Court News Ohio
Court News Ohio
Court News Ohio

Tuesday, Dec. 7, 2021

State of Ohio v. Michael T. Grevious, II, Case no. 2019-0912
Twelfth District Court of Appeals (Butler County)

State of Ohio v. Frankie Hudson, Jr. , Case no. 2020-1111
Seventh District Court of Appeals (Mahoning County)

State of Ohio v. Donovan Asher Nicholas , Case no. 2020-1429
Second District Court of Appeals (Champaign County)

In the Matter of the Application of Icebreaker Windpower, Inc. for a Certificate of Environmental Compatibility and Public Need for an Electric Generating Facility in Cuyahoga County, Ohio, Case no. 2021-0153

Disciplinary Counsel v. Kevin Christopher Cox, Case no. 2021-0975

Is Law Banning Appeal of Life-without-Parole Sentences Unconstitutional?

State of Ohio v. Michael T. Grevious II, Case No. 2019-0912
Twelfth District Court of Appeals (Butler County)

ISSUE: Is R.C. 2953.08(D)(3), which prohibits appeals of sentences for aggravated murder or murder, unconstitutional?

This is the third case since 2019 in which the Ohio Supreme Court will consider the constitutionality of R.C. 2953.08(D)(3), which asserts to prohibit the appeal of a sentence for aggravated murder or murder that is punishable by life without the possibility of parole. In that time, the status of this appeal by Michael Grevious II of Butler County moved from declined to held and was scheduled for hearing.

In April 2020, the Supreme Court heard oral argument in State v. Patrick, in which the Court was asked to consider if it’s unconstitutional to sentence a juvenile to life in prison with the possibility parole while not explicitly considering youth as a factor? As a decision in Patrick was pending, the Court considered State v. Kinney. (See Is State Law that Bans Appeals of Life-without-Parole Sentences Unconstitutional?) In September 2019, the Court declined Grevious’ appeal of his conviction and sentence. In November 2019, when the Court agreed to consider Kinney, it agreed to accept Grevious’ case for review, but held the case pending the outcome of Kinney.

As a decision in Kinney was pending, the Court decided Patrick in December 2020 and ruled that R.C. 2953.08(D)(3) isn’t a complete bar to a challenge of murder sentences. The Court, in July 2020, then remanded Kinney for further proceedings based on Patrick without a written opinion and lifted the hold on Grevious’ case. Grevious maintains his issue with R.C. 2953.08(D)(3) wasn’t resolved by the Patrick and Kinney decisions.

In July 2016, an altercation broke out between members of Grevious’ friends and family and those of Orlando Gilbert’s. The argument escalated into a gunfight, with eight people being shot, including Gilbert. Kalif Goens was shot to death. Goens was the son of a woman who dated Grevious’ father, and Grevious considered Goens as a brother.

A police investigation revealed that Grevious arranged for his former prison cellmate, Zachary Harris, to kill Gilbert. Harris and two others tracked down Gilbert as he was driving in Hamilton. The three fired on Gilbert’s vehicle, killing Gilbert and his passenger, Todd Berus.

A jury convicted Grevious of aggravated murder with a death penalty specification for murder-for-hire. Instead of imposing the death sentence, the jury opted for life in prison without the possibility for parole. The trial court was bound to impose the jury’s sentence.

Grevious appealed his sentence to the Twelfth District Court of Appeals, in which he raised six arguments, including that R.C. 2953.08(D)(3) was unconstitutional. The Twelfth District affirmed his conviction, noting it could address some aspects of his appeal, but ruled it was barred from reviewing his aggravated murder sentence.

Grevious appealed to the Supreme Court, which initially declined to review his case, but reconsidered its decision and accepted it.

