Wednesday, July 13, 2022
State of Ohio v. Kristen Ramunas, Case No. 2021-1380
Fifth District Court of Appeals (Delaware County)
State of Ohio v. Tytus Bailey, Case No. 2021-1432
First District Court of Appeals (Hamilton County)
State of Ohio v. Michael P. Ashcraft, Case No. 2021-1491
Fifth District Court of Appeals (Knox County)
In re Adoption of H.P., Case No. 2022-0159
Third District Court of Appeals (Van Wert County)
Must Burglary and Theft Crimes at Assisted Living Facility Merge for Sentencing?
State of Ohio v. Kristen Ramunas, Case No. 2021-1380
Fifth District Court of Appeals (Delaware County)
ISSUE: If someone trespasses in an occupied structure with the purpose of committing a theft, must the burglary offense and the theft offense be merged for sentencing?
BACKGROUND:
Kristen Ramunas was employed by an assisted living facility in Powell in late 2019 and early 2020. Ramunas pled guilty in October 2020 to 10 counts of burglary, theft, and identity fraud for stealing jewelry, credit cards, and personal items from the rooms of six elderly residents.
At the sentencinghearing , the Delaware County Common Pleas Court considered whether the burglary offenses that involved two victims merged with the related theft offenses, also involving those two victims. The court determined each burglary and theft didn’t merge into one offense for sentencing because the burglary was committed separately from the theft and the crimes caused separate harm.
The court sentenced Ramunas to a total prison sentence of 4.5 years. The sentences for the burglary and theft offenses were imposed concurrently.
Ramunas appealed , arguing the burglary and theft convictions should have merged before her sentencing. The Fifth District Court of Appeals agreed, overturning the trial court on the issue. The appeals court noted that burglary involves trespassing with the intent to commit a crime – in this case, theft – and Ramunas’ purpose when entering the residents’ rooms was to steal. Because the motivation for entering the room and stealing the items was the same, the actions were one continuous course of conduct and considered “allied offenses of similar import” under the law, the Fifth District concluded. Allied offenses must be merged for sentencing.
The Fifth District determined, though, that its decision conflicts with one from the Fourth District Court of Appeals. The Supreme Court of Ohio agreed to review the conflict.
How Offenses Are Considered for Sentencing
The requirement in Ohio law to merge allied offenses is to prevent multiple punishments for the same crime – which would violate the protections against double jeopardy in the U.S. and Ohio constitutions.
In State v. Ruff (2015), the Supreme Court of Ohio examined R.C. 2941.25, which explains that when a defendant’s conduct is viewed as two or more “allied offenses of similar import,” the defendant can be charged for all of the alleged crimes but can be convicted of only one. The Court stated that courts must ask three questions to determine whether or not to merge offenses for sentencing:
- Were the offenses dissimilar in import or significance?
- Were they committed separately?
- Were they committed with separate animus or motivation?
If any are answered yes, courts can convict the defendant for separate offenses, Ruff stated.
State Maintains Harm From Burglary and Theft Were Different
The Delaware County Prosecutor’s Office argues that burglary and theft cause separate harms. The Fourth District explained in the case in conflict with this one that the victim described feeling an invasion of privacy – the harm caused by the burglary. The victim also pointed out the economic damage of having to replace stolen items – the harm from the theft. The Delaware County prosecutor contends that the harm from the burglary and from the theft are separate, and the Fourth District correctly ruled the offenses shouldn’t be merged for sentencing.
The state Supreme Court has ruled previously that the legal analysis on whether to merge offenses depends on the facts of each case. However, the prosecutor counters that burglaries and thefts can never merge because they always involve separate harms of different severities. The prosecutor asks the Court for a bright-line rule that burglary and theft can never be “allied offenses of similar import.”
The prosecutor also argues that burglary and theft are separate conduct. A burglary is complete once the offender has intruded on a prohibited place with the intent to commit certain crimes, the prosecutor maintains. Taking someone’s items – the theft – is separate conduct, the prosecutor contends. The prosecutor asserts that appeals courts in the Sixth, Eighth, and Ninth districts agree.
