Cases Pending on the Merits in the Supreme Court of Ohio 
of Interest to Criminal Defense Lawyers

Last Updated:  November 12, 2009

Click here for Certified Conflicts filed, but not yet accepted

2007-1261, State v. Ketterer

Proposition of Law No. I: A defendant’s sentence is void when the trial court fails to properly advise him concerning postrelease control on all counts.

Proposition of Law No. II: A trial court’s sentencing must be vacated if it does not contain the information mandated by Crim. R. 32(B).

Proposition of Law No. III: A defendant may not be resentenced pursuant to a statutory scheme in which the requirement for additional fact finding to impose greater than the minimum and consecutive sentences was eliminated subsequent to his guilty pleas.

Proposition of Law No. IV: The prosecution is required to provide the defendant with exculpatory evidence which is material to sentencing.

Proposition of Law No. V: When a defendant in a capital case waives his right to a jury and a three judge panel accepts his guilty pleas as to both the capital and non capital charges contained in the indictment, the panel and not the presiding judge should decide the defendant’s subsequent motion to withdraw his guilty pleas.

Proposition of Law No. VI: A defendant’s guilty plea, to be knowing and intelligently entered, must be based upon an accurate understanding of the facts and applicable law.

2008-0711, State v. Joseph

Proposition of Law No. I: A trial court lacks the authority to impose court costs in its sentencing entry, when it did not impose costs when pronouncing sentence in open court.

Proposition of Law No. II: A trial court cannot consider for purposes of sentencing a proffer statement made in the course of plea negotiations when the parties have expressly limited the use of the proffer and those terms do not include sentencing.

2008-0992, Chojnacki v. Rogers

Proposition of Law: An entry denying the appointment of counsel in Senate Bill 10 reclassification hearings is a final appealable order because a trial court affects a substantial right when it denies a petitioner the right to counsel.

Certified Question: [W]hether a decision denying a request for appointment of counsel in a reclassification hearing held pursuant to Ohio’s version of the Adam Walsh Act, Senate Bill 10, is a final appealable order.

2008-1052, State v. Madaris

Proposition of Law: Robbery, R.C. 2911.02(A)(2) and aggravated robbery, R.C. 2911.01(A)(1) are not allied offenses of similar import.  When their elements are compared in the abstract, without requiring an exact alignment of the elements, it is possible to commit one offense without also committing the other.

2008-1255, State v. Singleton

Appellant's Proposition of Law: Prior to the expiration of an originally imposed prison term, a trial court may correct an offender's felony sentence pursuant to the procedure outlined in R.C. 2929.191 if that sentence lacks the sanction of postrelease control.

Appellee's Proposition of Law I: R.C. 2929.191 is consistent with the de novo resentencing required to correct a void sentence.

Appellee's Proposition of Law II: Trial and appellate judges should affirm, reverse or modify sentences on a count-by-count basis, not a sanction-by-sanction basis.

Appellee's Proposition of Law III: Notwithstanding R.C. 2929.191, “[i]n cases in which a defendant is convicted of, or pleads guilty to, an offense for which postrelease control is required but not properly included in the sentence, the sentence is void and the state is entitled to a new sentencing hearing in order to have postrelease control imposed on the defendant unless the defendant has completed his sentence.” State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197.

2008-1499, State v. Jackson

Appellant's Proposition of Law: When a public employer compels an employee to give a statement under threat of removal from office, Garrity v. New Jersey, 385 U.S. 493 (1967) prohibits the direct or derivative use of the statement in a subsequent criminal trial, but it does not prohibit a prosecutor's mere knowledge, or "non-evidentiary" use of it.

Appellee's Proposition of Law: When a public employee makes a Garrity statement, its direct or derivative use is prohibited in subsequent criminal trials, but Garrity does not forbid a prosecutor's mere knowledge, or "non-evidentiary" use of it.

2008-1562, In re Poling

Proposition of Law No. I: The juvenile court order denying the state's discretionary bindover motion to transfer jurisdiction is an appealable order and the state may take an immediate appeal from the ruling of the juvenile court.

Proposition of Law No. II: The ex parte communications with third parties and the consideration of extraneous evidence by the juvenile court judge were legal errors requiring reversal of his ruling denying the state's discretionary bindover motion.

Proposition of Law No. III: The consideration of extraneous evidence through ex parte communications was a per se abuse of discretion requiring reversal of the ruling denying the state's discretionary bindover motion.

