Tuesday, June 14, 2022
State of Ohio v. Cronie W. Lloyd, Case No. 2021-0860
Eighth District Court of Appeals (Cuyahoga County)
State of Ohio v. Kyle Brasher, Case No. 2021-1060
Twelfth District Court of Appeals (Butler County)
Bonita Stewart v. Solutions Community Counseling and Recovery Centers Inc. et al., Case No. 2021-1163
Twelfth District Court of Appeals (Warren County)
State of Ohio v. Susan Gwynne, Case No. 2021-1033
Fifth District Court of Appeals (Delaware County)
Was Lawyer’s Defense Based on Misunderstanding of Felony Murder?
State of Ohio v. Cronie W. Lloyd, Case No. 2021-0860
Eighth District Court of Appeals (Cuyahoga County)
ISSUE: Can the presumption that an attorney made decisions as part of a reasonable trial strategy be refuted by evidence of the attorney’s “persistent misunderstanding” of the offense charged against the defendant?
BACKGROUND:
In the early morning hours of Feb. 3, 2019, Cronie Lloyd and Gary Power left a bar in Independence at about the same time in separate cars. They had a minor traffic accident and pulled their vehicles into a nearby gas station. Surveillance video indicated that they argued. Power, 83, walked by Lloyd while going toward the back of his vehicle. Lloyd, 48, punched Power in the jaw. Power fell to the ground, striking his head. Lloyd left the scene.
Near that time, police were called to a fight in the area at a restaurant parking lot. Afterward, an officer noticed Power on the pavement at the gas station. Power was unconscious and had a laceration on the back of his head. He was taken to a hospital and died two days later. The medical examiner concluded Power died from his head injuries.
Lloyd was indicted on felony murder and felonious assault, along with two specifications. He declined two plea offers and went to trial before a jury, which found him guilty. The trial court sentenced him to 15 years to life in prison.
He appealed to the Eighth District Court of Appeals. Two of his arguments alleged ineffective assistance from his trial attorney. The Eighth District upheld the trial court ruling.
Lloyd appealed to the Supreme Court of Ohio, which accepted the case.
Man Contends His Attorney Didn’t Know Felony Murder Law
Lloyd notes that a felony murder conviction doesn’t require the prosecutor to prove an intention to kill someone. Instead, the prosecutor must prove an intent to commit an underlying felony – in his case, felonious assault, Lloyd states. However, he argues, his lawyer didn’t understand that distinction. Lloyd contends that his lawyer’s statements at trial show she believed he could be acquitted if the state didn’t prove he intended to kill Power. For example, Lloyd’s attorney made several statements arguing Lloyd couldn’t have known one punch would cause Power’s death. But that was a misunderstanding of the law and the charge against him, Lloyd maintains.
Lloyd argues his lawyer based his defense entirely on the theory it was only necessary to show that when he punched Power, he didn’t intend to kill. That misunderstanding affected all aspects of how an attorney would advise a client about testifying, accepting a plea deal, having a jury or the bench hear the case, and what jury instructions to request, Lloyd asserts.
Quoting U.S. Supreme Court precedent, Lloyd notes that the constitutional right to an attorney “is the right to the effective assistance of counsel.” He maintains that claims of ineffective assistance often are discarded when the attorney’s actions are viewed as reasonable trial strategy. In his case, though, his attorney misunderstood what was required to prove felony murder, he argues. He contends that the standard presumptions that an attorney is competent and the attorney’s actions are strategic trial decisions are refuted when the record demonstrates that the attorney misunderstood the elements of the charged offense.
“… [T]here must be some level of poor performance that crosses the line, rebuts the presumption, and allows a reviewing court to question the soundness of counsel’s decisions,” his brief argues.
State Asserts Lawyer’s Approach Was Strategic Choice
The Cuyahoga County Prosecutor’s Office agrees that a defendant can try to rebut the presumption that a trial lawyer’s performance was reasonable, but disagrees that Lloyd proved that in his case. The appeals court concluded Lloyd didn’t demonstrate how his attorney’s choices weren’t tactical steps to seek an acquittal. The Eighth District also stated that Lloyd’s attorney’s decision not to ask for the jury to receive instructions about less serious offenses is presumed to be an all-or-nothing strategy aimed at acquittal.
The prosecutor maintains that Lloyd takes issue with the outcome of his trial, not the standard the Eighth District used in reviewing his appeal. Lloyd’s attorney was aware the state had to prove Lloyd acted knowingly, the prosecutor argues, so she argued that Lloyd didn’t know his conduct would cause Power’s death. The attorney emphasized that Lloyd struck Power with a single punch and couldn’t have known the serious physical harm that would result when Power hit the ground.
