During oral arguments, one of the greatest feelings an attorney will experience is when opposing counsel is making an elongated argument and starts to make arguments contra to a statute or well established case law.  This attorney’s ears will perk up and will fight the urge to just jump right in and explain how opposing counsel is completely wrong.  This attorney just waits like a lion waiting to pounce on its helpless prey.  Then the moment comes where the attorney gets to open a can of whoop-ass on opposing counsel.  It is a tremendous feeling.

This feeling might have been felt in State v. Zollinger, 2016-Ohio-8399.  But instead of counsel vs. counsel, this was counsel vs. trial court.

In Zollinger, Zollinger was indicted on several counts of sexual battery and was later charged by way of bill of information with two counts of attempted tampering with evidence.  Pursuant to a plea agreement, Zollinger would plead guilty to the attempted tampering counts in exchange for the State dismissing the sexual battery indictment.

On January 21, 2011, Zollinger pled guilty to the attempted tampering case and was sentenced to community control, with ninety days in local jail.  The sexual battery indictment was dismissed with prejudice.

On October 12, 2015, Zollinger filed a “motion to seal record after dismissal” for his sexual battery case pursuant to R.C. 2953.52 and filed a motion to seal his attempted tampering record.

On December 23, 2015, the trial court conducted a hearing, noting that it was not in possession of the post-dismissal motion to seal indictment in the sexual battery case, and that it would therefore only consider the motion to seal conviction under the attempted tampering case.

On January 4, 2016, the trial court issued its decision via a judgment entry and granted Zollinger’s motion to seal his attempted tampering record.  In a separate judgment entry, the trial court noted that it obtained and reviewed the motion to seal the dismissed sexual battery offense, but nevertheless, overruled Zollinger’s motion to seal his dismissed sexual battery case.

The trial court reasoned the following:

“Unlike statutes governing a motion to seal the record of a conviction, there is no statutory procedure for sealing a record after the dismissal of a case.  However, courts have inherent authority to grant the request in appropriate circumstances.

***

The dismissal of this case resulted from a plea agreement in which (a) the defendant admitted guilt for sexual battery offenses in this case, and (b) the state agreed to accept guilty pleas in the attempted tampering case in lieu of its further prosecution of this case.  To the extent that the court has any legislative guidance for a motion to seal a dismissal record, R.C. 2953.36(B) (Sealing of Record of Conviction Exceptions), precludes a motion to seal the record for a sexual battery conviction.”

Given that the trial court was completely wrong, Zollinger filed a timely appeal.

The appellate court stated that R.C. 2953.52 governs applications to seal records where either the underlying charges have been dismissed or the individual was found not guilty.  State ex rel. Cincinnati Enquirer v. Lyons, 2014-Ohio-2354.  R.C. 2953.52 directs the trial court to “weigh the interests of the person in having the official records pertaining to the case sealed against the legitimate needs, if any, of the government to maintain those records.  R.C. 2953.52(B)(2)(d).

The appellate court found that the trial court concluded that because the sexual battery case involved sex offenses, expungement of the indictment was not permitted pursuant to another statute, namely R.C. 2953.36.  This interpretation of the law was erroneous, as the appellate court clearly points out that R.C. 2953.36 is for types of convictions that preclude sealing.  Zollinger was never convicted of any sexual offense.

Based on the circumstances, the appellate court held that since the trial court failed to hold a specific hearing under R.C. 2953.52(B) and that the trial court improperly applied R.C. 2953.36 to block appellant’s request to seal the dismissed indictment, the trial court’s decision was reversed and remanded for further proceedings.

Boom-Shakalaka! Boom-Shakalaka! Boom-Shakalaka! BOOM!

Great case and great example of making sure you cover your bases before putting forth an argument.

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Ahhh…Policy and procedure manuals, the true back bone of any government agency or private business.  No one wants to read them, but they come in handy when you find yourself in a situation and have no clue what to do or how to act.  After all, that is what they are there for, beyond collecting dust on a bookshelf.  And it was a policy and procedure manual that saved day for Zeigler in State v. Zeigler, 2016-Ohio-8370.

