Update: On May 15, 2019, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.

“Other than ruling in favor of the state, what rule are you asking us to write today? What do you want us to say? That the advisement is always sufficient, that the advisement is sufficient as long as there is not affirmative misadvice?”

Justice DeWine, to the prosecutor

“If the judge would have said, Mr. Romero you will be deported because of this guilty plea, would we be here?”

Chief Justice O’Connor, to defense counsel

On January 29, 2019, the Supreme Court of Ohio heard oral argument in State of Ohio v. Carlos Romero, 2017-0915. The specific issue in the case is whether the trial court abused its discretion in refusing to allow the defendant to withdraw his guilty plea because of the failure of his lawyer to advise him of the immigration consequences of that plea.

Case Background

Carlos Romero married a United States citizen in 1995. Three years later, in 1998, Romero obtained permanent resident or “green card” status. He has lived in the U.S. as a lawful permanent resident for 20 years, and has 5 American children.

In March of 2016, a grand jury returned an indictment against Romero on three counts: possession of marijuana, trafficking in marijuana, and possession of cocaine. At the plea hearing, at which Romero was represented by counsel, the trial court engaged in an extensive colloquy with Romero in which the court advised him of the possible consequences of his guilty plea, including giving him the immigration advisement for noncitizens codified at R.C. 2943.031(A). Romero indicated to the court that he understood the deportation consequences and was ready to proceed with his plea. Romero pled guilty to all charges, and on June 29, 2016 was sentenced to three years of intensive supervised probation, ordered to perform one hundred hours of community service, and had his driver’s license suspended for six months.

Shortly after his sentencing hearing, Romero was taken into custody by ICE, and placed in removal proceedings.  While in custody, Romero received notice to appear in Federal Immigration Court on October 18, 2016, because of the trafficking conviction, which made him subject to removal.

On October 14, 2016, Romero filed an emergency motion to withdraw his guilty plea and vacate judgment in his state case, claiming that his attorney failed to advise him of the mandatory immigration consequences that would result from his guilty plea. The trial court overruled Romero’s motion, finding that Romero’s plea was entered knowingly, voluntarily, and intelligently.

On appeal, the Fifth District, in a unanimous opinion by Judge Scott Gwin, joined by Judges Craig Baldwin and Earle Wise, reversed the decision of the trial court. The appeals court found that even though the trial court gave the proper advisements, the court abused its discretion by failing to hold an evidentiary hearing on whether Romero’s attorney failed to tell him that deportation was mandatory for the drug offenses to which he was pleading guilty.

Read the oral argument preview of the case here.

Key Precedent

Crim.R. 11 (A defendant may enter a plea of not guilty, not guilty by reason of insanity, guilty, or no contest.)

Crim.R. 32.1 (A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.)

United States Constitution, Amendment VI (In all criminal prosecutions the defendant shall be entitled to have the assistance of counsel for his or her defense.)

R.C. 2943.031(A) (The court shall address the defendant and notify him or her of the following:

“If you are not a citizen of the United States you are hereby advised that conviction of the offense to which you are pleading guilty (or no contest, when applicable) may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.”

Strickland v. Washington, 466 U.S. 668 (1984) (The appropriate standard for ineffective assistance of counsel requires both that the defense attorney was objectively deficient and that there was a reasonable probability that advice from a competent attorney would have led to a different outcome.)

State v. Francis, 2004-Ohio-6894 (An appellate court reviews a trial court’s decision on a motion to withdraw a plea under an abuse-of-discretion standard.)

Padilla v. Kentucky, 559 U.S. 356 (2010) (Defense attorneys must communicate with non-citizen clients about immigration consequences of a conviction, including advising them when deportation may result and when it will result.)

Hernandez v. State, 124 So.3d 757 (Fla. 2012) (Notice of possible deportation given by judicial instruction does not eliminate defense counsel’s obligation to affirmatively warn a client of the actual immigration consequences of a guilty plea.)

State v. Arrunategui, 2013-Ohio-1525 (9th Dist.) (A trial court abuses its discretion if it grants or denies a motion to withdraw a plea without holding a hearing to determine whether a defendant was prejudiced by counsel’s performance.)

Lee v. United States, 137 S.Ct. 1958 (2017) (When a defendant claims ineffective assistance of counsel, prejudice can be shown by demonstrating a reasonable probability that the defendant, but for counsel’s errors, would have insisted on taking the case to trial.)

State’s Proposition of Law Accepted for Review

A trial court does not abuse its discretion in overruling a motion to withdraw guilty plea pursuant to Crim.R. 32.1 when the trial court has fully complied with the colloquy requirements of Crim.R. 11 and with the advisement requirements of R.C. 2943.031 regarding the consequences of a guilty plea on a defendant’s immigration status.

At Oral Argument

Arguing Counsel

Jessica L. Logothetides, Assistant Prosecuting Attorney, Stark County, for Appellant State of Ohio

Stephen P. Hardwick, Assistant Public Defender, Office of the Ohio Public Defender, Columbus, for Appellee Carlos Romero

State’s Argument

The plea form signed by Mr. Romero indicated that he had been advised by his lawyer of the immigration consequences of his plea. In order to withdraw his guilty plea, Mr. Romero must meet the manifest injustice standard.  His self-serving affidavit, coupled with the trial court’s compliance with Crim. R.11 and R.C. 2943.031, was insufficient to establish that manifest injustice standard.

In order to make out an ineffective assistance of counsel claim, a defendant must submit evidentiary documents containing sufficient operative facts to be entitled to an evidentiary hearing. Mr. Romero must show that he would have gone to trial, or that there was a plea negotiation he would have taken.  That did not happen here.  Self-serving affidavits like the one submitted in this case are insufficient. To hold otherwise would open the floodgates to hearings in every instance.

A threshold must be met to filter out the meritorious claims, and that threshold was clearly not met in this case with Mr. Romero’s totally self-serving affidavit, with nothing to back up his assertions. The state has raised the deficiency of the affidavit in this case from the very beginning, at the trial court level. The court of appeals simply improperly substituted its judgment for that of the trial court, which was not arbitrary, unreasonable, or unconscionable.

It’s unworkable to conclude that the immigration advisements and compliance with Crim. R.11 are just a pointless ritual. Defendants  must submit an affidavit that contains sufficient operative facts to entitle them to an evidentiary hearing. The burden is on the defendants to prove their counsel is ineffective. That just did not happen in this case.

Romero’s Argument

Even though the state contests it, there is no reasonable argument in this case that counsel was not deficient. The trial attorney failed to advise Mr. Romero that his deportation was certain; was mandatory. Under Padilla, if counsel doesn’t advise his client of that, then counsel’s performance is deficient. A trial judge’s warning that deportation may happen cannot cure trial counsel’s duty to say that deportation will happen.

The second prong required to prove ineffective assistance is whether Mr. Romero was prejudiced by his counsel’s deficient performance, and he unquestionably was. If the trial judge had accurately told Mr. Romero from the bench that he would be deported, then there would not be prejudice, because Mr. Romero could not then claim he didn’t know that. But that did not happen either, so there was prejudice here. While the trial court can’t interfere in the discussions between the lawyer and his client outside of court, the court can, in open court, on the record, press counsel about the specific immigration consequences and press to see if the defendant understands those specific consequences.

Mr. Romero did say in his affidavit, in his own words, that he thought the evidence was insufficient, and he thought he had viable defenses. Granted he didn’t use the magic words, saying that he otherwise would have gone to trial. But the state did not challenge the content of the affidavit in the appeals court, as it does now, and the defense asserts that argument was forfeited.  Nor was it raised in the state’s jurisdictional memorandum. There’s not one word in the state’s appellate brief or jurisdictional memo that tells this Court that there was any problem with the substance of Mr. Romero’s affidavit other than the fact that he’s the one who signed it.

Mr. Romero gave specific reasons for his position—he said he had viable defenses, the evidence was insufficient. There is no point in saying that unless he were going to go to trial. His affidavit is also supported by the police reports that are in the record. The only evidence tying him to these drugs was that they were in his house, but he wasn’t there at the time. His girlfriend claimed they were his, not hers. There is no evidence in the record that contradicts his claim that he had a viable defense. And even if he wins his motion, Mr. Romero is rolling the dice. He’s going to get a hearing where he has to prove the case, and if he proves that, then he goes back to the trial court where if he’s wrong he could end up going to prison.

The defense sees no floodgates opening up, as the state contends. That has not happened elsewhere. Perhaps there will be more hearings, but without evidence, defendants will lose.

What Was On Their Minds

Padilla and Duties of Defense Counsel

What are the requirements, if any, under Padilla, asked Justice Stewart? Isn’t it more than just a risk of deportation? Must the attorney’s advisements include the language “swift, certain and severe?” Could the Court still rule in Mr. Romero’s favor without using those words? If defense counsel had had clients in similar circumstances, all of whom were deported, wouldn’t it be incumbent on that lawyer to tell Mr. Romero that the lawyer had had other clients in this exact scenario, and they were all deported? Does a lawyer neglect his or her responsibility, having that kind of knowledge and information, and not relay it to the client, particularly in this case where there is a plea bargain that didn’t seem to have any plea bargaining aspect to it? She commented that the appeals court seemed particularly troubled by that.

Isn’t this the same statute that was at issue in Padilla, where the Court said that basically, deportation was virtually mandatory, asked Justice DeWine? Didn’t the Court say essentially that where a statute is clear, deportation will be a consequence and that a defense attorney must advise a client of that, not just that there is a risk of deportation? During the defense argument, he noted that Padilla addressed whether counsel’s performance was deficient, but did not get to the second part of the ineffectiveness test, which was whether there is prejudice, and whether the advisement cured that deficiency by counsel.  He commented that he saw the issue in the case as not whether counsel was deficient, but whether there was prejudice as a result of the advisement that was given to the defendant, and that prejudice was a matter left to the states to determine.

Isn’t Padilla dealing with what defense counsel has to say and this case is dealing with what the trial court has to say, asked Justice Fischer? Wasn’t that the issue this Court accepted?

If a defendant claims his counsel didn’t do something the lawyer actually did do, can’t the lawyer come forward with that, asked Justice Donnelly?

Immigration Consequences

Does federal law always use the word “deportable,” asked Justice French? Is that the same thing as saying somebody is subject to mandatory deportation? Is there any doubt that Mr. Romero was subject to deportation, under federal law?

Is the only uncertainty whether or not the deportation will be successful, as opposed to whether or not the DOJ will bring deportation actions, asked Chief Justice O’Connor?

What should the Court do about different statutes than those discussed in Padilla, asked Justice DeWine?  Does “deportable” mean it is automatically going to happen? A lawyer would ordinarily look at that and think there’s a possibility of deportation from that statute, but what about other statutes?  How many years can we be certain that the Justice Department or Immigration is going to follow the same standards as they were at the time of Padilla? Some cases have immigration experts testify, but not here, he noted.

 Advisements, The Plea Form, and the Guilty Plea

From whom did Mr. Romero receive information about the consequences of his guilty plea, asked Chief Justice O’Connor? Does it matter how the defendant hears the certainty of his deportation, from the court or his lawyer, as long as he hears and understands it before he pleads guilty? But here, the defense is claiming neither? There is no indication that the defense attorney said with certainty that Mr. Romero was going to be deported, and we know from the record that the judge merely said there’s a possibility of deportation? (defense counsel agreed). The state isn’t saying his attorney sat him down and went over step by step the consequences for his immigration status, but rather is saying that Mr. Romero signed the plea form and received all that information from the court. Coupled together, is that sufficient?

Was there an attempt to negotiate a plea in this case, asked Justice Donnelly? (answer: no) What was the factual basis for the trafficking charge? Did the police go in with a warrant? So, the defense just came in and said they were going to withdraw their previously entered plea of not guilty and enter a guilty plea to the indictment? In a key question of the day, he asked whether it would have been better for transparency purposes to have a hearing and explore whether the client was advised of the actual immigration consequences, even where, as here, the trial court did everything correct in the colloquy? He went on to ask if it wouldn’t have been better from the state’s perspective if the trial court had set a hearing and allowed the state to address the allegations in Romero’s emergency motion?  A reasonable prosecutor might look at the situation and say these collateral consequences are so great we’re prepared to negotiate a plea to allow someone who has been here legally for 30 years, with children here, to remain here, rather than be mandatorily deported, he commented. Wouldn’t that have been a better scenario? The prosecutor insisted that would be “an injustice to the criminal justice system.” Later, Justice Donnelly asked whether the trafficking charge Mr. Romero pled to was the lynchpin?  If defense counsel had researched this issue, found out what the collateral consequences were about to be, asked the state to drop the trafficking charge in exchange for the possession, and the other count, could that have resolved this matter without the consequences taking place? What position did the state take at sentencing? He commented that if the Court were to put the onus on the defense bar to do its due diligence, to check into this, future hearings could be avoided if defense lawyers just provide written signed documentation that they researched it and it looks like it is going to result in mandatory deportation. Is that what defense counsel is asking the Court to do? Put the onus on the defense bar to do its job, before pleading out something that has such major collateral consequences, to check it out to see if it is going to be mandatory?

