04/08/2003 Case Announcements - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as 04/08/2003 Case Announcements, 2003-Ohio-1775.]
The Supreme Court of Ohio

CASE ANNOUNCEMENTS AND ADMINISTRATIVE ACTIONS

April 8, 2003

MOTION AND PROCEDURAL RULINGS

1988-1852. State v. Brewer.
Greene App. No. 87CA67. By entry filed March 14, 2003, this court ordered that
appellant's sentence be carried into execution on Tuesday, the 29th day of April,
2003. In order to facilitate this court's timely consideration of any matters relating
to the execution of appellant's sentence,

IT IS ORDERED by the court that the Chief Justice may suspend
application of any provisions of the Rules of Practice of the Supreme Court,
including, but not limited to, the filing requirements imposed by S.Ct.Prac.R.
XIV(1).

IT IS FURTHER ORDERED by the court that service of documents as
required by S.Ct.Prac.R. XIV(2) shall be personal or by facsimile transmission.

IT IS FURTHER ORDERED by the court that counsel of record for the
parties shall supply this court with a copy of any document relating to this matter
that is filed in, or issued by, any other court in this state or any federal court, as
well as any commutation, pardon, or warrant of reprieve issued by the Governor.
A copy of the document shall be delivered to the Office of the Clerk as soon as
possible, either personally or by facsimile transmission.

1993-1708. State v. Kinley.
Clark App. No. 2826. On July 12, 2000, this court stayed the execution of
sentence in this cause pending exhaustion of state post-conviction remedies.
Appellee has moved that this court set a date for execution of sentence. It
appearing to the court that all matters have been disposed of in case No. 1993-
1708, appellant's direct appeal of his conviction, and in case No. 2002-0870,
appellant's post-conviction appeal,

IT IS ORDERED by the court, sua sponte, that the stay of execution entered
in this cause on July 12, 2000, be revoked.

IT IS HEREBY ORDERED by this court that said sentence be carried into
execution by the Warden of the Southern Ohio Correctional Facility or, in his
absence, by the Deputy Warden on Tuesday, the 22nd day of July, 2003, in
accordance with the statutes so provided.

IT IS FURTHER ORDERED that a certified copy of this entry and a warrant
under the seal of this court be duly certified to the Warden of the Southern Ohio
Correctional Facility and that said Warden shall make due return thereof to the
Clerk of the Court of Common Pleas of Clark County.

1997-0737. State v. Coleman.
Clark C.P. No. 96CR0142. On May 20, 1999, this court stayed the execution of
sentence in this cause pending exhaustion of state post-conviction remedies. It
appearing to the court that all matters have been disposed of in case No. 1997-
0737, appellant's direct appeal of his conviction, and in case No. 2002-2005,
appellant's post-conviction appeal,

IT IS ORDERED by the court, sua sponte, that the stay of execution entered
in this cause on May 20, 1999, be and is hereby revoked.

IT IS HEREBY ORDERED by this court that said sentence be carried into
execution by the Warden of the Southern Ohio Correctional Facility or, in his
absence, by the Deputy Warden on Tuesday, the 22nd day of July, 2003, in
accordance with the statutes so provided.

IT IS FURTHER ORDERED that a certified copy of this entry and a warrant
under the seal of this court be duly certified to the Warden of the Southern Ohio
Correctional Facility and that said Warden shall make due return thereof to the
Clerk of the Court of Common Pleas of Clark County.

1999-1268. State v. Cassano.
Richland C.P. No. 98CR171H. On October 3, 2002, this court stayed the
execution of sentence in this cause pending the timely filing and disposition of
appellant's appeal to the Supreme Court of the United States. It appearing to the
court that all matters have since been disposed of in this case,

IT IS ORDERED by the court, sua sponte, that the stay of execution entered
in this cause on October 3, 2002, be and hereby is, revoked.

IT IS FURTHER ORDERED by this court that said sentence be carried into
execution by the Warden of the Southern Ohio Correctional Facility or, in his
absence, by the Deputy Warden on Tuesday, the 22nd day of July, 2003, in
accordance with the statutes so provided.
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04-08-03

IT IS FURTHER ORDERED that a certified copy of this entry and a warrant
under the seal of this court be duly certified to the Warden of the Southern Ohio
Correctional Facility and that said Warden shall make due return thereof to the
Clerk of the Court of Common Pleas of Richland County.

