Cases Pending on the Merits in the Supreme
Court of Ohio
of Interest to Criminal Defense Lawyers
2006-1806, State v. Craig
Question from the Court No. 1: Whether the introduction of the
autopsy report completed on Roseanna Davenport violated Donald Craig’s Sixth
Amendment right to confrontation under Melendez-Diaz v. Massachusetts
(2009), ___ U.S. ___, 129 S.Ct. 2527.
Question from the Court No. 2: Whether Dr. Kohler, a medical
examiner who did not conduct the autopsy of Roseanna Davenport, properly
testified as to Davenport’s cause of death in view of Melendez-Diaz v.
Massachusetts.
Note: This is a death penalty case in which the Ohio Supreme
Court, sua sponte, requested briefing on these issues. The Ohio Supreme Court
subsequently stayed briefing pending the decision of the United States Supreme
Court in Illinois v. Williams,
Case No.
10-8505.
2009-1661, State v. White
Proposition of Law: The retroactive application of
R.C.
2929.06 is unconstitutional.
2010-0659, State v. Estrada-Lopez*
Proposition of Law: The Confrontation Clause
prohibits the state from introducing testimonial statements of a
nontestifying forensic analyst through the in-court testimony of
a third party who did not perform or observe the laboratory
analysis on which the statements are based.
Note: This case previously held for the
decision of the United States Supreme Court in Illinois v.
Williams,
Case No.
10-8505.
2010-1636, State v. Gunnell
Proposition of Law
No. I: The trial court erred at the end of the second jury
trial when it declared a mistrial without conducting the statutorily required
review, R.C. 2945.36,
and when there was no "corruption of a juror" found or cited by the trial court.
Proposition of Law
No. II: The court of appeals correctly determined that the
burden is on the State of Ohio, not the defendant nor the trial court to prove
that it was manifestly necessary to declare a mistrial.
2010-1842, State v. Morris
Proposition of Law: The Court
of Appeals erred in applying a de novo standard of review to the
admissibility of "other acts" evidence and substituted its own
judgment for that of the trial court.
2010-2260, State v. Hood*
Proposition of Law: Cell phone
records are not admissible as business records without proper
authentication. The admission of unauthenticated cell phone
records under the business records exception violates the
Confrontation Clause of the Sixth Amendment to the United States
Constitution.
2011-0049, State v. Vickers
Proposition of Law: When a
defendant fails to appear, the statutory speedy trial time is
tolled.
R.C.
2945.72(D).
2011-0107, In re J.V.
Proposition of Law
No. I: The invocation of an adult prison sentence upon a
juvenile, pursuant to
R.C.
2152.14, violates the Sixth and Fourteenth Amendments to the
United States Constitution and
Article I, Sections 10 and
16 of the Ohio Constitution.
Proposition of Law
No. II: A juvenile court does not have the authority to impose
criminal punishment (including post-release control) after the
delinquent child turns 21.
2011-0132, State ex rel. Vindicator Printing Co.
v. Wolff
Proposition of Law: The public
has a presumptive right of access to filed court records that is
independently recognized under the constitution, common law, and
Ohio Superintendence Rule 45, and this presumption applies
to, inter alia, the filed bills of particulars.
2011-0215, In re M.W.*
Proposition of Law: A child has
the right to counsel at all stages of the proceedings against
him. Because Ohio's General Assembly has designated
interrogation as a stage of the proceedings, a child must be
represented by his parent, guardian, custodian, or an attorney
before the child can waive his right to counsel pursuant to
Miranda.
2011-0244, State v. Swidas
Proposition of Law:
R.C. 2941.146 is unconstitutionally vague as applied to a
defendant who discharges a firearm while standing outside of a
motor vehicle.
2011-0486, State v. Emerson
Proposition of Law
No. I: When DNA is obtained by the state in an investigation
which results in the acquittal of the individual, that
individual maintains standing to challenge the improper
retention and subsequent use of his/her DNA in a subsequent
proceeding.