Law Unconstitutional Even if Offenders Have Other Pathways to Appeal, Offender Argues
R.C. 2953.08(D)(3) states a “sentence imposed for aggravated murder or murder pursuant to sections 2929.02 to 2929.06 of the Revised Code is not subject to review under this section.” In Patrick, the Court noted the “under this section” portion of the law and ruled it did not bar offenders from appeals under other Ohio laws. The Court ruled that life without the possibility of parole can be challenged on constitutional grounds.

Grevious argues that ruling isn’t completely helpful to him because he claims his sentence is unconstitutional and “contrary to law.” He maintains R.C. 2953.08(D)(3) is unconstitutional because it bars review for a narrow class of offenders who maintain their sentences are contrary to law. He argues any prior justification for barring review of the sentences has been rendered useless because the state grants an automatic appeal to aggravated murder convicts who have been sentenced to death and provides for appeals to those who want to raise only constitutional issues.

Grevious explains his sentence is different than those in Patrick and Kinney in which the trial judge imposed the sentences. Grevious’ faced a jury, which was instructed to weigh the factors to determine whether to impose the death penalty or life in prison. However, the jury wasn’t instructed on the factors imposed on trial courts under R.C. 2929.11 and R.C. 2929.12 in the selection of a sentence, he argues. The jury received no guidance on whether he should have received a life-without-parole sentence or a life sentence that would have made him eligible for parole after 25 or 30 years. Because the trial court determined it was bound to follow the jury’s decision, the required factors never were applied and such a sentence is “contrary to law,” he argues. Because R.C. 2953.08(D)(3) applies to his sentence, he is unconstitutionally deprived of his right to challenge his sentence, Grevious maintains, and the Court should order the trial court to resentence him.

Patrick Ruling a Settled Matter, Prosecutor Asserts
The Butler County Prosecutor’s Office argues that the Patrick decision allows those with life-without-parole sentences for aggravated murder to appeal but Grevious lacks standing to challenge R.C. 2953.08(D)(3).

Even if Grevious could challenge the law, it isn’t unconstitutional, the prosecutor argues, because the legislature has a right to limit appellate review for a certain classification of felons, and in this case the state has repeatedly proven it was within its rights to limit the review for aggravated murder sentences that don’t impose a death penalty.

The prosecutor notes that Grevious also claims his sentence was based on racial discrimination, which is a violation of his rights under the Fourteenth Amendment to the U.S. Constitution, and that he had a “constitutional right” to have a jury impose the sentencing factors.

The prosecutor maintains, though, that there is no law that requires a jury in a capital case to consider the sentencing factors that trial courts must use for other crimes. In fact, the trial court used jury instructions, which track the aggravated murder statutes, the office explains. Grevious’ argument isn’t really a “contrary to law” argument, but rather a constitutional argument that he was deprived a right to a fair sentence, the prosecutor states. He isn’t blocked by R.C. 2953.08(D)(3) from appealing his sentence, the prosecutor concludes.

Friend-of-the-Court Brief Submitted
An amicus curiae brief supporting Grevious’ position was submitted by the Ohio Public Defender’s Office.

Dan Trevas

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

Representing Michael T. Grevious II: Charles Koenig, 614.454.5010

Representing the State of Ohio from the Butler County Prosecutor’s Office: Willa Concannon, 513.887.3474

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Can Prosecutor Dismiss Case and Refile Charges after Alleged Offender Turns 21?

State of Ohio v. Frankie Hudson Jr., Case No. 2020-1111
Seventh District Court of Appeals (Mahoning County)

ISSUE: Does a common pleas criminal court have subject-matter jurisdiction over a case in which a defendant is a juvenile at the time of an alleged offense and is indicted before the age of 21, but the case is dismissed and refiled when the defendant is older than 21?

A Mahoning County grand jury indicted 20-year-old Frankie Hudson Jr. in August 2013 on six offenses, including aggravated murder and aggravated robbery. The offenses were split into two groups, and Hudson was tried separately on each set.