Woman Argues Offenses Were Part of Same Conduct, Can Merge
Ramunas responds that the purpose of R.C. 2941.25 is to prevent “multiple findings of guilt and corresponding punishments heaped on a defendant for ‘closely related offenses arising from the same occurrence,’” quoting a 1976 state Supreme Court decision. The legal analysis must focus on the defendant’s conduct and the facts of the case, as Ruff made clear, she maintains. The Court has already declined to adopt a bright-line rule in allied offense cases, she states.
Ramunas’ brief contends that if one offense “is incident” to another, the harm from the offenses can’t be separate, and the offenses are allied and must be merged. Looking at the facts, the brief maintains, Ramunas’ burglary continued as long as she remained on the premises because the trespass of the premises wasn’t complete until she left. The purpose of the burglary was to commit the theft, so the crimes were incident to each other, the brief argues. It concludes these facts show the harms caused weren’t separate.
Ramunas also maintains that the sole purpose of entering the rooms was to steal – making the crimes part of a singular and continuous course of conduct. She argues that other appellate court decisions in the Fourth, Fifth, and Eleventh districts have arrived at the same conclusion.
– 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 Delaware County Prosecutor’s Office: Mark Sleeper, 740.833.2690
Representing Kristen Ramunas: April Campbell, 614.356.8515
Should Kidnapping and Rape Convictions Merge When Sentencing?
State of Ohio v. Tytus Bailey, Case No. 2021-1432
First District Court of Appeals (Hamilton County)
ISSUES:
- Must an appeals court defer to a trial court’s discretion not to merge two offenses for sentencing purposes?
- If an offender appeals a trial court’s failure to merge two offenses, without objecting in trial court, can an appeals court change the trial court’s ruling without finding a “manifest injustice?”
BACKGROUND:
In September 2019, Tytus Bailey approached a woman and two men near a homeless encampment in Cincinnati. Bailey punched both men until they were unconscious and attempted to rob the woman, who had no items of value. He then threatened to beat her and forced her to leave the area. The two walked about a city block to a deserted parking garage. At the garage, Bailey forced the woman to perform oral sex on him, and then raped her. He threatened her life if she reported the attack. Security video from the garage showed Bailey leaving the garage shortly after the rape and the victim leaving on her own about 20 minutes later.
The next morning, the victim sought out a parking garage security guard and reported the sexual assault. The guard contacted police. With the use of the security video, police were able to locate Bailey the same day. The woman underwent a sexual assault exam. Bailey, who denied any involvement, was arrested, and a DNA sample was obtained from him. His DNA matched samples taken from the victim’s sexual assault exam.
Bailey was charged and convicted of abduction, robbery, kidnapping, and two counts of rape. The trial court merged the abduction and kidnapping charges for sentencing purposes, and imposed the maximum sentence for the four counts. He received a sentence of 41 to 46.5 years in prison.
Baily appealed his conviction and sentence to the First District Court of Appeals. Among his arguments was that the trial court should have merged the rape and kidnapping convictions as allied offenses. The First District affirmed his conviction, but agreed with Bailey on the merger issue. The appellate court ordered the trial court to resentence Bailey.
The Hamilton County Prosecutor’s Office appealed the decision to the Supreme Court of Ohio, which agreed to hear the case.
Separate Charges Justified, Prosecutor Asserts
The prosecutor disagrees with the First District’s opinion that the kidnapping and rape charges should be merged because the victim suffered no separate harm from the kidnapping than that of the rape. The office argues that a trial court can impose separate sentences for the offenses if any of three circumstances exist. If each offense caused separate harm, then two sentences can be imposed. If the offenses were committed separately, or if the offenses were committed with separate motivation, they can also be sentenced separately, the prosecutor notes.
The trial judge correctly determined that the victim suffered separate harm from the crimes and Bailey acted with separate motivations, the prosecutor maintains. Bailey didn’t immediately assault the woman after robbing her, but made her walk to a deserted garage where she would be separated from her companions and secured in an area out of public view. At one point, the victim tried to run away, but Bailey stopped her, the prosecutor notes. The act of kidnapping was independent of the rape, and both sentences were properly imposed, the office concludes.
Appeals Court’s Review Improper, Prosecutor Maintains
The First District improperly reviewed the trial court’s sentencing decision, the prosecutor maintains. Neither Bailey nor his attorney objected to the trial court’s imposition of separate kidnapping and rape sentences. The issue was first raised in the appeal to the First District. Under court rules, the appeals court cannot consider an error that wasn’t raised in the lower court unless it is “plain error.”
