Wednesday, Sept. 16, 2015
State of Ohio v. V.M.D.,, Case no. 2014-0990
Eighth District Court of Appeals (Cuyahoga County)
Beverly Clayton, C.N.P., R.N. v. Ohio Board of Nursing, Case no. 2014-1092
Tenth District Court of Appeals (Franklin County)
Quayshaun Leak v. State of Ohio, Case no. 2014-1273
Fifth District Court of Appeals (Richland County)
Was Defendant’s Conviction an Offense of Violence That Cannot Be Sealed?
State of Ohio v. V.M.D.,, Case no. 2014-0990
Eighth District Court of Appeals (Cuyahoga County)
ISSUE: Was defendant convicted of an offense of violence, which prohibits a court from sealing the record of that conviction?
BACKGROUND:
In charges filed in Berea Municipal Court in 2000, a man identified by the initials V.M.D. was accused of stealing more than $200 and other items. He was indicted in March of that year on two counts of aggravated robbery with firearm specifications and one count of complicity in the commission of intimidation.
V.M.D., who was 18 at the time, agreed to plead guilty to attempted robbery and complicity, both felonies. The state dropped the firearm specifications and one aggravated robbery charge. The amended indictment for the remaining robbery count alleged, based on the robbery statute, that V.M.D. “did, in attempting or committing a theft offense, or in fleeing immediately after, attempted to use or threaten the immediate use of force against another person.” The state also added the attempted offense statute to the count.
The trial court in August 2000 sentenced V.M.D. to 18 months of community control. V.M.D. complied with his sentence, and the court ended his sanctions early.
Defendant Asks to Have Record Sealed
Thirteen years later, V.M.D. applied to have the record of his conviction sealed. The trial court rejected his request, stating robbery is an offense of violence under state law and not eligible to be sealed.
V.M.D. appealed to the Eighth District Court of Appeals, which reversed the trial court. In ruling that sealing the record should be permitted, the court concluded that V.M.D. had been convicted of an attempt to attempt to commit robbery and that “the element of violence is simply too removed for the defendant to be automatically precluded from expungement.”
The state appealed the decision to the Ohio Supreme Court, which agreed to hear the case.
State Law Prohibits Sealing of Offenses of Violence
Eligible offenders may apply to have records of their convictions sealed if they meet certain requirements. However, state law doesn’t allow some crimes to be sealed – such as a conviction for a felony “offense of violence.”
An “offense of violence,” as defined in R.C. 2901.01(A)(9), includes robbery (a violation of R.C. 2911.02) as well as “[a] conspiracy or attempt to commit, or complicity in committing, any offense.”
State’s Assertions
Attorneys from the Cuyahoga County Prosecutor’s Office argue that state law doesn’t allow crimes of violence, or attempted crimes of violence, to be sealed. V.M.D. was convicted of attempted robbery, so he is ineligible to have his criminal record sealed, they maintain.
They claim the Eighth District has made this error before by misapplying the Ohio Supreme Court’s ruling in State v. Simon (2000). They assert that the appeals court also has contradicted itself in a different case decision, which concluded that attempted murder wasn’t a crime that could be sealed. In addition, they point out that the Eleventh District Court of Appeals declined to allow the record of an attempted aggravated assault to be sealed because it was an offense of violence, excluded from sealing.
While V.M.D.’s brief cites two Ohio Supreme Court decisions that considered the sealing of records – Schussheim v. Schussheim (2013), about a dismissed civil protection order, and Pepper Pike v. Doe (1981), involving a person charged but not convicted of a crime – the state’s attorneys contend the rulings aren’t relevant to this case because no statute applied to the sealing of the records in those cases.
“[T]here is public interest in maintaining criminal record[s][,] and … maintaining record of violent offenses serves a legitimate governmental need,” they conclude in the brief to the court. “The purpose of the [e]xpungement statute is to permit a trial court to expunge a defendant’s conviction for a non-violent offense in the rare instance where the defendant’s interests outweigh those of the State.”
