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In Re: Justin Andrew, Case no. 2007-0728
1st District Court of Appeals (Hamilton County)
State of Ohio v. Michael Davis, Case no. 2007-1039
4th District Court of Appeals (Highland County)
State of Ohio v. William J. Silsby, Case no. 2007-1254
11th District Court of Appeals (Geauga County)
State of Ohio v. Scott Masters, Case no. 2007-1759
3rd District Court of Appeals (Crawford County)
In Re: Justin Andrew, Case no. 2007-0728
1st District Court of Appeals (Hamilton County)
ISSUE: When a juvenile court conducts a parole violation hearing involving a defendant who was adjudicated a delinquent child while under 18, but who has since passed his 18th birthday, does the defendant remain a legal “child” for whom the court must appoint an attorney if he is not represented at the hearing by a parent or guardian, or is the defendant legally an adult competent to waive his right to counsel?
BACKGROUND: In November 2002, Justin Andrew was adjudicated to be a delinquent child at the age of 15 and placed in the custody of the Hamilton County Juvenile Court. In March 2005, while he was 17, Andrew violated the terms of his parole by leaving the home to which he had been assigned. He turned 18 on June 11, 2005. Eight months later, in February, 2006, the juvenile court conducted a hearing on the parole violation charge. Andrew appeared at the hearing without a parent or an attorney. After several minutes of dialogue with the judge regarding whether he wanted the court to appoint an attorney to advise him, Andrew stated that he would proceed without an attorney. The court proceeded to find him guilty, revoked his parole and committed him to the custody of the Ohio Youth Commission.
Andrew appealed his adjudication and sentence, arguing that the juvenile court violated his right to counsel under R.C. 2151.352, which requires that a juvenile court must appoint an attorney to represent any “child” who is a party in a juvenile proceeding and who is not represented at that proceeding by a parent, guardian or custodian. The 1st District Court of Appeals affirmed the action of the juvenile court, holding that because Andrew had turned 18 prior to the date of his hearing, he was not legally a “child” on that date and therefore was not covered by R.C. 2151.352. Andrew sought Supreme Court review of the court of appeals’ ruling, and the Court has agreed to hear arguments in the case.
Attorneys for Andrew point to a provision of state law, R.C. 2152.02(C)(6), that extends the jurisdiction of a juvenile court over persons who are adjudicated delinquent prior to reaching the age of 18 until they reach the age of 21. They specifically cite language in that statute stating that “a person who is so adjudicated a delinquent child ... shall be deemed a ‘child’ until the person attains 21 years of age.” Because it is undisputed that Andrew was adjudicated a delinquent before his 18th birthday, and that his parole violation hearing was a proceeding before the juvenile court prior to his 21st birthday, they argue, the court of appeals erred in holding that he was not a “child” for whom the juvenile court was required by law to appoint an attorney before accepting a waiver of his right to counsel.
Arguing on behalf of the state, the Hamilton County prosecutor’s office contends that, while R.C. 2152.02(C)(6) gives a juvenile court continuing jurisdiction over juvenile offenders after they reach the age of 18, it does not invalidate the legal distinction established elsewhere in state law between adults who are presumed competent to assert or waive their procedural rights, and children who are presumed incompetent to waive their legal rights without consulting with a parent or guardian or an attorney because are under the age of legal majority, which is 18. They argue that Andrew’s assertion of a per se (automatic) requirement that every 18, 19 or 20-year-old defendant in a juvenile court proceeding must consult with a parent or attorney before waiving his right to counsel ignores the fact that, if the same defendant faced criminal charges in an adult court on the same day, he would routinely be presumed competent to waive any and all of his procedural rights – including the right to counsel.
Contacts
Elizabeth R. Miller, 614.466.5394, for Justin Andrew.
Philip R. Cummings, 513.946.3012, the state of Ohio and Hamilton County prosecutor’s office.
State of Ohio v. Michael Davis, Case no. 2007-1039
4th District Court of Appeals (Highland County)
ISSUES:
BACKGROUND: Michael Davis and 10 other persons were indicted by a Highland County grand jury in April 2005 on multiple criminal counts for allegedly trafficking in the prescription painkilling drug OxyContin. Among the charges included in Davis’ indictment was a fourth-degree felony count of aggravated drug trafficking, alleging that he sold less than the statutory “bulk amount” of the drug.
