State of Ohio v. Darian J. Pribble, Case no. 2017-1758
Fourth District Court of Appeals (Adams County)

City of Cleveland v. State of Ohio, Case no. 2018-0097
Eighth District Court of Appeals (Cuyahoga County)

State of Ohio v. Travis Soto, Case no. 2018-0416
Third District Court of Appeals (Putnam County)

Lorain County Bar Association and Disciplinary Counsel v. Jeffrey Hile Weir II, Case no. 2018-1447
Lorain County

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Does Five-Year or Three-Year Prison Sentence Apply to Illegal Drug Maker?

State of Ohio v. Darian J. Pribble, Case no. 2017-1758
Fourth District Court of Appeals (Adams County)

ISSUE: When an offender is convicted of illegal assembly of chemicals for the manufacture of drugs, must a trial court sentence the offender under R.C. 2925.04(C)(1) to a minimum five-year prison sentence, or under R.C. 2929.14(A)(3) to a maximum three-year prison sentence?

BACKGROUND:
In February 2016, a Manchester police officer was alerted that Darian Pribble had purchased pseudoephedrine (Sudafed) from a local pharmacy. Pribble was identified in a law enforcement database as a person who had previous contact with police regarding the purchase of drugs to make methamphetamine, and pseudoephedrine is a component of that illegal drug. The officer located Pribble, stopped him, and conducted a search in which he found a pouch that contained “white powder crystal residue.” Also in his pocket was a severed lithium battery, which police recognized as a way to obtain lithium to manufacture meth. A Bureau of Criminal Investigation crime lab later identified the residue in the pouch as meth.

Pribble was indicted on one count of illegal assembly or possession of chemicals for the manufacture of drugs. Pribble had a prior conviction for aggravated possession of drugs and illegal assembly. The trial court, citing R.C. 2925.04(C)(1), imposed a five-year prison sentence based on the charge and prior conviction.

Pribble appealed to the Fourth District Court of Appeals, arguing that under R.C. 2929.14(A)(3), he could only be sentenced to three years in prison. The Fourth District reversed the trial court and instructed the lower court to impose the shorter sentence. The Adams County Prosecuting Attorney appealed the decision to the Ohio Supreme Court, which agreed to hear the case.

Sentencing Statutes Conflict, Prosecutor Explains
The prosecutor explains that the confusion among the courts about the correct sentence stems from the interaction between R.C. 2925.04(C)(1) and R.C. 2929.14(A)(3). R.C. 2925.04(C)(1) governs the sentencing for the illegal assembly or possession of chemicals for the manufacture of drugs. It has specific language that directs a trial court to impose a mandatory five-year prison sentence for those with certain prior convictions that make the offender subject to the sentence. The provisions of R.C. 2929.14(A)(3) govern the sentencing lengths for third-degree felonies, and the illegal assembly or possession of chemicals for the manufacture of drugs is a third-degree felony. R.C. 2929.14(A)(3) lists a number of specific third-degree felonies that are not governed by the statute. It also indicates that for all other third-degree felonies not listed, a trial court must impose a prison sentence ranging from 9 to 36 months.

While the two statutes appear to conflict, the prosecutor argues the intent of the General Assembly was to impose the five-year sentence for Pribble’s crime. Both provisions were enacted in the same legislation, House Bill 86 in 2011, the prosecutor notes. Because lawmakers added a specific enhanced sentence for the illegal chemical assembly in the same bill as the general provisions regarding third-degree felonies, it is clear the legislature intended to make the longer sentence in R.C. 2925.04(C)(1) an exception to the general sentencing scheme, the prosecutor asserts.

Reducing Pribble’s sentence to three years would have the effect of eliminating the enhanced sentence for offenders with specific prior convictions that lawmakers added when R.C. 2925.04(C)(1) was amended, the prosecutor maintains.

“Such an interpretation would flout the unmistakable intent of the legislature in amending felony drug abuse sentencing generally, while retaining mandatory minimums for certain drug offenders,” the prosecutor’s brief states.

