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In the Matter of: A.J.S., Case no. 2007-1451
10th District Court of Appeals (Franklin County)
Disciplinary Counsel v. Henry R. Freeman, Case no. 2008-0395
Cincinnati Bar Association v. Donald M. Powers, Jr., Case no. 2008-0396
Beneficial Ohio, Inc. v. Dale S. Ellis et al.; Robert W. Ellis et al., Case no. 2007-1455
11th District Court of Appeals (Trumbull County)
State of Ohio v. Laura Ann Kalish, Case no. 2007-1703
11th District Court of Appeals (Lake County)
In the Matter of: A.J.S., Case no. 2007-1451
10th District Court of Appeals (Franklin County)
ISSUES: In a case involving a 16 or 17-year-old offender who is charged with murder or attempted murder, when a juvenile court conducts a mandatory bindover hearing and determines that there is not probable cause to support conviction of the defendant for the charged offense in adult court:
BACKGROUND: Under R.C. 2151.12(A), when a 16 or 17-year-old juvenile is charged with aggravated murder or murder or attempted aggravated murder or attempted murder, the local juvenile court is required to conduct a hearing at which the defendant must be bound over to common pleas court for trial as an adult if the juvenile judge finds that evidence presented is sufficient to establish probable cause that the defendant committed the charged offense.
In this case, a 16-year-old offender identified as A.J.S. was arrested and initially charged with aggravated assault with a firearm for his role in a March 2006 shooting incident outside a Columbus-area video shop. Upon further investigation of the incident, the Franklin County prosecutor’s office also charged A.J.S. with six counts of attempted murder. Following a mandatory bindover hearing on the attempted murder charges as required by R.C. 2151.12(A), the Franklin County Juvenile Court ruled that the evidence did not establish probable cause of attempted murder (and therefore did not trigger mandatory bindover of the defendant to adult court), but did establish probable cause to support the aggravated assault charge. Based on those findings, the juvenile court denied the state’s bindover request and retained jurisdiction over the case for adjudication as a juvenile matter.
The state appealed the trial court’s probable cause ruling and denial of bindover to the 10th District Court of Appeals. The 10th District accepted the appeal and subsequently reversed the juvenile court’s ruling, holding that the state had presented sufficient evidence to establish probable cause of attempted murder, and that the defendant was therefore subject to mandatory bindover for trial as an adult.
Attorneys for A.J.S. sought and were granted Supreme Court review of the 10th District’s ruling. They argue that:
1) Because the juvenile court in this case did not dismiss the attempted murder charges against the defendant, but merely held that the hearing evidence presented by the state in support of those charges was insufficient to support a bindover to adult court, the juvenile court’s ruling was not a “final, appealable order” and the 10th District therefore acted without jurisdiction in accepting and ruling on the state’s appeal.
2) If the court of appeals did have jurisdiction to consider the state’s appeal, it applied the wrong standard of review by conducting its own independent evaluation of the hearing evidence solely from a written record when it should have applied an “abuse of discretion” standard under which a reviewing court must give great deference to the findings of the trial court judge who actually examined physical evidence and watched and listened to the witnesses as they testified at the probable cause hearing. They point to prior court decisions holding that a juvenile court’s rulings in discretionary bindover cases must be reviewed under an abuse of discretion standard, and argue that the same standard should apply in cases where the legislature has established a lower burden of proof to support bindover, but still plainly gives juvenile judges discretion to retain jurisdiction over a case if they find that hearing evidence did not establish probable cause that a juvenile defendant committed murder or attempted murder.
The state, represented by the Franklin County prosecutor’s office, responds that a juvenile court’s denial of mandatory bindover is this type of case is, in effect, a “final” order because double jeopardy would prevent the state from ever pursuing the attempted murder counts against a defendant in adult court if prosecutors must wait to appeal until after the offender had already been adjudicated for the same crimes as a juvenile. Without the right to an immediate appeal of a juvenile court’s incorrect probable cause determination, they argue, the state is left without any legal avenue to challenge and reverse an erroneous denial of bindover.
With regard to the proper appellate standard of review, the state argues that the function of a juvenile court’s probable cause ruling in a mandatory bindover case is to establish whether that court or the local common pleas court has proper jurisdiction over the defendant’s case. They cite prior court decisions holding that jurisdiction is a legal rather than a factual issue, and is therefore subject to review under a “de novo” standard in which a court of appeals must perform its own independent review and balancing of the evidence.
