PHH Mortgage Corporation filed a foreclosure action against Michael S. Prater. When the primary defendants failed to respond or file an answer to the complaint, the trial court granted PHH a default judgment and a decree of foreclosure. The subject real property was scheduled to be sold at a sheriff’s sale three times, but each time, at the request of PHH Mortgage, the order of sale was withdrawn one day before the property was to be sold. PHH Mortgage received written notice by ordinary mail of each of these scheduled sales.

By the time of the fourth rescheduled sale of the property, the sheriff’s office had instituted a new policy whereby each sale date would be made available via the sheriff’s office website; notice of this policy change was sent to all attorneys involved with foreclosure sales pending in Clermont County.The property was ultimately sold at this fourth sale to defendant-appellee Scott A. Wolf, at an amount substantially less than what was owed to PHH, and far below what PHH would have bid on the property.  PHH filed a motion to set aside the sale, asserting that PHH had not been provided actual notice of the date, time, and location of the sale as required. The Clermont County Court of Common Pleas denied the motion to set aside, and PHH appealed to the Twelfth District Court of Appeals, which affirmed in a split decision.

The Supreme Court of Ohio accepted PHH Mortgage’s appeal in order to determine (1) the sufficiency of constructive notice by publication to a party with a property interest in a foreclosure proceeding when that party’s address is known or easily ascertainable, and (2) whether providing a written notification directing an interested party to a website for the date, time, and location of a sheriff’s sale constitutes constructive notice by publication.

PHH first argues that due process was violated, as a party to a foreclosure action is entitled to receive actual notice by mail when its name and address is known. Citing Central Trust Co. v. Jensen, PHH asserts that both the Ohio Supreme Court and the United States Supreme Court have rejected the notion that notice by publication is a reliable means of notifying interested parties of their rights. Technological progress, PHH argues, has done nothing to change the minimum constitutional protections requiring actual notice; because the nature of a website posting is a publication, it is constructive, rather than actual, notice, and therefore insufficient to communicate the date, time, and place of a foreclosure sale to an interested party. Website postings, insofar as they are a form of publication notice, cannot be the sole form of notice when a party’s address is known.

Furthermore, PHH argues that the enactment of a policy change that infringes upon an individual’s rights and privileges unnecessarily, such as the shift to notice by publication via the sheriff’s website, is unconstitutional and contrary to public policy, especially when less intrusive alternatives are available. PHH suggests that the harm to the private interests at stake is too great to be worth the convenience to the Sheriff’s Office of the use of notice by website. Additionally, the policy shift from the Sheriff’s Office was not the result of legislative action, but a unilateral assumption of authority.

PHH argues that although it was notified of the Sheriff’s policy change, it did not receive actual notice as due process requires.  Because website notice is not as reliable as written notice by mail, it should be precluded by due process requirements. The Supreme Court of Ohio recognized in Central Trust that when a party’s address is known, the method of notice must be at least as reliable as ordinary mail. Therefore, if actual written notice of the date, time, and location of the sale was not provided as required by O.R.C. 2329.26(A)(1)(a), the sale should be set aside, as required by O.R.C. 2329.27(B)(1).

In an Amicus Brief filed by Advocates for Basic Legal Equality and a number of Legal Aid groups,  in favor of PHH, the Amici argue that notifying parties via the internet will undermine the integrity of the judicial process; such notice will adversely affect low income Ohioans who lack access to internet, or the skills and resources necessary to use the internet. Additionally, the Amici argue that actual notice is always preferable to constructive notice; for these public policy reasons, the Amici ask that the court find in favor of PHH and set aside the sale.

Wolf, the defendant who bought the property at the foreclosure sale, argues that the Sheriff Office’s actions were reasonably calculated to provide PHH with the necessary sale information and therefore did not violate due process. Wolf emphasizes that the type of notice is not mandated by due process, only that the notice must be reasonably calculated to actually inform the party of the proceeding. As to the sufficiency of the notice, Wolf points out that the trial court specifically found that because counsel for PHH was mailed written notice of the change in the policy, PHH had the opportunity to learn the details of the sale from the website. According to Wolf, PHH received actual notice of the foreclosure sale but failed to act on it.