“There is no broad legal question for the Court to decide, no conflict of law, no matter of statutory interpretation,” the prosecutor concludes. “The real issue before the Court is a defendant who now regrets his decision to go to trial and wants a plea that is no longer available.”
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Cronie W. Lloyd from the Cuyahoga County Public Defender’s Office: Noelle Powell, 216.698.5022
Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Katherine Mullin, 216.698.6454
Can Crime Victim Prompt Court to Add Restitution After Offender Released From Prison?
State of Ohio v. Kyle Brasher, Case No. 2021-1060
Twelfth District Court of Appeals (Butler County)
ISSUE: May a trial court supplement a criminal sentence to add restitution after the defendant has completed a prison sentence?
BACKGROUND:
In December 2017, Kyle Brasher stole a 2002 Mazda belonging to a woman identified in court records as “D.H.” Brasher wrecked and heavily damaged the vehicle. In September 2018, Brasher pleaded guilty in Butler County Common Pleas Court to grand theft of a motor vehicle. Prior to the plea, D.H. submitted photographs of the damages and a repair estimate for the car to the Butler County Prosecutor’s Office.
Brasher was sentenced in October 2018. D.H. had presented the trial court with documentation to support a claim for restitution but didn’t appear at the hearing. The trial judge sentenced Brasher to 18 months in prison, but there was no discussion of restitution, and a restitution order wasn’t imposed. Neither D.H. nor the prosecutor appealed the sentence.
In March 2019, D.H. sought a writ of mandamus from the Twelfth District Court of Appeals to order the trial court to reopen Brasher’s sentence so that restitution can be imposed. She argued that under “Marsy’s Law,” which is part of the Ohio Constitution, she was entitled to restitution. In May 2020, the Twelfth District granted the order, and the trial court scheduled a July 2020 restitution hearing. Brasher, who had received two months credit for time served in jail prior to his sentencing, had been released from prison by the time of the hearing and wasn’t present.
D.H. told the judge she and her husband sold the Mazda for $200 and had spent $2,000 for a new vehicle. She also had to pay $176 to tow the vehicle after Brasher wrecked it. A month later, the trial judge issued an opinion stating that there was “no definite finding” regarding restitution at Brasher’s original sentencing hearing, and he could add it now. The judge granted D.H. $1,976 in restitution from Brasher.
Brasher appealed to the Twelfth District. The appellate court ruled that because Brasher had been released from prison, he was entitled to finality of his sentence. The trial court couldn’t impose restitution after Brasher was released, the Twelfth District ruled.
The prosecutor’s office appealed the decision to the Supreme Court of Ohio. On the same day, D.H. also appealed the decision and sought to intervene in the case. The Supreme Court agreed to hear both appeals together.
Victim Entitled to Restitution, Prosecutor Asserts
Rights for crime victims have been embedded in the Ohio Constitution since 1994 in Article I, Section 10a, the prosecutor notes. In 2018, that section of the constitution was revised by the voter-approved Marsy’s Law, which provided additional victim rights. Section 10a(A)(7) provides the right to “full and timely restitution from the person who committed the criminal offense.”
The office notes that criminal sentencing is guided by state law, including R.C. 2929.11(A), which requires the trial court to consider restitution. In sentencing Brasher without ordering the restitution, the trial court failed to follow the sentencing laws, the prosecutor asserts. Because the judge didn’t follow the guidelines, Brasher’s sentence was not final, and D.H. has the right to have the trial court reopen his sentence, the office asserts. Since the trial court made an error, neither the prosecutor nor D.H. had to appeal Brasher’s original sentence to seek restitution, the office asserts.
The prosecutor also argues the Twelfth District has misapplied prior Supreme Court of Ohio rulings in determining that Brasher’s sentence couldn’t be revised after he was released from prison. The office notes the prior Court rulings barred the state from increasing incarceration or adding postrelease control after an offender was released from prison. That standard doesn’t apply to restitution, though, especially since D.H. has a constitutional right to restitution, the prosecutor concludes.
Offender’s Rights Can’t Trump Constitution, Victim Maintains
D.H. notes her writ of mandamus was filed while Brasher was in prison and, before Brasher was released early to a halfway house, he was on notice that she was challenging his sentence. D.H. maintains that the constitution allows victims to petition the courts to enforce their rights under Marsy’s Law. She asserts that she wasn’t the reason the restitution decision was delayed and shouldn’t be punished for the failure of the courts to move more swiftly on the matter.
