Tuesday, April 5, 2016
Anthony Sowell v. State of Ohio, Case no. 2011-1921
Cuyahoga County Common Pleas Court
Cleveland Clinic Foundation et al. v. David Antoon et al., Case no. 2015-0467
Eighth District Court of Appeals (Cuyahoga County)
State of Ohio v. Jermain Thomas, Case no. 2015-0473
Eighth District Court of Appeals (Cuyahoga County)
In Re: D.S., a minor child, Case no. 2015-0505
Eighth District Court of Appeals (Cuyahoga County)
Death Penalty
Anthony Sowell v. State of Ohio, Case no. 2011-1921
Cuyahoga County Common Pleas Court
Anthony Sowell of Cleveland is appealing his convictions and death sentence for the murders of 11 women, the attempted murders of three more women, and other crimes between 2007 and 2009.
Sowell lived in his stepmother’s house on Imperial Avenue in Cleveland. On Sept. 23, 2009, Latundra Billups went to the hospital to report she had been raped. Billups gave a statement to police that Sowell had attacked and raped her in his house the day before. Police obtained an arrest warrant and a search warrant, and sent a SWAT team to the home on Oct. 29. Sowell wasn’t there when they arrived, and police searched the premises.
During the next five days, the bodies of five women and the skull of another woman were found throughout the house. The bodies of five more women were uncovered in the backyard. Most of the women had been strangled.
Cleveland police located and arrested Sowell on Oct. 31. They interviewed him for 11 to 12 hours total during two days.
Jury Convicts Sowell on 81 Counts
A Cuyahoga County grand jury indicted Sowell on 85 counts in December 2009. The jury trial began in June 2011. After the trial court dismissed three counts, the jury acquitted Sowell of one aggravated robbery count and found him guilty of the other 81 crimes. He was convicted of multiple counts of aggravated murder, attempted murder, felonious assault, rape, kidnapping, abuse of a corpse, and tampering with evidence. The jury unanimously recommended the death penalty, and the trial court imposed the death sentence.
Suppression Hearing Closed to Public
Before his trial began, Sowell asked the court to suppress statements he made to police during his interrogation. For the hearing on the issue, the judge decided to close the courtroom, expressing concern about tainting the jury pool if the details of the interrogation were released publicly before trial. The state and Sowell each note in their briefs that Sowell objected to closing the courtroom to the public.
To overcome Sowell’s right to a public suppression hearing, the party asking for closure has to present an overriding interest that would likely be prejudiced in an open proceeding. In addition, the closure must not be more extensive than needed, and the trial court has to consider reasonable alternatives and offer findings to support any closure. These four requirements are based on the 1984 U.S. Supreme Court decision in Waller v. Georgia.
Sowell contends the trial court didn’t explore other options to closing the courtroom and never presented findings to defend the need for a closed hearing. He maintains he should be given a new suppression hearing and a new trial because his constitutional public trial rights were violated.
The state notes that the trial court closed the courtroom to protect Sowell’s right to a fair trial. Ensuring an impartial jury was the court’s overriding interest, the court only closed the hearing during the review of the interrogation, and there were no reasonable alternatives, the state contends. The state concludes the trial court met all the requirements set out by the U.S. Supreme Court. If, however, the Ohio Supreme Court determines these findings were insufficient to justify the closed hearing, the state argues the remedy is to start with a new and open suppression hearing rather than a new trial.
Potential Jurors Questioned in Private
In January 2010, Sowell sent the trial court a written request for individually sequestered voir dire, during which potential jurors would be questioned individually rather than in groups. The court granted the request and closed the courtroom in June 2011 during individual juror interviews.
Sowell asserts that he never asked the court to bar the public and media from voir dire, only to question each juror alone. In Presley v. Georgia (2010), the U.S. Supreme Court applied the four Waller criteria to the voir dire process. Sowell maintains that no overriding interest existed to justify cutting off public access, that the closure of the substantive part of voir dire – the questioning itself – was too broad, and that the court failed to explore other alternatives, such as banning photographs of potential jurors to protect their privacy. Nor did the court’s concerns reflect the necessary findings to warrant the closed proceedings, Sowell argues. In his view, his conviction should be overturned because his public trial right was denied.
