Wednesday, Jan. 8, 2020
State of Ohio v. Kenny Pendleton, Case no. 2018-1348
Second District Court of Appeals (Clark County)
State of Ohio v. Basim Barnes, Case no. 2018-1389
Eighth District Court of Appeals (Cuyahoga County)
Disciplinary Counsel v. Anthony P. Spinazze, Case no. 2019-1075
Lucas County
Pattiann McAdams v. Mercedes-Benz USA LLC et al., Case no. 2018-1667
Tenth District Court of Appeals (Franklin County)
Can Defendant Receive Separate Sentences for Trafficking Substance Containing Heroin and Fentanyl?
State of Ohio v. Kenny Pendleton, Case No. 2018-1348
Second District Court of Appeals (Clark County)
ISSUE: Is a criminal defendant’s constitutional protections against double jeopardy violated when the defendant is convicted for separate drug trafficking offenses where the drugs in each offense are calculated as filler for the other drug offense?
BACKGROUND:
In late 2015, Springfield police began investigating Kenny Pendleton on the suspicion that he was trafficking drugs. Police also started surveilling two residences as part of the investigation. On Jan. 4, 2016, Pendleton was driving with two passengers in Springfield, and police stopped him for driving without a license. Law enforcement also executed search warrants on one of the residences.
Based on evidence found in the car and the house, Pendleton was indicted for trafficking in heroin, possession of heroin, trafficking in cocaine, possession of cocaine, aggravated trafficking in drugs (specifically, fentanyl), aggravated possession of drugs (specifically, fentanyl), and other charges and specifications.
During the searches, police recovered baggies and “pucks” of drugs – roughly 50 grams of a substance containing heroin, cocaine, and fentanyl; nearly 84 grams of a substance including heroin and fentanyl; and 63 grams of a substance that contained cocaine.
Defendant Found Guilty of Possession and Trafficking
After one charge (for illegally having a weapon) was dismissed, the jury convicted Pendleton of the other charges and specifications. At sentencing, the trial court merged the possession and trafficking counts for each drug, and the Clark County Prosecutor’s Office chose to move forward on the three trafficking offenses. The court imposed a 21-year prison sentence – 11 years for heroin trafficking, eight years for fentanyl trafficking, one year for cocaine trafficking, and one year for a firearm specification, all to be served consecutively.
Pendleton appealed to the Second District Court of Appeals, which upheld the convictions and sentence in August 2018. The Ohio Supreme Court agreed to consider his question about double jeopardy related to his trafficking offenses.
Trafficking Sentences for Powder Containing Multiple Drugs Should Merge, Pendleton Asserts
Pendleton argues that a court imposing a sentence for multiple offenses must first analyze whether state law requires the offenses to be merged. In his case, he notes, his separate trafficking convictions – one for heroin and one for fentanyl – are based on the weight of one substance that included both of these drugs and fillers. He contends that these two trafficking convictions should have been merged for sentencing.
He points out that the Second District, although affirming his sentence, stated that it “question[ed] the propriety” of considering the same 133.62 grams of powder as 133.62 grams of heroin mixed with filler for determining the sentence for the heroin offense and as 133.62 grams of fentanyl mixed with filler when deciding the sentence for the fentanyl offense.
In a 2017 decision in Gonzales v. State (referred to as Gonzales II), the Ohio Supreme Court ruled that the entire mixture or substance, including the fillers that are part of the useable drug, is considered when determining the appropriate penalty under state law. Gonzales II involved a drug possession conviction for a substance containing cocaine and non-drug fillers, but Pendleton asserts the same rationale applies to his case. He was convicted not only of trafficking 133.62 grams of heroin, but also of trafficking 133.62 grams of fentanyl. He argues he was sentenced to multiple punishments for the same crime – a violation of his constitutional protections against double jeopardy. These sentences, which relied on the same substance, were duplicative, he maintains.
“From a statutory perspective, the heroin must either be heroin, or filler for another drug. The fentanyl must either be fentanyl, or filler for another drug. Fillers may be included in the aggregate weight of one drug, but not all,” Pendleton’s brief states. “By failing to merge [Pendleton’s] trafficking convictions for heroin and fentanyl, the trial court permitted him to be punished twice for the same offense.”