Why did Mr. Romero plead guilty, instead to going to trial, asked Justice Stewart, adding that there is usually a quid-pro-quo for doing that, but that in this case there seemed like nothing to be gained and everything to lose by Mr. Romero pleading guilty in this situation. She added that what was discussed with him leading up to his plea was unknown.

Prejudice

If defense counsel failed to advise Mr. Romero of the immigration consequences of his plea, wouldn’t he be prejudiced, asked Justice Stewart? How is it clear from this record that defense counsel did not advise his client of the exact immigration consequences of his plea? Does defense counsel have an obligation to advise a client that deportation is swift, certain, and exact? (just certain, answered defense counsel).

Romero’s Affidavit and Waiver

In his affidavit, should Mr. Romero have said “I would not have pled guilty if I had known in all likelihood that I would be deported,” asked Justice Stewart? Doesn’t his language convey that?  On the flip side, once deportation proceeding begin, can’t any defendant run back and tell the court he wasn’t advised of this?

Did the state raise below the issue about the detail required in the affidavit, asked Justice French?

Mr. Romero didn’t say in his affidavit that that he would have gone to trial, did he, asked Justice DeWine?  That seems a pretty big part of the affidavit—had I known this, I would not have pled guilty—he does not say that anywhere, he commented.  Should Mr. Romero at least have said that? The state may not have pointed out the deficiency in the affidavit, but it did say in its briefs that there was no prejudice here because of the warnings –I think that’s a fair inference from the state’s briefs, he commented.

Couldn’t Mr. Romero have written in his own words, “I wouldn’t have pled guilty”, asked Justice Fischer?

Theoretically, didn’t Mr. Romero have a colorable defense to the trafficking charge if he went to trial, asked Justice Donnelly, after defense counsel reviewed the facts of the drug bust.

Relief Sought

Is the state asking the Court to write any rule beyond the facts of this case, saying the affidavit wasn’t enough, asked Justice DeWine?

Is there no new standard to be established here, asked Chief Justice O’Connor?  Just the application of a standard already in place?

If the case is reversed, does the state want the case remanded, asked Justice Fischer? (answer: no).

Parade of Horribles

So, is the state’s concern that if someone is convicted, after having been advised, and then they are not deported, they would come back to court and want to withdraw their plea, asked Chief Justice O’Connor?

How It Looks From The Bleachers

To Professor Emerita Bettman

Very long argument, very hot bench, very long post.  The Court’s newest justices, Stewart and Donnelly were particularly active questioners. I agree with my student contributor Paul Taske that despite the lengthy argument and intensive questioning, this was a surprisingly hard one to call.

I think in the end, given the dire immigration consequences in these kinds of cases, a majority is going to allow Romero an evidentiary hearing and have things sorted out there. And I don’t think this will open Pandora’s proverbial box.

In terms of presentation, the prosecutor was stolid and rather wooden, while defense counsel was very impassioned and seemed more familiar with the nuances of Padilla. But the prosecutor stayed on message, and I think may capture a couple votes. Still, I think a majority will find that even though the trial court gave the proper advisements (which no one disputes) that alone isn’t enough to cure the failure of trial counsel to inform his client of the immigration consequences of his plea, and that an evidentiary hearing is necessary in this case to determine what Romero’s trial lawyer actually did advise him about the immigration consequences for the drug offenses to which he was pleading guilty. (Both sides agreed there was no plea bargain, here, and that was an error by the appeals court, but not determinative).

Justice Donnelly, in particular, suggested this resolution in a long line of questioning. He asked what I think will be the ultimate outcome here when he asked whether it wouldn’t have been better for transparency purposes to have a hearing and explore whether Mr. Romero was actually advised of the actual immigration consequences of the offense he was pleading to, even where, as here, the trial court did everything correct in the colloquy.  I think Justice Stewart and the Chief are with him, and probably Justice French. This does not mean Romero is going to prevail in the end, but he will get a chance.

I think Justices Fisher and DeWine may get hung up on the adequacy of the affidavit. Justice Fischer particularly seemed concerned with the fact that the proposition of law the Court accepted dealt with what the trial court, not defense counsel, had to say to Mr. Romero. But frankly, I don’t see how the two can be separated in this situation, and as defense counsel pointed out, the state’s proposition of law doesn’t really speak to the crux of the appellate decision. Justice DeWine seemed persuaded that the deficient performance prong was met here, but expressed concern about the prejudice prong, and Romero’s failure to include language that he would have gone to trial if he had been properly advised.

To Student Contributor Paul Taske

Very interesting argument. I thought Romero’s counsel was more effective than the State’s. That might make all the difference here.

From where I sit, this case looks like a tentative win for Romero.

The Court seemed genuinely divided about most points raised during argument. From the application of Padilla to the accuracy of the record and of the lower court’s opinion. This confusion—or lack of consensus—is, I think, what gives Romero the slight edge. The Court appeared reluctant to adopt any strong position without first getting a handle on the facts before them. So, while I don’t think Romero will receive a remand with everything he wants, I do think the Court will remand the case for further development. Particularly, I think the Court will require additional findings about the plea Romero entered and whether it was negotiated or not.

Alternatively, the Court may decide that the factual information is sufficient and further development is unnecessary. In that case, I think enough of the Court will be persuaded to permit Romero to withdraw his plea and take his case to court. The ambiguity in the record coupled with Romero’s remarks about wanting to continue working likely provide an adequate basis to grant his request because these indicate that Romero was not fully informed of the consequences of his choice.

 

 

 

 

 

 

 

Update: On May 15, 2019, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.

Read an analysis of the oral argument here.

On January 29, 2019, the Supreme Court of Ohio will hear oral argument in State of Ohio v. Carlos Romero, 2017-0915. At issue in the case is whether a trial court’s advisements of potential immigration consequences of a guilty plea will be sufficient to replace advice of counsel.

Case Background

Carlos Romero married a United States citizen in 1995. Three years later, in 1998, Romero obtained permanent resident or “green card” status. He has lived in the U.S. as a lawful permanent resident for 20 years, and has 5 American children.

In March of 2016, a grand jury returned an indictment against Romero on three counts: possession of marijuana, trafficking in marijuana, and possession of cocaine. At the plea hearing, at which Romero was represented by counsel, Stark County Court of Common Pleas Judge Kristin G. Farmer engaged in an extensive colloquy with Romero in which she advised him of the possible consequences of his guilty plea, including the immigration advisement for noncitizens codified at R.C. 2943.031(A). Romero indicated to the court that he understood the deportation consequences and was ready to proceed with his plea. Romero pled guilty to all charges and on June 29, 2016 was sentenced to three years of intensive supervised probation, ordered to perform one-hundred hours of community service, and had his driver’s license suspended for six months.

Shortly after his sentencing hearing, Romero was taken into custody by ICE, and placed in removal proceedings.  While in custody, in an order dated September  20, 2016, Romero received notice to appear in federal Immigration Court on  October 18, 2016, because of the trafficking conviction, which made him subject to removal.

On October 14, 2016, Romero filed an emergency motion to withdraw his guilty plea and vacate judgment in his state case, claiming that his attorney failed to advise him of the mandatory immigration consequences that would result from his guilty plea. Judge Farmer overruled Romero’s motion, finding that Romero’s plea was entered knowingly, voluntarily, and intelligently.

On appeal, the Fifth District, in a unanimous opinion by Judge Scott Gwin, joined by Judges Craig Baldwin and Earle Wise, reversed the decision of the trial court. The appeals court found that even though Judge Farmer gave the proper advisements, she abused her discretion by failing to hold an evidentiary hearing on whether Romero’s attorney failed to tell him that deportation was mandatory for the drug offenses to which he was pleading guilty.

Votes to Accept the Case

Yes: Justices DeGenaro, DeWine, Fischer, French, Kennedy, and O’Donnell

No: Chief Justice O’Connor

Key Statutes and Precedent

Crim.R. 11 (A defendant may enter a plea of not guilty, not guilty by reason of insanity, guilty, or no contest.)

Crim.R. 32.1 (A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.)

United States Constitution, Amendment VI (In all criminal prosecutions the defendant shall be entitled to have the assistance of counsel for his or her defense.)

R.C. 2943.031(A) (The court shall address the defendant and notify him or her of the following:

“If you are not a citizen of the United States you are hereby advised that conviction of the offense to which you are pleading guilty (or no contest, when applicable) may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.”

Strickland v. Washington, 466 U.S. 668 (1984) (The appropriate standard for ineffective assistance of counsel requires both that the defense attorney was objectively deficient and that there was a reasonable probability that a competent attorney would have led to a different outcome.)

State v. Francis, 2004-Ohio-6894 (An appellate court reviews a trial court’s decision on a motion to withdraw a plea under an abuse-of-discretion standard.)

Padilla v. Kentucky, 559 U.S. 356 (2010) (Defense attorneys must communicate with non-citizen clients about immigration consequences of a conviction, including advising them when deportation may result and when it will result.)

Hernandez v. State, 124 So.3d 757 (Fla. 2012) (Notice of possible deportation given by judicial instruction does not alleviate defense counsel of the obligation to affirmatively warn a client of the actual immigration consequences of a guilty plea.)

State v. Arrunategui, 2013-Ohio-1525 (9th Dist.) (A trial court abuses its discretion if it grants or denies a motion to withdraw a plea without holding a hearing to determine whether a defendant was prejudiced by counsel’s performance.)

Lee v. United States, 137 S.Ct. 1958 (2017) (When a defendant claims ineffective assistance of counsel, prejudice can be shown by demonstrating a reasonable probability that the defendant, but for counsel’s errors, would have insisted on taking the case to trial.)

State’s Argument

Generally, motions to withdraw a guilty plea can only be made prior to the imposition of a sentence. However, courts do recognize an exception if the defendant can demonstrate that failing to accept the withdrawal would constitute a manifest injustice. Trial courts are vested with broad discretion when determining whether allowing a plea to remain in effect would constitute a manifest injustice, and those decisions are reviewed under an abuse of discretion standard. Romero asserts ineffective assistance of counsel as the reason for withdrawing his guilty plea, in failing to advise him of the deportation consequences of his plea.

To overcome the manifest injustice standard under an ineffective assistance of counsel claim a defendant must satisfy a two-prong test. First, a criminal defendant must show that counsel’s performance fell below an objective standard of reasonable representation. Second, that failure of reasonable representation must be shown to have prejudiced the defendant.

The defendant must provide evidentiary support for a claim of ineffective assistance of counsel; the mere assertion of ineffective assistance is insufficient to warrant post-conviction relief consideration. Romero provided only post hoc assertions contained in his self-serving and inadequate affidavit. He did not deny committing the charged offenses or claim that he would be acquitted of those charges, nor did he enter into a plea bargain. He did not state that had he been advised that deportation was mandatory, he would have taken his case to trial.  Despite a clear lack of evidentiary support for the statements in his affidavit, Romero nevertheless asserts that he is entitled to post-conviction relief.

Although courts recognize that compliance with Crim.R. 11 does not absolutely immunize a guilty plea from collateral attack, it does provide great probative value. The compliance with Crim.R. 11, when considered with the trial court’s full compliance with R.C. 2943.031, which Romero concedes, demonstrates that the trial court did not abuse its discretion when denying Romero’s motion. Further, the trial transcript undercuts Romero’s claim of ineffective assistance and illustrates the trial court’s compliance with the law.

Finally, if the Fifth District’s opinion is left uncorrected it will have negative implications for Ohio’s criminal justice system. All a defendant need do to obtain a full evidentiary hearing is assert, under Crim.R. 32.1, that counsel either did not provide advice about deportation consequences or provided erroneous advice. The trial court’s actions become irrelevant. This would negatively impact Ohio’s criminal justice system by undermining the finality of the plea-bargaining system. Prosecutors and judges would be forced to expend considerable additional time and money to undertake new hearings when evidence has been disposed of by the relevant bodies because of the belief the case had been disposed of already. For these reasons the judgment of the Fifth District should be reversed.

Romero’s Argument

Romero concedes that the trial court gave him the proper advisements under R.C. 2943.031 by telling him he may be subject to deportation. But that isn’t good enough. Trial attorneys have a constitutional duty to advise their noncitizen clients of the immigration consequences of their pleas. In this case, trial counsel failed in his duty to advise Romero that his plea to trafficking meant mandatory deportation.

Romero adopts in its entirety the decision of the Fifth District and offers additional arguments to supplement the Fifth District’s reasoning.

The trial court abused its discretion by requiring Romero to do the impossible. Romero claimed that he did not know that deportation was mandatory when he pled guilty. Romero’s claim was denied, according to the trial court, because Romero did not state what he did not know. Further, Romero’s affidavit did not say he was unaware of possible immigration consequences for his plea. Rather, he simply stated that he was not knowledgeable about the criminal justice system and about the ramifications of a guilty plea on his immigration status. It is consistent for a noncitizen who is unaware of mandatory deportation to remain silent upon hearing that a plea may result in deportation. By requiring defense counsel to provide a client with this additional information and clarification, defendants are protected from voluntarily submitting to a conviction without knowing the impact the conviction will have on his or her immigration status. Placing this burden on defense counsel also relieves judges of the obligation to stay abreast of changes in immigration law and the punitive implications for every offense.

