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State of Ohio v. Kim Cunningham, Case no. 2005-1780
8th District Court of Appeals (Cuyahoga County)
State Automobile Insurance Co. v. Russell J. Pasquale et al., Case no. 2005-2047
11th District Court of Appeals (Lake County)
State of Ohio v. William Kavanagh, Case no. 2005-2149
1st District Court of Appeals (Hamilton County)
State of Ohio v. Betsy Brooke, Case no. 2006-0015
11th District Court of Appeals (Lake County)
Vectren Energy Delivery of Ohio, Inc. v. The Public Utilities Commission of Ohio, Case no. 2006-0367
State of Ohio v. Kim Cunningham, Case no. 2005-1780
8th District Court of Appeals (Cuyahoga County)
ISSUES: Do Ohio's criminal sentencing laws give the state a statutory right to appeal a trial court order granting judicial release to an offender who has been convicted of a fifth-degree felony?
BACKGROUND: This case involves an order issued by the Cuyahoga County Court of Common Pleas in which the judge granted a petition by a prison inmate, Kim Cunningham, for early judicial release from a one-year prison sentence that Cunningham was serving for a fifth-degree felony conviction.
The county prosecutor's office attempted to appeal the release order to the 8th District Court of Appeals, but the court of appeals ruled that it did not have jurisdiction to hear the state's claim because a trial court order granting judicial release in a fifth degree felony case is not a “final appealable order” subject to review by an appellate court. The prosecutor asked the Supreme Court to review the 8th District's denial of jurisdiction, and the Court has agreed to hear arguments in the case.
Attorneys for the prosecutor argue that a provision of the state felony sentencing statute, R.C. 2953.08(B)(2), grants the state the right to appeal a criminal sentence that is “contrary to law.” In this case, they assert, Cunningham formally withdrew a motion for judicial release that she had filed within the legal time limit for making such motions, and the trial court later acted without jurisdiction when it granted judicial release after allowing her to “reinstate” her withdrawn petition after the filing deadline had passed. Because the trial court acted without jurisdiction in releasing Cunningham from prison before the expiration of her lawful sentence, they say, the release order effectively imposed a new sentence that was “contrary to law,” and therefore was subject to the state's statutory right of appeal under R.C. 2953.08(B)(2).
Attorneys for Cunningham respond that the state's argument ignores an important distinction in the language of the sentencing statute. They acknowledge that the statute grants the state a right to appeal “a sentence” imposed on a felony offender if (among other alternatives) “the sentence is contrary to law.” They note, however, that the statute goes on to specifically limit the state's right to appeal “a modification of a sentence” to cases involving first and second degree felonies. Because the legislature distinguished between “a sentence” and “a modification of a sentence,” and expressly limited the state's right to appeal sentence modifications to first and second degree felony cases, Cunningham argues, the 8th District was correct in holding that the trial court order modifying her sentence for a fifth degree felony by granting a judicial release was not reviewable by a court of appeals.
Contacts
Steven Gall, 216.443.7800, for
the State of Ohio and Cuyahoga County prosecutor's office.
John T. Martin, 216.443.7583, for Kim Cunningham.
State Automobile Insurance Co. v. Russell J. Pasquale et al., Case no. 2005-2047
11th District Court of Appeals (Lake County)
ISSUE: Under former R.C. 3937.18, was a provision in an Ohio auto insurance policy excluding uninsured/ underinsured motorist (UM/UIM) coverage for injuries caused by the operator of an off-road vehicle enforceable, or was such an exclusion void as an unlawful restriction of coverage?
BACKGROUND: Under the version of R.C. 3937.18 that was in effect in August 2001, all auto insurance policies issued in Ohio were required to provide coverage for bodily injury to an insured person caused by an uninsured or underinsured motor vehicle operator.
In August 2001, Robert Gersten was operating an unregistered “dirt bike” motorcycle on a private off-road track owned by Russell Pasquale of Lake County, when Gersten accidentally struck Pasquale's four-year-old son, Matthew, who had walked out onto the track. Matthew later died of his injuries. Gersten's insurance carrier paid the Pasquale family the full $12,500 per/occurrence limit of Gersten's liability coverage. Russell Pasquale filed UM/UIM claims for additional compensation for his son's injuries under Pasquale's own personal and business automobile policies with the State Automobile Insurance Company.
State Auto denied coverage and sought a declaratory judgment from the Lake County Court of Common Pleas that it had no UM/UIM liability for Matthew's injuries based on a provision in Pasquale's policies that explicitly excluded from the definition of an “uninsured motor vehicle” any vehicle “designed mainly for use off public roads while not on public roads.” The trial court granted summary judgment in favor of State Auto. Its decision held that R.C. 3937.18 was intended to require UM/UIM coverage for victims of accidents that involve motor vehicles designed for and operated on public roads, and therefore the State Auto policy provision excluding UM/UIM coverage for injuries caused by an off-road vehicle being operated in an off-road location was not contrary to the intent of the statute.