One set – involving the three counts that are the subject of this appeal – stemmed from crimes on Dec. 14, 2010, when Hudson was 17 years old. His 18th birthday was a few weeks later. In November 2015, the Mahoning County prosecutor asked, and the Mahoning County Common Pleas Court agreed, to dismiss the counts without prejudice.

Once the criminal court dismissed the counts, the prosecutor refiled identical charges. Hudson, then 22, pled not guilty. Hudson’s brief to the Supreme Court states that the prosecutor filed a superseding indictment in July 2016, with the same three counts plus charges for attempted murder and intimidation and a specification for participating in a criminal gang.

In August 2016, Hudson requested that the court dismiss the indictment, arguing the juvenile court, not the criminal court, had jurisdiction over his case. The court rejected his claim.

Following a plea agreement with the prosecutor, Hudson pleaded no contest to involuntary manslaughter with a firearm specification, aggravated robbery with a firearm specification, and illegally having a weapon. The criminal court sentenced him to 15 years in prison. Hudson was already in prison for other crimes.

Hudson appealed to the Seventh District Court of Appeals, arguing the criminal court didn’t have jurisdiction over the case because he was 17 at the time of the offenses. However, the Seventh District upheld his convictions and sentences, concluding that the criminal court could hear the case because Hudson was indicted and apprehended when he was 22 years old.

He appealed to the Ohio Supreme Court, which accepted his case.

Role of Custody and Apprehension in Juvenile Court Jurisdiction
R.C. 2151.23 delineates the jurisdiction of juvenile courts. Division (I) states in part:

“If a person under eighteen years of age allegedly commits an act that would be a felony if committed by an adult and if the person is not taken into custody or apprehended for that act until after the person attains twenty-one years of age, the juvenile court does not have jurisdiction to hear or determine any portion of the case charging the person with committing that act. In those circumstances, divisions (A) and (B) of section 2152.12 of the Revised Code do not apply regarding the act, and the case charging the person with committing the act shall be a criminal prosecution commenced and heard in the appropriate court having jurisdiction of the offense as if the person had been eighteen years of age or older when the person committed the act. …”

Man Argues He Was Apprehended at 20 Years Old
Hudson notes that he was 17 years old when the crimes took place and 20 when he was indicted in 2015. He maintains that he was taken into custody and apprehended on these charges before he reached the age of 21, so the juvenile court had jurisdiction over his case. He has been in custody since that time, he states.

He asserts that the prosecutor’s office dismissed the case in November 2015 because it realized the criminal court didn’t have jurisdiction over the earlier case given that he was under 21 at the time of that indictment. He maintains that the state deliberately bypassed the juvenile court by refiling the case in criminal court after he turned 21. But filing another indictment on the same charges doesn’t change the dates he was taken into custody or apprehended in the case, he argues.

He also contends that when a minor is arrested for a crime and taken before a criminal court, state law requires the transfer of the case to the juvenile court, which then follows any applicable bindover procedures. However, in this case, the juvenile court didn’t hear his case first to determine whether it should be sent to the criminal court, he states.

State Maintains Key Date Is Apprehension for Latter Indictment
The Mahoning County Prosecutor’s Office states in its brief that the offender’s age at the time the offender is apprehended is “the touchstone” for determining whether a juvenile court has jurisdiction over a case, regardless of when the crimes occurred.

Once the initial indictment against Hudson was dismissed in November 2015, he was in prison for other crimes but not in custody for the December 2010 offenses, the prosecutor maintains. When the charges were refiled, Hudson was then 22 years old and, according to R.C. 2151.23(I), he was subject to the jurisdiction of the criminal court, the brief contends.

Even if Hudson’s case had started in the juvenile court, he was subject to a mandatory bindover to the criminal court because he was charged with committing aggravated murder at age 17, the prosecutor argues. The criminal court had jurisdiction over Hudson’s case, the prosecutor maintains.

