Tuesday, Jan. 29, 2019
State of Ohio v. Carlos Romero, Case no. 2017-0915
Fifth District Court of Appeals (Stark County)
State of Ohio v. Danielle K. Martin, Case no. 2017-1463
Eleventh District Court of Appeals (Trumbull County)
State of Ohio v. Jaonte D. Hairston, Case no. 2017-1505
Tenth District Court of Appeals (Franklin County)
Disciplinary Counsel v. Thomas A. Shimko, Case no. 2018-1438
Cuyahoga County
Was Defendant Properly Informed of Immigration Ramifications of Guilty Pleas?
State of Ohio v. Carlos Romero, Case no. 2017-0915
Fifth District Court of Appeals (Stark County)
ISSUE: Did a trial court abuse its discretion when overruling a motion to withdraw a guilty plea from a defendant who alleged his lawyer didn’t inform him of deportation consequences?
BACKGROUND:
After police searched the Canton home Carlos Romero shared with his girlfriend, he was charged with marijuana and cocaine possession and trafficking in marijuana.
In June 2016, Romero pled guilty to the charges, and the trial court held a hearing. Romero, an immigrant born in Honduras and the father of five children born in the United States, had been a lawful permanent resident in the U.S. since 1998. As required by R.C. 2943.031, the court advised Romero that his pleas might have immigration ramifications, including deportation. Romero elected to move forward with his pleas, and the court sentenced him to three years of community control, 100 hours of community service, and a six-month driver’s license suspension.
After his sentencing, U.S. Immigration and Customs Enforcement officials took Romero into custody. Because trafficking is an aggravated felony under federal law, immigrants convicted of trafficking offenses “shall, upon order of the Attorney General, be removed,” according to Romero’s brief.
Defendant Tries to Withdraw Guilty Pleas
Before his deportation hearing, Romero filed an emergency motion in the state trial court to withdraw his pleas asking that the earlier judgment be set aside. The motion included an affidavit from Romero along with the federal immigration notices sent to him. He argued that he “was not properly advised by his attorney regarding the swift, certain, and severe immigration consequences that would result from his guilty pleas, i.e., mandatory detention, immediate deportation proceedings, and disqualification for any forms of relief.”
Rejecting his request, the court stated it had fully informed Romero of the possible consequences, including deportation. Romero appealed to the Fifth District Court of Appeals, which reversed the trial court’s decision and ordered the court to hold an evidentiary hearing to consider the arguments Romero made in his motion to withdraw his pleas.
The Stark County Prosecutor’s Office appealed to the Ohio Supreme Court, which agreed to hear the case.
Defendant Wasn’t Entitled to Hearing on Ineffective Assistance Claim, State Maintains
The Stark County prosecutor explains that a court rule for criminal procedure addresses motions to withdraw guilty pleas. The rule, Crim.R. 32.1, states that after sentencing courts may set aside convictions and allow defendants to withdraw pleas to correct a “manifest injustice.” The defendant must demonstrate the manifest injustice, the prosecutor notes.
To show that ineffective assistance by his attorney created a manifest injustice, Romero must establish that his attorney’s representation was deficient and there was a reasonable probability that the trial’s outcome would’ve been different without his counsel’s errors, the prosecutor explains.
In analyzing whether Romero’s lawyer’s representation was ineffective, the prosecutor turns to the standard in state law for post-conviction relief proceedings. In those cases, the defendant must submit evidence to support the claim and establish that an evidentiary hearing is warranted. In this case, the prosecutor describes Romero’s affidavit as “self-serving” and maintains that the documents he provided with his motion to withdraw his pleas didn’t justify a need for the trial court to hold a hearing.
The Fifth District’s ruling “circumscribes the trial court’s discretion and would automatically grant defendants an automatic evidentiary hearing after sentencing,” the prosecutor’s brief asserts.
