Beruflich Dokumente
Kultur Dokumente
Oberlin, Ohio
State of Ohio
vs.
Sentencing Entry
KENNETH P. CARNEY
Defendant
Summary
The following information is being provided in part to promote the
law with regard to public trials. Each and every discussion in this case
involving the judge has been in open court as all cases are in the Oberlin
Municipal Court for purposes of transparency. No conversation,
pretrial or other discussion is held in the judges chambers to preserve
transparency. Open court hearings comply with the 1st Amendment
requirement of public trials. See State ex rel. The Repository, Div. of
Thompson Newspapers, Inc. v. Unger (1986)28 Ohio St.3d 418 where the
court held:
Thus, although the orders that were issued by the judges in the underlying
cases did not arise at trial but instead occurred at pretrial hearings, we see no
reason under the Ohio Constitution to differentiate between the public's
right to attend pretrial proceedings and its right to attend trials.
Therefore we hold that the right to a public trial pursuant to the United
States and Ohio Constitutions extends to pretrial proceedings.
The following information is provided to comply with the spirit of the
law with regard to public trials for anyone interested in the factual
context of this case and the sentence in this case:
1.
2.
3.
4.
5.
Date
05-16-14
Event
Information
05-19-14
05-19-14
05-19-14
06-26-14
07-24-14
Pretrial had.
07-28-14
08-07-14
08-19-14
05-19-14
05-19-14
08-27-14
09-03-14
09-03-14
09-04-14
09-18-14
10-09-14
Pretrial had
10-14-14
10-14-14
10-16-14
10-16-14
10-16-14
11-03-14
Sentencing
the victim would testify that she did not believe that Mr. Carney
knowingly caused or attempted to cause her physical harm.
2. The prosecutor at one point asked the court to dismiss the 1st
degree misdemeanor but withdrew the motion prior to the court
being given an opportunity to rule on the motion.
3. Had the motion not been withdrawn the court would not have
permitted the dismissal for the following reasons:
(a) The fact that the alleged victim would not testify that she believed that
the Defendant knowingly caused or attempted to cause her physical
harm is irrelevant and would call for a legal conclusion. Knowingly is
an element of the crime and has a specific definition in the law:
A person acts knowingly, regardless of his purpose, when he is
aware that his conduct will probably cause a certain result or
will probably be of a certain nature. A person has knowledge of
circumstances when he is aware that such circumstances
probably exist. R.C. 2901.22
Testimony that a person did or did not act knowingly would not be
admissible as it calls for a legal conclusion. See State v Elking (Ohio
App.3d Dist.) 1981 WL 6775
(b) It is alleged that Mr. Carney was intoxicated during the event. The law
provides that voluntary intoxication may not be taken into
consideration in determining the existence of whether a person acted
knowingly [a mental state that is an element of the crime]. R.C.
2901.21(C); See State v. Koballa, 2014-Ohio-3592 decided August 21,
2014 at 21-25 for a good discussion regarding this issue.
(c) The Lorain County Sheriff charged Mr. Carney with a 1st degree
misdemeanor based upon information they received on the date of the
event, to wit: May 16, 2014. The case was pending for a period of 3
months when a request to amend the offense to a different [lower]
charge was filed. The facts upon which the charge was filed appeared
to be the same facts available to the sheriff on the date of the event
with the exception of the representation that the alleged victim may
testify that she did not believe that Mr. Carney knowingly caused or
attempted to cause her harm.
The court is cognizant of the prosecutors discretion to try cases,
determine what charges should be filed and prosecuted and/or enter into plea
agreements. The court fully understands that the prosecutor has to weigh and
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balance many factors when making these important decisions. This court
does not routinely reject plea agreements or motions to dismiss charges nor
does the court rubber stamp all plea agreements and motions to dismiss or to
reduce charges. Consideration must be given to the facts and circumstances
of each case.
In this case the prosecutor determined that if the case was presented to
a jury that there is a [good] possibility that there would have been an
acquittal of the 1st degree misdemeanor charge especially with the evidence
that would be presented to the jury that the prosecutor wanted the case
to be dismissed. The judge must be sensitive not only to the prosecutors
discretion but to the time, resources of the court and needs of the other
participants in a case including the victim, and the jury. It was represented to
the court that the victim in this case was in agreement with the resolution for
Mr. Carney to be found guilty of Criminal Mischief and not Domestic
Violence and preferred the resolution to a trial. And while the [ostensible]
desires of the victim in a case are not the principal factor in deciding
whether to accept a plea to a different offense than charged they certainly are
a consideration to be weighed and balanced with all of the other facts and
circumstances.