Kathleen Maloney

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

Representing Frankie Hudson Jr.: John Laczko, 330.587.5005

Representing the State of Ohio from the Mahoning County Prosecutor’s Office: Ralph Rivera, 330.740.2330

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Must Prosecutor Prove Juvenile Not Amenable to Treatment to Transfer Case to Adult Court?

State of Ohio v. Donovan A. Nicholas, Case No. 2020-1429
Second District Court of Appeals (Champaign County)

ISSUE: Must the prosecution prove by clear and convincing evidence that a minor is not amenable to treatment in the juvenile court system before a discretionary transfer to adult court can be ordered?

In his preteen years, Donovan Nicholas began displaying signs of mental illness. He described to a psychologist a process in which he believed he was splitting into two people, stating there was a “good him and a bad him.”

“At first, I was talking to myself, but it turned into Jeff. It would say, ‘I am Jeff the Killer,’” Nicholas told the psychologist.

In April 2017, when Nicholas was 14 years old, he lived with his father and his father’s long-time girlfriend Heidi Taylor in Champaign County. Taylor had lived with Nicholas since he was about 3 years old, and he referred to her as “mom.”

Nicholas became upset because he lost his cellphone privileges, and decided to hide in a hallway closet with a large kitchen knife. He lured Taylor to come to him and stabbed her at least 60 times. She asked him to call 911 for help and he refused. Taylor was able to crawl to her bedroom. There, Nicholas located his father’s handgun in a nightstand. He shot Taylor in the head, and she died. When Nicholas was arrested for the murder, he denied committing it and blamed it on “Jeff.”

Teen Transferred to Adult Court
The Champaign County Prosecutor’s Office filed delinquency charges in juvenile court against Nicholas and requested its discretion to transfer Nicholas to adult court to be tried for aggravated murder and other charges. Nicholas waived his rights to a probable cause hearing and proceeded to an amenability hearing to determine if he was suitable for treatment in the juvenile system rather than be prosecuted as an adult.

Dr. Daniel Hrinko, a juvenile psychologist, testified that Nicholas suffered from dissociative identity disorder (DID) and that Nicholas’ multiple personalities could be integrated back to one personality with treatment available in the juvenile system. A guardian ad litem appointed to determine Nicholas’ best interests also testified that Nicholas was amenable to treatment in the juvenile system. A representative of the Ohio Department of Youth Services testified the department has several licensed psychologists on staff and access to other providers that could provide the psychological treatment ordered by the court. Prosecutors questioned whether Youth Services had the capability of treating someone with DID and whether treatment during a commitment of five or six years within the juvenile system would be sufficient.

The prosecution presented law enforcement witnesses to describe the crimes, but didn’t offer witnesses of their own to discuss Nicholas’ mental health. Under R.C. 2152.12(D) and (E), the juvenile court must weigh factors favoring and against retention in the juvenile system before ruling on a transfer. The judge concluded that Nicholas had a mental illness but concluded Youth Services couldn’t offer a specific treatment necessary to rehabilitate Nicholas and provide “reasonable assurance of public safety.” Nicholas was bound over to adult court.

In Champaign County Common Pleas Court, Nicholas again presented witnesses describing his mental state. He asked to present an “irresistible impulse defense,” which was denied. He was convicted of the charges and sentenced to life in prison with eligibility for parole in 25 years and a mandatory three years for a gun specification, making him eligible for parole in 28 years.

Nicholas appealed his conviction, arguing his due process rights were violated at the amenability hearing. In a split decision, the Second District Court of Appeals affirmed his conviction.

He appealed the Second District’s decision to the Ohio Supreme Court, which agreed to hear the case.

Burden Unconstitutionally Shifted to Youth, Offender Argues
Citing the dissenting opinion of the Second District judge, Nicholas argues the prosecution presented no evidence that he wasn’t amenable to treatment in the juvenile system and needed to be tried as an adult. Under the current system, a juvenile judge weighs the factors before issuing a decision. The judge’s decision is then reviewed by the appellate court under an “abuse of discretion” standard. Nicholas argues this lowered standard of proof results in an unconstitutional violation of his due process rights. Because the prosecution wasn’t required to offer any proof that he wasn’t amenable to treatment, the burden of proof effectively shifted to Nicholas to prove he was amenable.

