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State of Ohio v. Larry M. Schlee, Case no. 2006-1608
11th District Court of Appeals (Lake County)
In re: Application of Rahshann Blackwell, Case no. 2007-0441
Board of Commissioners on Character & Fitness
Disciplinary Counsel v. William Mark Fumich, Jr., Case no. 2007-0733
Cuyahoga County
Dayton Bar Association v. Richard H. Rogers, Case no. 2007-0746
Montgomery County
State of Ohio v. Larry M. Schlee, Case no. 2006-1608
11th District Court of Appeals (Lake County)
ISSUE: When the defendant in a criminal case has filed a timely and clearly labeled motion for relief from judgment under Rule 60(B) of the Ohio Rules of Civil Procedure, may the trial court re-cast his motion as a petition for post-conviction relief and summarily dismiss it as noncompliant with filing requirements for post-conviction petitions, preventing a hearing on the merits?
BACKGROUND: In 1993, Larry Schlee of Lake County was convicted of the 1980 murder of Frank Carroll, whose body was found in a rural area of New York in 1981 but remained unidentified for more than 10 years. After an unsuccessful appeal of his conviction, in 2002 Schlee sought and was granted a new trial based on the discovery that potentially exculpatory medical evidence had been withheld by the prosecution during his first trial. Following a new trial in 2004 Schlee was again found guilty of murdering Carroll and re-sentenced.
While an appeal of his second conviction was still pending, Schlee filed a pro se motion with the trial court that he identified as a “Motion for Relief from Judgment Pursuant to Civ.R. 60(B).” In his motion, Schlee argued that the new judgment entered against him should be vacated based on alleged false and misleading grand jury testimony by witnesses who appeared at his second trial, new acts of prosecutorial misconduct and the manifest injustice of trying him again for the same crime after his first trial had been shown to be tainted. Without prior notice to Schlee or a hearing, the trial judge ruled that Civ.R. 60(B) was not applicable to his case, re-labeled his motion as a petition for post-conviction relief subject to the procedural requirements of R.C. 2953, and summarily dismissed it as not having been filed within the 180-day statutory time limit applicable to post-conviction motions.
The 11th District Court of Appeals affirmed the ruling of the trial court, but certified that its holding was in conflict with a decision of the 1st District, State v. Lehrfeld, in which that court held that a criminal defendant was eligible to seek relief from a trial court judgment under Civ.R. 60(B), and that the trial court had exceeded its authority by re-casting and dealing with such a motion as a petition for postconviction relief. The Supreme Court has agreed to review the case to resolve the conflict between appellate districts.
Attorneys for Schlee argue that a majority of Ohio court of appeals districts that have ruled on the question have held that criminal defendants are not barred from seeking relief from judgment under Civ.R. 60 (B), even though the facts supporting their motion could also support a petition for postconviction relief under R.C. 2953. They urge the Court to follow its 2002 decision in State v. Bush, which held that a trial court could not re-cast a criminal defendant's timely motion under a specific criminal rule and then dismiss it as an untimely petition for postconviction relief.
The state, represented by the Lake County prosecutor, urges the Court to follow an alternative line of decisions relied upon by the trial court and the 11th District in this case holding that motions based on provisions of the Civil Rules are not applicable in criminal cases where there is a criminal statute or rule that can be applied. They assert that the substance of Schlee's motion is an attempt to have his criminal conviction set aside based on alleged violation of his rights at trial, and say such claims must be addressed by trial courts via the post-conviction relief procedures set forth in R.C. 2953.
Contacts
Charles E. Coulson, 440.350.2683, for
the State of Ohio and Lake County prosecutor's office.
Douglas R. Cole, 614.469.3939, for Larry Schlee.
In re: Application of Rahshann Blackwell, Case no. 2007-0441
Board of Commissioners on Character & Fitness
The Board of Commissioners on Character and Fitness has recommended that the Supreme Court not approve the application of Rahshann Blackwell of Denver to re-take the Ohio Bar Examination until the February 2009 examination. The board also recommended that, before reapplying, Blackwell be required to undergo treatment with a licensed psychologist or psychiatrist and be re-evaluated by the doctor who performed an earlier psychological evaluation finding him not currently fit for admission to the bar. Blackwell has filed objections to the board's findings and recommendations.
In its report, the board cited separate incidents during the July 2003 and July 2005 bar examinations in which Blackwell continued writing in his test booklet after time was called for a section of the test and candidates were required to stop writing. Following the 2003 incident, which caused disqualification of several of his essay answers and resulted in Blackwell's failure to obtain a passing grade on the examination, the board conducted a hearing and determined that Blackwell's conduct had been an aberration, that he had demonstrated the required character and fitness for admission to the bar, and approved his application to retake the examination in 2005.
At the conclusion of the 2005 examination, Blackwell reported himself to a proctor for continuing to write briefly after time had been called in one section of the exam. The case was again referred to the board. Blackwell agreed to undergo a psychological evaluation by a qualified professional and submit the evaluator's findings to the board. The board's current report cites the findings of that evaluation, conducted in 2006 by Dr. Thomas Hustak of Lima, in which Dr. Hustak indicated that Blackwell exhibited a combination of psychological symptoms including anxiety, chronic stress, cognitive difficulties and compulsive personality traits that rendered him currently unable to meet eligibility requirements for admission to the bar.
Blackwell has filed objections to Dr. Hustak's conclusion that he is currently psychologically unfit to be admitted to practice law. He also challenges findings by the board that he failed to properly indicate in a 2006 bar examination application that a civil lawsuit and two misdemeanor charges had been filed against him between October 2005 and May 2006, all of which were subsequently dismissed.
