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SEXUAL OFFENDERS: R.C. 2950.031, PROHIBITING SEXUAL OFFENDERS FROM LIVING WITHIN 1,000 FEET OF A SCHOOL, CANNOT BE APPLIED TO AN OFFENDER CONVICTED BEFORE THE EFFECTIVE DATE AND LIVING IN THE SAME PLACE SINCE BEFORE EFFECTIVE DATE.

State v. Mutter, No. 21374, (2d Dist. Ct. Apps., Montgomery Co., 3-9-07).

In April, 2003, James Mutter was convicted of two counts of gross sexual imposition of children under the age of 13. The court sentenced him to five years of community control.

On July 31, 2003, R.C. 2950.031 took effect. Mutter’s home, where he has lived since 1977, is within 1,000 feet of an elementary school.

The Montgomery County Probation Department told Mutter to move, which he declined to do. The department filed a notice of violation of community control against him.

Finding Mutter in violation of community control, the court ordered him to move within 30 days or receive a one-year prison sentence. Mutter appealed.

The Montgomery County Court of Appeals held that R.C. 2950.031(A), as applied to Mutter, was unconstitutional under Section 28, Article II of the Ohio constitution. The statute cannot be applied, the court held, to a person who convicted of a sexual offense before the effective date of the statute, who lived within 1,000 feet of a school before the effective date of the statute, and who still lives in the same place. The court reversed and vacated the trial court’s order.

COMPETENCY OF DEFENDANT: FORCED MEDICATION; FINDINGS REQUIRED.

State v. McClelland, No 06AP-1236, (10th Dist. Ct. Apps., Franklin Co., 3-1-07).

On September 5, 2006, the trial court found Kevin McClelland, charged with assault and felonious assault, incompetent to stand trial. The court ordered McClelland to undergo treatment at Twin Valley Behavioral Healthcare for a year, in an attempt to restore his competency. On October 26, 2006, Twin Valley petitioned the trial court to permit the facility to forcibly medicate McClelland. After conducting a hearing, the court granted Twin Valley’s request. McClelland appealed.

Appellant argued that a trial court may not order forced medication unless the court, under Sell v. United States (2003), 539 U.S. 166, specifically finds that the medication “is substantially unlikely to have side effects that will interfere significantly with that defendant’s ability to assist in his criminal defense.”

Although R.C. 2945.38(B)(1) requires no special findings, the Tenth District Court of Appeals agreed with the appellant. The United States Supreme Court in Sell v. United States, the appellate court said, held forced medication constitutional under specific circumstances only. Those circumstances are 1) that the treatment is medically appropriate, 2) that the treatment is substantially unlikely to have side effects that may undermine the fairness of the trial and 3) that the treatment, taking into account less intrusive alternatives, is necessary to further important governmental, trial-related interest.

The Franklin County Court of Appeals held that a trial court, before ordering forced medication, must specifically find that the medication is unlikely to have side effects that will interfere with the defendant’s ability to assist in his defense. As the court failed to make the finding, the appellate court revered and remanded for further proceedings. The court observed that the trial court may hold another hearing but that a second hearing is unnecessary unless the trial court needs additional information.

SPEEDY TRIAL: R.C. 2941.401; DEFENDANT HAS NOTICE OF CHARGES WHEN HE IS TOLD ABOUT CHARGES.

State v. Battle, No 05AP-101, (5th Dist. Ct. Apps., Fairfield Co., 11-9-06).

Napoleon Battle’s motion to dismiss for failing to provide a speedy trial having been dismissed, he entered no contest pleas to several forgery charges. After conviction, Battle appealed.

Law enforcement officers suspected that Battle committed several forgeries in May, 2003. On June 5, 2003, Detective Guisinger attempted to locate Battle by checking Google, LEADS, and other law enforcement sites. Two weeks later, Battle began serving a prison sentence on unrelated charges.

Officers filed a complaint in the Fairfield Municipal Court, alleging several felony forgery charges. In December, 2003, authorities entered a warrant against Battle into the LEADS computer system. On November 12, 2004, the warden of the Pickaway Correctional Institution notified Battle of the pending charges. On June 16, 2005, Battle was served with a copy of the complaint. On June 24, 2005, the Fairfield County Grand Jury indicted him. On December 4, 2005, Battle was released from prison and transported to the Fairfield County Jail on the pending forgery indictment.

On appeal, Battle argued that he did not receive notice of the charges until he was served with the indictment. Appellant argued that R.C. 2941.401 required dismissing the indictment because he had been incarcerated since June 9, 2003, despite his having never filed a request under R.C. 2941.401.

[Ed. Note: It is unclear whether appellant argued that he had notice when he received a copy of the complaint, two weeks before he was indicted, or that he had notice only when he received a copy of the indictment. However, the difference is irrelevant for purposes of the holding]

Appellant attempted to distinguish State v. Hairston 101 Ohio St.3d 308, 2004-Ohio 969, by arguing that Hairston knew that he had been charged by information. It would be unfair, claimed appellant, to expect him to initiate a request without adequate information.