Pasquale appealed, and the 11th District Court of Appeals reversed the trial court's decision. A 2-1 majority of the appellate panel ruled that legislative changes to R.C. 3937.18 adopted in 1997 required UM/UIM coverage in all Ohio auto insurance policies in order to ensure protection of insured persons, rather than insured vehicles. The court of appeals held that the intent of the law was to ensure that insured persons who were entitled to compensation for injuries incurred in motor vehicle accidents would be able recover those damages from their own insurer if an at-fault vehicle operator lacked sufficient liability insurance coverage. Because Matthew Pasquale's injuries were inflicted by an underinsured motor vehicle, and the exclusion in State Auto's policy prevented the Pasquale family from recovering compensation for those injuries to which they were otherwise entitled, the court held that the exclusion was contrary to the intent of the statute and therefore unenforceable.
State Auto sought Supreme Court review of the 11th District's ruling, and the Court agreed to hear arguments in the case.
Attorneys for the insurance company argue that their exclusion of UM/UIM coverage for injuries caused by off-road vehicles was not contrary to the legislative intent of R.C. 3937.18. They assert that the trial court was correct in finding that the statute intended to protect insured persons from losses caused by uninsured or underinsured operators of vehicles designed for and operated on public roadways. They note that the 1997 changes to the statute authorized insurers to exclude certain categories of persons and vehicles from UM/UIM coverage, and say the State Auto policy provision excluding injuries cause by off-road vehicles falls within those allowable limitations of coverage.
Attorneys for Pasquale urge the Court to affirm the 11th District's decision. They note that the 1997 legislation amending R.C. 3937.18 began with a requirement that all Ohio motor vehicle liability insurance policies must provide UM/UIM coverage for bodily injury to an insured person, and then spelled out narrow and specific exclusions to that general requirement. They point out that none of the specific exclusions in the statute allowed an insurer to limit coverage to accidents that occur on a public road, or that involve one or another type of motor vehicle. They assert that, absent such language, the statute should be read to invalidate the exclusion in the State Auto policy and require the company to provide UM/UIM coverage for Matthew Pasquale's injuries.
Contacts
Irene Keyse-Walker, 216.592.5000, for
State Automobile Insurance Company.
Clifford C. Masch, 216.687.1311, for Russell Pasquale et al.
State of Ohio v. William Kavanagh, Case no. 2005-2149
1st District Court of Appeals (Hamilton County)
ISSUE: When a police officer has wide discretion to impound or not impound a vehicle with an expired registration, does the officer's detention of a driver beyond the time necessary to issue a traffic citation and subsequent examination of the vehicle's exterior by a drug-sniffing dog and “inventory” search of the interior prior to impoundment violate the driver's constitutional right to be free from unreasonable searches and seizures?
BACKGROUND: Motorist William Kavanagh was pulled over by Blue Ash police officer Robert Rockel along Interstate 75 near Cincinnati for driving with a vehicle registration that had been expired for approximately three months. When Rockel, who described Kavanagh as looking “nervous,” asked to see Kavanagh's driver license, he found that it had also expired 90 days earlier.
Rockel later testified that, while writing up tickets for these two misdemeanor traffic offenses, he decided to exercise his discretion to impound Kavanagh's car and called for backup to assist with the impoundment process and help conduct an “inventory” search of the vehicle to protect Kavanagh's property and protect police from claims that they had taken valuable items while the car was impounded. After he completed the citations, Rockel and another officer who had arrived at the scene ordered Kavanagh to get out of his car and stand behind a cruiser with the other officer while Rockel had a police dog trained to detect narcotics “sniff” Kavanagh's vehicle. The dog indicated that it had detected the smell of drugs on both the passenger and driver side door handles. Rockel then began a search of the interior of the car, evoking an admission from Kavanagh that there was a loaded handgun in the front seat console. A subsequent search of the console discovered the gun.
Kavanagh was charged with a misdemeanor count of improperly handling a firearm in a motor vehicle. Kavanagh had his case moved from Blue Ash Mayor's Court to the Hamilton County Municipal Court, where he filed a motion to suppress all evidence obtained through what he claimed was an improper search of his vehicle. The trial court overruled the motion to suppress and Kavanagh was convicted. He appealed the trial court's denial of his motion to suppress, and a three-judge panel of the 1st District Court of Appeals unanimously reversed the trial court ruling. The court of appeals held that, absent any evidence of other illegal activity, Rockel had no grounds to detain Kavanagh beyond the time it took to issue his traffic citations, and had violated Kavanagh's 4 th Amendment right against unreasonable search and seizure by extending the traffic stop to allow his dog to examine the car. Since the dog's indication of drug scent provided the reasonable ground for the subsequent search of the car's interior, the court of appeals ruled that the search was unlawful and any fruits of the search were therefore inadmissible.