Proposition of Law
No. II: The State of Ohio does not have the authority to retain
and/or subsequently use the DNA taken from an individual during
a criminal investigation when that individual is acquitted of
that crime.
2011-0597, State v. Ramey*
Proposition of Law:
The filing of a motion to suppress by a co-defendant does not,
by itself, automatically toll the other co-defendant’s speedy
trial time.
2011-0599, State v. Eaford
Proposition of Law:
Where a verdict form states a charge of possession of drugs but
omits the drug at issue, the court is to look to the entirety of
the record, to include the indictment, the evidence at trial,
the argument of counsel, and the jury instructions to determine
the level of offense. (State v. Pelfrey, 112 Ohio
St.3d. 422,
2007-Ohio-256, limited and explained.)
2011-0619, State v. Williams
Proposition of Law:
A trial court’s determination that offenses should not merge
pursuant to
R.C.
2941.25 should be affirmed absent an abuse of discretion.
2011-0632, State v. Gwen
Certified Question: "Whether, for purposes of
enhancing the offense level in a domestic violence case, the
State is required to prove the prior domestic violence
convictions by providing a judgment of
conviction executed in conformity with
Crim. R. 32(C)."
The conflict case is State v. Finney, 6th Dist. No.
F-06-009,
2006-Ohio-5770.
2011-0778, State v. Noling*
Proposition of Law:
Whether an application for post-conviction DNA testing rejected
under the old acceptance criteria set by the Legislature must be
considered under the Legislature's new acceptance criteria
rather than be procedurally barred by
R.C.
2953.72(A)(7).
2011-0818, State v. Griffin*
Appellant's
Proposition of Law:
Crim.R. 32(C) does not require a trial court to specify the
“manner of conviction” as a prerequisite for a final appealable
order.
Appellee's Proposition of Law: Because any
judgment by an appellate court in the absence of a final order
is void for lack of subject matter jurisdiction, "[p]rinciples
of res judicata, including the doctrine of the law of the case,
do not preclude" review on the merits of the first final order
issued in a case. State v. Fischer, 128 Ohio St.3d 92,
2010-Ohio-6238, applied.
Appellant's and Appellee's Proposition of Law:
In cases in which
R.C.
2929.03(F) requires the court or panel to file a sentencing
opinion, a final, appealable order consists of both the
sentencing opinion filed
pursuant to
R.C.
2929.03(F) and the judgment of conviction filed pursuant to
Crim.R. 32(C). State v. Ketterer, 126 Ohio St.3d
448,
2010-Ohio-3831 applied.
2011-0827, State v. Billingsley
Proposition of Law:
The trial court and the eleventh district court of appeals
abused their discretion to the prejudice of appellant by
overruling his motion to enforce the
Crim.R. 11 plea agreement and motion to dismiss firearm
specifications.
2011-1066, State v. Brunning
Proposition of Law I: Even if
the person does not have a legal obligation to complete the
government record, a person can be convicted of tampering with
records (R.C.
2913.42) if the person falsifies the government record.
Proposition of Law II:
State v. Bodyke
does not require vacation of convictions where the conduct of
the sex offender, classified under Megan's law, would have been
a violation under both Megan's law and the Adam Walsh Act.
Proposition of Law III: A
defendant who pleads guilty to an offense waives any defect in
an indictment except for plain error.
2011-1070, State v. Niesen-Pennycuff
Certified Question: Must a trial court order
the sealing of records in the manner provided in
R.C.
2953.32, which requires a one-year waiting period for
misdemeanors and a three-year waiting period for felonies, or
may the trial court employ
R.C.
2953.52(A)(1) and determine that a defendant who has
successfully completed the intervention in lieu of conviction
program is eligible to have their record sealed immediately upon
successful completion of the program?
The conflict case is State v. Fortado, 9th Dist., 108
Ohio App.3d 706.
2011-1095, Hollingsworth v. Timmerman-Cooper
Certified Question: “Do
Ohio R.Crim. P. 11(B)(2) and
Ohio R.Evid. 410(A)(2), which prohibit the use of a
defendant's no contest plea against the defendant ‘in any
subsequent civil * * * proceeding’ apply to prohibit the use of
such a plea in a subsequent civil proceeding which is a
collateral attack on the criminal judgment which results from
the no contest plea, such as a petition for post-conviction
relief under
R.C.