Lesser Sentence Applies, Offender Argues
Pribble argues the state has imposed two conflicting penalties for illegal assembly. Contradictory sentences are resolved by the rule of lenity, he maintains, which requires the state to select the lesser mandated penalty.

Citing the Ohio Supreme Court’s 2015 State v. South decision, Pribble argues that third-degree felonies in which sentences aren’t specifically exempted from R.C. 2929.14(A)(3) are subject to the 36-month maximum. He notes that the statute provides a comprehensive guide for the penalties that apply to felonies, and indicates the law specifies eight crimes that qualify for a maximum of five years in prison while limiting the remainder to three years.

Pribble also disputes the prosecutor’s claim that the statutes were enacted at the same time, signaling the legislature’s intent to impose a penalty enhancement for illegal assembly. Pribble explains that in 2006 the General Assembly implemented five-year prison terms for illegal assembly, as a third degree felony, if there was a prior required conviction. At the time, all third-degree felonies were punishable by up to five years, so there was no conflict in the in law. In 2011, lawmakers amended R.C. 2929.14 and reduced the penalty for illegal assembly and other third-degree felonies to three years in prison. In the same bill, the legislature slightly amended the illegal assembly law to require two specific prior convictions, instead of one, for a five-year sentence. The conflict arose because R.C. 2925.04(C)(1) wasn’t amended to comply with the updates to R.C. 2929.14, he concludes.

Pribble argues the later bill reduced the maximum sentence for illegal assembly to three years, that only offenses specifically exempted from R.C. 2929.14(A)(3) can receive more than three years, and the rule of lenity controls the interpretation of the conflicting statutes.

- Dan Trevas

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

Contacts
Representing the State of Ohio from the Adams County Prosecuting Attorney’s Office: Mark Weaver, 937.544.2344

Representing Darian Pribble from the Ohio Public Defender’s Office: Allen Vender, 614.466.5394

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Does Law Banning Contracts that Allot Work Hours to Local Residents Infringe on Home-Rule Powers?

City of Cleveland v. State of Ohio, Case no. 2018-0097
Eighth District Court of Appeals (Cuyahoga County)

ISSUES:

• Is R.C. 9.75 – which prohibits public authorities from requiring contractors on public improvement projects to hire a certain number or percentage of residents – within the state legislature’s authority under the Ohio Constitution to pass laws for the general welfare of employees?
• Does R.C. 9.75 infringe on the city of Cleveland’s home-rule authority under the Ohio Constitution to mandate that contractors working on city public improvement projects devote a specific percentage of the hours worked on projects to employees who are city residents?

BACKGROUND:
In 2003, the city of Cleveland passed an ordinance, referred to as the Fannie M. Lewis Law. The Cleveland City Council determined that few of the jobs generated from the millions of dollars the city spent on its public improvement projects were going to Cleveland residents. The council noted that the city had a higher unemployment rate and higher poverty rate than the rest of Cuyahoga County and nearby communities, and it believed the new law would help lessen the city’s unemployment and poverty.

The law, which was named after a longtime city councilwoman and community activist, states that every contract for public construction projects of $100,000 or more must require that Cleveland residents perform at least 20 percent of the total construction worker hours on the project. (Based on a 1984 U.S. Supreme Court decision, the law excludes from the calculations the number of hours worked by non-Ohio residents.)

The law imposes penalties if the 20 percent requirement isn’t met. Contractors pay one-eighth of 1 percent (0.125%) of the total contract amount for each percentage under the 20 percent work-hour requirement. If a contractor hires no resident workers, the contractor incurs the maximum penalty of 2.5 percent of the total contract amount.

Other cities, including Cincinnati, Columbus, Lima, and Akron, passed similar laws for city construction contracts.

