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Daily Court Reporter - News Supreme Court of Ohio considers what constitutes a final, and appealable, order

 

Supreme Court of Ohio considers what constitutes a final, and appealable, order

Kathleen Maloney, Supreme Court of Ohio

The Ohio Supreme Court on Wednesday, January 9th, heard four oral arguments, including one asking if a conviction for a minor misdemeanor must list a punishment or sentence to be considered final and appealable order.

Oral Arguments Scheduled

The session started at 9 a.m. with the cases being heard at the Thomas J. Moyer Ohio Judicial Center in Columbus. All arguments are streamed live online at sc.ohio.gov and broadcast live and archived on The Ohio Channel.

Summaries Available

Below is a summary of the four arguments that were heard on January 9th. Along with the descriptions in this article, the Office of Public Information has released in-depth summaries of the cases available online at: http://www.courtnewsohio.gov/cases/previews/19/0109/0109.asp#.XC4SGc17mUk

Brief summaries of the cases are available below:

State of Ohio v. Gregory White, Case no. 2017-1292

First District Court of Appeals (Hamilton County)

ISSUE:

To constitute a final, appealable order, must a conviction for a minor misdemeanor include listing of a punishment or sentence?

BACKGROUND:

In January 2016, Gregory White was driving along Interstate 75 in Cincinnati when he got into a minor accident with another vehicle. The encounter escalated into a confrontation with the other driver and eventually resulted in White fleeing from the accident scene after being physically assaulted.

White was charged with failure to stop after an accident and with a minor misdemeanor of operating a vehicle without being in control of it. The case went to a bench trial where the judge found White guilty on both charges. For the failure to stop conviction, the trial court imposed a 180-day jail sentence with all 180 days suspended, one year of community control, a six-month driver’s license suspension, and a $50 fine. For the loss of control conviction, the court imposed only court costs.

White appealed both sentences to the First District Court of Appeals. For the failure to stop conviction, the First District dismissed the case because it was improperly journalized and it permitted White to refile the appeal after the error was corrected. For the loss of control charge, the First District also dismissed the case, ruling that the imposition of only a court cost isn’t a “sentence,” and doesn’t meet the requirements of a final, appealable order. It ruled it had no jurisdiction to consider the matter.

White appealed the decision to dismiss his loss of control appeal to the Ohio Supreme Court, which agreed to hear the case.

In re Application of Ohio Edison Co., Case nos. 2017-1444 and 2017-1664

Public Utilities Commission of Ohio

ISSUE:

Was the Public Utilities Commission of Ohio authorized to approve a distribution modernization rider for the collective FirstEnergy power companies under R.C. 4928.143(B)(2)(h)?

BACKGROUND:

Three affiliated companies (Ohio Edison Company, Cleveland Electric Illuminating Company, and Toledo Edison Company) owned by FirstEnergy Corp. distribute and transmit electric power service throughout northern Ohio. As part of Ohio’s electric power deregulation, FirstEnergy Corp. split off its electric power plants into a separate company, FirstEnergy Solutions (FES), which is owned by the parent company.

In 2014, the three distribution companies (FirstEnergy) proposed an electric security plan (ESP) that would have lasted from June 2016 through May 2019. Part of the plan offered customers the option to receive electricity partially from the FES power plants. The company proposed a rate stability rider that was associated with providing the power through the FES plants. If the costs to provide power through the combination of FES-generated power and market-rate power was cheaper than the average market price, FirstEnergy would lower the bills for the customers in the service territory. If the price to produce the power was higher, then the customers would pay extra for electricity to offset the cost regardless of whether if they chose the FES and a market-mix plan or another electricity provider.

Opponents to the plan told the Public Utilities Commission of Ohio (PUCO) that the proposal was an impermissible scheme to make Ohio residents and businesses subsidize the noncompetitive coal-fired and nuclear power plants FES operated. Some opponents filed a complaint with the Federal Energy Regulatory Commission (FERC), which ruled that any plan to mix FES and market rates had to be approved by FERC.

FirstEnergy reacted by withdrawing the rate stability rider and proposing a new rider. The PUCO staff at the same time developed its own alternative, labeled the distribution modernization rider (DMR). The DMR was announced as a plan to bring the FirstEnergy electric grid to modern standards, which could ultimately save customers money and improve economic development in the region. The plan allowed FirstEnergy to collect $132.5 million a year beginning in January 2017 and lasting through January 2020 with the option of extending it beyond 2020.