Student Contributor: Elizabeth Chesnut

Michael Liming and Denday Damos were married in 1993 and had two children. Liming filed for divorce in 2001.  In 2002, he filed a bankruptcy petition.  Upon the final decree of divorce, Damos was awarded legal custodian of the children and Liming’s child support obligations were stayed pending conclusion of his bankruptcy proceeding.  After finding that Damos could seek support, in 2007, the court ordered Liming to pay child support.  In 2008, Liming’s debts were discharged under a Chapter 7 bankruptcy.

The Athens County Child Support Enforcement Agency (“ACCSEA”) filed two motions in 2008 requesting that Liming be held in contempt for failure to pay support and for failure to participate with the Seek Employment Program.  The court scheduled a hearing and the summons contained notice of Liming’s right to counsel if he was indigent.  Liming appeared at the hearing with appointed counsel.  The magistrate recommended that Liming be held in contempt and sentenced to thirty days in jail, however, the magistrate also recommended the sentence be suspended so long as Liming followed his purge conditions, including child support payments, for one year.

In 2010, the court granted ACCSEA’s motion to reduce the support payment, however, Liming did not make payments towards the arrearage and ACCSEA moved to impose the suspended contempt sentence.  Liming, who at the time was self-employed and indigent, requested counsel but the court refused, so he remained unrepresented at the hearing.  The court agreed that Liming had not made a good faith attempt to make payments towards the arrearage and should have complied with the existing obligation to make arrearage payments.  The court ordered Liming  unconditionally to serve ten days in jail, and left suspended the remaining twenty days.

Liming appealed this determination raising two assignments of error. First, that by refusing to appoint Liming an attorney to represent him at a hearing in which a jail sentence was imposed the trial court violated Liming’s right to counsel.  Second, because the hearing to impose the sentence was criminal in nature, Liming was entitled to counsel.  The Fourth District Court of Appeals affirmed the trial court’s decision, finding that the hearing was civil in nature – and therefore the Sixth Amendment didn’t apply – and that no due process right to counsel was violated because Liming had a diminished liberty interest in the thirty day sentence.

The Supreme Court accepted the case on conflict certification on the question of  whether a purge hearing to impose a suspended contempt sentence for failure to pay to child support is a civil or criminal proceeding.  Additionally,  Liming filed a discretionary appeal on two propositions, 1) due process entitles an indigent contemnor to counsel at a purge hearing if the court imposes jail time, and 2) when it is impossible for an indigent contemnor to comply with a purge order, the purge hearing is criminal in nature and therefore the contemnor is entitled to court-appointed counsel.  The Court accepted jurisdiction on both issues and consolidated the cases.

Liming argues that a purge hearing that imposes an unconditional jail sentence is a criminal proceeding and, as such, constitutional guarantees afforded to criminal defendants attach to the hearing.  Liming draws a distinction between civil contempt proceedings as coercive and criminal contempt proceedings as punitive.  Relying on a Sixth District decision holding that a purge hearing was criminal because it no longer sought to persuade the contemnor to comply with the order but rather punished the party for non-compliance, Liming argues that an original civil contempt action which imposes a coercive remedy may be converted into a criminal proceeding. 

Since the nature and purpose of the initial contempt hearing in 2008 was to coerce Liming to pay child support by imposing a jail sentence to be suspended so long as he complied with the purge conditions,  Liming argues that this hearing was a civil action.  However, the second contempt hearing in 2010 imposed a jail sentence without condition and was meant to punish Liming for failure to pay, the contempt proceeding was converted into a criminal action and Liming, as an indigent, had a constitutional right to appointed counsel. 

Additionally, Liming argues that at the June 2010 hearing the court failed to make any determination about his present ability to pay, nor was he afforded the chance to show it was impossible for him to comply with the court order. For these additional reasons, the contempt proceeding was criminal and he was entitled to counsel. Finally, Liming argues that because he was deprived of his liberty interest—the most fundamental interest protected by due process –and because his ability to pay was never determined, and assignment of counsel would have promoted judicial efficiency, due process entitles him to representation by counsel.

ACCESA argues that the Fourth District Court of Appeals was correct in finding the June 2010 purge hearing was a civil proceeding. Rather than being converting to a criminal proceeding, the purge hearing remains a civil action because the contemnor is not facing a new risk of imprisonment.  Further, the contemnor’s liberty interests at stake are diminished because he has already been sentenced, the risk of an erroneous decision is low since there has already been an original finding of contempt, and there is a stronger government interest in allowing the trial courts flexibility to ensure compliance with court orders.  Additionally, ACCESA points to last year’s U.S. Supreme Court decision in Turner v. Rogers,* which held that the Sixth Amendment does not govern civil contempt cases of child support payments, even when the contemnor is facing incarceration. 