Nicholas concedes that there is no constitutional right to be tried in juvenile court. However, once the state establishes such a system, all juveniles have the same rights to be treated with fairness and due process under the law, he maintains. Noting the juvenile system is a civil process, not a criminal process, the appropriate standard of proof to establish that a youth isn’t amenable to treatment must be made by clear and convincing evidence, he asserts. Because the state presented no evidence that he wasn’t amenable, his due process rights were violated, and his transfer to adult court was unconstitutional, he concludes.

Discretionary Standard Appropriate, Prosecutor Maintains
The prosecutor notes that Nicholas can’t point to one state that has adopted a burden on the prosecution to prove a youth isn’t amenable by clear and convincing evidence. Nicholas received a full hearing regarding his discretionary bindover where he was represented by an attorney and witnesses testified to nature of the crime and the factors the juvenile court needed to consider, the prosecutor argues. The office notes that Nicholas never mentioned in his brief that the decision to bind over a juvenile is based on both the ability to rehabilitate the child and the safety of the community.

The prosecutor maintains that the psychologist couldn’t point to one case where a youth with DID, such as Nicholas, had been successfully treated, and his testimony was qualified with many conditions that didn’t ensure treatment in a Youth Services facility was possible.

Ohio law has a mandatory bindover for some juvenile offenders, the prosecutor notes, but a juvenile judge has wide discretion to determine whether a juvenile should be bound over when the transfer is optional. The judge considered all the factors required, including the safety to the community, and properly determined Nicholas should be tried in adult court, the prosecutor asserts. The powers granted to a juvenile court to make such a decision are established by the Ohio General Assembly, and if Nicholas wants to change the standards, his arguments are better suited for the legislature, not the Supreme Court, the office concludes.

Friend-of-the-Court Briefs Submitted, Argument Time Divided
An amicus curiae brief supporting Nicholas’ position was submitted jointly by:

The Ohio Attorney General’s Office submitted a brief in support of the prosecutor. The attorney general also will share oral argument time with the prosecutor. The Ohio Prosecuting Attorneys Association also submitted a brief in support of the prosecutor.

Dan Trevas

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

Representing Donovan Nicholas from the Ohio Public Defender’s Office: Timothy Hackett, 614.466.5394

Representing the State of Ohio from the Champaign County Prosecutor’s Office: Jane Napier, 937.484.1900

Representing the Ohio Attorney General’s Office: Benjamin Flowers, 614.466.8980

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Did Board Properly Assess Proposed Offshore Windfarm’s Impact on Birds and Bats?

In re Application of Icebreaker Windpower Inc. for a Certificate of Environmental Compatibility and Public Need for an Electric Generating Facility in Cuyahoga County, Ohio, Case No. 2021-0153
Ohio Power Siting Board


  • May the Ohio Power Siting Board issue a certificate allowing the construction of a wind-powered electric generation facility if the board fails to make valid findings regarding the probable environmental impact of the project?
  • Does the lease of submerged land in Lake Erie to a private, for-profit entity to construct a wind-powered electric generation facility violate the Public Trust Doctrine?

Icebreaker Windpower initially applied to the Ohio Power Siting Board in 2017 for a certificate to construct a six-turbine wind farm in Lake Erie near Cleveland. The project was to be the first freshwater offshore wind project in North America, and was intended to be a demonstration project to provide information on how offshore wind facilities interact with the environment.

The facility has a generating capacity of 20.7 megawatts and is to be located eight to 10 miles from the shores of Lake Erie. Electric generation is to be connected to Cleveland Public Power’s facilities on land and is expected to generate 75,000 megawatt-hours of electricity a year. The U.S. Department of Energy provided a $50 million federal grant to the project.