APPEALS NOT ACCEPTED FOR REVIEW

2002-2012. Blackledge v. ITT Hartford Ins. Group.
Stark App. No. 2002CA00007, 2002-Ohio-5435.

Moyer, C.J., Lundberg Stratton and O'Connor, JJ., dissent.

Peggy Bryant, J., of the Tenth Appellate District, sitting for Cook, J.

DISCIPLINARY CASES

1992-0422. Columbus Bar Assn. v. Gaba.
On June 17, 1992, this court indefinitely suspended respondent, Lawrence Charles
Gaba. On October 16, 2002, relator, Columbus Bar Association, filed a motion for
order to show cause, requesting the court to issue an order directing Lawrence
Charles Gaba to appear and show cause why he should not be found in contempt
for his failure to comply with this court's June 17, 1992 order. On December 27,
2002, this court granted that motion and advised respondent to file a written
response by January 16, 2003. Respondent did not file a written response. On
March 14, 2003, this court ordered respondent to appear before the court on March
26, 2003. Respondent appeared. Accordingly,

IT IS ORDERED by the court, sua sponte, that respondent be and hereby is
found in contempt and sentenced to 30 days in jail. It is further ordered that the
30-day jail sentence be suspended on the condition that respondent not practice law
in the state of Ohio.

IT IS FURTHER ORDERED that the Clerk of this court issue certified
copies of this order as provided for in Gov.Bar R. V(8)(D)(1).

Moyer, C.J., Resnick, F.E. Sweeney, Pfeifer, Cook, Lundberg Stratton and
DeGenaro, JJ., concur.

Mary DeGenaro, J., of the Seventh Appellate District, sitting for O'Connor,
J.

2003-0322. In re Resignation of Lewis.
The resignation of Harry Donal Lewis, a.k.a. Harry Donald Bussinger, Attorney
Registration No. 0034332, is accepted with disciplinary action pending.

2003-0419. In re Andrews.
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04-08-03

On March 4, 2003, and pursuant to Gov.Bar R. V(5)(A)(3), the Secretary of the
Board of Commissioners on Grievances and Discipline of the Supreme Court of
Ohio certified to the Supreme Court a certified copy of a judgment entry of a
felony conviction against Robert James Andrews, an attorney licensed to practice
law in the state of Ohio.

Upon consideration thereof and pursuant to Gov.Bar R. V(5)(A)(4), it is
ordered and decreed that Robert James Andrews, Attorney Registration No.
0025043, last known business address in Garrettsville, Ohio, be, and hereby is,
suspended from the practice of law for an interim period, effective as of the date of
this entry.

IT IS FURTHER ORDERED that this matter be, and is hereby, referred to
the Disciplinary Counsel for investigation and commencement of disciplinary
proceedings.

IT IS FURTHER ORDERED that Robert James Andrews immediately cease
and desist from the practice of law in any form and is hereby forbidden to appear
on behalf of another before any court, judge, commission, board, administrative
agency, or other public authority.

IT IS FURTHER ORDERED that, effective immediately, he be forbidden to
counsel or advise, or prepare legal instruments for others or in any manner perform
legal services for others.

IT IS FURTHER ORDERED that he is hereby divested of each, any, and all
of the rights, privileges, and prerogatives customarily accorded to a member in
good standing of the legal profession of Ohio.

IT IS FURTHER ORDERED that, pursuant to Gov.Bar R. X(3)(G),
respondent shall complete one credit hour of continuing legal education for each
month, or portion of a month, of the suspension. As part of the total credit hours of
continuing legal education required by Gov.Bar R. X(3)(G), respondent shall
complete one credit hour of instruction related to professional conduct required by
Gov.Bar R. X(3)(A)(1), for each six months, or portion of six months, of the
suspension.

IT IS FURTHER ORDERED that respondent shall not be reinstated to the
practice of law in Ohio until (1) respondent complies with the requirements for
reinstatement set forth in the Supreme Court Rules for the Government of the Bar
of Ohio, (2) respondent complies with this and all other orders issued by this court,
(3) respondent complies with the Supreme Court Rules for the Government of the
Bar of Ohio, and (4) this court orders respondent reinstated.