ACSEA disagrees with Liming’s contention that the proceeding here was converted from a civil to a criminal one. The purpose of a civil contempt action is to coerce a party to pay his or her support obligation. For some, a finding of contempt and a suspended sentence provides sufficient motivation to comply.  For others, the sentence must be carried out if the court orders will have coercive effect in the future.  Therefore, imposing the suspended sentence continues the coercive purpose of encouraging contemnors to comply with court orders rather than to punish them.   At the outset of the hearing in 2010 the action was still civil since there was no actual order for incarceration at the time. 

ACCESA argues that the Turner case held that the dividing line between criminal and civil contempt proceedings in child support cases is not incarceration, but the contemnor’s ability to pay. In Liming’s case this was determined at the 2010 hearing in which his support payments were decreased.  The central holding of Turner was that the State need not provide counsel to an indigent noncustodial parent faced with incarceration if the State provides alternative  procedural safeguards that assure a fundamentally fair determination of the question of the obligor’s ability to comply with the support order.  Ohio has such procedures in place.

*Read an analysis of the Turner case here.

 Student Contributor: Katlin Rust

In 2009, Robert Moore pled guilty to drug trafficking with a firearm specification. The trial court waived the mandatory fine required by 2929.18(B)(1), noting in the sentencing entry that an affidavit of indigency “ was being filed.”  In a separate case, Moore was convicted of drug possession, drug trafficking and carrying concealed weapons. In its entry, the trial court again noted the affidavit of indigency “was being filed” and again waived the mandatory fine. As part of the agreed-upon sentence, Moore waived his appellate rights.

Moore tried to appeal in September 2009, but both of his appeals were dismissed because of the waiver of appellate rights. A year later, Moore moved to vacate and void the sentence in both cases, arguing that the sentences were void because his lawyer never filed the affidavit of indigency, so the trial court was required to impose the mandatory fine. Thus, Moore argued that the trial court should void the sentences, re-sentence him de novo and restore his appellate rights. The trial court denied the request.

The Eighth District Court of Appeals agreed with Moore in part. It explained that the trial court had relied on Moore’s attorney’s assurances that he would file an affidavit of indigency. But because no affidavit was filed before the entry of the sentencing decision, the trial court was required to impose the statutorily mandated fine. Its failure to do so rendered void that part of the sentence waiving the fine. The Court of Appeals vacated that part of the sentence and remanded for resentencing in part. The Court noted a conflict with the Ninth District’s decision in State v. Deloach, 2006-Ohio-4409.

 The State concedes that the trial court did not strictly follow R.C. 2929.18(B)(1), but first argues that no part of Moore’s sentence is void. The trial court’s actions were not an attempt to disregard statutory requirements (which would render the sentence void). If the Court finds that a waiver of the mandatory fine without the filing of  the affidavit of indigency is error, that error does not render the entire sentence void—only the portion of the sentence involving the fine.

Moore argues for a strict reading of the statute, which requires an affidavit of indigency be filed with the court prior to sentencing. Because no such affidavit was filed, the trial court had no discretion  to waive the fine, and the fine was mandatory. The failure to impose a mandatory part of a criminal sentence renders that sentence entirely void, not just partially void.

Student Contributor: Greg Kendall

 Most significantly to the mandamus action, the NEOCH consent decree prohibits county boards of elections from rejecting provisional ballots cast by voters who use the last four digits of their social security numbers as identification (“NEOCH ballot”) if “the voter cast his or her provisional ballot in the wrong precinct, but in the correct polling place, for reasons attributable to poll worker error.”  I think these two members of the Republican leadership want the Supreme Court of Ohio to say that the Ohio Secretary of State cannot order the counting of any ballots cast in the wrong precinct for any reason. As I suggested in this earlier post, which you can read here, I think this action was a surrogate for the issues in the Tracie Hunter lawsuit. Taking it one step further, I think in both instances the Republicans want a declaration from the Ohio Supreme Court that these federal remedies are ultra vires; contrary to state election law.

