Wednesday, March 11, 2020
State of Ohio v. Emeric Bozso, Case no. 2018-1007
Eighth District Court of Appeals (Cuyahoga County)
In re Estate of Joseph I. Shaffer, Case no. 2019-0364
Sixth District Court of Appeals (Lucas County)
Columbus Bar Association v. Douglas Whitney Bulson, Jr., Case no. 2019-1373
Franklin County
Madora Jones, Administrator of the Estate of ReDon Jones v. The Cleveland Clinic Foundation et al., Case no. 2019-0390
Eighth District Court of Appeals (Cuyahoga County)
Can Refugee Withdraw Guilty Pleas Because of Advice from Immigration Lawyer?
State of Ohio v. Emeric Bozso, Case No. 2018-1007
Eighth District Court of Appeals (Cuyahoga County)
ISSUE: Did a trial court abuse its discretion when denying a noncitizen defendant’s motion to withdraw his guilty plea that argued the defendant’s attorney didn’t properly advise him of potential deportation consequences?
BACKGROUND:
Emeric Bozso is a refugee from Romania who arrived in the United States in 1986. In June 2016, Bozso was indicted in Cuyahoga County in two cold cases involving rapes that occurred in June and November 1996. He was charged with seven counts of rape, three counts of gross sexual imposition, six counts of complicity, and two counts of kidnapping.
Bozso’s appointed attorney contacted an immigration lawyer to determine the possible immigration consequences of a plea agreement. In a September 2016 email, the immigration lawyer stated that a sex-offense conviction would mean Bozso would be placed into deportation proceedings and would be subject to mandatory detention while his deportation case traveled through immigration court. The attorney added:
“As a very preliminary conclusion, I would state that if the June date is adhered to rather than the November case, that the client would have some relief available to him. Specifically, [Immigration and Nationality Act] 212(c) relief. This relief is discretionary to the court and by no means should the client believe that it is assured that he would not be ordered to be deported as a result of a conviction for this offense.”
Defendant Enters Plea Agreement
Bozso pled guilty to sexual battery and attempted abduction – both third-degree felonies. Before his plea, the court advised him there might be deportation consequences. In December 2016, the trial court imposed one-year concurrent prison sentences for the offenses, suspended the sentences, and placed him on two years of community control for each conviction.
At the beginning of 2017, Bozso was detained by the Department of Homeland Security and was told he didn’t qualify for any relief under federal immigration laws. In June, Bozso filed a motion to withdraw his guilty pleas, alleging his trial attorney didn’t properly inform him of the potential immigration consequences if he pled guilty. The trial court held a hearing, but Bozso was in detention and couldn’t attend. His trial attorney testified but was unable to share certain information because Bozso wasn’t there to waive attorney-client privilege. The trial court denied the request to withdraw the pleas.
Bozso appealed to the Eighth District Court of Appeals, which reversed the trial court’s decision. The Eighth District ruled Bozso’s trial attorney was deficient in not determining with certainty the deportation consequences if his client pled guilty and Bozso was prejudiced as a result.
The Cuyahoga County Prosecutor’s Office appealed, and the Ohio Supreme Court agreed to hear the case.
Record Doesn’t Establish Enough to Withdraw Pleas, State Argues
In Lee v. United States (2017), the U.S. Supreme Court stated that courts shouldn’t disturb pleas solely because of “post hoc” assertions – when defendants claim later that they wouldn’t have entered a plea agreement. Instead, courts should “look to contemporaneous evidence to substantiate a defendant’s expressed preferences,” the ruling explained. The Ohio Supreme Court cited these standards in its 2019 State v. Romero decision.
The Cuyahoga County prosecutor contends Bozso offered only the affidavit that was filed with his plea-withdrawal motion to show he was prejudiced by his trial attorney’s actions. That post hoc assertion wasn’t enough, the prosecutor argues. Pointing to factors described in Lee, the office maintains no evidence in the record supports Bozso’s request to withdraw his pleas. Specifically, Bozso didn’t show the importance he placed on avoiding deportation before his plea, his strong connections or familial ties to the United States, or the consequences if he went to trial, the prosecutor’s brief states.
Guidance from Immigration Lawyer ‘Wholly Inaccurate,’ Man Maintains
Bozso argues the information from the immigration lawyer indicated he might have an avenue under federal immigration law to fight deportation when that wasn’t true at all. The advice was “wholly inaccurate,” his brief states. The section of federal law that the immigration lawyer mentioned applied only to pleas entered before April 1, 1997. His plea didn’t occur until 2016, he notes.
