Dayton Bar Briefs Magazine Jan/Feb 2024: Vol. 73 No. 3 by Dayton Bar Association

JAN/FEB 2024

BarBriefs

The Official Magazine of the DBA

TRUSTEE'S MESSAGE

ESTATE PLANNING TRUST & PROBATE

SOCIAL JUSTICE INITIATIVE

A Legal Footing in the Wilderness

Medicaid Mysteries

HOPE is on the Menu at Njoy! Njoy!

pg 4

pg 12

pg 26

BarBriefs DBA Board of Trustees 2023-2024 Anne P. Keeton President

Hon. Michael J. Newman First Vice President

James H. Greer Second Vice President

Erin E. Rhinehart Secretary

Jamar T. King Treasurer

Jennifer L. Brogan Member–at–Large

Erin B. Moore Member–at–Large

Brian L. Wright Member–at–Large

Hon. Caroline H. Gentry Immediate Past President

John M. Ruffolo, ex officio Bar Counsel

Jennifer Otchy, ex officio Chief Executive Officer

B A R B R I E F S i s p u b l i s h e d by t h e Dayton Bar Association, 109 N. Main St., Ste 600, Dayton, OH 45402–1129, as its official publication for all members. Comments about this publication and editorial material can be directed to the DBA office. The DAYTON BAR BRIEFS is published September/October through May/June. Paid subscription: $30 / year Library of Congress ISSN #0415–0945 Jennifer Otchy Chief Executive Officer Shayla M. Eggleton Director, Communications & Membership Phone: 937.222.7902 www.daybar.org The contents expressed in the publication of DAYTON BAR BRIEFS do not reflect the official position of the DBA.

JAN/FEB 2024

NO.

Contents Columns:

A Legal Footing in the Wilderness

A View From the Bench

By Lauren Epperley, Member-at-Large | Subashi Wildermuth & Justice

TRUSTEE'S MESSAGE

By The Honorable Steven K. Dankof | Montgomery County Common Pleas Court

JUDGE'S DESK

Features:

APPELLATE

Attention Appointed Counsel: Second District joins growing number of jurisdictions in rejection of Anders briefs By John Lintz | Second District Court of Appeals

Lauren K. Epperley Member–at–Large

VOL.

Wilberding Receives Ritter Award by the Ohio State Bar Foundation

Ronald J. Maurer Esq. The Attkisson Law Firm, LLC

Appellate Review and Consecutive Sentencing: Another Change

CRIMINAL LAW

By Samuel Saul Richardson | Shelby County Public Defender’s Office & Sinclair Community College

12 EPT&P

Medicaid Mysteries – Must A Client Deplete Their Retirement Account for Long Term Care?

Navigating the Surge in Property Taxes: Understanding and Appealing Real Estate Taxes in Montgomery County, Ohio

By Ann McDonough | Coolidge Wall Co., LPA

BARRISTER

REAL PROPERTY

By Nathaniel M. Fouch | Supreme Court of Ohio

By Kim C. Estess | O'Diam & Estess Law Group, Inc.

By Jordan P. Staley | Coolidge Wall Co., LPA

Christopher Wolcott Esq. Coolidge Wall Co., LPA

Hope is on the Menu at Njoy! Njoy!

RISING STAR

SOCIAL JUSTICE

By Nathaniel M. Fouch | Supreme Court of Ohio

By Magistrate Jacqueline V. Gaines, Co-Chair Non-Profit Clearinghouse Subcommittee Montgomery County Domestic Relations Court

Also In This Issue: 11 13 20 28 30

2024 DBA Events Save these dates! January - May 2024 Section/Interest Group Meeting Dates January - August 2024 CLE Calendar Law Related Organizations Classifieds & Advertiser Index

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For More Details on Becoming a 2023-2024 DBA Annual Partner Contact: JENNIFER OTCHY, DBA CEO | jotchy@daybar.org | 937. 222.1364 jan/feb 2024 | DAYTON Bar Briefs

