Due Process

 

Franklin County Criminal Law Casebook

Reproduced with permission from:
David L. Strait and the Franklin County Public Defender Office
 

Also see specific topics which have been the subject matter of due process claims.

Due Process Guarantee Under the Ohio Constitution

State, ex rel. Heller, v. Miller (1980), 61 Ohio St. 2d 6, 8 -- "...The Ohio Constitution's guarantees in these matters are substantially equivalent to the United States Constitution's guarantees...Section 16 of Article I guarantees that...every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law..." When read in conjunction with Sections 1, 2, and 19, Section 16 is the equivalent of the Fourteenth Amendment's due process clause. Direct Plumbing Supply Co. v. Dayton (1941), 138 Ohio St. 540; Akron v. Chapman (1953), 160 Ohio St. 382. As a consequence, decisions of the United States Supreme Court can be used to give meaning to the guarantees of Article I of the Ohio Constitution." Also see Peebles v. Clement (1980), 63 Ohio St. 2d 314, 317.
 
State v. Hochhausler (1996), 76 Ohio St. 3d 455, 459 -- "Due process under the Ohio and United States Constitutions demands that the right to notice and an opportunity to be heard must be granted at a meaningful time and in a meaningful manner where the state seeks to infringe a protected liberty or property interest...However, the concept of due process is flexible and varies depending on the importance attached to the interest and the peculiar circumstances under which the deprivation may occur." This weighing process is undertaken in accordance with the factors listed in Matthews v. Eldridge (1976), 424 U.S. 319, at 335.

Arrest and Detention

Rochin v. California (1952), 342 U.S. 156 -- Due process denied where defendant swallowed morphine capsules during drug raid and police took him to a hospital and had his stomach pumped. At p. 172: "The faculties of the Due Process Clause may be indefinite and vague, but the mode of their ascertainment is not self-willed. In each case 'due process of law' requires an evaluation based on a disinterested inquiry pursued in the spirit of science, on a balanced order of facts exactly and fairly stated, on the detached consideration of conflicting claims....on a judgment not ad hoc and episodic but duly mindful of reconciling the needs both of continuity and of change in a progressive society."
 
Block v. Rutherford (1984), 468 U.S. 576 -- Pretrial detainee is not denied due process by jail policies disallowing contact visits and leading to random searches of cells. Dispositive inquiry is whether the challenged practice or policy constitutes punishment or is reasonably related to a legitimate government objective.
 
State v. Mason (1994), 99 Ohio App. 3d 165 -- OMVI arrestee called his father, who was an attorney, before taking test. Father was told by the police they would allow twenty minutes for him to contact local counsel for advice before administering test. Instead, police insisted test be taken immediately. Results should have been suppressed because due process was denied.
 
Atkins v. People of the State of Michigan (6th Cir. 1981), 644 F. 2d 543, 549-550 -- Revocation of bail without reason is a violation of due process.

Prosecution and Punishment

Alliance v. Carbone, 181 Ohio App. 3d 500, 2009-Ohio-1197 – Cop looking to make arrests under an ordinance making it disorderly conduct to loiter near a toilet building responded to the defendant flashing his brake lights, followed him into a park restroom, arranged a liaison at the defendant‘s place of business, then placed him under arrest. Officer was mindful the park had a four star rating on "cruisingforsex.com." The ordinance simply states "No person shall loiter in or near toilet buildings." This is unconstitutionally vague both on its face and as applied to the defendant. It permits the police to make an arrest before any crime has occurred or is about to occur. The ordinance is also overly broad.
 
Toledo v. Thompson-Bean, 173 Ohio App. 3d 566, 2007-Ohio-4898 – Mother exploded during a meeting at her daughters‘ school and was convicted under an ordinance proscribing disturbing, disrupting or interfering with school activity. Void for vagueness challenge deflected by construing the ordinance to require substantial disruption and willful (purposeful) action by the accused. Also see Euclid v. Moore (Dec. 9, 1999), Cuyahoga App. No. 75143.
 