Bozso maintains there’s ample contemporaneous evidence he wouldn’t have entered the plea had he been given accurate information about the effect his plea could have on his immigration status. He argues he clearly wanted to avoid deportation as shown by the fact that he and his trial attorney consulted with an immigration lawyer for guidance. His status as a refugee – someone persecuted or in fear of persecution in another country – also is a reason for Bozso to want to avoid deportation, his brief states. Bozso notes he arrived in the United States when he was 21 years old and has lived here for 30 years, nearly his entire adult life. That demonstrates his connection to this country, he states.
He contends that this evidence meets the factors in Lee and establishes the ineffectiveness of his trial attorney. He asks the Court to uphold the Eighth District’s decision.
– 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 Cuyahoga County Prosecutor’s Office: Gregory Ochocki, 216.348.4463
Representing Emeric Bozso: Daniel Misiewicz, 216.832.5169
Were Benefits in Will on Notecard Voided Because Beneficiary Also Was Witness to Will?
In re Estate of Joseph I. Shaffer, Case No. 2019-0364
Sixth District Court of Appeals (Lucas County)
ISSUE: If an individual is a witness to a will, as indicated through either the person’s signature or testimony, is any devise or bequest to this witness made in the will void?
BACKGROUND:
Joseph Shaffer, 87, died on July 20, 2015, in Toledo. He had executed a will in August 1967 that stated his estate would pass to his wife, Lorraine. If his wife died before him, Shaffer’s estate would be divided between his two sons, Mark and Terry. Shaffer’s wife died in 1998. After Shaffer’s 2015 death, the Lucas County Probate Court admitted the will.
Shaffer was a psychologist who, in the 1980s, started a sleep diagnostics company called Sleep Network with his son Terry and another person. Shaffer met Juley Norman and her son, Zachary, in 1999 through a mutual acquaintance. He offered them medical guidance for Norman’s ill husband from 1999 until Norman’s husband died in 2005.
Shaffer and Juley Norman remained close over the subsequent years before Shaffer’s death. Shaffer referred to Norman as his “meaningful other.” On Dec. 22, 2006, Norman and her son visited Shaffer at his house. Shaffer said he wasn’t feeling well, and he decided to go to the hospital. Before they left for the hospital together, he wrote the information on a 3x5-inch notecard in the presence of Norman and her son. Shaffer was in the hospital for a few days, and Norman said that afterward they discussed the notecard. Shaffer asked if it was in a safe place, and they discussed whether it needed to be notarized.
In January 2016, Norman made a claim against Shaffer’s estate. She submitted the notecard, which read:
“Dec 22, 2006/ My estate is not/ completely settled/ all of my sleep network/ stock is to go to/ Terry Shaffer/ Juley Norman for/ her care of me is to/ receive ¼ of my estate/ Terry is to be the/ executor./ This is my will./ [/s/ Joseph I. Shaffer]”
Probate Court Considers 2006 Will on Notecard
In September 2016, the probate court held a hearing about whether to admit the 2006 notecard as Shaffer’s will. The magistrate denied consideration of the document, stating that any bequest to Norman was void under R.C. 2107.15 because she was one of the two witnesses to the will. The probate court upheld the decision.
Norman’s son, Zachary, appealed to the Sixth District Court of Appeals, which reversed the decision. The court ruled that R.C. 2107.15 doesn’t apply to wills, such as the notecard, that are submitted under R.C. 2107.24, which allows for certain documents that don’t comply with statutory requirements to be considered as properly executed wills.
Terry Shaffer appealed to the Ohio Supreme Court, which accepted the case.
Deceased’s Son Argues Bequest Is Void under Ohio Law
Terry Shaffer states that the Sixth District determined Juley and Zachary Norman were “competent” witnesses to the 2006 will. However, Shaffer explains, they were the only two witnesses to the will. R.C. 2107.15 voids inheritances when a person who witnesses a will also is named as a beneficiary in the will. Because Juley Norman was one of the essential two witnesses to the 2006 will as well as a beneficiary of the will, she isn’t permitted under R.C. 2107.15 to receive anything from the estate, Shaffer argues.
He asserts that the intent of R.C. 2107.15, referred to as the “voiding statute,” is in part to establish that when determining whether a will was executed properly, a witness lacks credibility if the witness has an interest in the will. He maintains that the voiding statute draws no distinction between wills that meet formal statutory requirements and wills that are accepted under R.C. 2107.24 even though they don’t comply with the formal requirements. The voiding statute applies to both situations, Shaffer states, and Norman’s claim on the estate is void.