Contacts
Elizabeth R. Miller, 614.466.5394, for A.J.S.
Katherine J. Press, 614.462.4440, for the state and Franklin County prosecutor's office.
Disciplinary Counsel v. Henry R. Freeman, Case no. 2008-0395
The Board of Commissioners on Grievances & Discipline has recommended that the license of Tallmadge attorney Henry R. Freeman be suspended for one year, with the entire term of suspension stayed on conditions, for improper use of his law office trust account and failure to cooperate with disciplinary authorities during the investigation of his misconduct.
The Office of Disciplinary Counsel, which prosecuted the complaint against Freeman before the board, has filed objections to the board’s recommended sanction. Attorneys for the disciplinary office point to testimony by a psychiatrist treating Freeman for psychological conditions that contributed to his misconduct indicating that Freeman’s recovery was not complete as of the date of his disciplinary hearing. They urge the Court to impose a one-year suspension with only the final six months stayed. Following six months of actual suspension from practice, they urge the Court to condition Freeman’s reinstatement not only on subsequent monitoring of his practice by another attorney, as recommended by the board,, but also on certification by a mental health professional that he has been successfully treated and is fully able to return to the competent and ethical practice of law.
Freeman has waived oral argument and will not appear at Wednesday’s session. In his written pleadings, he urges the Court to impose a fully stayed suspension as recommended by the disciplinary board. He points out that the psychiatric testimony regarding his recovery cited by Disciplinary Counsel was given several months ago, and asserts that he has made additional progress and has fully complied with a treatment contract he voluntarily entered into with the Ohio Lawyers’ Assistance Program (OLAP). In light of the external monitoring of his practice to which he has also agreed, Freeman urges the Court to adopt the board’s finding that a fully stayed one-year suspension is an appropriate sanction.
Contacts
Robert E. Berger, 614.461.0256, for the Office of Disciplinary Counsel.
Henry R. Freeman, pro se, 330.630.0170.
Cincinnati Bar Association v. Donald M. Powers, Jr., Case no. 2008-0396
The Board of Commissioners on Grievances & Discipline has recommended that the license of Cincinnati attorney Donald M. Powers be indefinitely suspended for multiple violations of state attorney discipline rules arising from his involvement in a real estate “flipping” scheme that resulted in his conviction on two felony charges. The Cincinnati Bar Association (CBA), which prosecuted Powers in proceedings before the disciplinary board, has filed objections to the board’s recommended sanction. It urges the Court to hold that the number and severity of Powers’ violations require his permanent disbarment.
Powers and his wife owned and operated the Premier Land Title Agency in Glendale from 2000 through 2003. During that time, Powers and others participated in the purchase of low-valued properties which were then grossly over-valued by appraisers receiving illegal kickback payments. The properties were subsequently used as security for inflated mortgage loans to unqualified “buyers” for whom the conspirators provided fictitious W-2 forms, bank account statements and employment verifications. Within a few months after the property was re-sold at a large profit, the buyers defaulted on the mortgage obligations, leaving lenders to foreclose on properties worth much less than the outstanding loan balance.
In February 2005 Powers entered guilty pleas to making a false statement in a loan application and filing a false federal income tax return, and subsequently served 22 months in federal prison. His law license has been under an interim suspension based on his felony convictions since January 2006.In its objections to the board’s recommendation of an indefinite license suspension, attorneys for the CBA assert that the “flipping” scheme in which Powers and his title agency were key players involved 310 different real estate transactions and losses to lenders and others of nearly $3.5 million. While the board’s report referred to testimony by Powers that he was responsible for but largely unaware of fraudulent acts by persons he employed at the title agency, the CBA argues that such testimony contradicts admissions by Powers in his plea agreement with federal prosecutors that he knew about inflated appraisals and falsified buyer financial information included in loan applications he signed off on. They also note that Powers was personally involved as a buyer and re-seller of five different properties involved in the flipping scheme, including one property for which he paid $6,000 that was re-sold six months later for $110,000.
The bar association cites numerous cases in which an attorney’s involvement in criminal conduct involving fraud and felony convictions require disbarment. They also point to court decisions holding that admissions made by a defendant in the course of negotiating a criminal plea agreement must be presumed accurate and may not later be disavowed or relitigated when it suits the offender’s purposes to present a different version of events in a subsequent civil or administrative proceeding arising from the same conduct.
