Tuesday, Sept. 1, 2015
Denny Obermiller v. State of Ohio, Case no. 2011-0857
Cuyahoga County Common Pleas Court
State of Ohio v. Delta Rosario, Case no. 2014-1174
Eighth District Court of Appeals (Cuyahoga County)
Cincinnati Bar Association v. Stephen J. Ball, Case no. 2015-0286
Hamilton County
Death Penalty
Denny Obermiller v. State of Ohio, Case no. 2011-0857
Cuyahoga County Common Pleas Court
Denny Obermiller is appealing his death sentence for the 2010 murders of his grandparents in Maple Heights.
Candace and Donald Schneider were found strangled to death in their suburban Cleveland home on Aug. 14, 2010. Their bodies had been there for several days before being discovered by Maple Heights police who were alerted by a granddaughter because she hadn’t heard from them. Just before their deaths, Donald Schneider had reported to police that he believed his grandson, Obermiller, had stolen gold coins from the home.
Obermiller was arrested at a gas station along I-70 in Licking County, and allegedly told police officers he killed his grandparents without being read his Miranda rights. He waived his right to a jury trial and asked to represent himself. After deciding his attorneys could stay, Obermiller pleaded guilty before a three-judge panel in Cuyahoga County Common Pleas Court to multiple felony counts, including the rape of his grandmother and aggravated murder with prior calculation and design for both deaths. After hearing testimony, the judges found him guilty and sentenced Obermiller to death.
Obermiller’s attorneys are appealing to the Ohio Supreme Court, making 10 arguments in asking the justices to reverse his conviction and sentence.
Defendant’s Claims
Among the claims attorneys for Obermiller make in the brief to the court:
- He was denied his constitutional right to waive counsel and represent himself, and the three-judge panel wanted to “wear him down” until he agreed to let his two court-appointed attorneys stay on the case.
- Considering aggravating circumstances, they contend the panel shouldn’t have included the rape of Obermiller’s grandmother into the murder of his grandfather. They also wanted the effects of his childhood trauma, such as the murder of his mother when he was 2 and the years of physical and emotional abuse inflicted on him by Donald Schneider, to be included as mitigating circumstances that may have resulted in a lighter sentence.
- The three-judge panel allowed irrelevant, inadmissible, and unfairly prejudicial evidence that wouldn’t have been acceptable if heard by a jury. As an example, the brief asserts, the judges allowed a “judicial free-for-all” with questions about Obermiller’s drug use and weight-lifting habits.
- Without a Miranda warning, his statement to the arresting officers that he killed his grandmother should have been suppressed, they argue.
State’s Arguments
Because one of the three judges in Obermiller’s Cuyahoga County Common Pleas Court trial is now the county prosecutor, attorneys from the Summit County Prosecutor’s Office are presenting the state’s case in the appeal. In the brief, the prosecutors argue:
- Since he willingly and voluntarily withdrew his request to waive counsel, Obermiller’s contention that his constitutional rights were violated is without merit.
- The three-judge panel didn’t include Candace Schneider’s rape as an aggravated circumstance in her husband’s murder, as Obermiller’s attorneys contend, and the panel did elicit mitigating information before it imposed the death sentence.
- They claim the defendant’s attorneys have misquoted state law, and the panel proceeded correctly after his guilty pleas to examine witnesses and hear any other evidence presented by the prosecution to determine guilt.
- Obermiller’s statement at the time he was arrested that he killed his grandmother was outside the scope of Miranda because it was in answer to a question that was not intended to get an incriminating response, they assert. The statement came as police thanked him for not running further than he did when they tried to arrest him.
- Stephanie Beougher
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Denny Obermiller: Kathryn Sandford, 614.466.5394
Representing the State of Ohio from the Summit County Prosecutor’s Office: Richard Kasay, 330.643.2800
Do County Prosecutors, Not Probation Officers, Represent the State in Community Control Violation Hearings?
State of Ohio v. Delta Rosario, Case no. 2014-1174
Eighth District Court of Appeals (Cuyahoga County)
ISSUES:
- Is a county prosecutor a party to a community control sanctions violation or revocation hearing and entitled to be heard at those hearings?