Pendleton asks the Court to reverse his convictions and remand for corrected sentencing.
Fentanyl and Heroin Offenses Cause Separate Harm and Can’t Merge, Prosecutor Argues
The Ohio Supreme Court’s opinion in State v. Ruff (2015) states that offenses cannot merge if one of these criteria is true: “(1) the offenses are dissimilar in import or significance – in other words, each offense caused separate, identifiable harm, (2) the offenses were committed separately, or (3) the offenses were committed with separate animus or motivation.” If one of these applies, a defendant may be convicted of all the offenses, the offenses can’t merge for sentencing, and double jeopardy protections aren’t violated, the Clark County Prosecutor’s Office argues.
The prosecutor asserts that Pendleton’s trafficking convictions for heroin and fentanyl cannot merge because the crimes caused “separate, identifiable harm.” Heroin is illegal and potentially lethal. Fentanyl, a powerful synthetic opioid that has some medical uses, can cause overdoses more quickly than heroin and in lower amounts. Because they present different impacts and dangers to society, the offenses don’t merge, the prosecutor maintains.
In addition, because the General Assembly placed heroin and fentanyl offenses in separate sections of the statute, courts should treat the offenses as requiring separate punishments based on the legislature’s intent, the prosecutor argues. Each charge also had to be proven separately before the jury, the office states.
The prosecutor notes that the General Assembly changed the law to separate fentanyl-related offenses from the generic prohibition on trafficking drugs, beginning in June 2019. Although that recent amendment doesn’t apply to Pendleton’s older case, the change in the law furthers the argument that the legislature intends for separate sentences to be imposed for different trafficking offenses, the prosecutor contends.
The office also cautions: “Allowing [Pendleton] to be convicted of only trafficking in one drug instead of both sends the clear message that it is acceptable practice to combine two deadly drugs to make ‘drug cocktail.’”
Prosecutor and Attorney General to Share Argument Time
The Ohio Attorney General’s Office has filed an amicus curiae brief supporting the Clark County prosecutor’s positions. Noting the “immeasurable harm” caused to Ohioans by those who traffic heroin and fentanyl, the attorney general maintains that Pendleton shouldn’t be allowed to escape the consequences of his trafficking convictions simply because he combined the drugs with each other.
The prosecutor and the attorney general asked to divide the prosecutor’s 15 minutes for oral argument before the Supreme Court. The Court granted the request.
–Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Kenny Pendleton: Samuel Shamansky, 614.242.3939
Representing the State of Ohio from the Clark County Prosecutor’s Office: John Lintz, 937.521.1770
Can Denial of Public Defender’s Request to Withdraw at Onset of Case Be Appealed?
State of Ohio v. Basim Barnes, Case Nos. 2018-1389
Eighth District Court of Appeals (Cuyahoga County)
ISSUES:
- In a criminal trial, does the denial of an attorney’s motion to withdraw based on an alleged conflict of interest constitute a final appealable order, which would place the trial proceeding on hold until an appeals court rules on the withdrawal motion?
- When an appointed attorney seeks to withdraw representation from an indigent client, can a trial court deny the motion if there is no specific showing that continued representation would violate the Ohio Rules of Professional Conduct?
BACKGROUND:
In June 2016, a Cuyahoga County grand jury indicted Basim Barnes on 10 criminal counts, including five counts of rape that carried a potential life sentence in prison. Barnes was accused of the committing the offenses against two women, identified as Jane Doe I and Jane Doe II in court records. The alleged offenses against Jane Doe I, also identified as L.H., occurred in October 2007.
Barnes was declared indigent and Assistant Cuyahoga County Public Defender Mark Spardaro was assigned to defend him. Once assigned, the public defender’s office conducted a routine conflict of interest check and discovered that L.H. had twice been represented in criminal cases by two other assistant public defenders in the public defender’s office. Spardaro discussed the potential conflict of interest with Barnes, and Barnes said he was concerned about the lawyer’s ability to adequately represent him.
