Wednesday, June 24, 2015
City of Shaker Heights Income Tax Board of Review et al. v. William E. MacDonald, III, et al., Case no. 2014-0574
Tenth District Court of Appeals (Franklin County)
State of Ohio v. Derrell B. Shabazz, Case no. 2014-0941
Eighth District Court of Appeals (Cuyahoga County)
State of Ohio v. Walter Polus, Case no. 2014-1062
Sixth District Court of Appeals (Lucas County)
In the Matter of the Adoption of H.N.R., Case no. 2014-2201
Second District Court of Appeals (Greene County)
What Is Proper Standard of Review in Appeals from Municipal Boards of Income Tax Appeals to State Board of Tax Appeals?
City of Shaker Heights Income Tax Board of Review et al. v. William E. MacDonald, III, et al., Case no. 2014-0574
Tenth District Court of Appeals (Franklin County)
ISSUES:
- Did the state Board of Tax Appeals apply the proper standard of review in a taxpayer’s appeal from a municipal board of income tax appeals (MBOA)?
- Must the state Board of Tax Appeals, acting in an appellate role, defer to the decision of an MBOA and presume that such decisions are valid and should not be overturned unless unlawful or arbitrary?
BACKGROUND:
After a 38-year career with National City Corporation, William E. MacDonald III retired in late December 2006. A long-time resident of Shaker Heights, MacDonald lived in the city until four days before his retirement on Dec. 31, 2006. At retirement, MacDonald qualified for National City’s Supplemental Employee Retirement Plan (SERP), a deferred compensation plan.
According to the Shaker Heights’ attorneys, MacDonald’s SERP benefit became “fixed and determinable and the present value estimate of the SERP benefit was reported in Box 5 of Mr. MacDonald’s Tax Year 2006” W-2 form. When filing his municipal income tax return for 2006, MacDonald calculated his tax liability to the City of Shaker Heights based on the wages reported in a different box (Box 18) of the W-2. In May 2007, the Regional Income Tax Authority (RITA) notified MacDonald that the tax must be calculated on the wages reported in Box 5 of the W-2 and also informed him of his correct tax liability. In February 2008, RITA sent a “final determination letter” specifying that the amount credited to his deferred compensation and reported in the W-2 Box 5 were taxable to the City of Shaker Heights.
MacDonald filed an appeal with the Municipal Board of Income Tax Appeals (MBOA) for Shaker Heights. Following a hearing, the MBOA issued a decision in August 2008, finding that the SERP was not a pension according to the city’s income tax code. Nor was it exempt from taxation under the same code.
MacDonald appealed the decision to the state Board of Tax Appeals (BTA). In late December 2012, the BTA found that the amounts attributed to MacDonald’s SERP were “pension benefits” and were exempt from Shaker Heights’ municipal income tax.
RITA and Shaker Heights filed a joint appeal to the Tenth District Court of Appeals in January 2013. The Tenth District’s majority opinion, issued on February 27, 2014, disagreed with the city and RITA, and ruled that the BTA applied the correct standard of review in the case.
The City of Shaker Heights; its tax administrator, Matthew Rubino; and RITA jointly filed an appeal with the Supreme Court. The Supreme Court accepted the case in July 2014.
City’s Legal Argument
Simply, Shaker Heights maintains that the BTA did not follow the proper standard of review on the MacDonald case, which originated as an appeal from the city’s MBOA. The city’s brief states: “…Because in appeals from a MBOA to the BTA, the BTA acts in an appellate capacity such that (a) decisions of MBOAs are presumptively valid, and (b) a decision of a MBOA should not be overturned unless the BTA finds the decision is unlawful, arbitrary, capricious, unreasonable or unsupported by the preponderance of substantial, reliable and probative evidence.”
The city’s attorneys point out that the Tenth District concluded that R.C. 5717.011 establishes “joint jurisdiction of the BTA and courts of common pleas in appeals from local MBOAs, but the statute does not create any standard of review for the BTA in such appeals.” Further, the city’s attorneys state that the court of appeals’ decision said that “absent any express statutory standard, they would not set one, and further, that there is nothing in the law that suggests the BTA must give deference to a local MBOA.” In a dissenting opinion, one Tenth District judge wrote, “The BTA did not employ the correct standard of review because the MBOA’s findings are presumptively valid absent a demonstration that those findings are clearly unreasonable or unlawful.”