D.H. argues while she has a constitutional right to restitution, Brasher has no constitutional right to the finality of his sentence. His right to finality can’t trump her constitutional rights, she argues.
D.H. also maintains that interpretations of current Supreme Court rulings on sentencing and the timing of appeals can’t be so rigid as to harm the rights of others. While the provisions in Marsy’s Law on how crime victims can enforce their rights are stated in general terms, the courts have an obligation to adjust procedures to carry out the constitutional mandates, she argues. Court procedures should protect against the harsh application of the law in ways that lead to unjust outcomes, she concludes.
Right to Restitution Waived, Offender Argues
Brasher notes that like all constitutional protections, those granted by Marsy’s Law can be waived and forfeited. He argues that D.H. and the prosecutor waived the right to restitution by taking no action to enforce it at his original sentencing hearing. Brasher indicates that D.H. had notice of his sentencing hearing and didn’t appear. At the hearing, the trial judge scolded Brasher for wrecking the car and not offering any restitution to help the victim fix it. The judge noted at the time of the hearing that D.H. and her husband hadn’t reported the vehicle’s value to the court.
After the judge discussed the sentence and lack of restitution, the prosecutor didn’t address the court, Brasher explains. Then after he was sentenced, neither the prosecutor nor D.H. appealed the sentence or asserted any rights under Marsy’s Law. Because of the delay, D.H. waived her rights to restitution and he isn’t obligated to pay, Brasher asserts.
The trial court had no obligation to order restitution, Brasher adds, noting that a writ of mandamus only assists the writ seeker when the trial court has a clear legal duty to grant the relief requested. The sentencing laws allow, but don’t require, a trial judge to impose restitution. The trial judge acted on the limited information available at the time of the sentencing hearing, he asserts. The only information provided to the court about the cost of replacing or repairing the Mazda was D.H.’s statements to the court, Brasher maintains. The trial court noted that Brasher didn’t have the ability to pay restitution and D.H.’s written submission didn’t precisely state the amount of her financial loss, he adds. This meant the court had no legal duty to impose restitution, he states. The Twelfth District had no right to order the trial court to reopen his sentence, he 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 State of Ohio from the Butler County Prosecutor’s Office: John Heinkel, 513.887.3474
Representing D.H.: Bobbie Yeager, 614.848.8500
Representing Kyle Brasher from the Ohio Public Defender’s Office: Stephen Hardwick, 614.466.5394
Is Mental Health Provider Immune From Liability for Suicide at Jail?
Bonita Stewart v. Solutions Community Counseling and Recovery Centers Inc. et al., Case No. 2021-1163
Twelfth District Court of Appeals (Warren County)
ISSUE: Do mental health providers have immunity from liability under R.C. 2305.51 when a patient commits self-harm?
BACKGROUND:
In August 2016, Bonita Stewart’s 30-year-old son, Justin, died by suicide in the Warren County Jail. Stewart filed a lawsuit against Solutions Community Counseling and Recovery Centers and one of Solutions’ counselors. Solutions provided mental health services for those in jail. The lawsuit made claims of wrongful death, negligence, and malpractice.
Stewart stated in the lawsuit that she and her husband called the police in 2014 after Justin damaged their house and car. They believed he needed mental health counseling and asked the police to arrest him. Police found a firearm in his car, and he was charged with a crime. The Warren County Common Pleas Court placed Justin on probation, ordering mental health treatment and anger management counseling. He didn’t comply with the treatment conditions and was arrested in April 2016 for violating his probation terms.
Justin was held at the Warren County Jail. The lawsuit maintains that Justin refused a medical screening and was sent for an evaluation at an inpatient psychiatric facility. After a few weeks, the facility found him competent to stand trial, and he was returned to the jail. A court-ordered evaluation determined he needed further treatment, and he was held in the jail while awaiting a placement. The lawsuit states that Justin displayed bizarre and troubling behavior at the jail. He was moved to “administrative segregation” for being disruptive. Stewart alleges that mental health staff visited Justin one time during the last two weeks of August 2016. He died by suicide on Aug. 30.
Solutions asked the trial court to dismiss the case, arguing R.C. 2305.51 gave the counseling center immunity from liability in Justin’s death. In December 2020, the court disagreed, denying immunity for the center and the request for dismissal.
Solutions appealed to the Twelfth District Court of Appeals, which upheld the trial court decision. The counseling center appealed to the Supreme Court of Ohio, which agreed to review the issue.