In Zeigler, Zeigler was a passenger in a vehicle that failed to negotiate a curve and ran off the right side of the roadway striking a tree.  EMS, firefighters, a Knox County deputy sheriff and Trooper Winans of the Ohio State Highway Patrol all were called to the scene.  Trooper Winans was in charge of the accident investigation.  Prior to Trooper Winans’ arrival, the driver had been taken from the scene in preparation for transport to Columbus by helicopter.  Zeigler having suffered a minor leg injury was still at the scene on a stretcher.  The vehicle was disabled and a tow truck was called to the scene.

Prior to Trooper Winans decision to tow the vehicle, Zeigler asked a firefighter to retrieve his backpack from the vehicle.  The backpack was over the headrest of the passenger’s seat.  Trooper Winans determined the backpack would not be returned to Zeigler until an inventory search of the contents of the backpack was completed.  Among the items found in Zeigler’s backpack were a firearm, pills, and fireworks.

Zeigler’s girlfriend arrived at the scene and asked Trooper Winans if she could retrieve Zeigler’s sunglasses from the vehicle.  Trooper Winans located the sunglass case, searched it, and found some loose marijuana.  The backpack and sunglasses/case were given to Zeigler’s girlfriend.  The Vehicle Inventory/Custody Report listed the backpack but not the contents.  The form also did not list the items returned to Zeigler’s girlfriend.

Ziegler was indicted on two counts of Having Weapons While Under Disability, Illegal Manufacture of Fireworks, Improperly Handling a Firearm, Possession of Drugs, and Possession of Marijuana.

Zeigler filed a motion to suppress evidence used against him.  A suppression hearing was held, and the trial court granted Zeigler’s motion to suppress.  The state appealed raising the following error:

“The Trial Court Erred As A Matter Of Law When It Did Not Apply The Appropriate Test Or Correct Law To The Facts Of This Case.”

The appellate court broke down their decision by taking a look at “Search of Passenger’s Belongings” and “Inventory Search.”  I will address each one as the appellate court did in their decision.

Search of Passenger’s Belongings

In Wyoming v. Houghton, 526 U.S. 295 (1999), the U.S. Supremes stated that passengers, no less than driver, possess a reduced expectation of privacy with regard to the property that they transport in cars, which travel public thoroughfares, are subjected to police stop and examination to enforce pervasive governmental controls as an everyday occurrence, and are exposed to traffic accidents that may render all their contents open to public scrutiny.

Further, police officers with probable cause to search a car may inspect passengers’ belongings found in the car that are capable of concealing the object of the search.  Id.

The appellate court, however, noted that the state did not argue Trooper Winans’ had probable cause to search the driver’s car or that the trooper had a reason to believe contraband or evidence of criminal wrongdoing was hidden in the car.  The appellate court also noted that the state argued that the search of Zeigler’s backpack was justified as part of an inventory search of the vehicle.

Inventory Search

Inventory searches involve administrative procedures conducted by law enforcement officials and are intended to (1) protect an individual’s property while it is in police custody, (2) protect police against claims of lost, stolen or vandalized property, and (3) protect police from dangerous instrumentalities.  State v. Mesa, 1999-Ohio-253, citing South Dakota v. Opperman, 428 U.S. 364.  Because inventory searches are administrative caretaking functions unrelated to criminal investigations, the policies underlying the Fourth Amendment warrant requirement, including the standard of probable cause, are not implicated.  Id.  Rather, the validity of an inventory search of a lawfully impounded vehicle is judged by the Fourth Amendment’s standard of reasonableness.  Id.

In State v. Hathman, 65 Ohio St.3d (1992), the Ohio Supremes analyzed and followed various U.S. Supreme Court decisions and held the following:

1)         To satisfy the requirements of the Fourth Amendment to the United States Constitution, an inventory search of a lawfully impounded vehicle must be conducted in good faith and in accordance with reasonable standardized procedure(s) or established routine.