Attorneys for Powers urge the Court to accept the findings and recommendation of the disciplinary board that his violations merit an indefinite license suspension, but that his sincere contrition, cooperation with both the police and disciplinary authorities and the circumstances surrounding his misconduct are grounds to forego disbarment and preserve the possibility that he could someday be found deserving to return to practice.
Contacts
Franklin A. Klaine Jr., 513.621.2120, for the Cincinnati Bar Association.
Edward G. Marks, 513.421.4400, for Donald M. Powers Jr.
Beneficial Ohio, Inc. v. Dale S. Ellis et al.; Robert W. Ellis et al., Case no. 2007-1455
11th District Court of Appeals (Trumbull County)
ISSUE: Under the doctrine of lis pendens, if a third party acquires an interest in property at a time when there is litigation pending between other parties disputing the legal ownership of that property, the third party’s claimed interest in the disputed property is subject to the outcome of the pending litigation. In this case, the Supreme Court is asked to interpret Ohio’s lis pendens statute and case law to determine whether a lawsuit disputing ownership of property was “pending” as of the date the plaintiff served a summons or complaint upon any of the named defendants, or if the suit only became “pending” for purposes of lis pendens when the plaintiff served the specific defendant who conveyed a purported interest in the property to the third party.
BACKGROUND: In December 1998, Edna Jarman executed a quit-claim deed in which she intended to transfer ownership of one of six undeveloped lots she owned to her son, Dale Ellis. However, the document that Ellis presented to Jarman and that she signed actually transferred ownership of all six lots to Ellis. Ellis subsequently obtained two mortgages from Bank One totaling more that $70,000, using the six lots as security for those loans.
In May 2001, Jarman filed suit against Ellis and Bank One, claiming that Ellis had obtained title to five of the six lots by means of fraud, and seeking a court order rescinding the quit-claim deed (except the portion applicable to the one lot she had intended to transfer to Ellis), and restoring legal ownership of the other five lots to her. On June 4, 2001, a copy of Jarman’s complaint was served on Bank One. On July 24, 2001, Ellis obtained two new mortgages totaling $74,700 from Beneficial Ohio, again using all six lots as security, and applied $64,000 of the proceeds of the Beneficial loans to pay off the Bank One mortgages. The next day, July 25, 2001, Ellis was served with a copy of Jarman’s lawsuit.
In November 2001, Jarman obtained a default judgment against Ellis rescinding the earlier transfer of title to the five disputed lots as a fraudulent conveyance and restoring legal ownership of those lots to Jarman. In 2002, as part of a Chapter 7 bankruptcy, Ellis obtained a discharge of his debts including the Beneficial loans and formally defaulted on the mortgage agreements..
Jarman died in 2003, and title to the five lots she had reclaimed from Ellis became part of her estate. Subsequent to her death, Beneficial filed a foreclosure action on Ellis’ defaulted mortgages, seeking to take possession of all six lots he had pledged as security for those loans. Jarman’s estate opposed Beneficial’s claim based on lis pendens, asserting that because Jarman’s lawsuit to reclaim ownership of five lots from her son was pending at the time Beneficial entered into its mortgage agreement with Ellis, and that lawsuit resulted in a judgment that Ellis had no valid ownership claim to the five disputed lots, Beneficial had no enforceable claim against those five lots from Jarman or her estate.
The Trumbull County Court of Common Pleas granted summary judgment in favor of Beneficial, ruling that lis pendens did not bar the lender from foreclosing on the five disputed lots because Ellis held title to those properties on July 24, 2001 when he entered into the Beneficial mortgage agreements, and Jarman’s suit disputing his ownership was not yet “pending” on that date. Jarman’s estate appealed, and the 11th District Court of Appeals reversed the trial court’s ruling. The appellate panel held 2-1 that Jarman’s lawsuit became “pending” on June 4, 2001, the date on which it was served on Bank One.
Attorneys for Beneficial now ask the Supreme Court to reverse the 11th District and reinstate the trial court’s summary judgment in their favor. They argue that before lis pendens is applicable to limit a third party’s claim of interest in property, the owner of that property must have been served with notice of a lawsuit contesting the owner’s title. In this case, they point out, Ellis was the titled owner of all six lots on July 24, 2001, when he pledged them as security for Beneficial’s loans, and Jarman’s suit was not “pending” against him until he was served with a copy of the complaint on July 25.
