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