Opponents, including the Sierra Club and the Ohio Manufacturers’ Association Energy Group, appealed the PUCO’s approval of the FirstEnergy ESP with the grid modernization rider to the Supreme Court, which must hear appeals of PUCO decisions. The Ohio Consumers’ Counsel; the Ohio Environmental Council; a collection of northern Ohio cities, counties, and villages; and other groups joined the appeal.

State of Ohio v. Ronald Amos, Case no. 2017-1778

First District Court of Appeals (Hamilton County)

ISSUE:

Once a juvenile court makes an appropriate sex-offender classification under R.C. 2152.83, does the court have permanent jurisdiction to review the classification in accordance with R.C. 2152.84 and R.C. 2152.85?

BACKGROUND:

In 2010, Ronald Amos was found delinquent at age 14 of an offense that would have been rape if committed by an adult. The Hamilton County Juvenile Court sent Amos for a minimum of one year to a facility for juveniles run by the Ohio Department of Youth Services (DYS).

The next year, the juvenile court held a hearing, classified Amos as a Tier I juvenile sex offender, and released him on parole. The court stated:

“[U]pon completion of the dispositions that were made for the sexually oriented offense upon which the order is based, a hearing will be conducted, and the order and any determinations included in the order are subject to modification or termination pursuant to ORC 2152.84.”

After finishing the requirements imposed by the juvenile court, Amos was discharged from parole on June 24, 2013. A little more than a year later, in early July 2014, the juvenile court held a “completion of disposition hearing.” Juvenile court rules define a “dispositional hearing” as “a hearing to determine what action shall be taken concerning a child who is within the jurisdiction of the court.”

Amos didn’t attend the hearing. The court ordered that his Tier I sex-offender registrant status remained in effect. Amos’ brief states that Amos didn’t receive the summons for the completion of disposition hearing date because the notice was sent by regular mail to an old address.

In May 2014, Amos pled guilty to failing to provide notice of an address change. He was sentenced to community control.

Amos was indicted in July 2015, again for failing to notify the county sheriff of an address change. Amos argued that he had no duty to register as a sex offender because the juvenile court decided his classification a year after he completed parole. The trial court agreed, dismissing the indictment. The court determined that the July 2014 hearing was untimely and the juvenile court’s order was void.

After this ruling, the trial court allowed Amos to withdraw his May 2014 guilty plea in the earlier address change notification case and dismissed that charge.

The Hamilton County Prosecutor’s Office appealed the rulings to the First District Court of Appeals, which upheld the trial court’s decisions. The prosecutor appealed to the Ohio Supreme Court, which agreed to review the issue.

Disciplinary Counsel v. Phillip L. Harmon, Case no. 2018-0817

Franklin County

ISSUE:

The Ohio Board of Professional Conduct recommends a two-year suspension with 18 months stayed for Worthington attorney Phillip L. Harmon. Harmon stipulated, and the board found, that he violated several attorney conduct rules, including charging legal fees for non-legal services, having a conflict of interest when representing a client in a divorce, and misleading a probate court.

BACKGROUND:

Harmon was hired in 2011 by Donald and Sandra Harper to draft an estate plan, including wills, powers of attorney, and a family trust.

Donald Harper, a 1956 Olympic silver medalist and Harmon’s high school diving coach, was diagnosed with dementia by August 2014. The following summer, Sandra Harper contacted Harmon about divorce options. At different times, Harmon indicated to various people that he couldn’t represent either of the Harpers because of his conflicts of interest, but also that he could represent Donald Harper if the divorce was non-adversarial. Sandra Harper hired a lawyer to represent her in the divorce.

In November 2015, the couple had a physical altercation, and Donald Harper was arrested and charged with domestic violence and assault. Harmon represented Donald Harper in the criminal case. In January 2016, Donald Harper pled to an amended charge of disorderly conduct/intoxication. Part of his sentence was two years of community control and an order not to leave Franklin County for more than 72 hours without his probation officer’s permission.

