JUDGE BRUNNER IN THE NEWS
Portage County Legal News, July 6, 2016
By Annie Yamson, July 6, 2016
A Franklin County man serving life in prison for a 2012 murder will remain incarcerated after he lost his appeal to the 10th District Court of Appeals.
Maxamillion Williams was sentenced in the Franklin County Court of Common Pleas to life in prison without parole for aggravated murder, 10 years for aggravated robbery and kidnapping and three additional years for tampering with evidence.
On appeal, Williams challenged the instructions given to his jury, the life sentence and the sufficiency and manifest weight of the evidence.
Williams was convicted along with co-defendant Dartanian Hawkins for the strangulation death of Michael Payne. The men committed the murder with the help of Amy Lambert, Payne’s former fiancé who wanted him dead in order to collect money from a life insurance policy.
Payne was beaten and strangled in Williams’ East Livingston Avenue apartment on Oct. 19, 2012. According to court documents, Williams and the others attempted to dispose of the evidence, clipping the body’s fingernails, cutting off the clothing and using cleaning products in the apartment.
The body was transported to Whitehall, where it was left in front of an apartment complex, covered in trash bags.
After the murder, Williams flew to Miami, where he boarded a cruise ship. When the ship made a stop on Cozumel, Mexico, Williams got off the ship and did not reboard. He was eventually arrested in Mexico and returned to Ohio.
Lambert ended up entering into a plea bargain with the state and testified at Williams’ trial that the murder was his idea and that she helped commit it.
She and another eyewitness testified that Williams and Hawkins forced Payne into the apartment before Hawkins strangled him to death with an HDMI cable.
Williams denied involvement and testified that the killing was carried out by Lambert and Hawkins, whom he considered a brother.
In an opinion authored by Judge Susan Brown, the 10th District Court affirmed Williams’ conviction and sentence. It first addressed his contention that trial court’s jury instructions essentially instructed the jury that Williams’ mere presence at the scene was sufficient to convict him as an aider and abettor.
“With respect to the ‘mere presence’ language, as noted by the state, the trial court’s instruction did not simply state that mere presence was enough to convict as a complicitor; rather, the court instructed the jury that ‘it can be enough if it is intended to and does aid in the primary offense,’” Brown wrote. “Here, viewing the instruction as a whole, we find that the trial court’s instruction adequately informed the jury that more than mere presence was required to render one an aider and abettor.”
Williams also argued that the trial court relied solely on its perception of a lack of remorse in fashioning his life sentence. He claimed that any expression of remorse on his part would have sabotaged his chances for acquittal because it would have been a showing of culpability, when he claimed innocence.
“Under Ohio law, however, lack of genuine remorse is an appropriate consideration for sentencing, even for a convicted defendant who maintains his or her innocence,” Brown wrote.
Since the trial court considered the purposes and principles of criminal sentencing, the court of appeals could not overturn its sentencing decision.
In a third argument on appeal, Williams claimed that his convictions were against the sufficiency and manifest weight of the evidence. But the appellate panel, considering the sheer amount of incriminating physical evidence and the damning testimony of Lambert and other eyewitnesses, held that the evidence was sufficient to support a conviction.
Presiding Judge Julia Dorrian and Judge Jennifer Brunner joined Brown to affirm the judgment of the Franklin County court. Brunner wrote a separate, concurring opinion.
The case is cited State v. Williams, 2016-Ohio-4550.
From the Canton Repository, July 1, 2016
By Randy Ludlow of the Columbus Dispatch, July 1, 2016
After decades fighting to legally clear his name for a pair of grisly murders he did not commit,the Ohio Supreme Court ruled last year that Dale Johnston had the right to sue the state.On Thursday, the Franklin County Court of Appeals again shot down Johnston's bid for a finding of actual innocence that would entitle the Grove City man to collect damages for wrongful imprisonment.
Johnston offered a sardonic chuckle this morning about his latest legal loss. "I'm beginning to wonder.
I think they're waiting for me to die," he said. "Everyone knows I'm innocent."Johnston, now 82, served nearly seven years on Death Row after being convicted of the 1982 Hocking County murders of his stepdaughter and her fiance before winning his freedom on appeal.
Again hearing Johnston's case under order of the Supreme Court, the appellate court again reversed a trial-court judge's finding that Johnston was innocent of the slayings of Annette Cooper, 18, and Todd Schultz, 19.