For an appeals court to reverse a trial court ruling for plain error, the error must be an obvious defect in the trial proceedings, and it must affect the “substantial rights” of the accused, the prosecutor explains. The prosecutor notes that in prior rulings, the Supreme Court has stated that plain error rulings should be limited to “exceptional circumstances,” and “only to prevent a manifest miscarriage of justice.”
The appeals court simply stated it “agreed” with Bailey’s position, but didn’t demonstrate that there was an obvious error by the trial court, the office notes. The trial court’s order wasn’t arbitrary or gratuitous, the prosecutor maintains, and nothing about the trial court’s judgment was defective or obviously wrong. Because the First District didn’t meet the standards to declare the separate sentences were plain error, Bailey’s sentence should stand, the prosecutor maintains.
Sentences Should Merge, Offender Asserts
Ohio enacted a merger law, R.C. 2941.25, as a protection against double jeopardy, Bailey explains. The U.S. and Ohio constitutions prohibit double jeopardy by protecting against multiple punishments for the same offense. Based on the statutes the prosecutor used to charge him, his rape and kidnapping charges should be merged, Bailey asserts.
Bailey was charged with kidnapping under R.C. 2905.01(A)(2), which states that “no person, by force, threat, or deception … shall remove another from the place where the other person is found or restrain the liberty of the other person … to facilitate the commission of any felony or flight thereafter.” Unlike abduction, Bailey notes, kidnapping requires facilitating a felony or assisting with flight from the crime scene. The felony facilitated by the kidnapping was rape, he argues, and that makes his conduct part of a singular course of conduct with the same motivation, he concludes.
The First District properly concluded the harm suffered by the victim was from the entirety of the attack, not the separate harms from kidnapping and rape. Because the singular purpose of his acts, the merger law requires the trial court to impose one sentence rather than separate sentences for kidnapping and rape, Bailey concludes.
Regarding the prosecutor’s argument that the First District didn’t meet the plain error standard to reverse the trial court, Bailey notes the Ohio Public Defender’s Office submitted an amicus curiae brief arguing that the merging of sentences should always be reviewed by appellate courts on appeal, regardless of whether the offender objected to the sentence at the trial court level.
Friend-of-Court Brief Backs Appeals Court Decision
In its amicus curiae brief, the public defender notes the merger law makes it mandatory, not discretionary, for trial courts to merge allied offenses. Appeals courts apply plain error review when an offender’s “substantial rights” are impacted, the public defender explains. The trial court’s failure to follow the merger law affected Bailey’s substantial rights, and the appeals court can review the claim even if Baily didn’t raise it at the trial level, the office maintains.
The public defender notes that the facts of what happened in this case aren’t disputed, so the application of the law is what was contested at the appeals level. When that occurs, the appeals court conducts its own review of how the law is applied in the case and doesn’t have to defer to the trial court’s assessment, the office notes. The First District appropriately reviewed the merger law and determined that the offenses merged, the public defender 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 Hamilton County Prosecutor’s Office: Phillip Cummings, 513.946.3092
Representing Tytus Bailey: John Hill, 513.241.7460
Can Trial Court Impose Two Penalties for One Sex-Offender Registration Violation?
State of Ohio v. Michael P. Ashcraft, Case No. 2021-1491
Fifth District Court of Appeals (Knox County)
ISSUE: Was defendant who was convicted of violating sex-offender registration duty sentenced to prison term not authorized by Ohio law?
BACKGROUND:
Michael Ashcraft was convicted in 2013 of unlawful sexual conduct with a minor, a third-degree felony. He was classified as a sex offender with a duty to register with law enforcement. In 2018, he was convicted for violating his sex-offender requirements and sentenced to a 14-month prison term.
Two years later, the Knox County grand jury indicted Ashcraft for allegedly failing to provide a change in address, a violation of his sex-offender registration mandates. He pled guilty in December 2020. The Knox County Common Pleas Court sentenced him to three years and nine months in prison.
Ashcraft appealed, arguing the sentence for his offense violated the law. The Fifth District Court of Appeals disagreed. Ashcraft appealed to the Supreme Court of Ohio, which accepted the case.