As pointed out by the city, and included in the BTA’s decision, the Supreme Court has not considered an appeal filed pursuant to R.C. 5717.011, a new statute, which permits appeals from either taxpayers or tax administrators to the BTA from either a local board of tax review or a common pleas court.
The Supreme Court has, however, reviewed similar appeals from MBOAs to common pleas courts pursuant to R.C. 2506.01, a statute that permits appeals from political subdivision entities (i.e., boards, commissions, departments) to common pleas courts. In fact, the BTA’s decision in this case quotes the Supreme Court’s Tetlak v. Bratenahl decision from 2001, which stated that “The taxpayer, not the village, has the burden of proof on the nature of the income at issue.” It went on to say that the taxpayer has the burden to show in what manner the tax commissioner’s investigation, audit, or findings were “faulty and incorrect.”
Taxpayer’s Argument
In response, MacDonald’s attorneys maintain that the BTA “correctly applied the same standard of review for the appeal from a MBOA that the BTA routinely uses for appeals from the Ohio Tax Commissioner.”
Further, it is MacDonald’s position that appellants “argue for a standard of review so deferential that it would require the BTA to act as a rubber stamp of the MBOA’s decision.” MacDonald’s attorneys state that requiring the BTA to defer to MBOA decisions makes any appeal process irrelevant.
MacDonald’s attorneys also claim the city and RITA are confused as to the proper statute that should apply to this case. Specifically, they state, “R.C. Chapter 2506, which covers all manner of administrative appeals, is a general appeals statute while appeals to the BTA under R.C. 5717.011 are limited to tax matters. Accordingly, the specific tax appeal standards should be applied as written and not be read with a gloss from a different statute (R.C. 2506.04) designed to deal with many different types of appeals.”
Additional Briefs
Three briefs of amicus curiae were filed in the case: a merit brief and reply brief from the City of Cleveland, in support of Shaker Heights; and a merit brief from the Ohio Chamber of Commerce and the Ohio Society of Certified Public Accountants, in support of MacDonald.
- Carol Taylor
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing City of Shaker Heights, et al.: William M. Ondrey Gruber, 216.491.1445
Representing William E. MacDonald III, et al.: Christopher J. Swift, 216.861.7461
Was There Sufficient Evidence to Prove Co-Defendant Was Murder Accomplice?
State of Ohio v. Derrell B. Shabazz, Case no. 2014-0941
Eighth District Court of Appeals (Cuyahoga County)
ISSUES:
- Is an appellate court reviewing a challenge to sufficiency of evidence required to draw all reasonable inferences in favor of the state’s case and not adopt the defense’s inferences to reverse a conviction?
- Can an accomplice be convicted of felony murder when the victim’s death was a proximate result of the underlying felony and the accomplice may not have known the principal had a firearm that was the actual cause of the victim’s death?
BACKGROUND:
Derrell Shabazz was among a group involved in a fight at a downtown Cleveland nightclub on Feb. 19, 2012, that ended in the shooting death of 27-year-old Antwon Shannon. Shabazz’s group started the fight by throwing punches and swinging champagne bottles 15 minutes after words were exchanged over spilled champagne. Shabazz was convicted of aggravated murder and other crimes by a Cuyahoga County Common Pleas Court jury for attacking the victim and for playing a role in the murder. The gunman, Dajhon Walker, was also found guilty during the joint jury trial. Both were sentenced to life in prison with the possibility of parole after they each serve 22 to 25 years.
Shabazz and Walker appealed to the Eighth District Court of Appeals, which modified Walker’s conviction for aggravated murder down to murder after finding insufficient evidence of prior calculation and design. After a de novo review of Shabazz’s case, the appeals court voted 2-1 to reverse his aggravated murder conviction because there was insufficient evidence he knew Walker had a gun. The appeals court affirmed Shabazz’s two felonious assault convictions.
The Cuyahoga County Prosecutor’s Office, on behalf of the state, is appealing both of the Eighth District’s decisions to the Ohio Supreme Court. The Supreme Court is holding the Walker case while it decides Shabazz’s case.
