Tuesday, April 4, 2023
State of Ohio v. Justin Tancak, Case No. 2022-0515
Ninth District Court of Appeals (Lorain County)
The Board of Commissioners of the Mill Creek Metropolitan Park District v. Diane M. Less et al., Case No. 2022-0628
Seventh District Court of Appeals (Mahoning County)
In re application for correction of birth record of Hailey E. Adelaide, Case No. 2022-0934
Second District Court of Appeals (Clark County)
Does Vacating Sentence in Multi-Count Conviction Invalidate Pleas to All Charges?
State of Ohio v. Justin Tancak, Case No. 2022-0515
Ninth District Court of Appeals (Lorain County)
ISSUE: When a criminal sentence is vacated for one count that is part of a guilty plea to multiple counts, is the entire plea to all counts invalid?
BACKGROUND:
In 2016, Justin Tancak wrecked his motorcycle while trying to evade police. His girlfriend was a passenger on the motorcycle and was killed in the crash. Tancak was indicted on eight counts, including two counts of aggravated vehicular homicide; three counts of operating a vehicle under the influence; failure to comply with an order or signal from a police officer; obstructing official business; and willful or wanton disregard of safety on highways.
He initially pleaded not guilty to the charges and sought to suppress some of the evidence to be used in the case. When the suppression request was denied, Tancak pleaded guilty to all charges. Under R.C. 2921.331(B), if a defendant is sentenced to prison for failure to comply, then that sentence must run consecutively to all other prison sentences.
At Tancak’s sentencing hearing , the trial judge informed Tancak of the maximum sentences for each count. The trial court failed to inform him that the failure to comply sentence would run consecutively to any other prison sentence he received for the other charges. In 2018, the trial court then merged some of the charges for sentencing purposes, and Tancak was sentenced to seven years in prison for aggravated vehicular homicide, and two years for failure to comply. He was also sentenced to 180 days in jail for the drunken driving charges, which ran concurrently to his prison sentence.
Tancak didn’t initially appeal his sentence, arguing in his current appeal that the trial court failed to inform him that he could appeal after pleading guilty. In 2021, the Ninth District Court of Appeals accepted Tancak’s delayed appeal. The Ninth District ruled the trial judge failed to follow the criminal sentencing rules by not informing Tancak that the failure to comply sentence would run consecutively to the other prison sentence. The Ninth District vacated the failure to comply sentence. The court rejected Tancak’s request to vacate his entire plea to all charges.
Tancak appealed to the Supreme Court of Ohio, which agreed to hear the case.
Mistake Infected Entire Plea, Offender Argues
Tancak notes that a plea is invalid if it isn’t entered in a knowing, intelligent, and voluntary manner. Prior to accepting a plea, the trial judge addresses the defendant to personally determine if the defendant understands the charges, the maximum penalty involved, and the consequences of pleading guilty, he explains. When a trial judge fails to fully explain the consequences, then the entire plea is invalid, Tancak maintains.
Tancak argues the Ninth District didn’t vacate his entire plea because it relied on precedent that shouldn’t have been applied to his case. The appeals court found a 2011 decision by the First District Court of Appeals dealt with a seemingly similar situation to Tancak’s. In State v. Maggard, the defendant wasn’t told that one of his counts had a mandatory prison sentence. Tancak argues there is a significant distinction because the issue wasn’t that failure to comply carried a mandatory sentence, but rather a failure to comply conviction carries a mandatory sentence that must be imposed consecutively to any other sentence. That change impacts the length of time he would be in prison, a different and more serious failure than in Maggard, he asserts.
The other failure, Tancak maintains, was the appeals court’s reliance on the Supreme Court’s 2006 State v. Saxon decision. In that case, the defendant appealed one of his two sentences. The appeals court reviewed both sentences, even though only one was challenged, and ruled that the challenged sentence was invalid. The Court concluded the defendant’s plea agreement was proper and that vacating one sentence had no effect on the validity of his plea. The Court upheld the plea and his second uncontested sentence.
Tancak argues that Saxon is inapplicable to his case. Unlike the Saxon case, he argues he wasn’t told that his sentences would run consecutively when he pleaded guilty. He isn’t challenging the validity of the sentences, but rather the plea itself because of the way the sentences were imposed, he maintains. Now that he knows the potential maximum time, Tancak argues he has a right to seek a new trial or enter into a plea deal that doesn’t include consecutive sentences.
Plea to One Charge Doesn’t Impact Others, Prosecutor Asserts
The Lorain County Prosecutor’s Office explains that pleas are administered under Rule 11 of the Ohio Rules of Criminal Procedure and that the rule requires the trial court to explain the maximum penalty for each charge. While the prosecutor concedes the trial court improperly failed to advise Tancak of the consecutive nature of the two prison sentences, the rule doesn’t state that failure to state the terms of a plea to one count infects the entirety of the guilty plea.