2)        If, during a valid inventory search of a lawfully impounded vehicle, a law-enforcement official discovers a closed container, the container may only be opened as part of the inventory process if there is in existence a standardized policy or practice specifically governing the opening of such containers.

The Ohio Supremes went on to state that, “if, during a valid inventory search of a lawfully impounded vehicle, a law-enforcement official discovers a closed container, the container may only be opened as part of the inventory process if there is in existence a standardized policy or practice specifically governing the opening of such containers.  Id. (Original emphasis).

In Zeigler’s case, the appellate court looked to the Ohio State Highway Patrol Policy Handbook, specifically section 200.10 Administrative Inventory.  Now, the appellate court cited various parts of the Administrative Inventory sections, but for our conversation, I will look at part of Seizure of Evidence or Contraband and Area of Inventory under section 200.10.

Seizure of Evidence or Contraband, in part, states the following:

“The Division’s policy is to inventory all vehicles or other property with which we become involved where the owner or agent of the owner is unable to assume control of the property.”

Area Inventory states the following:

“The following areas should be checked for Items of value:

Passenger compartment of a motor vehicle.  The passenger compartment is defined as any place the occupant can reach without exiting the vehicle.

Glove compartment (unlocked or locked, if the key is available).

Trunk area, to include any side panel compartment and under the spare tire (when the trunk key is available, unless exigent circumstances exist or probable cause exists to indicate items of value are present).

Engine compartment (visual observation of items of value).

Closed, locked, sealed, or taped containers.

Other, vehicles (trailers being towed, etc,  when the key is available).

Luggage carriers.”

Looking at Zeigler’s case, the appellate court found that the owner of the vehicle had been removed from the scene and transported to the hospital.  That the vehicle was not drivable and was required to be towed from the scene, and that Trooper Winans had assumed responsibility of the vehicle.  Based on those facts, the appellate court found that Trooper Winans could lawfully conduct an inventory search of the vehicle pursuant to the Ohio State Highway Patrol’s policy.  In addition, because the policy also contains standardized policy or practice specifically governing the opening of closed containers, Trooper Winans could lawfully open an item such as a backpack as part of the inventory process.

However, under Seizure of Evidence or Contraband, the appellate court noted that the inventory is to be conducted only “where the owner or agent of the owner is unable to assume control of the property.”

The appellate court found that Zeigler exerted control over the property when he asked to have it returned to him.  The backpack and its contents, minus the contraband, were released to Zeigler’s girlfriend and were not inventoried.  In fact, Trooper Winans testified, “I should have crossed that off the inventory” because “it wasn’t part of the vehicle.  It wasn’t going with the vehicle to the tow truck, to the towing company.”

With that, the appellate court held that Zeigler’s backpack did not need to be searched as part of the vehicle’s inventory because Zeigler was not in custody and was able to take control of the backpack.  The trooper had no reason to believe the backpack contained contraband or evidence of criminal activity.  The trooper had no reason to believe that the backpack needed to be searched for officer protection.

Talk about being saved by the policy and procedure handbook!!

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At some point in an attorney’s career, the following question will be asked by a family member or a random person they meet a bar: “How do I get out of jury duty?”

My smart-ass answer to this question is “just tell the court that you don’t believe in the constitution, and if it is a criminal case tell the defense attorney you believe that if a cop arrests a person they are automatically guilty.”

Now in Ohio, a prosecutor and a criminal defendant may each peremptorily challenge three of the jurors in a misdemeanor case and four of the jurors in a felony case.  So what the hell is a peremptory challenge?

A peremptory challenge is a tool that both the prosecutor and criminal defense attorney use during the jury selection process (voir dire for all you legal types) to reject potential jurors without stating a reason.  As you can imagine, this can and did lead to some courtroom battles between prosecutors and criminal defense lawyers.  Specifically, could a defendant who is a minority stop a prosecutor from purposefully removing jurors who are also minorities?

In Batson v. Kentucky, 476 U.S. 79 (1989), the United States Supreme Court answered that question.  In Batson, the United States Supreme Court held that the Equal Protection Clause of the United States Constitution precludes purposeful discrimination by the State in the exercise of its peremptory challenges so as to exclude members of minority groups from service on petit juries.