IT IS FURTHER ORDERED, sua sponte, by the court, that within 90 days
of the date of this order, respondent shall reimburse any amounts that have been
awarded by the Clients' Security Fund pursuant to Gov.Bar R. VIII(7)(F). It is
further ordered, sua sponte, by the court that if, after the date of this order, the
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04-08-03

Clients' Security Fund awards any amount against the respondent pursuant to
Gov.Bar R. VIII(7)(F), the respondent shall reimburse that amount to the Clients'
Security Fund within 90 days of the notice of such award.

IT IS FURTHER ORDERED that on or before 30 days from the date of this
order, respondent shall:

1. Notify all clients being represented in pending matters and any co-
counsel of his suspension and his consequent disqualification to act as an attorney
after the effective date of this order and, in the absence of co-counsel, also notify
the clients to seek legal service elsewhere, calling attention to any urgency in
seeking the substitution of another attorney in his place;

2. Regardless of any fees or expenses due him, deliver to all clients being
represented in pending matters any papers or other property pertaining to the client,
or notify the clients or co-counsel, if any, of a suitable time and place where the
papers or other property may be obtained, calling attention to any urgency for
obtaining such papers or other property;

3. Refund any part of any fees or expenses paid in advance that are
unearned or not paid, and account for any trust money or property in his possession
or control;

4. Notify opposing counsel in pending litigation or, in the absence of
counsel, the adverse parties of his disqualification to act as an attorney after the
effective date of this order, and file a notice of disqualification of respondent with
the court or agency before which the litigation is pending for inclusion in the
respective file or files;

5. Send all such notices required by this order by certified mail with a
return address where communications may thereafter be directed to respondent;

6. File with the Clerk of this court and the Disciplinary Counsel of the
Supreme Court an affidavit showing compliance with this order, showing proof of
service of notices required herein, and setting forth the address where the affiant
may receive communications; and

7. Retain and maintain a record of the various steps taken by respondent
pursuant to this order.

IT IS FURTHER ORDERED that respondent shall keep the Clerk and the
Disciplinary Counsel advised of any change of address where respondent may
receive communications.

IT IS FURTHER ORDERED, sua sponte, that all documents filed with this
court in this case shall meet the filing requirements set forth in the Rules of
Practice of the Supreme Court of Ohio, including requirements as to form, number,
and timeliness of filings.

IT IS FURTHER ORDERED, sua sponte, that service shall be deemed made
on respondent by sending this order, and all other orders in this case, by certified
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04-08-03

mail to the most recent address respondent has given to the Attorney Registration
Office.

IT IS FURTHER ORDERED that the Clerk of this court issue certified
copies of this order as provided for in Gov.Bar R. V(8)(D)(1), that publication be
made as provided for in Gov.Bar R. V(8)(D)(2), and that respondent bear the costs
of publication.

2003-0422. In re Jackson.
On March 4, 2003, and pursuant to Gov.Bar R. V(5)(A)(3), the Secretary of the
Board of Commissioners on Grievances and Discipline of the Supreme Court of
Ohio certified to the Supreme Court a certified copy of a judgment entry of a
felony conviction against Otha M. Jackson, an attorney licensed to practice law in
the state of Ohio.

Upon consideration thereof and pursuant to Gov.Bar R. V(5)(A)(4), it is
ordered and decreed that Otha M. Jackson, Attorney Registration No. 0010036, last
known business address in Cleveland, Ohio, be, and hereby is, suspended from the
practice of law for an interim period, effective as of the date of this entry.

IT IS FURTHER ORDERED that this matter be, and is hereby, referred to
the Disciplinary Counsel for investigation and commencement of disciplinary
proceedings.

IT IS FURTHER ORDERED that Otha M. Jackson immediately cease and
desist from the practice of law in any form and is hereby forbidden to appear on
behalf of another before any court, judge, commission, board, administrative
agency, or other public authority.

IT IS FURTHER ORDERED that, effective immediately, he be forbidden to
counsel or advise, or prepare legal instruments for others or in any manner perform
legal services for others.

