Rayshawn Johnson v. State of Ohio, Case no. 2012-0405
Hamilton County Court of Common Pleas

Issa Kona v. State of Ohio, Case no. 2014-0733
Eighth District Court of Appeals (Cuyahoga County)

Antonia Earley v. State of Ohio, Case nos. 2014-1278 and 2014-1454
Eighth District Court of Appeals (Cuyahoga County)

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Death Penalty: Review of New Penalty Phase of Trial

Rayshawn Johnson v. State of Ohio, Case no. 2012-0405
Hamilton County Court of Common Pleas

Rayshawn Johnson of Cincinnati was sentenced to death a second time in the redo of the penalty phase of his 1998 murder trial. Johnson has appealed to the Ohio Supreme Court asking that his death sentence be set aside and a third sentencing-phase hearing be ordered in his case.

Case History
Johnson was convicted of murdering Shanon Marks in her Cincinnati home in November 1997. He was also found guilty of aggravated burglary, aggravated robbery, robbery, and kidnapping, and the court imposed the death penalty. The Ohio Supreme Court affirmed his convictions and death sentence in March 2000.

In a federal appeal, however, the district court ruled in 2006 that Johnson’s attorneys were ineffective during the penalty phase of his trial and directed the State of Ohio to give Johnson a new mitigation hearing. In December 2011, the jury in the Hamilton County Common Pleas Court recommended that Johnson receive the death penalty for the murder, and the court later sentenced him to death. Johnson filed an appeal directly with the Ohio Supreme Court.

Johnson’s Claims
Attorneys for Johnson present seven main arguments in the brief to the court. Among the assertions:

• They contend that two potential jurors who were African-American were excluded from the jury by the prosecution based on their race. While the state claims the potential jurors were removed because they expressed uncertainty about the death penalty, the lawyers for Johnson, who is African-American, argue these two jurors had the same views about the death penalty as a Caucasian woman who was selected for the jury. They maintain that the prosecutor’s reason for removing these jurors was a pretext to hide a racially-motivated reason and violated Johnson’s equal-protection rights. In addition, they assert that the trial court didn’t properly investigate the prosecution’s exclusion of these jurors.
• They then challenge the effectiveness of Johnson’s attorneys for not explaining to the court during jury selection why they thought the removal of the two jurors was improperly based on race. By failing to review the jury questionnaires, defense counsel acted incompetently, his appellate attorneys contend.
• Johnson’s attorneys also take issue with the admission of certain evidence – photographs of Marks’ dead body at the crime scene, the 9-1-1 call from Marks’ husband, and interviews Johnson did with the media on the day of the murder – from the original trial into the new penalty-phase proceeding. They note that the guilt phase was over and that the jury was tasked only with weighing the aggravating circumstances against the mitigating factors to decide the appropriate sentence. They argue this evidence had nothing to do with the aggravating circumstances in the case, was meant to play to the jury’s emotions, and affected the jury’s decision.
• They further assert that the prosecutor committed misconduct by permitting a detective to provide different testimony than he had 14 years earlier in the original trial and by disparaging the credibility of Johnson’s grandmother on the stand. These actions were “purposeful, misleading, prejudicial, and damaging,” and denied Johnson a fair trial and due process, they maintain.

State’s Assertions
Attorneys from the Hamilton County Prosecutor’s Office make several counter-arguments:

• They assert that Johnson’s defense never mentioned the selection of the Caucasian woman as a juror as proof of the prosecution’s discriminatory intent in removing two African-American jurors during voir dire. By not raising the issue during trial, the argument is waived and can’t be made now, they maintain.
• They also counter that the Caucasian juror’s view more clearly supported the death penalty because she said she could impose a death sentence if the defendant was guilty without “a shadow of a doubt” and Johnson’s guilt had already been established and wasn’t part of the new penalty proceeding. The removed jurors expressed more uncertainty about imposing death, and the state had the right to exclude them from the penalty-phase trial, the prosecutors stress.
• They contend in the brief to the court that evidence from the trial was presented because the jury had to consider the nature and circumstances of the aggravating factors and of the offenses, which includes the “facts of the crime, the planning and cover-up, and the immediate results.” The issue contesting the presentation of the photographs was already rejected by the Ohio Supreme Court in 2000, they maintain. They argue the 9-1-1 call reflects the nature and circumstances of Johnson’s offense. And, if playing the call is viewed as an error, it was harmless to the outcome of the case, they assert. As for the media interviews, the prosecution presented case law at trial showing that such coverage can be admitted for the jury to consider as a mitigating factor.
• They also argue that the detective’s comments didn’t contradict his testimony from 14 years earlier by simply adding details he had left out then. They also state that the prosecution had the right to question the grandmother’s second-round testimony, which transformed her into a cruel, more violent family member who took care of Johnson during parts of his childhood. The prosecution’s disputed comment that the grandmother would now “say anything” to prevent a death sentence was an isolated comment made in the midst of a lengthy cross-examination that supported the comment and didn’t mislead the jury, they maintain.

- Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing Rayshawn Johnson from the Ohio Public Defender’s Office: Tyson Fleming, 614.644.9651

Representing the State of Ohio from the Hamilton County Prosecutor’s Office: Ronald Springman Jr., 513.946.3052

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Must Non-Citizens Who Enter Pretrial Diversion Programs Be Warned of Potential Immigration Consequences?

Issa Kona v. State of Ohio, Case no. 2014-0733
Eighth District Court of Appeals (Cuyahoga County)

ISSUES:

• Is the written statement of guilt made for participation in a pretrial diversion program the functional equivalent of a guilty or a no contest plea?
• Before providing a written statement of guilt for a pretrial diversion program, must a non-citizen be advised under R.C. 2943.031 of the potential immigration consequences of providing the statement?
• When a non-citizen isn’t advised of the possible immigration consequences of making the statement, has the statement been made “knowingly, voluntarily, and intelligently”?
• Does a trial court have jurisdiction to withdraw the written statement and vacate the “conviction” after a charge is dismissed?
• Based on Criminal Rule 32.1, should a trial court withdraw the non-citizen’s written statement to vacate the “conviction” for immigration reasons because a manifest injustice will otherwise occur?

BACKGROUND:
In May 2006, Issa Kona was indicted for two counts of robbery for allegedly stealing a battery charger, valued at less than $100, from a home store in Cleveland. Kona pled not guilty and, on the first day of trial, asked the court to let him enter Cuyahoga County’s pretrial diversion program, which gives offenders a chance to avoid prosecution when prosecutors believe the person is unlikely to commit another crime. The prosecutors approved the request, and the court admitted Kona into the program. As part of his application, Kona submitted a written statement that he “took a battery charger, removed it from its package, and hid it in [his] coat,” then he purchased a window and left the store where he was stopped by security guards.

After Kona completed the diversion program, the trial court dismissed his case with prejudice and ordered his record to be sealed.

According to his brief, Kona, a Palestinian citizen, has been a legal resident in the United States since 2002. He lives here with his wife and four children. After his case was dismissed, Kona applied for U.S. citizenship. The U.S. government told him he was subject to deportation because of the “admission of guilt” he provided for the diversion program.

Kona talked with attorneys and then asked the trial court in July 2008 to unseal his criminal case record so he could try to withdraw his admission of guilt and ask the court to set aside its judgment. The trial court reopened his records. But in July 2013, the court denied his motion to withdraw the “plea” and vacate the court’s judgment, and he appealed. The Eighth District Court of Appeals agreed with the trial court. Kona filed an appeal with the Ohio Supreme Court, which agreed to hear his case.

Immigrant’s Contentions
Attorneys for Kona note that the diversion program materials required Kona to give a “complete, detailed, and accurate statement admitting your involvement/guilt to the pending charges.” They argue that this admission of guilt is equivalent to a guilty or no-contest plea, and those pleas constitute a conviction under federal immigration law. They point to a section of the Immigration and Nationality Act, which states that a conviction includes the situation in which a non-citizen “has admitted sufficient facts to warrant a finding of guilt.”