Numerous state courts and federal circuits have held that a general advisement of possible immigration consequences does not relieve trial counsel of the constitutional obligation to warn a defendant of mandatory deportation. Only one state court, Rhode Island, has ruled otherwise, and the Fifth District properly chose not to follow the isolated reasoning of the Rhode Island court. While some states differ on the question of non-mandatory deportation, the issue before the court is for mandatory deportation only. Accordingly, the Court should affirm the decision of the Fifth District which conforms to the manifest weight of other courts across the country.

The State’s argument that Romero should have affirmatively stated that he would have taken his case to trial if his attorney had advised him that deportation was mandatory should be dismissed. This argument was not presented for review by the trial court and was forfeited by failing to raise it in the memorandum for jurisdiction before this court. Further, Romero sufficiently demonstrated that he had a defense to offer the jury when he said he thought the State’s evidence would be insufficient, but pled guilty based on the advice of his trial attorney. He also explicitly swore that he received ineffective assistance of counsel at trial.

Romero also asked about the possibility of continuing to work, indicating he did not expect to be taken into custody, and Romero has five American children which provide a strong incentive to stay in the country. To accept the State’s argument on this point would be to elevate form above substance and ignore the actual facts of Romero’s affidavit.

Additionally, Romero supplied more than just his own affidavit to support his plea withdrawal motion. Romero supplied federal immigration documents charging him with an aggravated felony for purposes of federal immigration law. Yet, even without these additional documents, there is no reason to discount Romero’s affidavit. The trial court reviewed the affidavit and found it consistent with the trial record.

Finally, the General Assembly left open the possibility that a defendant could seek to withdraw a guilty plea despite full compliance with R.C. 2943.031. The General Assembly included a provision which explicitly permits trial courts to set aside convictions and permit a defendant to withdraw a guilty plea. For these reasons the decision of the Fifth District should be affirmed.

State’s Proposed Proposition of Law

A trial court does not abuse its discretion in overruling a motion to withdraw guilty plea pursuant to Crim.R. 32.1 when the trial court has fully complied with the colloquy requirements of Crim.R. 11 and with the advisement requirements of R.C. 2943.031 regarding the consequences of a guilty plea on a defendant’s immigration status.

Romero’s Proposed Counter Proposition of Law

Because the United States Supreme Court has expressly rejected the argument that a voluntary plea supersedes errors by defense counsel, a trial court’s compliance with R.C. 2943.031, which informs a defendant that a plea may result in deportation, does not eliminate trial counsel’s constitutional duty to advise a defendant that the plea will result in mandatory deportation.

Amici in Support of Romero

The Immigrant Defense Project and the National Association of Criminal Defense Lawyers filed a joint brief in support of Romero. Amici highlight several aspects of notification that are at play in Romero’s case including the impact of judicial notification, the constitutional duties owed by defense counsel, and the benefits of case-specific notification. First, Amici assert that judicial notification of potential consequences to a defendant’s immigration status does not cure the defense counsel’s failure to provide specific advice to the client. Specific advice affords a defendant the benefit of making informed decisions with knowledge of what is likely to occur or will mandatorily occur if a guilty plea is entered. Second, Amici warn that Ohio’s statutory notification requirement is insufficient to inform defendants adequately of the gravity of the potential consequences of a specific plea. The use of the word “may” does not carry the proper significance when a defendant faces mandatory deportation if the defendant enters a guilty plea. Third, because the judicial notification required by Ohio law fails to afford case-specific notice of potential consequences the giving of judicial notification can have little weight when considering whether prejudice is cured. Fourth, defense counsel has a separate duty to properly advice a client of the specific immigration consequences if a guilty plea is entered. This requirement is constitutional and enshrined by the Sixth Amendment; while judicial notification is only statutorily required. The constitutional protection acts as the defendant’s primary protection and judicial notification as a secondary safeguard. The safeguard, however, is insufficient to compensate for a complete lack of the first. Finally, to permit defense counsel to circumvent constitutional responsibilities by relying on judicial notification runs contrary to recent rulings from the United States Supreme Court. For these reasons Amici urge the court to uphold the Fifth District’s ruling.

Amici’s Proposed Proposition of Law

A non-citizen defendant suffers prejudice when defense counsel fails to advise of potential immigration consequences, even if the court notifies defendant that he or she “may” face immigration consequences.

Student Contributor: Paul Taske

Well, that was quick. On January 23, 2019, two weeks after it was argued, by a vote of 5-2, the Supreme Court of Ohio dismissed State v. Amos 2017-1778, as improvidently accepted. See, State v. Amos, Slip Opinion No. 2019-Ohio-168. The issue in the case was whether a juvenile court has jurisdiction to hold a classification review hearing after a juvenile has been discharged from parole. Voting to dismiss were Justices French, DeWine, Donnelly, Stewart, and Judge Osowik, sitting for Justice Fischer. Dissenting were Chief Justice O’Connor and Justice Kennedy.

I’m really not all that surprised that the case got kicked.  The case was a procedural mess, and as noted on the blog, the state’s argument was messy and very hard to follow. Waiver was also a very big problem for the state.

If there is a winner here, it is Mr. Amos, since dismissal of this appeal means the Court of Appeals decision stands. The First District Court of Appeals  majority affirmed the trial court’s dismissal of two indictments against Amos for failure to comply with the registration requirements for a Tier I juvenile offender-registrant.  Amos successfully argued to the lower courts that he had no duty to register because the juvenile court had no authority to classify him after his juvenile disposition and parole had ended.

You can read the oral argument preview of the case here and an analysis of the argument here.

Update: On December 17, 2019, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Read the analysis of the argument here.

On January 30, 2019, the Supreme Court of Ohio will hear oral argument in State of Ohio v. Justin Wintermeyer, 2017-1135. At issue in the case is whether the State may argue for the first time on appeal that a defendant lacks standing to invoke the Fourth Amendment exclusionary rule.

Case Background

On March 8, 2014, Columbus Police Officer Ryan Wise responded to a report of a possible burglary at a vacant house. While investigating the scene, Officer Wise went to the backyard of the house and noticed two men walking in an abutting alleyway. Officer Wise saw one of the men, later identified as Wintermeyer, enter a house on the opposite side of the alleyway while the other man, later identified as Carlson, waited outside. Minutes later, Officer Wise saw Wintermeyer leave the house and hand something to Carlson. Officer Wise then approached the two men and shined his flashlight on them. At that point Officer Wise saw a small plastic bag in Carlson’s hand. Officer Wise then grabbed the bag from Carlson and detained the two men in the alley.

The bag later tested positive as heroin and Wintermeyer was charged with possession. Wintermeyer filed a motion to suppress, seeking to invoke the exclusionary rule and exclude evidence of the drugs because it was obtained in violation of his Fourth Amendment rights. Franklin County Court of Common Pleas Judge William Woods granted the motion. The State appealed the order claiming that Wintermeyer lacked standing.

The Appeal

In a split decision authored by Judge Julia Dorrian in which Judge Timothy Horton concurred, the Tenth District Court of Appeals affirmed the order granting the motion to suppress. The Tenth District held that in failing to argue the issue of standing in the trial court, the State waived the issue. The Tenth District found that seizure of the bag violated Wintermeyer’s Fourth Amendment rights because he was the subject of an investigative detention that was not supported by reasonable suspicion, and did not fall under the plain view exception. Finally, the Tenth District found that the exclusionary rule barred admission of the evidence obtained unlawfully.

Judge Lisa Sadler dissented on the grounds that the warrantless seizure of the drugs was justified under the plain view exception to the warrant requirement.

Votes to Accept the Case

Yes: Justices O’Donnell, Kennedy, French, Fischer

No: Chief Justice O’Connor and Justices DeWine and DeGenaro

Key Statutes and Precedent

Fourth Amendment to the United States Constitution (The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.)

Weeks v. U.S., 232 U.S.383 (1914) (The exclusionary rule bars the use of evidence secured by an unconstitutional search and seizure.)

Terry v. Ohio, 392 U.S. 1, 19 (1968) (Investigative detention may be conducted without violating the Fourth Amendment if the investigating officer reasonably suspects that the person apprehended is committing or has committed a criminal offense.)

Rakas v. Illinois, 439 U.S. 128 (1978) (“The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure.”)

Rawlings v. Kentucky,  448 U.S. 98 (1980) (A defendant, who placed drugs in someone else’s purse, lacked standing to challenge the search of that purse.)

Steagald v. United States, 451 U.S. 204 (1981) (The government cannot challenge a defendant’s lack of standing on appeal when it has “made contrary assertions in the courts below, … acquiesced in contrary findings by those courts, or … failed to raise such questions in a timely fashion during the litigation.”)

State v. Klima, 934 S.W.2d 109 (Tex.Cr.App.1996) (When the state raises standing for the first time on appeal, it is not “rais[ing] a new issue. Rather it challenged the trial court’s holding that [defendant] met her burden of establishing that the government violated her reasonable expectation of privacy.”)

Herring v. United States, 555 U.S. 155 (2009) (To trigger the exclusionary rule, police conduct must be sufficiently deliberate so that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.)

State v. Boyd, 2013-Ohio-1067 (2nd Dist.)(The defendant has the initial burden to establish that a warrantless search occurred. The burden then shifts to the prosecution to prove the search was legal.)

United States v. Noble, 762 F.3d 509 (6th Cir.2014) (Fourth Amendment standing is a non-jurisdictional issue that can be waived or forfeited; however, the government can raise an objection to a defendant’s Fourth Amendment standing for the first time on appeal, if it can show that the defendant plainly lacked standing and that failure to recognize it would seriously affect the fairness, integrity or public reputation of judicial proceedings.)

State’s Argument

A person cannot assert someone else’s Fourth Amendment rights.  Wintermeyer’s own Fourth Amendment rights have not been violated; thus he lacks standing to invoke the exclusionary rule which would bar any evidence of the heroin discovered by Officer Wise. Officer Wise did not violate Wintermeyer’s rights because the drugs were seized from Carlson, not Wintermeyer. Even assuming any rights were violated, they would have been Carlson’s, not Wintermeyer’s.

Furthermore, the State’s failure to raise the issue of standing in the trial court does not constitute a waiver. To succeed on a motion to suppress, thus invoking the exclusionary rule, the defense must prove that the police obtained evidence as a result of violating the defendant’s own Fourth Amendment rights. In other words, standing is part of the merits of the case and one of the elements that the defense bears the burden of proving. Therefore, because the defense must prove standing to win its motion to suppress, the State does not have to raise the issue at trial in order to argue it on appeal.

Finally, the exclusionary rule only applies where the deterrence benefits outweigh the costs of suppression of evidence. Here, affirming a clearly erroneous suppression order based on waiver does not have any deterrence benefits which outweigh the costs of suppression.

Wintermeyer’s Argument

In order to invoke the exclusionary rule, the defendant bears the initial burden of proving that his or her Fourth Amendment rights were violated. The defendant meets this initial burden by filing a motion to suppress which sets out the particular factual and legal grounds on which his Fourth Amendment rights have been violated. Once this is done, the burden then shifts to the prosecution to prove that the search was legal. One way the prosecution can meet its burden is to prove that the defendant lacks standing.

Here Wintermeyer met his initial burden by filing a motion to suppress which set out the particular factual and legal basis for his claim. Thus, the burden was then shifted to the State to prove the search was legal. In attempting to meet its burden, the State argued that the search was legal because Officer Wise had reasonable suspicion. The State did not raise the standing issue at the evidentiary hearing and the only mention of standing in the trial court was in a string citation in its opposing memorandum. It is well settled precedent that issues not raised in the lower court cannot be argued on appeal. The State waived the standing issue and is now barred from raising it on appeal.

Even if the State did not waive the standing issue, Wintermeyer has established that the evidence was obtained as a result of an unlawful search and seizure in violation of his own Fourth Amendment rights. Wintermeyer has established his expected privacy right in the bag because he did not try to flee and he possessed the bag immediately before handing it to Carlson.

Lastly, the exclusionary rule is the appropriate remedy in this case because Wintermeyer’s constitutional rights were violated; therefore the evidence obtained as a result of this violation should be barred from use at trial.

State’s Proposed Proposition of Law

It is a defendant’s burden to establish his or her standing to invoke the Fourth Amendment exclusionary rule. The State may therefore argue on appeal a defendant’s failure to establish standing, even if it did not specifically raise the issue in the trial court.

Wintermeyer’s Proposed Counter Proposition of Law

Where the State fails to challenge a defendant’s reasonable expectation of privacy, labeled by the State as standing, at an evidentiary hearing on a motion to suppress after the defendant has filed a legally sufficient motion to suppress for warrantless search and seizure, and instead elects to defend the reasonableness of the search and seizure, the State waives further challenge on the issue.

Student Contributor: Ivy Charneski

 

Update: On May 2, 2019, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Read an analysis of the argument here.

On January 29, 2019, the Supreme Court of Ohio will hear oral argument in the case State of Ohio v. Jaonte D. Hairston, 2017-1505. At issue in the case is whether the reasonable suspicion standard, set forth in Terry v. Ohio, was satisfied during the search and questioning of Jaonte Hairston.