In Padilla v. Kentucky (2010), the U.S. Supreme Court ruled that criminal defense attorneys must advise noncitizen clients about the consequences of deportation. However, unlike Romero’s motion, substantial evidence was provided to the court in the Padilla case, the prosecutor maintains. Stressing that these cases must be individually evaluated, the prosecutor concludes that “the record, affidavit, motion, and judgment entry rationale by the trial court illuminate why a hearing was not necessary.”
The prosecutor also notes that Padilla involved a plea bargain with the state. In Romero’s case, though, the state and Romero didn’t negotiate a plea agreement. Instead, Romero decided to plead guilty. The Fifth District’s decision incorrectly indicated that Romero’s pleas were the result of a plea bargain, the prosecutor points out.
The prosecutor argues that, without requiring sufficient evidence from defendants, including Romero, to substantiate an ineffective assistance of counsel claim, the Fifth District’s decision results in a “loophole” for defendants to challenge guilty pleas after sentencing. The prosecutor contends that this loophole will burden trial courts with more hearings and increased costs.
Attorneys Must Tell Defendants About Mandatory Deportation Outcome, Romero Argues
Romero states that a trial court’s compliance with R.C. 2943.031 – requiring the court to inform defendants that certain pleas may have immigration consequences – doesn’t negate the attorney’s duties. After Padilla, trial counsel must accurately inform noncitizen clients of the immigration consequences of their pleas, Romero argues. He adds that Padilla explained that when immigration consequences are clear from the law, the attorney must correctly inform the defendant of those consequences.
He quotes the Fifth District’s opinion, which stated that Padilla “held that a defendant demonstrates prejudice by ‘convinc[ing] the court that a decision to reject the plea bargain would have been rational under the circumstances.’”
“Accordingly, because the trial court denied the motion solely on the basis of the R.C. 2943.031 advisement we find it appropriate to remand the case for the parties to develop a record regarding whether Romero’s decision to reject the plea bargain would have been rational under the circumstances,” the Fifth District concluded.
Although the Ohio Supreme Court has ruled there is no specific requirement to hold a hearing in these circumstances, the Court also has determined unless it’s clear that a denial of plea withdrawal motion is merited, a trial court should hold a hearing, the Fifth District noted. Romero maintains that when a trial court denies a motion for a plea withdrawal with a record that doesn’t make clear reasons for the denial, the trial court abuses its discretion.
Over time, Romero points out, many criminal offenses have become mandatory, rather than discretionary, reasons for deportation. He argues that eight state supreme courts and four federal circuit courts have ruled that a court’s general notice of possible immigration consequences doesn’t relieve a lawyer of the constitutional duty to accurately warn a noncitizen client about mandatory deportation consequences.
Romero indicates that the evidence against him was insufficient for a conviction and that he had a defense if the case had gone to trial, but his attorney told him it was best to plead guilty. The trial court didn’t make any findings that his affidavit and documentation lacked credibility, Romero argues.
He asks the Court to allow the trial court to hold an evidentiary hearing to resolve the factual issues, as the Fifth District decided.
Groups Submit Friend-of-the-Court Brief
The Immigrant Defense Project and the National Association of Criminal Defense Lawyers have filed a joint amicus curiae brief supporting Romero’s position.
- 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 Stark County Prosecutor’s Office: Jessica Logothetides, 330.451.7897
Representing Carlos H. Romero from the Ohio Public Defender’s Office: Stephen Hardwick, 614.466.5394
Was Woman’s Right to Speedy Trial Violated?
State of Ohio v. Danielle K. Martin, Case no. 2017-1463
Eleventh District Court of Appeals (Trumbull County)
ISSUE: Does a speedy-trial time calculation stop when a trial court agrees to delay a case but doesn’t journalize its decision?
BACKGROUND:
Police officers arrested Danielle Martin in November 2015 for various traffic and criminal violations, including operating a vehicle under the influence of alcohol or drugs (OVI), reckless operation, failing to comply with a police officer’s order, and not wearing a seat belt.