IT IS FURTHER ORDERED that he is hereby divested of each, any, and all
of the rights, privileges, and prerogatives customarily accorded to a member in
good standing of the legal profession of Ohio.

IT IS FURTHER ORDERED that, pursuant to Gov.Bar R. X(3)(G),
respondent shall complete one credit hour of continuing legal education for each
month, or portion of a month, of the suspension. As part of the total credit hours of
continuing legal education required by Gov.Bar R. X(3)(G), respondent shall
complete one credit hour of instruction related to professional conduct required by
Gov.Bar R. X(3)(A)(1), for each six months, or portion of six months, of the
suspension.

IT IS FURTHER ORDERED that respondent shall not be reinstated to the
practice of law in Ohio until (1) respondent complies with the requirements for
reinstatement set forth in the Supreme Court Rules for the Government of the Bar
6
04-08-03

of Ohio, (2) respondent complies with this and all other orders issued by this court,
(3) respondent complies with the Supreme Court Rules for the Government of the
Bar of Ohio, and (4) this court orders respondent reinstated.

IT IS FURTHER ORDERED, sua sponte, by the court, that within 90 days
of the date of this order, respondent shall reimburse any amounts that have been
awarded by the Clients' Security Fund pursuant to Gov.Bar R. VIII(7)(F). It is
further ordered, sua sponte, by the court that if, after the date of this order, the
Clients' Security Fund awards any amount against the respondent pursuant to
Gov.Bar R. VIII(7)(F), the respondent shall reimburse that amount to the Clients'
Security Fund within 90 days of the notice of such award.

IT IS FURTHER ORDERED that on or before 30 days from the date of this
order, respondent shall:

1. Notify all clients being represented in pending matters and any co-
counsel of his suspension and his consequent disqualification to act as an attorney
after the effective date of this order and, in the absence of co-counsel, also notify
the clients to seek legal service elsewhere, calling attention to any urgency in
seeking the substitution of another attorney in his place;

2. Regardless of any fees or expenses due him, deliver to all clients being
represented in pending matters any papers or other property pertaining to the client,
or notify the clients or co-counsel, if any, of a suitable time and place where the
papers or other property may be obtained, calling attention to any urgency for
obtaining such papers or other property;

3. Refund any part of any fees or expenses paid in advance that are
unearned or not paid, and account for any trust money or property in his possession
or control;

4. Notify opposing counsel in pending litigation or, in the absence of
counsel, the adverse parties of his disqualification to act as an attorney after the
effective date of this order, and file a notice of disqualification of respondent with
the court or agency before which the litigation is pending for inclusion in the
respective file or files;

5. Send all such notices required by this order by certified mail with a
return address where communications may thereafter be directed to respondent;

6. File with the Clerk of this court and the Disciplinary Counsel of the
Supreme Court an affidavit showing compliance with this order, showing proof of
service of notices required herein, and setting forth the address where the affiant
may receive communications; and

7. Retain and maintain a record of the various steps taken by respondent
pursuant to this order.
7
04-08-03

IT IS FURTHER ORDERED that respondent shall keep the Clerk and the
Disciplinary Counsel advised of any change of address where respondent may
receive communications.

IT IS FURTHER ORDERED, sua sponte, that all documents filed with this
court in this case shall meet the filing requirements set forth in the Rules of
Practice of the Supreme Court of Ohio, including requirements as to form, number,
and timeliness of filings.

IT IS FURTHER ORDERED, sua sponte, that service shall be deemed made
on respondent by sending this order, and all other orders in this case, by certified
mail to the most recent address respondent has given to the Attorney Registration
Office.

IT IS FURTHER ORDERED that the Clerk of this court issue certified
copies of this order as provided for in Gov.Bar R. V(8)(D)(1), that publication be
made as provided for in Gov.Bar R. V(8)(D)(2), and that respondent bear the costs
of publication.

2003-0431. In re Bowman.
On March 7, 2003, and pursuant to Gov.Bar R. V(5)(A)(3), the Secretary of the
Board of Commissioners on Grievances and Discipline of the Supreme Court of
Ohio certified to the Supreme Court a certified copy of a judgment entry of a
felony conviction against Timothy Mark Bowman, an attorney licensed to practice
law in the state of Ohio.