Counseling Center Argues Immunity Applies Because Victim Can Be Patient
Solutions states that R.C. 2305.51’s purpose is to impose liability on mental health providers for a patient’s violent behavior in certain circumstances, and to provide immunity when the conditions aren’t met. Although the Twelfth District ruled the law applies when a patient causes physical harm or death only to someone else, the counseling center counters that the law focuses on the violent behavior, not the person on whom the violence is inflicted.
The victim can be either a third party or the patient, the center contends. “Victim” isn’t limited to someone other than the patient because a victim is someone who is injured or harmed, the center maintains. It argues the violent behavior can be self-inflicted and encompasses a suicide victim.
Solutions also maintains that it can be held responsible only if an imminent and real threat of violent behavior was communicated and other steps weren’t taken. The patient must have communicated an explicit threat regardless of who is the victim, the center argues. It asserts that Justin didn’t tell the center, the counselor, or anyone else that he intended to harm himself or take his own life.
The center contends that it would defy logic for the General Assembly to pass a law to protect mental health providers from civil liability when a patient causes serious injury or death to others, but not provide that protection when the patient inflicts self-harm or dies by suicide.
Mother Maintains Law Doesn’t Address Suicide, Can’t Offer Immunity
Stewart notes that the statute uses the words “mental health client or patient” and then “potential victims.” The use of the separate terms throughout the statute makes clear that the patient and the victim are different individuals, Stewart argues. She points out, for example, that one section about the mental health provider’s duty to report to law enforcement states that the provider must tell law enforcement both the identity of the patient as well as the identity of the potential victim of the threat.
She adds that R.C. 2305.51 was enacted to supersede a 1994 state Supreme Court decision. The case involved a man whose medication was discontinued. He shot and killed his parents and seriously injured his sister. The case addressed the liability of mental health providers for harm to others, not a patient’s self-harm, Stewart maintains. She argues there is no reason to believe the legislature intended to address self-harm and suicide in a law responding to a case that didn’t involve that situation. Had the legislature wanted to extend the liability immunity to cases of patient self-harm, it could have made that explicitly clear, Stewart contends.
Regarding Justin’s behavior before his suicide, Stewart maintains that the jail’s policy required daily interaction with those in administrative segregation, but Justin was visited only once in the last two weeks of his life. These circumstances would be explored in the lawsuit in court, she states. Allowing this case to move forward could help to ensure that mental health providers give skilled and diligent care to those most vulnerable in society, Stewart concludes.
Groups Assert Statute Gives No Immunity for Suicides
An amicus curiae brief supporting Stewart’s position was submitted jointly by the Cincinnati Black United Front, Ohio Justice and Policy Center, and Rights Behind Bars. The groups maintain that the prevalence of suicide in Ohio jails demonstrates a lack of adequate mental health services in the facilities. Ensuring immunity for mental health providers in suicide cases would only lead to more deaths, they contend.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Solutions Community Counseling and Recovery Centers Inc. et al.: Robert Hojnoski, 513.721.1311
Representing Bonita Stewart: Konrad Kircher, 513.932.2115
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.
Was 65-Year-Prison Sentence for Nurse’s Aide Who Stole from Elderly Justified?
State of Ohio v. Susan Gwynne, Case No. 2021-1033
Fifth District Court of Appeals (Delaware County)
ISSUES:
- Can a trial court sentence a defendant to consecutive prison terms when the sentence isn’t clearly and convincingly supported by the record?
- Does a prison sentence that an appellate court finds “shocks the conscience” violate the prohibition against cruel and unusual punishment?
BACKGROUND:
This is the second time the Supreme Court of Ohio will consider the 65-year prison sentence for Susan Gwynne. Gwynne was 55 years old when she pleaded guilty to 31 felony counts regarding the theft of jewelry and other valuables from elderly nursing-home and assisted-living patients.
Between 2008 and 2016, Gwynne stole items from 46 residents in Delaware and Franklin counties while working as a nurse’s aide or pretending to be a nurse’s aide. In 2016, she was charged with 86 felony counts and several misdemeanors. She agreed to plead guilty to 31 felonies and 15 misdemeanors in Delaware County Common Pleas Court. The Delaware County Prosecutor’s Office recommended a 42-year prison term.
The trial judge imposed consecutive three-year sentences for each of her second-degree burglary charges and one-year sentences for the remaining theft counts, for a total of 65 years in prison. Gwynne appealed the sentence, arguing the trial court failed to properly follow sentencing guidelines in state law and that her “life sentence” constituted cruel and unusual punishment, which violates the Eighth Amendment to the U.S. Constitution.