One important part of the Batson holding was “purposeful discrimination by the State” not the State and Defendant.  Well, in State v. Yuschak, 2016-Ohio-8507, the State used a Batson challenge against the defense during jury selection.  With that, let’s take a look at Yuschak.

In Yuschak, Yuschak arranged for his girlfriend’s cousin to obtain drugs form Yuschak’s daughter in an attempt to arrange for a police bust of the drug deal so that his daughter could be arrested and treated for her drug addiction.  After the cousin contacted the daughter to seek drugs, the daughter contacted a man with whom she has gone to school with to help her obtain the drugs.

Said school friend agreed to drive the daughter to Cleveland, and kindly advanced her money to purchase heroin.  The school friend then drove the daughter to a Dairy Queen parking lot where she had arranged to meet the cousin to complete the drug transaction.  The cousin arrived with Yuschak at the Dairy Queen.  After they arrived, the school friend was shot by Yuschak.

Yuschak was indicted on attempted murder, felonious assault, and weapons under disability, with firearm specifications attached to the attempted murder and felonious assault.

Yuschak went to jury trial and was found guilty on all charges.  The trial court sentenced Yuschak to an aggregate term of ten years in prison.  Yuschak filed a timely appeal.

Yuschak filed numerous assignments of error in his appeal, but for our discussion we are going to focus on the following assigned error:

“The trial court’s denial of Mr. Yuschak’s peremptory challenge was a substantive violation of his right to a fair and impartial jury.”

Specifically, Yuschak argued that the trial court erred by denying his peremptory challenge of a venireperson based upon the State’s Batson challenge.

When looking a Batson challenge, “a court adjudicates a Batson claim in three steps.”  State v. Were, 2008-Ohio-2762.  First, the opponent of the peremptory challenge must make a prima facie case of racial discrimination.  State v. Maxwell, 2014-Ohio-1019.  Second, if the trial court finds this requirement fulfilled, the proponent of the challenge must provide a racially neutral explanation for the challenge.  Id.  Finally, the trial court must decide based on all the circumstances whether the opponent has proved purposeful racial discrimination.  Id.

The critical question, which the trial judge must resolve, is whether counsel’s race-neutral explanation should be believed.  Hernandez v. New York, 500 U.S. 352 (1991).

During voir dire, a potential juror identified as Ms. Griffin, asked the court if the proceedings would continue past 5:00 on the days of court proceedings because she had a deadline by which she was required to pick up her daughter from daycare.  The trial court informed Ms. Griffin that the goal would be to finish proceedings each day prior to 5:00.

Later during voir dire, the State asked Ms. Griffin what the latest time was by which she would have to leave each day.  She responded that she would need to leave by approximately 5:30.  The defense counsel followed that question up by asking Ms. Griffin if she would get stressed if court proceedings were nearing 5:00.  She responded that she would probably be concerned, but it would not affect her ability to concentrate.

When exercising peremptory challenges, the defense indicated that it wished to exercise a peremptory challenge with respect to Ms. Griffin.  The following exchange then occurred:

State: Your Honor, we would challenge that one, a Batson challenge here, and just ask for a reason.

Defense Counsel:  I didn’t like the answer about her being nervous about her having to worry about 5 o’clock.

Court:  Well, she only needs to be out by 5 o’clock which is something within the Court’s control so we will not keep her here past 5 o’clock so she will not have to worry and based on the Batson, I’m denying that peremptory.

Defense Counsel:  Okay

State:  Well, in this case, just for the record, there are some issues that one could think that someone from the Defense attorney, the Defense would want to exclude an African-American person so I would – I just didn’t think there was any reason.

Defense Counsel:  Okay

Court:  You can save it for appeal

Now Yuschak’s argument has two parts as it relates to the State’s Batson challenge.  The first being the State cannot use a Batson challenge and the second being that defense offered a racially neutral explanation for their peremptory challenge of Ms. Griffin.