Case Background

Officer Samuel Moore and his partner, while responding to a domestic dispute, heard gunshots coming from what they believed was the nearby elementary school, which was just a few minutes drive away. Upon arrival, the officers saw only Jaonte Hairston as he was walking away from the school. The officers got out of the cruiser with guns drawn and ordered Hairston to stop. Officer Moore questioned Hairston about the gun shots, asked Hairston if he had any weapons, and told Hairston to put his hands behind his back. The officers performed a “pat-down” search. Hairston told the officers he had a weapon, a semi-automatic pistol.

Hairston was later indicted and charged with violation of R.C. 2923.12, carrying a concealed weapon. Hairston filed a motion to suppress the evidence which, according to Hairston, was obtained by an unconstitutional search of his person. Franklin County Common Pleas Court Judge David Cain overruled Hairston’s motion to suppress, finding there was reasonable suspicion for the stop and pat-down search. The evidence obtained by the search was admitted. After entering a plea of no contest, Hairston was found guilty of violating R.C. 2923.12 and received a sentence of community control. Hairston appealed the denial of the suppression motion.

On appeal, the Tenth District, in a unanimous opinion written by Judge Horton, and joined by Judges Brown and Luper Schuster, reversed the decision of the trial court. The Tenth District held that the totality of the circumstances did not justify the stop or search of Hairston. Hairston did not exhibit any typical indications that would be expected of someone engaged in wrongdoing. His nervousness was not accompanied by evasive behavior, answers, or body language. Hairston cooperated fully with the officers and answered their questions truthfully. Further, none of the surrounding contextual factors support the assertion that reasonable suspicion existed. Simply being in a high-crime area is not enough to support a stop unless additional factors can be shown to demonstrate particularized suspicion of a particular individual. Because Hairston’s behavior and the surrounding circumstances were insufficient to establish reasonable suspicion, the evidence should have been suppressed. The state appealed.

Votes to Accept the Case

Yes: Justices O’ Donnell, Kennedy, Fischer, and French.

No:  Chief Justice O’Connor, and Justices DeWine and DeGenaro

Key Statutes and Precedent

United States Constitution, Amendment IV (The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.)

R.C. 2923.12 (No person shall knowingly carry or have a concealed deadly weapon other than a handgun.)

Terry v. Ohio,  392 U.S. 1 (1968) (When police officers have a reasonable suspicion that a crime has just occurred or is about to occur they may engage in a limited search of a person to check for weapons. Any such search must be reasonable given the totality of the circumstances and need not meet the higher standard of probable cause.)

United States v. Cortez, 499 U.S. 411 (1981) (Reasonable suspicion means a suspicion particularized for a given person or persons. To satisfy the particularity requirement, two elements must be met before a stop is permitted. First, the assessment must be made on the totality of the circumstances. Second, the assessment must raise a suspicion that a particular individual is engaged in wrongdoing.)

INS v. Delgado, 466 U.S. 210 (1984) (A reasonable person is aware that the mere act of questioning does not constitute a detention for purposes of the Fourth Amendment.)

State v. Bobo, 37 Ohio St.3d 177 (1988) (The propriety of an investigative stop by a police officer must be viewed in light of the totality of the surrounding circumstances. When considering the totality of the circumstances, the officer must rely on specific and articulable facts which would lead a reasonable officer to conclude a temporary stop is necessary.)

State v. Batchili, 2007-Ohio-2204 (The reasonableness of a detention is based on the circumstances as a whole and may not be examined individually for unreasonableness. The circumstances will not be deemed unreasonable even if they are deemed to have innocent explanations after the fact.)

State’s Argument

The Fourth Amendment to the U.S. Constitution prohibits warrantless searches and seizures unless an exception applies. An investigative stop, or Terry stop, is one common exception to the Fourth Amendment’s warrant requirement. A Terry stop permits an officer to stop an individual if there is reasonable suspicion that criminal activity has occurred or is imminent. Such stops must be viewed in light of the totality of the circumstances and through the eyes of “the reasonable and prudent police officer.” Yet, a Terry stop does not require proof that a crime has actually occurred; it is simply a minimal intrusion to allow officers to investigate further. This present case falls squarely within this general exception to the Fourth Amendment.

In this case, the facts and circumstances support a finding of reasonable suspicion. The location was one known for crime involving drugs, violence, and guns. It was dark. The officers arrived no more than sixty seconds after hearing gunshots in the area. Hairston was the only person in the area when the officers arrived, and he was nervous when talking with the officers. Hairston confirmed that he heard gun shots and, when asked, said he had a gun in his jacket pocket. These circumstances, combined with the officers’ training, fully justified further investigation. Accordingly, it was proper to conduct a Terry stop and question the only person in the vicinity of recent gun shots. Courts across the country have accepted similar circumstances as sufficient to support reasonable suspicion. This Court should not deviate from these accepted standards.

When engaging with individuals believed to be armed and potentially dangerous, an officer is permitted to take the necessary steps to verify and mitigate the danger to himself. Under Terry, an officer may mitigate such danger by keeping his weapon at the ready and performing brief but complete restrictions of a person’s movement even though such restrictions temporarily interfere with the person’s liberty. Such reasonable and limited uses of force are necessary to ensure the safety of the officers and the public. Responding officers are, therefore, justified in displaying their weapons at a scene when gunshots were recently heard. The Tenth District’s decision would prevent law enforcement from conducting Terry stops in tense situations and instead require more than reasonable suspicion to stop the sole person in the area where shots were fired.

Finally, a police officer is not required to exclude all possibility of a person’s innocence before performing a Terry stop. Ohio courts have reaffirmed this point on numerous occasions saying that although there may be innocent explanations for an officer’s suspicion, this does not mean that the officer’s suspicion was unreasonable. When all context has been examined in its totality, it is clear that reasonable suspicion was present in this case and that the officers’ stop of Hairston was justified under the Terry exception to the Fourth Amendment. The decision of the Tenth District should be reversed.

Hairston’s Argument

Reasonable suspicion must be established objectively, not by an officer’s subjective opinion. The Supreme Court has held that authorities must have a particularized and objective basis for suspecting the particular individual stopped by its agents. Without satisfying these objective criteria, a Terry stop will fall short of the reasonable suspicion standard and violate the Fourth Amendment. In this case, the State failed to satisfy the needed criteria. Therefore, the search and seizure of Mr. Hairston was unconstitutional, and all evidence obtained from the search should be suppressed.

In the present case, no particularized suspicion was formed to the degree necessary to detain a person because the officers had no particularized information on which to base their suspicion. The officers had no description of the supposed perpetrator, no specific or particular information regarding the area of the alleged criminal activity, and no information about the direction the offender was fleeing. Such information is necessary to establish reasonable suspicion before any Terry stops can be made. The suspicion must be created based on objective criteria and information obtained before any Terry stops or searches can be executed.

Suspicious or erratic behavior can also be used to support an officer’s reasonable suspicion claim. However, Hairston was not engaged in any suspicious behavior. He was simply walking along, in a residential neighborhood, talking on his cellphone. His actions at the time were entirely lawful and ordinary. Similarly, Hairston did not engage in any suspicious or furtive behavior when the officers approached. In fact, Hairston complied with the officers’ commands and answered the officers’ questions. When examined objectively, Hairston’s behavior provided no reasonable suspicion he was engaged in criminal activity. He was stopped simply on an unarticulated hunch, not particularized suspicion.

Additionally, Officer Moore possessed no specialized training or knowledge which would support inferring criminal conduct from Hairston’s innocent actions. Therefore, in the absence of any particularized knowledge or identifying information, it was unreasonable for the police to forcibly seize Hairston. Under Federal and Ohio precedent, a Terry seizure based on “shots fired” can be unconstitutional without additional indicia to support the stop of a particular individual. There is no shots-fired exception to the Fourth Amendment, and simply being in the general vicinity where gunshots are heard is not enough for a Terry seizure. Because Officer Moore possessed no objective indicia to support his stop and seizure of Hairston his actions were unconstitutional.

Finally, the officers failed to utilize other, less intrusive, means at their disposal when dealing with Hairston. They could have simply asked questions, asked for consent to search Hairston’s person, and then, if reasonable suspicion arose, seized Hairston. This contrasts with the State’s proffered alternatives to either perform the search and seizure immediately or walk away. Other means were available. None of those means were exercised. Accordingly, Officer Moore performed an unconstitutional search and seizure of Mr. Hairston. Therefore, the judgement of the Tenth District should be affirmed.

State’s Proposed Proposition of Law

When officers are responding to very recent gunfire in an area known for criminal activity, it is reasonable for the officers to have their weapons drawn and to briefly detain the only individual seen in the area.

Hairston’s Proposed Counter Proposition of Law

Police have no authority to detain a person, at gunpoint, to investigate an offense of discharging a firearm within the city limits, a third degree misdemeanor, when they have no description of the suspect, the direction he was heading, or any other particularized information linking the person to the misdemeanor offense other than he was one of hundreds of individuals in the densely populated area of about a square mile in size.

Amicus in Support of the State

The Fraternal Order of Police, Capital City Lodge No. 9 (“FOP”) filed a brief in support of the State. The FOP urges the court to reverse the decision of the Tenth District because it failed to examine the facts with proper deference to the training and experience of the officer. When proper deference is afforded, it is clear that Officer Moore exercised reasonable judgment for his safety and the safety of others by effectuating a Terry stop. When experienced police officers immediately respond to an area after hearing shots fired, and find only one person there, they have reasonable suspicion to stop that person.

Amici in Support of Hairston

The Office of the Ohio Public Defender, the Hamilton County and Montgomery County Public Defender Offices, the Juvenile Justice Coalition, The Ohio Chapter of the National Laws Guild, The Ohio Justice and Policy Center, and the Friedman and Gilbert law firm filed a joint brief in support of Hairston.

These amici stress the importance of Terry’s overarching concern for reasonableness which must be addressed prior to any examination of the particular methods employed by police. Mere presence does not constitute reasonable suspicion. Because the officers in this case operated in the absence of any additional background information—other than hearing a gunshot somewhere nearby—their subsequent detention and search of Hairston was improper. Further, the standards the State seeks to rely on, such as an officer’s training, is improper in this case. The overarching concern with reasonableness and the improper standard the State relies on to justify its search warrant a finding for Hairston.

Student Contributor: Paul Taske

Update: On January 23, 2019, the Supreme Court of Ohio dismissed this case as improvidently accepted.

On January 9, 2019, the Supreme Court of Ohio heard oral argument in the case of State of Ohio v. Ronald Amos, 2017-1778. At issue in the case is whether a juvenile court has jurisdiction to hold a classification review hearing after a juvenile has been discharged from parole. Judge Thomas J. Osowik of the Sixth District Court of Appeals sat for the recused Justice Fischer.

Case Background

On January 26, 2010, 14-year-old Ronald Amos was adjudicated a delinquent by the Hamilton County Juvenile Court for what would have been the offense of rape if committed by an adult, and committed to the Department of Youth Services (“DYS”).  He was released from DYS on March 30, 2011, placed on parole, and classified as a Tier I juvenile-offender registrant. Amos was discharged from parole on June 24, 2013. Then, on July 2, 2014, over a year after Amos was discharged from parole, the juvenile court held a completion of disposition hearing in which the judge ordered that Amos’ initial Tier I classification was to remain in effect, thus continuing his requirement to register as a sex offender. Amos, who did not receive notice of the hearing, did not attend.

In April 2014, Amos was indicted and pled guilty to one count of failure to notify the sheriff of a change of address. Then in July 2015, Amos was again indicted for failure to provide notice of a change of address.

Amos filed a motion to dismiss the 2015 indictment on the ground that he had no duty to register because the juvenile court had no authority to classify him after his juvenile disposition and parole had ended. Hamilton County Common Pleas Court Judge Pat Foley agreed and granted his motion. Based on this finding, Amos subsequently filed a motion to dismiss the 2014 indictment also and to withdraw that guilty plea. This motion was also granted. The state appealed both orders dismissing the indictments. The two appeals were consolidated into one for review by the First District Court of Appeals.

The Appeal

In a split decision authored by Judge Penelope Cunningham, in which Judge Dennis Deters concurred, the First District Court of Appeals affirmed the dismissal of the indictments. The appeals court agreed with the trial court that the indictments were properly dismissed. When Amos was discharged from parole, he had completed all aspects of the disposition for his sexually-oriented offense, which is when the juvenile court should have held the end-of-disposition hearing, not over a year later. Because the court failed to do so, it lacked the authority to classify Amos as a Tier I offender; thus Amos did not have a duty to register.

Judge Charles Miller dissented on the grounds that the timing of the review did not deprive the juvenile court of jurisdiction. In Judge Miller’s view, “once a juvenile court makes an appropriate classification under R.C. 2152.83, it is permanently vested with jurisdiction to review the classification in accordance with R.C. 2152.84 and 2152.85.”

Read the oral argument preview of the case here.

State’s Proposition of Law Accepted For Review

Once a juvenile court makes an appropriate classification under R.C. 2152.83, it is permanently vested with jurisdiction to review the classification in accordance with R.C. 2152.84 and 2153.85.