The state notes that the Cleveland Plain Dealer contacted the court’s administrator to protest the closed jury questioning. The prosecutor then asked the court to put its reasons for closing the courtroom, based on Presley and Waller, on the record. The court explained that jurors would be more open about their opinions on the death penalty in a closed session and that taking the step protected Sowell’s “right to a trial by an impartial jury,” which qualifies as an overriding interest. The court also stated its orientation and introduction to voir dire was open, not closing the proceedings completely wasn’t too broad and instead was a reasonable alternative, and these findings supported closing the courtroom.
The state also maintains not only that Sowell didn’t formally object to the closed voir dire but also that the defendant actually requested jury questioning away from the public and media. As a result, Sowell’s rights weren’t violated, it asserts. However, Sowell explains that the court, at the state’s urging, asked him after the court’s rationale was made on the record if he was willing to waive his right to a trial by jury. His attorney responded, “We waive nothing, your honor.” Sowell states that this response indicated his objection.
The state, “out of an abundance of caution,” then asked the court to declare a mistrial, but the court declined. (The court later released transcripts of the voir dire proceedings.) Ultimately, though, the state argues, the court met the Waller and Presley criteria.
An amicus curiae brief supporting Sowell’s position on his right to open proceedings was filed by the American Civil Liberties Union of Ohio Foundation.
Need for Change of Venue Disputed
In his other claims, Sowell argues his trial should’ve been moved to another location because of the “unmitigated media circus” about the murders and the case.
“[C]ommunity passions, often inflamed by adverse pretrial publicity, can call the integrity of a trial into doubt” and increase the danger of juror bias against a defendant, Sowell writes in his brief, adding that it was impossible under the circumstances to find an unbiased jury in Cuyahoga County and conduct a fair trial.
The state counters, however, that a defendant must show at least one juror was actually biased by pretrial publicity to warrant a change of venue. Sowell hasn’t met this standard, the state maintains. Nor does Sowell meet an exception to the actual bias requirement by presenting evidence of pervasive prejudice, the state adds. Noting that 19 months passed from the discovery of the bodies to the start of jury questioning, the state argues the effects of pretrial publicity had subsided and the court took other steps, such as having jurors answer questions about publicity and limiting their media access during trial, to protect Sowell’s rights.
Additional Arguments and Responses
Sowell also contends the trial court should’ve allowed potential jurors to be asked their perspective on specific mitigating circumstances, and some jurors should have been disqualified because of their statements about his guilt or about their preference for the death penalty in this type of case. He also takes issue with four of the rape charges, maintaining they were so vague that he wasn’t given clear notice of the allegations against him. He disputes his trial lawyers’ strategy, which he contends should have focused on strengthening his mitigation case rather than trying to establish reasonable doubt about his guilt.
The state responds that the Ohio Supreme Court has ruled that defendants in capital cases have no right to question the jury pool about individual mitigating factors. The state accuses Sowell of attempting to try his mitigation case with potential jurors before the trial began. As far as specific jurors, the state contends that none of them said they would automatically recommend a death sentence and they each assured the court they could follow the law despite any opinions they had expressed. On the rape charges, the state writes those women’s identities were provided well in advance of trial along with the dates of the alleged attacks. And Sowell’s attorneys weren’t deficient when they put effort into the trial’s guilt phase, the state argues. The prosecutor was required to prove Sowell’s guilt beyond a reasonable doubt, and his attorneys needed to ensure the burden was met, the state explains.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Anthony Sowell from the Cuyahoga County Public Defender’s Office: Jeffrey Gamso, 216.443.3669
Representing the State of Ohio from the Attorney General’s Office: Katherine Mullin, 216.787.5847
Does Refiling of Medical Malpractice Case Have to Happen Within Four Years of Discovering Injury?
Cleveland Clinic Foundation et al. v. David Antoon et al., Case no. 2015-0467
Eighth District Court of Appeals (Cuyahoga County)
ISSUES:
- Does Ohio’s “statute of repose” for medical malpractice claims apply to cases where a patient discovers an injury within four years of the date it occurred and files a lawsuit after four years?
- Is a medical malpractice claimed barred by the statute of repose if it was originally filed before the four-year time limit, voluntarily dismissed, and refiled after four years?