Martin appeared with her attorney in court for a pre-trial hearing on Dec. 14, 2015. At the attorney’s request, the Trumbull County trial court granted continuances in the case to give more time for steps such as reviewing discovery and considering a plea deal.
On March 14, 2016, the court set a trial date of March 28. On that date, the judge reset the trial for May 2 “for good cause shown” and later moved the trial to May 16 “due to conflicting notices.” On May 16, Martin’s attorney informed the court that he had to withdraw from the case, and Martin found a new lawyer. The court granted additional continuances at the new attorney’s request.
On June 29, Martin’s attorney filed a request to dismiss the case asserting that Martin’s right to a speedy trial had been violated. The trial court denied the motion on Aug. 18. Martin submitted a motion on Sept. 7 asking the court to reconsider the decision. In October, Martin pleaded no contest to fewer charges, including the OVI.
Appeals Court Sets Aside Conviction
Martin appealed to the Eleventh District Court of Appeals, which reversed the trial court’s decision. In vacating Martin’s convictions, the appeals court determined that the speedy-trial time had expired.
Delays before trial are counted against either the state or the defendant. Because this case involved first-degree misdemeanors, the state had 90 days after Martin’s arrest to start the trial. The Eleventh District found that the delays from Dec. 14, 2015, to March 14, 2016, had to be counted against the state because the trial court is required to, but didn’t, note in its entries who requested the continuances. Citing precedent, the appellate court stated that “because a court only speaks through its judgment entries, the speedy-trial clock continued to run,” putting the number of days charged against the state at more than 90 when counting this time period.
The Eleventh District added that even if the trial court’s transcripts were enough procedurally to show that Martin requested those delays – meaning the Dec. 14-March 14 timeframe would be counted against Martin instead of the state – other events occurred in court that kept the speedy-trial clock ticking and caused the state to surpass the 90-day limit.
The Trumbull County Prosecutor’s Office appealed to the Ohio Supreme Court, which accepted the case.
Defendant Requested Delays That Appeals Court Counted Against State, Prosecutor Argues
During the Dec. 14, 2015, to March 14, 2016, timeframe, Martin’s attorney requested all the continuances in open court and on the record , the prosecutor notes. The first continuance was given because Martin’s attorney was new to the case; the second, because her attorney had just received discovery; the third, because of a request for adequate time to consider the state’s plea offer.
Pointing to the Ohio Supreme Court’s 2002 decision in State v. Myers, the prosecutor maintains that a court’s entry doesn’t need to identify the defendant as the party requesting a continuance nor note the reason for the delay when the court record is clear who made the request.
In the Eleventh District’s alternate scenario, it counted the days between Dec. 14, 2015, and March 14, 2016, against Martin, but stated that the period from March 28 to May 2 must be counted against the state. The prosecutor states that, on March 28, the trial court judge described the delay as for “good cause shown,” and indicated in court that the continuance was granted because Martin’s attorney had a serious illness. This continuance was made at Martin’s request, not granted by the court on its own, the prosecutor asserts. The prosecutor also indicates that the lawyer’s sickness was noted later, in the court’s Aug. 18 journal entry. The Eleventh District incorrectly counted the period from March 28 to May 2 against the state, the prosecutor contends.
“This Court should affirm that the purpose of the speedy-trial statute is not to allow a defendant to game the system but ensure that justice is done in a timely fashion,” the prosecutor’s brief states. “Failing to toll speedy-trial time when it was clearly evident from the record each and every time that continuances were requested by [Martin] and her counsel ‘stretches the bounds of reasonableness in applying the speedy trial law,’” quoting the Eleventh District’s dissent.
Courts Required to Note in Entries Reasons for Continuances, Martin States
Martin responds that the court’s entries regarding the continuances given between Dec. 14, 2015, and March 14, 2016, state only that a pretrial hearing was held and that the case was to be reset for another pretrial. These minimal entries were insufficient to stop, or toll, the speedy-trial clock, Martin contends.