Key Precedent

Crim.R. 12(C)(2) (“…The following must be raised before trial: … (2) Defenses and objections based on defects in the indictment, information, or complaint (other than failure to show jurisdiction in the court or to charge an offense, which objections shall be noticed by the court at any time during the pendency of the proceeding.”)

R.C. 2152.83(A)(1)(Initial juvenile tier-classification hearing shall take place at the time of disposition or release from a secure facility.)

R.C. 2152.83(B) (Governs the initial classification hearing: “The court…may conduct at the time of disposition of the child or…at the time of release from a secure facility a hearing…to determine whether the child should be classified as a juvenile-offender registrant.”)

R.C. 2152.83 (D) (Lists factors to be considered in determining whether to classify a delinquent child as a juvenile-offender registrant.)

R.C. 2152.83 (E) (“An order issued under division (A) or (B) of this section and any determinations included in the order shall remain in effect for the period of time specified in section 2950.07 of the Revised Code, subject to a modification or termination of the order under section 2152.84 of the Revised Code… The child’s attainment of eighteen or twenty-one years of age does not affect or terminate the order, and the order remains in effect for the period of time described in this division.”)

R.C. 2152.84 (A)(1) (End of disposition hearing) (Second classification hearing to determine whether initial classification should be ended, modified, or continued shall take place upon completion of disposition, including any probation or treatment.)

R.C. 2152.85 (B)(1) (Timeframe for petition for reclassification or declassification.)

R.C. 2950.07(B)(3) (If the person is a delinquent child who is a tier I sex offender/child-victim offender then the delinquent child’s duty to comply with those sections continues for ten years. If the judge who made the disposition for the delinquent child subsequently enters a determination pursuant to section 2152.84 or 2152.85 that the delinquent child no longer is to be classified a juvenile-offender registrant, the delinquent child’s duty to comply with those sections terminates upon the court’s entry of the determination.)

R.C. 2151.23(A)(15) (“The juvenile court has exclusive original jurisdiction … To conduct the hearings…authorized or required under sections 2152.82 to 2152.86 and Chapter 2950. of the Revised Code…”)

In re Cross, 2002-Ohio-4183 (“when the court ended Cross’s probation, it ended its ability to make further dispositions as to Cross on that count.” The juvenile court loses jurisdiction over the juvenile after it releases him.)

State v. Payne, 2007-Ohio-4642 (A void judgment is subject to collateral attack at any time.)

State v. Palmer, 2012-Ohio-580 (The trial court is within its authority to dismiss an indictment “where the law simply does not apply” and  “[w]ithout a doubt, an indictment is defective if it alleges violations of R.C. Chapter 2950 by a person who is not subject to that chapter.”)

State ex. rel Jean-Baptiste v. Kirsch, 2012-Ohio-5697 (R.C. 2152.83 requires that the initial classification must occur when the child is released from a secure facility, not afterward.)

In Re CP, 2012-Ohio-1446 (striking down on cruel and unusual punishment grounds lifetime registration and notification requirement provision for certain juvenile sex offenders.)

 State v. Dawson, 2013-Ohio-4074 (2nd Dist.)(“Even if the juvenile court erred by failing to hold the hearing at the time of disposition as statutorily required, the error is an error in exercising jurisdiction and cannot be collaterally attacked.”)

In re I.A., 2014-Ohio-3155 (Under 2152.84(A), a child classified as a juvenile-offender registrant under R.C. 2152.83 shall receive a mandatory hearing at the completion of the juvenile’s disposition regarding whether the classification continues to be appropriate.)

In re D.S., 2016-Ohio-1027 (It is not a due process violation to impose upon juvenile registration and notification requirements that extend beyond the age of 18 or 21.)

At Oral Argument

Arguing Counsel

Paula E. Adams, Assistant Hamilton County Prosecutor, for Appellant State of Ohio

Julie Kahrs Nessler, Assistant Hamilton County Public Defender for Appellee Ronald Amos

State’s Argument

The state seeks much needed clarification when it comes to the interplay between the general and juvenile divisions of the common pleas courts; more specifically, between a juvenile court’s sexually-oriented offender classification and corresponding  registration requirements, and the general division’s later Crim. R. 12 dismissal of an indictment for a violation of those registration requirements. Clarification is needed because the juvenile division’s statutes regarding classification are unique and substantially different from that of the general division’s.

In the context of an initial classification, in State v. Palmer, this Court held that dismissal of an indictment is appropriate when the law simply doesn’t apply. But Palmer is not good precedent in this case, because it did not involve the unique aspects of juvenile classifications, which the common pleas court judge here seemed not to appreciate, and because Mr. Amos never appealed his classification.

While Mr. Amos did file a direct appeal with regard to his juvenile adjudication, he never appealed his classification. Specifically, Mr. Amos did not appeal the classification after the initial hearing, nor did he appeal after the mandatory review hearing. Those were the opportunities for him to challenge his classification. Instead, we have a trial court in the general division essentially engaging in a complicated appellate review of something that occurred in the juvenile division, by way of a Crim. R. 12 motion to dismiss. The issue here is the timing of that later mandatory classification review hearing. However, under Dawson, the time to attack that was through a direct appeal, not a Crim.R. 12 motion. The lower courts should have applied Dawson, not Palmer, and the incorrect application of Palmer has sent this case far off course.

Even though Mr. Amos has now reached the age of 21, pursuant to R.C. 2152.85, he still has the ability to get his juvenile classification before the appropriate court that has the entire record and the court that has the jurisdiction to consider it.

Finally, the meaning of the “upon completion of disposition” language in the statute is not as clear and straightforward as the defense argues. Mr. Amos, for example, did a stint in DYS, was paroled to a different jurisdiction for certain services and then crossed into another jurisdiction for other services, so what moment constitutes his “upon completion of disposition”? It’s the state’s position that the juvenile court has the ability to hold that “upon completion of disposition” hearing beyond the age of 21, under certain circumstances.

The majority decision from the First District should be reversed.

Amos’ Argument

As a threshold matter the state has forfeited appellate review of all the arguments made to the Court in oral argument. The only proposition of law accepted by this Court was whether juvenile court is vested with permanent jurisdiction once an initial classification is properly imposed by the juvenile court. Nothing at all was accepted about the Crim.R. 12 arguments.  Whether R.C. 2950 applies to a particular person is exactly the type of issue to be resolved by a Crim. R. 12 motion, so even if the Court were to reach the merits of forfeited arguments, the state’s position must fail.

As for the state’s assertion that Mr. Amos acted inappropriately because he did not directly appeal from the second classification hearing, he never received notice of the fact that the juvenile court had continued his classification. Not only was he not notified of that hearing, but the juvenile court did not comply with the mandatory statutory requirements, nor consider the mandatory factors, nor was the hearing held at a proper time. Those factors implicate the juvenile court’s subject matter jurisdiction and would allow Mr. Amos to collaterally attack that decision at any time.

Under the juvenile rules, a juvenile is classified not only by the offense that is committed, but by the juvenile court exercising its discretion. While the entries in the case suggest that the initial Tier I classification was by agreement, that was only as to the R.C. 2152.83 classification, which does not last forever as the state argues. But the only challenge the state has made here that is properly before the Court is the timing of the R.C. 2152.84 end of disposition hearing. The state argues that hearing is flexible, and should occur “around the time” the disposition is complete. But that interpretation is contrary to the plain language of the statute.  This Court has said that undefined terms should be given their plain and ordinary meaning. “Upon” has one meaning. It’s a more formal term for “on” or “at”.  For youth like Ronald Amos who are committed to DYS, that disposition terminates when they are discharged from parole. It is not an issue of their age, specifically, although it can be, because upon reaching 21, that is the last date a youth can be under DYS control. In this case, the hearing should have been on June 24, 2013, the day Ronald was discharged from parole.

Even if this Court were to accept the state’s proposition that “upon completion of disposition” is some sort of flexible requirement and allows a reasonable time or a short interval, 13 months is simply not appropriate and would be outside the bounds of R.C. 2152.84.

The juvenile court completed no review whatsoever at that July 2014 hearing that was held without Mr. Amos. The court did not say that Mr. Amos had not been rehabilitated, or that juvenile treatment had not been successful and that Mr. Amos still remained a threat to society. The entry simply says that Mr. Amos was not present and his obligation is being continued. That’s not what’s allowed under the statute.

The legislature was very specific about why those hearings must occur upon the completion of the disposition. Up to that point, the juvenile court still has that tether, that connection and control to that juvenile—the court has tabs on him, knows what is going on. The court can ensure that the youth undergo sex offender evaluations, can get him into court, and can have that required hearing that the legislature found was so important to act as a safeguard to ensure that this penalty is only for those youth for whom it is appropriate.

Juvenile courts are courts of limited jurisdiction. The timing requirements of these classification statutes are jurisdictional and limit the court’s authority to act.  The decision of the court of appeals majority should be affirmed.

What Was On Their Minds

Waiver By The State

Justice DeWine really pressed the prosecutor about what the state had actually raised both in the trial court and the appeals court, and what was waived. He asked whether the case should be dismissed as improvidently accepted, and whether the Court should wait until all of the issues the state was raising were properly before the Court. He later asked defense counsel if the state was correct that if Amos had received notice of the fact that juvenile court had continued his classification, he would have been required to appeal at that time, and this would be res judicata.  Is this case just a one-off, he asked? Or doesn’t it matter if Amos received notice or not? And even if the Court were to agree with the state about the .84 hearing, wouldn’t the other findings by the common pleas court about lack of service, notice and a full hearing remain in effect, as those haven’t been challenged on appeal?

Justice French allowed as how she also was very confused, noting that in the appeals court the state argued that the trial court didn’t have authority to second guess the juvenile court’s classification, but was arguing at oral argument that the juvenile court’s classification order was appropriate and that the lower court erred by holding otherwise. She asked in several different ways whether what the state was arguing was consistent with what it had argued below. She suggested that the state had forfeited the argument it was making at oral argument because it wasn’t raised in the trial court. She also asked whether the state argued about permanent jurisdiction in the court of appeals.

Classification Hearings

Didn’t Mr. Amos agree to his initial classification, asked Judge Osowik?

How many hearings, dispositions is this juvenile entitled to, asked Chief Justice O’Connor? Since the registration requirement was for 10 years, could the juvenile court have held a hearing any time within those 10 years for a modification of his classification or duty? Yet, a year after Amos was discharged from supervision, and without him present, that is when he had the completion of the disposition hearing? With no change in his obligations?

“Upon Completion of Disposition”

Is that when he walks out the door, when his probation or parole is up, or automatically when he turns 21, asked Chief Justice O’Connor? Does he get another hearing at 21?

How it Looks From The Bleachers

To Professor Emerita Bettman

Like a win for Amos. I completely agree with my student contributor Ivy Charneski that the state’s argument was very hard to follow and never seemed to get untracked. Most of the questions were about waiver. Granted, the matter is complicated, but I think the Court is going to find waiver of all but the timing of the mandatory classification review hearing.

Ultimately, I think a majority will reject the state’s position of permanent jurisdiction after an initial classification and go with Amos’ position that for jurisdiction and the initial classification to continue, the mandatory review hearing must take place upon completion of disposition. While that will differ in different cases, in this case, I think the Court will find that should have been when Amos was discharged from parole in June of 2013, not nearly a year later, and in his absence. Even if the Court were to allow some flexibility in the interpretation of “upon completion of disposition,” I think a majority will find that a classification review hearing more than a year after completion of Amos’ discharge from parole was too long and was unacceptable.

To Student Contributor Ivy Charneski

I found the State’s argument hard to follow and I also sensed some confusion from the bench. The prosecutor began the argument by vaguely framing the issue as a need for clarification on the interplay between the general and juvenile courts. Justices DeWine and French seemed skeptical of whether the State had waived its arguments. Justice DeWine asked about what was argued at the trial court, while Justice French focused on what happened in the First District. Chief Justice O’Connor wanted to know the State’s position on exactly when the mandatory hearing should have been held. In response, the prosecutor said that it was unclear from the statute. I think this was a crucial missed moment for the State because when the mandatory hearing is supposed to take place is the crux of this case, so for the State to answer that the statute is unclear is just a restatement of the issue.

The Chief Justice asked the defense the same central question about timing. In response, Amos’ attorney more clearly summed up Amos’ position by explaining that “upon” is simply a more formal word for “at” or “on”, and thus the mandatory review hearing should occur on the day the youth is discharged from parole. Amos’ attorney explained that the mandatory review hearing happens at discharge because the juvenile court still has a tie with the youth and is still “keeping tabs” on the youth at that point. I found it particularly compelling when Amos’ attorney pointed out that the continuation of the juvenile sex offender classification is only meant to be imposed on the juveniles for whom rehabilitation has not been effective. She described the mandatory review hearing as a safeguard to ensure that the classification is only imposed on unrehabilitated juveniles, not all juveniles. Despite having a sharper answer to the central question, I don’t know if the justices were persuaded.