In a 2-1 finding, the appellate judges said another Supreme Court ruling released weeks afterJohnston won his case barred his pursuit of a finding of innocence.
The Supreme Court ruling in a wrongful-imprisonment case said an individual could only pursue an innocence claim if the errors that led to his release occurred after sentencing or imprisonment.
Johnston was freed on the basis of prosecutorial misconduct and withheld evidence that occurred during the trial " not after he was sentenced and imprisoned.
Judge Jennifer Brunner dissented in the appellate court ruling issued Thursday, saying Johnston was entitled to pursue a wrongful-imprisonment action under the latest Supreme Court ruling.
While conceding Johnston was innocent, the office of Attorney General Mike DeWine long has fought Johnston's efforts to be legally recognized as innocent. Johnston said he will discuss the possibility of another appeal with his lawyer.
Chester McKnight, a drifter and drug addict, confessed in 2008 to killing Cooper and Schultz during an attempted rape of the woman. When Schultz intervened, McKnight shot both of his victim sand, with the help of a friend, carved up their bodies, with their heads and limbs buried in a cornfield and their torsos thrown into the Hocking River. McKnight was sentenced to life in prison.
From the Cleveland Plain Dealer, May 18, 2016
Appellate court backs North Royalton's fight against mandatory pooling in driller's plan to frack for new well
By Robert Higgs, cleveland.com
May 18, 2016 at 3:40 PM, updated May 18, 2016 at 3:49 PM
The 10th District Ohio Court of Appeals this week upheld rulings in North Royalton's fight to thwart a driller who wants to put a horizontal well in the city. The court's ruling upheld previous findings that the city's safety concerns should be considered as the state evaluates whether to allow the drilling to proceed. (Bob Sandrick, cleveland.com)
The 10th District Ohio Court of Appeals agreed with a lower court and the Ohio Oil and Gas commission that the city's safety concerns were not properly considered before the chief of the Division of Oil and Gas Resources Management ordered the city's property be pooled with other land owners, clearing the way for the driller to proceed.
Here's an explanation:
The case arose after Richard Simmers, the chief of the state's Division of Oil and Gas Resources Management, part of the Department of Natural Resources, approved a mandatory pooling order and drilling permit for Cutter Oil, a company with more than a dozen wells in North Royalton. The decision would allow Cutter to drill its first horizontal well in North Royalton.
State regulations require at least 20 acres around the drill site. The law allows land owners to pool tracts of property to meet that minimum acreage.
If a driller cannot get land owners to go along voluntarily, the driller can ask the state to order a mandatory pooling arrangement. The order pieces together land needed to meet the minimum acreage requirement. Land owners are compensated for their lost mineral rights.
In December 2013, Simmons ordered the mandatory pooling agreement. About 2 acres of city property was included in acreage.
North Royalton, objecting to the mandatory pooling request, had sought to raise safety concerns with a state advisory council that collects information for the resources management division chief. The well would be Cutter's first to involve horizontal drilling and fracking.
The city wanted to present information about three incidents:
- In 2008 a 700-foot long, one-half inch thick metal rod was ejected under pressure from a Cutter well near an elementary school and oil was sprayed from the well.
- In 2011 a production line at another well leaked oil into the city's storm sewer leading to Chippewa Creek.
- In 2012 a natural gas release at another well forced some residents to be evacuated.
The advisory council focused solely on whether the land owners, including the city, were adequately compensated under the agreement, effectively negating the safety concerns.
Fighting the orders
After Simmers issued the pooling order and the drilling permit, North Royalton appealed to the Ohio Oil and Gas Commission, arguing its safety concerns should have been considered.
The commission revoked the pooling order and drilling permit and found that the advisory council's an division chief's evaluation was too limited and told the council to consider the safety issues.
Simmers, the chief, appealed that decision to Franklin County Common Pleas Court. It ruled the commission acted properly and that it would be illogical to "construe the law in a manner that ignored potential safety issues," according to the appellate court's ruling.
That prompted an appeal to the 10th District Court, which on Tuesday sided with North Royalton.
"It is not surprising that the city has taken a more cautious approach to the drilling ..., " Judge Gary Tyack wrote in the court opinion. "The urbanized environment, the inexperience of Cutter Oil in drilling a horizontal well and prior safety incidents ... are of special concern to the city that is ... charged with the responsibility to protect the health, safety and welfare of its citizenry."