When a defendant enters a guilty or no-contest plea, the court must provide the warning contained in R.C. 2943.031(A), they assert. The statute requires courts to inform defendants entering these pleas that, if they aren’t a U.S. citizen, the conviction “may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.” Kona’s attorneys maintain that neither the prosecutor’s office nor the court asked Kona whether he was a U.S. citizen or gave him this warning. Without this notification, they contend that Kona didn’t “knowingly, voluntarily, and intelligently” admit his guilt to enter the diversion program. Entering a plea knowingly, voluntarily, and intelligently summarizes a rule courts must follow when a defendant pleads guilty or no contest to a felony.

According to R.C. 2943.031, courts must set aside its judgment and allow the defendant to withdraw the guilty or no-contest plea if the court neglects to inform a non-citizen of the potential immigration concerns following a conviction. Kona’s attorneys argue the court must vacate the judgment in this case, and Kona has a right to withdraw his equivalent of a guilty plea. Another court rule for criminal cases, Crim. R. 32.1, permits courts to set aside a conviction and defendants to withdraw a guilty or no-contest plea to “correct a manifest injustice.” Kona’s possible deportation because he entered a diversion program constitutes a manifest injustice, they assert.

They also note that Cuyahoga County has since changed its diversion program paperwork to now provide a warning to non-citizens.

State’s Perspective
Attorneys from the Cuyahoga County Prosecutor’s Office respond that R.C. 2943.031 clearly doesn’t apply in this case because Kona didn’t plead guilty or no contest, the situation the statute addresses. He pled not guilty and then took steps to enter the county’s diversion program. Under Ohio’s statutes and criminal rules, Kona’s admission made in the diversion program paperwork was not a finding of guilt and didn’t subject him to a criminal sentence, they contend.

“The purpose of the written statement was not to enter a plea of guilty to any charges, rather it was a statement made outside of court in order to participate in a diversion program,” they write in the brief to the court. “Had [Kona] not completed the diversion program, he would have been entitled to maintain his innocence of the charges and go to trial upon the indictment, with the state able to use the statement as evidence against him.”

They note that Kona was indicted for robbery, which would require the state to prove at trial that Kona used force on another or inflicted, tried to inflict, or threatened to inflict physical harm on someone while committing a theft. He didn’t admit to this element of the offense in his written statement for the diversion program, they point out. In their view, Kona’s admission cannot constitute a conviction under federal law given that he didn’t admit to all the elements of a robbery offense.

When a defendant is entering a pretrial diversion program, state law and the criminal rules don’t require a guilty or no-contest plea, don’t require a court to ask about the defendant’s citizenship, and don’t mandate a warning to non-citizens, they maintain.

“[Kona’s] argument … that no R.C. 2943.031 advisement was made does not transform the statement he made into a guilty plea,” they write. “Surely that is not the intention of the federal definition – rather the definition in the federal code requires a plea and punishment or an admission of facts sufficient to allow a finding of guilt and punishment. Neither of these scenarios was met in this case. Ohio law and procedure is limited to the formal plea within a courtroom, not a written statement that is made for acceptance into a diversion program.”

Friend-of-the-Court Briefs
Amicus curiae briefs supporting Kona’s position have been submitted by the following organizations:

• American Immigration Lawyers Association, Ohio Chapter
• Concerned Ohio Immigration Attorneys
• Cuyahoga Criminal Defense Lawyers Association
• Ohio Association of Criminal Defense Lawyers

- Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing Issa Kona: Joseph Burke, 440.895.1234

Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Tracy Regas, 216.443.7800

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May Courts Impose Separate Sentences for OVI and Aggravated Vehicular Assault?

Antonia Earley v. State of Ohio, Case nos. 2014-1278 and 2014-1454
Eighth District Court of Appeals (Cuyahoga County)

ISSUES:

• When operating a motor vehicle under the influence is the underlying conduct for aggravated vehicular assault, are the two offenses allied and subject to being merged?
• Does R.C. 2929.41(B)(3), a sentencing statute, create an exception that permits a separate sentence for each offense?

BACKGROUND:
On January 3, 2013, Antonia Earley, who was intoxicated and speeding, crashed her car into a pole on a Cleveland road. Earley had her 1-year-old son in the passenger seat. He was severely injured, leaving him paralyzed.