Trustee's Message

A Legal Footing in the Wilderness

aking my twins to Carillon Park is always a highlight of Christmas (and spring, summer, and fall for that matter since my boys love to go there any day or season). The park has been open since 1950, and it is one of the attractions that makes Dayton great. In between the train and carousel rides, I enjoy going through the buildings and exhibits with my boys. It is an opportunity to teach them about history and explain why they should be proud to be from Dayton. I recently learned about “A Legal Footing in the Wilderness” – a reinterpretation and expansion of the exhibit space for Newcom Tavern. Why is this exciting and worthy of an article? Because the reinterpretation is something for the legal community to know about, be proud of, and share with others. Before discussing the expansion, a brief overview of the history of the building might be best. The original structure for Newcom Tavern was built in 1796 at the southwest corner of Main Street and Monument Street. The house was two rooms – a downstairs and an upstairs that was accessible by ladder. A tavern was added and the building doubled in size two years later. The building served as Dayton's first school, first church, courthouse, council chamber, and store. In 1894, the building was donated to the city of Dayton and moved to Van Cleve Park (now RiverScape MetroPark). As part of its centennial celebration in 1896, the building was restored and opened as a public museum that displayed relics donated by Daytonians. The building was flooded in 1913 but survived. In 1964, Newcom Tavern was moved to Carillon Park. (To read more about the history of Newcom Tavern, there is a free ebook at the following website: gutenberg.org/ebooks/64864 – the photographs alone make it worthy of review.) With the recent expansion, guests will now be welcomed by an animatronic figure of Judge Joseph Halsey Crane. (For those of you wondering, Judge Crane practiced in Dayton from 1804 to 1851. Judge Crane was elected President Judge of the Ohio First Circuit Court of Common Pleas in 1817. He served two terms until he resigned in 1829 to take his seat in Congress. He is interred in Woodland Cemetary.) The animatronic of Judge Crane is voiced by Attorney David Greer. Judge Crane will be seated at a primitive bench busy at work. Triggered by motion and direct questioning, Crane will provide quick stories of early legal cases, related local occasions, and provide explanations about the county’s growth. Additionally, a still figure with motion triggered audio will be located at the bottom of Sheriff Newcom’s drywell. This figure will delight guests with tales about what landed him in this unusual jail cell. Visitors will now learn stories about lawyers, judges, and legislatures that shaped the region and the northwest including: • Revolutionary War Bounty Lands • Northwest Territory and Northwest Ordinance • The Symmes Purchase • The Battle of Fallen Timbers and General “Mad Anthony” Wayne • The Greenville Treaty • Dayton’s Founding and layout • Cooper’s fight for property ownership • First County Commission Session - June 11, 1804 • First County Common Pleas Court – July 27, 1803 – Honorable Francis Dunlevy • Sutherland vs Scott assault case – November 22, 1803 • Richardson vs Kirkendall – October 4, 1799 • Court Houses – Local evolution • The National Road – Dayton’s Cutoff These changes at Newcom Tavern are something to be proud of (in my humble opinion). I certainly look forward to visiting Newcom Tavern soon and sharing with my boys why I am proud to be from Dayton and a lawyer. I hope the DBA members will do the same!

See more photos from this event on Facebook!

Thank you to photographer, Julie Noeth, Walling Photography, LLC for capturing photos from this event! wallingphotography.net 4

DAYTON Bar Briefs | jan/feb 2024

By Lauren K. Epperley Esq. Member-at-Large Subashi Wildermuth & Justice lepperley@swohiolaw.com

Lauren with her boys in front of

Newcom Tavern exhibit.

Brady Kress & Dave Greer chat about the opening of the exhibit.

DBA Recent Events Join us for what's next at daybar.org View more photos on Facebook. December 14: Paralegal Section Secret Snowman

Chair, Tricia Griffieth and the DBA Paralegal Section, host a fun festive event for their group.

DBA C.E.O., Jennifer Otchy & Jamie Greer, DBA 2 Vice President nd

October 3:12: The DBA & UDSL partner for the First Monday in December DBA Holiday Luncheon ber Opening of the U.S. Supreme Term 25 Year Honorees in attendance: KarenCourt Lindsay, Melissa Duke Jones, Andrew French, Judge Mary Montgomery, and Tracy Stull. Animatronic of Judge Joseph Halsey Crane, voiced by Dave Greer!

December 7: Champagne Toast New Admittee Reception DBA President Anne Keeton & husb

and, Mark

Crowd gathers in to hear Dave & Brady.

