Tuesday, Jan. 8, 2019
State of Ohio v. Shawn E. Ford, Case no. 2015-1309
Summit County Common Pleas Court
State of Ohio v. Susan L. Gwynne, Case no. 2017-1506
Fifth District Court of Appeals (Delaware County)
In Re Adoption of B.I., Case nos. 2018-0181, 2018-0182, 2018-0350, and 2018-0351
First District Court of Appeals (Hamilton County)
Akron Man Convicted in 2013 Double Homicide Raises Issues in Death-Penalty Appeal
State of Ohio v. Shawn E. Ford, Case no. 2015-1309
Summit County Common Pleas Court
The Ohio Supreme Court will consider the automatic appeal of Shawn E. Ford, who was convicted for the March 2013 felonious assault of his girlfriend, Chelsea Schobert, and the April 2013 murders of her parents, Margaret and Jeffrey Schobert. The trial court sentenced Ford to death in June 2015.
Young Woman Assaulted, Parents Found Dead Soon After
The weekend after Chelsea Schobert’s 18th birthday in March 2013, she, Ford, and a few friends celebrated her birthday at the home of one of Ford’s friends. Schobert was injured and hospitalized. She, Ford, and the two friends initially told police she had been hurt during a drug deal in Kent.
While Schobert was hospitalized, her parents decided she shouldn’t have contact with anyone except them.
On April 2, 2013, a contractor working at the Schoberts’ home in New Franklin Township, south of Akron, discovered Schobert’s parents dead in their bedroom. Both died of blunt force trauma inflicted with a sledgehammer, found in the bedroom. Jeffrey Schobert also had been stabbed. Some personal items were stolen, along with a vehicle.
That same day, police arrested Ford, then 18, for falsification in his statements to law enforcement about the assault on Chelsea Schobert. An inmate housed with Ford in jail contacted police and told them Ford had shared information about the Schoberts’ murders.
Ford and a juvenile were charged in the murders. Ford was indicted on 11 counts, including the aggravated murders of Margaret and Jeffrey Schobert, aggravated robbery, aggravated burglary, and the felonious assault on Chelsea Schobert, along with death-penalty specifications.
At Trial, Friends Say Ford Attacked Girlfriend
The friends with Ford and Schobert the night of the assault testified at trial that there was no drug deal in Kent. Ford assaulted her, they stated, and one said he saw Ford get a knife. Schobert testified, also saying that Ford attacked her.
The state argued that, 10 days after the assault, Ford and the juvenile accomplice went into the Schobert home and beat Jeffrey Schobert to death. They then waited for Margaret Schobert to arrive home and killed her.
After jury deliberations began, two jurors were excused for different reasons, and alternate jurors took their places. The jury found Ford guilty on all counts. Following the trial’s October 2013 mitigating phase, the jury recommended the death penalty for Margaret Schobert’s murder and life without parole for Jeffrey Schobert’s murder. The trial court agreed, imposing those sentences and an eight-year prison term for the felonious assault.
Because Ford was sentenced to death, he is entitled to an automatic appeal to the Ohio Supreme Court. He has submitted 23 legal arguments to the Court asking to overturn his conviction and death sentence.
Did Ford Waive His Rights, and Were His Statements to Police Coerced?
During multiple interviews with law enforcement officials, Ford was read his Miranda rights. He contends, though, that police didn’t obtain a valid waiver of those rights that is needed before questioning. He argues that police didn’t make an effort to ensure that he understood the rights and that he wanted to waive them.
His brief states that he is of diminished intelligence and was 18 years old at the time of his arrest. In Ford’s view, the police coerced him into making incriminating statements by misrepresenting the evidence they had and the consequences of not cooperating. The police didn’t receive a knowing, intelligent, and voluntary waiver from him, and his statements to them should not have been allowed at trial, he argues.
The Summit County Prosecutor’s Office counters that Ford never invoked his right to remain silent and didn’t ask for an attorney. The prosecutor notes that Ford’s three interviews weren’t especially lengthy – 74 minutes, 72 minutes, and 40 minutes – and he wasn’t deprived of physical needs or mistreated. Although Ford claims that police lied to him, deception by police during an interrogation doesn’t automatically make a subject’s statements involuntary or coerced, the prosecutor maintains.
Does Ford Have an Intellectual Disability?