It seems that Judge Algenon Marbley, the Columbus Federal District Judge who presided over the NEOCH Consent Decree, didn’t take kindly to the mandamus action. On May 8, the plaintiffs in the NEOCH matter filed an “urgent motion to enjoin Ohio Senate President Thomas E. Niehaus and Ohio House of Representatives Speaker Pro Tempore Louis W. Blessing, Jr. (Relators) and their counsel from further prosecuting the state-court proceedings in State ex rel. Niehaus v. Husted, Ohio S. Ct. Case No. 12-0639. (the Niehaus litigation).”

Here’s part of that motion, to provide a flavor of what’s going on here:

“In defiance of this Court‘s authority, Relators have petitioned for a writ of mandamus from the Ohio Supreme Court that would prevent Secretary of State Jon Husted from complying with a Consent Decree [cc-citations omitted] that this Court and the parties, including the State of Ohio, agreed upon two years ago to protect the fundamental right to vote. [cc] Because an injunction is necessary to protect this Court‘s order from being collaterally attacked in the Ohio Supreme Court, this Court should promptly grant the requested relief…”

“Plaintiffs also seek an order to show cause why Relators Niehaus and Blessing—who are officials and agents of the State of Ohio, a party to this case—should not be held in contempt for seeking to have the Ohio Supreme Court nullify the Decree.”

Here is the entire motion.

Judge Marbley orally granted plaintiffs’ motion almost immediately, and has indicated a full opinion will be forthcoming.  On Friday May 11, Niehaus and Blessing dismissed their mandamus action at the Ohio Supreme Court, without prejudice (meaning it can be re-filed at a later time.) Presumably, they can appeal Judge Marbley’s order at some point. 

A similar showdown almost took place in the Tracie Hunter/John Williams Hamilton County Juvenile Court election when Williams and Tea Party Activist John Painter filed a mandamus action in the Supreme Court of Ohio challenging Federal District Judge Susan Dlott’s handling of provisional ballots in the Hunter case.  At one point it seemed as if the Board of Elections had a Hobson’s choice in that case—obey one court, which meant disobeying the other.  But in the Hunter case the state and federal of decisions were harmonized to some extent—not necessarily philosophically, but enough to avoid a showdown.

Both the Tracie Hunter Juvenile Court election case and this challenge to the NEOCH Consent Decree raise fascinating questions about federal/state power—under Ohio law, ballots cast in the wrong precinct cannot be counted for any reason.  There are several ways of looking at this issue.  One is that any directive to count any ballots cast in the wrong precinct, whatever the reason, exceeds the power of the Ohio Secretary of State to order (which essentially has been the Republican position in both cases).  Another way of looking at this is that any state law that disenfranchises voters because of mistakes by poll workers, on whom they relied, has serious due process problems. Judge Karen Moore of the Sixth Circuit Court of Appeals, and Judge Dlott have both used language inviting a challenge to Ohio law on this basis. The third way, which determined the Hunter case, but is still on appeal on the merits, is an equal protection perspective–—once the Hamilton County Board of Elections chose to count 27 ballots cast in the wrong precinct at the Board of Elections itself because of poll worker error, it could not treat other right-polling-place/wrong-precinct ballots differently, but had to count those as well.

 Given the importance of Ohio in the national 2012 presidential race, I suspect that we haven’t seen the end of any of this yet.

The Supreme Court accepted this case on conflict certification and discretionary review. The certified conflict question is “May a law enforcement officer, serving a dual-role as an officer and deputy clerk of a local municipal court, act as a neutral and detached magistrate for purposes of Crim.R.4(A)?” The question accepted on discretionary review is, if the answer to the certified question is no, does the exclusionary rule apply?

The parties seriously disagree about the state of the record in this case. The state vehemently challenges the finding that an arrest warrant was issued. 

Hobbs’ counsel argues that it is unconstitutional for a police officer to serve in the dual capacity of law enforcement officer and neutral and detached magistrate. We don’t want those making decisions about warrants to believe someone just because the requester is a law enforcement officer. Any proceeding that has a law enforcement officer serving as a neutral and detached magistrate is tainted. The remedy here must be exclusion to remedy the long time policy and practice in effect in this court.