State Legislature Bans Contracts Devoting Part of Work to Local Residents
In May 2016, the Ohio General Assembly passed a law to counteract these city ordinances. R.C. 9.75 states, “No public authority shall require a contractor … to employ as laborers a certain number or percentage of individuals who reside within the defined geographic area or service area of the public authority.”

Citing Article II, Section 34 of the Ohio Constitution, the General Assembly stated that the legislation was implemented “to provide for the comfort, health, safety, and general welfare of those employees.” The legislature indicated the law reflected “a matter of statewide concern to generally allow the employees working on Ohio’s public improvement projects to choose where to live.”

The legislature also repealed two statutes that required certain state contracts to incorporate any local regulations related to the employment of residents and local businesses.

Cleveland Sues, Argues State Law Unconstitutional
Before R.C. 9.75 went into effect, the city of Cleveland sued the state, noting the conflict between the two laws and contending that the state’s law infringed on the city’s power of local self-government, as provided in the home-rule provision of the Ohio Constitution.

In August 2016, the trial court issued a preliminary injunction to stop the enforcement of R.C. 9.75 and then issued a permanent injunction in January 2017. The trial court determined that the city’s ordinance didn’t contain any residency requirements for city employees or for contractor employees. Instead, the city ordinance established “thresholds” for contractors to meet in hiring workers on public projects, the trial court ruled.

On behalf of the state, the Ohio Attorney General’s Office appealed. The Eighth District Court of Appeals upheld the trial court’s ruling. Among its conclusions, the Eighth District stated that Cleveland’s law was an exercise of local self-government that defined the terms of contracts for city construction contracts.

The attorney general appealed to the Ohio Supreme Court, which agreed to hear the case.

Legislature Can Pass Laws Prohibiting “Residency Quotas,” Attorney General Argues
The state maintains that the Ohio Supreme Court’s 2009 opinion in Lima v. State resolves this case. In Lima, the city had enacted laws mandating that certain city jobs could be filled only by city residents. The state legislature then passed a law blocking residency requirements for city employees. The Supreme Court upheld the statewide ban on residency requirements, concluding that an employee’s decision where to live is part of the employee’s comfort and welfare, and the General Assembly was within its authority to pass laws to protect employee comfort and welfare.

The attorney general believes the Ohio Constitution’s provision allowing the legislature to pass laws for the general welfare of employees in Ohio upholds the legislature’s enactment of R.C. 9.75. The statute, which the state calls the “residency-choice law,” gives construction workers from anywhere in Ohio the chance to compete for all possible work hours on a project across the state, the attorney general contends.

The attorney general argues that Cleveland’s ordinance and others like it favor local residents by creating residency “quotas” that disadvantage other Ohioans and parallels the circumstances in Lima. The attorney general also points to the cumulative effect that results as more local entities pass laws like Cleveland’s, sometimes with higher percentages of work hours dedicated to local residents. As these laws spread throughout the state and the percentages rise, the attorney general reasons, the construction workers who live outside of these localities experience greater disadvantages.

If the Supreme Court moves to the next step in the legal analysis and examines whether the Cleveland law falls within the city’s home-rule, or self-government, powers, the attorney general maintains that the statewide law is still proper and overrides the local ordinance. The state asserts that Cleveland’s law is an exercise not of local self-government allowed by home rule, but instead of its police power. The ordinance is designed to improve the economic welfare of its residents, has effects outside its area, and imposes penalties on contractors that don’t comply with the law, the attorney general states. The office concludes that these factors mean the city is exercising police powers, which can be overruled by a state law.

The attorney general also maintains that R.C. 9.75 is a general law, which overrides the local law, because R.C. 9.75:

• Is part of a statewide, comprehensive scheme covering public construction and contracting;
• Applies uniformly across the state;
• Does more than limit municipal power because it serves a broader state purpose of protecting construction workers throughout Ohio; and
• Prescribes a rule of conduct on citizens generally by giving construction workers the flexibility to live where they choose and by giving contractors freedom in hiring employees.