Group of newly licensed attorneys in attendance at the event.

jan/feb 2024 | DAYTON Bar Briefs

Appellate

Attention Appointed Counsel: Second District joins growing number of jurisdictions in rejection of Anders briefs

ince the 1960’s, court-appointed appellate attorneys practicing in the Second District who believed there were no non-frivolous grounds for appeal in their case were permitted to file an Anders Brief in accordance with Anders v. California, 386 U.S. 740, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In that case, Anders’ attorney faced a dilemma: he believed his client’s appeal lacked arguable merit, but he also couldn’t abandon the appeal based on the lack of representation. His solution turned out to be groundbreaking: he submitted a brief detailing potential arguable issues for the court to consider, while also asserting that he found no non-frivolous grounds for appeal. As a result, the Anders Brief became the standard procedure across the country when court-appointed counsel believed their appeal was frivolous. These Anders briefs outlined potential issues or arguments that might exist in the case while also acknowledging the attorney’s view that there were no valid grounds for appeal. The appellate court then independently reviewed the entire record to determine whether there were, in fact, any potentially meritorious arguments to be made. If so, new counsel was appointed and the process would start again. In the decades since Anders, however, courts have begun to question the efficacy of the process, leading some states to reject the procedure. See State v. McKenney, 98 Idaho 551, 568 P.2d 1213 (1977); Commonwealth v. Moffett, 383 Mass. 201, 418 N.E.2d 585 (1981); State v. Cigic, 138 N.H. 313, 639 A.2d 251 (1994); Mosley v. State, 908 N.E.2d 599 (Ind. 2009). In recent years, three of Ohio’s appellate districts (including the 4th, 6th, and 7th), drawing on the caselaw of these states, have also rejected the Anders procedure. Then in the fall of 2023, the Second District joined suit with the release of State v. Holbert, 2d Dist. Montgomery No. 29704, 2023-Ohio-3272.

DAYTON Bar Briefs | jan/feb 2024

In the Holbert opinion, the Court expressed several concerns about the Anders process. First, it opined that when counsel files to withdraw because he or she believes the appeal is frivolous, it could actually prejudice the client because the court of appeals may be more willing to believe it actually is frivolous, inviting “perfunctory review.” Next, the court stated that Anders created a tension between the attorney’s duties to the client and the court. It also, according to Holbert, essentially removes the adversarial nature of the judicial system – the court pours through the record looking for meritorious issues on the client’s behalf. In the process, “some indigent criminal defendants get more justice, i.e., an additional layer of review, than those whose counsel do not file Anders briefs.” Holbert at ¶ 23. The Second District was also concerned about the way in which Anders may allow some appointed counsel to abdicate their role as advocate, denying indigent clients the right to appointed counsel, because “in the context of a criminal appeal, a competent attorney should be able to find non-frivolous, i.e., arguable, errors of a trial court in nearly every case – especially after reviewing the entirety of the record below.” Holbert at ¶ 24. So, after the rejection of the Anders process, what should court-appointed appellate attorneys do? The new procedure was explained in Holbert. Appointed counsel must conduct a thorough review of the entire trial court record. If, after the review of the trial court record, counsel believes there are no non-frivolous issues, counsel should confer with the defendant and try to persuade him or her to abandon the appeal. “If the defendant chooses to proceed with the appeal, counsel must file a merit brief and assert, as persuasively as possible, what counsel deems to be appellant's ‘best’ argument(s). This does not mean counsel must argue every

By John Lintz, Esq. Staff Attorney for Judge Epley Second District Court of Appeals lintzj@mcohio.org issue the defendant believes to be meritorious. Counsel should exercise strategic judgment in the presentation of the issues in the brief.” Holbert at ¶ 28. The Court will give counsel’s brief the same level of review given to all other appellate briefs and will review the assignments of error identified. It will not, however, conduct an exhaustive independent review for issues not raised.

