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IN THE SUPREME COURT OF OHIO
STATE OF OHIO
SUPREME COURT CASE
NO. 14-1064
Appellee,
ON APPEAL FROM THE
COURT OF APPEALS,
NINTH APPELLATE
DISTRICT
V5.
ASIM J. TAYLOR
Appellant.
LORAIN COUNTY COMMON
PLEAS COURT CASE NOS.
13CA010366
13CA010367
13CA010368
13CA010369
MEMORANDUM OF APPELLEE IN
OPPOSITION TO JURISDICTION
DENNIS P. WILL, #0038129
Lorain County Prosecuting Attorney
Lorain County, Ohio
225 Court Street, 3rd Floor
Elyria, Ohio 44035
(440) 329-5389
DOUGLAS W. MERRILL
Smith, Illner, & Oe
424 Middle Ave.
Elyria, Ohio 44035,^'
(440) 323-3310
,.
a ^^ ^ f s
BY:
MARY R. SLANCZKA, #0066350
NATASHA RUIZ CUERRIERI (0082275)
Assistant Prosecuting Attorney
Lorain County Prosecuting Attorney
Lorain County, Ohio
225 Court Street, 3 rd Floor
Elyria, Ohio 44035
(440) 329-5389
^
RE
tEUV1D
jUL 2 3 2014
CLERK OF COURT
SUPREME COtJRT OF QULO
COUNSEL FOR APPELLEE
COUNSEL FOR APPELLANT
TABLE OF CONTENTS
Table of Contents ........ .................................................................................................................... ii
Table
of Authorities •- •
.......................................................................................................................
PPP
Explanation of Why This Case Does Not Involve a Substantial Constitutional
Question And Is Not a Case of Public or Great General Interest ....................................................1
Statement of the Case and Facts ..................................................................................................1, 2
Standard of Review ..........................................................................................................................2
LAW & ARGUMENT
RESPONSE TO APPELLANT'S FIRST AND THIRD PROPOSITIONS OF LAW ...................3
THE COMMUNITY CONTROL SANCTION AT ISSt7E IS NOT OVER BROAD
UNDER STATE V. TALTY, AS THE SANCTION AT ISSUE CAN BE LIFTED
BEFORE THE EXPIRATION OF THE COMMUNITY CONTROL SENTF_,1^TCE ...
................................................................................................. . .......... . ...........................3
II. THE COMMUNITY CONTROL SANCTION AT ISSUE IS WITHIN THE
DISCRETION PROVIDED TO THE SENTENCING COURT BY THE GENERAL
ASSEMBLY ..................................................................................................................4
III. ALTHOUGH THE RIGHT TO PROCREATE IS A FUNDAMENTAL RIGHT, THE
JONES TEST IS STILL THE PEOPER TEST FOR A COMMUNUITY CONTROL
SANCTION . .......................................................................................................:..........8
Conclusion .....................................................................................................................................11
Proof of Service .............................................................................................................................12
ii
TABLE OF AUTHORITIES
CASES:
Crriffin v. Wisconsin. 483 U.S. 868 (1987) ......................................................................................8
Lakewood v. Hartman, 86 Ohio St. 3d 275 (1999) ..........................................................................2
Morrissey v. Brewer, 408 U.S. 471 (1972) ................................................................................8, 11
Oakley v. Wisconsin, 2001 WI 103 (2001) .................................................................................3, 9
Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) ......................................................8
State v. Adams, 62 Ohio St. 2d 151 (1980) . ....................................................................................2
State v. Bresson, 51 Ohio St. 3d 123 (1990). ...................................................................................2
State v. Conkle, 9th Dist., 129 Ohio App, 3d 177 (1998) .............................................................8, 9
State v. Jones, 49 Ohio St. 3d 51 (1990) ....................................................................3, 4, 5, 6, 7, 10
State v. Kline, 155 Ore. App. 96 (Or. Ct. App. 1998) ...................................................................10
State v. Krebs, 212 Wis. 2d 127 (Ct. App. 1997) ..........................................................................10
State v.Talty, No. 2003-1344, 103 Ohio St. 3d 177 (2004) .............................................2, 3, 4, 5, 9
