 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
SENTENCING: SENTENCE ENHANCEMENT FINDING THAT DEFENDANT WAS A MAJOR DRUG OFFENDER MUST BE FOUND BY JURY. State v. Short, No. 83304, (8th. Dist. Ct. Apps., Cuyahoga. Co., 9-1-05) 2005 Ohio 4578. Eddie Short was convicted of drug possession, two counts of drug trafficking, and a specification that he was a major drug offender. The Cuyahoga County Court of Appeals held that imposing the two-year sentence for the specification under R.C. 2925.03(C)(4)(g) and 2929.14(D)(3)(b) violated the constitution as interpreted in Blakely v. Washington (2004), 542 U.S. 296. The court vacated the two-year sentence but otherwise affirmed the conviction. [Ed. Note: On February 27, 2006, the Ohio Supreme Court in State v. Foster, Nos. 2004-1568 and 2004-1771, 2006 Ohio 856, held that Ohio's sentencing scheme was unconstitutional under Blakely. Any defendant whose case was pending on direct appeal on February 27, 2006 will have to be re-sentenced, however a court may impose any sentence within the range for any reason without any findings. Some defendant who received sentences close to the minimum have already withdrawn their appeals.] POST-CONVICTION PETITION: BLAKELY NOT RETROACTIVE, THEREFORE, NOT AN EXCEPTION TO 180 DAY TIME LIMIT. State v. Foster, No. 86155, (8th Dist. Ct. Apps., Cuyahoga Co., 12-15-05), 2005 Ohio 6625. Having been indicted in 1997 for two counts of raping his five-year-old cousin, Andre Foster entered guilty pleas to two counts of attempted raped. He was sentenced to ten years and found to be a sexual predator. In 2002 and 2004, Foster filed motions to withdraw his guilty pleas, both of which the trial court denied. On February 6, 2005, Foster filed a petition for post-conviction relief, raising issues under Blakely v. Washington, (2004), 542 U.S. 296. The court dismissed the petition and Foster appealed. The Cuyahoga county court of appeals held that Foster could not rely on Blakely to extend the 180 day time in which to file a post-conviction petition because Blakely, the United States Supreme Court held in United States v. Booker (2005), 543 U.S. 220, applied to cases then pending on direct appeal only. The court affirmed the trial court's dismissing the petition.
POST-CONVICTION PETITION: FINDINGS OF FACTS AND CONCLUSIONS OF LAW UNNECESSARY WHEN PETITION UNTIMELY. State v. Foster, supra. The court also said that when a post-conviction petition is untimely, the trial court need not file findings of fact and conclusions of law when dismissing the petition. As a court is without jurisdiction when the defendant fails to show one of the exceptions to R.C. 2953.21 time limits, findings are unnecessary. POST-CONVICTION PETITION: MANDAMUS TO FILE FINDINGS OF FACT AND CONCLUSIONS OF LAW INAPPROPRIATE WHEN PETITION UNTIMELY. State ex rel Axson v. Pokorny, No. 86617, (8th Dist. Ct. Apps., Cuyahoga Co. 8-19-05), 2005 Ohio 4396. Inmate Axson filed a petition for a writ of mandamus compelling Judge Pokorny to file findings of fact and conclusions of law on Axson's post-conviction petition. The judge filed a motion to dismiss. The opinion is unclear whether the judge dismissed the petition without findings or declined to rule at all because the petition was untimely. As a court is without jurisdiction to rule on an untimely petition, it might have been the latter. The Cuyahoga County Court of Appeals held that a trial court has no legal obligation to file findings of fact and conclusions of law when the petitioner fails to establish either exception under R.C. 2953.21(A)(2). The court granted the judge's motion to dismiss. OTHER ACTS: EVIDENCE OF VIOLENCE AGAINST MOTHER OF VICTIMS OF RAPE, ADMISSIBLE. State v. Dominic, No 86082, (8th Dist. Ct. Apps., Cuyahoga Co. 1-26-06) 2006 Ohio 292. Kevin Dominic was convicted of rape and GSI of his two daughters, who were at the time in 1993, under thirteen years old. After the mother of the children moved herself and her five children into a neighbor's home, the girls told her about the abuse. The mother took the girls to the hospital and called the police. Before police could arrest Dominic, he wrote notes to his wife and his parents, saying he was going to drown himself. He abandoned his car by a lake. In 1999, police found the defendant, living in Florida as Kevin Thompson, and arrested him. Apparently he fled again, as he was missing until 2004, when he was returned to Ohio for trial. The girls, now 21 and 23, testified that they failed to report the sexual conduct because they were afraid of their father, as