In October 2013, the trial court determined that Ford was competent to stand trial. After the jury’s verdicts, the court held a hearing on Ford’s intellectual functioning. Ford’s IQ scores ranged from 62 to 80 over the years, Ford’s brief states. An intellectual disability would bar the state from executing him.
The prosecutor, Ford’s attorneys, and the court each hired a mental health professional to evaluate Ford. The prosecutor’s expert and the court’s expert conducted interviews with Ford. However, he refused to participate in another evaluation, which would have been with the defense’s expert. That doctor provided an assessment only based on Ford’s records.
The prosecutor stresses that the trial court stated all of the experts concluded that Ford didn’t have an intellectual disability.
Ford asserts, though, that the conclusions were based on the wrong standards for determining whether a person has an intellectual disability. The combination of below average or borderline IQ results, several deficits with adaptive behavior skills (such as not living on his own, not handling his own finances, never obtaining a driver’s license), and the onset of these deficits before he was 18 means the trial court’s determination must be reversed, Ford maintains.
The prosecutor disagrees, pointing to multiple standards used to make these determinations.
Should Assault and Murder Trials Been Separate?
Ford argues that the assault on Schobert and her parents’ murders should have been tried separately because the criminal conduct in each was distinct. No witnesses and no evidence overlapped between the two crimes. The only connection, in Ford’s view, is that the state alleged he committed both the assault and the murders.
Had the trials been separate, evidence related to Schobert’s assault wouldn’t be permitted in the murder trial, or vice versa, he contends. By trying everything together, Ford asserts that the state argued he committed one crime because of the other crimes or because he is a bad person. That approach is prohibited by court rules, he states.
The prosecutor responds that the events were connected. Schobert’s parents wouldn’t allow Ford to see their daughter in the hospital after the assault. The assault indicated motive for and intent related to the murders, the prosecutor maintains. Court rules allow evidence of other bad acts to be admitted at trial when the evidence demonstrates motive for a crime, the prosecutor states.
Did Juror Actions Undermine Verdicts?
Ford also raises issues related to the jury, including juror misconduct. One juror had worked in the past at the prosecutor’s office and also attended church with one of the testifying detectives. The juror informed the court of both of these facts, and the court determined she could sit on the jury.
During deliberations, the bailiff alerted the judge that a juror may have interjected an interpretation of the law, based on the individual’s training, into the jury’s discussions. It then was discovered that a juror was Facebook friends with several prosecutors. That revelation led the court to dismiss the juror.
Ford argues that the trial court should have declared a mistrial, and that he should receive a new trial because of the juror misconduct. The prosecutor counters that the court found there was no reason to believe the jury had been tainted. Ford’s rights weren’t violated, the prosecutor reasons.
Ford also points to two Akron Beacon Journal articles. The newspaper interviewed the juror removed for her Facebook connections, as well as a juror who was part of the final jury that convicted Ford and sentenced him to death. The removed juror stated she had been a holdout on early votes, other jurors tried to pressure her to convict, and there were blowups and shouting. The second juror interviewed said she didn’t think Ford should receive the death penalty for Margaret Schobert’s murder. Jurors bullied her and she eventually relented, she told the paper.
Jurors are told they must be respectful and open to other viewpoints, Ford indicates. Harassment and bullying infected the deliberations and violated his rights to a fair trial and an impartial jury, he maintains. The prosecutor’s brief focused on the juror who remained for the full trial. Acknowledging that court rules of evidence prohibit jurors from intimidating each other, the prosecutor asserts that heavy-handed influencing and even bullying don’t require a court to call into question an individual juror’s verdict.
Other Claims Made by Ford
Among the other issues Ford raises, he argues that gruesome crime photos shouldn’t have been shown at trial, it was improper to shackle him during trial, the prosecutor disparaged defense counsel during closing arguments, and his attorneys were ineffective in several ways.
Attorney General Files Brief
The Ohio Attorney General’s Office has filed an amicus curiae brief stating that Ohio’s capital-sentencing system is not unconstitutional.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Shawn E. Ford Jr.: Lynn Maro, 330.758.7700
Representing the State of Ohio from the Summit County Prosecutor’s Office: Jacquenette Corgan, 330.643.8340
Could Appellate Court Modify Sentence It Considered Excessive?
State of Ohio v. Susan L. Gwynne, Case no. 2017-1506
Fifth District Court of Appeals (Delaware County)
ISSUES:
- When an appellate court reviews a criminal sentence under R.C. 2953.08(G)(2), can the court consider the “seriousness” and “recidivism” factors listed in R.C. 2929.11 and R.C. 2929.12 to reduce or modify a trial court sentence?
