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Criminal Law Casebook
Franklin County Criminal Law Casebook
Reproduced with permission from:
Timothy E. Pierce
Franklin County Public Defender Office
Criminal Rule 19 -- Magistrates. (In no instance may a magistrate make a determination of guilt or innocence or recommend or impose a sentence.)
Civil Rule 53 -- Magistrates.
Juvenile Rule 40 -- Magistrates.
Traffic Rule 14 -- Magistrates. (Defendant may insist on appearing before a judge.)
-- Powers and duties of juvenile court referees
Objections and Appellate Review
Place v. Seibert
, 173 Ohio App. 3d 653,
– Magistrate recused herself before hearings were completed. Judge took over instead of beginning anew. No agreement of the parties was sought. The judge may have been listening to the proceedings under way and indicated he would review a recording of prior testimony. Both parties appealed. Reversed.
State v. Gilreath
, 174 Ohio App. 3d 327,
– Defendant was convicted of disorderly conduct for flipping off a seven year old on a swing set. Magistrate took the matter under advisement, found the defendant guilty and pronounced the recommended sentence in his decision. This violated the defendant‘s right to be present at every stage of proceedings. Defendant‘s claim he was denied opportunity to file timely objections because he was not served with a copy of the decision within fourteen days is brushed off. Court presumes the regularity of proceedings and states the remedy would have been a motion to vacate conviction and sentence pursuant to Crim. R. 57(B) and Civ. R. 60(B)(1).
Parma v. Blatnica
, Cuyahoga App. No. 84661,
-- Magistrate signed the line allocated for the judge's signature adopting the magistrate's action. Appeal dismissed for lack of a final appealable order.
In re Kelley
, Ashtabula App. No. 2002-A-0088,
-- Eleventh Circuit sua sponte reverses in a permanent commitment case where the magistrate failed to fully and specifically discuss the
factors in determining whether termination of parental rights was in the best interest of the children. Trial judge deemed to have abused his discretion in adopting the magistrates decision. Also see
In re Smith
, Ashtabula App. No. 2002-A-0098,
State v. Reddick
(1996), 113 Ohio App. 3d 788 -- Juvenile entered admission to unauthorized use of a motor vehicle and assault before a referee. Before the hearing concluded, the prosecutor announced an intention to seek bindover. Resulting trial as an adult violated double jeopardy. Jeopardy attached when hearing before the referee commenced. Bindover must be sought prior to adjudicatory hearing.
State v. Chagaris
(1995), 107 Ohio App. 3d 551, 556 -- "Crim. R. 19 places explicit limitations on the magistrate's authority, and it does not authorize a magistrate to determine dispositive matters. Because a motion to suppress evidence is a dispositive motion, it is not one of the Crim. R. 47 motions over which a Crim. R. 19 magistrate is entitled to preside." Also see
State v. Smith
(1996), 112 Ohio App. 3d 413. (Error not harmless.)
State v. Edington
(1976), 52 Ohio App. 2d 312 -- A referee may not hear cases involving criminal charges against adults. See Juvenile Rule 1(C)(2) and
Boston Heights v. Weikle
(1991), 81 Ohio App. 3d 165 -- When the defendant arrived for trial on a speeding ticket he learned case was to be tried to a referee and refused to agree to this being done. Time was not tolled for the period leading up to a trial before a judge.
State v. Piersall
(1984), 20 Ohio App. 3d 110 -- A referee may not usurp full judicial powers and does not have legal authority to pass sentence.
In re Williams
(1986), 31 Ohio App. 3d 241 -- When a juvenile court referee improperly intervenes to assist the prosecutor in proving the enhanced penalty element of a theft offense, then declares a mistrial based on that intervention, the juvenile may be retried for theft, but not on the enhancement element.
Allstate Insurance Co. v. Cook
(6th Cir. 1963), 324 F. 2d 752, 755 -- Federal court not receptive to claim that juvenile judgment was a nullity as the report and recommendation of the referee had not been adopted by a judge until after insurance company commenced a lawsuit in which the judgment was a crucial element.
In re Bradford
(1986), 30 Ohio App. 3d 87 -- Headnote: "Although reports of referees may frequently be adopted by the trial court, Juv. R. 40 does not contemplate that the trial court rubber stamp all reports by referees."
In re Hua
(1980), 62 Ohio St. 2d 227 -- A habeas action may be referred to a referee pursuant to Civil Rule 53(C).
State v. Johnson
(1987), 34 Ohio App. 3d 373 -- Authority of referee to have someone arrested for contempt depends on terms of order of reference. It this includes the power to regulate all proceedings as if they were before a judge, referee may do so. Also see
Wolff v. Kreiger
(1976), 48 Ohio App. 2d 153 -- Habeas lies to free party to a domestic action jailed for contempt based on report and recommendation of a referee which had not been accepted by the court.