2953.21, or a federal habeas corpus action under
28 U.S.C. 2254?”
2011-1170/2011-1985, Liming v. Damos*
Certified Question: "Is a purge hearing to
impose a suspended sentence for failing to pay child support a
civil or criminal proceeding?"
Proposition of Law I: Due
process entitles an indigent contemnor to be represented by
court-appointed counsel at a "purge" hearing, if, at the
conclusion of that hearing, the trial court imposes a term of
incarceration.
Proposition of Law II: When it
is impossible for an indigent contemnor to comply with a purge
order, the
purge hearing is criminal in nature, and the contemnor is
entitled to court-appointed representation.
The conflict case is Samantha N. v. Lee A.R., 6th Dist.
Nos. E-00-036, E-00-037.
2011-1328, State v. Friedman*
Proposition of Law I: Random,
orchestrated drug-dog sniffs of cars and trucks parked on
residential streets, conducted without warrants or any suspicion
of criminal activity, are searches that violate the Fourth
Amendment and
Section 14, Article I of the Ohio Constitution.
Proposition of Law II: Police
may not break into a parked car to conduct a warrantless search
and seizure, when such a break-in is premised on nothing more
than a drug-dog alert to the car.
2011-1383, State v. Raber
Proposition of Law I:
R.C.
2950.03(A)(2) mandates that a trial court provide the notice
of duty to register as a sex offender to a defendant at the time
of sentencing.
Proposition of Law II: A trial
court is divested of jurisdiction over a case after the final
judgment entry is journalized by the clerk of courts.
Proposition of Law III: A
sexual offender classification hearing is a proceeding within
the context of the criminal case and, therefore, subject to the
Rules of Criminal Procedure and mandated deadlines therein.
Proposition of Law IV: The
trial court violated the appellant's constitutional rights when
it re-opened the case and held further hearings after final
judgment entry was journalized.
2011-1473, State v. Hampton
Proposition of Law I: In
determining whether a trial court ruling is a "final verdict"
because it is based on
Crim.R. 29, an appellate court must review the actual nature
of the ruling, not just the label the trial court attached to
the ruling. If the record shows that the trial court's ruling
went beyond the sufficiency-of-evidence review allowed by
Crim.R. 29, the State can appeal pursuant to
R.C.
2945.67(A).
Proposition of Law II: Lack of
venue cannot result in an "acquittal" under
Crim.R. 29 because motions under that rule are limited to
claims of lack of proof of one or more material elements of the
offense. Venue is not a material element of the offense.
Proposition of Law III:
A trial court's granting of a
Crim.R. 29 motion for judgment of acquittal is not a "final
verdict." The state can appeal such a ruling by leave of court
under
R.C.
2945.67(A) when such an appeal does not violate double
jeopardy. (State ex rel. Yates v. Court of Appeals for
Montgomery Cty. (1987), 32 Ohio St.3d 30, overruled)
2011-1501, State v. Billiter*
Certified Question: "Where a criminal defendant
enters a plea of guilty to escape, does res judicata bar the
defendant from arguing his plea is void due to a post release
control sentencing violation?"
The conflict cases are State v. Pointer, 2nd Dist. No.
24210,
2011-Ohio-1419; State v. Robinson, 2nd Dist. No.
2010C430,
2011-Ohio-1737; and State v. Renner, 2nd Dist. No.
24019,
2011-Ohio-502.
2011-1504/2011-1593, State v. Hobbs
Certified Question: "May a law enforcement
officer, serving in a dual-role as an officer and a deputy clerk
of a local municipal court, act as a neutral and detached
magistrate for purposes of
Crim.R. 4(A)?"