The prosecutor later entered a motion in the trial court to amend the aggravated trafficking charge to a second-degree felony count, alleging that the amount of OxyContin that Davis sold or offered to sell on that occasion was between five times and 50 times the statutory bulk amount. Davis’ attorney did not object to the amendment, and the court granted the motion to amend the indictment. Davis was subsequently convicted of second-degree felony drug trafficking, and was sentenced to a mandatory two-year term of imprisonment on that charge.
Davis appealed his conviction and sentence on the amended trafficking charge, asserting that the trial court violated his constitutional right to due process of law by improperly allowing the state to change the fourth-degree felony charge against him that had been reviewed and affirmed by a grand jury in its indictment to a more severe second-degree felony that was never reviewed by a grand jury. The 4th District Court of Appeals reversed Davis’ conviction and remanded the case for a new trial, holding that the trial court’s acceptance of the amended indictment was contrary to Ohio Criminal Rule 7(D), which bars any amendment that changes “the name or identity” of a crime for which a defendant was indicted by a grand jury. The 4th District also held that, because the trial court’s error violated Davis’ substantial constitutional right to grand jury review, it qualified as “plain error” that must be reversed without requiring Davis to demonstrate that the error had changed the outcome of his trial.
The state, represented by the Highland County prosecutor’s office, now asks the Supreme Court to overrule the 4th District and reinstate Davis’ conviction.
They cite prior Supreme Court decisions in which various types of amendments to criminal indictments have been held permissible under Crim.R.7(D) so long as the change did not charge the defendant with a different crime than the one for which he was indicted by a grand jury. In this case, they point out, Davis was charged from the beginning with the crime of aggravated trafficking in OxyContin, and his attorneys were on notice that they must prepare a defense against that charge. Therefore, they assert, Davis’ constitutional right to present an effective defense against the trafficking charge was in no way infringed by the amendment to his indictment. They also contend that, even if the Court finds that the trial judge erred in allowing the state to amend the original indictment rather than requiring a new one, Davis waived that error by failing to object to it at trial and the 4th District should not have voided his conviction without first requiring him to show that he would have won acquittal but for the improper amendment to his indictment.
Attorneys for Davis respond by citing several of the same court decisions mentioned by the state, but arguing that none of those decisions addressed cases in which the challenged amendment to an indictment increased both the severity of the offense and the penalties to which the defendant would be subject if he was convicted. In this case, they note, the 4th degree trafficking offense for which Davis was indicted carried no requirement of a prison sentence and would have allowed the trial court to sentence him only to a term of community control, whereas conviction on the 2nd degree felony trafficking count for which he was tried imposed a mandatory minimum prison term of two years and a substantial fine. In light of that dramatic difference in outcomes, and the different facts that a grand jury would have to find to establish the amended charge, Davis urges the court to affirm the 4th District’s finding that the amended indictment did violate his fundamental due process rights by “changing the identity” of the charge for which he had been indicted by a grand jury.
Contacts
William L. Archer, 937.393.1851, for
the State of Ohio and Highland County prosecutor’s office.
Michael P. Kelly, 937.444.2563, for Michael Davis.
State of Ohio v. William J. Silsby, Case no. 2007-1254
11th District Court of Appeals (Geauga County)
ISSUE: If a criminal offender’s sentence was imposed under Ohio’s pre-2006 felony sentencing statute and a direct appeal of his sentence was not pending on the date the Supreme Court of Ohio issued its ruling in State v. Foster, but the offender later was granted leave to file a delayed appeal challenging the legality of his sentence, is that offender entitled to be resentenced under the Foster decision?
BACKGROUND: In Blakely v. Washington, decided in June 2004, the U.S. Supreme Court held that it was unconstitutional for a criminal defendant’s sentence to be enhanced beyond the minimum penalties applicable to his crime unless factual findings justifying a non-minimum sentence were made by a jury, rather than by a judge. In State v. Foster, decided in February 2006, the Supreme Court of Ohio analyzed Ohio's felony sentencing scheme in light of Blakely and ruled that the portion of the Ohio statute empowering judges to make factual findings to justify enhanced sentences was unconstitutional. The Court severed (voided) the sections of the sentencing statute requiring judicial findings to support sentence enhancements, and left the remainder of the statute in place. The Court also ordered that all Ohio cases that were currently pending “on direct appeal” as of the date Foster was decided in which a criminal defendant was challenging the legality of his sentence must be remanded to the trial court for resentencing under the post-Foster sentencing scheme.