Blue Ash now asks the Supreme Court to overrule the 1st District and reinstate Kavanagh's conviction based on the car search evidence. Attorneys for the city argue that the court of appeals improperly disregarded findings of fact by the trial court that Officer Rockel: (1) had authority to impound Kavanagh's improperly registered car; (2) had decided to impound the car prior to having his dog sniff for drugs; (3) extended the time of the traffic stop in order to have Kavanagh's vehicle towed to the city impoundment lot, not for the purpose of conducting a warrantless search, and (4) would inevitably have discovered the gun when a standard pre-impoundment “inventory” search of the vehicle was performed. They point to a 2005 U.S. Supreme Court decision, Illinois v. Caballes, holding that when external examination of a car by a drug-sniffing dog does not extend the duration of a routine traffic stop, such an examination does not violate a suspect's Fourth Amendment rights. Because officers had to wait for a tow truck to remove the impounded car anyway, the city asserts, Caballes should apply in this case because the traffic stop was not extended by allowing a police dog to sniff it during that delay.
Attorneys for Kavanagh urge the Court to affirm the 1st District's determination that Rockel unlawfully extended his detention of Kavanagh beyond the time required to issue his traffic citations, rendering the subsequent search of the car unconstitutional. They cite a line of state and federal court decisions that they say have held that discretionary impoundment of a vehicle by a police officer, in the absence of clearly-stated policy guidelines regarding when a stopped vehicle is and is not subject to impoundment, is not permissible grounds for a search of the vehicle. In this case, they note, Rockel admitted at trial that he had discretion to allow Kavanagh to drive away, even though his license plates and driver license were expired, and that in some similar cases he had allowed other drivers to do so. Because the decision to impound Kavanagh's car, detaining Kavanagh at the scene and allowing police to have a dog sniff the car and then inspect it, was completely discretionary, they say, a judgment in favor of Blue Ash would give police free rein to use impoundment as an excuse to conduct warrantless vehicle searches in cases where there is no probable cause of any wrongdoing other than a minor traffic offense.
Contacts
David P. Fornshell, 513.621.4556, for
the State of Ohio and City of Blue Ash.
Paul M. Laufman, 513.621.9100, for William Kavanagh.
State of Ohio v. Betsy Brooke, Case no. 2006-0015
11th District Court of Appeals (Lake County)
ISSUES: When a criminal defendant's prior convictions are being used to enhance the degree of a subsequent offense, and the defendant moves for dismissal of the enhancement based on a claim that her waivers of legal counsel in the earlier cases were not “knowing and intelligent”:
BACKGROUND: In this case Betsy Brooke of Lake County was arrested and charged with driving under the influence of alcohol or drugs (DUI) in January 2004. Because Brooke had three prior DUI convictions dating back to 1997, the Lake County prosecutor sought and obtained an indictment enhancing the charge for her current offense from a misdemeanor to a fourth-degree felony.
Brooke's attorneys filed a pretrial motion seeking dismissal of the felony enhancement. They argued that her prior convictions should not be considered as grounds for enhancement of the current charge because the municipal courts that heard her three previous cases violated state rules of criminal procedure when they accepted her waivers of legal counsel without explaining in open court the consequences of that waiver and determining that she was knowingly giving up her right to counsel despite those consequences. In opposing her motion, the prosecutor produced written waiver-of-counsel forms signed by Brooke from each of her earlier trials. The trial court denied Brooke's motion, holding that she had not established a prima facie case of denial of counsel and that the state's production of signed waiver forms was sufficient to demonstrate that her waivers of counsel in the earlier cases were valid. She subsequently entered a plea of no contest to a felony count of fourth-offense DUI and was convicted and sentenced. Brooke subsequently appealed the trial court's denial of her motion to dismiss the felony enhancement.
The 11th District Court of Appeals reversed the trial court and remanded the case to the Lake County Court of Common Pleas with a directive to dismiss the felony enhancement and have Brooke tried on a misdemeanor count of DUI. The prosecutor's office appealed the 11th District's ruling, and the Supreme court has agreed to hear arguments in the case.
Attorneys for Lake County assert that the 11th District erred by holding that the trial court should have accepted as prima facie evidence of a potential constitutional claim an affidavit submitted by Brooke stating that she had not been represented by an attorney at any of her three prior trials and that she had received a sentence of confinement in each case. They argue that the affidavit was insufficient to transfer the burden of proof to the state to show that Brooke's waivers of counsel in her earlier cases were made knowingly and intelligently. The prosecutor also argues that the trial court “substantially complied” with Ohio Rules of Criminal Procedure by accepting written waiver-of-counsel forms signed by Brooke as sufficient to establish that Brooke's waivers in the prior cases were made knowingly, and urges the Supreme Court to hold that courts considering similar cases may apply a “substantial compliance” standard rather than the “strict compliance” standard applied by the 11th District in this case.