Proposition of Law: A law enforcement officer serving
in a dual role as an officer and deputy clerk of a local
municipal court may not act as a neutral and detached
magistrate. When a warrantless arrest has occurred without
showing why a warrant could not first be obtained and is
followed by a "bare bones"
complaint for a resulting arrest warrant for continued detention
issued by operation of such dual role officer as a recurring,
systemic practice, the exclusionary rule applies to all evidence
directly or indirectly obtained as a result of the policy from
the date the policy was implemented, not simply from the date
the particular warrant issued.
The conflict cases are State v. Garrett, 8th Dist. Nos.
87112, 871123,
2006-Ohio-6020 and State v. Robinson, 8th Dist.
Nos. 49501, 49518, 49577.
2011-1569, State v. Dibble
Proposition of Law I: Sworn oral information provided
to the issuing magistrate contemporaneous to the magistrate's
review of a search warrant must be considered in determining the
validity of the warrant under the Fourth Amendment and in
determining the good faith of the officer, regardless of whether
such information was recorded at the time.
Crim.R. 41(C) is unconstitutional in excluding unrecorded
sworn oral information from later suppression hearings.
Proposition of Law II: The issue of falsity in a search
warrant affidavit must be judged in light of the non-technical
language used by non-lawyers.
Proposition of Law III: When a court adopts the
position that a hearing is preliminary in nature, the court
shall give notice to the parties before proceeding to the full
merits.
2011-1664, State v. Moore
Certified Question: "Whether a trial court's
failure to impose the statutorily mandated fine required by
R.C.
2925.11(E) and
2929.18(B)(1) when no affidavit of indigency is filed with
the clerk of court prior to the filing of the trial court's
journal entry of sentencing renders that part of the sentence
waiving the fine void."
The conflict case is State v. DeLoach, 9th Dist. No.
05CA008858,
2006-Ohio-4409.
2011-1677, State v. Warner
Proposition of Law I: The
R.C.
2152.12(B)(3) amenability hearing cannot be waived.
Proposition of Law II: Waiver of the
R.C.
2152.12(B)(3) amenability hearing before the juvenile court
is not valid unless it is expressly stated on the record by the
juvenile through his or her counsel, and the trial court must
determine through a colloquy with the juvenile that the waiver
is voluntarily, knowingly, and intelligently made.
2011-1882, State v. Roberts*
Proposition of Law: The obligations to preserve and
catalog criminal offense-related biological evidence, imposed
upon certain government entities by
R.C.
2933.82, apply to evidence in the possession of those
entities at the time of the statute's effective date.
2011-1912, State v. Ricks*
Proposition of Law I: A photographic array which
contains photographs primarily of individuals previously known
to an identifying eyewitness, and which also contains a
photograph of the eventual defendant, is unduly suggestive. The
unduly suggestive nature of such an identification process
undermines the reliability of the eyewitness's identification of
the defendant through that process. The admission of such an
identification at a defendant's trial violates the defendant's
rights under the Sixth and Fourteenth Amendments to the United
States Constitution, and
Sections 10 and
16, Article I of the Ohio Constitution.
Proposition of Law: A non-testifying codefendant's
inculpatory, testimonial, out-of-court statements may not be
admitted at a defendant's trial through the testimony of an
investigating officer as non-hearsay for the purpose of
explaining the officer's conduct during the course of an
investigation. The admission of a codefendant's statements in
that regard violates the defendant's right to confront the
State's evidence against the defendant, in violation of the
defendant's rights under the Sixth and Fourteenth Amendments to
the United States Constitution, and
Sections 10 and
16, Article I of the Ohio Constitution.
2011-2075, State v. Steele
Proposition of Law: In instructing a jury on a crime,
which contains among its elements the concept of "privilege" or
lack thereof, the definition of "privilege" contained in
R.C.
2901.01(A)(12) is proper and sufficient.
2011-2094, State v. Williams
Proposition of Law I: Other acts evidence of prior
instances of sexual abuse committed by a defendant are
admissible to show his intent, where intent is an element of the
statute and both acts are committed against teenage boys of
similar ages.
Proposition of Law II: Other acts evidence
demonstrating that a defendant exhibited a pattern of isolating
certain types of victims and then abused a position of authority
to engage in grooming behaviors for the purpose of sexual
gratification is admissible to show his unique, identifiable
plan, independent of whether it shows identity.