The Fairfield County Court of Appeals saw no difference. In State v. Hairston, the appellate court said, the Ohio Supreme Court held that R.C. 2941.401 imposes no duty of due diligence on the state to locate a defendant in a state penal institution. R.C. 2941.401, the Ohio Supreme Court said, imposes a duty on a warden to inform a defendant of charges against him only when the warden knows about the charges.

In the instant case, the warden discovered the charges against the defendant while trolling the LEADS computer. On November 12, 2004, the warden told the defendant about the complaint against him. Battle never notified the prosecuting attorney of his desire to be brought to trial within 180 days. As Battle failed to comply with the statute, he cannot, the court held, take advantage of its terms.

The court affirmed the conviction.

SENTENCING: NO EX POST FACTO VIOLATION ALTHOUGH FOSTER ELIMATED A PRESUMPTION FAVORABLE TO DEFENDANT.

State v. Pickering, No. 1-06-05 (3d Dist. Ct. Apps., Allen Co., 10-23-06).

On December 15, 2005, the Allen County Grand Jury issued two indictments against Devon Pickering: one charged Pickering with a fifth degree felony of an attempt to carry a concealed weapon and one charged him with three counts of raping a victim under the age of thirteen.

The defendant entered guilty pleas to two counts of rape and the attempt to carry a concealed weapon. Following State v. Foster 109 Ohio St.3d 1, 2006-Ohio856, the court sentenced him to concurrent-five-year terms on the rape charges, consecutive to a six-month-term on the weapons charge.

On appeal, appellant argued that applying Foster eliminated a presumption against consecutive sentences and, therefore, he claimed it violated the ex post facto clause.

The court held that, because the offenses occurred after the United States Supreme Court decided United States v. Booker (2005), 543 U.S. 220, the remedy announced in State v. Foster does not violate the due process clause. Moreover, the court continued, the sentence for a fifth degree felony remains the same. Thus, the punishment did not increase.

The court affirmed the conviction.

JUVENILES: TEMPORARY CUSTODY OF A DEPENDENT CHILD IS LIMITED TO TWO YEARS.

In re D.J., No. 21666 (2d Dist. Ct. Apps., Montgomery Co., 12-1-06).

The Montgomery County Children’s Services Agency appealed from the juvenile court’s granting a third extension of temporary custody of the infant D.J.

In November, 2003, a seventeen-year-old girl, called D.F. herself, in the custody of Montgomery County children’s services and living with a foster family, gave birth to a child of unstated gender called D.J.

The court granted temporary custody of D.J. to Children‘s Services in March, 2004. The agency twice sought and received extensions of temporary custody. In August, 2005, the agency moved for permanent custody of D.J. alleging that D.F., now an adult, had failed to follow through on her case plan and had little contact with her child.

At a hearing in December, 2005, the trial court denied the agency’s motion for permanent custody but extended temporary custody for the third time.

Despite R.C. 2152.415(D)(4), which provides in part “no court shall grant an agency more than two extensions of temporary custody…,” the trial court relied on a Cuyahoga County Court of Appeals case, In re N.B., No 81392, 2003-Ohio-3656, to justify thrice extending temporary custody. The Cuyahoga Court opined that complying with R.C. 2151.415(D)(4) would allow Children’s Services Agencies to obtain permanent custody after two years “by default.”

Reversing the Montgomery County trial court, the Montgomery County Court of Appeals held that the statue means what it says. As the trial court failed to consider the evidence supporting the agency’s request for permanent custody, the appellate court reversed and remanded to allow the court to consider that evidence. On remand the trial court may grant or deny permanent custody but the court may not grant temporary custody to children’s Services. The General Assembly, the appellate court said, intended temporary custody to be limited to two years.

CONFESSIONS: SECOND INTERVIEW; MISSOURI V. SEIBERT (2004), 541 U.S. 600 NOT RETROACTIVE.

State v. Singleton, No 21289, (2d Dist. Ct. Apps., Montgomery Co., 9-1-06).

Bryan Singleton appealed the trial court’s dismissing his postconviction petition as untimely.

In 1997, Singleton was convicted of aggravated murder, aggravated robbery, and aggravated burglary, among other offense. His conviction was in part based on a confession obtained without Miranda warnings and repeated after Miranda warnings. Relying on Oregon v. Elstaad (1985), 470 U.S. 298, the trial court had admitted the second statement.

In Missouri v. Seibert (2004), 542 U.S. 600, the United States Supreme Court, while not overruling Oregon v. Elstaad, limited it significantly, so that confessions obtained, after Miranda warnings, and close in time to a confession obtained without Miranda warnings, should be excluded.

The defendant filed a petition, claiming that the new case satisfied the requirements of R.C. 2953.21 (A)(1)(a) to extend the time in which to file a postconviction petition. The trial court dismissed the petition without a hearing and without informing the public defender.

The Montgomery County Court of Appeals affirmed. As Miranda v. Arizona (1966), 384 U.S. 436 did not apply retroactively, the court said, cases altering the way that Miranda is applied are likewise prospective only.

As appellant’s conviction was final when the court decided Missouri v. Seibert, the court continued, that case failed to entitle the defendant to file a postconviction petition out of rule. Therefore, the court held, the trial court had no obligation to inform the public defender that the petition had been filed and the trial court correctly dismissed the petition.