Defendant’s Arguments
Attorneys for V.M.D. counter that he didn’t plead guilty to robbery or attempted robbery. Instead, the amended charge was attempt to attempt robbery, which they describe as a “legal fiction.”
“The argument is not that robbery isn’t an offense of violence,” they write in the brief to the court. “Rather, the argument is that the crime to which V.M.D. pleaded guilty – which was attempting to attempt to commit a robbery – is not an automatic barrier that prevents expungement.”
Because the crime didn’t clearly qualify as an offense of violence, they argue the trial court had authority to consider sealing V.M.D.’s record. In their view, the court should’ve decided whether V.M.D. met the requirements for sealing the record based on the statutory procedure in R.C. 2953.32(C) – whether he was an eligible offender, had any pending criminal proceedings, and had been rehabilitated, in addition to reviewing the prosecutor’s objections and weighing V.M.D.’s interests against the government’s needs.
They contend that Schussheim and Pepper Pike recognize that trial courts have an “inherent authority” to seal or expunge conviction records.
They note that V.M.D. committed the crime at a young age right after graduating from high school, he had no record before that time and had two misdemeanor convictions afterward, he complied with the community-control sanctions, and he has been employed full time for some years. In examining all the circumstances and interpreting the sealing and expungement laws in V.M.D.’s favor, they conclude his records should be sealed.
Additional Filings
An amicus curiae brief supporting the position of the Cuyahoga County Prosecutor’s Office has been submitted by the Franklin County Prosecutor’s Office. The Ohio Public Defender’s Office has filed an amicus brief supporting V.M.D.
- 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 State of Ohio from the Cuyahoga County Prosecutor’s Office: Diane Smilanick, 216.348.4463
Representing V.M.D.: Andrew Dever, 216.228.1166
Was Nurse Entitled to Patients’ Medical Records for Her Disciplinary Hearing?
Beverly Clayton, C.N.P., R.N. v. Ohio Board of Nursing, Case no. 2014-1092
Tenth District Court of Appeals (Franklin County)
ISSUE: In an administrative hearing, is it a violation of due process and state law to deny a party the right to obtain evidence to defend against charges and for mitigation?
BACKGROUND:
Beverly Clayton, a registered nurse with 25 years of experience, worked an overnight shift from 7 p.m. on Aug. 27, 2009, to 7 a.m. on Aug. 28, 2009, in the intensive care unit (ICU) of Mercy Hospital Western Hills in Cincinnati. According to the nurse’s brief filed with the court, she was assigned that night as the charge nurse, whose duties include locating records, answering phone calls, admitting new patients, and helping other nurses, and as a staff nurse, caring for two patients. She also served as the unit secretary, responsible for compiling patient charts, finding physician orders, putting orders into the computer, entering lab orders, coordinating physician consultations, checking medications, and other duties.
The patient in this case, referred to as Patient 1, was an 80-year-old man admitted through the emergency room (ER) from his nursing home. He had congestive heart failure, a fast and irregular heart rate, pneumonia, and chronic obstructive pulmonary disease. He was described as critically ill with a poor prognosis.
The ER doctor placed orders for a pulmonologist and a cardiologist to examine Patient 1 and prescribed certain medications for the patient. The patient was moved to the ICU before Clayton began her shift, but was later assigned as one of her patients. Clayton relied on directions for the patient’s care in the hospital’s computer system and stated she didn’t see the ER doctor’s handwritten orders. As a result, she didn’t contact a pulmonologist or a cardiologist, and she administered different medications.
The patient’s health declined, and in the early morning his blood pressure plummeted. He died later that day.
State Nursing Board Files Charges
The Ohio Board of Nursing planned to limit or suspend Clayton’s nursing license after Patient 1’s death, and she requested a hearing. Clayton requested a subpoena from the hearing examiner to obtain the medical records of the seven or eight other patients in the ICU that night to show the demands on her time during that shift. The examiner denied the request, determining that the ICU patients’ medical records were “likely irrelevant,” beyond the scope of the charges against the nurse, and outweighed by those patients’ privacy.