The state argues that a law enforcement officer can act in a dual capacity as a deputy clerk as long as the officer was not involved in that investigation. The prosecutor vigorously argued that an arrest warrant was never issued in this case—only a complaint and an affidavit. The trial judge, who was only examining the issue of whether an officer can act in a dual capacity to acknowledge a complaint and an affidavit, incorrectly found that an arrest warrant had issued, and the state tried unsuccessfully to correct the record. The prosecutor argued that the officer-magistrate did not sign an arrest warrant—his signature merely “bled through” to that page from the other pages in the packet of documents used in this court. She also repeatedly referenced a federal civil rights lawsuit filed by Hobbs to support the state’s position in this case that no arrest warrant had issued, and also to show that this dual-capacity practice has stopped, asking the Court to take judicial notice of that case.  She argued that if the Court does find that an arrest warrant was issued in this case, the Court should find the deputy acted properly in a dual capacity. There is no evidence in this record of systemic problems that deprive citizens of due process because of the dual-capacity issue. Furthermore, the dual-capacity practice has stopped. Even if the court were to find an arrest warrant had issued, and was invalid, the arrest itself was still valid. She agrees that the exclusionary rule is the proper remedy if there is a violation here, but it would only come into effect at the time of the error, which was post-confession in this case, so there is nothing to exclude.

Hobbs’ rebuttal on the warrant issue was that the arrest warrant is part of a four part form, designed to have a signature press through to all four parts.  When the officer-magistrate signed it, it became an arrest warrant.

 What is a Neutral and Detached Magistrate?

Justice O’Donnell asked if the dual capacity issue raised separation of powers problems.  Don’t magistrates normally come from the judicial branch? Doesn’t U.S. Supreme Court precedent say that whatever else neutrality might entail it requires severance and disengagement from the activities of law enforcement?

Must the smaller jurisdictions have a separate clerk altogether for this role, asked Justice Lanzinger.

Chief Justice O’Connor mused that these officers work together all the time and may even be personal friends, so how does the “neutral magistrate” question the word of his buddies?

 How Widespread is this Practice?

Justice O’Donnell wanted to know.  No one knew, exactly.

Chief Justice O’Connor asked the justification for doing this instead of using a clerk or a non-officer employee? Was there a financial reason for doing it this way? And if the practice has indeed ceased, as the prosecutor alleged a couple of times, is there anything for the Court to decide?

What About the Confession in the Case?

Chief Justice O’Connor asked.  Surely a warrant isn’t needed every time there is an arrest? There’s no evidence that this was anything but a voluntary confession.  But then, in the key exchange of the day, she said to defense counsel, “you are saying that [dual-capacity practice] permeates the entire manner of doing business that somehow taints the fact that the these officers went to her home and she confessed and led them to the drug stuff, somehow this whole shadow of their process infects what they did at her home?” (answer:yes) She pressed further—what would defense counsel have had the officers do?  The officers were investigating, they went to her house, she confessed. Aren’t the remedies being suggested just going to hamper law enforcement? (answer—the requirement that no warrant shall issue except on probable cause issued by a neutral magistrate should not hamper law enforcement whatsoever.”)

And What About this Faulty Signature Thing…

Chief Justice O’Connor asked how the officer could have prevented this (prosecutor’s answer: by separating the pages of the form packet; this can be verified from the footnotes in the federal case).

Justice O’Donnell wanted to be sure—he asked the prosecutor if she was indeed saying that there was no arrest warrant issued here, this was just a mistake, it was just the acknowledgement of the complaint? (answer:yes)

Justice Lanzinger noted that on those forms there was also a box checked, next to the word warrant.  Was that a mistake, too? Is there any separate document in the record that shows the arrest warrant? Chief Justice O’Connor followed up on this, asking the purpose of checking that warrant box.

 How it Looks from the Bleachers

The record is clearly a mess here.  The Court is unlikely to use any information from the federal case to clear it up.  That is not part of this case record. The Court is likely to disapprove the practice of a law enforcement officer serving as a neutral and detached magistrate.  If nothing else, it surely gives the appearance of bias. And to me, it does raise separation of powers problems, as Justice O’Donnell suggested.  The Court is also likely to find that an arrest warrant was issued in this case, and will probably agree that it was invalid.  Both parties agreed that if the Court were to find a violation here, the exclusionary rule applies.  But the Court is likely to agree with the lower courts that there was no pre-confession violation, so there is nothing to exclude, and uphold Hobbs’ conviction.  The big picture principle that should come out of the case is to ban the dual-capacity practice. 