The office explains in Ohio a criminal case proceeds from indictment, to verdict, to sentencing, to appeal on a single-offense, single-count basis such that an error on one count doesn’t result in the automatic reversal of any other count. Tancak was informed of the maximum for each count, the office explains, and while it is presumed under Ohio law that sentences will be served concurrently, it isn’t a certainty. Tancak was better off with consecutive sentences on two charges rather than serving the maximum sentence for each charge he faced, which could have been imposed as consecutive sentences, the prosecutor maintains.
Tancak’s premise is that his guilty plea was part of a larger agreement with the state, and that the agreement was violated when he received a longer sentence than contemplated, the prosecutor maintains. But Tancak never negotiated a plea, the office asserts, and the record in the case provides no evidence of a negotiated agreement with the prosecutor. At the plea hearing, the prosecutor told the trial judge there were “no agreements” with regard to sentencing, the office notes.
The Ninth District was correct to follow Saxon and Maggard when rejecting Tancak’s request to vacate his entire plea, the prosecutor maintains. Both decisions point to the fact that a sentence in a multiple-count conviction isn’t a bundle of sentences, but rather a series of singular sentences, the office notes. While Tancak attempts to focus on the plea aspect of his appeal, the intent of his challenge is to revise the sentence, and this is no different than the issues in Saxon, the prosecutor maintains. Applying the Supreme Court’s decision in Saxon to Tancak is appropriate, and his plea to and sentence for the other charges should stand, the prosecutor concludes.
Attorney General to Share Argument Time
The Ohio Attorney General’s Office submitted an amicus curiae brief supporting the prosecutor’s office, and received permission to share oral argument time with the prosecutor.
Friend-of-the Court Briefs Submitted
An amicus brief supporting Tancak was submitted by Ohio Association of Criminal Defense Lawyers.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Justin Tancak: Giovanna Bremke, gbremke@bremkelaw.com
Representing the State of Ohio from the Lorain County Prosecutor’s Office: Lindsay Poprocki, lindsay.poprocki@lcprosecutor.org
Representing the Ohio Attorney General’s Office: Benjamin Flowers, benjamin.flowers@ohioago.gov
Did Appeals Court Curtail Ability of Park Districts to Acquire Land for Bike Paths?
The Board of Commissioners of the Mill Creek Metropolitan Park District v. Diane M. Less et al., Case No. 2022-0628
Seventh District Court of Appeals (Mahoning County)
ISSUES:
- Did the appellate court decision substitute for a necessity hearing the trial court was required to hold under state eminent domain laws?
- Did the appellate court restrict the types of property that park boards can acquire through R.C. 1545.11?
BACKGROUND:
The Mill Creek Metropolitan Park District Board of Commissioners passed a resolution in 1993 to construct a bicycle path along 12 miles of former railroad tracks in Mahoning County. The park district states that the project is part of the Great Ohio Lake-to-River Greenway, which is a 100-mile trail from Lake Erie to the Ohio River built on what were once railroads. Phases I and II involved 10.6 miles of the project that were constructed in 2000 and 2001.
In 2018, a park district resolution authorized moving forward with Phase III, which is 6.4 miles travelling across private property where a railroad once was. The park district states it could purchase land from those who now own the property along the Phase III route or, if an agreement couldn’t be reached with a landowner, could use eminent domain to acquire the property.
The park district filed petitions in court against property owners Diane Less, Green Valley Wood Products, and others in February and March 2019. Less has noted that the bike path would cut off 6 acres on one side of her farm, which has been in her family for 100 years. Green Valley has land nearby. Less and Green Valley asked the Mahoning County Common Pleas Court for summary judgment in their favor. The court denied the motions . It found that the park district’s petitions to take the property for a bike path was authorized by R.C. 1545.11 and that the district complied with eminent domain processes in state law.
Less appealed to the Seventh District Court of Appeals. The Seventh District ruled the park district resolutions didn’t provide a purpose allowed by statute for appropriating the property. The appeals court concluded the trial court was wrong to deny the summary judgment requests and ordered the lower court to grant summary judgment in favor of Less and Green Valley.
The park district appealed to the Supreme Court of Ohio, which accepted the case.
Trial Court Skipped Mandatory Eminent Domain Hearing, Park District Maintains
The park district maintains that the eminent domain laws require the trial court to hold a hearing when a property owner contests the right of the agency to take the property or the necessity to do so. Because these hearings were mandatory, the park district argues the Seventh District had to remand the cases to the trial court for hearings.