Attorneys for Brooke respond that the 11th District followed an established body of state and federal case law in holding that, because the right to counsel is a unique and fundamental constitutional right of criminal defendants, courts reviewing claims of invalid waivers of counsel must apply a standard of strict compliance with procedural safeguards. Under that case law, they assert, Brooke's affidavit was sufficient to establish a prima facie constitutional claim, and that transferred to the state the burden of showing that her waivers of counsel in the earlier DUI cases were made knowingly and intelligently. They argue that the signed waiver forms produced by the state, without more, were clearly insufficient under Ohio Criminal Rules 22 and 44, which require that a trial court may not accept a waiver of counsel without first explaining to the defendant, in open court and on the record, the value of having an attorney and the consequences of proceeding without one. They note that no trial record of one of Brooke's prior cases was available, and that transcripts of the other two cases showed that the judges did not explain the consequences of waiving counsel and did not engage in the required dialogue with Brooke to determine that she knew the consequences of her action before waiving counsel.
Contacts
Karen A. Sheppert, 440.350.2683, for
the State of Ohio and Lake County prosecutor's office.
John J. Hurley, 216.357.5558, for Betsy Brooke.
Vectren Energy Delivery of Ohio, Inc. v. The Public Utilities Commission of Ohio, Case no. 2006-0367
ISSUE: Does certification by the Public Utilities Commission that a gas utility's Long-Term Forecast Report projecting future gas supply needs “substantially complies” with the requirements of R.C. 4935 bar the commission from later disallowing certain of that company's claimed costs of procuring gas supplies based on findings under R.C. 4905 that some of the company's purchase contracts during the audit period were unreasonable and imprudent?
BACKGROUND: In this case, the utility company providing natural gas and propane service to customers in Dayton and surrounding communities, Vectren Energy Delivery of Ohio Inc., has appealed to the Supreme Court two orders issued by the Public Utilities Commission of Ohio (PUCO). Those orders required Vectren to refund more than $6.5 million in charges the company collected from its customers to cover three gas purchase contracts and an asset management agreement the company entered into during 2000 and 2001 which were later found to be unreasonable, imprudent and inappropriate by a PUCO Gas Cost Recovery (GCR) audit.
Attorneys for Vectren argue that the company based its gas purchase contracts for the years covered by the GCR audit on the same average-day gas demand estimates and reserve capacity projections the company submitted for prior PUCO review in their Long-Term Forecast Reports (LTFRs) for the years 2000 through 2002. They assert that the commission had both the opportunity and the duty to raise any objections about the reasonableness of their demand projections when it reviewed their LTFRs, but accepted the forecasts as being “in substantial compliance with statutory requirements.” Vectren argues that the PUCO's later audit findings disallowing recovery for their actual costs of gas procurement amounts to “double jeopardy” — because they say PUCO effectively gave Vectren permission to rely on the long-term forecasts it submitted, but then punished the company after-the-fact for entering into specific gas purchase contracts that were consistent with its forecasts.
Specifically, Vectren asks the Supreme Court to hold that because the PUCO formally accepted Vectren's long-term forecasts regarding peak consumption and reserve capacity, the commission is barred by the legal principle of res judicata from making after-the-fact audit findings that the company's gas purchases consistent with its forecasts were “unreasonable” or “imprudent.” The company also argues that the GCR audit findings and the PUCO's refund orders based on those findings were contrary to the weight of the evidence, and that the commission's hearings reviewing the audit findings violated state utility regulation statutes and administrative rules for PUCO proceedings.
Attorneys for the PUCO respond that its review of utility company long-term forecast reports is a completely separate function conducted under completely different statutory guidelines than the annual Gas Cost Recovery audits through which the commission reviews a regulated utility's actual conduct of its business. They say the long-term forecast reports required under R.C. 4935 simply compel a regulated utility to go through specified steps to demonstrate that it has evaluated potential future supply issues and service needs of its customers, and assert that PUCO certification of forecast reports does not convey the commission's “approval” of the forward-looking estimates submitted by a utility. They argue that the PUCO has no authority to give binding advance approval of individual business decisions that regulated companies will make in the future. They also point to specific provisions of R.C. 4905 that require the commission to conduct yearly after-the-fact audits of regulated utilities' actual performance, and to order refunds of charges a utility has collected from its customers when auditors find that those charges were based on unreasonable, imprudent or inappropriate business practices.
Contacts
Werner L. Margard III, 614.466.4395, for the
Public Utilities Commission of Ohio.
Samuel C. Randazzo, 614.469.8000, for Vectren Energy Delivery of Ohio Inc.
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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.