Ultimately, the justices seemed to focus on two issues: 1) whether or not the State has waived its arguments; and 2) when the mandatory review hearing should be held.  On the second point I think the court was thinking ahead to how it would craft a rule addressing the timing issue. However, I don’t think the justices were fully satisfied by the solutions heard on either side. Because of the confusion I sensed from the bench and the difficulty the justices seemed to be having in trying to articulate a solution, I think the court will affirm the lower courts’ decisions.

 

 

 

 

 

 

Update: On June 25, 2019. The Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.

“What this judgment entry did is wipe the slate clean as far as a judicial decree establishing an amount to be paid. That didn’t negate the common law duty to have a parent support a dependent child to the best of their ability. And the argument is, he had $5600 at his disposal and not one penny of it went to the child.”

Chief Justice O’Connor, to Father’s lawyer

On January 8, 2019, the Supreme Court of Ohio heard oral argument in the case of In re: Adoption of B.I. 2018-0182. At issue in this case is whether, pursuant to R.C. 3107.07(A), the consent of a parent with a zero child support order is required for an adoption. The case was accepted on discretionary appeal and conflict certification, and consolidated with cases 2018-0181, 2018-0350, and 2018-0351.

Certified Conflict Question

“In an adoption consent case under R.C. 3707.07(A ) in which a court has previously relieved a parent of any child-support obligation, does that previous order supersede any other duty of maintenance and support so as to provide ‘justifiable cause’ for the parent’s failure to provide maintenance and support, therefore requiring the petitioner to obtain the consent of that parent?”

Certified Conflict Case

In Re Adoption of A.S., 2011-Ohio-1505 (5th Dist.)( zero support order was not justifiable cause for a failure to support.)

Case Background

Gary Burbage II (“Father”), the natural father of B.I., was incarcerated in 2009. In 2010, in order to avoid Father’s re-incarceration upon his release from prison, B.I.’s mother Kristen (“Mother”) agreed to an order by the Clermont County Juvenile Court setting Father’s child support obligation and arrearage at zero. Father had prison income of $18 per month. Father also had contributions to his prison account totaling $5,152 of which he has spent $4,681.62 at the prison commissary—largely on food. In the year prior to the adoption petition, Father never provided maintenance or support for B.I., nor was he asked to do so.

Greg Iredale (“Stepfather”) seeks to adopt B.I. Mother has consented to the adoption, but Father has not. In February 2016, Stepfather petitioned the Hamilton County Probate Court, alleging that under R.C. 3107.07(A), Father’s consent to the adoption was not required because Father failed without justifiable cause to provide maintenance and support for B.I, and that Father had a duty to support his son by law, separate from the zero child support order.

The Hamilton County Probate Court found that the zero support obligation excused Father’s obligation to provide maintenance and support. Thus, Father’s consent was required for the adoption to proceed. Stepfather’s case was dismissed. Stepfather appealed.

The First District Court of Appeals upheld the trial court’s ruling in a split decision. The majority found that under R.C. 3107.07(A), a parent cannot fail without justifiable cause to provide maintenance and support with a zero child-support order, and rejected the stepfather’s argument that a parent still has a duty of support separate from a judicial decree of support.  Thus the father’s consent to the adoption was required. The dissenting judge would find that the 2010 order terminating the father’s support was not a zero child-support order, but should be treated as if no order exists, and would remand the case to the probate court to determine if the failure to provide support was justified.

Read the oral argument preview of the case here.

Key Precedent

R.C. 3107.07(A) (Adoption Consent Statute) (Consent to adoption is not required when  parent fails  without justifiable cause to provide maintenance and support for the minor child for at least one year, as required by law or judicial decree.)

In Re Adoption of Schoeppner, 46 Ohio App.2d 21 (1976)  (“although the fact of imprisonment might, when combined with other factors, lend support to a finding of a willful failure to support, it will not constitute such failure as a matter of law.”)

In Re Adoption of Holcomb, 18 Ohio St. 3d 361 (1985) (the determination of whether justifiable cause exists is best left to the discretion of the probate court.)

In Re Adoption of Masa , 23 Ohio St. 3d 163 (1986) (Minimal income from welfare was justifiable cause for failure to provide support; thus, parent’s consent was required for adoption.)

In Re Adoption of Stephens, 2001-Ohio-7027 (2nd Dist.) (A court order absolved parent of both her statutory and judicially decreed duty of support. Thus, failure to support was justifiable.)

Frymier v. Crampton, 2002-Ohio-3591 (5th Dist.) (parent cannot use zero support order as a potential shield when own bad acts caused the incarceration and zero support order in the first place.)

In Re D.R., 2011-Ohio-4755 (7th Dist.) (“Appellant presented absolutely no evidence that he was prevented from making support during any part of the period in question. . . . [I]ncarceration alone is not a justifiable excuse . . . .”)

In Re Adoption of C.M.F., 2013-Ohio-4719 (12th Dist.) (“A determination that a parent failed to provide ‘support and maintenance’ must be based on a failure to make payments as required by law or judicial decree. The issue of whether justifiable cause exists when a parent is incarcerated is a factually specific determination based on the circumstances and evidence presented at the hearing.”) (Citations omitted).

In the Matter of the Adoption of K.A.H., 2015-Ohio-1971 (10th Dist.) (Parent living in foreign country, subject to no support order under divorce decree, did not fail to support his children by expending money on phone calls, cards, and gifts.)

In Re Adoption of Z.A., 2016-Ohio-3159 (5th Dist.) (“[A]ppellant was in jail and in prison as a result of his own wrongdoings and this is not justifiable cause for the failure to communicate and/or maintain support. Incarceration alone is not a justifiable excuse, even if it lasts for the entire period considered by the court.”) (Justice Kennedy would have included this as a conflict case).

At Oral Argument

Whenever there is a turnover on the Court, the seats get shuffled, so at this oral argument, familiar faces are in unfamiliar seats. And Sharon Kennedy is now the senior associate justice.  Still not asking questions, though.

Arguing Counsel

Bradley D. McPeek, Lindhorst & Dreidame Co. LPA, Cincinnati, for Appellant Greg Iredale (Stepfather)

Susan Mineer, Batavia, for Appellee Gary Burbage II (Father)

Stepfather’s Argument

Generally speaking, in Ohio, adoption requires the consent of the natural parents, but there are exceptions to that general rule. Pertinent here is the second prong of 3107.07(A)(2), which states that consent to an adoption is not required when the natural parent has failed without justifiable cause to provide for the maintenance and support of the child as provided by law or judicial decree. In this case, Mr. Burbage failed to provide maintenance and support for his son, B.I. The second issue is whether there was justifiable cause for that failure. So the elements which the court must decide are was there a failure and was there justifiable cause.

“By law or judicial decree” is rolled up into the justifiable cause prong of the analysis. We are here to determine what that phrase means. If there is any ambiguity to this statutory language, the intent of the statute is to distinguish between cases where there is an unwilling parent who is financially able to care for a child but doesn’t, and a willing parent who just doesn’t have the means to do it. Even a parent with limited means must make some effort within those means to support his or her child.

The best way to make the necessary determination here is not just to look at a zero support order, but rather to look at all the facts and circumstances and then have the probate court determine what is in the best interest of the child. A zero child support order is only one factor, albeit a significant one, in that analysis. But bad actors like Mr. Burbage shouldn’t be allowed to benefit from their bad acts in these kind of cases, and use them as a shield.

Father’s Argument

We are here on the question of whether a natural parent who follows a valid court order and a valid judicial decree can have his parental rights terminated. Parents have special rights. The right of a parent to raise his child is probably the oldest fundamental right there is. Termination of that right is like a death sentence in a criminal case.

Mr. Burbage was following the order that he received from the Clermont County Juvenile Court that was requested by B.I.’s mother. Mother went into juvenile court and asked for the support order to be terminated, and she waived all arrearage. And Mr. Burbage was following that order, which was a zero support order, so he sent no support. The statute at issue here, R.C. 3107.07(A), sets a support obligation by law “or” judicial decree, not “and”.  A substantial majority of the appellate districts that have considered this issue have held that a zero support order is justifiable cause for requiring consent for adoption.

When Mr. Burbage received a zero support order he was not notified that his rights would be terminated if he didn’t pay some sort of support in addition to that order. Some sort of notification would be required if that were the case. There are also grandparent rights implicated here, as they have court-ordered time with B.I. The statute in this case should be interpreted as written, without adding words to it.

What Was On Their Minds

Pretty much one thing only:

Significance and Meaning of A Zero Support Order

So, it’s the stepfather’s position that a zero child support order can’t be the sole determining factor for the court saying the signature of the father is still required, asked Justice Stewart? It’s a factor, but not the only factor? What if the probate court had done that, weighed the zero support order among other factors, and come to the same conclusion?  If Father had sent $25 in support, or as a birthday gift, would he have been violating the court order? Would he have been violating the order if he had just voluntarily sent money?

A zero support order doesn’t do away with a parent’s duty to support as set out by law, to the best of the parent’s ability, does it, asked Chief Justice O’Connor? She commented that Father had $5600 come into his prison account and used it for food but didn’t even send $10 to the child or the mother. She got into a back-and-forth with Father’s lawyer about the meaning of the Clermont County Order, drawing a distinction between terminating a child support order and setting a zero support order.

Prior to the agreement between the parties, wasn’t Father paying 25% of his prison income until the parties agreed he didn’t have to pay anything, asked Justice French? Aren’t there some circumstances under which it would be fair to say this parent could have provided, but didn’t? In the case of fraud, for example, would it not be fair to expect a parent to have provided support even if there is a zero support order?  Are there not some circumstances that would call for a possible exception, that even if there is a zero support order, the court should have the ability to look beyond that zero support order and say, in this case, the parent should have been providing something?

Don’t people in our state have the right to rely on court orders, asked Justice Donnelly? Has there been any other circumstance where this court has allowed a trial court to get around a court order?

How It Looks From The Bleachers

To Professor Emerita Bettman

I think a majority is going to mandate a totality of the circumstances approach to determine if the failure to provide support was justified, and thus consent to an adoption required by a natural parent, and that a zero child support order is just one factor, albeit a significant one, in the equation. The women justices (except Justice Kennedy, who was silent) were more actively engaged in this oral argument than the men. The Chief in particular seemed to agree with the position of dissenting Judge Charles Miller in the First District decision, that a zero support order is not an order affirmatively stating the father had to pay zero dollars, but rather a termination of the existing support obligation, and is not a pass on a parent’s duty to support his or her child. And Justice Stewart, in her first day on the bench, was a very active questioner.

But as Father’s lawyer pointed out, in fairness to Father here, when Father received a zero support order, he was not notified that his rights would be terminated if he didn’t pay some sort of support, and he was certainly entitled to notice on something that important. So I think the case is going to be sent back to the Hamilton County Probate Court to determine if the failure to provide support was justified, using a totality of the circumstances test, of which the zero support order, however it is characterized, is one factor.

To Student Contributor Mark Tassone

In general, Stepfather’s argument seemed to lack momentum. Stepfather stumbled at the gates with a fumbled attempt to respond to Justice DeWine’s question whether Father was required by law or judicial decree to provide support. Stepfather never answered. Stepfather instead contends that, rather than using the specific language of the statute, the court should look to the “intent” of the statute. I don’t buy it. And I don’t think Justice DeWine did either.

Stepfather’s public policy argument did, in my mind, carry more weight. Malefactors should not be able to hide behind statutes such as these as a shield from the fruits of their actions. However, as Justice Donnelly pointed out, citizens should be able to rely on a court order with the confidence that it will be enforced.

Father, in my opinion, got off to a better start by supplementing Stepfather’s recitation of the facts. However, Chief Justice O’Connor quickly attacked the existence of a “zero-support order” in the record. The Chief Justice identified the order as terminating the support order rather than setting the support amount to zero. Father conceded that without a zero-support order, the common law duty to support a child would remain in place.

On the whole, I got the impression that neither Stepfather nor Father was entirely prepared for this oral argument. I was genuinely intrigued by the Chief Justice’s comments on the record. I have a suspicion that this case could end up being punted as improvidently granted. Assuming that the court does rule on it, I think Stepfather is likely to prevail.

 

Update: On January 23, 2019, the Supreme Court of Ohio dismissed this case as improvidently accepted.

Read the analysis of the oral argument here.

On January 9, 2019, the Supreme Court of Ohio will hear oral argument in the case of State of Ohio v. Ronald Amos, 2017-1778. At issue in the case is whether a juvenile court has jurisdiction to hold a  classification review hearing after a juvenile has been discharged from parole. Justice Fischer has recused himself from the case. Judge Thomas J. Osowik of the Sixth District Court of Appeals will sit in his stead.

Case Background

On January 26, 2010, 14-year-old Ronald Amos was adjudicated a delinquent by the Hamilton County Juvenile Court for what would have been the offense of rape if committed by an adult, and committed to the Department of Youth Services (“DYS”).  He was released from DYS on March 30, 2011, placed on what was then called parole, and classified as a Tier I juvenile-offender registrant. Amos was discharged from parole on June 24, 2013. Then, on July 2, 2014, over a year after Amos was discharged from parole, the juvenile court held a completion of disposition hearing in which the judge ordered that Amos’ initial Tier I classification was to remain in effect, thus continuing his requirement to register as a sex offender. Neither Amos, nor his counsel, attended this hearing.

