Court News Ohio
Court News Ohio
Court News Ohio

Wednesday, Jan. 24, 2018

WEDNESDAY, Jan. 24, 2018

State of Ohio v. Willie G. Wilks Jr., Case no. 2014-1035
Mahoning County Common Pleas Court

Portage County Board of Developmental Disabilities v. Portage County Educators’ Association for Developmental Disabilities, Case no. 2017-0696
Eleventh District Court of Appeals (Portage County)

Disciplinary Counsel v. John W. Gold, Case no. 2017-1411
Cuyahoga County

Death Penalty

State of Ohio v. Willie G. Wilks Jr., Case no. 2014-1035
Mahoning County Common Pleas Court

The Ohio Supreme Court will consider the automatic appeal of Willie G. Wilks Jr., who was convicted for the May 2013 murder and attempted murder of two Youngstown individuals. The trial
court sentenced Wilks to death in May 2014.

Shots Fired at People on Porch in Youngstown
Ororo Wilkins was sitting on the front porch of her brother’s house with her infant on the afternoon of May 21, 2013. She was talking with Alexander Morales Jr. Several family members, including children, were in the house.

Morales said a man with an “AK” approached the porch and asked where he could find Ororo’s brother, William Wilkins Jr. Morales, who was holding the baby, turned to go into the house, and the man shot him, causing Morales to fall. Ororo tried to grab the infant, Morales said, and the man shot her once in the head, killing her.

William Wilkins Jr., who goes by the nickname “Mister,” testified that he was on the second floor of the house when he heard a car skidding and looked out the window. He saw two people in the front seat of the car, and a man standing next to the car with “a large gun, like some kind of rifle.” Wilkins identified the man as Willie G. Wilks Jr., whom he knew because Wilks was dating Wilkins’ mother. Morales also said Wilks was the shooter. Wilkins stated that when he yelled to Wilks from the window, Wilks shot at him and hit the house.

Dispute Occurred Earlier over Loan
Earlier that day, Wilkins and Morales had gone to the home of Wilkins’ mother, Mary Aragon, for a loan. The three of them traveled to a lending business, but Aragon couldn’t obtain the loan without her bank card. Aragon said her boyfriend, Wilks, had her card, so they went to his house to retrieve it.

Wilks came out of the house and took a walk with Wilkins. Wilkins said that Wilks wouldn’t give him the bank card, which angered him, and they argued. Wilkins and Morales said Wilks returned to his house and reappeared with a small black handgun. Wilks chased Wilkins, who ran away, calling Wilks names.

A short time later while playing basketball with Morales, Wilkins said he called his mom to discuss the situation. During the call, Wilkins said Wilks got on the phone, asked where he was, and threatened him. Wilkins and Morales then returned to Wilkins’ home, where the shooting occurred.

Mother’s Boyfriend Found Guilty
Police arrested Wilks, who denied involvement in the shootings. A grand jury indicted him on May 23. Following trial, a jury found Wilks guilty of aggravated murder, attempted aggravated murder, and five other charges. The jury recommended the death penalty, which the trial court imposed.

Because of the death sentence, Wilks is entitled to an automatic appeal to the Ohio Supreme Court. He has presented 19 legal arguments, asking the Court to overturn his convictions and death sentence.

Evidence Didn’t Support Convictions, Wilks Insists
Several of Wilks’ arguments address whether the evidence proved his guilt.

First, Wilks contends that the evidence wasn’t sufficient for a jury to find the elements of the crimes beyond a reasonable doubt. The legal standard for sufficiency of evidence requires evidence that allows a rational juror to reach a subjective state of near certitude, Wilks states.

Second, he argues that the conviction was contrary to the weight of the evidence, which is a separate legal standard. For this test, the reviewing court must determine whether a jury had substantial evidence to reasonably conclude that all elements were proven beyond a reasonable doubt. A court considering this claim “review[s] the entire record, weighs the evidence and all reasonable inferences, [and] considers the credibility of the witnesses,” he wrote in his brief, quoting a 2006 Ohio Supreme Court decision (State v. Hancock).

Noting that the state must establish that he was the actual perpetrator of the crimes, Wilks points to 21 aspects of the case to demonstrate that these legal standards weren’t met. Among them:

  • No forensic or scientific evidence, including DNA or ballistics, linked him to the crimes.
  • The murder weapon was never found.
  • He was indicted two days after the murder, despite the police’s minimal investigation, which didn’t include any interviews with the two people named as being in the car that pulled up to Wilkins’ house.
  • The car wasn’t recovered.
  • No evidence of the supposed phone call between Wilks and Wilkins was presented to the jury.
  • While Wilkins and Morales identified the shooter as Wilks, who has a shaven head, two other people at the house said the shooter had dreadlocks.

