Court News Ohio
Court News Ohio
Court News Ohio

Tuesday, Dec. 5, 2017

State of Ohio v. Austin Gregory Myers, Case no. 2014-1862
Warren County Common Pleas Court

State of Ohio v. Lamone E. Upkins, Case no. 2016-1742
Third District Court of Appeals (Shelby County)

State of Ohio v. Michael T. Paige, Case no. 2016-1848
Eighth District Court of Appeals (Cuyahoga County)

Death Penalty

State of Ohio v. Austin Gregory Myers, Case no. 2014-1862
Warren County Common Pleas Court

The Ohio Supreme Court is considering an automatic appeal from Austin G. Myers, who received the death penalty for the 2014 murder of a Waynesville man.

Duo Decides to Rob Waynesville Acquaintance
Justin Back lived in Waynesville with his mother and stepfather. On Jan. 27, 2014, Back’s stepfather arrived home from work. Back was home, and he introduced his stepfather to Myers and Timothy Mosley, who were visiting. Back and Myers knew each other from high school.

The next day, Jan. 28, when Back’s stepfather arrived home from work, he found items misplaced in the house, the kitchen rugs were gone, and Back’s cell phone was on the floor. Back’s stepfather and mother discovered that a watch, jewelry box, pistol, and safe were missing, and they called police. Neighbors said they saw the visitors’ car from the day before at the house that day.

Officers later located Myers, Mosley, and Logan Zennie in Clayton, about an hour from Waynesville, and found the missing safe in Zennie’s bedroom. Detectives from the Warren County Sheriff’s Office arrived in Clayton and spoke with Myers in a police vehicle and later at the local police station. Myers was taken back to Mosley’s house. The detectives also spoke to Mosley and Zennie at the police station. After the conversation with Zennie, detectives arrested Myers and Mosley.

Back’s body was discovered in West Alexandria in Preble County. He had been choked, stabbed repeatedly in the back, and shot. He was 18 years old.

Co-Defendant Testifies
Myers, who was 19, pled not guilty in February 2014 to counts of aggravated murder, kidnapping, aggravated robbery, aggravated burglary, firearm theft, tampering with evidence, safecracking, and abuse of a corpse. Death-penalty and firearm specifications were included with some of the charges.

Mosley, also 19, testified against Myers during the trial in exchange for a sentence of life without parole. Mosley said he and Myers knew each other, but he didn’t know Back before these few days in January 2014. Myers and Mosley stayed at Zennie’s house in Clayton the night of Jan. 26. The next morning, Myers asked Mosley if he wanted to make some money, suggesting either robbing a drug dealer or going to Back’s house in Waynesville where Myers knew Back’s stepfather had a safe.

They visited Back’s house that day, chatted with Back, and decided to leave and return later. Mosley said at that point Myers suggested that they kill Back, and Mosley offered some ideas how. They returned to Back’s house and watched a movie. They left when Back’s stepfather came home, and later went shopping to buy supplies for the murder.

According to Mosley, they returned to Waynesville on Jan. 28, bought more supplies, and went to Back’s home in the early afternoon. Back was home and invited them into the house. While Back retrieved drinks from the refrigerator, Mosley strangled Back from behind with a garrote Zennie had made for them, while Myers held Back. When Mosley realized he didn’t have the wire around Back’s neck, he panicked, pulled out a knife, and stabbed Back multiple times. They put Back’s body into the trunk of Mosley’s car, and took belongings from the house. They dumped Back’s body in a West Alexandria field, where Myers shot the body with the gun they had stolen from the house.

After the prosecutor finished presenting its case, Myers’ attorneys called no witnesses.

Jury Recommends Sentence of Death
The jury found Myers guilty on all charges and specifications and recommended the death penalty. The trial court agreed and imposed a death sentence.

Because of the death sentence, Myers is entitled to an automatic direct appeal to the Ohio Supreme Court to review his case. Myers has raised 18 legal arguments challenging the death sentence in his case and asking for a new trial.