Spardaro requested the trial court allow him to withdraw as counsel to Barnes and the court conducted a hearing. Spardaro explained that he had access to L.H.’s files and the attorneys who represented her in the prior cases. In order to fulfill his duties to zealously represent Barnes, he would need to investigate the information on file about L.H. But under the Ohio Rules of Professional Conduct, even though he never represented L.H., his “law firm” did, and he had a duty to keep confidential information presented by L.H. to the “firm” confidential. He said that he was put in an impossible situation and had to withdraw from Barnes’ case.
The trial court denied the motion, finding that the professional conduct rules only required that Spardaro refrain from using any confidential information about L.H. against her. And because at that time, Spardaro didn’t know any of the information the public defender’s office possessed related the L.H.’s alleged rape, his continued representation of Barnes wasn’t a conflict of interest, the trial court stated.
Spardaro appealed the decision to the Eighth District Court of Appeals, which independently raised the issue of whether the motion to withdraw was a final, appealable order that would grant the appeals court jurisdiction to consider the case. The Cuyahoga County Prosecutor’s Office opposed Spardaro’s motion to withdraw. The Eighth District concluded the denial of the withdrawal request was a final order that it could address, and in a 2-1 opinion ruled that Spardaro did have a conflict and was entitled to withdraw.
The prosecutor’s office appealed the decision to the Supreme Court, which agreed to hear the case.
Denial of Order Not Appealable, Prosecutor Argues
An appeal of a trial court’s decision that occurs before the trial concludes is known as an “interlocutory appeal,” and can only be granted by an appeals court if it meets three requirements under R.C. 2505.02(B)(4). The prosecutor argues that Spardaro met two of the three requirements, but not the provision that only allows the appeal if there is no “meaningful or effective remedy” by appealing after a final judgment in the case and all issues and claims are settled. The prosecutor maintains the appeals court allowed Spardaro to make a “speculative” argument that there was a conflict of interest, but an appeal is allowed only if there is an actual conflict. The prosecutor points to the dissenting Eighth District judge’s opinion that Spardaro acted too early, and he should have proceeded to investigate whether there was any actual information within the public defender’s office that would have demonstrated a conflict before seeking to withdraw.
Without demonstrating an actual conflict, the prosecutor asserts there is no way to concluded that Barnes doesn’t have a meaningful and effective remedy by appealing his case following the final judgment, should he pursue it.
The prosecutor also argues that the public defender’s office’s claim that its attorneys face disciplinary violations for failing to follow the professional conduct rules are overstated because the office can’t demonstrate a conflict exists. The prosecutor maintains that Spardaro could get Barnes’ consent to represent him even though his office represented the victim in the past, especially since Spardaro commits to not using confidential information about L.H. to her disadvantage. The prosecutor supports the trial court’s determination that the duty to maintain L.H.’s confidences alone is not enough to raise a conflict, but rather Spardaro must show that the information would have a “material limitation” on the lawyer’s ability to defend the client.
Accused Deserves Lawyer Without Divided Loyalty, Public Defender Asserts
The public defender argues that Barnes is entitled to an attorney who he can believe only has his interests at heart, especially when imprisonment for life is a potential outcome. Spardaro accurately explains there would be a “substantial risk” to his ability to carry out the appropriate course of action.
Spardaro maintains that Barnes is entitled to a nonconflicted attorney from the outset, and that while the harm of proceeding with a conflicted attorney is obvious, it is difficult to quantify because it’s always possible to tell from the trial transcript when the harm occurred. He notes that 94 percent of criminal cases in Ohio courts are settled by plea agreements, and it would be hard for a reviewing court to know the steps an attorney took or didn’t take during plea negotiations to avoid the conflict of defending a current client without divulging the confidences of a former client. Because the client is at risk every day a conflicted attorney is on the case, an appeal of a trial court’s denial meets all the requirements of a final order that can be decided by an appeals court, Spardaro concludes.