In re C.P., No. 2012-Ohio-1446, syllabus -- "To the extent that it imposes automatic, lifelong registration and notification requirements on juvenile sex offenders tried within the juvenile system, R.C. 2152.86 violates the constitutional prohibition against cruel and unusual punishment contained in the Eighth Amendment to the United States Constitution and the Ohio Constitution, Article I, Section 9, and the Due Process Clause of the Fourteenth Amendment to the United States Constitution and the Ohio Constitution, Article I, Section 16."
 
State v. Cornwell, 149 Ohio App. 3d 212, 2002-Ohio-5178 -- Youngstown ordinance concerning loud music in a vehicle held not to be unconstitutionally vague, overbroad or selectively applied. See dissent. Also see State v. Adams, Mahoning App. Nos. 02 CA 171, 194, 201, 202, 203, 204, 205, 2004-Ohio-3199 (rejecting additional challenges to the Youngstown ordinance); State v. Newsome, Montgomery App. No. 19503. 2003-Ohio-2399; Columbus v. Kendall, 154 Ohio App. 3d 639, 2003-Ohio-5207 (backyard water aerobics class).
 
State v. Williams, 148 Ohio App. 3d 473, 2002-Ohio-3777 -- R.C. 2923.42, proscribing participation in a criminal gang, survives void for vagueness and overbreadth attacks. Also see State v. Rushton, 151 Ohio App. 3d 654, 2003-Ohio-692.
 
State v. Smith (2000), 139 Ohio App. 3d 398, 403 -- The RICO statute imposes strict liability, apart form whatever culpable mental state must be proven for predicate offenses. A statute may provide strict liability consistent with due process if it is a regulatory measure in the interest of public safety.
 
North Carolina v. Pearce (1969), 395 U.S. 711 -- While there is no constitutional bar to imposing a greater sentence upon reconviction following a successful appeal or collateral attack, due process requires that vindictiveness play no part in sentencing. The record must affirmatively set forth what conduct of the defendant since the time of the original sentence justifies the increased sentence.
 
Blackledge v. Perry (1974), 417 U.S. 21 -- Under North Carolina law, appeal of conviction in district court leads to a trial de novo in superior court. When the defendant elected to do so, he was indicted on a more serious charge based on the same conduct. This was held to be a violation of due process. Appeal procedure corresponds to appeal of convictions in mayor's courts in Ohio.
 
Tumey v. Ohio (1927), 273 U.S. 510 -- It is a denial of due process for a mayor to hear cases brought before a mayor's court when he has a direct financial interest in the outcome of the case. Compensation of mayor was tied to revenues which would be generated only if there was a conviction. Also see State, ex rel. Brockman, v. Proctor (1973), 35 Ohio St. 2d 79.
 
Covington v. Lyle (1982), 69 Ohio St. 2d 659 -- No due process violation where the mayor's powers are diluted under the "statutory form" of municipal government. Syllabus: "The mayor of a village, which is organized under R.C. Title 7, may try and decide a contested misdemeanor case without violating the constitutional right of the defendant to due process of law. (State, ex rel. Brockman, v. Proctor, 35 Ohio St. 2d 79, distinguished.)
 
State v. Marbury (1995), 104 Ohio App. 3d 179 -- Due process violation found in ordering restitution based on estimate of loss proffered by the prosecutor, without documentary evidence from the victim as to the actual amount of loss. Instead of remanding case for a further hearing, court limits award to the proven amount of loss of $310, instead of the $12,000 previously ordered.
 
State v. Ward (1993), 92 Ohio App. 3d 631 -- Providing an enhanced penalty for drug sales within 1000 feet of a schoolyard does not violate due process or equal protection.
 
Akron v. Rasdan (1995), 105 Ohio App. 3d 164 -- Akron ordinance proscribing carrying any knife with a blade more than two and a half inches long found to violate substantive due process by proscribing an unreasonable amount of innocent activity. Compare Rocky River v. Saleh (2000), 139 Ohio App. 3d 313, 322-323 upholding an ordinance which provided an exception for individuals "engaged in lawful business or pursuit justifying possession of such weapon."
 