- When a defendant waives the right to appeal as part of a plea agreement, can an appellate court review the merits of a filed appeal?
BACKGROUND:
In 2004, Susan Gwynne began working as a nurse’s aide in various nursing homes and assisted living facilities around central Ohio. She developed a drug addiction and was terminated from her assignments based on drug use and theft claims. Gwynne then began to wear her work uniform to facilities where she had worked and would take cash and other items from elderly residents of the facilities.
The practice continued until 2016 when the Delaware County Sheriff’s Department began to investigate her. Deputies searched her house and discovered numerous plastic bins filled with stolen items. Many of those items could be traced to 46 elderly individuals.
A Delaware County grand jury indicted Gwynne on 101 counts, of which 30 were second-degree felony burglary charges. The remaining charges were felonies and misdemeanors of lesser degrees. She faced a possible sentence of 320 years in prison if convicted of all the alleged crimes.
In September 2016, Gwynne entered an agreement with the state to plead guilty to 46 charges and to pay restitution to her victims. The agreement left Gwynne facing a maximum of 160 years in prison. As part of her plea agreement, she agreed to waive her right to appeal. Prosecutors recommended to the trial court that she receive 42 years in prison.
In November 2016, a trial court sentenced her to both consecutive and concurrent sentences on the 46 counts for a total of 65 years in prison. Within a month of the sentence, Gwynne appealed to the Fifth District Court of Appeals, arguing the sentence was disproportionate to the crime.
The Fifth District ruled that the prison term imposed by the trial court for each charge was warranted. However, the court found the total sentence was “clearly and convincingly contrary to law.” The Fifth District reduced the sentence to 15 years.
The Delaware County Prosecutor’s Office appealed the Fifth District’s decision, arguing that since Gwynne waived her right to appeal, the Fifth District was without jurisdiction to consider the case. The state also argued the appellate court is restrained by R.C. 2953.08(G)(2) in the information it can use when modifying a trial court’s decision, and that the court didn’t follow that law when it changed the sentence. The prosecutor appealed to the Supreme Court, which agreed to hear the case.
Appellate Court Overstepped Authority, State Argues
The prosecutor argues that the Ohio General Assembly has the right to establish the rules for how an appellate court should review a felony sentence, and it did so with the enactment of R.C. Chapter 2953. When a trial court includes findings with its sentence, as it did with Gwynne, the appellate court’s review of the sentence is governed by R.C. 2953.08(G)(2). In R.C. 2953.08(G)(2)(a), the law authorizes the appellate court to “increase, reduce, or otherwise modify” a sentence if the sentence isn’t supported by factors listed in four other sections of the Revised Code. The next provision in the law — R.C. 2953.08(G)(2)(b) — allows the sentence to be changed if it is “otherwise contrary to law,” the prosecutor explains.
The prosecutor maintains that the appeals court cited R.C. 2929.11 and R.C. 2929.12 as justification for modifying Gwynne’s sentence. But the two provisions aren’t among the four listed in R.C. 2953.08(G)(2)(a), and can’t be used to change the trial court’s sentence, the state asserts. The state notes that R.C. 2929.11 provides a list of “guiding principles” a court is to consider when imposing a sentence, and R.C. 2929.12 provides a series of “seriousness of crime and recidivism factors” that the General Assembly thought relevant for courts to consider when applying R.C. 2929.11. The legislature doesn’t guide the courts about how to weigh the factors when imposing a sentence and leaves the determination to the discretion of the trial court, the prosecutor asserts.
The prosecutor maintains that if the appellate court were to use the two statutes when considering a trial court sentence, it would make the appellate court a “second tier” sentencing court, and the prosecutor argues there is nothing in state law that indicates the legislature gave that power to appellate courts.
The prosecutor also takes issue with the argument that Gwynne’s sentence could be changed under the provision in R.C. 2953.08(G)(2)(b) that allows altering a sentence that was contrary to law. The prosecutor points out that the Fifth District ruled the trial court imposed a valid sentence for each of the charges Gwynne faced. Because it found each sentence valid, the Fifth District can’t claim the sentence as a whole is contrary to law because it objects to the overall result of 65 years in prison.