- Is requiring non-lawyer probation officers to be the state’s representatives at these hearings a violation of the doctrine of separation of powers?
BACKGROUND:
Delta Rosario pled guilty to a single count of theft, and in March 2011, was sentenced to 36 months of community control sanctions that included 150 hours of community service, random drug testing, maintaining employment, obtaining a GED, and not entering Target stores. In March 2014, Rosario’s sanctions were completed, but a week later, the trial court issued an order at the request of the probation department extending her probation to June 24, 2014.
At a hearing, a probation officer testified that Rosario complied with almost all of her community control conditions, and her counsel asked the court to terminate her community control. The trial court agreed to terminate if Rosario signed a cognovit note agreeing to pay the remaining $322 in court costs she owed. At the hearing, an assistant county prosecutor appeared and asserted to the court that the State of Ohio through the county prosecutor’s office had a right to be present and participate in the hearing. The trial court refused to allow the assistant prosecutor to appear, stating the court’s long-standing practice that the probation office, not the prosecutor, represents the state in cases of community control violations.
The prosecutor’s office appealed the decision to the Eighth District Court of Appeals and noted that it has 13 other cases pending on appeal to the Eighth District or Ohio Supreme Court based on the same argument that it was wrongly denied a right to participate in a community control sanction hearing.
The Eighth District denied the appeal, and the prosecutor’s office appealed to the Ohio Supreme Court, which agreed to accept it.
Prosecutor Argues Office Represents the State in All Criminal Cases
Attorneys for the county prosecutor argue in the brief filed with the Supreme Court that by state law (R.C. 309.08,) the prosecutor represents the state in all “complaints, suits and controversies,” unless the law specifies otherwise. Violation hearings are part of suits, they maintain, so it’s the right of the county prosecutor to represent the state’s interest in such hearings. Further, for the court to revoke a community control violation and send a violator to prison, the state has the burden of proof to show by “substantial” evidence that the offender violated the court’s conditions, they contend. The prosecutor’s office is the one responsible for providing the argument, not a non-lawyer probation officer, the attorneys contend.
For the trial court to insist probation officers represent the state’s interest violates the doctrine of the separation of powers because probation officers are employees of the court thereby supplanting the role of the executive branch with officers of the judicial branch, they assert. The consequence could be that community control may be terminated and the offender released or sent to prison without any notice to the prosecutors or the victims of the original crime.
“By its actions, the trial court has delegated the state’s evidentiary burden of proof to non-lawyer employees of the court itself. No explanation as to how court employees may constitutionally do so has been provided, as none exists,” they claim.
Public Defender Contends Prosecutor Can Participate if Necessary
Attorneys for Rosario contend in the brief that Cuyahoga County trial courts have established a long-standing method for the prosecutor to participate in community control violation hearings when it is necessary, and there is no blanket standard in Ohio law stating the prosecutor represents the state in these cases. Moreover, the attorneys suggest that Rosario’s case should not even be heard by the Supreme Court for procedural reasons, and that if the Supreme Court wants to decide the dispute between the probation officers and the prosecutor’s office, it should do so in another case.
Rosario’s attorneys maintain her sanctions ended in March 2014 and the court lacked the jurisdiction to extend her probation until June. With the sanction ending, there was no legal authority to hold the hearing where the assistant prosecutor objected to being excluded.
In the briefs, both sides note the same issue has been appealed to the Eighth District in State v. Heinz. On July 9, the Eighth District ruled 2-1 in Heinz that the prosecutor does not have the right to represent the state in community control sanction violation hearings.
The attorneys insist the standing order allows the prosecutor’s office to request in advance permission from the court to participate in the hearings and present to the court and the defense the reason for its desire to be present. They maintain that the probation office is responsible for reporting to the court all information about the status of the offender that is needed for the court to decide whether to change the sanctions. Additionally, they claim the probation office has the duty to report any subsequent crimes the offender committed while on community control to the prosecutors, and in those instances where a charge for a new crime plays into the consideration of revocation sanctions, the prosecutor’s office indisputably has a right to participate.