- Do the “savings statutes” in R.C. 2305.19 and the federal 28 U.S.C. 1367(d) trump the statute of repose and give those claiming medical malpractice extra time to pursue legal action?
BACKGROUND:
In November 2007, David Antoon was diagnosed with prostate cancer at age 59. At the time he was a pilot at United Airlines and sought out treatment for the cancer. He selected Dr. Jihad Kaouk, director of the Center for Robotic and Image Guided Surgery at Cleveland Clinic, and wrote on a consent form that only Kaouk was authorized to perform the robotic prostatectomy he sought.
On the day of surgery, Dr. Raj Goel, a fellow in the clinic’s urology department, entered the operating room for the surgery, and told Antoon that Kaouk was busy with another surgery but would arrive later. Medical records didn’t indicate Kaouk was present, and Antoon reported suffering from complications from his surgery.
Antoon ended his treatment with Kaouk in December 2008 claiming the surgery left him impotent and incontinent. He was forced to retire from United because he failed a fitness test, which he blamed on permanent injuries from the prostatectomy.
Antoon Moves Lawsuits Between State and Federal Court
In December 2009, Antoon served a “180-day letter” to the Cleveland Clinic Foundation, naming the clinic, Kaouk, Goel, and Dr. Michael Lee (collectively referred to as the clinic) in a medical malpractice claim. Ohio law requires a patient claiming medical malpractice to file a lawsuit within one year of discovering the injury or the last time treatment was sought from a doctor. However, if the 180-day letter notifying the medical providers of an intent to sue is filed before the one-year deadline, the patient is given another six months to file suit.
Antoon sent the letter before the December 2009 deadline and filed suit in June 2010, meeting the 180-day deadline. Antoon’s suit was first filed in the Cuyahoga County Common Pleas Court. The case was dismissed without prejudice and refiled in June 2011. Within a year, Antoon then filed a “qui tam” lawsuit against the clinic in May 2012 in U.S. District Court. Qui tam lawsuits are commonly known as federal whistleblower lawsuits that reward citizens who file cases to recover funds for the government, and are commonly filed against medical providers taking payment from federal government sources.
The clinic was successful in having the court dismiss the case, arguing Antoon was trying to make a federal case out of his medical malpractice claim, and that his case should be heard in state court. The federal court sided with the clinic in October 2013, and within 30 days of the ruling, Antoon then refiled the case back in county common pleas court.
The clinic again objected to the refiling of the case, arguing that the statute of repose for medical malpractice, R.C. 2305.113(C), required the case be filed within four years of Antoon’s last treatment by Kaouk, which was in December 2008. Since it was past four years, the case was barred, the clinic argued. The trial court agreed.
Antoon appealed to the Eighth District Court of Appeals, which ruled that the four-year time limit didn’t apply because Antoon’s claim “vested” within the one-year statute of limitations of his original lawsuit. The appellate court stated the statute of repose doesn’t impact the refiling because Antoon followed the saving statutes that allowed him to extend the deadline. The clinic appealed to the Supreme Court, which agreed to hear the case.
First Test of Time Limit Since 2003 Tort Reform
This case presents the first time the Supreme Court will consider how the medical malpractice statute of repose applies to a situation where the patient discovers an injury during the four-year time limit. The case has drawn attention from major organizations representing Ohio hospitals, doctors and personal injury lawsuit attorneys, which all filed amicus curiae briefs in the case.
Both sides reference the Supreme Court’s 2012 Ruther v. Kaiser decision in which an appellate court had declared R.C. 2305.113(C) unconstitutional. In a 6-1 decision, the Court found Ohio had a similar law to 31 other states that gave it the constitutional right to set a time limit on when a malpractice suit could be brought. The Court noted the General Assembly reworded the statute of repose as part of its comprehensive 2003 tort reform, and ruled that even if the statute had the harsh consequence of barring someone who was unable to discover the injury within four years, it was within the lawmakers rights to set the limit. The dissenting justice argued that the Ohio Constitution’s Article 1, Section 16 “right to remedy” clause prevented the Ohio General Assembly from placing any time limit that a person has to discover an injury.