Eyewitness Testimony Is Enough for Convictions, State Argues
The Mahoning County Prosecutor’s Office responds that Wilks focuses on the evidence it should have presented or didn’t present at trial, rather than the evidence the state did offer. Citing multiple cases from other state appellate courts, the prosecutor argues that a conviction doesn’t require either evidence of a motive or physical evidence, and eyewitness testimony alone is sufficient.

The legal standard for sufficiency of evidence requires looking at the evidence in the light most favorable to the prosecution, the prosecutor notes. Both Wilkins and Morales named Wilks in court as the person who shot Ororo Wilkins and Morales. The eyewitness accounts were sufficient to prove that Wilks was the shooter, the prosecutor maintains.

The prosecutor explains that the manifest weight of the evidence standard depends on the believability of the evidence offered at trial. A reviewing court may reverse a conviction based on this standard only if the jury had no rational basis for the conviction, the prosecutor argues. The weight of the evidence is about the “greater amount of credible evidence” that supports one side over another, the prosecutor adds, citing the Ohio Supreme Court’s 1997 ruling in State v. Thompkins. In Wilks’ case, the jury found the eyewitness testimony to be credible and had a rational basis to find that Wilks was the shooter, according to the prosecutor.

Under both standards, the evidence supported the convictions, the prosecutor concludes.

Consideration of Other Descriptions of Shooter
Wilks also asserts that the prosecutor failed to present to the grand jury the contradictory evidence from the other witnesses about the identity of the shooter. Citing a recommendation from a 2014 report of a state task force on the administration of the death penalty, Wilks states that prosecutors should be required to share exculpatory evidence related to the perpetrator’s identity with grand juries in death-penalty cases. Otherwise, a grand jury cannot complete its duty, in part, to protect citizens against unfounded prosecutions, Wilks argues.

Because his constitutional right to fair grand jury proceedings was denied, Wilks concludes that his conviction and death sentence must be vacated.

The prosecutor maintains, however, that the state isn’t required to present evidence to the grand jury that is favorable to the defense or that negates the defendant's guilt. Citing a 1992 U.S. Supreme Court decision, the prosecutor states that requiring a prosecutor to present exculpatory evidence to a grand jury would transform the grand jury’s historical role from accusatory and investigatory to adjudicatory. In the prosecutor’s view, the grand jury doesn’t function as a preliminary trial body, and such an approach would be burdensome and wasteful.

Questions Regarding Ohio’s Proportionality Review
Wilks also takes issue with the way the Ohio Supreme Court reviews the proportionality of death sentences. He mentions three murder cases from Mahoning County in which the death penalty wasn’t imposed. He argues that a death sentence isn’t appropriate or proportional when there are similar murder cases in which death wasn’t the sentence.

The prosecutor counters that the death penalty is appropriate and proportionate in this case when compared to death sentences imposed in other cases involving similar circumstances.

- Kathleen Maloney

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

Representing Willie G. Wilks Jr.: Kathleen McGarry, 505.757.3989

Representing the State of Ohio from the Mahoning County Prosecutor’s Office: Ralph Rivera, 330.740.2330

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In Arbitration Award Dispute, What Level of Review Must Appellate Court Conduct?

Portage County Board of Developmental Disabilities v. Portage County Educators’ Association for Developmental Disabilities, Case no. 2017-0696
Eleventh District Court of Appeals (Portage County)

ISSUE: When an appellate court reviews a common pleas court’s decision involving an arbitration award, is “abuse of discretion” or the less deferential “de novo” the proper standard of review?

The Portage County Developmental Disabilities Board and the Portage County Educators’ Association for Developmental Disabilities have a collective bargaining agreement, and the agreement allows the board to increase an employee’s job duties once in any 12-month period.

Patricia Byttner had worked as a Kent City Schools bus driver and began suffering from back problems. Worried about her health conditions, she applied for an opening as an Account Clerk 1 for the disabilities board’s transportation department in 2008. The skills listed for the position were generally clerical, and there was no requirement to drive a bus or be a bus aide. Byttner was hired for the job, and she was occasionally asked to fill in as a substitute bus driver or aide in an emergency.

In 2012, Byttner’s supervisor told her she had to act as a substitute bus aide, believing it was part of her duties. Byttner declined, citing health reasons, and provided her supervisor with a copy of her job description.