Upon consideration thereof and pursuant to Gov.Bar R. V(5)(A)(4), it is
ordered and decreed that Timothy Mark Bowman, Attorney Registration No.
0068233, last known business address in Painesville, Ohio, be, and hereby is,
suspended from the practice of law for an interim period, effective as of the date of
this entry.

IT IS FURTHER ORDERED that this matter be, and is hereby, referred to
the Disciplinary Counsel for investigation and commencement of disciplinary
proceedings.

IT IS FURTHER ORDERED that Timothy Mark Bowman immediately
cease and desist from the practice of law in any form and is hereby forbidden to
appear on behalf of another before any court, judge, commission, board,
administrative agency, or other public authority.

IT IS FURTHER ORDERED that, effective immediately, he be forbidden to
counsel or advise, or prepare legal instruments for others or in any manner perform
legal services for others.

IT IS FURTHER ORDERED that he is hereby divested of each, any, and all
of the rights, privileges, and prerogatives customarily accorded to a member in
good standing of the legal profession of Ohio.
8
04-08-03

IT IS FURTHER ORDERED that, pursuant to Gov.Bar R. X(3)(G),
respondent shall complete one credit hour of continuing legal education for each
month, or portion of a month, of the suspension. As part of the total credit hours of
continuing legal education required by Gov.Bar R. X(3)(G), respondent shall
complete one credit hour of instruction related to professional conduct required by
Gov.Bar R. X(3)(A)(1), for each six months, or portion of six months, of the
suspension.

IT IS FURTHER ORDERED that respondent shall not be reinstated to the
practice of law in Ohio until (1) respondent complies with the requirements for
reinstatement set forth in the Supreme Court Rules for the Government of the Bar
of Ohio, (2) respondent complies with this and all other orders issued by this court,
(3) respondent complies with the Supreme Court Rules for the Government of the
Bar of Ohio, and (4) this court orders respondent reinstated.

IT IS FURTHER ORDERED, sua sponte, by the court, that within 90 days
of the date of this order, respondent shall reimburse any amounts that have been
awarded by the Clients' Security Fund pursuant to Gov.Bar R. VIII(7)(F). It is
further ordered, sua sponte, by the court that if, after the date of this order, the
Clients' Security Fund awards any amount against the respondent pursuant to
Gov.Bar R. VIII(7)(F), the respondent shall reimburse that amount to the Clients'
Security Fund within 90 days of the notice of such award.

IT IS FURTHER ORDERED that on or before 30 days from the date of this
order, respondent shall:

1. Notify all clients being represented in pending matters and any co-
counsel of his suspension and his consequent disqualification to act as an attorney
after the effective date of this order and, in the absence of co-counsel, also notify
the clients to seek legal service elsewhere, calling attention to any urgency in
seeking the substitution of another attorney in his place;

2. Regardless of any fees or expenses due him, deliver to all clients being
represented in pending matters any papers or other property pertaining to the client,
or notify the clients or co-counsel, if any, of a suitable time and place where the
papers or other property may be obtained, calling attention to any urgency for
obtaining such papers or other property;

3. Refund any part of any fees or expenses paid in advance that are
unearned or not paid, and account for any trust money or property in his possession
or control;

4. Notify opposing counsel in pending litigation or, in the absence of
counsel, the adverse parties of his disqualification to act as an attorney after the
effective date of this order, and file a notice of disqualification of respondent with
the court or agency before which the litigation is pending for inclusion in the
respective file or files;
9
04-08-03

5. Send all such notices required by this order by certified mail with a
return address where communications may thereafter be directed to respondent;

6. File with the Clerk of this court and the Disciplinary Counsel of the
Supreme Court an affidavit showing compliance with this order, showing proof of
service of notices required herein, and setting forth the address where the affiant
may receive communications; and

7. Retain and maintain a record of the various steps taken by respondent
pursuant to this order.

IT IS FURTHER ORDERED that respondent shall keep the Clerk and the
Disciplinary Counsel advised of any change of address where respondent may
receive communications.

IT IS FURTHER ORDERED, sua sponte, that all documents filed with this
court in this case shall meet the filing requirements set forth in the Rules of
Practice of the Supreme Court of Ohio, including requirements as to form, number,
and timeliness of filings.