The prosecutor points to Myers, but Martin argues that the decision conflicts with R.C. 2945.02, which states, “Whenever any continuance is granted, the court shall enter on the journal the reason for the same.” Regardless of what was said in court, the court’s failure to document the reasons for the continuances in its entries means the days of delay must be counted against the state, Martin maintains.
In reviewing the March 28 to May 2 timeframe, Martin states that the court on its own decided to delay the trial “for good cause shown.” Citing a 1982 Ohio Supreme Court ruling (State v. Mincy), Martin notes that for the speedy-trial clock to stop when a trial court sua sponte makes the decision to delay a case, the trial court must note the continuance and the reasons for it in a journal entry before the speedy-trial time expires. However, because the court didn’t document why it continued the trial during this period, Martin argues the days must count against the state.
Between the trial court’s Aug. 18 ruling denying the request to dismiss the case and Martin’s Sept. 7 motion for reconsideration, the 90 days expired, and her case had to be dismissed, Martin concludes.
“This Court should require trial courts to include the reason for granting a continuance in its journal entry, regardless of who requests the continuance,” the brief states. “Doing so streamlines the administration of justice by requiring the same standard regardless of who requests the continuance and what form the request is made, brings this Court’s jurisprudence in line with the statutory mandates and rules governing the request and journalization of continuances, promotes effective appellate review by producing a clear record, and avoids unnecessary confusion.”
- 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 Trumbull County Prosecutor’s Office: Deena DeVico, 330.675.2426
Representing Danielle K. Martin from the Ohio Public Defender’s Office: Katherine Reid Ross-Kinzie, 614.466.5394
Did Police Have Reasonable Suspicion to Stop Man Walking in Area Where Gunshots Were Heard?
State of Ohio v. Jaonte D. Hairston, Case no. 2017-1505
Tenth District Court of Appeals (Franklin County)
ISSUE: When responding to very recent gunfire in an area known for criminal activity, is it reasonable for officers to draw their weapons and detain the only individual seen in the area?
BACKGROUND:
Columbus police officers responded to a call about a domestic dispute near 9 p.m. on March 29, 2015. When the officers arrived, they heard gunshots they thought came from the west. They returned to their cruiser and drove about four-tenths of a mile in the direction of the sound. One of the officers said they traveled along a few residential streets for no more than a minute when they saw Jaonte Hairston. He was walking across a street talking on his cell phone.
Because Hairston was the only person they saw in the area, the officers exited their vehicle with their guns drawn and approached him. They asked Hairston if he heard the shots, and he replied that he had. Hairston was told to place his hands behind his back and asked whether he had any weapons, which he said he did in his jacket pocket. Police retrieved a pistol and arrested Hairston for carrying a concealed weapon.
Defendant Argues Search Was Unreasonable
In court, Hairston asked to suppress his statements and the evidence. The trial court denied the motion, finding that the officers had reasonable suspicion to stop Hairston. In March 2016, Hairston pled no contest to carrying a concealed weapon. The court sentenced him to one year of community control.
Hairston appealed to the Tenth District Court of Appeals. Reversing the trial court’s decision, the Tenth District determined that the police had no reasonable suspicion to stop and search Hairston.
The Franklin County Prosecutor’s Office filed an appeal with the Ohio Supreme Court, which accepted the case.
Terry Stops
The Fourth Amendment to the U.S. Constitution prohibits searches and seizures without a warrant. One exception is an investigatory stop made on the authority of Terry v. Ohio, a 1968 U.S. Supreme Court opinion. In Terry, the Supreme Court ruled the police may stop a person if the officer has a reasonable suspicion based on specific and articulable facts that criminal behavior has occurred or is imminent, the prosecutor’s brief states.
Factors Viewed Together Justify Search, State Argues
The prosecutor explains that courts must look at the totality of the circumstances when reviewing whether stopping and searching an individual was legal. In the state’s view, the appeals court didn’t examine all the circumstances together, but instead separated and then discounted each factor.