The board changed Byttner’s job description to include the duties of serving as a vehicle operator or vehicle attendant as needed.

Grievance Filed
The educators’ association, which represents disabilities board employees, filed a grievance on behalf of Byttner over the job change, and the board denied it. The matter proceeded to arbitration, and the arbitrator found that although the agreement gave the board the authority to increase an employee’s job duties, the move violated the agreement because it attempted to impose duties that were far outside the scope of duties expected by an account clerk.

The board appealed the decision to the Portage County Common Pleas Court. The court vacated the arbitrator’s decision, and the union appealed to the Eleventh District Court of Appeals. The Eleventh District reversed the trial court and reinstated the arbitrator’s decision.

Appeals Court Seeks to Resolve Conflict
The Eleventh District stated the proper standard of review of the trial court’s ruling was de novo, where it would determine if the trial court correctly applied the law. The appellate court noted the decision was contrary to an earlier decision it made in an arbitration case where its standard of review of the trial court’s work was for an “abuse of discretion.”

The Eleventh District notified the Ohio Supreme Court that its use of a de novo review was in conflict with at least two other district appeals courts. The Supreme Court agreed to hear the case to consider the conflict among appeals courts.

Deferential Review Required, Board Argues
The board argues that the state legislature and the Ohio Supreme Court have stated that public policy favors arbitration because it is speedy, inexpensive, and has the ability to unburden crowded court dockets. Under R.C. 2711.10, a party to an arbitration has the right to challenge an arbitrator’s decision in common pleas courts. The court only has limited authority to confirm, modify, vacate, or correct an arbitration award. The board notes that prior to this case, if a party appealed a common pleas court ruling regarding an arbitration, the Eleventh District applied an abuse of discretion standard of review, which is more deferential to the lower court’s reasoning than a de novo standard.

The board argues that if the appeals court conducts a de novo review, it is duplicating the efforts of the trial court and adding costs and time to the dispute resolution process. The board explains that the arbitrator in an arbitration is the final judge of both the law and the facts. The common pleas court only can change the arbitrator’s decision based on a limited amount of discretion allowed in the law.

In Byttner’s case, the board argues the collective bargaining agreement gives the board the right to change an employee’s job duties once in a 12-month period. It also notes the agreement expressly states that an arbitrator’s authority is limited only to the written terms of the contract. The board challenged the arbitrator’s award in common pleas court by claiming the arbitrator exceeded his authority when he determined that the job duty was outside of the classification for an account clerk.

The common pleas court reviewed the decision and examined the facts. It also examined state law, which requires an arbitrator to make a decision based on the language as written in the agreement or to base the decision on the “essence of a contract.” The board cites prior Supreme Court decisions that find an award departs from the essence of a contract when it conflicts with the language in the contract or is without support to show it was rationally derived from the agreement. The common pleas court found the arbitrator exceeded his authority and vacated the decision. The board argues that the common pleas court’s review of the case should be afforded deference by the appeals court and to find that its conclusion was reasonable. A more extensive review by the appeals court would be longer, more expensive, and more likely to increase court dockets, the board concludes.

Appellate Court Selected Correct Standard, Union Submits
The educators’ association argues that abuse of discretion would be the wrong standard because the trial court has no discretion when reviewing an arbitration award. The union states the public policy in favor of arbitration, the statute, and most courts have found that de novo is the proper standard of review for an appellate court.

De novo review ensures the trial court properly applies the standards set in R.C. 2711.09, R.C. 2711.10, and R.C. 2711.11, and ensures the trial court does not substitute its judgment for that of the arbitrator, the union argues. The union notes that each of the statutes specifies certain conditions that must be met before a trial court can vacate, modify, or correct an arbitrator’s decision. The role of the appellate court is to determine if the trial court followed the law, and that requires a de novo review, which examines the work of the trial court without showing deference to its decision.

The union notes that nine of Ohio’s 12 appeals courts and the U.S. Supreme Court have concluded that a de novo review is the appropriate standard for reviewing arbitration awards. It explains that the Ohio Supreme Court has never expressly stated which standard applies, but the Court has affirmed decisions made by lower courts that used the de novo standard.

The union also maintains the Supreme Court has used a de novo standard to review appellate court decisions. Citing the Court’s 1991 Ohio Office of Collective Bargaining v. Ohio Civil Service Employees Association, Local 11, AFSCME, AFL-CIO case, it notes the Court reviewed a court of appeals decision affirming a trial court decision vacating an arbitration award. In reviewing the decision, the Court said its duty was “to determine whether the arbitrator's award was reached in a rational manner from the collective bargaining agreement.”