He Was Only an Accomplice, Myers Insists
Myers argues that he was an accomplice in the murder and was less culpable than Mosley, whom Myers describes as the principal offender. Myers contends that his death sentence is cruel and unusual and disproportionate because Mosley stabbed Back 21 times but received only a sentence of life without parole. He notes that he didn’t know Mosley was going to stab Back. If Mosley didn’t receive the death penalty, then he shouldn’t either, Myers states. He asserts that a sentence of death in these circumstances violates his due process rights and the Eighth Amendment protection against cruel and unusual punishment.

Myers Planned and Executed Murder, Prosecutor Argues
The Warren County Prosecutor’s Office responds that, according to the Ohio Supreme Court, a review of whether a death sentence is proportional is limited to comparing cases in which the death penalty has been imposed for the same crime. Mosley and Myers received different sentences, and Myers’ death sentence can’t be compared with Mosley’s life-without-parole sentence, the prosecutor states. In addition, the prosecutor maintains that Myers’ role in the murder was “critical.”

“Myers was the instigator, architect, and a vital participant in planning Back’s murder, and the record is replete with examples of Myers’ culpability,” the prosecutor’s brief states.

His Youth Should Have Had More Weight, Myers Asserts
Given a series of juvenile cases from the U.S. Supreme Court, Myers also maintains that his youth at the time of the crime and other developmental issues indicate that he shouldn’t receive the death penalty. One of the U.S. Supreme Court rulings discusses how juveniles lack maturity, leading to reckless, impulsive, and dangerous risk-taking behavior. Citing a 2015 Illinois appellate court decision and arguing that the 18-year-old line between youth and adult is arbitrary, Myers states that neuroscience shows human brains continue to develop well into the mid-20s and that the Illinois court found the life-without-parole sentence in that case “shocks the moral sense of community.”

He adds that he had no criminal record before these offenses. Myers’ mother also testified he was a troubled teen with mental health issues and he received medical and psychiatric care during his childhood. He contends these mitigating factors, especially his age, outweighed the aggravating circumstances and he shouldn’t receive the death penalty.

His Age Was Considered, Prosecutor Responds
Noting that Myers wasn’t a juvenile at the time of the crimes, the prosecutor explains that the U.S. Supreme Court hasn’t barred execution of 19-year-olds. The prosecutor contends that no evidence was presented that Myers was as immature and vulnerable as someone under 18 or that he suffered from mental issues. As for the Illinois case, the prosecutor argues that the law there didn’t allow age to be considered as a mitigating factor when imposing a life sentence. However, Ohio’s statute does, and the trial court considered Myers’ youth and determined his crime outweighed the significance of his age.

Admissibility of Myers’ Statements to Police Disputed
Myers also argues that some of his statements to police shouldn’t have been admitted at the trial. He states that while he was handcuffed and held in a police car in Clayton, a detective questioned him. Also, he argues he never waived his Miranda rights later at the police station, and police never obtained a written waiver. During one interrogation, Myers states he asked for an attorney and was never given one. He then talked to police about his role in the crimes. His confession was unknowing and involuntary, and his request at trial to suppress these statements should have been granted to ensure a fair trial, he concludes.

The prosecutor counters that when Myers made his initial statements to police in the police vehicle, he wasn’t in custody. The detective didn’t realize Myers was handcuffed in the vehicle and later had the restraints removed at the police station during his voluntary interview, the prosecutor explains. Also, Myers willingly answered questions in the vehicle and during the first visit to the police station – where he was told he wasn’t under arrest, the prosecutor states, arguing that Miranda warnings weren’t necessary. After his arrest, the prosecutor notes that Myers said he understood his rights. A few minutes into the questioning, he asked for a lawyer. However, a few hours later, Myers tapped on the holding room window and said he wanted to speak with detectives. He made voluntary statements at that time about the crimes to the police, the prosecutor’s concludes.

Timing of Disclosure of Some Critical Evidence Contested
Myers also maintains that the prosecutor failed to disclose certain evidence in a timely manner. He argues that Mosley was added to the state’s witness list just days before the trial began, and a journal in which Mosley allegedly wrote down supplies for the murder wasn’t provided until right before trial. Without Mosley’s testimony and the journal evidence, the state wouldn’t be able to prove prior calculation and design, which was required to impose the death sentence in his case, Myers states.