they had seen him beat their mother. On appeal the defendant argued that the court erred in admitting evidence that the defendant had threatened and beaten his wife, including hitting her with a frying pan. The Cuyahoga County Court of Appeals found the evidence admissible, as it was relevant to the element of force. The court cited State v. Smith (1990), 49 Ohio St. 3d 137. The court affirmed the conviction for rape, but reversed the sentence on GSI on other grounds and remanded for re-sentencing. STATUTE OF LIMITATIONS: ABUSE OF CHILDREN; TIME FOR PROSECUTION, WHEN MOTHER IS A NURSE: ALSO EFFECT OF AMENDMENT EXTENDING STATUTE OF LIMITATIONS. State v. Simms, No 05-CO-4, (7th Dist. Ct. Apps., Columbiana Co., 12-23-05). The Columbiana County Grand Jury indicted David Simms for gross sexual imposition. In 1983, Becky Simms, the defendant's wife, worked as a babysitter for a couple, Mr. and Mrs. Prince, with four children. Occasionally she returned to her own home to care for her own child, leaving the four children with her husband. The defendant had sexual contact several times during 1983 and 1984 with two of the girls, Kendra and Kristen, who were approximately six or seven years old. Neither girl told anyone for years. Sometime in 1991, both girls told their mother, a registered nurse, what appellant had done. The mother told a friend, who is also a nurse, and her sister, a school teacher, but never told any law enforcement officer. On January 18, 1994, responding to an unspecified source alleging abuse against Kendra, the Columbiana Department of Job and Family Services investigated the allegations but filed no charges. In April, 2004, the Columbiana County Prosecutor's Office re-opened the investigation because three persons reported that Simms had admitted to them that he had abused the children. The grand jury indicted Simms on one count of committing GSI against Kendra. (The opinion fails to explain what happened to the allegations by Kristen). The defendant filed a two-pronged motion to dismiss the indictment. He asserted that the time in which to prosecute began when Kendra told her mother, because her mother, a nurse, is a "responsible adult" under R.C. 2151.421. The defendant also claimed that the amendment to R.C. 2901.13 extending the statute of limitation to twenty years was inapplicable. The court denied this motion and the defendant was convicted. On appeal, the Columbiana County Court of Appeals held that Kendra's telling her mother in 1991 about the abuse failed to start the time for prosecution because Mrs. Prince learned of the abuse not in her professional capacity; but as a mother. Likewise, Mrs. Prince's friends learned about the abuse not as a teacher or a nurse but as friends of the family. Therefore, the court held, the time for prosecution did not, as appellant claimed, expire in 1997. The defendant also claimed that the amendment to R.C. 2901.13 should not apply to him. That amendment extend the statute of limitation on GSI, among other offenses, to crimes committed before the amendment's effective date of March 9, 1999, if the time in which to prosecute the offense had not expired by March 8, 1999. In State v. Hensley (1991), 59 Ohio St. 3d 136, the Ohio Supreme Court held that a parent is not a "responsible adult" under R.C. 2151.421. A parent, the Ohio Supreme Court said, may not always report the abuse for "sundry reasons." (The opinion is silent on the reason for Mrs. Prince's silence). The Columbiana County Court of Appeals held that the plain language of R.C. 2151.421 excludes Mrs. Prince from the class of those who have a duty to report. The statute requires certain persons, including nurses and teachers, to report suspected abuse when those persons are "acting in an official or professional capacity." As neither Mrs. Prince nor her confidants learned of the abuse while "acting in an official or professional capacity," the court held, they had no legal obligation to report the suspected abuse. Therefore, their knowing about the abuse failed to trigger the running of the time for prosecution. The time for prosecution began, the Columbaria County Court said, on January 18, 1994, when a "responsible adult" who also had a legal obligation to report suspected abuse, first learned of the allegations. The six-year statute of limitations would expire, therefore, on January 18, 2000. Thus the amendment extending the statue of limitations to twenty years applied to appellant's case. The court affirmed the conviction.
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