In 2017, the Fifth District Court of Appeals ruled the trial court was authorized to impose consecutive sentences, but found that 65 years for non-violent theft offenses by a first-time felon “shocked the conscience.” The Fifth District reduced Gwynne’s prison sentence to 15 years. The appellate court did not consider her Eighth Amendment argument.
The prosecutor appealed the Fifth District’s decision to the Supreme Court, which reversed the appellate court’s decision in 2019. The Supreme Court ruled the appeals court failed to use the correct law to analyze Gwynne’s sentence.
When the case was remanded to the Fifth District, the appellate court again found the trial court properly followed the guidelines when imposing the consecutive sentences. The appellate court stated it still considered the sentence to be excessive, but that it wasn’t empowered to reduce Gwynne’s prison time. It affirmed the 65-year term.
Gwynne appealed the decision to the Supreme Court, which agreed to hear the case.
Lengthy Sentence Unnecessary, Offender Argues
Ohio’s criminal sentencing laws favor the imposition of concurrent sentences for multiple crimes, Gwynne explains, but a trial court can impose consecutive sentences under R.C. 2929.14(C) after making specific findings. Those findings include determining that the consecutive sentences are “necessary to protect the public from future crime or to punish the offender,” and that the sentence is not “disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public.”
If the trial court imposes consecutive sentences, then R.C. 2953.08(G)(2) allows a reviewing court to modify or vacate the sentence when the court “clearly and convincingly finds that the record does not support the trial court’s findings,” Gwynne notes. A reasonable person assessing her situation wouldn’t find her 65-year sentence is justified, Gwynne argues. She notes there were no weapons involved in her crimes; no one was physically harmed; the total restitution, which she agreed to pay, was less than $10,000; and she has been classified as a low-to-moderate risk of reoffending.
Nothing in the record supports the trial court’s sentence, she argues.
Sentence Shocks the Conscience, Inmate Asserts
Sentences for non-death penalty offenses are supposed to proportionately fit the crime, Gwynne notes. The U.S. Supreme Court hasn’t set specific guidelines for sentences that violate the Eighth Amendment, she notes, but has ruled that extreme sentences that are “grossly disproportionate” to the crime are unconstitutional. She cites the Supreme Court of Ohio’s 1964 McDougle v. Maxwell decision, which stated that a sentence “so greatly disproportionate to the offense as to shock the sense of justice of the community” violates the Eighth Amendment.
Gwynne argues that her 65-year sentence isn’t remotely proportionate to sentences imposed on similar Ohio offenders convicted of multiple non-violent theft and burglary charges. Because the sentence is contrary to law, the Supreme Court should modify her sentence, she concludes.
Sentence Appropriate, Prosecutor Counters
The Delaware County prosecutor explains the standard isn’t that the trial court findings must be supported by clear and convincing evidence, but rather that the burden is on the appeals court to find the sentence isn’t clearly and convincingly supported by the record. The Fifth District has twice ruled that the trial court took all the necessary steps to make the findings that consecutive sentences are appropriate, the office notes. Gwynne preyed upon the most vulnerable members of society, the prosecutor argues, stealing from elderly victims who were dependent on her for care. She stole more than 3,000 items over the course of 10 years.
The office notes that 17 of Gwynne’s convictions were for burglary, a second-degree felony, which is treated more harshly than theft because of the harm caused by the destruction of an individual’s feeling of safety and security in their residences.
Gwynne’s sentence also isn’t cruel and unusual punishment, the prosecutor argues. The assessment of whether a sentence is disproportionate applies to a single sentence, and not to the total amount of consecutive sentences, the office argues. Each of Gwynne’s sentences for burglary were far below the eight-year maximum sentences she could have received for each count, the prosecutor notes. When a sentence is below the maximum allowed, it doesn’t shock the conscience and cannot be considered an Eighth Amendment violation, the prosecutor concludes.
Friend-of-Court Briefs Submitted
An amicus curiae brief supporting Gwynne’s position was submitted by the Rion, Rion & Rion, a Dayton law firm that specializes in criminal defense. The Ohio Attorney General’s Office filed an amicus brief supporting the prosecutor’s office. The Supreme Court also granted the attorney general’s request to share the oral argument time allotted to the prosecutor.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Susan Gwynne from the Ohio Public Defender’s Office: Craig Jaquith, 614.644.1568
Representing the State of Ohio from the Delaware County Prosecutor’s Office: Mark Sleeper, 740.833.2690
Representing the Ohio Attorney General’s Office: Benjamin Flowers, 614.466.8980