The prosecutor asserts that staff told Myers’ attorneys days before the trial that Mosley would testify and that Myers’ attorneys said they didn’t need a continuance to prepare because they had Mosley’s earlier recorded statement to police. According to the prosecutor, Mosley didn’t inform the prosecutor’s office about the journal until right before voir dire was to begin, and the state complied with discovery rules with this evidence as soon as possible.

- Kathleen Maloney

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

Representing Austin G. Myers: Timothy McKenna, 513.381.7111

Representing the State of Ohio from the Warren County Prosecutor’s Office: David Fornshell, 513.695.1325

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Must Trial Court Appoint New Attorney When Trial Lawyer Acts as Appellate Counsel and Argues Client’s Claims Are Frivolous?

State of Ohio v. Lamone E. Upkins, Case no. 2016-1742
Third District Court of Appeals (Shelby County)

ISSUE: When appellate counsel also served as trial counsel and asks to withdraw from the appeal pursuant to the U.S. Supreme Court decision in Anders v. California (1967), must the trial court appoint new appellate counsel to review the record and raise any non-frivolous appealable issue in an appeal?

In October 2015, Lamone E. Upkins was charged in Shelby County with 12 counts of drug trafficking during a three-month period earlier that year. In a plea bargain made a few months later, Upkins said he would plead guilty to five counts of trafficking, while the prosecutor agreed to dismiss the other seven counts. In exchange, they would jointly recommend a four-year prison sentence to the trial court.

At the sentencing hearing, Upkins’ attorney and the prosecutor acknowledged Upkins’ lengthy criminal record, which the court reviewed. When the trial judge described a 2001 conviction, Upkins disputed comments made by the judge. The court noted a probation violation, stating that Upkins had been given community control and time in a treatment center. But he said the treatment facility didn’t accept him so he was sent to prison and never violated community control. The court in the 2015 case then sentenced Upkins to a prison term longer than had been agreed to – four years, 10 months. Upkins pointed out the broken plea agreement to the court.

Same Attorney Represents Upkins on Appeal
Upkins appealed to the Third District Court of Appeals, and his attorney at trial was assigned again to represent him. His attorney filed a brief asking to withdraw from the case, arguing that the potential claims in the appeal were frivolous. This type of brief is referred to as an Anders brief, named for the 1967 U.S. Supreme Court opinion Anders v. California. Upkins, acting pro se, filed his own brief with the appellate court, raising various issues.

However, the Third District found Upkins’ appeal frivolous. Upkins appealed the decision to the Ohio Supreme Court, which agreed to review the issues. An attorney from the Ohio Public Defender’s Office was appointed to represent him.

Trial Attorney Had Conflict of Interest in Appeal, Upkins Argues
Upkins maintains that Anders requires that an attorney who decides an appeal is frivolous to request withdrawal from the case and to submit a brief to the appellate court containing anything in the record that might support an appeal. The court, not counsel, then determines whether the case is frivolous, according to Anders. If the court determines that any of the legal points aren’t frivolous, the court must provide an attorney to the indigent person to argue the appeal, Upkins notes.

Ohio’s appellate courts in the First, Second, Fifth, Sixth, Seventh, Ninth, Tenth, and Eleventh districts generally follow the Anders procedures, Upkins states. The Fourth District Court of Appeals recently decided to reject any Anders briefs, the Third District has included a Wisconsin procedure in its approach, the Eighth District Court of Appeals only reviews the parts of the record that the lawyer asking to withdraw from the case has identified in the Anders brief, and the Twelfth District Court of Appeals in one case chose not to appoint a new attorney when it found a non-frivolous issue, Upkins contends. 

In Ohio, claims that a trial attorney was ineffective must be raised at times in a direct criminal appeal, such as this one, rather than a petition for post-conviction relief, which is a civil proceeding. Upkins argues that an appointed appellate counsel in a direct appeal is placed in the difficult position of certifying to the trial court that he or she was in no way ineffective. This situation creates a conflict of interest for the attorney, Upkins maintains. He points to various professional conduct rules that require an attorney to withdraw from a case when the lawyer’s personal interests are involved and that state an attorney is in an unethical circumstance when evaluating issues for appeal about a plea agreement negotiated for the client.