In re Spagnoletti (1997), 122 Ohio App. 3d 3 683 -- Municipal curfew ordinance held to be overly broad and unconstitutional through application of the rational relationship test. Court thus avoids need to determine whether freedom of movement id a fundamental right of a minor.
 
State v. Thompkins (1996), 75 Ohio St. 3d 75 -- Court rejects due process challenge to the mandatory license suspension required upon conviction of drug offenses, even if an auto has not been used in the commission of the crime, since the suspension is rationally related to goals of protecting other drivers, deterring drug use and punishing the offender.
 
Connally v. General Construction Co. (1926), 269 U.S. 385, 391 -- The void for vagueness doctrine reflects the principle that "a statute which either forbids or requires the doing of an act in terms so vague that (persons) of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law." Also see Roberts v. United States Jaycees (1984), 468 U.S. 609; Grayned v. City of Rockford (1972), 408 U.S. 104; Kolender v. Lawson (1983), 461 U.S. 352; Coates v. Cincinnati (1970), 402 U.S. 611; Papachristou v. City of Jacksonville (1972), 405 U.S. 156; Winters v. New York (1948), 333 U.S. 507; Giaccio v. Pennsylvania (1966), 382 U.S. 399.
 
City of Chicago v. Morales (1999), 527 U.S. 41 -- Gang loitering ordinance held to be unconstitutionally vague.
 
Akron v. Rowland (1993), 67 Ohio St. 3d 374 -- Akron ordinance proscribing loitering for the purpose of engaging in drug related activity held to be impermissibly vague and overbroad in violation of due process guarantees of the state and federal Constitutions. Compare Columbus City Code Sec. 2311.08. Also see Cleveland v. Stephens (1994), 93 Ohio App. 3d 827 applying Rowland to a Cleveland ordinance, previously upheld, but now found vague and overbroad; Cleveland v. Branch (2000), 110 Ohio Misc. 2d 27; State v. Bolds (1994), 96 Ohio App. 3d 483 (Rowland not applied retroactively in postconviction action brought by defendant who pleaded guilty without challenging the constitutionality of the ordinance.)
 
State v. Rosa (1998), 128 Ohio App. 3d 556, 564 -- Ordinance rendered invalid by language permitting punishment of acts not specifically listed.
 
In re Complaint Against Judge Harper (1996), 77 Ohio St. 3d 211 -- Void for vagueness complaint advanced attacking two Canons within the Code of Judicial Ethics.
 
In re Leonhardt (1993), 62 Ohio Misc. 2d 783 -- Federal and state due process guarantees bar the refiling of a charge in juvenile court which has previously been dismissed pursuant to a plea agreement.
 
State v. Keenan (1993), 66 Ohio St. 3d 402, 410-411 -- Prosecutorial misconduct is a denial of due process.
 
State v. Saunders (1994), 98 Ohio App. 3d 355 -- Trial court erroneously overruled motions for new trial or mistrial based upon prosecutorial misconduct during closing argument. At p. 358: "(W)hen the motion addresses prosecutorial misconduct, a reviewing court must undertake a due process analysis to determine whether the conduct of the prosecutor deprived the defendant of his or her due process right to a fair trial. State v. Johnston (1988), 39 Ohio St. 3d 48, 60..."
 
Parke v. Raley (1992), 506 U.S. 20 -- In the context of providing increased sentences for recidivists, it is not a violation of due process to place the burden on the defendant of showing a prior conviction was constitutionally invalid.

Trial Procedure

State v. Ludt, 180 Ohio App. 3d 672, 2009-Ohio-416 – Defendant greeted repo men at the door with a gun in his hand. Case was taken under advisement after a bench trial. Defendant posted signs in his yard which the judge saw. At a status conference the judge said he interpreted these as a dare he find the defendant guilty, then announced that was his verdict. But the verdict was not journalized until two months later, at which time the judge also recused himself. While the court of appeals may not pass on matters of disqualification, it may consider whether there was a denial of due process. After discussing the records and detailing possible defenses to a charge of aggravated menacing, the court finds a denial of due process.
 