Trial Courts Can’t Impose Both Penalties, Offender Argues
Ashcraft’s brief states that because he had a prior conviction, section (A)(1)(b) of R.C. 2950.99 made his 2020 offense a third-degree felony. Another statute, R.C. 2929.14(A)(3), lists the sentences for third-degree felonies. Under that law, Ashcraft would receive a prison term of nine, 12, 18, 24, 30, or 36 months, the brief notes. The trial court imposed a nine-month sentence.
The trial court also sentenced Ashcraft to three years based on a different section, (A)(2)(b), of R.C. 2950.99. That section states, “In addition to any penalty or sanction imposed under division (A)(1)(b) … or any other provision of law for a violation” of certain other listed statutes, and if a repeat offender, the court must impose a definite prison term of no less than three years.
Ashcraft argues that his 45-month sentence was beyond what was allowed by law because trial courts cannot impose both the three-year sentence and the nine-month penalty. He maintains that the General Assembly would have made it clear in R.C. 2950.99 if it had wanted the three-year penalty to be imposed in addition to the penalties in R.C. 2929.14(A)(3).
He also contends that no appellate court besides the Fifth District has described the three-year prison term as an add-on to the prison term for third-degree felonies in the other statute.
Law Permits Both Sentences, State Maintains
The Knox County Prosecutor’s Office argues that the language “in addition to any penalty or sanction …” dictates that the three-year term be imposed on top of the appropriate sentence for third-degree felonies in R.C. 2929.14(A)(3) – which is what was done in Ashcroft’s case.
The prosecutor contends that in the other appellate cases Ashcraft cited, either the facts don’t fit with the facts in his case or the legal issue is distinct. Ashcraft’s case appears to be the only one from Ohio’s appeals courts that imposed the two sentences together, the prosecutor maintains, and the sentence was appropriate.
State Prosecutors’ Group Supports Knox County Position
The Ohio Prosecuting Attorneys Association filed an amicus curiae brief supporting Knox County prosecutor.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Michael P. Ashcraft: Todd Barstow, 614.338.1800
Representing the State of Ohio from the Knox County Prosecutor’s Office: Charles McConville, 740.393.6720
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.
At What Point Does Biological Father Lose Right to Contest Adoption?
In re Adoption of H.P., Case No. 2022-0159
Third District Court of Appeals (Van Wert County)
ISSUE: For the purposes of consenting to an adoption, is a biological father’s status determined at the time a petition for adoption is filed or at the time of the adoption consent hearing?
BACKGROUND:
A 17-year-old woman identified in court records as “Josephine D.” informed her then 18-year-old boyfriend “Kaidin W.” that she was pregnant. Her expected due date was Sept. 5, 2020. Josephine expressed her interest in placing the child up for adoption, and Kaidin disagreed. The two ended their relationship, but Kaidin contacted Josephine and her family regularly for updates on the progress of her pregnancy.
Prior to giving birth, Josephine selected a couple identified as “Jeffrey and Nicole P.” as the prospective adoptive parents to her child. The child was born on Aug. 31, 2020, approximately a week before her due date. The next day, Josephine filed an application for placement with the couple in the Van Wert County Probate Court. Four days after the child’s birth, Jeffrey and Nicole P. filed a petition with the Van Wert County Probate Court to adopt the child.
The probate court granted placement of the child with the couple on the same day they filed the adoption petition.
Father Objects to Adoption
Sometime during Josephine’s pregnancy, Kaidin hired a lawyer, who advised him that he could register with the Ohio Putative Father Registry to establish his parental rights. The registry is a computer database maintained by the Ohio Department of Job and Family Services where a man who believes he may have fathered a child can sign up to be notified if the child is placed for adoption. Kaidin testified that his attorney advised him to wait until after the child was born to register. Kaidin said he learned on Sept. 16 that his son was born in August. He filed with the putative father registry that day.
The next day, Kaidin filed a case in Logan County Juvenile Court, where he sought to be declared the child’s biological father and to establish paternity through genetic testing. He also filed an objection in Van Wert County Probate Court to the adoption petition. He requested that he be added as a party to the adoption case and be allowed to assert his right to object to the adoption.
Court Hearings Establish Father’s Status
In January 2021, the Logan County court ruled that Kaidin was the child’s biological father, and the adopting couple didn’t contest that finding. The probate court conducted a hearing a week later to consider whether Kaidin had the right to contest the adoption.