From mid-December 2015 into January 2016, Harmon communicated with the Harpers’ daughter, Anne Halliday, suggesting that she take over care for her father and find a permanent living arrangement, possibly in Colorado, where she lived. Harmon continued to represent Donald Harper in the divorce.

Unknown to Harmon, Halliday coordinated with a friend in Ohio to put her dad on a plane to Colorado in late January. Harmon reported him missing to police. Later that night, though, Halliday informed Harmon that her father was with her in Colorado and that he planned to live there. In subsequent communications, Harmon stated that he believed Donald Harper wasn’t safe, he had been removed from Ohio against his will, and he was in violation of his probation. On Jan. 23, 2016, Halliday emailed Harmon a letter from Donald Harper and her, stating that he left Ohio voluntarily and terminating Harmon’s legal representation.

Harmon continued to correspond with Sandra Harper’s attorney about the divorce, and he filed a petition in probate court in February 2016. In the petition, Harmon asked to withdraw as Donald Harper’s attorney; requested appointment of a guardian ad litem and legal counsel for Harper; made claims of tortious interference, undue influence, and spousal support; and asked for payment for the services he had provided. He also filed a claim in probate court that Halliday had engaged in the unauthorized practice of law.

Sandra Harper submitted a grievance against Harmon with the Office of Disciplinary Counsel, which investigated the matter.

At a hearing before the professional conduct board’s panel, Harmon stipulated to facts and admitted to violating seven rules governing attorney conduct in the state. In reporting its findings and recommended discipline to the Ohio Supreme Court, the board described the probate court filing as frivolous. Noting that Halliday, Sandra Harper, and the person who put Harmon on the plane incurred more than $52,000 in legal fees as a result of the court filing, the board recommended that Harmon pay restitution to the individuals.

In Harmon’s objections, he disputes the violation regarding charging the same $200 per hour fee for both legal and non-legal services he provided to Donald Harper, totaling $30,304. He points to the $38,675 that the board concluded he must pay to Sandra Harper for her legal fees. That amount is based on her lawyer’s $315 per hour rate for legal services and $145 per hour in non-legal services, he states. His $200 per hour fee, he contends, is a “blended billing rate … applied to all services.” However, he adjusted this rate during the disciplinary process and indicates he still is owed at least $14,000.

He maintains that all parties agreed to a joint, collaborative, non-adversarial dissolution for the Harpers. Once it became adversarial, Harmon asserts that he reported the conflict of interest to the probate court in February 2016 and asked to withdraw as counsel.

Before February 2016, Harmon notes that he rejected the validity of the letter terminating his legal representation and fiduciary role because he had a legitimate question whether Anne Halliday was pressuring her father to take the step and whether her father was competent. He states that he thought the issue was best resolved by the court.

He challenges several statements that he previously agreed to in his stipulations, such as misleading the probate court magistrate by stating that Donald Harper had been kidnapped to prevent the divorce filing and that he had received no word about his client’s safety or well-being. He argues that the disciplinary counsel didn’t provide sufficient evidence to support the stipulations, and that he was sincere in his concern for his client.

The disciplinary counsel disputes that the Harpers could have had a non-adversarial divorce, pointing to events, such as the criminal charges and accusations between the couple in November 2015, that counter that claim.

The office maintains that Harmon can’t credibly argue that Donald Harper was competent in some statements but incompetent in others. Also, Harmon waited weeks before raising concerns with the probate court or any authority about his client’s well-being, has minimized his false statements to the probate court, and repeatedly threatened Anne Halliday, the disciplinary counsel states.

The disciplinary counsel notes that Harmon stipulated to the facts presented in the board’s report and to the misconduct. The disciplinary counsel maintains that, given the stipulations, the board has no need “to state with specificity the evidence that it believed supported the violations.” Nor, as Harmon argues, do the rules governing disciplinary proceedings require the board to identify specific facts and legal elements on each violation, the disciplinary counsel maintains. Regardless, the disciplinary counsel’s view is that the board report provided a sufficient basis for its findings.

Harmon isn’t now permitted to submit evidence to contradict the stipulations to which he had agreed, the disciplinary counsel adds. The office winnowed down its presentation for Harmon’s disciplinary hearing because of the stipulations. The disciplinary counsel also points to several parts of Harmon’s own testimony that support the rule violations.

Date Published: January 24, 2019

 

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