Under Ohio law, every person convicted of a felony has the right to file a “direct appeal” of his conviction and/or sentence by entering a notice of appeal within 30 days after the trial court’s judgment is journalized. If an offender does not file the required notice within the 30-day time limit, however, he waives (forfeits) his “appeal of right” and thereafter may only obtain a review of his case by a court of appeals by filing a motion in that court for “leave to file a delayed appeal,” in which he must set forth good reasons why he failed to appeal within the time limit and should be granted another opportunity to do so. Courts of appeals have discretion to grant or deny motions for a delayed appeal. There is no statutory time limit for an offender to seek or a court of appeals to grant a motion for leave to file a delayed appeal.
In this case, the Supreme Court is asked to decide whether the portion of its Foster ruling ordering remand and resentencing of all offenders whose sentences were “on direct appeal” on the date of that decision must also be applied to an offender sentenced under the pre-2006 statute whose sentence was not on “direct appeal” in February 2006, but who was granted leave by a court of appeals after the date of the Foster decision to file a “delayed appeal” of his sentence.
William Silsby of Geauga County was convicted of obstructing official business in October 2005 and was sentenced under the pre-Foster sentencing statute to serve a 12-month prison term for that offense consecutively to a term he was already serving for an unrelated conviction. The judge pronouncing sentence made factual findings supporting his imposition of the new prison term consecutively rather than concurrently with Silsby’s prior sentence. Silsby did not file a direct appeal within the 30-day time limit for doing so. In August 2006, six months after the Foster decision was announced, Silsby filed a motion in the 11th District Court of Appeals seeking leave to file a delayed appeal of his sentence. The court granted his motion and heard his appeal.
In May 2007, the 11th District denied Silsby’s claim that he was entitled to be resentenced under Foster, holding that since he was sentenced while the pre-Foster sentencing scheme was still in force and his case was not “on direct appeal” at the time Foster was decided, the fact that he later was allowed to file a delayed appeal did not mean that he was entitled to remand and resentencing under the criteria set forth in Foster. The court of appeals later certified that its holding regarding the effect of a delayed appeal was in conflict with rulings by two other appellate districts, and the Supreme Court agreed to hear arguments to resolve the conflict among districts.
Attorneys for Silsby cite prior court decisions holding that, when a criminal defendant has obtained leave to file a delayed appeal, his claim is on the same legal footing as that of an offender pursuing a direct appeal. Applying that principle to Silsby’s case, they urge the Court to follow the lead of two court of appeals districts that have held that defendants granted leave to pursue delayed appeals of sentences ruled unconstitutional by Foster must be afforded the same remedy afforded to defendants who pursued direct appeals of such sentences – which is the remand of their cases to the trial court for resentencing under the post-Foster statute.
Attorneys for the state respond that the cases cited by Silsby equating a delayed appeal to a direct appeal are irrelevant to the resolution of this case, because the 11th District correctly found that Silsby did not have either a direct appeal or a delayed appeal pending at the time Foster was decided in February 2006. They point out that the Supreme Court has broad discretion to limit the retroactive application of its decisions, and that the Court arguably could have allowed its Foster ruling to be applied to sentences imposed as far back as the mid 1990s, but made a clear and conscious choice to order resentencing only in cases that were currently pending “on direct appeal” on the date Foster was decided. Because there is no time limit for the filing of delayed appeals, they argue, a decision adopting Silsby’s position would encourage thousands of current prisoners whose convictions and sentences had been final for years prior to Foster to file new motions for delayed appeals which, if granted, would require already overcrowded trial courts to conduct thousands of additional sentencing hearings with little likelihood of significant changes in the defendants’ sentences.Contacts
Craig A. Swenson, 440.279.2105, for the State of Ohio and Geauga County prosecutor’s office.
Derek Cek, 330.869.6000, for William Silsby.
State of Ohio v. Scott Masters, Case no. 2007-1759
3rd District Court of Appeals (Crawford County)
ISSUE: When a criminal defendant joins with the state in a motion for a continuance of trial to allow additional time to resolve the case by agreement, and waives the running of his speedy-trial time in connection with that continuance, does the defendant’s waiver of speedy trial time remain in effect indefinitely until he formally revokes it in writing and expressly demands a trial; or does a subsequent court order setting a new trial date and/or the defendant’s filing of a motion seeking dismissal of the case on speedy trial grounds terminate the waiver and re-start the running of speedy-trial time?