Sufficiency of Evidence
Attorneys for the state emphasize in a brief to the Supreme Court that witnesses and video surveillance footage from cameras at the Tavo Martini Lounge proved Shabazz and his group planned the attack on Shannon and his friends. In reversing Shabazz’s conviction for aggravated murder, the appeals court failed to look at all the key pieces of the state’s case against him and “abandoned its extremely limited role in reviewing criminal convictions for sufficiency of evidence,” they argue.
Quoting from the Supreme Court’s 1991 decision in State v. Jenks, the state’s attorneys write the appeals court should have deferred to the jury’s verdict: “The relevant question in a sufficiency-of-the-evidence review is whether, ‘after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.’”
The state finds fault in the appeals court’s interpretation of the felony murder statute in R.C. 2903.02(B) that “no person shall cause the death of another as a proximate result of the offender’s committing or attempting to commit an offense of violence ….” The state contends the Eighth District made a new rule in Shabazz that “killings by a victim or a third party could never be felony-murder because the defendant would never have reason to know the victim or third party had a gun.” Citing the 2008 Tenth District Court of Appeals decision in State v. Ford as an example, they maintain the Eighth District has allowed “the adoption of the ‘agency theory’ of felony-murder, which Ohio courts have rejected.”
Insufficient Evidence
Shabazz’s attorneys call the state’s evidence against their client “scant” and “insufficient” to warrant his conviction. They also contend the state’s attorneys have presented “factually inaccurate” interpretations of the evidence, and the Eighth District panel was correct to reject those inferences.
Citing the Supreme Court’s State v. Gordon decision in 2011, they write: ““[W]here the evidence offered by the prosecution in support of the elements of the offense charged is so insubstantial and insufficient, and of such slight probative value, that it is not proper to make a finding beyond a reasonable doubt that (appellant) committed all of the acts constituting the elements of the offense, a reviewing court must reverse, rather than affirm, the conviction.’”
A 1997 Supreme Court decision in State v. Taylor set a three-prong test to determine prior calculation and design: did the accused and victim know each other, and if so, was that relationship strained; did the accused give thought or preparation to choosing the murder weapon or murder site; and was the act drawn out or “an almost spontaneous eruption of events”? Shabazz’s defense maintains the prosecution failed to establish any of those factors in this case.
They also assert Shabazz didn’t know Walker had a gun and he did not aid and abet in the murder:
“As the United States Supreme Court held in Rosemond [2014],without the requisite knowledge that Walker was armed Shabazz did not have a meaningful opportunity to dissuade Walker from his actions, or to withdraw from the events altogether. Accordingly, without evidence of Shabazz’ foreknowledge … the state was unable to meet the foreseeability prong of the test for proximate cause pertaining to the felony murder charge.”
Friend of the Court
An amicus curiae brief supporting Shabazz’s position has been submitted by The Ohio Association of Criminal Defense Attorneys, and the court has given the association permission to participate in the oral arguments and share in the 15 minutes allotted to Shabazz.
- Stephanie Beougher
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Christopher Schroeder, 216.443.7733
Representing Derrell Shabazz: Reuben Sheperd, 216.721.7700
Representing the Ohio Association of Criminal Defense Attorneys: Christopher Pagan, 513.424.1823
Can Trial Courts Impose Consecutive Sentences for Felony and Misdemeanor Convictions?
State of Ohio v. Walter Polus, Case no. 2014-1062
Sixth District Court of Appeals (Lucas County)
ISSUE: Should a trial judge use the “rule of lenity” to sentence an offender if a statute is considered ambiguous?
BACKGROUND:
In February 2013, Walter Polus was indicted on two counts of receiving stolen property, both fifth-degree felony offenses. In a separate case, Polus was charged with three second-degree felony counts of burglary and two additional fifth-degree felony counts of receiving stolen property. In a plea deal, Polus pled guilty to receiving stolen property on three counts, and the state agreed to amend the fourth stolen property charge to a first-degree misdemeanor. His three burglary charges were dropped.
Polus was sentenced to 11 months in prison for the three felony charges and six months in jail for his misdemeanor charge. All sentences were to be served consecutively to each other for a total of 39 months behind bars.