The appellate court shot down Yuschak’s first argument by stating that Batson has been extended to defense peremptory challenge made by a defendant.  Georgia v. McCollum, 505 U.S. 42 (1992).  So that argument is out!

Before going into Yuschak’s second argument as it relates to Batson, I think it is important to point out that I believe that the trial court put the cart before the horse when making its decision.  Specifically, I think the trial court should have explained in more detail whether or not the State made a prima facie case for racial discrimination.  Personally, I don’t think the State made a prima facie case.

To establish a prima facie case, a litigant must show how he or she (juror member) is a member of a cognizable racial group and that the peremptory challenge will remove a member of the litigant’s race from the venire. Hicks v. Westinghouse Materials Co., 78 Ohio St.3d 95.  The peremptory challenge opponent is entitled to rely on the fact that the strike is an inherently discriminating device, permitting those to discriminate who are of a mind to discriminate.  State v. Hernandez, 63 Ohio St.3d 577.  The litigant must then show an inference or inferences of racial discrimination by the striking party.  Hicks.  The trial court should consider all relevant circumstances in determining whether a prima-facie case exists, including statements by counsel exercising the peremptory challenge, counsel’s questions during voir dire, and whether a pattern of strikes against minority members is present.  Id.

Looking at the above exchange, the State simply stated that they are using a Batson challenge against defense counsel’s peremptory challenge.  The State did not show any inferences of racial discrimination by defense counsel.  The trial court should have dug in deeper and ask what inferences from defense counsel’s voir dire would lead the State to believe there was racial discrimination.

Based on my reading of the exchange, the State tried to jump in, after the trial court denied defense counsel’s peremptory challenge, with an explanation.  Which I can only infer as being the following 1) defendant is white, 2) victim is African-American, 3) Ms. Griffin is African-American.

I believe this is a stretch and I don’t believe that the trial court did a great job diving into whether or not the State made a prima facie case.

Moving on, the appellate court did not buy that the defense made a racially neutral explanation for why they wanted to use a peremptory challenge against Ms. Griffin.

The appellate court felt that the trial court made it clear to Ms. Griffin that the court proceedings would end by 5:00 p.m. each day so she not to worry about picking up her child.  In addition, the appellate court pointed out that her concern as to the time would not affect her ability to concentrate.  Thus, the appellate court could not say that the trial court clearly erred in its apparent conclusion that the race-neutral reason provided by the defense was not credible.  see State v. Payne, 2013-Ohio-5230.

Personally, anytime I hear opposing counsel or the court say “we should be out of here in about 20 minutes” I automatically assume that my hearing will go on for another hour to two hours.  This case was about a father who attempted to kill his daughter’s drug dealer to get her off of drugs.  To think that the daily trial proceedings would end on the dot every day at 5:00 p.m. is ridiculous in my mind.  Defense counsel’s reasoning made sense to me.

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She don’t lie, She don’t lie, She don’t lie….Cocaine!!  That’s right ladies and gentleman.  I am going to be talking about that Nose Candy…that Yeyo…that Cocaine!

In State v. Gonzales, 2016-Ohio-8319, the Ohio Supreme Court was asked, “Must the state, in prosecuting cocaine offense involving mixed substances under R.C. 2925.11(C)(4)(b) through (f), prove that the weight of the cocaine meets the statutory threshold, excluding the weight of any filler materials used in the mixture?”

In Gonzales, Gonzales was busted for buying a baggie of cocaine from a confidential informant.  The baggie of cocaine weighed 139.2 grams, of which 3 to 20 grams were the weight of the baggie itself.  Because Gonzales was alleged to have possessed more than 100 grams of cocaine, Gonzales was indicted on one first-degree felony count of cocaine possession under R.C. 2925.11(A) and 2925.11(C)(4)(f).  To make matters better for Gonzales, since it was alleged that he possessed at least 100 grams of cocaine he was labeled a major-drug-offender (MDO), a specification in the indictment.

R.C. 2929.01(W) includes in its definition of MDO “an offender” convicted of possessing “at least one hundred grams of cocaine.”