State v. Talty, 9th Dist. Lorain No. 02CA0087M, 2003-Ohio-3161 ...........................................5, 6
United States v. Bolinger, 940 F.2d 478 (9th Cir. 1991) ..................................................................9
United States v. Hughes, 964 F.2d 536 (6th Cir. 1992) ....................................................................9
United States v. Peete, 919 F.2d 1168 (6th Cir. 1990) ............. ........................................................9
RULES & STATUTES:
R.C. 2919.21 ....................................................................................................................................1
R.C. 2929.15 ....................................................................................................................................4
OTHER SOURCES:
Blacks Law Dictionary(7'h Ed. Rev. 1999) "rehabilitation............................................................. 4
iii
EXPLANATION OF WHY THIS CASE DOES NOT INVOLVE A SUBSTANTIAL
CONSTITUTIONAL QUESTION AND IS NOT A CASE OF PUBLIC OR GREAT
GENERAL INTEREST
This Honorable Court should not accept jurisdiction for the following reasons:
1. The decision of the Ninth Judicial District Court of Appeals to affirm the conviction and
sentence of Appellant created no injustice as Appellant's argument has been addressed by
existing case law.
2. No issue or substantial constitutional question exists in the Appellant's appeal to this
Honorable Court. The attempted appeal further presents no viable question of general
public interest so as to warrant the exercise of this Court's jurisdiction.
STATEMENT OF THE CASE AND FACTS
On August 10, 2011, Appellant, Asim Taylor was indicted on four separate cases of NonSupport of Dependents in violation of R.C. 2919.21(B), Felonies of the Fifth Degree. On
September 17, 2012, Taylor entered pleas of Guilty to each of the four counts.
Prior to the original sentencing date of January 9, 2013, the trial court held a meeting
with Taylor's counsel as well as the counsel for the State. The trial court expressed its intention
to impose Community Control Sanctions on Taylor and order, as a condition of community
control, that Taylor make all reasonable efforts to avoid impregnating a woman while on
community control. The sanction would be removed if Taylor could demonstrate to the trial
court that he was able to provide support for the children he already had. and was, in fact,
supporting his children. The sanction could also be removed if a change in conditions warranted
the lifting of the sanction.
Counsel for Taylor was granted a continuance for the purpose of researching the validity
of this condition. Sentencing was reset to January 23, 2013. On that date, Taylor was ordered to
complete five years of community control supervision, pay restitution in the amount of
$78,922.12 and make all reasonable efforts to avoid impregnating a woman. The court included a
provision that the procreation restriction could be lifted if "defendant can prove to the Court that
he is able to provide support for his children he already has and is in fact supporting the children
or until a change in conditions warrant lifting of this condition.." Tr. 6.
Taylor filed an appeal in the Ninth District Court of Appeals. On May 12, 2014, the
Ninth District Court of Appeals upheld the decision of the trial court. Taylor now appeals that
decision to this Honorable Court.
STANDARD OF REVIEW
The appropriate standard of review for the imposition of community control sanctions is
abuse of discretion. Taylor asserts that the conditions of his community control are subject to de
novo review. This contention lacks merit. "The General Assembly has ... granted broad
discretion to trial courts in imposing community-control sanctions." State v. Talty, 103 Ohio St.
3d 177, 179, 2004-Ohio-4888. Because of the broad discretion to which trial courts are entitled,
this Court has held that "[w]e review the trial court's imposition of community-control sanctions
under an abuse-of-discretion standard." Id. citing Lakewood v. Hartman, 86 Ohio St.3d 275
(1999). ``The term `abuse of discretion° connotes more than an error of law or judgment; it
implies that the court's attitude is unreasonable, arbitrary, or unconscionable." State v. Bresson,
51 Ohio St.3d 123, 129 (1990); citing State v. Adams, 62 Ohio St.2d 151, 157 (1980). The State
of Ohio asserts the Standard of Review as its response to Appellant's Second proposition of law.