The court must carefully consider the prosecutors discretion to enter
into a plea bargain or dismiss a case based upon all the facts and
circumstances presented. The decision in this case to permit the amendment
to the charge was not taken lightly. There are circumstances when a judge
should not accept a plea bargain and require the prosecutor to try the case.
This case was not one of those cases. This is not a case where a plea bargain
was made just for the sake of making a plea bargain or because of whom Mr.
Carney is or the position he holds. If the plea bargain were proposed for
example for that reason or for expediency purposes or simply to avoid a trial
these would be insufficient reasons. In fact the 9th District Court of Appeals
has supported this courts decision to reject plea bargains in the appropriate
circumstances.1 There were sound reasons for the plea bargain in this case.
The decision to enter a plea to the amended charge was made by Mr. Carney
after much consultation with his attorney and after being admonished by the
court on the record of the consequences of the plea.
Mr. Carney had an opportunity to have a trial and instead elected to
enter a plea to a 3rd degree misdemeanor [maximum 60 days jail and $500.00
fine] a higher degree of crime than a crime earlier proposed by the
prosecutor, a 4th degree misdemeanor [maximum 30 days jail and maximum
$250.00 fine ] knowing that the prosecutor had twice asked the court to
change the charge to the lesser charge of a 4th degree misdemeanor
[maximum 30 days jail and $250.00 fine] and knowing that the jury would
be presented with a written statement by the prosecutor that the prosecutor
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wanted to dismiss the 1st degree misdemeanor charge. The reasons that Mr.
Carney preferred to be found guilty to a higher degree of charge than
originally proposed by the prosecutor is a decision that he made with the
advice of counsel and fully knowing the potential consequences.
Record of Defendant
The Oberlin Municipal Court Community Control Department
provided the following information regarding Mr. Carneys record:
Arrest Date
11/24/84
Charge
OVI
3/26/00
Attempted Assault
6/4/01
OVI
10/9/03
1/28/06
OVI
5/16/14
Criminal Mischief
Disposition
Elyria Municipal Court
NC/FG
Oberlin Municipal Court
Amended from Domestic Violence
NC/FG
Fine $250
Jail 30/Susp 30
2 years Good Behavior-was not
scheduled for Probation Violation for
6/4/01 OVI change
Oberlin Municipal Court
Resisting Arrest dismissed
NC/FG
Fine $800
Jail 180/Susp 177
72 hour Driver Intervention Program
Probation violated by 10/9/03 Disorderly
Conduct charge. Probation violation
proceedings dismissed on 7/7/04 after
report from CCD and assessment from
Dr. Rick Capasso were reviewed.
Oberlin Municipal Court
Amended from Disorderly Conduct
Intoxication
NC/FG
Fine $100
Cleveland Municipal Court
NC/FG
PSI completed
Fine $1,500/Susp $500
Jail 180/Susp 166
Served 7 days with work and treatment
release, then filed motion to mitigate
sentence which was granted. Defendant
was released.
Oberlin Municipal Court
Amended from Domestic Violence
Instant Case
Sentencing Considerations
The purposes for misdemeanor sentencing are to protect the public
from future crime by the offender and others and to punish the offender. See
R.C. 2929.21 To achieve the two purposes of sentencing the court is required
to consider the impact of the offense on the victim, the need for changing the
offenders behavior, the need for rehabilitating the offender, and making
restitution.
The law considers domestic violence cases in a special category.
Repeat offenses are treated most seriously. The Ohio Supreme Court has
recognized that domestic violence has been placed in a special category. In
State v Williams 1997-Ohio-79 the Supreme Court noted that the General
Assembly recognized the special nature of domestic violence when it
drafted the domestic violence statutes and believed that [crimes] involving
a family or household member deserve further protection than [crimes]
involving a stranger.