Rosario’s attorneys note the revocation hearings are not criminal proceedings, and are not bound by the formality of a criminal trial. They maintain that state law grants the prosecutor a right to participate in the original sentencing hearings of an offender, but the law prescribing community control hearings, R.C. 2929.15, only provides a role for the probation office. They suggest that unless there is a new criminal charge being raised by the prosecutor, there is no relevant information the prosecutor could bring to court that the probation office has not already supplied to the judge for consideration.
“Under the county prosecutor’s logic, he has an automatic right to be heard in any proceeding captioned ‘State versus’ by virtue of its general powers under R.C. 309.08. Such interpretation would render meaningless any further attempt by the General Assembly to carve out specific roles for different government agencies depending on the nature of the proceedings,” they conclude.
- Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing State of Ohio from the Cuyahoga County Prosecutor’s Office: Mary McGrath, 216.443.7872
Representing Delta Rosario: Cullen Sweeney, 216.443.7583
Attorney Discipline
Cincinnati Bar Association v. Stephen J. Ball, Case no. 2015-0286
Hamilton County
The Board of Professional Conduct has recommended that Stephen J. Ball of Cincinnati be indefinitely suspended from the practice of law for multiple violations of attorney conduct rules, including committing illegal acts and practicing law while registered as inactive.
In December 2012, Ball drank eight or nine beers while attending a Xavier University basketball game and a Christmas party. A sheriff’s deputy noticed Ball swerving in his car and tried to pull him over, but he kept driving. The attorney stopped near his home, then fled on foot. The deputy eventually caught up to him, and Ball was arrested.
Ball reported the arrest to the Cincinnati Bar Association and pled guilty in 2013 to operating a vehicle while under the influence of alcohol and to disorderly conduct.
One of the initial charges filed against Ball was for receiving stolen property because the license plates on his car were stolen. During the bar association’s disciplinary investigation, Ball initially claimed the plates weren’t stolen, but he later admitted he received them from a friend because his driver’s license was invalid.
Ball also overdrew his lawyer trust accounts in two matters during 2013. Between Jan. 31 and March 7, 2014, Ball listed himself as an inactive attorney. However, during that time, he didn’t inform his clients that he was inactive and couldn’t handle legal matters, and he continued to talk with potential clients.
In the report to the Ohio Supreme Court, the board noted that alcohol addiction wasn’t accepted as a mitigating factor because evidence wasn’t presented that Ball’s alcohol dependency contributed to his misconduct. Along with the five rule violations found by the panel that reviewed the case, the board added a second violation of the professional conduct rule that bars lawyers from conduct that negatively reflects on their fitness to practice law. As conditions for Ball’s indefinite suspension, the board recommends that he successfully complete substance abuse treatment, as approved by the Ohio Lawyers Assistance Program (OLAP), and show he is “capable of returning to the competent, ethical, and professional practice of law.”
Objections from Attorney
Attorneys for Ball have filed objections to the board’s report. They argue the board ignored evidence that Ball’s alcohol addiction contributed to the misconduct related to his 2012 arrest and the dependency should have been accepted as a mitigating factor.
They explain that the disciplinary rules allow the board to consider chemical dependency as a reason for a less severe sanction if the lawyer is diagnosed with the dependency by a qualified health care professional, it is determined that the addiction contributed to the misconduct, the lawyer has completed an approved treatment program, and a qualified professional concludes the lawyer will be able to return to practice law under certain conditions. They contend that Ball has provided evidence meeting these four criteria.
Bar Association’s Responses
Attorneys for the bar association assert that the board is not required to adopt evidence of Ball’s alcohol addiction as a mitigating factor. The board’s discretion in its recommendation isn’t controlled by the existence of a medical disorder, they contend, though the board may consider a disorder to suggest a lesser sanction. They add that the board did acknowledge Ball’s alcohol dependency, but noted his long history of alcohol abuse and his lack of adherence to his OLAP contract and concluded that the evidence didn’t support a less severe suspension. They conclude that the board’s recommended indefinite suspension should be adopted to protect the public.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the Cincinnati Bar Association: Paul Laufman, 513.621.4556
Representing Stephen J. Ball: George Jonson, 513.241.4722
These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.
Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.