2011-2126, State v. Howard
Proposition of Law: The felony sentencing statute
R.C.
2950.99 is not applied retroactively when the conduct for
which a defendant is convicted and sentenced occurred after the
effective date of the statute or January 1, 2008.
2011-2134, State v. Gardner
Proposition of Law: When a person is subject to arrest
on an outstanding warrant, he or she has no expectation of
privacy that would protect him or her from execution of the
warrant.
2012-0018, In re J.B.*
Proposition of Law I: A juvenile court lacks
jurisdiction to hold an initial classification hearing and
classify a youth as a juvenile offender registrant after the
child completes disposition and is discharged from parole.
In re Cross, 96 Ohio St.3d 328,
2002-Ohio-4183, 774 N.E.2d 58. Fourteenth Amendment to the
United States Constitution;
Article I, Section 16 of the Ohio Constitution.
Proposition of Law II: This Court's holding in
State ex. rel. N.A. v. Cross, 125 Ohio St.3d 5,
2010-Ohio-1471, 925 N.E.2d 614 does not authorize juvenile
courts to conduct initial classification hearings once a youth
has completed his disposition and been discharged from parole;
nor does it overrule this Court's holding in In re Cross,
96 Ohio St.3d 328,
2002-Ohio-4183, 774 N.E.2d 58.
Proposition of Law III: A juvenile court lacks
jurisdiction to hold a juvenile sex offender classification
hearing outside of the specified timing requirements of
R.C.
2152.83(A). A failure to comply with the timing requirements
constitutes a denial of the child's right to due process.
Fourteenth Amendment to the United States Constitution;
Article I, Section 16 of the Ohio Constitution.
2012-0059, In re Bruce S.*
Certified Question: "May Senate Bill 10’s
classification, registration, and community notification
provisions be constitutionally applied to a sex offender who had
committed his sex offense between the July 1, 2007, repeal of
Megan’s Law and the January 1, 2008, effective date of Senate
Bill 10’s classification, registration, and
community-notification provisions?"
The conflict case is State v. Scott, 8th Dist. No.
91890,
2011-Ohio-6255.
2012-0098, State v. Sutton
Proposition of Law I: Other acts evidence is admissible
in the state's case-in-chief under
Evid.R. 404(B) to rebut a defendant's self-serving
statements that he lacked the intent to commit burglary when
such evidence establishes an idiosyncratic pattern of criminal
conduct.
Proposition of Law II: The law of other acts evidence
in the state of Ohio is governed solely by
Evid.R. 404(B), the adoption of which superseded
R.C.
2945.59 and all its contrary progeny requiring a temporal,
modal, and situational relationship between the other acts and
the charged offense.
2012-0118, In re J.S.*
Proposition of Law: A sentencing error that is not
timely appealed, and is unrelated to a juvenile court's decision
to invoke an adult prison sentence against a serious youthful
offender, cannot be used to nullify the adult portion of the
juvenile's blended sentence.
2012-0162, Doss v. State
Proposition of Law I: A trial court adjudicating a
contested claim of innocence may not grant summary judgment in
favor of a former inmate based solely on an appeals court
finding that a criminal conviction was not supported by
sufficient evidence.
Proposition of Law II: Under
R.C.
2743.48 an inmate must prove actual innocence by a
preponderance of the evidence, which is a separate and distinct
legal standard than whether the evidence in a criminal case is
sufficient to convict a person beyond a reasonable doubt.
2012-0195/2012-0081,
State v. Darmond
Certified Question: "Does the holding in
Lakewood v. Papadelis, 32 Ohio St.3d 1, 511 N.E.2d 1138
(1987), apply equally to instances where the state has committed
a discovery violation?"
Proposition of Law: A trial court is required to impose
the least severe sanction that is consistent with the purpose of
the rules of discovery after an inquiry into the circumstances
producing an alleged violation of
Crim. R. 16.