BACKGROUND: Under R.C. 2945.71 to 2945.73, Ohio trial courts are required to dismiss a felony charge pending against a defendant if the state does not bring the defendant to trial on that charge within 270 days after his arrest upon indictment. The “speedy trial” statute sets forth certain circumstances under which the running of the 270-day time limit is tolled (stops running). One of these tolling circumstances is a continuance or other delay in the proceedings that is initiated by the defendant.
In this case, Scott Masters of Crawford County went to the home of a long-time friend, Larry Whittington, after midnight on April 20, 2005, and struck Whittington in the face at least three times with his fists after Masters allegedly was told by his wife that she had an affair with Whittington while Masters was on military duty in Iraq and that Whittington might be the father of the Masters’ 19-year old son. On May 13, 2005, Masters was arraigned on a criminal indictment for felonious assault. A trial date of Jan. 12, 2006, was set for the case. On Jan. 5, 2006, Masters and the state jointly moved for a continuance of the trial date in order to pursue a resolution of the case without a trial. The motion for continuance included a statement by Masters that he waived the running of speedy trial time “herein.”
On Feb. 15, 2006, the trial court entered an order setting a new trial date of May 4 in which the judge specified that if Masters desired a continuance of that date, he would have to enter a new waiver of speedy trial time. On May 4, 2006, the trial court refused to accept a tentative plea bargain that had been negotiated by Masters and the prosecutor’s office, and the court on its own initiative rescheduled Masters’ case for trial on Sept. 7, 2006. The order setting the new trial date again advised Masters that if he wished to request a continuance of that date, he would be required to initiate a new waiver of speedy trial time.
Before the September trial date arrived, on June 27, 2006, Masters filed a motion asking the trial court to dismiss the charge against him on speedy trial grounds, claiming that more than 270 “countable” days had expired since his May 13, 2005, arraignment. The court denied the motion to dismiss, holding that because Masters Jan. 5 motion for continuance and waiver of speedy trial time did not specify a termination date, and Masters had never filed a formal revocation of his time waiver, the waiver was of indefinite duration and his speedy trial time had been tolled since Jan. 5, 2006. Masters was subsequently found guilty of felonious assault and sentenced to two years in prison.
Masters appealed the trial court’s denial of his motion for dismissal on speedy trial grounds. The 3rd District Court of Appeals reversed the trial court and vacated Masters’ conviction and sentence, holding that the Jan. 5 continuance and Masters’ waiver of time arising from that continuance was limited to the period during which he and the state attempted to negotiate a resolution of the case. Since that continuance was terminated by the trial court’s May 4 order rejecting the plea bargain that the parties had negotiated and setting a new trial date, the 3rd District ruled that Masters’ speedy trial time had re-started on May 4, 2006, and that his June 27 motion for dismissal therefore should have been granted because, by June 27, 291 countable days had expired since his arraignment on May 13, 2005.
The state, represented by the Crawford County prosecutor’s office, now asks the Supreme Court to overrule the 3rd District and reinstate Masters’ conviction. They cite prior court decisions including the Supreme Court’s 1987 ruling in State v. O’Brien that when a defendant identifies no termination date for a waiver of speedy-trial time, the running of time is tolled for an unlimited period until the defendant files a written revocation of the waiver or a written demand for trial.
Attorneys for Masters argue that his waiver of speedy trial time was clearly entered in the context of a limited continuance for the specified purpose of negotiating a resolution to the case without a trial. They assert that the trial court acknowledged that Masters’ Jan. 5 waiver was not “of unlimited duration” when it included in two later orders setting new trial dates the requirement that, if Masters wished to request continuance of those dates, he would be required to submit a new waiver of speedy-trial time – a requirement that would obviously be unnecessary if the court believed that his Jan. 5 waiver was indefinite and ongoing. Even if the Court finds that the trial court’s May 4 rejection of the plea bargain did not re-start Masters’ speedy-trial “clock,” they argue, the state’s failure to try him until September 2006 would still require that the charge against him be dismissed on speedy-trial grounds even if his Jan. 5 waiver remained in effect until the filing of his June 27 motion for dismissal on speedy trial grounds, which they say unquestionably notified the state that he had revoked his waiver.
Contacts
Clifford J. Murphy, 419.562.9782, for the State of Ohio and Crawford County prosecutor’s office.
Patrick T. Murphy, 419.562.4989, for Scott Masters.
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.