2
LAW AND ARGUMENT
RESPONSE TO APPELLANT'S FIRST AND THIRD PROPOSITIONS OF LAW
1. THE COMMUNITY CONTROL SANCTION AT ISSUE
IS NOT OVERBROAD UNDER STATE V. TALTY, AS
THE SANCTION CAN BE LIFTED BEFORE THE
EXPIRATION OF THE COMMUNITY CONTROL
SENTENCE.
In State v. Talty, this Cour-k held that a community control sanction that required a
defendant to "make all reasonable efforts to avoid conceiving another child" was inipermissibly
overbroad as "it restricts Talty's right to procreate without providing a mechanism by which the
prohibition can be lifted af the relevant conduct should change." Talty, 103 Ohio St. 3d 177,
2004-Ohio-4888 (emphasis added). The Court found that the lack of a lifting mechanism made
the community control sanction "significantly" distinguishable from the Wisconsin Supreme
Court case of State v. Oakley, 254 Wis.2d 447 (Wis. 2001), which held that a probation condition
requiring that Oakley "avoid having another child unless he showed that he could support the
child and current children" was valid despite its infringement upon the fundamental right to
procreate. Talty at 177.; Oakley. The Talty Court relied on State v. Jones, 49 Ohio St. 3d 51
(1990), which found that a probation condition "cannot be overly broad so as to unnecessarily
impose upon the probationer's liberty." Taliy at 177; quoting Jones at 51. The Talty Court
determined that the condition restricting Talty's right to procreation was, "by any objective
measure, overbroad." Talty, at 177.
In the present case, Taylor is provided not one but two mechanisms by which the
community control sanction requiring him to make reasonable efforts to avoid impregnating a
woman can be lifted. Taylor can prove that he is capable of supporting his existing children and
that he is making an effort to do so. Taylor can also have the sanction lifted by demonstrating
3
that a change of condition warrants releasing him from the restriction. This provides the court
with wide latitude to lift its original sanction.
The Talty Court made clear that a condition may not be considered valid "merely because
the trial court could modify the order if Talty became current on his child support payments."
Tally, at 182. However, the present restriction does not limit its lifting mechanism solely to
becoming current on child support payments. Rather, Taylor must only show that he is able to
provide support and is currently supporting his existing children. Further, the order at issue here
does not give the court discretion in lifting of the condition. The sanction states "until such a
time that Defendant can prove to the Court he is able to provide support for his children... or
until a change of conditions warrant the lifting of this condition." Tr. 6. The order, therefore,
requires the lifting of the community control sanction upon a showing of either triggering event.
Finally, Taylor can have the sanction lifted by showing the requisite change of conditions. The
instant sanction cures the problems this Court had with the sanction examined in Talty and is not
overbroad by "any objective measure." Talty at 182.
II. THE COMMUNITY CONTROL SANCTION AT ISSUE
IS WITHIN THE DISCRE'TION PROVIDED TO THE
SENTENCING COURT BY THE GENERAL
ASSEMBLY.
R.C. 2929.15(A)(1) governs the authority of the trial court to impose conditions of
community control. R.C.2929.15(A)(1) permits a sentencing court to "impose any [] conditions
of release under a community control sanction that the court considers appropriate." R.C.