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Wilberding Receives Ritter Award by the Ohio State Bar Foundation By Ann McDonough Coolidge Wall Co., LPA

n October 13, 2023, at the All Rise Annual Awards Celebration held at the Columbus Museum of Art, the Ohio State Bar Foundation (OSBF) presented Merle Wilberding, an attorney at Coolidge Wall for more than 50 years, with the Ritter Award. This is the highest award given by the OSBF and is awarded annually from the more than 40,000 lawyers in the State of Ohio. This award recognizes a lifetime of service and the accomplishments of the honoree in attaining and promoting the highest level of professionalism, integrity, and ethics in the practice of law. The announcement of the award was made by Judge David Hejmanowski, OSBF President who said: This year’s awards celebration theme, ‘The Art of Giving: Creating a More Just Ohio,’ reflects the beauty found in the act of giving back through selfless service. It serves as a poignant reminder that through our collective efforts, we can work towards crafting a fairer and more equitable Ohio. We are proud to honor these exceptional honorees dedicated to bettering the world around them. Their extraordinary efforts have left a meaningful impact on the lives of so many.” Hejmanowski went on to say that Wilberding is a distinguished attorney whose lifetime of service, legal expertise, and commitment to the Dayton region has left an indelible mark on both the legal profession and his community. For his work with the family of Marine LCpl Maria Lauterbach, in 2012 Wilberding was given the Ramey Award, the second highest award by the OSBF, making Wilberding the only lawyer in the history of the OSBF who has received both of the top two awards. In the history of the Ritter Award, only four lawyers from Dayton have been given this award. The other three awardees were all judges: Judge Robert L. McBride in 1984; Judge John M. “Jack” Meagher in 1994, and Judge Michael J. Newman in 2020. Wilberding has a B.A. from St. Mary’s University in Minnesota, a J.D. Lance Cpl. Maria Lauterbach, who was brutally murdered and found from the University of Notre Dame School of Law., an MBA from the buried in a firepit in the back yard of Cpl. Cesar Laurean. Wilberding’s University of Dayton, an LL.M in Taxation from George Washington tireless efforts, supported by numerous members of Congress, resulted in University, and a Master of Library and Information Science from the changes that have reshaped U.S. military justice, ensuring a safer environUniversity of Wisconsin – Milwaukee. He has also done some additional ment for those who serve. In 2019, Wilberding was inducted into the library study at Oxford University in England. Ohio Veterans Hall of Fame. During the Vietnam War, he served as a Captain in the U.S. Army Wilberding is a Distinguished Life Fellow of the American Bar Judge Advocate General’s Corps, representing the Army in briefing 800 Foundation, the Ohio State Bar Foundation, and the Dayton Bar appeals and arguing 100 cases, including (1) the “Presidio Mutiny,” a case Association. For nine years he served as a board member of the Law & stemming from a peace protest demonstration within the stockade at the Leadership Institute, an organization that advocates for diversity and Presidio, a small army base literally underneath the Golden Gate Bridge inclusion in the legal profession. He has authored seven books, including in San Francisco; and (2) the "My Lai Massacre" case with Lt. William two children’s books that provided civics education to disadvantaged L. Calley, Jr., a case that involved the killing of more than 500 Vietnamstudents; he has also authored “Till the Cows Come Home,” a memoir of ese civilians. Both cases garnered immense public attention; and both his growing up on the family farm in Iowa. In 2021-2022, Wilberding became flashpoints in the national debate about of the moral and ethical served as President of the Dayton Bar Association. challenges posed by the Vietnam War. After serving in the U.S. Army, Wilberding joined the Coolidge Wall law firm in Dayton, Ohio, embarking on a remarkable legal career that has spanned over five decades. He served as chairman of the firm's Tax Department for ten years. Wilberding has briefed and argued several tax cases in the Ohio Supreme Court. He has also testified before the United States House of Representatives Subcommittee on National Security & Foreign Affairs, as well as the State of Ohio Ways & Means Committee. In addition to his legal achievements, Wilberding is a community leader and a passionate supporter of the arts in Dayton. He has served on the board of numerous arts and community nonprofit organizations, including designing and creating the merger of the Dayton Ballet, the Dayton Opera, and the Dayton Philharmonic into the Dayton Performing Arts Alliance. He was a founding trustee of the Dayton Literary Peace Prize Foundation. Finally, for many years Wilberding served as the attorney for the Ohio Players, the iconic funk and R&B band. In 2008, Wilberding worked with the family of