The Court then applied the standard in R.C. 2711.10 for vacating an arbitration award and gave no deference to the decision of the lower court, the union’s brief states.

The union argues that the trial court’s review of an arbitrator’s award must be strictly limited or else it would render the process meaningless and lead to more appeals to common pleas courts. A de novo review by an appeals court assists in ensuring arbitrator awards are followed by trial courts and that trial courts don’t improperly substitute their judgment for the arbitrator’s, the union concludes.

- Dan Trevas

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

Representing Portage County Board of Developmental Disabilities: Ronald Habowski, 330.802.5473

Representing Portage County Educators’ Association for Developmental Disabilities: Charles Oldfield, 330.743.5101

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Attorney Discipline

Disciplinary Counsel v. John W. Gold, Case no. 2017-1411
Cuyahoga County

The Board of Professional Conduct is recommending that the Ohio Supreme Court suspend Cuyahoga County John W. Gold for two years, with one year stayed, based on his handling of a client’s bankruptcy case.

Bankruptcy Trustee Seeks Funds from Gold’s Client
In July 2010, George Daher filed for bankruptcy. The trustee in Daher’s bankruptcy filed a report three months later showing there was no property available in the bankruptcy estate to distribute to creditors. In November 2010, the court closed the case.

In March 2012, Daher learned he was entitled to about $51,000 in unclaimed funds that were the result of an insurance claim that preceded his bankruptcy. Daher had forwarded the insurer’s money to his mortgage company, but the mortgage company never accepted it. When Daher tried to claim the money in 2012 he was told the mortgage company needed to relinquish its interest in the funds before he could have it.

Daher hired Gold to represent him, and Gold filed a lawsuit in Cuyahoga County Common Pleas Court seeking a declaratory judgment that would entitle Daher to claim the $51,000. Daher entered a contingency fee agreement with Gold.

In 2013, Gold notified Daher’s bankruptcy trustee of the unclaimed funds, and the trustee sought to reopen Daher’s bankruptcy case. Gold then agreed to represent Daher in the bankruptcy proceedings. Gold attempted to limit the ability of the bankruptcy trustee from acquiring any of the unclaimed funds, and he argued for summary judgment in the common pleas court case without addressing the interest of the bankruptcy trustee, who at that time was not a party to the lawsuit. Two months later, the trustee asked to intervene in the common pleas court case.

The trial court granted Daher the right to seek the unclaimed funds and allowed the trustee to join the case. The trustee returned to bankruptcy court and alleged the $51,000 belonged to the bankruptcy estate, not to Daher. Gold disputed the right of the trustee to pursue the funds, and in September 2013, Gold and the trustee reached an agreement where Gold would hold the $51,000 in his Interest on Lawyers’ Trust Accounts (IOLTA) until the bankruptcy court decided if all or some of the unclaimed funds belonged to the estate. Gold agreed that once the bankruptcy court ruled on the matter, he would transfer the funds from the IOLTA to the trustee.

Lawyer Withdraws Funds from Account
Within a month of the agreement, Gold withdrew $5,000 from the account without court approval. He then dispersed another $8,800 from the account without court approval.

In spite of the agreement, Gold argued that Daher’s bankruptcy case should be closed and that the trustee was not entitled to any funds. He also argued that he be entitled to hourly fees for representing Daher despite his contract with Daher that he entitled him to a percentage of the unclaimed funds.

As the two sides argued their cases, Gold withdrew about $9,500 from the account in December 2013. In March 2014, Gold gave Daher $2,000 from the account without court approval, and withdrew another $6,500. A month later, the bankruptcy court ruled all the funds belong to the estate and that Gold needed to transfer the money to the trustee.

Gold appealed the decision and continued to withdraw funds. By November 2014, he had withdrawn $48,872 from the account. The trustee and Daher reached a settlement that allowed Daher to retain $18,300 of the settlement funds in exchange for ceasing to file further appeals in the matter.

Gold refused to sign the settlement agreement, stating it did not properly address his attorney fees. In February 2015, the bankruptcy court ordered Gold to provide the trustee about $32,700 within five days, and allowed Daher to retain $18,300.

Client Receives Payment, Trustee Doesn’t
The day of the court ruling, Gold deposited $8,000 in his IOLTA account and wrote a check to Daher for $6,000. He also gave Daher $6,000 and kept the remaining $6,300 as his fee. Gold didn’t transmit the $32,700 to the trustee. Gold claimed he had a lien on the unclaimed funds and stated he was entitled to them for the work he did on the case. He stated he worked more than 240 hours, and should be paid $49,000 based on his customary $200 hourly rate.

