioners on Grievances & Discipline
The Board of Commissioners on Grievances & Discipline has recommended that the law license of Akron attorney Julius P. Amourgis be suspended for 18 months, with 12 months of that term stayed on conditions, for violating state attorney discipline rules that restrict the timing of solicitation letters sent to parties in civil actions and for using a fictitious name that misled the public regarding the number or identity of attorneys in his law firm. Amourgis urges the Court to overrule the board's findings that his conduct violated disciplinary rules, or in the alternative to impose only a public reprimand as the appropriate penalty.
Based on grievances lodged by one current client and five prospective clients whose business he solicited, the Akron Bar Association filed a formal complaint against Amourgis alleging that he improperly sent solicitation letters to parties named in civil complaints filed in the Summit County Domestic Relations Court before those parties had been served by the court with copies of the complaints. The bar association also charged Amourgis with failing to supervise a non-attorney he hired to send out these solicitation letters, and with adopting a new corporate name and letterhead identifying his firm as “Phillip Edwards McCormick, P.C.,” despite the facts that the composition of his firm had not changed and that no attorney by any of those names was a past or present member of the firm.
Based on facts stipulated by the parties and evidence from a hearing before a three-member panel, the board found that Amourgis knowingly violated the state disciplinary rules governing client solicitation, engaged in conduct prejudicial to the administration of justice, used a third party to violate or circumvent a disciplinary rule and used a misleading firm name to falsely enhance the apparent size and resources of his law practice.
In recommending an 18-month suspension with 12 months stayed as the appropriate sanction, the board asserted that Amourgis acted from a self-serving motive, had not acknowledged the wrongfulness of his conduct, had been evasive and less than candid in his hearing testimony, and had engaged in a pattern of misconduct involving multiple clients. The board concluded that, contrary to his hearing testimony, the language of Amourgis' premature letters to prospective clients showed that he intended for the letter to arrive before the recipient was served by the domestic relations court, thus giving Amourgis a “head start” in establishing contact before other attorneys who followed the rules by waiting until service by the court had been verified.
In urging the Court to find no disciplinary rule violations or to impose only a public reprimand as the appropriate sanction, Amourgis argues that his employee failed to comply with safeguards he attempted to put in place to prevent premature client solicitations, and asserts that based on presentations at an Akron Bar Association seminar, he believed that if his solicitation practices were outside the rules, he would receive a prior warning from the bar before disciplinary charges were filed. Amourgis also argues that the board's recommendation of an actual six-month suspension from practice is more severe than the sanctions recommended by either the Akron Bar or his hearing panel, and is disproportionate to his violations in light of other disciplinary cases and mitigating factors in his favor.
Contacts
Nathan A. Ray, 330.253.7171, for the Akron Bar Association.
Dennis J. Bartek, 330.784.8580, for Julius P. Amourgis.
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.