At trial, the confidential informant and several law enforcement officers testified that exhibit 13 was the baggie of cocaine Gonzales purchased.   Some witnesses acknowledged that cocaine is often mixed with other substances or filler material.  No evidence was presented regarding the purity of exhibit 13.  Meaning, whether the cocaine was mixed with a filler and if so, how much of the substance was filler.

Based on this, the defense asked the trial court to read the statutory definition of “cocaine” in R.C. 2925.01(X) to the jurors, and to instruct them that to convict Gonzales of first-degree felony possession, they must find that Gonzales possessed at least 100 grams of actual cocaine, rather than a cocaine mixture.  The trial court denied both motions.

The jury found Gonzales guilty of possession of cocaine and further found that the amount of cocaine involved equaled or exceeded 100 grams.  Gonzales was immediately sentenced to a mandatory term of 11 years.

Gonzales appealed to the Sixth District Court of Appeals.  The appellate court reversed the judgment and remanded the case for resentencing.  The appellate court held that in prosecuting cocaine offenses under R.C. 2925.11(C)(4)(a) through (f), the state is required to prove that the weight of the actual cocaine possessed by the offender met the statutory threshold.  Since this was not accomplished, the appellate court held that the penalty enhancement under R.C. 2925.11(C)(4)(f) must be reversed and vacated.

The state makes a discretionary appeal to the Ohio Supremes based on a certified conflict between Gonzales’ case out of the Sixth District and State v. Smith, 2011-Ohio-2568, out of the Second District.

Unfortunately, the vast majority of the Ohio Supremes’ opinion is just some good ole fashion statutory interpretation.  So hang in there and try not to fall asleep.

The Ohio Supremes open up with that it is their “main objective is to determine and give effect to the legislative intent.”  State ex rel. Solomon v. Police & Fireman’s Disability & Pension Fund Bd. of Trustees, 72 Ohio St.3d 62 (1995).  To accomplish this task, “we must first look at the language of the statute itself.”  Provident Bank v. Wood, 36 Ohio St.2d 101 (1973).  If the language is clear and unambiguous, we must apply it as written. “It is the duty of this court to give effect to the words used, not to delete words used or to insert words not used.”  Columbus-Suburban Coach Lines, Inc. v. Pub. Util. Comm., 20 Ohio St.2d 125 (1969).  It is also a cardinal rule of statutory construction that a statute should not be interpreted to yield an absurd result.  State ex re. Dispatch Printing Co. v. Wells, 18 Ohio St.3d 382 (1985).

The Court, however, emphasized that “where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant.”  State v. Young, 62 Ohio St.2d 370 (1980).  This canon of strict construction, also known as the rule of lenity, is codified in R.C. 2901.04(A), which provides that sections of the Revised Code that define offenses or penalties “shall be strictly construed against the state, and liberally construed in favor of the accused.”  Under the rule, ambiguity in a criminal statute is construed so as to apply the statute only to conduct that is clearly proscribed.  United States v. Lanier, 520 U.S. 259 (1997).

Alright!!  Now that we have that basic case law about statutory interpretation, let’s dive into some legal analysis.

Gonzales was convicted of possession of cocaine in violation of R.C. 2925.11, which provides:

(A) No person shall knowingly obtain, possess, or use a controlled substance or a controlled substance analog.

***

(C) Whoever violates division (A) of this section is guilty of one of the following:

***

(4) If the drug involved in the violation is cocaine or a compound, mixture, preparation, or substance containing cocaine, whoever violates division (A) of this section is guilty of possession of cocaine.  The penalty for the offense shall be determined as follows:

***

(f) If the amount of the drug involved equals or exceeds one hundred grams of cocaine, possession of cocaine is a felony of the first degree, the offender is a major drug offender, and the court shall impose as a mandatory prison term the maximum prison term prescribed for a felony of the first degree.  (Original emphasis)

Remember this case is about possession of cocaine as it relates to felony of the first degree.  The possession of any amount of cocaine is at least a felony of the fifth degree.  Thus, fillers would not matter for a felony of the fifth degree.