2929.15(A)(1). "The General Assembly has thus granted broad discretion to trial courts in
imposing community-control sanctions." State v. Talty, 103 Ohio St. 3d 177, 179, 2004-Ohio4888. In State v. Jones, this Court limited a sentencing court's discretion to impose a community
control sanction. State v. Jones, 49 Ohio St. 3d 51 (Ohio 1990) In Jones, this Court set forth the
4
test for deternlining whether a community control sanction reasonably relates to the probationary
goals set forth under Ohio's probationary scheme. Id. "The community control statute, despite
changing the manner in which probation was administered, did not change its underlying goals
of rehabilitation, administering justice, and ensuring good behavior." T alty, at 181. Therefore,
the limits placed upon probation sanctions are equally applicable to Ohio's current community
control scheme. Id. Under Jones, for a community control sanction to be valid the court must
determine that the condition "(1) is reasonably related to rehabilitating the offender, (2) has some
relationship to the crime of which the offender was convicted, and (3) relates to conduct which is
criminal or reasonably related to future criminality and serves the statutory ends of probation."
Jones at 53.
Under the Jones test, it was not an abuse of discretion for the sentencing court to
temporarily restrict Taylor's reproductive rights while on community control. In State v. Talty,
this Court found a community control sanction limiting procreation was impermissibly
overbroad under any "objective measure" because it lacked a lifting mechanism. Talty at 177.
Because the condition lacked a lifting mechanism, the Talty Court never reviewed the condition
limiting procreation under the test set forth in Jones. The Ninth District Court of Appeals had
the opportunity to evaluate the condition under the Jones test and ultimately found the condition
to be valid. State v. Talty, 2003 Ohio 3161; 2003 Ohio App. LEXIS 2907 (9th Dist.). While this
Court ultimately overturned the Ninth District's decision because of the lack of a lifting
mechanism, the State asserts that the Ninth District's analysis under the Jones test is helpful in
evaluating Taylor's sanction. State v. Talty, 103 Ohio St. 3d 177, 2004-Ohio-4888.
In evaluating a community control sanction under Jones, the first prong provides that the
condition must be reasonably related to the rehabilitation of the offender. Jones at 51. Blacks
5
Law Dictionary (7 Ed.Rev.1999) 1290, defines "rehabilitation" as "the process of seeking to
improve a criminal's character and outlook so that he or she can function in society without
committing other crimes".
Here, Taylor was convicted of failing to support his children. The trial court iinposed the
condition that Taylor make all reasonable efforts to avoid impregnating a woman. The failure to
support any future additional children, as well as the potential to further hinder any attempts to
support Taylor's current children, is the exact purpose of the comniunity control sanction at
issue. The sanction is in place to change Taylor's conduct so as to avoid incurring more criminal
charges for failing to support his children. By imposing a condition of community control
requiring the offender to use all reasonable efforts to preclude more offspring, it would reduce
the risk that the offender would be unable to support his children in the future. See State v. Tah^.',
2003 Ohio 3161; 2003 Ohio App. LEXIS 2907 (9th Dist.). This condition is reasonably related to
Taylor's rehabilitation and therefore satisfies the first prong of the Jones test.
The second prong of the Jones test requires that the condition be reasonably related to the
offense with which the offender was convicted. State v. Jones, 49 Ohio St. 3d 51 (1990). The
relationship between the offense of non-support of dependents and the condition of community
control restricting procreation is both reasonable and direct. Taylor was charged with failing to
support his children. The sanction at issue requires Taylor to make reasonable efforts to not
impregnate another woman so that he does not father more children and, moreover, not stretch
the limited resources he has available to provide for his existing children. Taylor asserts in his
brief that the condition of community control fails this portion of the test as he was not charged
with the crime of having children, as that is not an illegal activity. This assertion is meritless.
6
The condition need only be reasonably related to the offense, not bar solely the conduct for
which the offender was charged. Id.
The community control sanction imposed by the trial court is designed to ensure that
Taylor will be able to support his current children in the future. Thus, the condition at issue in
this case is reasonably related to the offense with which Taylor was charged. The second prong
of Jones is satisfied and the trial court did not abuse its discretion by imposing the sentence. Id.