State v. Majid, 182 Ohio App. 3d 730, 2009-Ohio-3075 – Plain error for judge not to appropriately respond to sleeping jurors in a capital murder trial.. At one point she said, "I saw it. So what. Let him sleep. You guys picked this jury, I didn‘t." Majority finds this a denial of due process. Dissent suggests the defendant didn‘t object because of a desire to keep the juror.
 
State v. Litreal, 170 Ohio App. 3d 670, 2006-Ohio-5416 -- It was a denial of due process for the magistrate to find the defendant guilty of speeding following a Rule 29 motion without allowing the opportunity to present evidence. Plain error reversal because of technical issues.
 
In re C.S., 115 Ohio St. 3d 267, 2007-Ohio-4919 -- A delinquent's right to counsel flows from the Due Process Clause of the Sixth Amendment, not the Sixth, because juvenile proceedings are deemed civil in nature. The right to counsel may be waived, but only if the juvenile has first been "counseled" in this regard by a parent, custodian or guardian, or has consulted with an attorney.
 
State v. Lane (1979), 60 Ohio St. 2d 112 -- A trial conducted within the walls of a prison is a denial of due process.
 
Holbrook v. Flynn (1986), 475 U.S. 560 -- Presence of state troopers in courtroom to provide added security was not a denial of due process.
 
Cleveland v. Alton (1997), 118 Ohio App. 3d 642 -- Due process violation found where judge refused to allow testimony by the defendant and other defense witnesses, then summarily found him guilty.
 
State v. Kish (1981), 4 Ohio App. 3d 252 -- Headnote: "The general rule is that the court's commitment of a witness to jail during the trial and in the presence of the jury constitutes reversible error, as an encroachment upon the right of the jury freely to consider a witness' testimony, uninfluenced by the court's opinion as to the credibility of the witness or the weight of the testimony."
 
State v. Gordon (March 7, 1995), Franklin Co. App. No. 89AP-279, unreported (1995 Opinions 810) -- Even though the efforts of defense counsel may have taxed the patience of the court, repeated intervention from the bench denied the defendant due process. Court interposed frequent objections, imposed time restrictions on cross-examination, and frequently expressed impatience and agitation with what he perceived as the unacceptably slow pace of proceedings and the conduct of defense counsel.
 
State v. Summers (1981), 3 Ohio App. 3d 234 -- Issue was whether no contest plea was taken in accordance with Crim. R. 11. Stenographic notes had been lost and discussion of consequences is intertwined with discussion of defendant's due process claim.
 
State v. Smith (1993), 87 Ohio App. 3d 480 -- Failure to include a copy of written instructions, which were supposedly given to the jury but were not read aloud at the end of the trial, was a violation of due process in that the defendant was foreclosed from appellate review.
 
State v. Aller (1992), 82 Ohio App. 3d 9 -- Juvenile was charged with being delinquent based on consumption of alcohol. Upon failure to prove consumption instead of mere proximity, juvenile was found unruly on amended complaint. Amendment held to be a violation of due process.

Evidentiary Matters

State v. Swann, 119 Ohio St. 3d 552, 2008-Ohio-4837 – Trial court refused to allow testimony by four witnesses that another person had claimed responsibility for the shooting the defendant was charged with. At issue on appeal was whether the corroboration requirement of Evidence Rule 804(B)(3), concerning declarations against penal interest, deprives defendant of the constitutional right to present a complete defense, applying Holmes v. South Carolina (2006), 547 U.S. 319. Syllabus: "The corroboration requirement of Evid.R. 804(B)(3) rationally serves a legitimate interest in the admission of trustworthy evidence, and therefore exclusion of a criminal defendant‘s proffered evidence for lack of corroboration does not deprive a defendant of the right to present a complete defense." Reverses State v. Swann, 171 Ohio App. 3d 304, 2007-Ohio-2010, but remanded for determination whether there was sufficient corroboration for admission of the proffered statements.
 
State v. Rivas, 121 Ohio St. 3d 469, 2009-Ohio-1354 – Syllabus: "Pursuant to a Crim. R. 16(B)(1)(c) discovery request, when a prosecutor has provided a written transcript that purports to accurately reflect data stored on a computer hard drive, a court may not order an examination of the computer hard drive unless the defense makes a prima facie showing that the state has provided false, incomplete, adulterated, or spoliated evidence." Reversed: State v. Rivas, 172 Ohio App. 3d 473, 2007-Ohio-3593. Defense wanted a mirror image of a hard drive also containing information pertaining to other investigations. Claim seems to have been that rebooting computer might affect files.
 