Local Law Doesn’t Involve Welfare of Employees, City Counters
The City of Cleveland Law Department responds that the legislative authority described in the Ohio Constitution to enact laws for the general welfare of Ohio employees doesn’t support the General Assembly’s enactment of R.C. 9.75. Lima and the other case decisions the state cites to back its arguments involve employees of local government employers, but this case addresses city contracts with independent construction companies that hire workers for projects, the city notes. Cleveland’s law addresses nothing about city employees, the city states.

The city also argues that the R.C. 9.75 doesn’t relate to the rights of individuals to choose where to live as the state asserts. The city points out that under the local law, contractors can hire non-residents of the city for 80 percent of their workforce for city construction projects, and the data shows that contractors hire about that many non-residents for these projects. Cleveland’s requirement that construction companies give 20 percent of the work hours on a project to local labor clearly isn’t a residency requirement that affects all potential construction workers, the city contends. The state law simply limits the power of cities and other municipalities to enter into contracts for public improvement projects, in the city’s view.

Because the legislature exceeded its authority described in the Ohio Constitution’s employee-welfare provision, the courts then must analyze whether local home-rule powers were violated by the enactment of R.C. 9.75, the city argues.

The local law isn’t an exercise of police power but instead is an act of local self-government, the city asserts. Cleveland maintains that a city’s authority to enter into contracts reflects local self-government, as permitted by the Ohio Constitution’s home-rule provision. Rather than protecting the public’s general welfare, the city describes the ordinance as a job creation tool in which the city sets the terms of contracts for contractors hired for public construction projects.

The city also maintains that R.C. 9.75 isn’t a general law, and therefore doesn’t override the local law, because R.C. 9.75:

• Isn’t part of a statewide, comprehensive scheme, but instead attempts to preempt and restrict local authority in entering contracts for public improvements;
• Provides no police, sanitary, or similar regulations;
• Doesn’t prescribe a rule of conduct on citizens generally across the state, because it doesn’t regulate where individuals live or who can bid on city contract, but it instead sets rules that municipalities must follow in their own contracts with construction companies.

Multiple Groups Take Positions on Issues
Separate amicus curiae briefs supporting the state’s positions have been submitted by American Institute of Architects (AIA) Ohio and the International Union of Operating Engineers, Local 18. The following organizations together filed amicus brief also in support of the state:

• Associated General Contractors of Ohio
• National Federation of Independent Business
• Ohio Chamber of Commerce
• Ohio Contractors Association

In support of the city of Cleveland, the city of Akron, Columbus city attorney, and Ohio Municipal League have submitted separate amicus briefs. Also backing the city’s positions in a joint amicus brief:

• Campaign to Defend Local Solutions
• Legal scholars from Columbia Law School, Fordham University School of Law, University of Buffalo School of Law, University of Illinois College of Law, University of Virginia Law School, and Willamette University College of Law
• International Municipal Lawyers Association

- Kathleen Maloney

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

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

Representing the City of Cleveland: Gary Singletary, 216.664.2737

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Could Man Be Prosecuted Twice Based on New Information He Later Told Police?

State of Ohio v. Travis Soto, Case no. 2018-0416
Third District Court of Appeals (Putnam County)

ISSUES:

• Under the “same offense” test established in the U.S. Supreme Court’s 1932 decision in Blockburger v. United States, is involuntary manslaughter with an underlying offense of child endangering the same offense for double jeopardy consideration as aggravated murder or murder with a felonious assault underlying offense?
• Does the discovery of additional facts not known earlier despite the exercise of due diligence act as an exception to Blockburger that allows subsequent prosecution on a new charge?
• Did defendant reasonably believe that a negotiated plea deal would bar subsequent prosecutions for any greater offense related to the same factual scenario?