Noting Anders’ two-step requirement that the attorney must claim the appeal is frivolous and the court must then evaluate whether it is frivolous, Upkins asserts that a lawyer who represents a client both at trial and on appeal can’t provide the first tier of protection in Anders because of his or her conflict of interest. When an attorney who serves as both trial and appellate counsel asks to withdraw from the case based on Anders, the appeals court must remove the attorney from the case and appoint new counsel to review the record and identify any appealable issues that aren’t frivolous, Upkins concludes.

State Describes Appellate Court Disagreements About Effectiveness Claims
The Ohio Attorney General’s Office states that, in Ohio, constitutional claims or defenses that can’t be raised in a direct criminal appeal may be made in a post-conviction relief petition. Citing a handful of cases, the attorney general contends that the Ohio Supreme Court has ruled that all claims of ineffective assistance of counsel can be asserted in a post-conviction civil proceeding and an attorney who represents a client at trial and on appeal has a conflict and can’t argue his or her own effectiveness.

However, the appellate courts are “deeply divided” on the implications of these rulings, the attorney general maintains. The appeals courts in the Fifth, Sixth, Eleventh, and Twelfth Districts bar appellate attorneys from arguing that they were ineffective at the trial level. The attorney general states that three other appellate districts allow attorneys in this situation to raise ineffectiveness claims about themselves in a direct appeal, but they aren’t required to raise the issue.

Guidance Better Given Through Clarifying Rules, State Asserts
The attorney general argues that this case should be dismissed as improvidently allowed, suggesting in its brief to the Court that “the rulemaking process may be a better mechanism to give guidance and lend coherence to this area of law.”

The attorney general’s first reason to support dismissing the case is that Upkins’ arguments have no constitutional basis. Appellants who have the same trial and appellate attorney can challenge the effectiveness of their counsel in a post-conviction proceeding and, in some Ohio courts of appeals, the appellant can make the claim on direct appeal. With these options, the appellant isn’t deprived of the constitutional right to an attorney, the attorney general argues.

Second, the attorney general contends that Upkins argues an Anders issue, but doesn’t address the underlying issue about having the same attorney at trial and on appeal. The same-counsel issue is the real question in the case, but it isn’t directly raised in the appeal, and the case is a “bad vehicle” to resolve the issue, the attorney general maintains.

The attorney general also argues that a discretionary rule for the courts would offer a better solution than a mandate for the courts to appoint new counsel in every case where the attorney represents a client at the trial and appellate levels. Some counties have scarce resources, and a new attorney may be unnecessary in more minor and routine cases, the attorney general states.

Finally, the documents Upkins provided to support his claims about his disputed 2001 probation violation were outside the case record and can’t be used in his direct criminal appeal, the attorney general maintains. Those documents can only be used in a post-conviction relief petition. The attorney general adds that the trial court in the current case did respond to Upkins’ concern and took note that the treatment center didn’t accept him and that he was resentenced. According to the attorney general, the Third District had to presume that the earlier proceedings were conducted appropriately, and it correctly found Upkins’ claim that his counsel was ineffective on this issue to be frivolous.

- Kathleen Maloney

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

Representing Lamone Upkins from the Ohio Public Defender’s Office: Stephen Hardwick, 614.466.5394

Representing the State of Ohio from the Ohio Attorney General’s Office: Eric Murphy, 614.466.8980

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Do Concurrent Sentences Imposing Prison Then Community Control Constitute Illegal ‘Split Sentence’?

State of Ohio v. Michael T. Paige, Case no. 2016-1848
Eighth District Court of Appeals (Cuyahoga County)


  • Is the imposition of a prison term for one offense and a term of community control for a separate, related offense constitute an illegal “split sentence?”
  • Can a reviewing Ohio court use a form of the “sentencing-package” doctrine to declare a sanction to be an illegal split sentence?

In August 2015 Shyneice Tatum reported to the Euclid police that her boyfriend of seven months, Michael Paige, had become violent. Tatum had a daughter with another man, and Paige suspected Tatum was having an affair with the father of her child. A Cuyahoga County grand jury indicted Paige on three counts: rape, abduction, and domestic violence. Paige pleaded guilty to amended charges that reduced rape to sexual battery. For sentencing purposes, the trial court merged the sexual battery and abduction offenses and proceeded to sentence Paige for sexual battery and domestic violence.