Holmes v. North Carolina, 547 U.S. ___, 126 S.Ct. 1727 -- South Carolina held defendant could not introduce evidence another might be guilty based on the strength of the state's forensic evidence. A state rule of evidence excluding defense evidence based on the strength of the state's case is arbitrary and improperly denies the defendant's constitutional right to have a meaningful opportunity to present a complete defense. This right is guaranteed either directly under the Due Process Clause of the Fourteenth Amendment or the Confrontation and Compulsory Process Clauses of the Sixth. Compare State v. Craig, 110 Ohio St. 3d 306, 2006-Ohio-4571, ¶63-72 involving Ohio's rape shield law.
 
State v. Benton (2000), 136 Ohio App. 3d 801 -- Knowing that the Highway Patrol video and audiotapes all stops, defense sought tapes through discovery. Tapes are retained for a while, but eventually are recycled, and apparently had been reused by the time of trial. Failure to preserve tapes in light of the discovery motion required dismissal. Arizona v. Youngblood (1988), 486 U.S. 51, California v. Trombetta (1984), 467 U.S. 479 and Columbus v. Forest (1987), 36 Ohio App. 3d 169, followed. Also see State v. Williams, 126 Ohio Misc. 2d 47, 2003-Ohio-7294.
 
State v. Wolf, 154 Ohio App. 3d 293, 2003-Ohio-4885 -- Accidental destruction of a tape from a cruiser mounted camera was not a violation of due process. After the first pretrial it was ascertained that after the tape had been shown to other officers it was rewound to the beginning and placed back in the cruiser.
 
Rogers v. Tennessee (2001), 121 S.Ct. 1693 -- The Ex Post Facto Clause applies to acts of the legislature. The principle may not be extended as a matter of due process to judicial abrogation of the common law year and day rule, previously applied to bar prosecution in Tennessee for murder if the victim dies more than a year and a day after the defendant's acts, when the judicial decision was not the sort of unfair and arbitrary action against which the Due Process Clause aims to protect.
 
Brady v. Maryland (1962), 373 U.S. 83, -- As a part of the defendant's due process right to a fair trial, the prosecution is under an obligation to disclose to the defendant any favorable evidence that is material to either guilt or punishment. For cases on remedies for Brady violations, see United States v. Agurs (1976), 427 U.S. 97; Wagster v. Overberg (6th Cir. 1977), 560 F. 2d 735.
 
Weatherford v. Bursey (1977), 429 U.S. 545 -- The Due Process Clause does not require the prosecution to reveal before trial the names of undercover agents or others who will testify unfavorably to the defense. There is no constitutional right to discovery.
 
Kines v. Butterworth (1st Cir. 1981), 669 F. 2d 6 -- While potential witnesses are not required to talk to either the defense or the prosecution before trial if they do not wish to do so, absent clear and compelling reasons, it is a denial of due process for the prosecution to direct witnesses not to speak to the defense.
 
Doyle v. Ohio (1976), 426 U.S. 610 -- Use of post arrest silence for impeachment purposes violates the Due Process Clause of the Fourteenth Amendment.
 
California v. Trombetta (1984), 467 U.S. 479 -- The Due Process Clause of the Fourteenth Amendment does not require the state to preserve breath samples for possible defense testing as a condition for the admission of breath test results at trial. Also see State v. Barzacchini (1994), 96 Ohio App. 3d 440, 455-457.
 
Arizona v. Youngbood (1988), 488 U.S. 51 -- To establish a denial of due process where the police have failed to preserve potentially useful evidence, the defendant must establish that the police acted in bad faith. Also see State v. Groce (1991), 72 Ohio App. 3d 399, 401-402; State v. Delgros (1995), 104 Ohio App. 3d 531.
 