Clinic Asserts All Claims Must Be Filed Within Four Years
Except for certain situations that aren’t part of Antoon’s case, the statute requires all claims to be filed with the four-year limit, the clinic argues. In the Ruther case, the injury wasn’t discovered until 10 years after the last time the patient was treated, and the lawsuit was filed more than six years after the four-year time limit. Antoon discovered his injury within a year. Ohio courts have termed the moment when the injury is discovered or should have been discovered as “vesting,” meaning Antoon’s injury vested within the four-year time limit, while the claim in Ruther didn’t and was described as “non-vesting.”
The clinic argues the Eighth District misapplied the Ruther decision by finding R.C. 2305.113(C)(2) covers only non-vesting claims. The Eighth District determined the four-year time limit doesn’t apply to vested claims.
The clinic states in its brief that the Eighth District’s interpretation of R.C. 2305.113(C)(2) is too narrow. The statute reads: “If an action upon a medical, dental, optometric, or chiropractic claim is not commenced within four years after the occurrence of the act or omission constituting the alleged basis of the medical, dental, optometric, or chiropractic claim, then, any action upon that claim is barred.”
The clinic argues the law doesn’t distinguish between vested and non-vested rights to file a lawsuit. It just requires the suit be filed within four years. Since Antoon voluntarily withdrew his lawsuit from the trial court within the time limit, then waited until nearly two years after the deadline to refile it, he missed the deadline and can’t sue, the clinic suggests.
The clinic argues the Eighth District overstates the significance of the Supreme Court’s Ruther ruling, which determined the statute of repose “did not extinguish a vested right.” Because Antoon’s right vested, the appellate court interpreted the Ruther ruling to mean the statute can’t be used to extinguish Antoon’s right to continue his lawsuit as long as he followed all other laws that allow a case to extend beyond the stated deadlines. The clinic contends that because the claim in Ruther wasn’t vested, it doesn’t mean it should apply only to claims that have not vested, but rather the decision should be interpreted to mean the four-year limit is constitutional and applies to all claims.
The clinic also cited the Supreme Court’s 1984 Zimmie v. Zimmie decision, which found a previously filed lawsuit that has been withdrawn is treated as if it has never commenced. The clinic argues that since Antoon voluntarily withdrew his first lawsuit, it should be treated as not having been filed. That would mean the November 2013 refiling in common pleas court would be the only date applicable to the time limit, and it took place after the four-year deadline, the clinic asserts.
Ruther Decision Should Apply, Antoon Argues
Antoon suggests the Court’s holding in Ruther is a simple rule that should be followed in his case.
“If the claim has vested within four years of the malpractice, the statute of repose has no effect on the claim. If the claim has not vested within four years of the malpractice, absent one of the exceptions in R.C. 2305.113(D), the claim is extinguished. This is neither complex nor unworkable. The (clinic and doctors) simply do not like the holding, and thus attempt to make it look like some complex conundrum,” stated Antoon’s brief.
Antoon argues the purpose of the statute of repose is to eliminate indefinite potential liability of medical practitioners, and that purpose isn’t frustrated by a patient who filed a lawsuit within the one-year statute of limitation and then received extensions using saving statutes. Further, the statute of repose is intended to protect medical providers against first becoming aware of an issue that led to a lawsuit years after the procedure, he suggests. That was not Antoon’s situation because the clinic was on notice of a problem when he filed his lawsuit with a year and a half of this last treatment, and continued to press his case against the clinic in various courts.
Antoon also contends that the savings statutes in state and federal law trump the statute of repose. Antoon first invoked R.C. 2305.19 after voluntarily dismissing the case from state court to federal court. After the federal court dismissed the case against the clinic, Antoon then relied on 28 U.S.C. 1367(d), which states that a party whose case is dismissed in federal court can refile a lawsuit in state court within 30 days of the decision, or longer if a state allows a longer time period. Antoon notes that he filed within 30 days.