The probate court ruled that under R.C. 3107.07(B), a biological father who isn’t married to the biological mother must register with the putative father registry no later than 15 days after the child’s birth if that father wants to retain his rights to contest an adoption. The law also allows the father to object if he established paternity prior to the filing of the adoption proceedings. Because Kaidin didn’t register until 17 days after the child was born and didn’t establish paternity in Logan County until after the adoption petition was filed in Van Wert County, his consent to the adoption wasn’t needed, the probate court ruled.
Kaidin appealed to the Third District Court of Appeals. The Third District agreed with the trial court that Kaidin lost his right as a putative father to object to the adoption. However, the Third District ruled that Kaidin established himself as the child’s “legal father” before the adoption hearing. The Third District reversed the trial court’s decision and remanded the case to determine whether Kaidin retained or lost his right to consent as the child’s legal father.
Josephine and the adopting couple appealed to the Supreme Court of Ohio, which agreed to hear the case.
Father’s Consent Not Required, Adopting Couple Argues
The adopting couple and the birth mother are separate parties in the appeal, but make similar arguments in their briefs. The couple argues the Third District’s decision is out of step with Supreme Court of Ohio precedent and decisions by courts in states across the nation that have adopted putative father registries as a means for facilitating adoptions. The couple asserts the Third District’s decision allows a biological father to conceal his attempt to assert his parental rights until the child is born and avoid providing any support for the child while the mother is pregnant. Those acts contradict the entire purpose of a putative father registry, which gives prospective adopting parents notice that the biological father may assert his parental rights, the couple argues.
The couple asserts that the biological connection doesn’t automatically give Kaidin parental rights, and that he is required to follow R.C. 3107.07(B) in order to contest an adoption. The couple notes that Kaidin testified he was aware of the child’s expected birth date, was advised of his need to register, and had ample time to register, but didn’t register. The couple maintains that Kaidin provided no supporting evidence that his attorney told him to wait until after the child was born to register, and that his delay demonstrates a lack of preparedness to be a suitable parent.
The couple argues the Third District ignored several provisions of the consent law, including the requirement that Kaidin needed to establish paternity prior to the filing of the adoption petition in order to use that option for retaining his right to object to the adoption. The status of the father and his rights to object to the adoption are triggered by the date the adoption petition is filed, the couple asserts. Kaidin didn’t complete the steps by the date the petition was filed to retain his right to object to the adoption, the couple concludes.
Paternity Established in Time to Object, Father Asserts
A father’s status is established at the time of the consent hearing, not the filing of the adoption petition, Kaidin maintains. The Third District correctly ruled that Ohio law sets two different pathways for those who think they may be the father, and those who establish that they are the biological father, Kaiden argues. He maintains that the trial court may have correctly ruled that under the law he was considered a putative father on the day the adoption petition was filed. On that day, he hadn’t taken the steps required of a putative father to object to the adoption, he notes.
However, Kaidin states that he did establish he was the legal father of the child by proving he was the biological father. The probate court is obligated to consider his right as the biological father to the adoption under R.C. 3107.07(A), he argues. If he meets the requirements of that section of the law, he retains the right to object to the adoption, he explains. He can then pursue his parental rights, including visitation with the child or custody, Kaidin asserts.
Kaidin further argues the Third District’s decision is consistent with most rulings in Ohio and other states. A father asserting his rights as the biological father has been rejected in cases where the man neither filed with the putative registry nor tried to established paternity until after the adoption consent hearing, he explains. The key distinction in his case, Kaidin argues, is that he established paternity in advance of the consent hearing and gave the probate court full notice prior to the consent hearing that he had established paternity. He argues this process isn’t as disruptive as the adopting couple contends, and that is why he retains his rights to object.
Friend-of-the-Court Briefs Submitted
Amicus curiae briefs supporting the adopting couple and Josephine’s position were submitted by Ohio Adoption Law Roundtable and the Academy of Adoption and Assisted Reproduction Attorneys.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Josephine D.: John Huffman, 419.227.3423
Representing Jeffrey and Nicole P.: Jerry Johnson, 419.222.1040
Representing Kaidin W.: Elizabeth Mosser, 937.644.3849