Since the project was first envisioned in 2008, the Ohio Department of Natural Resources (ODNR) and the U.S. Fish and Wildlife Service have sought to collect data about Icebreaker’s impact on birds and bats. The power siting board staff investigated Icebreaker’s application and noted in 2018 that birds and bats are likely to be affected by the project. The state recommended as a condition of approval that the wind turbines be turned off — known in the industry as “feathered” — from dusk to dawn from March 1 to Jan. 1 each year.

Icebreaker objected to the proposal, noting the complete evening shutdown of the turbines for most of the year could financially jeopardize the project. The board initially approved the project with several conditions, including the evening shutdown until Icebreaker proved it had the capability of monitoring the threat to birds and bats. Icebreaker asked for a rehearing, arguing for a modification of the bird and bat harm mitigation plan. The board approved a “tactical feathering” plan that both the company and board staff agreed was sufficient. The conditions required pre-construction and post-construction monitoring of the turbines. If the monitoring was insufficient or more than 21 birds or bats were killed within a 24-hour period, additional conditions would be placed on the turbine operations, which could include the nighttime feathering.

W. Susan Dempsey and Robert M. Maloney, two residents of Bratenahl, objected to the board’s approval of the certificate. The residents of the shoreline community maintained that the board violated its obligations under R.C. 4906.10(A)(2) by approving a plan without properly determining its environmental impact. The residents also maintained that leasing the land to the private, for-profit Icebreaker violated R.C. 1506.10 because the state cannot relinquish its interest in submerged land under Lake Erie to a private party.

The board denied the Bratenahl residents’ request and approved the project in 2020 with the revised conditions. The residents appealed to the Supreme Court, which is required to hear such appeals of the board decisions.

Project Approval Contrary to Law, Residents Assert
Two of eight provisions under R.C. 4906.10(A)(2) that the board must consider before granting a certificate are: “The nature of the probable environmental impact;” and “(t)hat the facility represents the minimum adverse environmental impact, considering the state of available technology and the nature and economics of the various alternatives, and other pertinent considerations.” The residents note the board staff report found Icebreaker never completed the requested pre-construction or post-construction monitoring of the proposed site to determine its impacts on birds and bats, and there are no proven technologies to perform bird/bat collision monitoring at offshore wind-energy facilities.

The nature of a probable environmental impact cannot be determined because Icebreaker failed to submit evidence to show how many birds and bats fly through the project’s “rotor-swept zone,” the residents assert. Meanwhile, evidence the residents submitted established that birds and bats regularly fly through the area, possibly millions of them per year. Without performing any studies, the board couldn’t determine the probable or actual impact on the environment and didn’t comply with the law, the residents state.

Lease Violates Public Trust Doctrine, Residents Assert
The residents note R.C. 1506.10 describes the boundaries of Lake Erie and the state’s ownership of a portion of the lake, including the area where the Icebreaker project is located. The residents assert the territory is governed by the “Public Trust Doctrine,” which indicates that the state holds the title to its portion of Lake Erie in trust for the benefit of the people of Ohio. The state cannot relinquish its control of the land it leased to Icebreaker for its private, for-profit use, the residents maintain. The residents note the board declined to consider the issue, indicating it doesn’t have jurisdiction to consider the matter, but argued its position is that the project doesn’t violate the Public Trust Doctrine.

Project Met Requirements, Board Maintains
The board asserts that after years of considerable discussions with its staff and other parties interested in the impact of the project, the certificate contains sufficient safeguards to protect the environment as it moves forward. The board notes that while Icebreaker wasn’t able to provide specific evidence of activity by birds and bats from the future site of the wind turbines, an abundance of evidence was submitted indicating that offshore windmills have a minor impact on birds and bats compared with wind farms on land.