Polus appealed his sentence to the Sixth District Court of Appeals and said his misdemeanor sentence should run concurrently with his felony sentence. The court determined that R.C. 2929.41, which explains when to impose concurrent or consecutive sentences, is ambiguous and reversed the trial court’s ruling.
Citing State v. Garrett (6th Dist.), the court stated, “[W]e, therefore, hold that the ambiguity created by provisions (A) and (B)(1) of R.C. 2929.41 must be construed against the state and that the trial court should have ordered that Polus’ felony and misdemeanor sentences be served concurrently.”
The court also determined that the judge should have applied H.B. 86, a criminal sentencing law that tries to reduce prison populations if convicts are low-degree felony offenders.
The Sixth District’s decision conflicts with Fifth and Eighth District Courts of Appeals rulings on similar issues. In June 2014, the Ohio Supreme Court accepted the state’s request to review the case.
State’s Argument
The state’s attorneys argue that trial courts can run sentences consecutively if a judge specifies it during the hearing. The attorneys state that any conflict about R.C. 2929.41 can be resolved with the (B)(3) portion that is regarded as a “scrivener’s error,” or a clerical error. The state argues that the Revised Code should’ve read “except as provided in division (B) of this section” and not “division (B)(3).”
“When the other rules of statutory construction are applied to R.C. 2929.41, there is no basis for a finding of ambiguity and no basis for application of the rule of lenity in defendant’s favor. Rather, the statute permits imposition of consecutive sentences for a felony and misdemeanor ‘when the trial court specifies,’ and the certified question should be answered in the affirmative,” the attorneys state.
They ask the Supreme Court to overturn the Sixth District’s ruling and instead confirm the trial court’s sentence.
Polus’ Argument
Attorneys for Polus ask the Supreme Court to affirm the Sixth District’s ruling. They state the justices, like the Sixth District, should apply the “rule of lenity” from R.C. 2901.04(A). “With there being ambiguity in what the legislature intended, the statute must be [construed] liberally in favor of the accused,” Polus’ attorneys state.
His attorneys argue that the Ohio Supreme Court stated in State v. Elmore (2009) that the rule of lenity requires that a court “not interpret a criminal statute so as to increase the penalty it imposes on a defendant if the intended scope of the statute is ambiguous.”
The attorneys state Polus’ felony and misdemeanor sentences should be concurrent instead of consecutive.
Friend of the Court
An amicus curiae brief supporting Polus’ position has been submitted by the Ohio Public Defender’s Office.
- Jenna Gant
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the State of Ohio from the Lucas County Prosecutor’s Office: Evy Jarrett, 419.213.2001
Representing Walter Polus: Tim Dugan, 567.249.6427
Is Putative Father’s Consent Required in Child’s Adoption?
In the Matter of the Adoption of H.N.R., Case no. 2014-2201
Second District Court of Appeals (Greene County)
ISSUE: Is the 30-day post-birth deadline for filing in the state’s putative father registry unconstitutional as applied to putative fathers of children given up for adoption after the deadline?
BACKGROUND:
Christopher S. Miller and a woman named Natalie were involved romantically for about a year. Miller lived in West Virginia, while Natalie was a resident of Chesapeake, Ohio. Natalie became pregnant and gave birth to a child, identified by the initials H.N.R., on Aug. 29, 2013, in Huntington, West Virginia. At that time, the two were living together in West Virginia, and Miller said they discussed getting married. While no father was listed on the child’s birth certificate and the couple didn’t marry, a DNA test done in September 2013 indicated a 99.99% likelihood that Miller is H.N.R.’s biological father.
During the first few months after H.N.R.’s birth, Miller said he helped care for the child. However, when H.N.R. was about 4 months old, Natalie started avoiding Miller, and the appeals court decision stated that she told him in a voicemail that the child had died. Miller contacted law enforcement to investigate.
He discovered that the child’s mother had given custody of H.N.R. to an Ohio adoption agency on Jan. 18, 2014. Through the agency, the child was placed with two people identified as D.R. and M.R. in Greene County. They filed for adoption in February 2014.