At issue in this case is whether the Dayton Civil Service Board was bound to follow the Ohio Rules of Evidence in its hearing.  At the time of Royse’s hearing, Board Rule 14 Section 5(A) stated that “the admission of evidence shall be governed by the rules of the Courts of  Ohio in civil cases.”  During the pendency of this appeal, however, Dayton   changed its rule to make it explicit that the Board is not bound by the Ohio Rules of Evidence.  Because of this change, there appeared to be strong sentiment among the justices to dismiss the case as moot or as improvidently allowed.

Dayton’s lawyer argued that the Court of Appeals decision would cause agencies and municipalities to have to strictly comply with the rules of evidence, contrary to longstanding precedent of the Court that the rules of evidence do not apply in administrative hearings.  The proper interpretation of the Board’s then existing rule was that the Board did not adopt the Ohio Rules of Evidence, that the Hearing Officer had full authority to admit or exclude evidence, and that the drug test was properly admitted in this case, because it was uncontrovertibly reliable.  The Court of Appeals clearly exceeded its scope of review in this case by engaging in factual and legal analysis.

Royse’s lawyer argued that the language of the Board’s then-existing rule must be interpreted as binding the Board to the Ohio Rules of Evidence, and since the Board chose that route, admitting the drug report without proper authentication was error.  Further, Dayton waived the business records exception to the hearsay rule as a basis for admission of the drug test, because it didn’t raise this as basis for admission at either the trial court or appellate level. The Court of Appeals was correct both in its primary holding, that the Board had adopted the Rules of Evidence, and its secondary ruling, that the test results were improperly admitted under those rules. Because Dayton has now changed its rule, “this case is now an orphan.”

Well, isn’t the Problem Fixed Now?

A number of Justices, starting with Justice Stratton, asked this question.

Justice Cupp asked whether the issue was narrow, turning only on the unique language of the Dayton city charter.

Chief Justice O’Connor asked about the impact of the case now that the Civil Service Board has changed its policy with respect to the Rules of Evidence.

Justice O’Donnell asked if the Court finds that the rule change moots the question before it, what should the Court do with the case?  Must it be remanded anyway for a determination of the competence of the evidence? Justice Cupp picked this up and asked if the question of the competency of the evidence was before the Court, and if so, what was the standard of review on that? He later asked if the Court were to agree that the rules of evidence did not strictly apply, wasn’t there still a question about the admissibility of the test? Must the case be sent back for such a determination?

Justice Lanzinger asked if there was any need for the Court to write on this case.

Are You Just After Terminating This Firefighter?

Chief Justice O’Connor asked Dayton’s counsel where things were to stand if the Court did find the Board wasn’t strictly bound by the rules of evidence. Was the city just after getting rid of this particular firefighter? Isn’t this just a unique situation where there is one employee the city is trying to terminate? No other administrative agency has adopted the language used here, she observed.

What Rule of Evidence is At Issue Here?

Justice Pfeifer asked, what other law, other than the Rules of Evidence, would permit the admissibility of the test results? (answer, framed inartfully–reliability)

Chief Justice O’Connor asked whether any common law supported the admission of reports containing scientific testing? She also asked if the report was stipulated to. (no). And was Royse’s lawyer saying the test results could not be construed as business records under any circumstances? (answer—that issue was waived by not raising it in the courts below).  If Dayton had brought in a lab analyst to verify the results, then what? (answer, from Royse’s lawyer, we wouldn’t be here today).

But What About 2506.04 and the Scope of Review of Administrative Agencies?

Justice McGee Brown seemed the most concerned about the scope of appellate review here.  She really pressed Royse’s lawyer with a series of questions about R.C.2506.04—could he really agree that the Board’s decision was “ unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence on the whole record.”  Even though the report was certified by a federal lab and otherwise had indicia of reliability?

How it Looks from the Bleachers

It looks like this case is going to get kicked.