IT IS FURTHER ORDERED, sua sponte, that service shall be deemed made
on respondent by sending this order, and all other orders in this case, by certified
mail to the most recent address respondent has given to the Attorney Registration
Office.

IT IS FURTHER ORDERED that the Clerk of this court issue certified
copies of this order as provided for in Gov.Bar R. V(8)(D)(1), that publication be
made as provided for in Gov.Bar R. V(8)(D)(2), and that respondent bear the costs
of publication.

MISCELLANEOUS ORDERS

In re Report of the Commission
:
on Continuing Legal Education.
:

E N T R Y
Randal Stephen Knight
:
(#0060083), :
Respondent. :

This matter originated in this court on the filing of a report by the
Commission on Continuing Legal Education ("commission") pursuant to Gov.Bar
R. X(6)(A)(1)(b) and (A)(2)(d). The commission recommended the imposition of
sanctions against certain attorneys, including the above-named respondent, for
failure to comply with the provisions of Gov.Bar R. X, Attorney Continuing Legal
Education, for the 2000-2001 reporting period.
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04-08-03

On March 20, 2003, this court adopted the recommendation of the
commission, imposed a sanction fee upon the respondent, and suspended the
respondent from the practice of law pursuant to Gov.Bar R. X(6)(B)(3) and
(5)(A)(4). The court further ordered that respondent shall not be reinstated to the
practice of law in Ohio until respondent complies with the requirements for
reinstatement set forth in Gov.Bar R. X(7), respondent complies with the Supreme
Court Rules for the Government of the Bar of Ohio, respondent complies with this
and all other orders of the court, and this court orders respondent reinstated.

On April 2, 2003, the commission filed a recommendation pursuant to
Gov.Bar R. X(7)(B)(2), finding that the respondent has paid all fees assessed for
noncompliance, has made up all deficiencies and is now in full compliance with all
requirements of Gov.Bar R. X, and recommending that the respondent be
reinstated to the practice of law in Ohio. On April 2, 2003, the commission
certified that respondent had completed the credit hours of continuing legal
education required during his suspension by this court's order of suspension. On
March 28, 2003, respondent satisfied all of the requirements of this court's order of
suspension. Upon consideration thereof,

IT IS ORDERED by the court that the recommendation of the commission
be adopted and respondent, Randal Stephen Knight, is hereby reinstated to the
practice of law.

In re Report of the Commission
:
on Continuing Legal Education.
:

E N T R Y
R. Russell Kubyn
:
(#0029510), :
Respondent. :

This matter originated in this court on the filing of a report by the
Commission on Continuing Legal Education ("commission") pursuant to Gov.Bar
R. X(6)(A)(1)(b) and (A)(2)(d). The commission recommended the imposition of
sanctions against certain attorneys, including the above-named respondent, for
failure to comply with the provisions of Gov.Bar R. X, Attorney Continuing Legal
Education, for the 2000-2001 reporting period.

On March 20, 2003, this court adopted the recommendation of the
commission, imposed a sanction fee upon the respondent, and suspended the
respondent from the practice of law pursuant to Gov.Bar R. X(6)(B)(3) and
(5)(A)(4). The court further ordered that respondent shall not be reinstated to the
practice of law in Ohio until respondent complies with the requirements for
reinstatement set forth in Gov.Bar R. X(7), respondent complies with the Supreme
11
04-08-03

Court Rules for the Government of the Bar of Ohio, respondent complies with this
and all other orders of the court, and this court orders respondent reinstated.

On April 2, 2003, the commission filed a recommendation pursuant to
Gov.Bar R. X(7)(B)(2), finding that the respondent has paid all fees assessed for
noncompliance, has made up all deficiencies and is now in full compliance with all
requirements of Gov.Bar R. X, and recommending that the respondent be
reinstated to the practice of law in Ohio. On April 2, 2003, the commission
certified that respondent had completed the credit hours of continuing legal
education required during his suspension by this court's order of suspension. On
March 27, 2003, respondent satisfied all of the requirements of this court's order of
suspension. Upon consideration thereof,

IT IS ORDERED by the court that the recommendation of the commission
be adopted and respondent, R. Russell Kubyn, is hereby reinstated to the practice
of law.
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04-08-03