Contacts
Kathleen M. Trafford, 614.227.1915, for the
Board of Commissioners on Character and Fitness.
Rahshann Blackwell, pro se, 303.393.6009.
Disciplinary Counsel v. William Mark Fumich, Jr., Case no. 2007-0733
Cuyahoga County
The Board of Commissioners on Grievances & Discipline has recommended that the license of Cleveland attorney William Mark Fumich be suspended for 12 months, with the entire term of the suspension stayed, for violating state attorney discipline rules.
The Office of Disciplinary Counsel, which prosecuted the charges against Fumich, has filed objections asking the Supreme Court to overrule the board and impose an actual suspension of Fumich's license.
According to stipulations agreed to by the parties, while probating the estate of a deceased relative, Janko Klepak, Fumich agreed to also pursue a medical malpractice action on behalf of Klepak's estate based on alleged negligence in the amputation of his toe shortly before his death. When he was unable to secure an expert witness to support the negligence claim within the deadline set by the trial court, Fumich took no action in response to a motion for summary judgment filed by the defendants, and the court entered judgment dismissing the estate's claim. Although he saw and spoke with Klepak's daughters, who were the beneficiaries of his estate, several times during the following two years, Fumich did not inform them about the judgment. When they later inquired about the status of the malpractice case, Fumich pretended that their claim was still pending, and advised the daughters that he could obtain a settlement of $16,000. When they agreed to accept that amount, Fumich wrote them a check from his own office trust account and had the daughters sign a release allowing him to destroy case records without disclosing that the case had been dismissed two years earlier and the funds were really his own.
In a second case, Fumich admitted refusing to return records regarding the legal affairs of a long-time client to the client's daughter despite the fact that the daughter was also his client and had power of attorney for her father's affairs – and thus a right to return of the requested documents. The board concluded that Fumich had violated the attorney discipline rules that prohibit neglect of an entrusted legal matter, depositing funds belonging to a lawyer or law firm in a client trust account, conduct involving fraud, deceit, dishonesty or misrepresentation, conduct that adversely reflects on a lawyer's fitness to practice, and failure to promptly deliver upon request property that a client is entitled to receive.
In recommending that Fumich receive a 12-month suspension will all 12 months stayed, the board cited the mitigating factors that he had no prior infractions, admitted his misconduct and cooperated fully with disciplinary proceedings, caused no economic loss or other harm to his clients, and did not act from a selfish motive.
In its objections to the board's findings and recommended sanction, disciplinary counsel argues that in prior cases the Court has held that making false statements and misrepresentations to clients calls for an attorney's actual suspension from practice. They also assert that Fumich's actions in obtaining after-the-fact releases from his clients to “settle” a long-defunct malpractice action and to dispose of their case file were dishonest and self-serving actions that allowed him to conceal and eliminate evidence of misconduct. They urge the Court to reject the board's recommendation and instead impose a 12-month suspension with only the last six months stayed.
Contacts
Philip A. King, 614.461.0256, for the
Office of Disciplinary Counsel.
C. David Paragas, 614.223.9300, for William Mark Fumich Jr.
Dayton Bar Association v. Richard H. Rogers, Case no. 2007-0746
Montgomery County
Dayton attorney Richard H. Rogers asks the Supreme Court to reject a recommendation by the Board of Commissioners on Grievance & Discipline that his license be suspended for two years for violating multiple provisions of the Code of Professional Responsibility.
The board found that Rogers submitted false and inflated bills to clients Roy and Dagmire Smith, who retained him to recover the costs of repairing structural damage to their home resulting from the use of defective synthetic stucco in its construction. After the Smiths paid Rogers a $2,500 retainer and agreed to pay him $175 an hour for additional services, the board found that Rogers improperly billed them for 91.5 hours of his own time allegedly spend on discovery-related work in their case. The board found that Rogers had retained (and added separate charges to his client bills for) an experienced construction law attorney, Ronald Kozar, who had done virtually all of the work to prepare the plaintiffs' discovery requests and respond to the defendant's reciprocal discovery requests, without any edits or changes being made to those documents by Rogers.
Based on this and evidence of other fraudulent or inflated billing practices in his dealings with the Smiths, the board found that Rogers violated the state attorney discipline rules that prohibit illegal conduct involving moral turpitude, conduct involving fraud, deceit, dishonesty or misrepresentation, and charging an illegal or clearly excessive fee. In light of two prior disciplinary infractions by Rogers that resulted in a public reprimand and a stayed suspension, the board recommended a two-year license suspension as the appropriate sanction for his current violations.
Rogers has filed objections to the board's findings and recommendation, contending that he did not violate disciplinary rules in his billing of the Smiths and asking the Court, if it should find violations, to impose a less severe sanction than the board has recommended. He asserts that the board did not give proper attention or consideration to the post-hearing videotape testimony of an expert witness who reviewed Rogers' files and concluded that Rogers' use of “block billing” practices in his dealings with the Smiths was consistent with industry practice in large construction-related lawsuits. Rogers also contends that the board erred in finding that Kozar actually performed most of the work on the case, noting that he was retained by the Smiths 14 months before Kozar started working on the case, and asserting that he devoted an extensive amount of his own time to the case during that period.
Contacts
Jeffrey D. Slyman, 937.454.5544, for the
Dayton Bar Association.
James T. Ambrose, 937.229.9999, for Richard H. Rogers.
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.