The final prong of the Jones test requires that the condition of community control relates
to conduct that is criminal or reasonably relates to future criminality and serves the statutory
ends of probation. Jones. It is axiomatic that a condition aimed to prevent an offender from
having children during the period of community control would make it more likely that he could
pay for his current children and thus comply with his community control sanction. If Taylor has
additional children, those children will need to be supported. Taylor would have a duty to
support any future children in the same way he is required to support the children he already has.
Taylor has already been convicted of failing to support those current children. The addition of
more children. would further hinder Taylor from supporting his current children. If it would not
hinder the support of Taylor's current children, then Taylor would be able to utilize the lifting
mechanisms that allow the condition to be removed by a showing of support for the current
children or a change of conditions warranting the removal of the condition. Therefore, the
condition limiting Taylor's right to procreation is reasonably related to future criminality and
serves the ends of probation thereby fulfilling the third prong of the Jones test.
When evaluated under the Jones test, 'I'aylor's carnmunity control sanction temporarily
limiting his right to procreate is not an abuse of the sentencing court's discretion.
7
III. ALTHOUGH THE RIGHT TO PROCREATE IS A
FUNDAMENTAL RIGHT, THE JONES TEST IS STILL
THE PROPER TEST FOR A COMMUNTIY CONTROL
SANCTION.
In Skinner v. Oklahorna, the United States Supreme Court dealt with the issue of the
sterilization of convicted felons and held the right to procreate to be "fundamental to the very
existence and survival of the race" and "one of the most basic civil rights of man." Skinner v.
Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S. Ct. 1110 (1942). The State of Ohio agrees
that the right to procreate is fundamental; however, it is the State's contention that a temporary
infringement upon a person's fundamental rights as a condition of community control is subject
to lesser scrutiny than a permanent or blanket infringement.
It is well-settled law that sentencing courts may impose conditions of probation that
interfere with a probationer's constitutional rights. Griffin v. kVisconsin, 483 U.S. 868 (1987). In
GNi ffitz, the Supreme Court upheld a probation condition that per-mitted the probationer's home to
be searched without probable cause, as required by the Fourth Amendment. The Supreme Court
recognized that supervision "is a`special need' of the State perinitting a degree of impingement
upon privacy that would not be constitutional if applied to the public at large." Grif^n at 875. A
sentencing court niay do this because probationers ". . . do not enjoy the absolute liberty to which
every citizen is entitled, but only conditional liberty properly dependent on observance of special
[probation] restrictions." Griffin at 874; quoting Morrissey v. Brewer, 408 U.S. 471 ( 1972).
Taylor argues that, because his freedom to procreate is temporarily impinged by his
community control sanctions, the community control sanctions must be evaluated under strict
scrutiny. However, no federal or Ohio court has ever held that strict scrutiny applies to a
probation condition that interferes with a fundamental right. Rather, courts have specifically
ruled that strict scrutiny does not apply to terms of probation or community control. see State v
Conkle, 9th Dist., 129 Ohio App. 3d 177 (1998); State v. Oakley, 245 Wis. 2d 447 (Wis. 2001).
Cert denied; Oakley v. Wisconsin, 537 U.S. 813 (2002). Federal courts have likewise upheld
probation conditions that impinge upon fundamental rights. In United States v. Bolinger, the
Ninth Circuit Court of Appeals held that a sentencing court ". . . has broad discretion to set
probation conditions, including the restricting of fundainental rights." United States v. Bolinger,
940 F.2d 478, 480 (9tl' Cir, 1991). The Sixth Circuit Court of Appeals has similarly stated that
"probation restrictions may affect fundamental riglits such as freedom of speech and freedom of
association if the conditions are primarily designed to meet the ends of rehabilitation and protect
the public." Uited States v. Peete, 919 F.2d 1168, 1181 (6t' Cir., 1990); see also United States
v. Hughes, 964 F.2d 536 (6t' Cir., 1992).