Billingsley had been indicted for a number of felony charges in Summit county.  As part of his Criminal Rule 11 plea agreement there, he agreed to sit down with an investigator and tell him the truth about his involvement in all other criminal activity wherever it had occurred.  In exchange for his cooperation, he would receive an eight year sentence in Summit county.  Additionally, the Summit county prosecutor made these representations in open court:

“There are potentially other charges from other counties. We have been in contact with those other counties and can say that’s our recommendation to him, and they’ve agreed at least in the other defendants’ cases, because we’re getting these pleas here and we’re resolving the cases here, that they will either not pursue charges on their robberies, or if they have already charged that, they’ll run concurrent. ”

 Billingsley did cooperate with the authorities.  He was later indicted in Portage County, where he filed a motion to enforce the Crim R. 11 plea agreement he had entered into in Summit County. The trial court denied his motion because Portage County was not a party to that agreement and could not be bound by it.  Billingsley was sentenced to another thirty-three years in prison, although that sentence was to run concurrently with the Summit County sentence.  Read the oral argument preview of this case here.

Billingsley waived participation in oral argument of this case, so only the Portage County prosecutor argued (professor’s note: that can be very difficult, because all eyes are only on you!).  He was very professional, walking a fine line between firmly supporting the state’s position, while not disparaging the defendant’s. He made it clear that it is a not uncommon occurrence for a defendant to commit crimes in a number of jurisdictions.  When that happens, the established procedure to be followed is for any other involved prosecutor to exchange a written document with the home county prosecutor to establish that the prosecutor is signing on to the plea agreement in the home county. He argued that the law is clear that in Ohio, prosecutors are limited by their county jurisdiction and cannot be held to plea agreements unless they are a party to them. In this case, the Portage County prosecutor’s office was not consulted about any plea deal. The defendant had other remedies he could have pursued instead of challenging the jurisdiction of county prosecutors, such as filing a motion to vacate the plea in Summit County or a motion to suppress in Portage County.

 Justice Pfeifer presided over this case because Chief Justice O’Connor was not present for argument.  But he announced she would participate fully in the decision. 

Justice Stratton was ready to quit right out of the starting gate since she saw no new law for the court to write here.  But a number of the justices were troubled by the Crim. R. 11 colloquy in Summit County.  Justice O’Donnell, in particular, dominated the questioning, and made it very clear that an officer of the court (the Summit County prosecutor) had made a representation that the defendant had relied on to his detriment. The Portage County prosecutor argued that the Summit County colloquy was muddled, but O’Donnell persisted that one fair reading of it was that if Billingsley co-operated, the others either wouldn’t pursue charges or any sentences on offenses already charged would run concurrently.  Shouldn’t the defendant be able to take the word of the prosecutor as an officer of the court who has said she’s discussed this with other counties and that representation forms the basis of the sentence? Then later the defendant learns that the other county prosecutors haven’t been included in it–  “There’s something inherently wrong with that process in my view,” he stated.

Justice Lanzinger shared Justice O’Donnell’s concerns, particularly about the reliance aspects of the case.  When an attorney says in open court that other jurisdictions have been contacted and they agreed to the deal, and that’s how the defendant understood it, shouldn’t that be of concern to the justices? And wasn’t pleading no contest in the Portage County case an indication of that reliance?  In the key exchange of the day she said, “you’re not arguing that we should bless what happened here, but are worried about any rule that a state prosecutor can bind outside the county?” The answer was yes, but the Portage County prosecutor refused to concede that is what happened in what he repeatedly referred to as a “muddled colloquy”.

Justice McGee Brown also noted her concerns—while defense counsel clearly should have gotten any agreement with Portage county in writing, weren’t Billingsley’s  convictions in Portage County based solely on the confessions to the crimes he made as part of the agreement he thought he had with Summit and Portage counties?

Justice Pfeifer mused that it wouldn’t be useful simply to dismiss this case as improvidently allowed because it would be helpful to all involved in the system to know that they can’t expect to bind prosecutors in other counties who have never been consulted at all about a case. 

 How it Looks from the Bleachers

It seems pretty clear that as a general principle, the Court is not going to hold that a prosecutor in one county can bind prosecutors in other counties to plea agreements to which they are not parties.  But it also looks like a majority of the justices in this case seem to feel that Billingsley got hosed here, as a matter of detrimental reliance on the apparent authority of the Summit County prosecutor in open court. He may get some kind of relief, but without the Court adopting any broad proposition of law.  The Court also may well recommend that in the future, all joint cooperation agreements among county prosecutors be in writing, signed by the parties to be bound by them.