Proposition of Law No. IV: The consideration of extraneous evidence by the juvenile court judge was unethical conduct requiring reversal of his ruling denying the state's motion to transfer as the judge's misconduct prejudiced the state and deprived the proceedings of fundamental fairness and due process of law.

Proposition of Law No. V: The juvenile court judge abused his discretion in crediting Vincent Ciola's letter rather than the report of Dr. Tennenbaum and in substituting his own beliefs for those of Dr. Tennenbaum.

2008-1624, In re Smith

Proposition of Law No. I: The application of S.B. 10 to persons who committed their offenses prior to the enactment of Senate Bill violates the Ex Post Facto Clauses of the United States Constitution. Article I, Section 10 of the United States Constitution.

Proposition of Law No. II: The application of S.B. 10 to persons who committed their offense prior to the enactment of S.B. 10 violates the Retroactively Clause of the Ohio Constitution. Article II, Section 28 of the Ohio Constitution.

Proposition of Law No. III: The application of S.B. 10 violates the United States Constitution's prohibition against cruel and unusual punishments. Eighth Amendment to the United States Constitution.

Proposition of Law No. IV: A juvenile court has no authority to classify a juvenile, adjudicated delinquent for a sex offense, as a juvenile sex offender registrant when the statutory provisions governing such a hearing was repealed at the time in which the hearing was conducted.

2008-1669, State v. Whitfield

Proposition of Law: Upon finding one or more counts to constitute two or more allied offenses of similar import, R.C. 2941.25(A) requires that the verdicts are merged for the purposes of sentencing and the defendant be sentenced only on one.

2008-1693, State v. Arnold

Proposition of Law: In a criminal prosecution, the admission of out-of-court statements made by a child to an interviewer employed by a child advocacy center violates the constitutional right to confront witnesses provided by the Sixth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution.

2008-1781, State v. Smith

Appellant's Proposition of Law: When law enforcement personnel lawfully seize a suspect's cellular
telephone incident to arrest, the Fourth Amendment prohibits warrantless search of the contents of the telephone.

Appellee's Proposition of Law: When a suspect is searched incident to a lawful arrest, a cell phone in the suspect's pocket is analogous to a closed container and may properly be searched without a warrant.

2008-2037, State v. Williams

Proposition of Law: R.C. 2923.02/2903.02, Attempted Murder, is not an allied offense of similar import with the offense of R.C. 2903.11(A)(1), Felonious Assault.

Further, R.C. 2923.02/2903.02, Attempted Murder, is not an allied offense of similar import with the offense of R.C. 2903.11(A)(2), Felonious Assault.

Therefore, a defendant may be found guilty and sentenced separately for these Felonious Assaults in addition to Attempted Murder.

2008-2047, State v. Palmer

Proposition of Law No. I: A new decision from the Ohio Supreme Court does not create extraordinary circumstances under App.R. 14(B) that allows reconsideration of an appellate court's previous decisions. An appellate court cannot use App.R. 14(B) and App.R. 26(A) to give case law from the Ohio Supreme Court an unintended retroactive effect.

2008-2127/2008-2249, State v. Rohrbaugh

Certified Question: May a defendant consent to a negotiated plea to an offense that was neither indicted, nor a lesser included offense of the indicted offense, without a waiver of indictment pursuant to Criminal Rule 7(A) and Section 10, Article I of the Ohio Constitution?

Proposition of Law: When the parties agree to amend a charge in an indictment pursuant to a plea agreement and the amendment changes the name or identity of the crime charged, but the defendant has not been misled or prejudiced by the amendment, a plain error analysis does not apply, and if there is error, it is only invited error.

2008-2170/2008-1942, State v. Robinson

Certified Question: Does the damaging of a single, private telephone or cellular telephone disrupt "public services" sufficiently to constitute a violation of R.C. 2909.04(A)(3)

Proposition of Law: Whether the destruction of a single, private telephone or cell phone substantially impairs the ability of law enforcement officers, firefighters, rescue personnel, emergency personnel, emergency medical services personnel, or emergency facility personnel to respond to an emergency or to protect and preserve any person or property from serious physical harm.

2008-2172/2008-2119 State v. Jordan

Certified Question: If a defendant is under actual detention, can the defendant be convicted of escape under R.C. 2921.34(A)(1) when the record demonstrates that the defendant knew he was under detention or was reckless in that regard, irrespective of whether the defendant was properly under said detention?

Proposition of Law No. I: In order to prove escape from postrelease control, the State must show that a trial court imposed postrelease control by notifying the defendant pursuant to R.C. 2929.19(B)(3) and by imposing the sanction in open court and in the judgment entry of sentence.  State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, ¶16, applied.