Friend-of-the-Court Briefs
An amicus curiae brief supporting the clinic’s position has been submitted jointly by the Ohio Hospital Association, the Ohio State Medical Association, and the Ohio Osteopathic Association. The groups argue the Eighth District decision upsets the carefully crafted timeframe for medical malpractice cases that provides “certainty and finality” to medical providers about the lawsuits they may face for their work. The groups explain that in the Ruther decision, the Court ruled the state constitutional “right to remedy” applies to vested claims, and since the claim in Ruther had not vested, there wasn’t a violation of the constitution. However, they argue, that for a vested claim like Antoon’s, the “right to remedy” clause doesn’t mean the person has the right to sue at any time. Instead, they state the Court has found the General Assembly has the right to impose reasonable time limits on the filing of court actions, and that the four-year time limit applies to Antoon’s vested claim. The Academy of Medicine of Cleveland & Northern Ohio also filed a brief in support of the clinic.
The Ohio Association of Justice filed an amicus brief supporting Antoon. The association suggests the Court find the law doesn’t apply to vested claims, and if it does, then it should find that the savings statutes trump the statute of repose and Antoon’s claim is still valid. And if the Court finds that the statute of repose applies to all claims and the savings statutes don’t trump it, the association then argues the law is unconstitutional.
- Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the Cleveland Clinic Foundation et al.: Martin Galvin, 216.687.1311
Representing David Antoon et al.: Dwight Brannon, 937.228.2306
Which Sentencing Law Applies to Offender Convicted of 1993 Crimes but Sentenced in 2014?
State of Ohio v. Jermain Thomas, Case no. 2015-0473
Eighth District Court of Appeals (Cuyahoga County)
ISSUE: Is a defendant who commits a criminal offense before July 1, 1996, but is sentenced years later, in 2014, subject to the sentencing laws in effect at the time of the offense, or subject to the sentencing provisions of Senate Bill 2, effective July 1, 1996, or the sentencing provisions of House Bill 86, effective Sept. 30, 2011?
BACKGROUND:
A woman identified by the initials A.W. was walking to her cousin’s home in Cleveland on June 28, 1993, when a man with a gun approached her and forced her into a field behind a house and raped her. Afterward, the woman ran home and contacted a friend. Police were called, and A.W. went to a hospital where a rape kit was collected. She said the man who attacked her had a gun, but she was unable to describe him because it was dark and she didn’t see his face.
Thirteen years later, in 2006, the Ohio Bureau of Criminal Investigation tested evidence from the rape kit, which indicated a match between the collected DNA and that of Jermain Thomas. However, A.W. told a detective she didn’t want to pursue the case at that time, and it was closed.
An investigator from the Cuyahoga County Prosecutor’s Office then contacted A.W. in 2013 to tell her the office planned to move forward with prosecuting the case.
Following a trial, the jury found Thomas guilty of both rape and kidnapping, along with two specifications because he used a firearm during the crimes. In March 2014, the court sentenced him to prison for eight to 25 years, plus three additional years for the firearm. The court imposed Thomas’s sentenceusing the 1993 statutes in effect when he committed the crimes.
Appeals Court Reverses Sentence, Concludes Later Law Should Apply
Thomas appealed to the Eighth District Court of Appeals. In one of his claims, Thomas argued he should’ve been sentenced based on the most recent sentencing provisions, which were enacted in House Bill 86, effective Sept. 30, 2011. The appeals court agreed, set aside Thomas’s sentence, and ordered the case back to the trial court for resentencing based on H.B. 86’s sentencing law.
The Cuyahoga County Prosecutor’s Office appealed to the Ohio Supreme Court, which agreed to consider the dispute.
Lawmakers Change Sentencing Laws in 1996 and 2011
The arguments in the case center on two pieces of legislation passed by the Ohio General Assembly since Thomas’s 1993 crimes – Senate Bill 2, which went into effect on July 1, 1996, a few years after Thomas’s offenses, and H.B. 86.
The Senate bill has been referred to as the “truth in sentencing” law because it in part created fixed punishments for many offenses. One of the bill’s provisions, as amended soon after, stated the new law applied only to crimes committed after July 1, 1996, “notwithstanding division (B) of [R.C.] 1.58.”
The House bill altered felony sentences and classifications. When it took effect, H.B. 86 stated that the amendments “apply to a person who commits an offense specified or penalized under those sections on or after the effective date of this section and to a person to whom division (B) of section 1.58 of the Revised Code makes the amendments applicable.”