The state argued that R.C. 2925.11(C)(4) recognizes that the “drug involved” can be “cocaine or a compound, mixture, preparation, or substance containing  cocaine.”  Because the drug involved can be a mixture, the state reasons that the weight requirements in R.C. 2925.11(C)(4)(b) through (f) do not refer to the weight of pure cocaine only.  The state further argued that the literal interpretation of the statute adopted by the Sixth District creates an absurd result and that the General Assembly did not intend to require a purity analysis of cocaine in prosecutions for possession of cocaine.

Speaking of purity, the state argued that Ohio’s state labs perform aggregate/qualitative analyses by not purity/quantitative analyses of drugs.  The state contended that it will take a significant amount of time for state labs to become accredited to do the purity testing mandated by the Sixth District’s decision and that this process will hamper efforts to prosecute cocaine trafficking and possession cases.

The Ohio Supremes, however were not buying the state’s argument.  To begin, the Court found that the state failed to point to any ambiguity in the statute.  Without that, the Court found that they must simply apple the statute as it is written, without delving into legislative intent.

The Court first takes on the state’s claim that the Sixth District’s interpretation would lead to absurd or unjust results and that cocaine should not be treated differently from any other controlled substance.

Looking at subsections (C)(4)(b) through (f), the Court points out that these sections are written differently from the other subsections of R.C. 2025.11.  For example, the term “drug involved” is modified by the words “of cocaine.”  The state, according to the Court, was quick to call this a faux pas on the part of the General Assembly when it amended R.C. 2925.11(C)(4) in House Bill 86.  The Court did not agree with this assertion.

The Court pointed out that while House Bill 86 eliminated the separate sentencing scheme for crack cocaine, it also significantly lowered the amount of cocaine necessary to trigger an elevation sentence.  However, House Bill 86 was designed to reduce prison sentences for nonviolent offenders, and lowering the amount of cocaine needed to elevate a prison sentence would be inconsistent with this purpose.  The Court goes on to point out that “if the statute requires that state to prove the weight of the actual cocaine, and not simply the weight of a compound or mixture containing cocaine, then the legislative objectives are accomplished.”

The Court went on to hold that they found nothing in the language of R.C. 2925.11(C)(4)(f) to be ambiguous.  By its plain terms, the Court explained, the statute prohibits the possession of 100 grams or more of cocaine.

The Court found that in order to read the statute as the state would have them do, the Court would need to either delete the phrase “of cocaine” or add the phrase “or a compound, mixture, preparation of substance containing cocaine.”

The Court also recognized that this interpretation of R.C. 2925.11(C)(4)(f) may make the prosecution of possession of cocaine offenses harder for the state because state laboratories are not equipped or certified to do a purity analysis, it does not render prosecutions impossible.

Concluding, the Court found the state’s arguments concerning legislative intent and the consequences of the Sixth District’s interpretation are persuasive in regard to what the statute should say, the arguments are insufficient to overcome what the statute clearly does say.

With that, the Ohio Supremes punted the underlying problem to the General Assembly by stating “the remedy is to be found in the legislature, not a tortured judicial interpretation of a statute unambiguous on its face.”

In the end, however, the Ohio Supremes held that in prosecuting cocaine-possession offenses under R.C. 2925.11(C)(4)(b) through (f) involving mixed substances, the state must prove that the weight of the actual cocaine, excluding the weight of any filler materials, meets the statutory threshold.

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After reading State v. Fillinger, 2016-Ohio-8455, it was very clear to me that the issue of awarding or not awarding jail-time credit for time on house arrest will be heading up to the Ohio Supremes for their take on the subject.

In Fillinger, Fillinger pled no contest was convicted of one count of attempted gross sexual imposition and was sentenced to community control and, as part of that sentence, was placed on Electronic Monitored House Arrest (EMHA).  The sentencing entry did not provide any exceptions to Fillinger’s EMHA, stating only that the Defendant is placed on House Arrest with Electronic Monitoring Device.