In April 2014, Amos was indicted and pled guilty to one count of failure to notify the sheriff of a change of address. Then in July 2015, Amos was again indicted for failure to provide notice of a change of address.

Amos filed a motion to dismiss the 2015 indictment on the ground that he had no duty to register because the juvenile court had no authority to classify him after his juvenile disposition and parole had ended. Hamilton County Common Pleas Court Judge Pat Foley agreed and granted his motion. Based on this finding, Amos subsequently filed a motion to dismiss the 2014 indictment also and to withdraw that guilty plea. This motion was also granted. The state appealed both orders dismissing the indictments. The two appeals were consolidated into one for review by the First District Court of Appeals.

The Appeal

In a split decision authored by Judge Penelope Cunningham, in which Judge Dennis Deters concurred, the First District Court of Appeals affirmed the dismissal of the indictments. The appeals court agreed with Judge Foley that the indictments were properly dismissed. When Amos was discharged from parole, he had completed all aspects of the disposition for his sexually-oriented offense, which is when the juvenile court should have held the end-of-disposition hearing, not over a year later. Because the court failed to do so, it lacked the authority to classify Amos as a Tier I offender; thus Amos did not have a duty to register.

Judge Charles Miller dissented on the grounds that the timing of the review did not deprive the juvenile court of jurisdiction. In Judge Miller’s view, “once a juvenile court makes an appropriate classification under R.C. 2152.83, it is permanently vested with jurisdiction to review the classification in accordance with R.C. 2152.84 and 2152.85.” The State based its proposed proposition of law on Judge Miller’s dissenting position.

Votes to Accept the Case*

Yes: Chief Justice O’Connor, and Justices O’Donnell, DeWine, and DeGenaro

No: Justices Kennedy and French

*Justice Fischer not participating

Key Statutes and Precedent

Crim.R. 12(C)(2) (“…The following must be raised before trial: … (2) Defenses and objections based on defects in the indictment, information, or complaint (other than failure to show jurisdiction in the court or to charge an offense, which objections shall be noticed by the court at any time during the pendency of the proceeding”)

R.C. 2152.83(A)(1)(Initial juvenile tier-classification hearing shall take place at the time of disposition or release from a secure facility.)

R.C. 2152.83(B) (Governs the initial classification hearing: “The court…may conduct at the time of disposition of the child or…at the time of release from a secure facility a hearing…to determine whether the child should be classified as a juvenile-offender registrant.”)

R.C. 2152.83 (D) (Lists factors to be considered in determining whether to classify a delinquent child as a juvenile-offender registrant.)

R.C. 2152.83 (E) (“An order issued under division (A) or (B) of this section and any determinations included in the order shall remain in effect for the period of time specified in section 2950.07 of the Revised Code, subject to a modification or termination of the order under section 2152.84 of the Revised Code… The child’s attainment of eighteen or twenty-one years of age does not affect or terminate the order, and the order remains in effect for the period of time described in this division.”)

R.C. 2152.84 (A)(1) (End of disposition hearing) (Second classification hearing to determine whether initial classification should be ended, modified, or continued shall take place upon completion of disposition, including any probation or treatment.)

R.C. 2152.85 (B)(1) (Timeframe for petition for reclassification or declassification.)

R.C. 2950.07(B)(3) (If the person is a delinquent child who is a tier I sex offender/child-victim offender then the delinquent child’s duty to comply with those sections continues for ten years. If the judge who made the disposition for the delinquent child subsequently enters a determination pursuant to section 2152.84 or 2152.85 that the delinquent child no longer is to be classified a juvenile-offender registrant, the delinquent child’s duty to comply with those sections terminates upon the court’s entry of the determination.)

R.C. 2151.23(A)(15) (“The juvenile court has exclusive original jurisdiction … To conduct the hearings…authorized or required under sections 2152.82 to 2152.86 and Chapter 2950. of the Revised Code…”)

In re Cross, 2002-Ohio-4183 (“when the court ended Cross’s probation, it ended its ability to make further dispositions as to Cross on that count.” The juvenile court loses jurisdiction over the juvenile after it releases him.)

State v. Payne, 2007-Ohio-4642 (A void judgment is subject to collateral attack at any time.)

State v. Palmer, 2012-Ohio-580 (Holding the trial court is within its authority to dismiss an indictment “where the law simply does not apply” and that “[w]ithout a doubt, an indictment is defective if it alleges violations of R.C. Chapter 2950 by a person who is not subject to that chapter.”)

State ex. rel Jean-Baptiste v. Kirsch, 2012-Ohio-5697 (R.C. 2152.83 requires that the initial classification must occur when the child is released from a secure facility, not afterward.)

State v. Dawson, 2013-Ohio-4074 (“Even if the juvenile court erred by failing to hold the hearing at the time of disposition as statutorily required, the error is an error in exercising jurisdiction and cannot be collaterally attacked.”)

In re I.A., 2014-Ohio-3155 (Under 2152.84(A), a child classified as a juvenile-offender registrant under R.C. 2152.83 shall receive a mandatory hearing at the completion of the juvenile’s disposition regarding whether the classification continues to be appropriate.)

In re D.S., 2016-Ohio-1027 (It is not a due process violation to impose upon juvenile registration and notification requirements that extend beyond the age of 18 or 21.)

State’s Argument

The juvenile court had jurisdiction to classify Amos as a Tier I sex offender at the July 2014 review hearing because the classification made at the initial hearing remains in effect for the period of time specified in R.C. 2950.07, which in this case is ten years. Thus, without modification by the juvenile court, Amos’ classification should last for ten years. Moreover, because the juvenile court made an appropriate initial classification, it was permanently vested with jurisdiction to review the classification in accordance with R.C. 2152.84 and 2152.85.

The cases relied on by Amos are inapposite because they involved the requirements for initial classification hearings, not review hearings.

Furthermore, though R.C. 2152.84 requires a review hearing “upon completion of disposition,” the statute does not specify when completion of disposition occurs. Instead, the legislature likely meant for the review hearing to occur “around the time” the juvenile has finished the disposition. The legislature could have more clearly defined the timing requirements of the review hearing if the timing requirement was jurisdictional, but it is not.

Additionally, dismissal of the indictments by way of a Crim.R. 12 motion was not proper. Amos should have timely appealed from the classification, not used Crim. R. 12 to dismiss the indictment and then attack the prior guilty plea. Under Palmer, the trial court can dismiss indictments if the law “simply does not apply”. However, unlike Palmer, which involved the application of the wrong version of the statute, the juvenile sex offender classification involved here is much different, and in this context, it cannot be said that the law simply does not apply.  In Dawson, the court found that “even if the juvenile court erred by failing to hold the hearing at the time of disposition as the statute required, the error is an error in exercising jurisdiction and that cannot be attacked.” Thus, under Dawson, Amos cannot attack the juvenile court’s alleged error of an untimely review hearing because that is an error in exercising jurisdiction.

Amos’ Argument

Juveniles are entitled to two classification hearings-an initial classification and a completion of disposition classification. Each has its own requirements. When a statutory time frame is imposed for classifying a juvenile sex offender, the court’s jurisdiction is strictly limited to that time frame, which here was on completion of the disposition. The juvenile court is not, as the state argues, vested with permanent jurisdiction based on the initial classification.

The First District Court of Appeal’s decision should be affirmed for five reasons: (1) the State has waived its proposition of law and other arguments; (2) the trial court’s use of Crim.R. 12 was proper; (3) R.C. 2152.84 contains a jurisdictional timing requirement which governs the juvenile court’s jurisdiction to continue a juvenile’s sex offender classification; (4) the State’s proposition of law would violate constitutional rights of juveniles; and (5) the procedure in which Amos was classified was insufficient.

First, the court of appeals decision should be affirmed because the State’s arguments were never raised below and were thus waived and should not be considered. The only issue on appeal to the First District was whether the trial court erred in using Crim. R. 12 to review Amos’ juvenile record, conclude he was under no duty to register, and dismiss his indictment. Nonetheless, even the State’s Crim.R. 12 arguments should be excluded from consideration because they were not included in the proposition of law accepted by the court for review and they are therefore not properly before the court.

Second, even if considered on the merits, the trial court’s use of Crim.R.12 rule was proper under the well-established precedent of Palmer. In Palmer, the court made clear that Crim. R. 12 can be used to resolve the issues of whether Chapter 2950 applies to a particular person and that a “trial court may dismiss an indictment for violations of Chapter 2950 when it determines that the Chapter’s regulations do not apply to the accused.”  This is precisely what the trial court did in Amos’ case: it found that Chapter 2950 did not apply to Amos, so it dismissed the indictment. This is a proper use of Crim.R. 12.

The third and most relevant reason why the appellate decision should be affirmed is because R.C. 2152.84 requires a review hearing to occur at the time the child completes his disposition. This hearing is mandatory and the timing requirement that it occur upon completion of disposition is jurisdictional. This means that if the hearing does not occur at the specified time, the juvenile court loses its jurisdiction to conduct the hearing and continue the juvenile’s classification.

While it is undisputed that the hearing is mandatory, the meaning of “upon completion of disposition” is contested. The State ignores the timing requirement for the review hearing and would allow a juvenile court to hold the mandatory review hearing whenever it wants. However, the plain language of the statute is clear and unambiguous – the hearing must be held at the time the child completes disposition. Disposition refers to the action or consequence ordered by the juvenile court. Therefore, the hearing must be completed at the time the disposition ordered by the court is completed by the child. While the actual disposition may differ for different children—it may be at the completion of probation for some or discharge from parole for others– that does not make the statute ambiguous.

Not only does a clear timing requirement exist, that requirement is also jurisdictional.  As a statutory court, the authority to conduct classification hearings is given to the juvenile court by R.C. 2151.23(A)(15) which is expressly limited to what is authorized by R.C. 2152.82-2152.86. Therefore, the juvenile court only has authority to classify juveniles as provided in R.C. 2152.82-21.52.86 and if the court fails to follow the mandates of those sections, it loses its authority.

In Amos’ case, the juvenile court’s jurisdiction to conduct the review hearing and classify him as a juvenile sex offender-registrant ended when he was discharged from parole. Because the review hearing was not completed at this time, the juvenile court lost its jurisdiction over Amos, did not have jurisdiction to conduct the July 2, 2014 review hearing, and the order issued at that hearing classifying Amos as a Tier I offender was void. Thus Amos has no duty to register.

The fourth reason why the appellate decision should be affirmed is because the State’s proposition of law would violate the constitutional right to due process and protection from cruel and unusual punishment, under both the federal and state constitutions.

Lastly, the appellate decision should be affirmed because the juvenile court’s classification procedure was insufficient. For example, even if the juvenile court did have jurisdiction, it was not properly invoked because no motion was filed as required by Juv.R. 35. Furthermore, the juvenile court lacked personal jurisdiction because Amos was never properly served. The July 2014 proceeding cannot qualify as a mandatory review hearing because the juvenile court did not consider any of the statutorily mandated factors in determining whether to continue classification. Finally, Amos’s collateral attack on his classification was appropriate because the juvenile court’s order was void and therefore subject to collateral attack at any time.

State’s Proposed Proposition of Law

Once a juvenile court makes an appropriate classification under R.C. 2152.83, it is permanently vested with jurisdiction to review the classification in accordance with R.C. 2152.84 and 2153.85.

Amos’ Proposed Counter Proposition of Law

A juvenile court is only vested with jurisdiction to impose juvenile sex offender classifications where it has been granted authority to do so by statute. Where a juvenile court imposes a classification under R.C. 2152.83, that classification remains valid up to the child’s completion of the disposition. For jurisdiction and classification to continue, the court must hold a hearing upon completion of child’s disposition as required by R.C. 2152.84.

Amici in Support of Amos

The Office of the Ohio Public Defender along with the Juvenile Law Center, the National Juvenile Defender Center, the Association for the Treatment of Sexual Abusers, and Professor Catherine Carpenter, (whose work is on the injustice of sex offender registration and notification laws) filed a joint brief in support of Amos. Each of these amici are committed to furthering the rights of juveniles and advocating on their behalf.  In their brief, these organizations and the Professor argue that Amos was not provided basic due process because the juvenile court held a hearing in his absence, without the presence of counsel, and did not consider any evidence whether the continued classification was necessary. Amici claim that the juvenile court set aside procedural and timing requirements of R.C. 2152.84 and instead improperly based its determination to continue the classification on assumptions.

Amici also stress the severity of sex offender registration requirements which require the juvenile to register personally with not only the sheriff of the county in which the juvenile lives, but also any county in which the juvenile spends more than 3 consecutive days. These requirements are particularly harsh for young people who do not have stable housing and employment. Furthermore, the sex offender label irreparably harms a registrant’s reputation as the general opinion of sex offenders is that they are especially dangerous. However, as the Amici posit, this presumption is false. There is uncontroverted research which demonstrates that individuals who sexually offend as children are unlikely to recidivate. Lastly, Amici explain how registration causes reputational harm, loss of future employment, and other opportunities.

Amici’s Proposed Proposition of Law

The juvenile court’s failure to follow the procedural requirements in R.C. 2152.84 violates a child’s right to due process.