Court Had No Right to Hear Appeal, State Asserts
The prosecutor also notes the U.S. Supreme Court has ruled that a plea agreement is a valid contract between the person making the deal and the government. As part of Gwynne’s plea, she agreed not to appeal her sentence. Because she appealed, she violated the contract, and the Fifth District didn’t have the authority to consider her case, the prosecutor maintains.
The prosecutor argues that the trial court twice reminded Gwynne that she was waiving her right to appeal as part of the agreement, and that she did so knowingly, intelligently, and voluntarily. Because she bargained away her right to appeal in exchange for dismissing most of the charges, the Fifth District had no power to hear the case, the prosecutor concludes.
Appellate Court Acted Appropriately, Convict Argues
Gwynne maintains that R.C. 2953.08(G)(2) permits appellate courts to conduct an independent evaluation of a criminal sentence. She argues that the broad principles and factors named in R.C. 2929.11 and R.C. 2929.12 are to be considered in every criminal appeal. Because lawmakers didn’t repeat the broader laws in every specific law doesn’t mean the provisions shouldn’t be considered, she maintains.
Gwynne notes the Fifth District relied on the Ohio Supreme Court’s 2016 State v. Marcum decision, which allowed an appellate court to consider the factors in R.C. 2929.11 and R.C. 2929.12. She explains those provisions guide a court to consider when imposing a sentence the seriousness of the crimes and whether the convict is likely to repeat the offenses in the future. The Fifth District noted this was the first time Gwynne was charged with felony crimes, and the charges were for nonviolent thefts. Gwynne, who was 55 years old when convicted, argues the appellate court was correct in finding a 65-year-sentence to be excessive.
State Failed to Abide by Contract, Woman Asserts
Gwynne counters the state’s argument that she didn’t have a valid contract when she filed her appeal. She maintains that under the traditional rules of contract law, the state never entered into a valid contract. The state’s proposed reduction in charges as part of the plea agreement dropped Gwynne’s maximum prison time from 320 years to 160 years. Gwynne argues that, in reality, she gained nothing from this change and would die in prison either way. Because the state offered nothing of value for her agreement to the deal, the contract was void and that gave her the right to appeal, she concludes.
Friend-of-the-Court Briefs
Amicus curiae briefs supporting the Delaware prosecutor’s position have been submitted by Cuyahoga County Prosecutor’s Office and the Columbus City Attorney. The Ohio Association of Criminal Defense Lawyers has filed an amicus brief supporting Gwynne.
Oral Argument Time Split
The Court granted Gwynne’s request to split her oral argument time with Ohio Association of Criminal Defense Lawyers.
- Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing State of Ohio from the Delaware County Prosecutor’s Office: Douglas Dumolt, 740.833.2690
Representing Susan L. Gwynne: David Birch, 614.785.9218
Was Father’s Consent Needed for Stepfather to Adopt Child?
In Re Adoption of B.I., Case nos. 2018-0181, 2018-0182, 2018-0350, and 2018-0351
First District Court of Appeals (Hamilton County)
ISSUE: When a court doesn’t require a parent to pay child support, does that court order supersede a parent’s duty of maintenance and support and therefore require someone seeking to adopt a child to obtain the parent’s consent?
BACKGROUND:
In May 2012, Kristen and Greg Iredale were married. In a prior relationship, Kristen Iredale had a child, identified as B.I., with Gary Burbage II. The parents didn’t marry.
Kristen Iredale had obtained an order in March 2009 from the Clermont County Juvenile Court requiring Burbage to pay child support. The same month, Burbage was imprisoned. During his incarceration, the court waived Burbage’s overdue child support payments and reduced his obligation to zero. B.I.’s mother later testified that she had requested the action because otherwise, she believed, Burbage would be sent back to prison for non-payment of child support once he was released.
In February 2016, Greg Iredale filed paperwork in Hamilton County Probate Court to adopt B.I. The petition stated that Burbage’s consent wasn’t necessary because he failed without “justifiable cause” to provide for his child’s maintenance and support for the year preceding the adoption filing. Burbage objected to the stepfather’s adoption of B.I.
Courts Consider Whether Father’s Consent Needed for Adoption
Burbage earned $18 per month in prison, for a total of $234 in the year preceding the February 2016 adoption filing. Burbage’s parents and a friend deposited $5,152 into his prison account during that time. Burbage spent about $4,681 that year on purchases from the prison commissary, mostly on food.