What happens next
The resources management chief could appeal to the Ohio Supreme Court.
If not, the case would return to the advisory council with instructions to gather information about the city's safety concerns before deciding on whether it should force land owners to be pooled together.
See Judge Tyack's decision in which Judge Brunner concurred, here. Judge Lisa Sadler concurred in part and dissented in part.
Women have played an increasingly prominent role in Ohio politics during the past few decades. But it wasn't always this way. Until 1891, women were not allowed to watch legislative debates from the House gallery - according to legend, Abraham Lincoln refused to give a speech at the Ohio Statehouse in 1861 until women were allowed in as well, according to the Ohio Statehouse website. No woman held a seat in the state legislature until 1922, when six women were elected following the passage of the 19th Amendment guaranteeing women the right to vote. Today, women have held every major statewide office in Ohio at one point or another - though the state's only female governor to date, Nancy Hollister, was only appointed to hold the job for less than two weeks. Here are some of the most notable women politicians in Ohio history. (Plain Dealer file)
Yvette McGee Brown
Jo Ann Davidson
From the Cincinnati Enquirer, April 14, 2016
Jennifer Brunner is a judge on Ohio’s 10th District Court of Appeals and former Democratic secretary of state for Ohio.
While some Senate Republicans and prominent conservatives are already serving up 44-year-old Sen. Mike Lee, R-Utah, as an alternative to U.S. Circuit Judge Merrick B. Garland, nominated by President Obama for the U.S. Supreme Court on March 16, the U.S. Supreme Court continues its work with just eight (rather than the legally required nine) justices.
Since Garland’s nomination less than a month ago, the high court has already tied 4-4 on its review of what is known as union “fair-share,” that is, whether non-members of a bargaining unit who benefit from a collectively bargained contract must pay fees in place of union dues to the union that got them their benefits and salary. Many labor organizations were bracing for the worst – until the unfortunate demise of Justice Antonin Scalia and the unprecedented stance of the Senate GOP – that no more hearings on Supreme Court vacancies will be held until the term of the 44th president, Barack Hussein Obama, has expired. With a 4-4 vote and what would appear to be a 4-4 tie on whether to set aside the labor decision until a new justice arrives, both the decisions on the merits and on extending the time to consider it failed.
So, what happens if someone else leaves the court before the end of Obama’s term? Will the high court function with just seven justices? And what if one of them needs to recuse, as Justice Samuel Alito did in a post-Scalia hearing involving investments by Puerto Rico? In that case the “liberal” members of the court became the court’s majority. Is that what the GOP wants? Is that what the American people want?
This really isn’t a Republican or Democratic question – it’s a “do your job” question based on the oaths of office of some of America’s most highly placed public servants.
With the stamp not yet dry on PN 1258, the president’s nomination of Garland, Senate Majority Leader Mitch McConnell took to the airwaves citing “the Biden rule.” At first it sounded like a “goose-and-gander” scenario that turned a June 25, 1992, floor speech of then-Sen. Joe Biden against Democrats.
It really wasn’t. With no nomination pending at the time, Biden, who chaired the Senate Judiciary Committee, gratuitously urged his colleagues to delay consideration of any Supreme Court nomination, if it occurred, until after the November election to avoid partisan rancor being a part of the nomination process. No vote was taken. Biden had just presided over the contentious confirmation hearings for now-Justice Clarence Thomas.
Many Americans likely do not realize that Congress has the power to control much of what the Supreme Court is authorized to do outside of the high court’s few, specific powers enumerated in the Constitution. Congress has allowed the Supreme Court to set rules of procedure for itself and lower federal courts. While the Constitution gives the high court the power to hear appeals, it gives Congress the power to define how that process will work. Even the number of justices on the U.S. Supreme Court is established by Congress and not by the Supreme Court or anyone else.
If the Senate wants to change the number of justices on the Supreme Court, it can constitutionally pass legislation now to do that and urge the House to adopt its bill. To simply refuse to hold hearings with the stated intention of waiting until there is a new president is putting the cart before the horse. If the Senate majority wants only eight members on the Supreme Court for the rest of Obama’s term, it has the power to do that – by legislation, not by speeches and entrenchment. The president has done his job; now it’s time for the Senate to act.