Also challenged by the property owner is the park district’s authority under R.C. 1545.11, which gives a board of park commissioners the power to “acquire lands either within or without the park district for conversion into forest reserves and for the conservation of the natural resources of the state, including streams, lakes, submerged lands, and swamplands, and to those ends may create parks, parkways, forest reservations, and other reservations and afforest, develop, improve, protect, and promote the use of the same in such manner as the board deems conducive to the general welfare.”
The park district maintains that the Seventh District incorrectly sided with Less because the resolutions didn’t contain the word “conservation” as the reason to acquire the property for the construction of the bike path. But the bike trail inherently involves conservation, the park district contends. It notes that biking, hiking, and skating along the path conserves natural resources by cutting greenhouse gas emissions, traffic congestion, and oil demand.
Taking Her Property Not Necessary or Allowed, Property Owner Asserts
Less argues the park district’s proposed bike path through her property would run parallel to an existing bike route on a nearby road, less than 8/10 of a mile from the proposed new path. There are alternative routes nearby, she maintains, making her property unnecessary for the park district to complete its stretch of the statewide Lake-to-River Greenway.
She contends that the park district’s claims that the bike trail will conserve natural resources, as required by R.C. 1545.11, are speculative. Taking property through eminent domain for the purpose of public transportation and recreational activities, such as a bike path, is not authorized by the statute, Less asserts.
Because the Seventh District found that the park district had no legal authority via R.C. 1545.11, it didn’t need to address the arguments related to hearings and necessity under the eminent domain procedures, Less states.
Additional Briefs Submitted on Each Side
The Ohio Parks and Recreation Associationfiled an amicus curiae brief supporting the Mill Creek Park District. The association asserts that the trial court needed to first hold the hearing in accordance with the eminent domain laws before addressing aspects of R.C. 1545.11. By not doing so, the trial court “left only speculation” and no opportunity for the parties to develop a record on the issues, the association brief maintains.
An amicus brief supporting Less was submitted jointly by the Ohio Farm Bureau Federation and Mahoning County Farm Bureau, which state that eminent domain projects disproportionately burden rural landowners. The bureaus oppose the use of eminent domain powers by park districts for recreational purposes, advocating instead for voluntary incentive-based efforts to create trails and greenways.
Other Parties Can’t Argue Case
Green Valley didn’t file a merit brief in the appeal, so it cannot participate in oral argument. The Mahoning County auditor and treasurer, who were initially named in the lawsuits, also will not argue before the Supreme Court because they didn’t submit briefs.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Diane M. Less: Carl James III, cjames@bdi-usa.com
Representing the Board of Commissioners of the Mill Creek Metropolitan Park District: James Roberts, troberts@rothblair.com
Can Transgender People Change Sex Listed on Birth Certificates?
In re application for correction of birth record of Hailey E. Adelaide, Case No. 2022-0934
Second District Court of Appeals (Clark County)
ISSUES:
- Does R.C. 3705.15 preclude probate courts from hearing a transgender person’s application to correct the sex listed on the person’s birth certificate?
- Should the statute be interpreted to avoid the constitutional violations found in a 2020 federal court decision on corrections to sex markers?
- Should state courts give persuasive weight to the federal court’s conclusion in that case?
BACKGROUND:
In fall 2021, Hailey Adelaide submitted separate applications in Clark County Probate Court to change her name and to correct her birth record. She asked to alter her name from the one recorded on her birth certificate to Hailey Adelaide. She also wanted to correct the sex designation listed on her birth certificate from male to female. The application to change her sex marker included affidavits from herself and her mental health provider and a letter from her therapist’s supervising psychologist.
The cases were combined for a hearing before the probate court. Adelaide testified that she was assigned as male at birth but began identifying as female as early as age 4. She maintained that her gender identity doesn’t match the sex listed on her birth certificate. The probate court approved her name change but delayed a decision on the sex marker request.
Adelaide provided an additional brief, which emphasized a 2020 federal court decision in Ohio, Ray v. McCloud. In 2016, the Ohio Department of Health instituted a policy based on R.C. 3705.15 to prohibit changes submitted by transgender individuals to sex markers on birth certificates. The federal court ruled the policy was an unconstitutional violation of the equal protection and due process rights of transgender people under the U.S. Constitution. The health department changed its policy and didn’t appeal the ruling.
In December 2021, the probate court denied Adelaide’s request to change the sex marker on her birth certificate. The court found the Ray decision didn’t address the authority of Ohio probate courts to approve sex marker corrections. And the applicable statute, R.C. 3705.15, didn’t allow probate courts to make a sex marker correction unless the sex was selected in error, the probate court concluded. The court determined that the recording of Adelaide’s birth correctly listed her as male based on her anatomy, so there was nothing to be corrected.