Beneficiary Maintains Role as Witness Not Relevant for This Will
Juley and Zachary Norman counter that a document that adheres to the formal guidelines for wills in state law is subject to being voided under the circumstances in R.C. 2107.15. But a document that doesn’t follow the formal statutory guidelines, but is considered a will under R.C. 2107.24, cannot be voided, the Normans argue.
Their brief contends that Ohio’s formal statutory requirements for wills eliminated a rule under common law that a witness who had an interest in a will wasn’t “competent.” So, under the formal requirements, an interested witness is still competent as a witness to the will. However, the Normans maintain, R.C. 2107.24, which allows certain documents to be acceptable as wills, lists no requirements – such as being a competent or disinterested party – for witnessing a will. Without such language, the voiding statute doesn’t apply to informal wills, they argue.
The Normans also indicate that allowing a witness who has an interest in a will to receive the inheritance from the will is something 25 other states allow.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Terry S. Shaffer, administrator of the estate of Joseph I. Shaffer: Corey Tomlinson, 419.249.7900
Juley and Zachary Norman, representing themselves: 419.537.0114
Bar Association Objects to Suggested Disciplinary Sanction for Columbus Attorney
Columbus Bar Association v. Douglas W. Bulson Jr., Case No. 2019-1373
Franklin County
Attorney Douglas Bulson Jr. of Columbus faces a proposed 18-month suspension, completely stayed, for neglecting clients in three legal matters. The Board of Professional Conduct also found that Bulson didn’t cooperate with the Columbus Bar Association when it was investigating the misconduct allegations.
The bar association objects to the stay of the entire suspension. The organization argues Bulson hasn’t demonstrated that his treatment for mental health conditions has been effective and asks the Supreme Court to impose an actual timeout from the practice of law.
Attorney Neglects Clients in Personal-Injury and Custody Cases
The bar association and Bulson stipulated that he committed most of the alleged violations of the rules governing the conduct of Ohio lawyers. The cases presented to the professional conduct board involve neglect and mishandling of a personal injury case for Valerie Pike, a custody matter for Carla Hall, and a personal injury case for Teddy and Birdy Montgomery.
In Pike’s case, Bulson failed to act diligently, to keep her informed about the case status, and to respond to her communications. In addition, he didn’t keep proper records of his client trust account, also known as an IOLTA.
With Hall, Bulson prepared legal documents, but didn’t deposit into his client trust account the retainer and filing fee she paid him. He also stopped communicating with her. In March 2017, Hall received an out-of-office message that said Bulson was on vacation until July 2017.
The Montgomerys stated that their calls and text messages to Bulson often went unanswered, and he filed a lawsuit on their behalf but didn’t tell them. When they hired a new attorney, Bulson was unable to locate personal documents that they had given him for their case.
During the investigations, Bulson didn’t respond to several initial inquiries about these matters from the bar association and the Office of Disciplinary Counsel, which initially investigated the Montgomerys’ grievance.
Aggravating and Mitigating Factors Examined
When considering a sanction to recommend in a disciplinary case, the board reviews aggravating circumstances that could increase the penalty and mitigating factors that could lead to a lesser sanction.
The professional conduct board’s report notes that Bulson engaged in a pattern of misconduct, committed multiple offenses, and didn’t cooperate early on in the disciplinary process. The board also states that he harmed vulnerable clients. In mitigation, the board found an absence of a dishonest or selfish motive, a cooperative attitude later in the disciplinary process, evidence of good character and reputation in the community, and the existence of a qualified mental disorder.
Board Addresses Disputed Mitigating Circumstances
The board report explains that Bulson was diagnosed in 2014 with major depression and other mental and physical health conditions. Since that time, he has been receiving ongoing treatment with medication and therapy. The board panel that heard the case concluded Bulson proved he met the requirements to have his mental health conditions considered as a mitigating factor.
Specifically, his psychologist testified to Bulson’s diagnosis and stated that his disorders contributed to his professional misconduct. The doctor also said Bulson has undergone a sustained period of successful treatment, his symptoms are moderately better controlled, and he currently is functioning at a much higher level than he was initially. The doctor concluded that Bulson will be able to return to the competent, ethical, and professional practice of law as long as he complies with his treatment.