Ohio attorneys have an ethical obligation to avoid conflicting representation and to advise courts promptly when a conflict arises, which is what Spardaro did, the public defender maintains. Under Ohio rules, a public defender’s office is considered a law firm, and the rules applying to firms apply to Spardaro and the two other public defenders who previously represented L.H., the public defender explains. Spardaro has a duty to investigate L.H.’s credibility and background and he has access to information that a lawyer who doesn’t work for the public defender wouldn’t have. But as a member of the firm, he also is obligated to protect L.H.’s confidences, Spardaro argues. He is forced to choose between his duty to Barnes and to L.H., and that is a “textbook conflict of interest case,” and failing to withdraw would be a violation of the professional conduct rules, the public defender concludes. The trial court’s remedy wouldn’t resolve the conflict, and the appeals court correctly reversed the trial court’s decision and permitted the withdrawal, Spardaro maintains.
Friend-of-the-Court Briefs Submitted
An amicus curiae brief supporting the public defender’s position has been submitted by jointly by the Ohio State Bar Association and academic experts. The Ohio legal aid organizations also filed a brief in support of the public defender.
–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 Cuyahoga County Prosecutor’s Office: Daniel T. Van, 216.443.7800
Representing Basim Barnes from the Cuyahoga County Public Defender’s Office: Cullen Sweeney, 216.443.7583
Former Assistant Prosecutor Faces Sanction for Lying When Reducing OVI Charge
Disciplinary Counsel v. Anthony P. Spinazze, Case No. 2019-1075
Lucas County
The Board of Professional Conduct proposes a six-month suspension for a former Sylvania assistant prosecutor who intentionally made false representations to a municipal court judge, then lied about his conduct to his superiors, when he agreed to reduce a drunken driving charge to a lesser sentence.
Anthony Spinazze argues that based on sanctions levied on other attorneys who committed similar misconduct, he should receive a fully stayed six-month suspension. He maintains the board didn’t adequately credit him for taking responsibility for his actions when it proposed the suspension.
Charge Reduced Without Officer’s Consent
Spinazze was in private practice and a part-time Sylvania assistant prosecutor, when in November 2017, two Lucas County sheriff’s deputies stopped Jeremiah Johnson. Deputy Jeff Bretzloff joined the two officers, and after administering a field sobriety test, arrested Johnson for operating a vehicle under the influence of alcohol (OVI). Bretzloff was wearing a body camera, and Johnson admitted to him that he had consumed alcohol and never denied driving the vehicle. The police report indicated the other two officers observed Johnson driving his truck.
Johnson, appeared before Sylvania Municipal Court Judge Michael Bonfiglio. Johnson’s lawyer filed motions to dismiss the case and suppress the evidence. The day of the April 2018 hearing to consider the suppression request, Spinazze, Johnson’s lawyer, and Breztloff watched the bodycam footage from the arrest. Johnson’s attorney requested a reduction of the OVI charge to loss of physical control. The deputy stated he would object to the proposed reduction, and the case was continued.
Later that month at a pretrial hearing, Spinazze agreed to recommend the reduced physical control charge. Johnson’s lawyer took the written recommendation to the court. Knowing Johnson had two previous alcohol-related driving convictions, Judge Bonfiglio asked Spinazze to appear in court and explain the reduction.
During an exchange with the judge, Spinazze said there was “a question as to the driving and the observation by the police” of Johnson driving. Judge Bonfiglio asked if Bretzloff and the other officers agreed with the reduction, and Spinazze said they did. The judge stated that in light of the Spinazze’s recommendation and the agreement of the arresting officers, he would amend the charge to physical control and accepted Johnson’s guilty plea to it.
Supervisor Questions Change
The city’s chief prosecutor, Christy Cole, who was Spinazze’s supervisor, heard about the plea and reviewed the case file. In the case file, Spinazze wrote “court was going to dismiss case,” even though the court never indicated it intended to dismiss the case. Cole asked Spinazze if he had the officers’ consent to reduce the charge, and he admitted he didn’t. But he didn’t tell her that he misrepresented to the judge that he had the officers’ consent. Cole later listened to the audio recording of the court proceeding and told Spinazze she was concerned that he may have misled the court.
Spinazze claimed he made a mistake and that he relied on Johnson’s attorney’s account of the information, without noting he met with the attorney and the officer to watch the video. Bretzloff later met with Cole on another case. He informed Cole that Spinazze’s version of the events wasn’t accurate and told her that he voiced his objection when the defense attorney suggested reducing the charge.