Proposition of Law No. II: A criminal defendant is denied the effective assistance of trial and appellate counsel when counsels' errors results in the imposition of an illegal sentence.

2008-2228/2008-2133, State v. Underwood

Certified Question: Is an agreed and jointly recommended sentence 'authorized by law' under R.C. 2953.08(D)(1), and thus not reviewable, when the agreed sentence includes convictions for offenses that are allied offenses of similar import?

Proposition of Law No. I: R.C. 2953.08(D)(1) bars the appeal of an agreed sentence, even if the sentence includes allied offenses of similar import.

Proposition of Law No. II: Where a defendant is sentenced to concurrent terms on allied offenses pursuant to a jointly recommended sentence, the failure to merge cannot be said to constitute plain error.

2008-2415, State v. McCausland

Proposition of Law: The trial court erred and denied Appellant a fair trial in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 and 16 of the Ohio Constitution when it denied Counsel the opportunity to make a closing argument prior to the judgment of the trial court.

2008-2424, State v. Williams

Proposition of Law No. I: A commitment under R.C. 2945.39 is civil, not criminal, in nature.

Proposition of Law No. II: The involuntary commitment of a defendant under R.C. 2945.39 does not violate the defendant's right to Equal Protection under the United States and Ohio Constitutions.

Proposition of Law No. III: The involuntary commitment of a defendant under R.C. 2945.39 does not violate the defendant's right to Due Process under the United States and Ohio Constitutions.

2008-2490, State v. Troisi

Proposition of Law No. I: When a defendant's conviction has been set aside due to an error in the proceedings leading to conviction, such as the wrongful admission of evidence, double jeopardy does not bar retrial of the defendant, and vacatur is an inappropriate remedy.

Proposition of Law No. II: R.C. 2913.34 does not specify the means by which the state must establish that the marks were identical or substantially indistinguishable, thus, the state is not required in all cases to introduce certified copies of the trademarks in question.

2008-2502, State v. Bodyke

Proposition of Law No. I: Application of S.B. 10, Ohio's version of the Adam Walsh Act, to offenders whose crimes occurred before its effective date violates the Ex Post Facto Clause of the United States Constitution.

Proposition of Law No. II: Application of S.B. 10, Ohio's version of the version of the Adam Walsh Act, to offenders whose crimes occurred before its effective date violates the Retroactivity Clause of the Ohio Constitution.

Proposition of Law No. III: Application of S.B. 10, Ohio's version of the Adam Walsh Act, to offenders who were classified under Megan's Law effectively vacates valid judicial orders, and violates the Separation of Powers Doctrine embodied in the Ohio Constitution.

Proposition of Law No. IV: Application of S.B. 10, Ohio's version of the Adam Walsh Act, to offenders who have previously been sentenced for sex offenses violates the Double Jeopardy Clauses of the Ohio and United States Constitutions.

Proposition of Law No. V: Application of S.B. 10, Ohio's version of the Adam Walsh Act, to offenders who have previously been subject to the provisions of either the 1996 or 2003 version of Megan's Law violates Due Process and constitutes cruel and unusual punishment as prohibited by the Ohio and United States Constitutions.

Proposition of Law No. VI: Application of S.B. 10, Ohio's version of the Adam Walsh Act, to offenders who, pursuant to agreement with the Prosecutor and before the Act's effective date, entered pleas of guilty or no contest impairs the obligation of contracts as protected by the Ohio and United States Constitutions.

2009-0054, Mynes v. Brooks

Certified Question: Whether R.C. 2711.02 orders, which are not applicable to all the parties or claims, are final appealable orders without Civ.R. 54(B) language.

2009-0189, In re A.R.

Proposition of Law: The retroactive application of Senate Bill 10 to juveniles whose offense was committed prior to the enactment of Senate Bill 10 violates the juvenile's right to Due Process as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Section 16 of the Ohio Constitution.

2009-0330, State v. Speer

Appellant's Proposition of Law: During voir dire, a trial court does not abuse its discretion for declining to remove a hearing impaired or otherwise disabled potential juror for cause if evidence available to the trial court supports its good faith belief that the potential juror's hearing impairment or physical disability can be reasonably accommodated.

Proposition of Law of Amicus: A juror with a hearing impairment should not be dismissed for cause based on that hearing impairment unless there is evidence at the time the challenge for cause is made that the juror cannot fully participate as a juror and afford the defendant a fair trial.

Appellee’s Proposition of Law No. I: No reasonable fact finder would attempt to accommodate a hearing impaired juror who has previously admitted her inability to fully participate and evaluate critical evidence.