The location was a high-crime area, and the defendant was the only person the officers saw shortly after hearing gunfire when they drove in the direction of the shots, the prosecutor states. The prosecutor maintains that officers are permitted to draw their weapons after hearing recently fired gunshots both to protect themselves and to find out whether a suspicious person is carrying a weapon.
While individual factors may be innocent behavior, taken together they can amount to reasonable suspicion as in this case, the prosecutor argues. The state asks the Court to overturn the Tenth District’s ruling.
Police Had No Specific Reasons to Stop Him, Hairston Maintains
Hairston counters that the police cannot detain a person at gunpoint to investigate gunshots when they have no description of a suspect, don’t know the direction a suspect was heading, and have no other particularized information connecting the person to an offense of discharging a firearm.
The state has indicated that a search is legal based on the officer’s subjective interpretation about whether a person has committed some wrongdoing, given the officer’s training and experience. But Hairston argues that precedent clearly states that the correct legal standard is an objective one. Police must articulate specific reasons for stopping and searching an individual, he maintains. Yet his behavior wasn’t suspicious, he didn’t flee when police approached him, and he answered the officers’ questions, he notes.
The brief states, “The bottom line is that his conduct, viewed objectively, evinced no evidence whatsoever that he was engaged in criminal conduct.”
Several Groups Conclude Search Was Unreasonable
The groups below filed a joint amicus curiae brief supporting Hairston’s position.
- Friedman and Gilbert, a Cleveland law firm
- Hamilton County Public Defender
- Juvenile Justice Coalition
- Montgomery County Public Defender
- National Lawyers Guild
- Ohio Justice and Policy Center
- Ohio Public Defender’s Office
They submitted the brief “to convey the deep concern that it shares with citizens in aggressively policed communities.” Stating that the officers had “negligible knowledge of both the alleged crime and the culprit,” the groups conclude that the stop and search was unreasonable.
Police Union Believes Stopping Man Was Warranted
The Fraternal Order of Police Ohio, Capital City Lodge No. 9 supports the prosecutor in its amicus brief. The organization, which is the collective bargaining representative for central Ohio law enforcement, argues that the officers would have been remiss if they hadn’t stopped the one person they saw a short time and distance after hearing the gunshots.
- 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 Franklin County Prosecutor’s Office: Sheryl Prichard, 614.525.3555
Board Recommends Suspension for Lawyer’s ‘Threatening and Unprofessional’ Legal Action Against Client
Disciplinary Counsel v. Thomas A. Shimko, Case no. 2018-1438
Cuyahoga County
A Cuyahoga County attorney objects to a proposed two-year suspension based on allegations that he attempted to extort an attorney fee from his client that was $2,000 more than estimated.
The Board of Professional Conduct is recommending that the Supreme Court suspend Timothy A. Shimko based on multiple violations of the rules governing the conduct of Ohio lawyers, including charging a clearly excessive fee and engaging in conduct that adversely reflects on his fitness to practice law.
Shimko claims the board disregarded the Court’s 2010 Squire, Squire, Sanders & Dempsey LLP v. Givaudan Flavors Corp. decision when it found that he violated the rules while attempting to resolve a fee dispute. He claims his actions are permissible and that he shouldn’t be suspended, or that his suspension be fully stayed.
Client Seeks Help with Insurance Claim
In July 2015, Richard Berris, an electronics engineer, filed an insurance claim for a fire that destroyed a home he was constructing while living elsewhere. He told local media that he stored an estimated $1 million of equipment in the home and the equipment was used to design and build test instruments.
Berris had two insurance policies related to the property, one for the business equipment and a homeowner’s policy with Allstate Insurance. Allstate requested that Berris appear for an examination under oath (EUO) regarding his claim. Twelve days before the October 2015 EUO, Berris called Shimko and asked if he would be interesting in representing him at the EUO. Following the call, Shimko sent a letter to Berris stating he would represent him at the EUO, his fee was $385 per hour, and he wanted to meet the day of the EUO to prepare.