From ProgressOhio Education, March 29, 2016:
COLUMBUS – Failure of the U.S. Senate to hold a hearing on Merrick Garland’s nomination to the U.S. Supreme Court “skews the balance of power that was carefully and wisely set by our nation’s founders,’’ according to an analysis prepared by Ohio Tenth District Court of Appeals Judge Jennifer Brunner.
“The stated refusal of the U.S. Senate to hold hearings on the President’s nomination … is a classic separation of powers dispute,’’ Brunner wrote. “The continued refusal of the U.S. Senate to do its job may extend beyond being characterized as a dispute, but rather, become a Constitutional crisis, and thereby … become a heightened crisis of confidence of the American people in their government.’’
The purpose of the 41-page paper, she said, is to equip the public with the tools needed to judge for itself and decide “what is fair and reasonable behavior when two branches of the government are in conflict, especially when one needs the other to carry out a constitutionally required act for the benefit of its people.’’
The Constitution requires Presidents to nominate Supreme Court justices but justices cannot officially join the court without Senate confirmation.
Part constitutional analysis, part history lesson, Brunner compares Senate leaders’ current pledge to block anyone President Obama nominates to the high court to the 1995-1996 government shutdown during President Bill Clinton’s tenure. In both instances, the public recognized the partisan gamesmanship but simply wanted a functioning government.
To make her case, Brunner takes us back to Clinton’s 1996 State of the State address during which he introduced Congress, and the American people, to Richard Dean.
* * *
See Judge Brunner's full report here.
From Court News Ohio, February 25, 2016:
Tenth District: Students of Nursing College that Lost Accreditation Entitled to Hearing on Lost Earning Potential
Students attending Owens Community College’s nursing program in the fall of 2009 are entitled to a hearing to demonstrate they lost future earning potential when the nursing program lost its national accreditation, an Ohio appeals court ruled.
The Tenth District Court of Appeals recently reversed the Ohio Court of Claims, which ruled that 62 former Owens students failed to prove they suffered any actual damages when the school lost accreditation. The appeals court found each student is entitled to a case-by-case assessment by the Court of Claims as to whether the lost accreditation led to the graduates taking lower-paying jobs or not pursuing advanced nursing degrees.
Owens, with nursing school programs in Findlay and Toledo, was accredited by the National League for Nursing Accreditation Commission (NLNAC) for more than 30 years until July 2009. NLNAC visited the campus in 2006, and delivered a negative report, but granted Owens conditional accreditation until early 2009 to bring its programs back into compliance. The school failed to do so and was notified in July 2009 that it lost its accreditation. Owens didn’t notify nursing students until late September that the accreditation was lost, which was after the time when fall semester students could drop courses and receive tuition and fees refunds.
* * *
See Judge Brunner's decision here.
Several Franklin County judges who appeared on a campaign flier paid for by Sheriff Zach Scott and Commissioner Paula Brooks want those campaigns to stop distributing the handouts.
The judges say they weren’t asked and are precluded by the state’s code of conduct for judges from appearing on campaign literature with candidates for other offices except for an official party sample ballot.
The flier has a “sample ballot” heading and asks recipients to vote for a slate of judges, plus Brooks, Scott, Recorder Terry “TJ” Brown, Coroner Anahi Ortiz and treasurer candidate Cheryl Brooks Sullivan.
But it is not the Franklin County Democratic Party’s official sample ballot. Scott and Brooks’ campaigns paid for the advertisement.
Judges Jennifer Brunner, Laurel Beatty, Kimberly Cocroft and Richard A. Frye sent separate letters to the Scott and Brooks campaigns asking them to stop distributing the sample ballots. Candidates Karen Phipps and Crysta R. Pennington also sent letters. They copied those to the Ohio Supreme Court’s Board of Professional Conduct.
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See Judge Brunner's letter here.
From Daily Legal News, Febuary 18, 2016:
In the 10th District Court of Appeals recently, a panel of three judges reversed a claims court judgment and ordered a new trial in a case brought by an inmate’s estate against the Ohio Department of Rehabilitation and Correction.
The estate of Mark Wayne Frash appealed the judgment of the Ohio Court of Claims, which ruled in favor of the Department of Rehabilitation and Correction on a claim arising from the death of Frash at the hands of fellow inmate, Eugene Groves.
Specifically, the court of appeals ruled that the ODRC had constructive notice that an attack from Groves was imminent and it had a duty to protect the inmates it housed from the likely actions of the violent inmate.