The board recommends an 18-month suspension, entirely stayed with several conditions: Bulson continue treatment with his psychologist as directed and follow all of his psychologist’s recommendations; continue to comply with his contract with the Ohio Lawyers Assistance Program, which he began in January 2019; cooperate with a bar-association-appointed monitor who will meet with him monthly to ensure he complies with IOLTA rules; and refrain from any further misconduct.
Bar Association Argues Sustained, Successful Treatment Not Established
The bar association’s objections center on whether Bulson has shown a sustained period of successful treatment, as required for his mental health conditions to be regarded as a mitigating circumstance. Although Bulson has begun to address and treat his health conditions, the effectiveness of the treatment hasn’t been demonstrated, the bar association maintains.
The bar association notes that, with the entirely stayed suspension recommended by the board, Bulson will be allowed to represent clients. Yet the board has an obligation to protect the public from lawyers who currently are impaired, the bar association adds. It argues Bulson should serve an actual suspension from the practice of law to protect potential clients from the neglect Bulson’s clients suffered in the three matters in this case. With an actual suspension, the bar association explains, Bulson would have to prove his impairments no longer would interfere with his ability to represent clients before he could be reinstated to practicing law.
Attorney Contends His Improvements Have Been Demonstrated
Bulson maintains that the testimony before the board panel showed he has effectively taken many steps to address the conditions that led to his professional misconduct. One of his doctors described Bulson as a “model patient” and detailed how he has improved in several ways since 2014 with treatment, Bulson’s brief states. It also notes his family has been helping him with organizing his law office and staying on track with the steps needed to improve his health conditions, and that they said they will assist for as long as necessary.
Bulson asks the Court to adopt the fully stayed 18-month suspension that the board recommended.
– 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 Columbus Bar Association: Kent Markus, 614.340.2053
Representing Douglas W. Bulson Jr.: George Jonson, 513.768.5220
Can Juror’s Letter of Remorse Lead to New Trial?
Madora Jones, Administrator of the Estate of ReDon Jones v. The Cleveland Clinic Foundation et al., Case No. 2019-0390
Eighth District Court of Appeals (Cuyahoga County)
ISSUES:
- Under the Ohio Rules of Evidence, can a new trial be ordered after a juror presents concerns about the verdict the jury reached if there is no evidence of threats, bribery, or any improper conduct by an officer of the court?
- After jurors in a civil trial are polled and confirm a verdict, can a trial court consider the motivation of jurors who express their doubts about the outcome even if there is no evidence of threats, bribery, or any improper conduct by an officer of the court?
BACKGROUND:
In June 2012, Madora Jones took her husband, ReDon, to Hillcrest Hospital in Mayfield Heights. During the prior week, ReDon had been experiencing chest pains, and the couple feared he was having a heart attack. Hillcrest is an affiliate hospital of the Cleveland Clinic, and Cleveland Clinic Dr. Avrum Jacobs evaluated ReDon. After evaluation and testing that concluded in early July, Jacobs indicated there was no evidence of any “acute coronary syndrome.” A week later, ReDon suffered a heart attack at home and died while being transported to Hillcrest.
In 2016, Madora Jones, as administrator of her husband’s estate, filed a medical malpractice and wrongful death lawsuit against the doctor and Cleveland Clinic. The matter went to trial in October 2017, and the trial judge instructed the jury that it was his hope the case would last one week and conclude on Friday. The judge noted several jurors were adamant about not wanting to extend their service beyond one week.
The case went to the jury at 11 a.m. on Friday and the jury sent the judge a note at 12:30 p.m. asking for clarification on some points, and informing the judge that the jurors “are strongly split down the middle.” The judge answered the questions and directed the jurors to continue deliberating. At 5 p.m., the jury wrote a second note to the judge, stating they were deadlocked 4-4. The judge instructed them to keep deliberating.
Juror Leaves CaseSometime after 5 p.m. the jury sent the judge a third note indicating juror No. 3 was requesting to leave for a family emergency. The trial court asked the attorneys for the parties about their position on whether to continue the deliberations with an alternate juror or have the jurors go home and return Saturday or Monday morning. The judge decided to replace the departing juror with an alternative and allowed the deliberations to continue. The trial court noted that because a juror was replaced, a new jury was assembled and they would have to start deliberations again from the beginning.
The new jury was reassembled shortly after 7 p.m. and an hour later told the judge they were still deadlocked. At 9 p.m., the jury wrote a fifth note to the judge stating it was deadlocked and asked to go home, and stating, “We are tired, cranky, and see no change in our opinions, based on the evidence in the foreseeable future.”
