Among the decisions released last week, the Ohio Supreme Court ruled in four cases involving no-contest pleas, juveniles, or enhanced penalties for fentanyl possession.
“A trial court abuses its discretion when it rejects a no-contest plea as a matter of course without considering the facts and circumstances of the case,” Justice Judith L. French wrote in the Court’s opinion.
After being indicted for cocaine possession in Hamilton County, Andrea Beasley attempted to plead no contest. Because the court had a policy of rejecting no-contest pleas in all circumstances, Beasley pled guilty and was sentenced to three years of community control.
Although a valid guilty plea generally waives the right to appeal most pre-trial issues, Beasley’s plea did not amount to a waiver because Beasley’s attorney clearly stated in open court that Beasley wanted to plead no contest but could not because of the court’s policy, Justice French explained. Given that Beasley sufficiently preserved her objection, Beasley was permitted to appeal the trial court’s error.
The ruling returned the case to the trial court for Beasley to enter a new plea.
Justices Terrence O’Donnell, Sharon L. Kennedy, William M. O’Neill, and R. Patrick DeWine joined the opinion. The majority was also joined by Twelfth District Court of Appeals Judge Robert P. Ringland, sitting for Justice Patrick F. Fischer. Chief Justice Maureen O’Connor concurred in judgment only.
Parent’s Right to Counsel
The Supreme Court determined that a waiver of a parent’s right to counsel cannot be inferred by a parent’s unexplained failure to appear at a hearing involving the termination of parental rights. The Court directed the juvenile court in Franklin County to conduct a new permanent custody hearing for a child identified as R.K.
When R.K.’s mother, A.S., did not appear at a permanent custody hearing about her child, the juvenile court allowed A.S.’s attorney to withdraw from the case and granted permanent custody of the child to the county children’s services agency.
In the Court’s opinion, Justice O’Neill noted that A.S. was sent notification of the hearing, her attorney sent her a letter stating that she had to appear, she responded to the letter, and the attorney said he told the mother that, if she did not show up, the court would likely move forward with determining custody and he planned to withdraw as counsel. However, the juvenile court did not inquire about why A.S. was not there or where she was, the extent of their past attorney-client relationship, or her response to the attorney’s letter.
“We hold that when the state seeks to terminate a parent’s parental rights, the parent has the right to counsel. The parent cannot be deprived of that right unless the court finds that the parent has knowingly waived the right to counsel,” the opinion stated.
Chief Justice O’Connor joined the opinion.
Justice French concurred in the Court’s judgment and in the opinion’s syllabus. She wrote separately to offer additional guidance about when a parent waives his or her right to counsel. She stated that a trial court should review the totality of the circumstances; discuss on the record the factors indicating that a parent has waived the right to an attorney; and make a finding, based on the circumstances, that the parent waived the right. Justice Kennedy joined the concurring opinion.
Justice Fischer concurred only in the Court’s judgment.
Justice O’Donnell dissented, stating that A.S. waived her right to counsel because she received notice of the hearing date and time and a directive to attend, and she was told that, if she did not appear, the juvenile court would likely proceed and her attorney would withdraw from her case. Justice DeWine joined the dissent.
A child whose case has been transferred by a juvenile court to adult court cannot appeal the bindover decision until adult court proceedings have concluded, the Supreme Court ruled.
The 17-year-old juvenile, identified as D.H., was charged with two robbery offenses in Montgomery County. The juvenile court determined that the youth was not amenable to rehabilitation and transferred jurisdictionover the cases to adult court. D.H. sought to immediately appeal the transfer orders.
In the majority opinion, Justice DeWine concluded that the bindover decision did not meet the definition of a final order that could be immediately appealed because D.H. would not lack a meaningful or effective remedy if he had to wait to appeal the transfer until after final judgment in the adult court.
“Here, the harm alleged in D.H.’s appeal — the transfer of his cases to adult court — can be rectified following final judgment,” the opinion stated. “The passage of time alone would not render an appeal following final judgment meaningless or ineffective.”
Justices Kennedy, French, and Fischer joined the opinion. Chief Justice O’Connor and Justice O’Donnell concurred only in the Court’s judgment.
Justice O’Neill dissented without a written opinion.
Fentanyl Dosage for Increased Penalties
Without a standard pharmaceutical reference manual that specifies for transdermal fentanyl the maximum daily dose in the usual dose range, as required by state law, possession of less than 20 grams of transdermal fentanyl is a fifth-degree felony, the Supreme Court concluded.
The Court reviewed a state law that enhances an aggravated drug possession offense from a fifth-degree felony to a second-degree felony if the amount of the drug “equals or exceeds five times the bulk amount but is less than fifty times the bulk amount.”
Mark H. Pountney stipulated that he knowingly obtained 10 three-day transdermal fentanyl patches. At trial in Cuyahoga County, a pharmacist for the state calculated the bulk amount of fentanyl based on the usual dosage range for morphine because the standard pharmaceutical reference manual he referenced did not include a usual dosage range for fentanyl patches.
However, in the Court’s unanimous opinion, Justice French wrote that the General Assembly decided to tie the meaning of “bulk amount” to information in pharmaceutical reference manuals and the statute requires that “the maximum daily dose in the usual dosage range” be specified in one of these manuals. Noting that the General Assembly is considering legislation about the escalation of penalties for fentanyl, the Court stated that “unless and until the General Assembly acts, our role is to apply the current statutory scheme as enacted.”