Earley pled guilty to aggravated vehicular assault, child endangering, and operating a motor vehicle while intoxicated (OVI). The trial court sentenced her to 36 months for the vehicular assault, 36 months for child endangerment, and six months for OVI. The court imposed concurrent sentences resulting in a 3-year prison term.

Appeals
Earley appealed to the Eighth District Court of Appeals. She claimed the sentences for OVI and aggravated vehicular assault should have been merged and only one sentence issued. However, the appeals court agreed with the trial court’s decision and also notified the Ohio Supreme Court of a conflict between its ruling and opinions in three other appellate courts. In addition, Earley appealed the decision. The Supreme Court accepted Earley’s appeal and consolidated it with the certified conflict case for consideration.

Merger and Sentencing Statutes
Ohio’s merger statute, R.C. 2941.25, requires a defendant to be convicted of only one offense if the criminal conduct included two or more “allied offenses of similar import.” Yet another state law, R.C. 2929.41(B)(3), states that jail or prison terms for certain misdemeanors, such as an OVI offense, must be served consecutively to prison sentences for certain felonies, such as aggravated vehicular assault, when the trial court specifies consecutive sentences.

Earley’s Assertions
Attorneys for Earley cite a two-step test established by the Ohio Supreme Court in State v. Johnson (2010) for deciding whether multiple criminal offenses are allied and must be merged for sentencing under R.C. 2941.25. A court must determine first whether it’s possible to commit one offense and commit the other with the same conduct and, second, whether the offenses were a single act committed with a single state of mind.

Earley’s attorneys maintain that courts must complete this analysis before sentencing. They contend that the merger test must be applied first. If the sentences should be merged, then the sentencing statute doesn’t apply because there are no longer two offenses to consider when sentencing the defendant, they argue.

When the General Assembly passed S.B. 22, which amended 2929.41(B)(3) to allow for consecutive sentences for certain misdemeanors and felonies, the legislature didn’t create an exception to first deciding whether offenses should be merged under the merger statute, they assert. While the sentencing law permits greater punishment in some circumstances, the legislature also has barred multiple sentences for allied offenses, they maintain.

In this case, they contend it was possible for Earley to have committed OVI and aggravated vehicular assault with the same conduct, and her single act of driving while drunk resulted in both charges. As a result, the crimes should’ve been merged and only one sentence imposed for these two crimes, they conclude.

Prosecutor’s Arguments
Attorneys from the Cuyahoga County Prosecutor’s Office respond that that the U.S. and Ohio supreme courts have both held that a legislature can enact laws permitting cumulative punishments for crimes that constitute the same offense without violating double jeopardy. And in State v. Miranda (2014), the Ohio Supreme Court ruled that Johnson doesn’t apply if the legislature conveys its intent to impose multiple sentences for two or more crimes. They contend that this case turns on the legislature’s intentions when enacting the sentencing statute, 2929.41(B)(3).

When amending the statute, the General Assembly meant to give trial courts discretion to impose separate sentences for OVI and aggravated vehicular assault, they argue. They assert that the language “when the trial court specifies” shows that the legislature was giving trial courts the option to punish those convicted of certain misdemeanors and felonies to either consecutive or concurrent sentences. The legislature has specifically authorized a trial court to impose consecutive sentences if it chooses, they maintain. The statute’s provisions contradict any claim that the offenses named in the law are supposed to merge under the merger statute, they contend. They note the purpose of S.B. 22 was to increase the penalties for OVI offenses in certain situations.

As far as the conflicting cases from the other appeals courts, the prosecutors argue that those courts didn’t consider whether 2929.41(B)(3) created an exception allowing courts to impose separate sentences for OVI and aggravated vehicular assault. Examining the legislative intent when the law was amended should have been considered when deciding those cases, they assert.

Additional Briefs
Amicus curiae briefs supporting the Cuyahoga County Prosecutor’s position have been submitted by Franklin County Prosecutor Ron O'Brien and Mothers Against Drunk Driving.

- Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket (2014-1278 and 2014-1454).

Contacts
Representing Antonia Earley from the Office of the Ohio Public Defender: Nikki Baszynski, 614.466.5394

Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Tracy Regas, 216.443.7800

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