State v. Sampson (1987), 36 Ohio App. 3d 166 -- No due process violation found in destruction of defendant's car before trial where: (1) He could have obtained its release during a six week period. (2) The police acted in good faith pursuant to routine procedures. (3) The vehicle had no apparent exculpatory value. (4) The defendant had reasonable alternate methods of investigating and preparing his case.
 
Columbus v. Forrest (1987), 36 Ohio App. 3d 169 -- Due process requires the state to respond in good faith to requests to preserve evidence. The constitutional right to have evidence preserved is limited to that which is apparently exculpatory and unique. When the state has failed to preserve evidence, it must demonstrate that it was not exculpatory. If it fails to do so, the defense must demonstrate that the same evidence cannot be obtained from other sources.
 
State v. Jordan (1992), 73 Ohio App. 3d 524 -- Due process violation found where officers discarded bag originally holding rocks of cocaine and repackaged rocks in their own zip-lock bags when were then referred to in the police report and formed the basis of a criminal tools charge.
 
State v. Sisler (1995), 114 Ohio App. 3d 337 -- Blood sample was withdrawn forcibly while defendant was handcuffed to a hospital bed. Initial statement that he did not care what the f___ they did was enough for consent, which was never withdrawn. But the use of force was beyond what was necessary for effective law enforcement, and amounted to a denial of due process.
 
Montana v. Egelehoff (1996), 518 U.S. 37 -- Narrowly divided court finds Montana statute preventing consideration of intoxication does not violate due process.

Other Issues

Swarthout v. Cooke (2011), 131 S.Ct. 859 – Two prisoners contended that the some evidence standard applied to review of some parole decisions did not satisfy due process. There is no right to conditional release under federal law. Assuming there was a liberty interest at stake under California law, the Due Process Clause does require fair procedures for its vindication. But the Due Process Clause does not require a legally correct decision by California courts weighing the claims of state inmates.
 
Skinner v. Switzer (2011), 131 S.Ct. 1289 – 1983 action lies to have DNA testing performed. Death row inmate was twice unsuccessful when he sought to have tests performed on objects not previously tested pursuant to a Texas statute. Court reasons that a 1983 suit here does not directly seek review of the decision of a state court. Instead the inmate is mounting a due process challenge against the Texas statute. Brady claims distinguished on the basis that there a favorable judgment implies the invalidity of a conviction or sentence. But the results of DNA testing may be incriminating or inconclusive as well as exculpatory.
 
Bunkley v. Florida (2003), 123 S.Ct. 2020 -- Florida has had a common pocketknife exception to the definition of deadly weapons since 1901, but it was not until 1997 that it was judicially interpreted to exclude blades under four inches. The defendant was convicted of armed burglary in 1987 based on his possession of a pocket knife with a blade of three inches or less. Applying Fiore v. White (2001), 531 U.S. 225, remanded for determination whether knife did not qualify as a deadly weapon under state law at the time of conviction.
 
Connecticut Department of Public Safety v. Doe (2003), 123 S.Ct. 1160, 1165 -- "Plaintiffs who assert a right to a hearing under the Due Process Clause must show that under the facts they seek to establish in that hearing are relevant under the statutory scheme."
 
State v. Burnett 93 Ohio St. 3d 419, 2001-Ohio-1581 -- Cincinnati drug-exclusion zone ordinance does not violate the First Amendment right to association. It does violate the right to travel, as guaranteed by the Fourteenth Amendment, and the home rule authority conferred by Sec. 3, Art. XVIII of the Ohio Constitution. Compare Johnson v. City of Cincinnati (2000), 119 F.Supp. 2d 735 holding the ordinance violates the First Amendment and Double Jeopardy.
 
State v. Hartikainen (2000), 137 Ohio App. 3d 421 -- The state, not being a legal person, has no standing to assert due process or equal protection against itself.
 