BACKGROUND:
The Putnam County Sheriff’s Office investigated the death of Travis Soto’s 2-year-old son after receiving a 911 call on Jan. 23, 2006. Soto said that he was home with his son while the boy’s mother was at work. Soto first told investigators that he was riding an all-terrain vehicle (ATV) and accidentally ran over his son when he came around the corner of a building on the property. Soto later stated, though, that he had given his son a ride on the ATV along railroad tracks next to the property when the boy fell off and was hit by the vehicle.

Soto reported that he picked up his son, took him into their house, changed his clothes, rocked him until he stopped crying, then put him to bed. When checking on the child soon after, Soto noticed he wasn’t breathing. A few hours later, the child’s mother arrived home, found the boy unresponsive, and called the police.

Soto was indicted in March 2006 on charges of child endangering and involuntary manslaughter. In August 2006, the Putnam County prosecutor and Soto negotiated a plea agreement. Soto agreed to plead guilty to child endangering, and the state dismissed the involuntary manslaughter charge. The court sentenced him to five years in prison, and he completed his prison term.

Father Later Confesses to Beating Son to Death
Ten years after his plea, Soto went to the sheriff’s office and told them his son hadn’t died from the ATV accident but that he instead had beaten his son to death.

In August 2016, Soto was indicted for aggravated murder, murder, felonious assault, kidnapping, and tampering with evidence. Before the trial began, he asked the court to dismiss the case, arguing that he couldn’t be prosecuted again for the crime because of constitutional protections against double jeopardy. The trial court denied the motion.

Soto filed an interlocutory appeal with the Third District Court of Appeals before the trial court could proceed. In February 2018, the appeals court reversed the trial court’s decision, determining that Soto had been prosecuted twice for the same crime and that double jeopardy applied.

The Putnam County prosecutor appealed to the Ohio Supreme Court, which agreed to review the issues.

Do 2006 Offenses and 2016 Offenses Share Elements?
The double jeopardy clauses in the U.S. and Ohio constitutions protect against a second prosecution for the same offense after an acquittal or a conviction, and against multiple punishments for the same offense.

The prosecutor states that double jeopardy doesn’t prohibit additional prosecutions, only additional prosecutions for the same offense. The Ohio Supreme Court has adopted the test described in the U.S. Supreme Court’s 1932 ruling in Blockburger v. United States. Under Blockburger, the double jeopardy clause bars successive prosecutions for the same crime under different criminal statutes unless each statute requires proof of an element not contained in the other.

In comparing the elements of the later aggravated murder charge to the original child endangering charge, the prosecutor maintains that aggravated murder in this case required proof that Soto purposely committed the crime and that the victim was under the age of 13. Neither of those elements are needed to prosecute child endangering, the prosecutor notes. And murder requires proof of an offense of violence, which child endangering doesn’t, states the prosecutor. The office then reasons that Blockburger doesn’t prohibit the prosecution of the new charges of aggravated murder or murder.

However, the Third District compared the aggravated murder and murder charges to involuntary manslaughter. The prosecutor contends that the appeals court couldn’t apply the Blockburger test to a count that the state dismissed because a dismissal isn’t equivalent to an acquittal.

In his brief, Soto focuses on comparing involuntary manslaughter to aggravated murder and murder. He argues that the Ohio Supreme Court has ruled that involuntary manslaughter is a “lesser-included offense” of murder and aggravated murder, meaning the murder offenses contain all the elements that also prove involuntary manslaughter. He states that the only distinction between involuntary manslaughter and murder is mens rea, or the mental state required for the commission of each crime. And the difference between involuntary manslaughter and aggravated murder of a child under 13 is the age of the victim, he adds. He maintains that the state can’t charge a defendant with a greater offense, such as murder, after the defendant already has pleaded to a lesser-included offense.

Did Investigators Act with Due Diligence in 2006?
The prosecutor explains that the U.S. Supreme Court allows a “due diligence” exception to double jeopardy protections when the state is unable to prosecute a more serious charge initially because the additional facts needed to support that charge haven’t occurred or haven’t been discovered despite the exercise of due diligence.