About six months later, Fillinger was removed from EMHA, but shortly after being removed from EMHA, Fillinger violated the terms of his community control.  Fillinger admitted to the violation and the trial court imposed an 18 month prison sentence.  During his sentencing hearing, Fillinger requested credit for the time spent on EMHA.  Taking the matter under advisement, the trial court granted Fillinger’s request and credited him with jail-time credit for the time spent on postconviction EMHA.  The State appealed.

On appeal, both parties acknowledge that there was a split amongst Ohio appellate districts regarding the calculation of jail-time credit for postconviction EMHA.  Specifically, State v. Blankenship, 2011-Ohio-1601, out of the Tenth District and State v. Holmes, 2008-Ohio-6804, out of the Sixth District.

In Blnkenship, the court held that a defendant who had been convicted of a misdemeanor and placed on a 90-day period of EMHA, but was permitted to leave his home to go to work and anger-management treatment, was not entitled to confinement credit.  The court goes on to find that “confinement” requires such a restraint on the defendant’s freedom of movement that he cannot leave official custody of his own volition.

In Holmes, the court held that a defendant should have been granted jail-time credit under R.C. 2949.08 for his time on postconviction EMHA.  The court reasoned that because electronic monitoring constituted detention for purposes of an escape conviction, it should also warrant, in the interest of justice, credit as time served.

With those two cases in hand, the court in Fillinger declined to adopt the reasoning in Blankenship and decided to turn to the relevant statutes to determine whether or not they should consider EMHA as jail-time credit.

So hold on tight, because we are about to get into some super fun statutory interpretation!

R.C. 2949.08(B) provides:

“The record of the person’s conviction shall specify the total number of days, if any, that the person was confined for any reason arising out of the offense for which the person was convicted and sentenced prior to delivery to the jailer.” (Emphasis added)

R.C. 2967.191 provides:

“The department of rehabilitation and correction shall reduce the stated prison term of a prisoner***by the total number of days that the prisoner was confined for any reason arising out of the offense for which the prisoner was convicted and sentenced, including confinement in lieu of bail while awaiting trial.”  (Emphasis added)

Unfortunately for the purpose of the appellate court’s analysis, the Revised Code does not define the term “confined” as used in the above statues.

However, the appellate court looked to the definition of “house arrest” which is “a period of confinement of an offender that is in the offender’s home or in the other premises specified by the sentencing court.” R.C. 2929.01(P) (Emphasis added).  Based on that definition, the appellate court found that when “house arrest” is imposed as a community control sanction pursuant to R.C. 2929.17 for conviction of a felony, it is “confinement.”

Not ending their argument there, the appellate court discusses pre-trial confinement and postconviction confinement as it relates to EMHA.  The appellate court looked to State v. Gapen, 2004-Ohio-6548, for their analysis.

In Gapen, the Ohio Supremes held that pre-trial electronic home monitoring does not constitute detention for the purpose of prosecuting the crime of escape because it was not intended to be a form of detention under R.C. 2921.01(E).  The appellate court admits they have used Gapen to find that “pretrial EMHA does not constitute confinement for the purpose of receiving jail-time credit.” State v. Delaney, 2013-Ohio-2282.

The appellate court goes on to recognize that there will often be no practical distinction between pretrial house arrest and house arrest imposed as a postconviciton sanction.  However, the appellate court notes there is a legal distinction based upon R.C. 2929.01(P) specifically defining the later as “confinement.”  The appellate court, own their own accord, found that the Ohio Supremes also recognized this distinction between pretrial and postconviction house arrest as they carefully restricted their holding in Gapen by continually emphasizing that the case involved “pretrial” home monitoring.

To really drive it home, the appellate court stated that “any resulting inequity in the disparate treatment of pretrial and postconviction house arrest is a matter to be resolved by the legislature, not the judiciary.”

Whew!! Almost to the end!

Based on all of the above, the appellate court found that Fillinger was “confined” for purposes of receiving jail-time credit for the time spent on postconviciton EMHA.

There is no doubt in my mind that based on the Twelfth District’s decision in Fillinger, the Ohio Supremes will be seeing this issue on their docket very soon!

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