The examiner noted that the situation in the ICU that night was “chaotic” and “overwhelming.” However, he concluded that Clayton didn’t meet the standards of safe nursing care for Patient 1. The nursing board agreed and suspended Clayton for one year, imposed a two-year probationary period after the suspension, and set temporary restrictions on her work.
Clayton appealed to the Franklin County Court of Common Pleas, which upheld the board’s decision, and then to the Tenth District Court of Appeals, which agreed with the common pleas court. The Ohio Supreme Court accepted the case for review.
Nurse Argues Systemic Hospital Failures Led to Diminished Care
R.C. 119.09 states that a state agency “shall issue” a subpoena for witnesses or documents when requested by a party who has received notice of a hearing, attorneys for Clayton argue. They also maintain that the subpoena for the other patients’ medical records asked that the documents be produced at the hearing, not before the hearing, as the state asserts.
They note in the brief to the court that “under the circumstances that existed in the ICU during [Clayton’s] entire shift, it was impossible for her to comply with all of the handwritten physician orders for Patient 1 without jeopardizing the lives of several other patients in the overcrowded, incompetently staffed and understaffed ICU,” adding that two other ICU nurses that night didn’t know how to handle basic procedures, such as properly setting up IV lines for patients. They argue the other patients’ medical records would have shown the systemic administrative and staffing failures at the hospital that night and exonerated Clayton from the charges, or would have established the circumstances to justify a lesser sanction.
Given that the hearing examiner acknowledged the chaotic and overwhelming circumstances of that evening, they assert that the medical records detailing the night’s events are relevant and should’ve been included as evidence for the examiner to consider before he made his recommendation.
They also dispute that the patients’ records couldn’t have been provided based on confidentiality reasons. They contend that nursing and physician disciplinary proceedings always involve confidential medical records. Such records are routinely provided in these cases, they maintain, and names and private information could be concealed.
They argue the hearing examiner improperly focused only on Patient 1 without considering the fuller context in the ICU that night, including the multiple nursing roles Clayton had to play. They assert that excluding the other patients’ medical records affected the outcome of the hearing and led to Clayton’s suspension. The nurse “was prejudicially deprived ‘of the opportunity to be heard in a meaningful manner,’” they conclude.
Nursing Board Maintains Hearing Was Fair
Lawyers from the Ohio Attorney General’s Office representing the Board of Nursing claim that Clayton asked for “pre-hearing discovery” of medical records. They maintain that neither state law nor the due process rights in the U.S. Constitution or the Ohio Constitution provide a right to discovery before an administrative hearing.
Based on a U.S. Supreme Court test, they counter that Clayton had adequate opportunity to be heard because her private interest at stake wasn’t limited by the hearing procedures, state law governing the hearing protected her from “an erroneous deprivation” of her protected interest, and discovery before the hearing would have placed an undue burden on the state and its agencies in future cases.
They also assert that hearing examiners have the power to control a hearing’s nature and scope, including limiting the use of subpoenas to gather evidence that ultimately wouldn’t be allowed. Clayton’s hearing examiner was within his authority to reject the subpoena of medical records because he believed patient privacy prevented admission of the records as evidence, they contend. They point to a 2009 Ohio Supreme Court ruling (Roe v. Planned Parenthood Southwest Ohio Region), which concluded that redaction of identifying information still doesn’t allow the disclosure of certain records.
Nor can Clayton show she was prejudiced by the examiner’s denial of the subpoena, they contend. They note that Clayton testified about the conditions in the ICU, and her expert, also an ICU nurse, gave testimony. In the state’s view, the medical records only would have repeated the information provided through testimony. Also, Clayton declined to have two other ICU nurses testify as witnesses at her hearing. While Clayton said she didn’t have time to track down the doctor’s orders for Patient 1, the board’s attorneys counter that she was able to do several “non-essential tasks,” such as range-of-motion exercises, with the patient during that night. Inclusion of the other patients’ medical records wouldn’t have altered the hearing examiner’s conclusions, they conclude.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Beverly Clayton: Steven Sindell, 216.292.3393
Representing the Ohio Board of Nursing from the Ohio Attorney General’s Office: Eric Murphy, 614.466.8980
Was Search of Car After Arrest Unreasonable?