The bankruptcy judge ruled that Gold raised the issue too late and should have addressed it before the case was closed. Gold declined to turn over the money, and it became clear to the judge that Gold didn’t have adequate records of his IOLTA funds that he could provide the court.

The bankruptcy court continued throughout 2015 to conduct hearings in the Daher bankruptcy, and held Gold in contempt of court. Gold also filed his own case for personal bankruptcy before the court. Gold failed to appear at the some of the hearings in the matters and, by March 2016, the bankruptcy court sanctioned Gold by fining him for the amount he was to transfer to the bankruptcy trustee, plus $1,600 in fines for noncompliance with court orders, and required him to pay the trustee’s attorney fees.

As Gold appealed the decision, he began settlement negotiations with the trustee and paid $16,000. He continued to make payments and, by the time of his disciplinary hearing concluded, he had paid the full $32,700 he owed.

Based on Gold’s action in the Daher matter, the Office of the Disciplinary Counsel brought the charges of rule violations to the professional conduct board.

Board Recommends Suspension
The board wrote the complaint essentially alleged that Gold:

  • Acted to obstruct the bankruptcy trustee from locating the whereabouts of settlement proceeds
  • Violated bankruptcy court orders
  • Failed to comply with agreements made with the bankruptcy trustee
  • Misappropriated funds from his client-trust account
  • Failed to appear at hearings
  • Engaged in intentional acts to avoid bankruptcy court orders

The board found Gold’s behavior similar to attorney: sanctioned by the Court in Disciplinary Counsel v. Marshall (2014). In a personal injury case, the attorney was ordered to place an $85,000 settlement check into her client trust fund and was told to hold it until a dispute about the case was settled. The attorney immediately disbursed all the money before the court could resolve the matter. The attorney was suspended for two years, with one year stayed.

The board noted that Gold presented more mitigating factors in his case than the attorney in Marshall, including his timely payment of restitution and his suffering from disorders. The board recommended Gold’s second year of suspension be stayed with the conditions that he comply with his Ohio Lawyer’s Assistance Program (OLAP) contract, make full restitution to the trustee (which he did), and commit no further misconduct. If he is reinstated to practice law, then he must spend a year under a monitoring attorney focused on the proper use of an IOLTA.

Attorney Objects to Sanction
Gold is not contesting the conclusions reached by the board, but argues there are differences between the behavior of Marshall and himself that warrants a lesser sanction. Gold proposes that his two-year suspension be fully stayed. He argues that Marshall was found to have caused harm to the judge with false statements regarding the judge’s integrity, and was jailed for contempt of court. He argues the board found fewer aggravating circumstances in his case, and more mitigating factors that should entitle him to a fully stayed suspension.

While he disagreed with the judge in his bankruptcy case, Gold asserts he made no false claims about the judge, and Marshall presented no claims of a qualified disorder that impacted her behavior as he did. Gold suggests his case is closer to Disciplinary Counsel v. Edwards (2012), where the attorney was given a two-year, fully stayed suspension for misappropriating $69,000 in client trust account funds for his personal use. Gold argues his conduct didn’t harm his client because he paid the funds the bankruptcy court agreed could be paid.

Disciplinary Counsel Supports Suspension
The disciplinary counsel agrees that Gold’s case is similar to Marshall in many respects, but the key difference is that Marshall wasn’t charged with misappropriating client funds, while Gold was. The disciplinary counsel states that the money belonged to Daher, even if he wasn’t entitled to keep it because it had to be transferred to his bankruptcy estate.

The disciplinary counsel asserts the Supreme Court has long held that the presumed sanction for a lawyer misappropriating funds is disbarment, and that since 1995 lawyers have been “on notice that a course of dishonest conduct will result in an actual suspension from the practice of law.”

The disciplinary counsel also notes the circumstances in Edwards are different than Gold’s, including that the attorney made full restitution to clients before the disciplinary proceedings began while Gold still owed the bankruptcy trustee $12,000 at the time of his panel hearing. The disciplinary counsel also notes that Gold admitted he wasn’t fully compliant with his OLAP contract and that his treating professionals were not fully aware of his conduct. Concluding that the Supreme Court has imposed actual suspensions for attorneys whose cases are similar to Edwards, the disciplinary counsel supports the board’s recommendation.

Dan Trevas

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

Representing the Office of Disciplinary Counsel: Donald Sheetz, 614.461.0256

Representing John W. Gold: Michael Lear, 216.696.0900

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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.