Student Contributor: Ivy Charneski

Update: On June 25, 2019. The Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.

Read an analysis of the oral argument here.

On January 8, 2019, the Supreme Court of Ohio will hear oral argument in the case of In Re: Adoption of B.I. 2018-0182. At issue in this case is whether, pursuant to R.C. 3107.07(A), the consent of a parent with a zero child support order is required for an adoption. The case was accepted on discretionary appeal and conflict certification, and consolidated with cases 2018-0181, 2018-0350, and 2018-0351.

Certified Conflict Question

“In an adoption consent case under R.C. 3707.07(A ) in which a court has previously relieved a parent of any child-support obligation, does that previous order supersede any other duty of maintenance and support so as to provide ‘justifiable cause’ for the parent’s failure to provide maintenance and support, therefore requiring the petitioner to obtain the consent of that parent?”

Certified Conflict Case

In Re Adoption of A.S., 2011-Ohio-1505 (5th Dist.)( zero support order was not justifiable cause for a failure to support.)

Case Background

Gary Burbage II (“Father”), the natural father of B.I., has been incarcerated since 2009. In 2010, in order to avoid Father’s re-incarceration upon his  release from prison, B.I.’s mother Kristen (“Mother”) agreed to an order by Clermont County Juvenile and Probate Court Judge Stephanie Wyler setting Father’s child support obligation and arrearage at zero. Father has prison income of $18 per month. Father has also had contributions to his prison account totaling $5,152 of which he has spent $4,681.62 at the prison commissary—largely on food. In the year prior to the adoption petition, Father never provided maintenance or support for B.I., nor was he asked to do so.

Greg Iredale (“Stepfather”) seeks to adopt B.I. Mother has consented to the adoption, but Father has not.

In February 2016, Stepfather petitioned the Hamilton County Probate Court, alleging that under R.C. 3107.07(A), Father’s consent to the adoption was not required because Father failed without justifiable cause to provide maintenance and support for B.I, and that Father had a duty to support his son by law, separate from the zero child support order.

Hamilton County Probate Court Judge Ted Winkler found that the zero support obligation excused Father’s obligation to provide maintenance and support. Thus, Father’s consent was required for the adoption to proceed. Stepfather’s case was dismissed. Stepfather appealed.

The First District Court of Appeals upheld the trial court’s ruling in a split decision authored by Judge Dennis Deters and joined by Judge Russell Mock. Judge Charles Miller dissented. The majority found that under R.C. 3107.07(A), a parent cannot fail without justifiable cause to provide maintenance and support with a zero child-support order, and rejected the stepfather’s argument that a parent still has a duty of support separate from a judicial decree of support.  Thus the father’s consent to the adoption was required. Judge Miller would find that the 2010 order terminating the father’s support was not a zero child-support order, but should be treated as if no order exists, and would remand the case to the probate court to determine if the failure to provide support was justified.

Votes to Accept the Case

Yes: Chief Justice O’Connor and Justices O’Donnell, Kennedy, French, and DeWine

No: Justices Fischer and DeGenaro

Key Precedent

R.C. 2919.21(A) (Criminalizing nonsupport of dependents)

R.C. 3107.07(A) (Adoption Consent Statute) (Consent to adoption is not required when  parent fails  without justifiable cause to provide maintenance and support for the minor child for at least one year, as required by law or judicial decree.)

In Re Adoption of Schoeppner, 46 Ohio App.2d 21 (1976)  (“although the fact of imprisonment might, when combined with other factors, lend support to a finding of a willful failure to support, it will not constitute such failure as a matter of law.”)

In Re Adoption of Holcomb, 18 Ohio St. 3d 361 (1985) (the determination of whether justifiable cause exists is best left to the discretion of the probate court.)

In Re Adoption of Stephens, 2001-Ohio-7027 (2nd Dist.) (A court order absolved parent of both her statutory and judicially decreed duty of support. Thus, failure to support was justifiable.)

Frymier v. Crampton, 2002-Ohio-3591 (5th Dist.) (parent cannot use zero support order as a potential shield when own bad acts caused the incarceration and zero support order in the first place.)

In Re D.R., 2011-Ohio-4755 (7th Dist.) (“Appellant presented absolutely no evidence that he was prevented from making support during any part of the period in question. . . . [I]ncarceration alone is not a justifiable excuse . . . .”)

In Re Adoption of C.M.F., 2013-Ohio-4719 (12th Dist.) (“A determination that a parent failed to provide ‘support and maintenance’ must be based on a failure to make payments as required by law or judicial decree. The issue of whether justifiable cause exists when a parent is incarcerated is a factually specific determination based on the circumstances and evidence presented at the hearing.”) (Citations omitted).

In the Matter of the Adoption of K.A.H., 2015-Ohio-1971 (10th Dist.) (Parent living in foreign country, subject to no support order under divorce decree, did not fail to support his children by expending money on phone calls, cards, and gifts.)

In Re Adoption of Z.A., 2016-Ohio-3159 (5th Dist.) (“[A]ppellant was in jail and in prison as a result of his own wrongdoings and this is not justifiable cause for the failure to communicate and/or maintain support. Incarceration alone is not a justifiable excuse, even if it lasts for the entire period considered by the court.”) (Justice Kennedy would have included this as a conflict case).

Stepfather’s Argument

N.B. Due to Stepfather’s brief being sealed, Stepfather’s argument is summarized from his jurisdictional memorandum and reply brief.

Father’s consent to this adoption is not required. R.C. 3107.07(A) plainly exempts any need for consent when the non-consenting parent is determined to have failed to provide for the maintenance or support of the child by law or judicial decree. Because the statute is written in the disjunctive, the statute creates separate statutory and common law duties for parents to support their children. Courts have recognized this two-fold obligation in like circumstances, recognizing a statutory duty separate from judicial decree.

The question of parental consent in any given case is fact-intensive. A zero support order because of incarceration is not an excuse in and of itself. Instead, it is just one factor for the probate court to consider in deciding whether parental consent to adoption is required. Thus, courts should be free to recognize a parent’s obligation to maintain and support his or her child despite a decree when the court recognizes a parent’s means to do so.

Such discretion is appropriate in this case where Father had almost $5,400 in income, spent largely on junk food, while providing zero in support for B.I. In this case the probate court and the court of appeals majority erroneously based their decisions solely on the zero support order instead of weighing all the facts.

Even when a parent is incarcerated and has no support obligation, the parent must make some attempt, within his means, to provide support. Where, as here, no such attempt was made, parental consent to the adoption is not required.

Despite providing a lengthy string of quotations from previous decisions, Father fails to address the Supreme Court of Ohio’s previous decisions. Nor does Father attempt to address the plain language of the statute, which favor’s Stepfather’s proposition of law.

Finally, Amicus in support of Father does nothing to educate this Court. Rather, Amicus reveals her true motivation as a desire to relitigate her losing position on a petition for reconsideration in a different case. If the Court considers her arguments at all, it should do so with due skepticism.

Father’s Argument

While Father admits he did not pay support for his son for one year before the filing of the adoption petition, he had justifiable cause due to a valid judicial decree. The probate court was correct in determining his consent to the adoption was required.

The probate court’s ruling was founded upon appropriate caselaw from throughout the state. While Father acknowledges that there is a conflict on the issue, the majority of appellate courts in Ohio have held that a court order terminating or suspending a court-imposed support obligation supersedes any other statutory or common law obligation of support. The certified conflict case from the Fifth District is an outlier in this regard.

Further, public policy supports Father’s position. Holding otherwise could put parents who are subject to a zero dollar support order at risk of losing their parental rights without justification.  And the right of a parent to raise his or her child is a fundamental right.

Amicus Curiae A.G. in support of Father

A.G. is the paternal grandmother of two children whose maternal grandparents have been granted the right to adopt them without the father’s consent. Permitting adoption over the objection of a natural parent will sever the grandparent/child relationship.

Access to one’s children is a fundamental right, the loss of which is nearly beyond comparison. The First District was correct in finding that a zero order of support constitutes justifiable cause, and in preserving Father’s right in this case. And, to the extent this Court can interpret R.C. 3107.07(A) to preserve the grandparent/grandchild relationship, this Court should do so.

Stepfather’s Proposed Proposition of Law I

An adoption consent case under R.C. 3107.07(A) must be decided on a case-by-case basis through the able exercise of the trial court’s discretion. The trial court must give due consideration to all known factors in deciding whether a natural parent’s consent is required under the statute.

Stepfather’s Proposed Proposition of Law II

In an adoption consent case under R.C. 3107.07(A), a court order setting the natural parent’s child support obligation to zero does not justify the parent’s failure to provide maintenance and support to his or her child as a matter of law. Instead, a trial court must exercise its discretion and weigh all of the circumstances around which a parent has failed to provide maintenance and support; and a so-called zero support order is just one factor (among many) that the court must consider.

Father’s Proposed  Counter Proposition of Law

When a non-parent files an adoption petition, and an imprisoned natural parent is subject to a $0.00 support order, this constitutes justifiable cause to not pay support and the natural parent’s consent is then required for the adoption, notwithstanding that the parent has contributed no support for, or maintenance of the minor child.

Amicus Curiae A.G.’s Proposed Proposition of Law

When a natural parent’s conduct in relation to a minor child complies with a court order, he has ‘justifiable cause’ for that conduct for purposes of R.C. 3107.07(A).

Student Contributor: Mark Tassone

I don’t know why, but we all seem to love lists. And the blog is no exception. This is also the end for Justice Terrence O’Donnell, who had to retire because of the Ohio Constitution’s age limits, and Justice Mary DeGenaro, who lost the election to incoming Justice (as of 1-2-19) Melody Stewart. Justice Michael Donnelly replaces O’Donnell, starting today, New Year’s Day.

Here’s the blog’s top ten from 2018:

  1. Titles of Former and Retired Judges, Revisited. The popularity of this one continues to surprise me. It came in at number one last year as well, and by a wide margin this year.
  2. Bank of Am., N.A. v. Kuchta, 2014-Ohio-4275. Up from number 4 last year. In Kuchta, the Court held that a Civ. R. 60(B) motion cannot be used as a substitute for an appeal on the issue of standing in a foreclosure action, and cannot be used to collaterally attack the judgment. Additionally, the Court held that a court that has subject-matter jurisdiction over an action does not lose that jurisdiction because a party to the action does not have standing in that particular case. Read the analysis of the merit decision here.
  3. Anderson v. Massillon, 2012-Ohio-5711. A perennial favorite ever since it was decided. It gets cited a lot. The Court held in the case that negligence, recklessness, willful and wanton misconduct represent different degrees of culpability, and defined all these terms. Read the analysis of the merit decision  here. This was written by Justice O’Donnell, so it is now part of his legacy.
  4. D.W. v. T.L.,  2012-Ohio-5743. This is another perennial favorite, and up from 6th place last year. The issue in the case is how a child’s last name is determined when the parents aren’t married and disagree about it. The Court held that under its existing precedent, the test in a name change case is the best interest of the child, which in this case was to keep the mother’s name. Read the analysis of the merit decision here.
  5. State v. Anderson, 2016-Ohio-5791. In this case, the Court was faced with the question of how many times a criminal defendant could be retried. In Anderson’s case, the Court permitted a fifth retrial, even though Anderson had been incarcerated without a conviction for fourteen years at that point.  Read an analysis of the very fractured merit decision here.  As part of a plea agreement, Anderson has been released since this decision came out. This decision was  number two last year.
  6. Embassy Healthcare v. Bell, Slip Opinion No. 2018-Ohio-4912. This just came out December 12 and is already a big hit. The issue is whether a creditor must present its claim for unpaid necessaries to the decedent’s estate before it can bring a claim against the surviving spouse under Ohio’s necessaries statute, and a 4-3 Court held that it must. Read the analysis of the merit decision  here.
  7. Liming v. Damos, 2012-Ohio-4783. This one has made the list many times. The Court held that a purge hearing to impose a suspended sentence for failure to pay child support is a civil proceeding, and due process does not require the appointment of counsel for an indigent parent at the civil contempt purge hearing. Read the analysis of the merit decision here.
  8. State v. Vega,Slip Opinion No. 2018-Ohio-4002. In this case the Court examined how far the unmistakable smell of pot can take a police search following a traffic stop. Ultimately, the Court upheld the search of the defendant’s car, the duration of that search, and the subsequent discovery of wrapped marijuana candy in sealed envelopes in the car. This decision was also authored by Justice O’Donnell. Read an analysis of the merit decision here.
  9. State v. Carnes, Slip Opinion No. 2018-Ohio-3256. In this case the court held that it is constitutionally permissible to use a prior juvenile adjudication to prove an element of the offense of having a weapon while under disability as an adult. Read an analysis of the merit decision here.
  10. In re L.G. Slip Opinion No. 2018-Ohio-3750. This one was a real shame—the issue, a very interesting one, was whether a minor’s rights against self-incrimination were violated when he was questioned in the presence of police officers by a school resource supervisor, who was under an obligation to report his findings to police. But the Court punted, and dismissed the case as improvidently accepted. I have little doubt that this issue will be back, though.

Happy New Year!