Soto was the only person present during the events surrounding his son’s death, and the state relied on his statement of the events, the prosecutor notes. The prosecutor argues that Soto’s false account of what happened led to inaccurate conclusions about what caused his son’s death, and the facts couldn’t have been discovered until Soto confessed in 2016.

Soto counters that the prosecutor hasn’t met the burden to prove that the police exercised due diligence. His brief notes that he offered two different stories and displayed irrational behavior, such as when he ignored that his son had stopped breathing. Given this conduct, police exercising due diligence would have investigated further, interviewing family and neighbors, analyzing the ATV and the boy’s clothing, and questioning why the child had no broken bones after being run over by an ATV, the brief states.

Was It Reasonable for Father to Believe Plea Deal Would Bar Future Prosecution?
The prosecutor also maintains that Soto couldn’t have reasonably believed that his plea would prohibit additional prosecutions when he lied to authorities about what killed his son. There is no “objectively reasonable expectation of finality” when a defendant negotiates a plea based on a fraud unknown to the state, the prosecutor argues in its brief. The office notes that the 2016 truthful account of the events transformed the case from one about an accidental death to one involving a purposeful homicide. Under these circumstances, the prosecutor concludes that a later prosecution for aggravated murder and murder is permitted.

Soto responds that the police had access to all relevant information in 2006, the charges in 2006 and 2016 all arose from the same incident, the court had jurisdiction over all of the charges, and the 2006 plea agreement resolved all the charges and closed the case. The state indicted him in 2006 on the charges it knew could be proven, it chose to negotiate a plea agreement, and it obtained a definite prison sentence, Soto maintains. He adds that the prosecutor also didn’t reserve the right to bring additional charges later. Given these factors, Soto reasons that he had a reasonable expectation of finality when he agreed to the plea.

Cuyahoga County Voices Support for Prosecutor
The Cuyahoga County Prosecutor’s Office has filed an amicus curiae brief supporting the Putnam County prosecutor. Cuyahoga County maintains that the Third District improperly applied the Blockburger double jeopardy test to the involuntary manslaughter count, which had been dismissed by the state. The Third District’s expansion of the double jeopardy clauses to include counts dismissed as part of a plea deal is already having repercussions in Cuyahoga County, the prosecutor states.

- 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 Putnam County Prosecutor’s Office: Gary Lammers, 419.523.3600

Representing Travis Soto from the Ohio Public Defender’s Office: Carly Edelstein, 614.752.7033

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Suspension Proposed for Lorain County Attorney Who Neglected Client Matters

Lorain County Bar Association and Disciplinary Counsel v. Jeffrey Hile Weir II, Case no. 2018-1447
Lorain County

A Lorain County attorney faces a one-year suspension with six months stayed after losing a client’s settlement check, which led to a more than two-year delay in the client receiving her funds.

The Lorain County Bar Association charged Jeffrey H. Weir II with violating multiple rules governing the conduct of Ohio attorneys for the delays in settling his client’s case and subsequently failing to cooperate with the bar association when the dissatisfied client filed a grievance. Separately, the Office of the Disciplinary Counsel charged Weir with rule violations regarding an unrelated matter where he failed to adequately file an attorney malpractice lawsuit against another lawyer.

The Board of Professional Conduct considered both complaints against Weir together and recommends that he be suspended for one year, with six months stayed on the conditions that he completes a continuing legal education course on law office management and not engage in any other misconduct. The board has recommended also conditioning the suspension on Weir’s payment of $4,983 in restitution to his former client, Jennifer Demyan. Through her new attorney, Demyan notified the board she received the $4,983 in settlement funds.