R.C. 1.58(B) specifies, “If the penalty, forfeiture, or punishment for any offense is reduced by a reenactment or amendment of a statute, the penalty, forfeiture, or punishment, if not already imposed, shall be imposed according to the statute as amended.”
Thomas Should Be Sentenced Based on Pre-S.B. 2 Law, Prosecutor Argues
The Cuyahoga County prosecutor contends that the law in effect in 1993, when Thomas committed his crimes, is the law to use for deciding Thomas’s sentence. The prosecutor points to the Ohio Supreme Court’s 1998 decision in State v. Rush, which concluded that S.B. 2’s sentencing provisions applied only to offenses committed on or after July 1, 1996, and he describes the ruling in his brief as “a clear divide” recognized by the Court.
He maintains that the application of S.B. 2 to only those offenses that took place after its effective date wasn’t altered by H.B. 86. He notes the disputed provisions from S.B. 2 and H.B. 86 were each included as uncodified law in bills. This type of law doesn’t become part of the Ohio Revised Code because it isn’t general and permanent. The prosecutor asserts that H.B. 86 had to more explicitly amend or repeal S.B. 2’s uncodified provision to change which sentences are imposed on defendants, but H.B. 86 didn’t do that.
Nor does R.C. 1.58(B) apply to Thomas, the prosecutor argues, because S.B. 2 again restricts its application to those offenders who committed their crimes after the 1996 effective date.
While Thomas cites State v. Limoli, a 2014 Ohio Supreme Court decision interpreting which offenders are affected by the amended sentencing law in H.B. 86, the prosecutor notes that Limoli, unlike Thomas, committed his crimes after S.B. 2’s effective date, and also asserts the case involved a different uncodified provision, which created an exception for certain specific offenses committed before H.B. 86’s effective date. That exception doesn’t apply to Thomas’s crimes, though, the prosecutor maintains.
Offender Maintains Current Law Governs His Sentence
Thomas counters that H.B. 86 applies to offenders penalized, or sentenced, after Sept. 30, 2011, regardless of when the crime took place, and he was sentenced in 2014. He argues the legislature intended H.B. 86’s more lenient sentences to cover all defendants, no matter when their crimes occurred. The law was designed to save money, to send fewer people to prison, to hold them for less time, and to allow for earlier release, Thomas explains, noting that Limoli acknowledged these goals.
The organizations filing amicus curiae briefs supporting the prosecutor claim H.B. 86 doesn’t necessarily reduce the punishment that would’ve been imposed under earlier laws, so R.C. 1.58 wouldn’t be relevant. The sentencing ranges imposed under pre-S.B. 2 law allowed for the release of defendants before the least number of years in the range was served. An offender sentenced to eight to 25 years could be released in less than eight years because of credits given for good behavior. Thomas maintains, though, that H.B. 86 imposes lesser sentences overall than S.B. 2, and, given that, R.C. 1.58 becomes a factor.
While Thomas notes he would be sentenced to a maximum of 11 years in prison under S.B. 2 and H.B. 86, he contends that under pre-S.B. 2 law he would serve more than 11 years. He asks the Court to affirm the Eighth District’s decision ordering the lower court to impose his prison term based on H.B. 86’s felony sentencing provisions.
Additional Briefs Filed
Amicus briefs supporting the Cuyahoga County Prosecutor’s Office were submitted by the Franklin County Prosecuting Attorney and the Ohio Prosecuting Attorneys Association.
- 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: Daniel Van, 216.443.7800
Representing Jermain Thomas: Russell Bensing, 216.632.9161
Does Granting Zero Credit for Time Served Violate Juvenile’s Constitutional Rights?
In Re: D.S., a minor child, Case no. 2015-0505
Eighth District Court of Appeals (Cuyahoga County)
ISSUE: Under Ohio law and in accordance with the Fifth and Fourteenth Amendments to the U.S. Constitution, must a juvenile court grant credit for time spent in jail in connection with a previously filed case, including time for which a child was held on charges that were dismissed?
BACKGROUND:
On May 14, 2013, a complaint against D.S., who was 17 years old at the time, was filed in the Cuyahoga County Juvenile Court alleging two counts of aggravated robbery with two firearm specifications. If committed by an adult, the crimes would be felonies.