Spinazze met with Cole and the city prosecutor, and acknowledged the misstatement to the judge. The law director placed Spinazze on unpaid leave, and Spinazze wrote an apology letter to Judge Bonfiglio. He reported the incident to the Office of Disciplinary Counsel.
Costs Incurred Pursuing Sentence Change
Cole sought to vacate Johnson’s plea to the reduce charge and requested that a special prosecutor handle the case. Johnson’s attorney withdrew from the case, and a public defender was assigned. An acting judge presided over the hearing and vacated the plea. Later Johnson pled no contest to a third-offense OVI. He was sentenced to jail and fined.
Based on Spinazze’s behavior, the disciplinary counsel charged Spinazze with violating several rules governing the conduct of Ohio attorneys. After a hearing, the board found Spinazze knowingly made a false statement to the court; engaged in conduct that was prejudicial to the administration of justice; and engaged in conduct involving fraud, dishonesty, deceit, or misrepresentation. The board recommended the six-month suspension.
Attorney Objects to Board Claims
Spinazze concedes that the disciplinary counsel and the board correctly characterize the events of the matter, but that part of the reasoning for the actual suspension was that Spinazze didn’t take full responsibility for his misconduct. He maintains the record of the disciplinary hearing contains several references to him acknowledging wrongdoing and accepting responsibility for his actions.
Based on his self-disclosure of the rule violations, his cooperation with the investigation, his acknowledgement of wrongdoing and expressing remorse for his action, and other factors, Spinazze maintains he deserves a fully stayed suspension.
Disciplinary Counsel Supports Suspension
The disciplinary counsel maintains that Spinazze overstates the weight given to the board’s conclusion that he didn’t accept responsibility for his actions, and that the six-month suspension is warranted based on his behavior. The disciplinary counsel wrote that as an assistant prosecutor, Spinazze made 10 different misrepresentations when offering an “ill-advised” sentence reduction, including six to a judge. He also attempted to “cover his tracks” by falsifying his case notes and making three more misrepresentations to his supervisor, the disciplinary counsel adds.
The disciplinary counsel notes the prosecutor’s office had to apologize to the municipal court for Spinazze’s actions and the city incurred additional expenses to vacate the reduced charge and pursue the OVI conviction. That misconduct warrants an actual suspension, the disciplinary counsel concludes.
–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 Office of Disciplinary Counsel: Joseph Caligiuri, 614.461.0256
Representing Anthony P. Spinazze: Jonathan Coughlan, 614.934.5677
Did SUV Owner Opt Out of Class Action against Auto Manufacturer by Filing Separate Lawsuit?
Pattiann McAdams v. Mercedes-Benz USA LLC et al., Case No. 2018-1667
Tenth District Court of Appeals (Franklin County)
ISSUES:
- Did a state court improperly readjudicate a federal court’s decision in a class-action lawsuit?
- Should Ohio adopt the approach in the jurisdictions requiring compliance with court-mandated opt-out procedures and reject the state appeals court’s decision that a separate, preexisting lawsuit serves as an informal opt-out of a class action?
BACKGROUND:
Pattiann McAdams bought a 2006 Mercedes-Benz ML 350 sport utility vehicle in April 2008 from a New York dealership. McAdams moved to Ohio a few years later.
In February 2015, McAdams, representing herself, filed a lawsuit in Franklin County Common Pleas Court against Mercedes-Benz USA LLC and the Columbus dealership where she took her vehicle for service. Pointing to issues with the ML 350’s balance shaft gear and transmission conductor plate, her suit made claims of product liability, negligence, fraud, breach of contract, and violations of the Ohio Consumer Sales Practices Act and asked for recovery of repair and replacement costs. (A balance shaft is a mechanism designed to counter engine vibrations.)
Seifi v. Mercedes-Benz USA LLC, a class action involving the balance shaft gear issue, had been filed in October 2012 in a California federal court. At the time McAdams’ lawsuit was filed, the class action still was pending. McAdams said in a deposition that she was aware of the class action before she filed her lawsuit, had communicated with the lawyers in that case about whether to join the class, and told the lawyers she decided not to join the class.