The reviewing court also held that the court of claims applied immunity to claims that were really about negligence and it improperly placed the burden of proving relevance on Frash’s estate when it came to psychiatric records that the claims court refused to admit into evidence.
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See Judge Brunner's decision here.
From the Columbus Dispatch, January 18, 2016:
A book bag left unattended on a school bus three years ago led to a series of searches and the arrest of an 18-year-old Whetstone High School student for bringing a gun to school.
This month, the Franklin County Court of Appeals upheld a judge’s decision to throw out the evidence in the case, agreeing that the way the search was conducted violated the student’s constitutional rights.
“Students do not ‘shed their constitutional rights ... at the schoolhouse gate,’ ” Judge Jennifer Brunner wrote for the 2-1 majority, quoting a well-known U.S. Supreme Court decision.
At the heart of the case is how much privacy a student can expect in a public-school setting under the Fourth Amendment’s protections against illegal searches and seizures.
The case centers on a bag that a Columbus schools bus driver found on his bus on Feb. 5, 2013. The driver took the bag into Whetstone High School and handed it to Robert Lindsey, a school security officer who worked for the district. Lindsey is not a police officer.
Lindsey testified that he looked into the bag for “safety and security” purposes and to identify the owner. He quickly determined that it belonged to a student named Joshua Polk.
His next decision was pivotal in the case. Lindsey said he remembered rumors that Polk was in a gang, so he took the bag to the principal’s office, where he dumped out the contents and discovered 13 small-caliber bullets. He and the principal then alerted a Columbus police officer, and the three tracked down Polk in a hallway. The officer detained Polk while Lindsey searched a bag that Polk was carrying. In that bag, he found a handgun.
Three months later, a county grand jury indicted Polk on a felony count of possessing a firearm in a school safety zone.
In September 2014, Common Pleas Judge Tim Horton granted a motion by the Franklin County public defender’s office to suppress the evidence. He ruled that the secondary search, in which the bag’s contents were dumped out, was based solely on rumors that Polk was involved in a gang.
Such rumors, he ruled, do not constitute “reasonable grounds” for suspecting a violation of school rules or the law. And because that search was improper, so was the follow-up search that uncovered the gun.
The Appeals Court, in a ruling issued on Jan. 7, agreed.
* * *
See Judge Brunner's decision here.
From the Columbus Dispatch, August 23, 2016
A man sentenced to 35 years in prison for his involvement in the torture of a couple in a Hilltop basement will have his sentence reduced by 14 years after the Franklin County Court of Appeals overturned his rape convictions.
Friday, August 5, 2016 3:53 PM
Tenth District: Non-Incumbent Candidates No Longer Have to Use “For” to Alert Voters They Don’t Hold the Office
From Court News, August 5, 2016
Candidates can’t be required to list words such as “for” in their campaign materials to clarify for voters that they don’t currently hold the office they seek, an Ohio appeals court ruled. Judicial elections, however, with differing public interests, are still subject to Ohio Supreme Court rules prohibiting use of a title not currently held.
Saturday, July 16, 2016 4:03 PM
From the Akron Legal News, July, 16, 2016
The 10th District Court of Appeals recently affirmed the dismissal of drug charges against a Columbus man.
The indictment referred to a compound known as MDPPP, a synthetic stimulant, referred to as a “controlled substance analog” under the law.The court of appeals ruled that, by failing to incorporate the definition of “controlled substance analog” into R.C. 2925.01, the General Assembly excluded that definition from applying in the context of criminal drug offense statutes.
Thursday, July 7, 2016 4:08 PM
From the Columbus Dispatch, July 7, 2016
Editorial, July 7, 2016
Dale Johnston is an innocent man. The case against him in the grisly 1982 murders of his stepdaughter and her fiancé was shaky from the start. But he served nearly seven years on death row before being freed on appeal in 1990. It turns out the crime scene was never properly secured and Johnston’s statements to police were coerced during an eight-hour police interrogation.The Franklin County Court of Appeals again shot down Johnston’s plea for a finding of innocence. Judge Jennifer Brunner dissented, disagreeing with her colleagues who cited a new Supreme Court ruling to block Johnston’s pursuit of an innocence ruling.
The man is 82. He lost his family. He lost his freedom. But it appears the state is waiting for Johnston to die before exonerating him. That’s shameful.