R.C. 3705.15 states that a person who “claims to have been born in this state, and whose registration of birth is not recorded, or has been lost or destroyed, or has not been properly and accurately recorded, may file an application for registration of birth or correction of the birth record in the probate court of the county of the person’s birth ….”
Appeals Court Says Law Is for Correcting Errors Made at Birth
Adelaide appealed to the Second District Court of Appeals, which upheld the probate court decision. The appellate court concluded that R.C. 3705.15 is a “correction statute” allowing probate courts, when provided with appropriate documentation, to correct errors made at the time the birth certificate was recorded. The language “does not mean that because something has changed after the original determination occurred that it then makes the original determination incorrect,” the opinion stated.
The Second District wrote that R.C. 3705.15 allows only corrections, not amendments, to birth certificates. Other statutes permit amendments, the court stated. For name changes, people receive approval to amend their name from the appropriate probate court under one law, then under a second law, present the court order to the state health department to exchange the original birth certificate for a new birth certificate, the court noted. There is also a statute for altering an adopted child’s birth certificate to issue a new birth certificate with the adopted name and information about the adoptive parents. These laws expressly allow amendments that reflect facts existing at the time of the request, not the time of the birth, the court noted. However, the court wrote, the state legislature hasn’t crafted R.C. 3705.15 to permit “changing the sex marker or any other required fact on a birth certificate.”
The Second District noted, as Adelaide acknowledged, that the federal court ruling in Ray isn’t binding on state courts. Even if it were given weight in a state court decision, Ray didn’t analyze the authority of Ohio probate courts or the constitutionality of R.C. 3705.15, the Second District maintained. Ray instead found unconstitutional the health department’s blanket policy against transgender people changing their sex marker, the Second District stated.
“The significance in the statute is not that R.C. 3705.15 does not explicitly prohibit correcting the sex marker for an individual, it is that the statute does not explicitly allow the probate court to modify or amend any required fact reflected on the birth certificate. Rather the probate court is only permitted to make corrections under R.C. 3705.15 if the sex marker, or any other required fact, ‘has not been properly and accurately recorded,’” the court wrote.
Woman Argues Law Doesn’t Restrict What Can Be Changed in Birth Record
Adelaide counters that the language of R.C. 3705.15 – allowing any person “whose registration of birth … has not been properly and accurately recorded” to submit an application to the court to correct the birth record – places no limitations on the items in a birth certificate that may be changed. The law doesn’t mention the word “sex” or set a method for determining sex for purposes of preparing the birth certificate, Adelaide notes.
She asserts that, according to the Second District, the traditional approach of determining a child’s sex by genital inspection is infallible and strictly binary. Modern science recognizes that many people don’t fall into clear-cut “male” and “female” categories, she notes. She also contends that a person’s sex consists of more than certain external genitals. Gender identity and neurological sex are key factors in one’s sex, she maintains.
Adelaide also argues that the appeals court assumes the General Assembly didn’t intend to allow transgender people to make corrections to sex markers. However, the language in the statute can’t be read as limiting which items on a birth certificate can be changed, she asserts, quoting the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County:
“[T]here [is no] such thing as a ‘canon of donut holes,’ in which Congress’s failure to speak directly to a specific case that falls within a more general statutory rule creates a tacit exception. Instead, when Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule.”
Adelaide also argues the Second District improperly sidestepped the constitutional violations found in Ray. The federal court ruled that the application of R.C. 3705.15 was unconstitutional, and the Second District cannot dismiss Ray without at least analyzing the constitutional issues, she maintains.
She also rejects the Second District’s distinction between “correction” and “amendment” by pointing to the dictionary, which defines “correction” as “amendment” or “amend.” She also notes that the statute addresses a birth record that “has not been properly and accurately recorded,” and one definition of “accuracy” is “conforming … to truth or to a standard.” The language in the statute doesn’t restrict what corrections can be made to only errors made at the time of birth, Adelaide concludes.
Amicus Groups Back Allowing Changes to Sex Markers
Three amicus curiae briefs supporting Adelaide’s positions were submitted to the Supreme Court. TransOhio and 20 other organizations from across the state joined together to file a brief. The Transgender Legal Defense and Education Fund, Black and Pink National, and National Queer Asian and Pacific Islander Alliance also submitted a joint brief, as did the cities of Cincinnati and Columbus.
The groups point to the many uses of birth certificates for verifying identity, such as when starting at a new job or school, obtaining a driver’s license, or applying for benefits. Transgender people who must present a birth certificate with the wrong sex marker are revealed as transgender in situations where they haven’t chosen to disclose that personal information, the groups note. They argue the government can’t force the disclosure of such information, which often exposes transgender people to hostility, discrimination, and physical danger.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Hailey E. Adelaide: Chad Eggspuehler, chad.eggspuehler@tuckerellis.com