In re Disqualification of Crawford
(1996), 81 Ohio St. 3d 1204 -- All judges of the Franklin County Court of Common Pleas disqualified from hearing postconviction case where former prosecutor, now employed by the court as a magistrate, will testify.
Cincinnati Bar Association v. Worth
(1998), 82 Ohio St. 3d 305 -- Public reprimand to discharged probate magistrate who continued to provide free legal services to longtime clients.
In re Leonhardt
(1993), 62 Ohio Misc. 2d 783 -- Opinion is largely a diatribe concerning referee and judicial assignment procedures and other irregularities in the Cuyahoga County Juvenile Court. A victim who was not satisfied by the amount of restitution ordered complained to the presiding judge, ex parte. The judge directed the prosecutor to refile a charge which had previously been dismissed as a part of a plea bargain. At p. 791: "In short, the prosecution advances the notion that deceit, treachery and chicanery are the appropriate standards for juvenile proceedings and presumably standards of conduct worthy or emulation for children as well as attorneys."
State ex rel Schmidt v. Schmidt
, 186 Ohio App. 3d 307,
– Magistrate found father in contempt for not paying support. Magistrate’s decision carried one date, but was not journalized until 20 days later. Trial court denied motion to file objections defendant believed were untimely. In fact they were timely, as a court speaks through its journal and the objections were timely, and in fact premature based on the date the magistrate’s decision was journalized.
State v. Pennington
, 187 Ohio App. 3d 526,
– In Dayton Municipal Court the defendant appeared before a magistrate, pled to theft, and was placed on probation. There was no entry signed by a judge adopting the magistrate’s recommendation. When the defendant was later alleged to be in violation of his probation he interposed this irregularity hoping to avoid serving the suspended sentence. The appellate court accepts his basic argument, but then turns it around to find this left the defendant without a final order from which to take an appeal. In addition, the denial of a motion to dismiss revocation proceedings was not a final order. It appears the prosecutor sought to remedy the situation after the defendant’s brief had been filed by having the administrative judge sign an order adopting all the magistrates’ recommendation from the week the defendant appeared in court. The order signed did not meet the requisites of a judgment entry set forth in Crim. R. 32C). Nor did it meet the requirement of individualized consideration by the trial court judge assigned to each case.
Dayton Police Department v. Byrd
, 189 Ohio App. 3d 461,
– Defendant was charged with trafficking in marijuana after 286 grams was found in the console of his eight year old Pontiac. After he pled to a misdemeanor attempt the police department sought, but was denied forfeiture of the vehicle and $231 in cash. Magistrate denied motion. Department did not provide a written transcript in support of objections as required by Civil Rule 53(D)(3)(b)(iii). (1) Fn. 1 indicates the police department was not a proper party to seek a forfeiture order. (2) There was nothing in the record suggesting the cash was proceeds of criminal activity. (3) The magistrate mistakenly found a misdemeanor conviction does not allow forfeiture, but absent a transcript it can not be concluded whether this was the basis of her decision. The decision might also have rested on a conclusion that the vehicle was not an instrumentality of the crime or that forfeiture would have been disproportionate in the circumstances.
In re A.W.
, Franklin App. Nos. 08AP-442,
– When reviewing objections to a magistrate‘s decision the court undertakes de novo review of the record without the deference to the magistrate‘s findings an appellate court would owe to a jury verdict or a trial judge‘s finding of guilt.
In re P.M.
, 179 Ohio App. 3d 413,
– Hearings were scheduled to determine support for a dependent child. Father missed some hearings and complained in objections of counsel‘s efforts. Failure to provide transcript did not justify overruling objections since they turned on complaints that would not be reflected by a transcript.
In re Z.A.P.
, 177 Ohio App. 3d 217,
, ¶22 -- Failure to file objections in a juvenile custody case limits review to plain error. Because no transcript was filed in the trial court, the opinion states that a reviewing court may not now review the transcript accompanying the appeal. This appears to be a misreading of Juvenile Rule 40.
Gordon v. Gordon
, 98 Ohio St. 3d 334,
-- Syllabus: "Prematurely filed objections to a magistrate's decision are not untimely for purposes of Civ.R. 53(E)(3)." Since the objections were responsive to the actual content of the decision, there was no need to refile.
In re Pederson
, Franklin App. No.
-- A court hearing objections may determine that there is insufficient evidence in the record to properly rule and remand to the magistrate for additional testimony to be taken.
In re L.R.T.