Quayshaun Leak v. State of Ohio, Case no. 2014-1273
Fifth District Court of Appeals (Richland County)
ISSUE: Did the arrest on a domestic violence warrant of an occupant sitting in a lawfully parked car justify the police impoundment and search the car, or was the impoundment and search a violation of the Fourth Amendment’s prohibition against unreasonable searches and seizures?
BACKGROUND:
A Mansfield police officer was dispatched on Aug. 8, 2012, to assist in locating Quayshaun J. Leak. An arrest warrant had been issued for Leak on a domestic violence charge. The officer said he was given descriptions of Leak, his apartment, and his car, including the vehicle’s out-of-state plates. When the officer arrived near the apartment building, he saw a vehicle matching the details he had. Two men were sitting in the front seat, and the man on the passenger side got out and identified himself as Leak.
The officer arrested Leak. The officer then called to have the car towed and conducted a search of the vehicle, finding a handgun under the passenger seat and marijuana in the center console. Leak stated that the gun was his.
Leak was indicted for carrying a concealed weapon and improper handling of a firearm in a motor vehicle, both felonies. In January 2013, he asked the court not to consider the evidence discovered in the car during the search. The trial court concluded that the search was allowed because it was “incident to” Leak’s arrest.
Leak pled no contest, and the court fined him $1,500 and sentenced him to serve 30 months of community control instead of a suspended one-year prison term.
On appeal, the Fifth District Court of Appeals agreed with the trial court’s ruling not to suppress the evidence. The Ohio Supreme Court accepted Leak’s request for review of his case.
Appellant’s View
Attorneys for Leak explain that police have the authority to take vehicles off the street and into custody to prevent traffic problems or to ensure public safety and convenience. The Ohio Supreme Court has referred to this authority as a community-caretaking function. However, the attorneys argue, the car posed no hazard and the Mansfield police had no reason to tow the car, based on the city’s laws. And an “inventory search,” where police log a vehicle’s contents when impounding an automobile, was unlawful because the officer had no authority to tow the car, they contend. As a result, the evidence from the car should be suppressed, they assert.
They add that the search was not lawfully conducted incident to Leak’s arrest. Pointing to the U.S. Supreme Court’s decision in Arizona v. Gant (2009) and the Ohio Supreme Court’s ruling in State v. Johnson (2014), they argue that a vehicle search “incident to arrest” is legal only when true safety and evidentiary reasons justify the search. The Gant court ruled that a vehicle search incident to an arrest is permitted only if the arrested person is within “reaching distance” of the passenger compartment at the time of the search or the officer has a reasonable belief that the vehicle holds evidence related to the arrest. Leak’s attorneys note that the defendant was in the police cruiser during the officer’s search, and they stress that the officer cited no reason to think the car contained evidence of domestic violence.
State’s Response
Attorneys from the Richland County Prosecutor’s Office argue the officer had the right to impound the vehicle within the police’s community-caretaking function. When towing the car is reasonable under the caretaking role, an inventory search of the car is permitted by the Fourth Amendment, they contend. They also cite a 2012 case in which the Ninth District Court of Appeals determined that a vehicle can be impounded if the occupant of the vehicle is arrested.
Tests for deciding whether an inventory search is legal include a determination whether the search conducted in good faith and whether the search was done for a reason other than logging the vehicle’s contents. The prosecutors maintain that these tests don’t apply under Ohio law when there is a valid search incident to an arrest.
In addition, they assert that Leak waived several of his arguments because he didn’t raise them properly in the lower courts.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Quayshaun Leak from the Ohio Public Defender’s Office: Eric Hedrick, 614.466.5394
Representing the State of Ohio from the Richland County Prosecutor’s Office: Clifford Murphy, 419.774.5676
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