Case History
In April 2014, Miller filed a custody case in Lawrence County, Ohio, where Chesapeake is located. He then asked the Greene County Probate Court to allow him to intervene in the adoption proceeding. The probate court found that the adoption didn’t require Miller’s consent because he hadn’t registered with Ohio’s Putative Father Registry, he didn’t take appropriate steps to verify the paternity test’s authenticity and accuracy, and he didn’t take any legal action to establish that he is the child’s father until after the adoption petition was filed. A “putative father” is the person assumed to be a child’s father if the parents weren’t married when the child was born.
The Second District Court of Appeals affirmed the probate court’s ruling. Miller appealed to the Ohio Supreme Court, which agreed to hear the case.
.
Father’s Assertions
Different legal rules apply when notifying fathers of adoption proceedings depending on whether the man is a father legally, such as through marriage or adoption or by formally establishing paternity, or is a putative father. Attorneys for Miller explain that putative fathers have a right to a fair opportunity to qualify to receive notice of a child’s pending adoption if no legal father exists. If a putative father is found fit during a hearing, then he can veto the adoption, they note.
According to the law in 2014, putative fathers had to register with the state’s Putative Father Registry within 30 days after the child’s birth to receive notification of any adoption proceedings. (Following amendments that took effect this March, the timeframe is now 15 days.)
Miller’s attorneys contend that the U.S. Supreme Court’s decision in Lehr v. Robertson (1983) expressed the importance of adequately protecting a putative father’s opportunity to have a relationship with his child.
“Statutes that are likely to omit many responsible fathers and that put the qualifications for notice beyond the control of the father are arbitrary and thus inadequate,” they write in the brief to the court. “[T]he chance to begin forming a relationship with his child is something the [s]tate owes [a putative father] as a matter of due process, with reasonable limits on time.”
Because the timeframe in Ohio’s law (such as R.C. 3107.062 and R.C. 3107.07) prevents many responsible fathers from asserting their parental rights and is arbitrary and inadequate based on Lehr, the law is unconstitutional, they argue. In their view, the state registry isn’t common knowledge to the public, and too many fathers lose their chance to gain custody of their children. And nothing is lost by allowing a putative father to register at any time before an adoption petition is filed, rather than just days after the child’s birth, they add.
In this case, Miller had a paternity test shortly after H.N.R.’s birth and thought he and Natalie were going to raise the child together. Then Natalie became unreachable when H.N.R. was 4 months old, which was months after the 30-day registry deadline, they explain. They ask the court to set aside the adoption and to order a probate court hearing about whether Miller has the right to consent to the adoption.
Adoptive Parents’ Contentions
Attorneys for the adopting parents dispute whether Miller and Natalie were together when H.N.R. was born and whether he helped support and care for the child. They maintain that Miller made no attempts to become legally responsible for the child in the early months.
They also argue that Miller’s due process rights as an unwed father are protected by Ohio’s law. He could have registered within 30 days of H.N.R.’s birth with the Ohio registry, or he could have filed a paternity lawsuit before the adoption proceedings, they contend. These steps were within his control, they assert.
They maintain that the statutes put putative fathers on notice that their children could be adopted without their consent if they don’t take certain steps. The attorneys respond that Lehr upheld the constitutionality of putative father registries. The court also indicated that ignorance of the law doesn’t mean putative fathers don’t have to abide by the law, they argue.
They note that three Ohio appeals courts have rejected constitutional challenges to the registry, and many states have implemented similar registries.
“The virtually unanimous weight of authority across the country has required the putative father to strictly comply with the laws of the state and timely register, or forfeit the right to notice of an adoption,” they write in the brief to the court. “Courts have consistently held that it is not too harsh to require that those responsible for bringing children into the world outside the established institution of marriage be required either to comply with those statutes that accord them the opportunity to assert their parental rights, or to yield to the method established by society to raise children in the manner best suited to promote their welfare.”
Because Miller didn’t sign up with the registry or take any legal action to establish his paternity, he isn’t permitted to be a party in the adoption proceeding, and his consent to the adoption isn’t needed, they conclude.
Friend-of-the-Court Brief
An amicus curiae brief supporting the position of the adoptive parents, D.R. and M.R., has been submitted by the American Academy of Adoption Attorneys.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Christopher S. Miller: Erik Smith, 614.330.2739
Representing D.R. and M.R.: Michael Voorhees, 513.489.2555
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