, 165 Ohio App. 3d 77,
-- Magistrate granted agency's motion for permanent custody. Judge sustained mother's objections and granted legal custody to a family member. This was improper as the family member had not filed a motion seeing custody. It was also improper for the judge to sustain objections without a complete review of the transcript.
In re D.P.
, Franklin App. Nos. 06AP-179, 180, 181,
-- Upon overruling objections a judge may not merely adopt and approve the magistrate's decision. It must enter its own separate judgment.
State v. Murray
, Montgomery App. No. 2002-CA-10,
-- Magistrate overruled motion to suppress evidence. Defendant's failure to file objections precludes assigning as error the court's ruling. Nonetheless, the court reviews the record for plain error. Also see
In re Harper
, Montgomery App. No. 19948 where the court both considers plain error and cites the trial court's obligation under Juv. R. 40(E)(4)(a) to ensure there is "no error of law or other defect upon the face of the magistrate's decision." Compare
In re Rachel K. and Glorietta K
, Lucas App. No. L-03-1061,
where failure to provide a transcript and specific objections in the trial court forestalls appellate review.
In re Etter
(1998), 134 Ohio App. 3d 484 -- Error leading to reversal had not been the subject of objections. Though the plain error doctrine is generally not favored in civil cases, it may be applied in cases involving error which seriously affect the basic fairness, integrity of the judicial process.
Bach v. Crawford
, Montgomery App. No. 19531,
-- Substantial compliance found where objections were hand delivered to the judge and forwarded to opposing counsel on the 14th day, but were not filed until several days later.
McCowan v. McCowan
(2001), 145 Ohio App. 3d 170 -- If objections to a magistrate's decision are pending there is no final appealable order.
State v. Azzouz
, Greene App. No. 2003-CA-17,
-- Defendant did not learn magistrate had overruled a motion to suppress until the fourteen days for filing objections had passed. Trial court abused its discretion by not hearing objections.
Dayton v. Murph
, Montgomery App. No. 19612,
-- Pro se traffic defendant ordered transcript, but objections were overruled for failure to provide a transcript without notice to defendant how to assure one was completed. Reversed.
Swisher v. Brady
(1978), 438 U.S. 204 -- Special masters in Maryland had powers comparable to juvenile court magistrates in Ohio. Issue was whether double jeopardy barred prosecutor taking exceptions to a master's proposed findings before a judge. Held that it did not, provided the judge was limited to a review of the record made before the master, with additional material being considered only with the consent of the defendant.
In the Matter of Kettapong Phommarath
(November 14, 1995), Franklin Co. App. No. 95APF05-539, unreported (1995 Opinions 4686) -- Double jeopardy violation found where judge signed an entry adopting the report and recommendations of the referee that the defendant be found not guilty before the period for objections had expired, then later sustained subsequently filed objections and found the defendant guilty.
In re Riffle
(September 2, 1982), Franklin Co. App. Nos. 82AP-285 through 287, unreported (1982 Opinions 2788) -- A hearing on objections is in the nature of a trial de novo and not appellate review. The court is to give full consideration to the factual and legal issues presented and is not to merely consider whether the referee abused his discretion or committed error.
In re Wright
(1993), 88 Ohio App. 3d 539 -- Magistrates report must be served upon the parties so that they have the opportunity to raise objections. Also see
In re Weimer
(1984), 19 Ohio App. 3d 130.
In re Young
(December 21, 1999), Franklin Co. App. No. 99AP-489 -- Failure to file objections, or to explain why objections were not filed, precludes raising issues decided in a magistrate's decision.
In re Stall
(1973), 36 Ohio St. 2d 139 --
does not require a hearing before a judge if there have been objections to the report and recommendations of the referee.
In re Brown
(1994), 96 Ohio App. 3d 306 -- Prejudicial error for court to issue dispositional order eleven months after hearing before a referee where no report and recommendation was furnished by the referee and no opportunity to object was provided.
Baire v. Baire
(1995), 102 Ohio App. 3d 50 -- Civil Rule 53(E)(2) does not obligate the court to conduct an evidentiary hearing whenever there have been objections. Complaining party must demonstrate an abuse of discretion when court has refused an evidentiary hearing. Also see
In re Zindle
(1995), 107 Ohio App. 3d 342, 346.
In re Zakov
(1995), 107 Ohio App. 3d 716 -- An entry merely incorporating the recommendations of a referee's report does not constitute a final appealable order. Statement that restitution is to be determined in the future renders the entry interlocutory.
State v. Crandall
(1983), 9 Ohio App. 3d 291 -- A defendant has fourteen days to file objections to the report and recommendations of a referee in a traffic case.
Timothy E. Pierce
Copyright © Franklin County Public Defender and Timothy E. Pierce, 2015
Contents may not be duplicated without express permission.