Paige was sentenced to 42 months in prison for sexual battery and five years of community control for domestic violence. The sentences were to ordered to run concurrently and when Paige was released from prison he was to be returned to county jail for assessment and then transferred to the Community Based Correctional Facility. The trial court also stated it was suspending 36 months of the community control sanction, noting that some of the community control time would be served in prison.

Paige appealed the sentence to the Eighth District Court of Appeals, which ruled that because Paige had to serve part of his community control sanction in prison, the trial court imposed an illegal “split sentence.” The Eighth District vacated the domestic violence sentence, and the Cuyahoga County Prosecutor’s Office appealed the decision to the Supreme Court, which agreed to hear the case.

Paige Received Separate Sentences, Prosecutor Argues
The county prosecutor argues that Ohio’s current sentencing statutes, R.C. 2929.11 to R.C. 2929.19 require trial courts impose either a prison term or a community control sanction for each offense. The prosecutor maintains that the trial court imposed a separate prison term for sexual battery and a separate community control sanction for domestic violence. The trial court didn’t combine the sentences for either offense, and each sentence standing alone is authorized by law, the prosecutor concludes. The prosecutor asserts the Eighth District wrongly concluded the domestic violence sentence was a combination of prison time and community control.

Appellate Court Wrongly Lumped Sentences Together, Prosecutor Maintains
Ohio’s sentencing scheme doesn’t follow the federal “sentencing package” doctrine, the prosecutor’s brief notes, stating that Ohio’s system is “clearly designed to focus the judge’s attention on one offense at a time.” The federal system considers the multiple offenses as a whole and imposes one, overarching sentence for the entirety of the charges. Ohio courts must impose separate sentences for each offense, and the trial court did impose separate sentences for Paige, the prosecutor states.

The Eighth District viewed the concurrent sentences jointly and used of a form of the sentencing package doctrine to determine the domestic violence sanction to be a split of prison time and community control, the prosecutor maintains. Citing the Supreme Court’s 2006 State v. Saxon decision, the prosecutor notes that concurrent sentences are permissible but that each sentence stands alone and separately for each offense. The prosecutor asserts that the domestic violence sentence is wholly separate from the prison time and isn’t a split sentence.

Court Sentence Effectively Consecutive, Impermissible, Paige Argues
Paige counters that the Eighth District questioned the authorization of a community control sentence that was 18 months longer than the prison sentence. By doing so, the trial court created a “de facto” consecutive sentence, he maintains. He asserts no state law currently permits a community control sanction to run concurrently with a prison time “across counts” in the same case.

He notes the Eighth District viewed the prison time to be a penalty for sexual battery and a condition for community control. Implied in Paige’s community control sentence is that he abide by all court orders, which includes completing 42 months of his community control while in prison. Paige maintains that R.C. 2929.16 lists five acceptable residential sanctions for community control and prison isn’t on the list. Further, Ohio’s criminal statutes only authorize three scenarios where a prison and community control sentence can run concurrently, and Paige’s don’t fall into those categories, he concludes.

Paige also challenges the prosecutor’s assertion that the Eighth District used a form of the sentencing package doctrine to determine the domestic violence sanction was a split sentence.  He notes when the lawfulness of one sentence hinges on the nature of another sentence, the court must review both in concert.

Paige notes the trial court discussed the charges as a single “situation” and explained the global approach that he was using when he discussed treatment options for Paige during the sentencing hearing. The trial court informed Paige that time at the Community Based Correctional Facility may be “held in abeyance” if Paige received the proper programming while in prison and could convince the court at the time of his prison release that he didn’t need the facility’s treatment.

“This type of global consideration and overlap between sentences is precisely what the sentencing package doctrine contemplates, and clearly and unquestionably violates the Court’s pronouncement in Saxon,” Paige’s brief states.

Dan Trevas

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

Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Frank Zeleznikar, 216.443.78090

Representing Michael T. Paige from the Cuyahoga County Public Defender’s Office: Paul Kuzmins, 216.443.7583

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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.