At the time, the bailiff was instructed to inform the jury that they were to come back Monday morning to continue to deliberate. The bailiff reported back to the trial judge and attorneys for the parties that some jurors questioned the need to come back, stating they are not reaching an agreement. The judge then met with the attorneys to develop a Howard charge, which is a final instruction from the trial judge to the jury to attempt to persuade them to reach a decision before the judge declares a hung jury.
About 15 minutes after being informed about coming back on Monday, two jurors changed positions and issued a 6-2 verdict in favor of the hospital and doctor. On Monday morning, Jones’ attorney filed a motion for a new trial, claiming the verdict changed only because some jurors didn’t want to return on Monday, and that the judge should have declared a mistrial.
Juror Sends Letter to Judge
As the judge was considering Jones’ request for a new trial, one of the juror’s wrote the judge a letter explaining that she felt very strongly that Jones should prevail, but changed her mind and was one of the two who had switched their vote. She noted the judge was unclear in his instructions about whether the jury was to come back and deliberate on Monday only, or continue to deliberate for several days before the judge would decided if there was a hung jury.
The judge denied the request for a new trial, and noted in the decision that under the Ohio Rule of Evidence 606(B), the court couldn’t consider the juror’s letter because it did not concern a threat, a bribe, or any improprieties by any officer of the court. The court concluded that the juror spoke with finality when she was polled after the verdict and affirmed her vote.
Jones appealed to the Eighth District Court of Appeals, which reversed the trial court’s decision. Cleveland Clinic and the other parties appealed the decision to the Ohio Supreme Court, which agreed to consider only whether Evid.R 606(B) would allow a trial court to order a new trial by considering information presented to the court after the jurors were polled and affirmed their votes.
Ordering Further Deliberations Appropriate, Clinic Maintains
The Cleveland Clinic takes issue with the Eighth District’s assessment that the jury deliberated for nearly 11 hours and repeatedly informed the trial judge of an irreconcilable deadlock. When the juror was dismissed and replaced by an alternate, this constituted a new jury. Those jurors only deliberated for about an hour before informing the judge of the deadlock. The judge didn’t abuse his discretion by instructing the jurors to continue to deliberate and rejecting a request to issue the Howard charge to prompt the jury to make a final decision.
The clinic also maintains that the switch in vote — shortly after the notice that the jurors would be asked to return on Monday — isn’t a sign of any unfairness to the parties. The clinic notes that jurors can be persuaded to change their minds. Following the announcement of the verdict, the jurors were polled and affirmed their votes without expressing any indication that they were pressured to change their minds, the clinic notes.
The Eighth District also improperly ruled the juror’s letter to the judge could be considered because the juror was not attempting to testify in a “proceeding” regarding a new trial or submitting a sworn statement, the clinic maintains. The clinic notes the juror didn’t raise any of the requirements that she was threatened, bribed, or influenced by the misconduct of a court officials, which would allow her statements to be considered. Allowing her statement would directly conflict with the plain wording of the rule, the clinic concludes.
Juror’s Letter Plays No Role in Case, Widow Argues
Jones asserts the Supreme Court agreed only to consider the Eighth District’s consideration of the juror’s letter and the use of the information to determine if a new trial is ordered. Any Supreme Court opinion about the issue would be an impermissible “advisory opinion” because the Eighth District distinctly stated the letter wasn’t the reason the appellate court reversed the trial court’s decision, Jones argues.
Jones notes the Eighth District found that it was obvious the jurors switched their votes to avoid returning the next week. The jury repeatedly informed the judge that they were deadlocked 4-4 before and after the replacement of the dismissed juror, she notes. Only after the judge told the jurors to return did they consider a 62-count verdict in 15 minutes to rule in favor of the hospital and doctor, Jones argues. The Eighth District found the judge’s own decision not to declare a hung jury or issue the Howard charge was a plain error, and a new trial was needed, she explains. There is no need for the Supreme Court to consider the arguments regarding the letter and Evid.R 606(B) because they don’t affect the outcome of the case, she concludes. Jones urges the Court to affirm the Eighth District’s opinion.
Friend-of-the Court Brief Submitted
An amicus curiae brief supporting the clinic’s position has been submitted by Academy of Medicine of Cleveland & Northern Ohio.
– 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 Cleveland Clinic Foundation et al.: Stephen Funk, 419.843.2001
Representing Madora Jones, Administrator of the Estate of ReDon Jones: Christopher Mellino, 440.333.3800