Berris sent Shimko an email that included a request for a free “intake interview,” and a written copy of Shimko’s fees and services. Shimko eventually responded stating:
- He wouldn’t charge Berris for the initial phone call.
- He understood Berris had two insurance policies.
- His assignment was to represent him up to and during the EUO.
- He estimated a bill in the range of $2,300.
The day after the EUO, Shimko sent Berris a bill for $4,350. He wrote that he completed the work and closed by stating: “If you require any further services in the future, it would be my privilege to represent you.”
Berris wrote to Shimko, indicating he was satisfied with the representation but not the bill. He noted there was a $154 charge for the initial phone call, a $539 charge to prepare the email explaining his billing practices, and a 1.5 percent interest charge that was not previously disclosed. Berris offered a compromise to pay $3,300 in $500 monthly installments, and included a $500 check. He then paid the $3,300 in monthly installments in full.
Lawyer Sues Client
Shimko sent a letter to Berris rejecting the compromise and indicating he didn’t give free consultations for business matters, and he expected to analyze one insurance policy, not two. He suggested that Berris didn’t “clearly inform” him of the magnitude of work he wanted completed. Shimko told Berris that if the bill was not paid in 10 days, he would sue, “lien your property and foreclose on it if I have to.” Shimko didn’t cash Berris’ checks sent to settle the matter.
A month later Shimko filed a lawsuit against Berris in Cuyahoga County Common Pleas Court, seeking $4,738, which included interest and filing fees on top of his original requested fee. He also stated he suffered damages of more than $15,000, which prompted Berris to hire attorney Bryan Carr to represent him. As the fee dispute proceeded in court, Allstate denied Berris’ claim, and Berris hired another attorney, not Shimko, to challenge the insurance denial.
Carr wrote to Shimko to resolve the case, and Shimko rejected the offer. He told Carr to “remind Mr. Berris that the attorney-client privilege is ineffective in a fee dispute between attorney and client.” He also stated that Berris committed perjury during the EUO, and that information could be included in a filing Shimko would make, which would be a public record, if Berris didn’t pay the full amount owed. Carr stated his first reaction was that this was a “shakedown,” and he contacted the Office of the Disciplinary Counsel.
When Shimko presented his case at trial, he didn’t mention that Berris allegedly lied at the EUO, but the issue came up during questioning. The trial court found most of Shimko’s time spent on the Berris case was reasonable, but the charge for the phone call or the time to prepare the email wasn’t reasonable. The court ruled that Shimko was entitled to $3,657.50, which was $357.50 more than Berris had paid.
Board Finds Rule Violations
Based on Shimko’s handling of the fee dispute, the professional conduct board found that Shimko charged an excessive fee in three ways, including intentionally charging for the phone call. It also found he violated the rule against using confidential information against the client without taking steps to limit access to the information to only those who need to know.
In proposing the suspension, the board cited the disciplinary counsel’s statement that Shimko was “driven by pure greed, and a hardwired, vindictive personality,” and he sought to blackmail Berris by threatening to sabotage his claim against Allstate unless Berris paid his full fee.
Lawyer Claims Rules Followed
Shimko argues the board ignored the Squire, Sanders decision, which recognized an attorney’s right to reveal confidential information shared between an attorney and a client when the attorney is providing support for his fee claim. He also argues the information wasn’t “confidential” because Berris went public with the alleged false statements under oath when he told the media he did experimental tests at the house while denying it to Allstate’s representatives during the examination. Shimko said Carr also shared Berris’ alleged false statement under oath with the disciplinary counsel after receiving Shimko’s rejection of a settlement, which also lifted the confidentiality requirement.
Shimko concludes that because the trial judge awarded him most of his requested fee, and he didn’t disclose confidential information, he didn’t commit the rule violations.
- Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Timothy A. Shimko: Richard Alkire, 216.573.0801
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