When courts have reviewed a term of probation or community control, courts have
consistently used rational basis scrutiny. Notably, in State v. Oakley, in which a probationer's
right to procreation was impinged upon until he could provide for his existing children, the
Wisconsin Supreme Court reviewed the probation condition using a rational basis analysis. State
v. Oakley, 245 Wis. 2d 447 (Wis. 2001). The Wisconsin Supreme Court stated ". ., in light of the
weight of authority indicating that strict scrutiny does not apply when a probation condition
infringes upon a fundamental right and the dearth of authority to the contrary, we are convinced
that the reasonability standard is the constitutionally valid approach to evaluate a probation
condition that infringes upon a fundamental right. Id. The Wisconsin Supreme Court goes on to
extensively note cases from across the country that have used a version of rational basis in
evaluating a probation condition that impinges upon a fundamental right. See Id. at footnote 27.
Most importantly, the court listed two cases where the fundamental right to procreation was
impinged upon where a court reviewed the condition under rational basis scrutiny. Id.
In State v. Kline, the Oregon Court of Appeals upheld a probation condition that required
that the probationer "may not without prior written approval by the Court following the
successful completion of a drug and anger management program and any other program directly
related to counseling related to ... your conduct towards children, father any child." State v.
Kline, 155 Or. App. 96 (Or. Crt. App. 1998) (emphasis added). In Kline, the probationer was
convicted of criminal mistreatment for intentionally fracturing the leg of his newborn daughter.
The probationer asserted that the court was required to perform a least restrictive means analysis
before imposing the condition. Id. The Court disagreed. Id.
In State v. Krebs, the Court of Appeals of Wisconsin upheld a 20-year probationary term
for a probationer who was convicted of sexually assaulting his daughter. State v. Krebs, 212 Wis.
2d 127 (Wis. Crt. App 1997). One of the probationers requirements was that he "shall not enter
into any dating, intimate, or sexual relationship with any person without first discussing this with
[his] agent and obtaining your agent's approval." Id. The Court held that "conditions of
probation may impinge upon constitutional rights as long as they are not overly broad and are
reasonably related to the person's rehabilitation. Id. at footnote 1. In Krebs, probationer was
convicted of the sexual assault of his daughter. Id_ at 129.
Given prior precedent from courts in both Ohio and around the country, it is clear that
strict scrutiny is not the proper standard for reviewing a condition of probation, even when the
condition impinges upon a fundamental right. Community control sanctions inherently restrict
the rights of those people upon whom they are imposed. In concert with the well-established
notion that probation provides an individual not with absolute liberty but with. conditional liberty,
"properly dependent on obsetvance of special parole restriction[s]," it is clear that Jone.r
delineates the appropriate standard for evaluating a community control sanction, which is
10
decidedly not the strict scrutiny approach suggested by Taylor. Morrissey v. Brewer, 408 U.S.
471 (1972).
CONCLUSION
For the foregoing reasons, the State of Ohio respectfully requests that this Honorable
Court decline jurisdiction over the instant matter.
Respectfully submitted,
DENNIS P. WILL
Lorain County Prosecuting Attorney
,
By-,` MARY R. SLANCZI^A #00, 66,0
NATASHA RUIZ GUERRItRtj^ 82275
Assistant Prosecuting Attorney
225 Court Street, 3rd Floor
Elyria, Ohio 44035
(440) 329-5389
11
PROOF OF SERVICE
This is to certify that a copy of^he foregoing Memorandum in Opposition to Jurisdiction
was sent via regular U.S. Mail this,^2a ay of34y 2014 to Douglas W. Merrill, attorney for
appellant, 424 Middle Ave. Elyria, Ohio 44035
rt
.
,
^.^•
MARY R. SLANCZI
NATASHA RUIZ GUERRIERI #0q82275
Assistant Prosecuting Attorney
12