Attorneys for the Jarman estate argue that Ohio’s lis pendens statute, R.C. 2703.26, does not delay the “pendency” of a lawsuit contesting ownership of property until all defendants or any particular defendant has been served, but merely states that “When summons has been served or publication made, the action is pending as to charge third persons with notice of its pendency.” In this case, they say, Jarman’s fraudulent conveyance action against Ellis was commenced when it was filed in the common pleas court on May 29, 2001, and became pending for purposes of lis pendens on June 4, 2001, when summons was served on Bank One, one of the parties claiming adverse ownership.They note that the initiation of Jarman’s suit challenging Ellis’ ownership of the five disputed lots was a matter of public record for five weeks prior to Beneficial’s acceptance of those properties as security for its loans to Ellis, and argue that Beneficial’s financial loss on those loans was a result of the lender’s own failure to discover or take appropriate action based on that pending litigation.
Contacts
Amelia A. Bower, 614.629.3000, for Beneficial Ohio, Inc.
Randil J. Rudloff, 330.393.1584, for the estate of Edna Jarman et al.
State of Ohio v. Laura Ann Kalish, Case no. 2007-1703
11th District Court of Appeals (Lake County)
ISSUE: Did the changes in Ohio’s criminal sentencing statute mandated by the Supreme Court of Ohio’s 2006 decision in State v. Foster effectively alter the standard of review that courts of appeals must apply in reviewing a trial court’s sentencing order from a “de novo” review requiring clear and convincing evidence to an “abuse of discretion” standard?
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 increased 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 portions of the Ohio sentencing statute authorizing judges to make factual findings to justify enhanced sentences were unconstitutional. The Court severed (removed) the offending provisions and left the remainder of the statute in place. Under the statute as amended by Foster, Ohio trial court judges now have discretion to impose any sentence within the statutory range set by the legislature for a defendant’s offense, without the former requirement of specific factual findings to justify the imposition of a non-minimum sentence or consecutive sentences for multiple offenses.
In this case, Laura Kalish caused a fatal accident when her car collided with another vehicle while driving the wrong way on I-90 near Cleveland. Kalish accepted a plea bargain in which she entered a guilty plea to aggravated vehicular homicide and driving while under a previous DUI suspension, offenses for which the statutory sentencing range was from two to eight years’ imprisonment. The trial court sentenced Kalish to five years in prison, suspended her driver license for 15 years and ordered her to reimburse the crash victim’s family for funeral expenses of $11,250.
Kalish appealed her sentence to the 11th District Court of Appeals, arguing that it was inconsistent with and disproportionate to sentences imposed on other Ohio defendants found guilty of similar offenses. The 11th District affirmed Kalish’s sentence, explaining in its opinion that, in the aftermath of the Foster decision, it had applied an “abuse of discretion” standard in reviewing the sentence imposed by the trial court. Under an abuse of discretion standard, a reviewing court may overturn a trial court’s ruling only if it finds that the ruling was not merely incorrect, but was clearly “unreasonable, arbitrary or unconscionable.”
Attorneys for Kalish now ask the Supreme Court to overrule the 11th District on the basis that it erred by reviewing her sentence under an abuse of discretion standard. They point to specific language in the state law governing appellate review of criminal sentences, R.C. 2953.08(G)(2), stating that “the appellate court’s standard for review is not whether the sentencing court abused its discretion.” They argue that, while Foster eliminated the need for appellate review of judicial findings supporting an enhanced sentence, it did not eliminate or change the “de novo” nature or “clear and convincing” standard of proof that courts of appeals are to apply in reviewing trial court sentencing orders. In this case, they assert, the court of appeals’ mistaken application of an abuse of discretion standard resulted in a virtual “rubber stamp” of Kalish’s sentence without proper analysis of the evidence she presented showing that her sentence as a first offender was more severe than those imposed on other defendants who had multiple prior DUI convictions, accidents and citations for driving under suspension.
The state, represented by the Lake County prosecutor’s office, asserts that, by giving trial courts discretion to apply any sentence from the statutory range applicable to a defendant’s crime, Foster effectively limits a reviewing court to a determination of whether or not the sentence imposed by the trial court falls within the correct statutory range. Because Foster removed previously-required factual findings from the sentencing criteria, they argue, it requires affirmance of a trial court’s sentence except where a defendant can show that the sentencing court abused its discretion by imposing a sanction outside the legislatively-approved range of penalties for the charged offense..
Contacts
Richard J. Perez, 440.953.1310, for Laura Kalish.
Alana A. Rezaee, 440.350.2683.
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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.