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.
2009-0825, State v. Massien
Certified Question:
Whether a nurse employed by a hospital who in the course of her
employment steals drugs from the hospital hold a "position of trust" under
R.C.
2929.13(B)(1)(d) thus making the nurse ineligible for intervention in lieu
of conviction?
2009-0833, State v. Simmons
Certified Question: Does the holding of Old
Chief v. United States (1997), 519 U.S. 172, granting a right to a Defendant to
stipulate to prior criminal convictions, apply to state law prosecutions or is
it limited solely to prosecutions under federal law?
2009-0886, State v. Downour
Proposition of Law: When a trial court, in spite of a properly
made objection, allows an alternate juror to sit with the jury
during deliberations in violation of
R.C.
2313.37(C) and Crim.R. 23(G)(1), the defendant is entitled
to a new trial unless the state can show a lack of prejudice.
2009-0893, State v. McConville
Proposition of Law:
The Ninth District Court of Appeals misapplied
R.C.
2950.11(F) and (H).
2009-0897, State v. Fischer
Proposition of Law: A direct appeal from a void sentence
is a legal nullity; therefore, a criminal defendant's appeal
following a Bezak resentencing is the first direct
appeal as of right from a valid sentence. State v. Bezak,
114 Ohio St.3d 94,
2007-Ohio-3250.
2009-0971, State v. Clayborn
Proposition of Law:
Because prior decisions of this court have characterized sex
offender classification, registration, and notification
provisions set forth in
Chapter
2950 of the Revised Code as civil in nature, pursuant to
Appellate Rule 4(A) the defendant in a criminal case is excused
from the requirement that notice of appeal be filed within
thirty days when he has not been served with a copy of the trial
court's judgment entry in the manner prescribed by Civil Rules
58(B). (State v. Cook (1998), 83 Ohio St.3d 404;
State v. Williams (2000), 88 Ohio St.3d 513; State v.
Hayden, 96 Ohio St.3d 211,
2002-Ohio-4169; State v. Wilson, 113 Ohio St.3d
382,
2007-Ohio-2202, and State v. Ferguson, 120 Ohio
St.3d 7,
2008-Ohio-4824, followed.)
2009-1196, State v. Bess
Proposition of Law:
The statute of limitations upon criminal offenses is tolled
pursuant to former R.C. 2901.13(G) when the accused purposely
avoids prosecution for an offense.
2009-1282, City of Zanesville v. Rouse, Jr.
Proposition of Law:
A criminal complaint is filed and the court has subject matter
jurisdiction as a matter of law when the clerk of courts
receives a complaint, assigns it a case number, enters the case
caption on the court's computer docket, and places the complaint
in a file.
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
"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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