Auto Manufacturer Agrees to National Settlement
In March 2015, a nationwide settlement in Seifi was announced. The federal court’s order described the steps that class members needed to take to opt out of the settlement, including a signed opt-out letter. Notices were mailed to class members in May with a June 27 deadline for opting out.
The federal court considered the opt-out requests and, in August 2015, excluded 107 class members from the settlement. McAdams wasn’t among them. The federal court stated that class members who hadn’t opted out were bound by the settlement agreement.
Mercedes-Benz USA then requested summary judgment in McAdams’ Ohio case in October 2016. The Franklin County trial court agreed and dismissed McAdams’ case with prejudice. The court concluded that her lawsuit regarding the balance shaft gear was prohibited because she hadn’t opted out of the national settlement.
SUV Owner Appeals Dismissal of Her Lawsuit
McAdams appealed to the Tenth District Court of Appeals, which upheld summary judgment except for one issue. The court determined that McAdams had sufficiently opted out of the federal class action by filing her separate Ohio lawsuit “before the notice of how to opt-out was issued and continued to pursue the case even while the class action was ongoing.” The court stated that McAdams’ lawsuit “was a sufficient ‘reasonable expression of a request for exclusion.’”
Mercedes-Benz appealed to the Ohio Supreme Court, which agreed to review the issues.
Ohio SUV Owner Had to Follow Opt-Out Process, Auto Manufacturer Argues
Mercedes-Benz notes that the federal court established an opt-out procedure and specifically determined who had opted out of, and who remained, as Seifi class members. The company contends in its brief that the determination of the class members was “fully litigated” and couldn’t be reconsidered by the Tenth District or any other court. The final settlement approval and the federal court’s judgment couldn’t have been completed without first determining who was excluded from the class, the company maintains.
The Tenth District’s “readjudication” of McAdams’ membership in the class contradicts the federal court’s judgment and “allows Ohio state courts to disregard the final judgments of federal courts,” the Mercedes-Benz brief states. If the appeals court’s decision is upheld, the company argues that other informal attempts to opt out of class-action settlements will undermine the finality of the rulings of courts approving settlements.
Mercedes-Benz maintains that the majority of courts across the country require compliance with court-ordered settlement procedures. Filing a separate lawsuit before a settlement opt-out period begins and continuing with that lawsuit during the opt-out period isn’t sufficient notification to the settlement court of an intention to opt out of a class, the company asserts. It argues that class members must file a valid request for exclusion with the court.
McAdams’ discussions with lawyers involved in the class action prior to the settlement wasn’t enough either, the company maintains. In its view, those communications demonstrate that McAdams knew she needed to opt out, and she should have formally opted out when she was notified of the settlement. Asking the Court to reverse the Tenth District’s decision, Mercedes-Benz reasons that it “should not now be deprived of the finality for which it bargained ….”
Independent Lawsuit Served as Informal Opt-Out of Class Action, SUV Owner Maintains
McAdams counters that the Tenth District didn’t “readjudicate” the federal court’s decision, but instead found that she wasn’t a party to that decision because she sufficiently opted out of the class action months earlier with her separate lawsuit.
The appeals court stated that no binding precedent exists in Ohio for what it takes for a litigant to opt out of a class action if the litigant doesn’t conform to a court’s or a settlement agreement’s procedure, McAdams notes. She quotes the legal treatise “Federal Practice and Procedure” (2008), which states: “[C]onsiderable flexibility is desirable in determining what constitutes an effective expression of a class member’s desire to be excluded and any written evidence of that desire should suffice. … In order to opt out from a class action the request need not be explicit, the important question being whether notice was communicated.”
Notice is the key question, McAdams argues. She maintains that she reasonably conveyed to Mercedes-Benz her intent to be excluded from the class action by filing her independent lawsuit, which included substantially all of the information required by the federal court for opting out of the national settlement. If the Court upholds the Tenth District’s decision, it will communicate that Ohio litigants deserve their “day in court,” she concludes.
–Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Mercedes-Benz USA LLC: Jennifer Turk, 614.223.9300
Representing Pattiann McAdams: Gregory Melick, 614.221.7663
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