The conflict cases are State v. Engle, 166 Ohio App.3d
252,
2006-Ohio-1884, 850 N.E.2d 123 and State v. Siemer,
Hamilton App. Nos. C-060604, C-060605,
2007-Ohio-4600.
2012-0215, State v. Clark
Proposition of Law: Statements made to teachers by
children during an interview to identify suspected child abuse
and protect the future safety and welfare of that child, are
non-testimonial and thus are admissible without offending the
Confrontation Clause.
2012-0239, State v. Smith*
Proposition of Law: A civil protection order is not
enforceable until it has been lawfully served.
2012-0250, In re M.M.
Proposition of Law: The right to file an appeal
pursuant to State v. Bistricky, 51 Ohio St.3d 157, 555
N.E.2d 644 (1990) is not waived if the State does not pursue in
interlocutory remedy under
Crim.R. 12(K) and
Juv.R. 22(F). The existence of interlocutory remedies does
not preclude the State from appealing substantive legal issues
involving the suppression or exclusion of evidence pursuant to
Bistricky.
2012-0252, State v. Lindstrom
Proposition of Law: A person is not apprehended upon
the issuance of a summons for purposes of
R.C.
2151.23(I) and
R.C.
2152.02(C)(3).
2012-0338, State v. Graham
Proposition of Law I: Any public employee compelled by
threat of job termination to participate in an investigation by
the Ohio Inspector General must be afforded that employee's
constitutional rights against self incrimination establish by
Garrity v. New Jersey.
Proposition of Law II: The failure or refusal to
provide a public employee Garrity warnings by an agency
conducting an administrative investigation does not obviate a
public employee's Fifth Amendment rights established by
Garrity, those rights are self-executing.
Proposition of Law III: When considering a motion to
suppress, a trial court is in the best position to resolve
factual questions and evaluate the credibility of the witnesses.
Certified Questions Filed, but not yet Accepted
2012-0302, State v. Lalain
Certified Question: "Whether,
despite the defendant's failure to object, it is error for the
trial court to order a defendant to pay an amount of restitution
in the absence of a specific plea agreement and without a
hearing or evidence substantiating the economic loss claimed by
the plaintiff?"
This case is paired with
2012-0408, State v. Lalain.
2012-0375, State v. Smith
Certified Question: "Whether
the enhanced penalty provisions of
R.C.
2950.99 apply to Megan's Law offenders, who committed a
registration offense after January 1, 2008?"
This case is paired with
2012-0381, State v. Smith.
2012-0416, State v. Forrest
Certified Question: "Whether
the entire en banc court as defined in
App.R. 26(A)(2) must participate in the decision whether to
grant or deny an application for en banc consideration."
This case is paired with
2012-0415, State v. Forrest.
2012-0528, State v. Malone*
Certified Question: "Is a trial court's order
denying a criminal defendant's post-judgment motion for
jail-time credit a final, appealable order?"
This conflict case is
2005-Ohio-2886, State v. Scranton.
2012-0771, State v. Manns
Certified Question I: "Where the prosecution
states on the record that it does not intend to re-try the
defendant upon the one count of a three count indictment on
which the jury was unable to reach a verdict, does the trial
court's dismissal of that count without prejudice render the
defendant's conviction on the remaining two counts of the
indictment interlocutory and not a final, appealable order?"
Certified Question II: "May the defendant raise
this issue after his conviction upon the two counts upon which
the jury had returned guilty verdicts has been affirmed upon an
appeal as of right from his conviction and sentence?"
The
conflict cases are State v. Cole,
2007-Ohio-3076; State v. Coffman,
2007-Ohio-3765; State v. Robinson,
2008-Ohio-5885; and State v. Goodwin,
2007-Ohio-2343.
Symbol
Descriptions
* =
Office of the Ohio Public Defender is counsel for a party
‡
=
Office of the Ohio Public Defender has filed an amicus
Stephen P. Hardwick
Assistant Public Defender
stephen.hardwick@opd.ohio.gov
"Laws alone can not
secure freedom of expression; in order that every man present
his views without penalty there must be spirit of tolerance in
the entire population."
Albert Einstein
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