Land Dispute Languishes
Demyan hired Weir in December 2015 to represent her in a dispute regarding a land contract with Lonnie and Enid Copen. Weir negotiated a settlement with the Copens’ attorney for $4,983 in February 2016, and the Copens wrote a check payable to Demyan and gave it to their attorney. The parties exchanged counteroffers, which were rejected. In June, Demyan told Weir she would accept the offer and Weir replied that he would contact the Copens’ attorney to see if the check was still good. Weir learned the first check had expired, and the Copens’ attorney sent Weir a second check for Demyan in August 2016. Weir emailed Demyan asking her to pick up the check or receive it by mail, and Demyan replied that she would accept the check if there was a signed settlement.

Weir didn’t reply to Demyan’s email and didn’t respond to further emails until November 2016 after she suggested she might get another attorney. Weir told her he couldn’t locate the check, and would attempt to get a third check. Weir continued to ignore follow-up emails from Demyan, and she filed a grievance with the Lorain County Bar Association in July 2017.

A county bar investigator attempted to contact Weir by mail, which Weir didn’t respond to, and the bar association personally delivered a notice of a hearing to him about the grievance in October 2017. Weir appeared at the hearing, and said he was learning for the first time that Demyan hadn’t been paid, and said he was willing to make restitution. Two months later, he alerted the bar association that he found the August 2016 check and mailed it to Demyan. The check didn’t clear despite assurances from the Copens. Demyan, through her second attorney, received her settlement funds from the Copens in August 2018.

The professional conduct board found Weir violated multiple rules including not diligently representing Demyan, not keeping her reasonably informed about her case, and failing to promptly deliver funds belonging to the client. The board also found Weir failed to cooperate with the disciplinary proceedings and didn’t advise Demyan that he didn’t maintain malpractice insurance.

Attorney Misses Case Filing Deadlines
In a second matter, a contractor attempted to collect on a lien against Edward and Nancy Medley for failure to pay for construction work. The Medleys hired attorneys Daniel McGookey and Richard Hardy III to represent them. McGookey and Hardy identified one expert witness to support the Medleys’ claim that they refused to pay because the contractor’s work was deficient. It was later determined the expert wasn’t appropriate for the case.

The Medleys then hired Weir, who attempted to locate an appropriate expert. However, the trial court judge wouldn’t allow the Medleys to offer another expert witness. The trial court granted the contractor a $42,000 judgment against the Medleys. After the verdict, Weir discussed filing a malpractice case against McGookey, and the Medleys agreed. However, the court found Weir waited too long to file the case, and it was dismissed for failing to meet the statute of limitations.

A year after the loss, Weir suggested that the Medleys appeal the case. The appellate court dismissed the appeal because Weir had only 30 days after the trial court’s dismissal to file an appeal.

Based on the missed deadlines, the disciplinary counsel charged Weir with failing to competently represent the Medleys, and the board agreed.

Attorney Objects to Sanction
The board suggests the one-year suspension with conditions based on the misconduct in Demyan’s case. The board also found that the typical sanction for failing to meet filing deadlines in the Medleys’ case would be a public reprimand.

Weir argues that the he deserves a fully stayed suspension. He objects to the board’s finding that while he offered to make restitution to Demyan, that he “made no attempt to do so.” Weir maintains that he attempted to get a third check from the Copens for Demyan and mailed her the second check when he found it. He maintains the board’s proposed actual suspension of six months is too harsh and that it hinges on the allegation that he made no effort to compensate Demyan. Since Demyan indicated she received the payment, he argues, a fully stayed sanction is appropriate.

Bar Association, Disciplinary Counsel Supports Finding
The bar association and the disciplinary counsel state their support for the board’s proposed sanction. The bar association maintains that Weir mischaracterizes the term “restitution,” and that his attempts to locate the second check and Demyan’s eventual receipt of the settlement money from the Copens doesn’t constitute restitution. The bar association supports the board’s finding that Weir made no attempt to repay Demyan, which would constitute making restitution.

- Dan Trevas

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

Contacts
Representing Lorain County Bar Association: Daniel Cook 440.695.8000

Representing Office of Disciplinary Counsel: Lia Meehan, 614.461.0256

Jeffrey Hile Weir II, representing himself: 440.988.9013

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