D.S. was arraigned on May 20, 2013, and sent to a juvenile detention center. In July 2013, the juvenile court found probable cause that D.S. committed the acts charged and transferred his case to common pleas court for criminal prosecution as an adult. The court imposed a $50,000 bond and sent D.S. to county jail where he remained for several months because he couldn’t post bail.
Plea Agreement between D.S. and State
In February 2014, D.S. and the state informed the common pleas court that they’d reached a plea agreement where the aggravated robbery charges would be dismissed in exchange for D.S.’s admission to robbery with a one-year firearm specification. Based on the agreement, the state filed a new complaint in juvenile court charging D.S. with the lesser crimes and dropping its criminal case.
Court Grants Zero Days Credit, D.S. Appeals
D.S.’s juvenile case was decided on Feb. 28, 2014. He was sentenced to a one-year minimum commitment consecutive with a mandatory court-imposed year commitment for the gun specification to be served at the Department of Youth Services (DYS). By this time D.S. had served nearly nine months, mostly in an adult jail. The court, however, granted him no credit for time served, finding that the February 2014 complaint was a new case.
Both D.S. and the state advised the court that the new complaint was a refiling of the 2013 case, and they agreed the court should credit the time D.S. already spent in jail toward his newly imposed two-year commitment to DYS. The court refused to credit D.S. with the 286 days he already served, which led to an appeal to the Eighth District Court of Appeals. D.S. argued his confinement under the original 2013 complaint was in connection with the “new” 2014 complaint.
Even though the Cuyahoga County Prosecutor’s Office, which prosecuted the case, agreed the juvenile court was in error, the Eighth District affirmed the lower court’s ruling. The Eighth District held that Ohio’s juvenile confinement credit statute (R.C. 2152.18(B)) requires courts to calculate credit only for time a child is confined under a specific complaint. The court reasoned that D.S.’s confinement for the 2013 complaint didn’t entitle him to credit for the one filed in 2014.
D.S. claims his case raises substantial constitutional issues and appealed to the Ohio Supreme Court, which agreed to hear the case.
Narrow Interpretation of Juvenile Confinement Credit Statute
D.S. and the state both argue that the Eighth District’s interpretation of R.C. 2152.18(B) is too narrow and violates D.S.’s constitutional right to due process and equal protection. In his brief to the Supreme Court, D.S. states, “The plain language of R.C. 2152.18(B) requires that a child be credited with the time he is confined in connection with his commitment to DYS.”
D.S. claims under both Ohio law and Ohio Supreme Court precedent, he should be credited for time served. In In Re: Thomas (2003), the Court held juveniles are entitled to receive credit for any time they are confined in connection with their offense of commitment.
Here, the juvenile court didn’t credit D.S. with the time he was confined because of how the original complaint and new case were filed. Even so, D.S. argues the juvenile court and Eighth District’s interpretation doesn’t apply the plain language of the statute.
An Unjust and Unfair Result?
In its brief, the state contends, “The Eighth District’s decision in this case leads to an unjust and fundamentally unfair result….” According to R.C. 1.47(C), when enacting a statute, it’s presumed that the Ohio legislature intended a “just and reasonable result.” And the state cites State v. Wells (2001), another Ohio Supreme Court case, which held, “Statutes will be construed to avoid unreasonable or absurd consequences.”
Both parties in this case agree that it would be fundamentally unfair to deny D.S. credit for the jail time he served while he was waiting for his case to be heard. The state contends that the Eighth District has interpreted R.C. 2152.18(B) so narrowly that juveniles may now lose all credit for time served when an original complaint is dismissed and a new complaint is filed on the exact same incident.
The state maintains that the Eighth District’s holding denies juveniles basic constitutional guarantees that R.C. 2152.18(B) is meant to protect and, along with D.S., asks the Court to reverse the Eighth District’s decision.
Oral Argument Waived
The Cuyahoga County Prosecutor’s Office has chosen to waive oral argument. Usually when cases go to the Supreme Court, each side presents their arguments to the chief justice and six justices. In this instance, however, only D.S. will offer his positions before the Court.
- Rachael S. Ingram
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the 2015-0505case docket.
Contacts
Representing D.S.: Brook Burns, 614.466.5394
Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Frank Zeleznikar, 216.698.2726
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.
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