The board notes the law calls for assessing the “probable” environmental impact, not the “actual” impact, which the residents contend is necessary to approve the project. The board said the small-scale nature of the project coupled with its relocation from three-to-five miles from shore to eight-to-10 miles presents a low risk to wildlife. The board points to a 2016 project risk assessment, which found that compared with more than 100 other projects the authors analyzed, the Icebreaker project would have “the lowest impact on birds and bats.”

Company Advocates for Board Approval
The Court allowed Icebreaker to intervene in the case and make its own arguments in favor of project approval. Icebreaker noted several conditions in the certificate that ensure it will appropriately monitor for birds and bats and develop plans to mitigate bird and bat collisions with the windmills. The company cited several studies presented to the board indicating the project’s minimal impact on wildlife and that the certificate, with the conditions, complies with the law.

Regarding the public trust argument, Icebreaker notes it leased the land through ODNR and the agency has exclusive control over the lease agreements. The board had no role in Icebreaker’s lease, the company states, and ODNR considered the lease compatible with the public’s rights and the public trust uses of the area. Icebreaker notes the agency evaluated the environmental impact of the area and approved the project. The board doesn’t have any rights to “second-guess” the agency’s lease agreements, the company concludes.
Friend-of-the-Court Briefs Submitted
An amicus curiae brief supporting Icebreaker’s position was submitted by the Great Lakes Towing Company, which operates tugboats at ports in the Great Lakes and assists with marine construction projects. The Ohio Environmental Council filed an amicus brief supporting the board.

Dan Trevas

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

Representing W. Susan Dempsey and Robert M. Maloney: Mark Tucker, 614.223.9300

Representing the Ohio Power Siting Board from the Ohio Attorney General’s Office: Thomas Lindgren, 614.466.4395

Representing Icebreaker Windpower Inc.: Christine Pirik, 614.591.5461

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Coshocton Attorney Faces Suspension for Sexual Relationship with Client and Lying

Disciplinary Counsel v. Kevin C. Cox, Case No. 2021-0975
Coshocton County

The Board of Professional Conduct recommends a two-year suspension with one year stayed for Coshocton attorney Kevin Cox. The board found that Cox had a consensual sexual relationship with an important client who was seeking a divorce and that Cox lied about the relationship in disciplinary inquiries and proceedings.

The attorney disputes the board’s findings and opposes the recommended sanction, arguing that he only sent sexual text messages and emails but never had sex with the client. Because he has objected to the board’s report, the Ohio Supreme Court must hear oral argument in the disciplinary case.

Attorney Takes on Divorce Case
While Cox was employed at McCleery Law Firm, he was assigned in November 2017 to represent a woman identified as V.W. in her divorce. V.W. was considered one of the firm’s most important clients.

In her later testimony, V.W. said she and Cox began a consensual sexual relationship the month he started representing her. The relationship lasted a year or more. When V.W. discovered in February 2019 that Cox was still living with his wife, she ended the sexual relationship and his legal representation.

Later that year, V.W. told the firm that she and Cox had been involved in a sexual relationship. After managing attorney Greg McCleery discussed the allegations with Cox, McCleery submitted a grievance to the Office of Disciplinary Counsel, which investigated the matter.

Attorney Denies Texts, Emails, Sexual Relationship with Client
When Cox responded to a letter from the disciplinary counsel, he denied having any sexual relationship with V.W., didn’t address information regarding the text and email messages, and maintained that he had violated no professional conduct rules. At a deposition, he said he didn’t recall sending the text messages to his client, and when asked if it was possible he sent them, he said, “No.” He also denied emailing V.W. from a Gmail address that used his full name. The emails referenced an encounter in V.W.’s garage and that they were missing each other. Later, in testimony before the board panel that heard his disciplinary case, Cox admitted he sent “wildly inappropriate” sexual messages to his client. When presented with Google records that connected his subscriber information and his IP addresses (the numeric designation for a specific computer or device)to the email address, he no longer disputed that the emails were his.