An example is R.C. 2935.03(B)(3)(e)(i) that provides that a victim in
a domestic violence or temporary protection violation must not be required
by a police officer to consent to the filing of the charge or be made to sign a
complaint against the person who has committed the offense:
A peace officershall not require, as a prerequisite to
arresting or charging a person who has committed the offense
of domestic violence or the offense of violating a protection
order, that the victim of the offense specifically consent to the
filing of chargesor sign a complaint against the person who
has committed the offense
Another example is that there are special rules involving arrests of
persons accused of domestic violence including requiring law enforcement
officers to look at certain factors to determine who the primary aggressor is
prior to the arrest. The factors include:
(i) Any history of domestic violence or of any other violent acts
by either person involved in the alleged offense that the officer
reasonably can ascertain;
(ii) If violence is alleged, whether the alleged violence was
caused by a person acting in self-defense;
(iii) Each person's fear of physical harm, if any, resulting from
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23.Sexual Battery;
24.Gross Sexual Imposition;
25.Aggravated Arson;
26.Arson;
27.Terrorism;
28.Aggravated robbery;
29.Robbery;
30.Aggravated burglary;
31.Inciting to Violence;
32.Aggravated riot;
33.Riot;
34.Inducing panic;
35.Intimidation;
36.Intimidation of victim or witness in criminal case;
37.Escape;
38.Improperly discharging firearm into habitation;
39.Child Endangering.
Every person has the right at the end of the day to have a safe place to
lay their head down on their pillow. The definition of home in the
dictionary includes a place where a person can find refuge and safety or
live in security. There are bullies in the workplace, in school, in traffic and
other places in society but home is the place for a person to retreat in order
to find comfort and solace. When a person loses that place of refuge and
safety the impact on that person is immeasurable. The State legislature has
recognized these special relationships of family or household members by
providing significant and diverse consequences for persons committing
offenses against family or household members.
This is a case that may have been filed as a felony offense. Had Mr.
Carney been convicted of the felony offense the consequences may have
been ruinous for him. Conviction of a felony disqualifies a person from
holding a public position of trust or honor and could have jeopardized his
position as County Engineer. The Lorain County Sheriff did not charge Mr.
Carney with a felony. And it is not within the province of the judicial branch
to recommend or insist that a certain charge or charges be filed. Judges do
not initiate charges. That is the exclusive decision and discretion of the
executive branch of government, specifically in this case the Lorain County
Sheriffs department.
Based upon the information presented to the court there is no
doubt that the victim in this case was a family or household member at
the time of this event as that term is used in the law. Since the state
legislature considers Criminal Mischief involving a family or household
member in the same category as domestic violence convictions for
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A judge must in any case, including this case, say and do what is
necessary to make sure the person is rehabilitated and does not return repeat
the same or similar offense. The decision is one of the most important
functions of the judge. The crux of the decision is what consequence would
be so meaningful to the person that the person will make better decisions.
Usually a combination of jail or a suspended jail sentence and a period of
probation is the means to that end, especially for repeat offenders.
In the case of Mr. Carney, he has avoided a significant jail penalty in
most of his previous encounters with the law and it appears to the court that
simply placing Mr. Carney on probation would not serve either the interests
of Mr. Carney, the victim in this case or the community. In this case a jail
sentence is appropriate. If the court would impose the entire 60 days the
court loses the opportunity to require Mr. Carney to follow rules of
probation. For that reason a combination of jail and probation is appropriate.
The State chose not to pursue the 1st degree misdemeanor charge and
therefore the court only has 60 days jail as a tool to accomplish the goals of
sentencing. As a result a period of jail followed by a period of probation is
appropriate.
It is with this background that the court imposes the following
sentence:
The Sentence
Defendant appeared in court with counsel on October 16, 2014.
Defendant was originally charged with Domestic Violence a 1st degree
misdemeanor. Upon motion of the , was advised of the difference
between the pleas of not guilty, no contest and guilty, acknowledged
that she/he reviewed her/his rights in writing with her/his attorney and
that she/he understood all of her/his rights including the right to trial
by jury, was advised of the increased penalties and/or degree of crime
for repeat offenses and Defendant entered a plea of no contest and
Defendant's plea was accepted and Defendant was found guilty of:
Charge
Degree
Code Section
CRIMINAL MISCHIEF
M-3
RC 2907.07
Sentence
60 days
Jail shall commence on November 28, 2014 at 7:00 A.M. Credit is granted
for 4 days for time served.
FINE
Charge
CRIMINAL MISCHIEF
Fine
$500.00
Fine Suspended
$-0-
COSTS OF INCARCERATION
Pursuant to R.C. 2929.28(A)(3)(a) Defendant shall reimburse the Lorain
County Sheriff for all costs of confinement at the Lorain County
Correctional Facility for: 1. A per diem fee for room and board as
determined by the Lorain County Sheriff not to exceed the actual cost of
room and board; and the costs of any actual medical and dental treatment
incurred by the Lorain County Sheriff during the term of incarceration.
COURT COSTS
Court costs are assessed to Defendant.
SUSPENSION OF JAIL
30 DAYS of the jail sentence imposed are suspended on the following
conditions:
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_________________________
Judge
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