Appellee’s Proposition of Law No. II: There was clear and unambiguous evidence that the juror would not be able to fully participate and evaluate the 911 call. This denied Defendant-Appellee a fair trial.

2009-0364, State v. Jones

Proposition of Law No. I: The Fourth Amendment does not protect a privacy interest in property a person leaves in a place in which that person has abandoned.

Proposition of Law No. II: Where an issue regarding the admissibility of evidence is raised neither at trial nor on appeal, the error cannot be said to be plain and the sua sponte raising of such error by an appellate court deprives the parties of notice and an opportunity to respond to the challenged error.

2009-0477, State v. Dunlap

Proposition of Law: Gross sexual imposition against a child under 13 is not a strict liability offense. The act of sexual contact must be recklessly performed.

2009-0605, State v. Prade

Proposition of Law: Whether (a) earlier DNA test results were "definitive" for purposes of R.C. 2953.74(A), and (b) new DNA test results might be "outcome determinative" under R.C. 2953.74(B), must be assessed by comparing (1) the results of the prior DNA testing to (2) potential results from new DNA testing using current DNA testing methods.

2009-0609, Cordray v. Am. Booksellers Found. for Free Expression

Certified Question of State Law, United States Court of Appeals for the Sixth Circuit, Nos. 07-4375 and 07-4376. On review of preliminary memoranda pursuant to S.Ct.Prac.R. XVIII(6). The court will answer the following questions:

Certified Question No. I (United States Court of Appeals for the Sixth Circuit): Is the Attorney General correct in construing R.C. 2907.31(D) to limit the scope of R.C. 2907.31(A), as applied to electronic communications, to personally directed devices such as instant messaging, person-to-person emails, and private chat rooms?

Certified Question No. II (United States Court of Appeals for the Sixth Circuit): Is the Attorney General correct in construing R.C. 2907.31(D) to exempt from liability material posted on generally accessible websites and in public chat rooms?

2009-0678, State v. Pepka

Proposition of Law No. I: An indictment that charges a defendant with endangering children in violation of R.C. 2919.22(A) as a felony of the third degree is sufficient regardless of whether it indicates that the victim suffered serious physical harm.

Proposition of Law No. II: The elements of endangering children do not include serious physical harm suffered by the victim. Rather, serious physical harm is a special finding to determine the degree of the offense, but is not part of the definition of the crime.

2009-1323, Garr v. Warden

Certified Question (United States District Court, Southern District of Ohio, Western Division): Whether the Supreme Court of Ohio's decision in State v. Chandler, 109 Ohio St.3d 223, 2006-Ohio-2285, as described in the syllabus of the court, to wit: "[a] substance offered for sale must contain some detectable amount of the relevant controlled substance before a person can be sentenced as a major drug offender under R.C. 2925.03(C)(4)(g)," extends to cases where the substance offered for sale was never observed, tested, or recovered to ascertain whether it contained a detectable amount of the controlled substance, but no affirmative evidence was presented to call into question the defendant's representation in his offer to sell, or to refute the jury's factual finding, that the substance was in fact a controlled substance in an amount that equaled or exceeded 1000 grams.

2009-1369, Scott v. Houk

Certified Question (United States District Court, Northern District of Ohio, Eastern Division): Is there a post-conviction or other forum to litigate the issue of whether Ohio’s lethal injection protocol is constitutional under Baze v. Rees, 533 U.S. ___, 128 S.Ct. 1520 (2008), or under Ohio law?

2009-1481, State v. Johnson

Certified Question: Are the elements of child endangering [set forth in R.C. 2919.22(B)(1)] sufficiently similar to the elements of felony murder with child endangering as the predicate offense that the commission of the murder logically and necessarily also results in the commission of child endangering?”

2009-1527, State v. Rardon

Proposition of Law: In broadly defining the term evidence, the appellate court has rendered R.C. 2921.12 (Tampering with Evidence), unconstitutionally vague to include items that have no relationship to any criminal investigation or prosecution. In doing so the court has defined the statute in such a way that persons of ordinary intelligence are unable to understand what conduct is proscribed.

Certified Conflicts filed, but not yet accepted

2009-1958, State v. Hamilton

Certified Question: May an indictment which does not contain all the elements of an offense be amended to include an omitted mens rea element that was not presented to the grand jury?

This is paired with the following proposition of law in 2009-Ohio-1080:

Stephen P. Hardwick
Assistant Public Defender
stephen.hardwick@opd.ohio.gov