Cellphone records also placed the attorney in the town where V.W.’s home is located on Nov. 2, 2017, and documented a phone call the next evening from his phone while located in that town to his wife. Cox then called V.W. from his home about an hour and a half later. The phone records also show that he was in V.W.’s town on other dates in November 2017 and document a string of sexual text messages.

Professional Conduct Board Finds Three Ethics Violations
The board found that Cox violated three rules governing the conduct of Ohio attorneys – the prohibitions against soliciting or engaging in sexual activity with a client; engaging in dishonesty, deceit, and misrepresentation; and making false statements of material fact during the disciplinary investigation and proceedings.

The disciplinary counsel advocated for a one-year suspension, while Cox requested a public reprimand. The board considered aggravating circumstances that could increase the penalty and mitigating factors that could lead to a lesser sanction in determining the suggested suspension of two years with one year stayed. In its report to the Supreme Court, the board also recommended that the one-year stay be conditioned on Cox completing six hours of continuing legal education (CLE) on appropriate behavior and boundaries with clients in addition to an attorney’s regular CLE requirements, refraining from further misconduct, and paying the costs of the proceedings.

Attorney Acknowledges Only ‘Sexual Banter’
In his brief, Cox states that he engaged in “sexual banter” with V.W. and his actions were “sloppy, stupid, and totally improper.” However, he disputes the allegations that he lied during the disciplinary investigation and proceedings.

He also challenges on several fronts V.W.’s testimony of a physical relationship. Cox notes that in her divorce hearing, V.W. testified that she didn’t have an affair with him. In the disciplinary investigation, she also said there had been a recording of her and Cox from her garage documenting their physical relationship, but it was erased. V.W. stated they had met at a Canton hotel. Cox questions whether a tape ever existed and said GPS tracking shows he was in Canton the day of the alleged hotel encounter coaching his son’s football team, but never was at the hotel. He states that there’s no hair, fiber, DNA, fingerprint, or photo evidence proving that there was a sexual relationship between him and V.W.

Cox maintains he was truthful in November 2020 when he denied ever sexting with V.W. in 2018 and late 2017. He receives 100 or more text messages each week and didn’t recall the sexting, he argues.

He concludes that he has taken full responsibility for engaging in sexual banter with a client, suggesting that a public reprimand, six to 12 hours of extra CLE, and perhaps a period of monitored probation are appropriate sanctions.

Disciplinary Counsel Points to ‘Unrepentant and Calculated Dishonesty,’ Attacks on Client
The disciplinary counsel contends that Cox continues to attack V.W.’s character and to overlook the emails, text messages, and cellphone records – all which back V.W.’s testimony and prove beyond any doubt that they had sex.

The office notes that V.W. said she didn’t have an affair with Cox in her divorce hearing because she felt she had no obligation to her husband at that point. The office states that the board panel looked at all the evidence and determined V.W. was more credible. The disciplinary counsel’s brief adds that McCleery showed Cox text messages before filing the grievance, so Cox was aware of them. Also, Cox’s focus on a lack of forensic evidence, as if this were a homicide investigation, shows deflection from the evidence of his sexual relationship with V.W., the brief maintains.

The disciplinary counsel notes: “[Cox] has continued with his lies and forced V.W. to defend her integrity and testify about intimate details of their physical sexual relationship in a public forum.” The office concludes that “[Cox’s] request for a public reprimand reinforces his refusal to acknowledge the depth of his misconduct and confirms that his unrepentant and calculated dishonesty warrant a harsh sanction to protect the public.”

Kathleen Maloney

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

Representing Kevin C. Cox: William Mann, 614.763.2167

Representing the Office of Disciplinary Counsel: Joseph Caligiuri, 614.387.9700

These informal previews are prepared by the Supreme Court’s Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews aren’t part of the case record, and aren’t considered by the Court during its deliberations.

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