A Hamilton County Probate Court magistrate determined that Burbage wasn’t required to consent to the adoption because he gave no maintenance or support to his child during the prior year. A state law, R.C. 3107.07, mandates parental consent for adoptions, but creates an exception if a parent “has failed without justifiable cause … to provide for the maintenance and support of the child as required by law or judicial decree” in the year before the adoption filing.
However, the probate judge overruled that decision, noting the fundamental parental rights at stake and finding that the zero child support order represented justifiable cause.
Greg Iredale appealed to the First District Court of Appeals, which upheld the probate court’s ruling. The stepfather appealed to the Ohio Supreme Court, which decided to hear the matter. The Supreme Court also agreed to review a conflict on this issue between the First District’s ruling and a Fifth District Court of Appeals case, In re Adoption of A.S. (2011).
Stepfather States Father Could Have Given Support to Child
Parents have fundamental rights under the law. Because adoption terminates those rights, Ohio law requires parents to give consent for an adoption unless an exemption in state law applies.
Greg Iredale argues that the exception in R.C. 3107.07(A) applies in this case. Citing state appeals court decisions, Iredale maintains that incarceration doesn’t justify a parent’s failure to provide for his child.
He contends that the court order eliminating Burbage’s child support obligation didn’t release Burbage from supporting his child. The exemption that negates the need for parental consent to an adoption applies when maintenance and support isn’t provided “as required by law or judicial decree.” While a child support order is a judicial decree, Iredale points to the “or” and argues the statute recognizes other duties separate from the judicial decree requiring Burbage to support his child. Because B.I.’s father hasn’t complied with these separate duties of support, his consent for the adoption isn’t required based on R.C. 3107.07(A), Iredale states.
Iredale maintains that this position is supported by the Fifth District’s ruling in A.S. According to Iredale, the Fifth District concluded that a zero child support order doesn’t relieve a parent of providing some support to a child within the parent’s means.
He asserts that the Ohio Supreme Court has ruled that adoptions must be decided on a case-by-case basis. In Iredale’s view, probate courts must weigh all factors and not rely only on a zero child support order to determine in an adoption case whether a parent is providing maintenance and support to a child. Consent from B.I.’s father is not necessary for this adoption, Iredale concludes.
Father Maintains His Consent Still Needed Because No Support Was Mandated
Burbage counters that the obligation to support a child is superseded by a court order determining a specific amount of child support.
He points to In re Adoption of Way, a 2002 Fourth District Court of Appeals decision. The appeals court noted it would be difficult to determine what exact obligation a parent has when a juvenile court has relieved the parent of any financial obligation. The ruling also stated that the Ohio Supreme Court has determined that exceptions to the need for parental consent to an adoption must be “strictly construed” to protect the biological parent’s rights.
Burbage maintains that a court order indicating that a parent has no child support obligation provides the justifiable cause to relieve him of duties of maintenance and support to his child. The biological parent’s consent is needed for an adoption when a court has determined the parent owes no child support, he argues.
The First District took issue with the Fifth District’s conclusion in the conflict case, Burbage notes. The First District stated:
“The Court finds that to espouse the position of the 5th District, would subject devoted noncustodial parents who rely on and comply with a valid and binding judicial decree of zero support, to the potential of an unjustified termination of their parental rights.”
At least half of the 12 district courts of appeal in Ohio have concluded that a valid child support order requiring no support is justifiable cause for failing to give maintenance and support to a child under R.C. 3107.07(A), Burbage states. In his circumstances, he argues his consent is necessary for the adoption to move forward.
Grandparents’ Rights Raised in Friend-of-the-Court Brief
A Cuyahoga County grandmother identified as A.G. has filed an amicus brief supporting Burbage’s position. Like Burbage, she asserts that the Ohio Supreme Court has ruled that any exception to the need for a parent to give consent to an adoption must be narrowly interpreted because of the rights involved. Her brief cites In re Adoption of Schoeppner (1976) and In re Adoption of P.L.H. (2017).
She also urges the Court to consider the consequences for grandparents if courts can terminate parental rights in adoptions when there is a court order requiring no support. In A.G.’s case, the other grandmother wants to adopt the two minor grandchildren without the consent of A.G.’s son. Stating that grandparents typically have no legal protections related to their grandchildren after an adoption, A.G. argues that allowing adoptions to take place without a biological parent’s consent “irrevocably severs the important bond between children and grandparents.”
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket case nos. (2018-0181), (2018-0182), (2018-0350), and (2018-0351).
Contacts
Representing Greg Iredale: Bradley McPeek, 513.421.6630
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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.