Troxel v. Granville (2000), 530 U.S. 57 -- The Due Process Clause of the Fourteenth Amendment has a substantive component providing heightened protection against government interference with fundamental rights and liberties, including the fundamental rights of parents to make decisions concerning their children. Washington statute allowing anyone to petition for visitation rights with children struck down. Also see Santosky v. Kramer (1982), 455 U.S. 745; Washington v. Glucksberg (1997), 521 U.S. 702, 719; Reno v. Flores (1993), 507 U.S. 292, 301-302; Meyer v. Nebraska (1923), 262 U.S. 390, 399, 401; Pierce v. Society of Sisters (1925), 268 U.S. 510, 534-535; Stanley v. Illinois (1972), 405 U.S. 645, 651; Wisconsin v. Yoder (1972), 406 U.S. 205, 232; Quilloin v. Walcott (1978), 434 U.S. 246, 255; Parham v. J.R. (1979), 442 U.S. 584, 602; In re Davis, Mahoning App. No. 02-CA-95, 2003-Ohio-809.
 
State v. Hendrix (2001), 144 Ohio App. 3d 328 -- Though the court is somewhat sympathetic, constitutional attack on loud car stereo ordinance fails. Absent a First Amendment claim (reference should be to fundamental rights), defendant lacked standing to mount a facial challenge. Nor was the ordinance shown to be unconstitutionally vague as applied to the facts of the case.
 
State v. Ferraiolo (2000), 140 Ohio App. 3d 585 -- Barking dog ordinance found unconstitutionally vague. Terms "unreasonably loud sound" and "disturb" are too subjective. Besides, dogs bark. Also see Columbus v. Becher (1961), 115 Ohio App. 239. Compare Lebanon v. Wergowske (1991), 70 Ohio App. 3d 251.
 
State v. Muncie 91 Ohio St. 3d 440, 2001-Ohio-93 -- When a trial court orders an incompetent defendant to be forcibly medicated with psychotropic drugs in an effort to restore the defendant to competency, that order is final and appealable. State v. Hunt (1976), 47 Ohio St. 3d 170, concerning orders relating to place of commitment, distinguished on the basis that forced medication represents a severe interference with interests protected by the Due Process Clause.
 
United States v. James Daniel Good Real Property (1993), 510 U.S. 43 -- When the government seizes property not to preserve evidence of criminal wrongdoing, but in order to assert ownership and control, proceedings must comply with the Due Process Clause of the Fifth Amendment. Except in extraordinary circumstances, property may not be seized in forfeiture proceedings without first giving notice to the owner and affording him a reasonable opportunity to be heard.
 
Cuyahoga Falls v. Coup-Peterson (1997), 124 Ohio App. 3d 716 -- Court costs may only be assessed as a part of a sentence. Where charge was dismissed at the request of the prosecutor, ordering the defendant to pay $50 in court costs was a deprivation of property without due process, in violation of the Fifth Amendment.
 
State v. Mason 1998), 82 Ohio St. 3d 144 -- Syllabus: "Due process, as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Section 16, Article I of the Ohio Constitution, requires than an indigent criminal defendant be provided funds to obtain expert assistance at state expense only where the trial court finds, in the exercise of sound discretion, that the defendant has made a particularized showing (1) of a reasonable probability that the requested expert would aid in his defense, and (2) that denial of the requested expert assistance would result in an unfair trial. (State v. Broom [1988], 40 Ohio St. 3d 2777...approved and followed.)"
 
In re Shaeffer Children (1993), 85 Ohio App. 3d 683 -- Where a parent's mental health is a the predominant issue in permanent commitment proceedings, an indigent parent is entitled to the assistance of a court compensated psychiatric expert under the due process provisions of the state and federal constitutions.
 
Pounders v. Watson (1997), 521 U.S. 982 -- Court finds no due process violation in summarily finding attorney in contempt for asking a question on a subject held off limits when referred to by other attorneys involved in the case.
 
State ex rel Jackson v. McFaul (1995), 73 Ohio St. 3d 185, 187 -- "Due process rights are involved in parole revocation, and there is no appeal from an APA decision. Therefore, while the most common situation in which the writ of habeas corpus will issue is when the petition successfully attacks the jurisdiction of the sentencing court, see R.C. 2725.05, habeas corpus will also lie to challenge a decision of the APA in extraordinary cases involving parole revocation."
 

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Published by David L. Strait
 
Copyright © Franklin County Public Defender and David L. Strait, 2015
 
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