jan/feb 2024 | DAYTON Bar Briefs

Barrister

Ronald J. Maurer The Attkisson Law Firm, LLC

any attorneys wonder whether it’s possible to balance a successful and satisfying career, a fulfilling family life, meaningful community leadership roles, and rewarding hobbies. One glimpse at the life of our Barrister of the Month, Ronald J. Maurer, puts that question to rest. Over the course of almost three decades in law (and about the same in marriage), Ron, a family man, trial lawyer, award-winning amateur thespian, former scout leader, genealogist, and community and bar leader has crafted a good life. Though modest about the scope of his achievements, Ron’s dedication to duty and ethos of service have made a considerable impact on the Dayton community. Ron was born in Findlay, Ohio, and from a young age wanted to perform in musical theatre. He toured Europe with a children’s choir, and after graduating high school, enrolled in then-Otterbein College’s prestigious musical theatre program. While he had the skills, he decided he’d rather not “wait tables waiting for his big break.” Reasoning that he was articulate and like to argue, Ron decided to become an attorney, and ended up at the University of Dayton School of Law. He flourished in law school, serving as Senior Production Editor of the University of Dayton Law Review, winning the regional mock trial championship, and interning for Ohio Supreme Court Justice Alice Robie Resnick in 1991. After graduating he was admitted to the bars of both Ohio and Kentucky, and put down roots in Dayton. Ron’s almost 30 years in law are split into rough thirds. He began his career as an associate at Dyer, Garofalo, Mann & Schultz, where he spent about eight years practicing personal injury law. After that, Ron decided to strike it out on his own, and began a solo practice, Maurer Law Offices. There, he continued his personal injury practice, while adding criminal and family law and general civil litigation to his services. After about 15 years, he wanted a change of pace, and reached out to old friend Kevin Attkisson, who was fortuitously looking to expand his practice. Ron is now a partner at The Attkisson Law Firm, where he has returned to his roots as a personal injury lawyer, helping people get their lives back and get the compensation they deserve. One of many career highlights came early on, when Ron argued in front of a packed house at the Ohio Supreme Court. The case, Ross v. Farmers Ins. Group of Cos., 82 Ohio St.3d 281, 695 N.E.2d 732 (1998), was one of a line of uninsured/underinsured motorist insurance cases around that time, and the result was a resounding victory for Ron’s clients, the court holding “the statutory law in effect at the time of entering into a contract for automobile liability insurance controls the rights and duties of the contracting parties,” regardless of subsequent legislation. Ron has won plenty of other cases at the trial court level and in the Second District as well. Ron has been an active member of the DBA for about as long as he has been an attorney. This has included multiple long stints as a member of the DBA’s Certified Grievance Committee, for which he recently concluded a term as chairman. This role enabled him to talk and work with other attorneys he respects on their shared interest in lawyers practicing the right way. In a self-regulating profession, the importance of this committee and the work it does cannot be understated. The service Ron has rendered to our local bar and to the profession generally with his grievance committee work will be one of the most important aspects of his legal legacy. Even with his flourishing legal practice, Ron has maintained and fostered his love of the performing arts. Not only does he sit on the board of the Dayton Playhouse, but he still acts as well. The variety of his roles is a testament to his versatility as a performer, but his favorite role was his turn in the Dayton Playhouse’s 2016-2017 rendition of the musical “Ragtime.” 8

DAYTON Bar Briefs | jan/feb 2024

His passionate performance as Tateh, an impoverished Latvian immigrant striving for acceptance in America, garnered high praise from local critic Russell Florence Jr. and earned him a ‘Day Tony’ award (granted for exceptional musical theatre performances in the Dayton area). The sensitivity of Ron’s approach to his role in Ragtime stems from one of his other passions: genealogy. Ron has traced every branch of his family back to when his immigrant ancestors first arrived in the United States. This has included some fascinating discoveries and reconnecting with lost branches. Although his last name is German, Ron identifies most with his Italian heritage. That identification and his love for travel and international outlook—both fostered from a young age—led to one of his most memorable adventures: climbing Mt. Vesuvius, having wine on the summit, and exploring the ruins of Pompeii with his wife. This profile would not be complete without noting that Ron is an Eagle Scout. That’s right: is, not was. His passion for scouting is deep and its ethos, instilled in him from a young age, has informed much of his subsequent community involvement. This has included time spent as a local cub scout pack leader, instilling similar values in kids, and teaching them practical skills and an appreciation of the outdoors. Speaking of which, Ron is an avid camper, and when not working, acting, serving, or following his beloved Cincinnati Reds, is most likely to be found in the woods with his wife and son. Ron’s commitment to service and his selfless giving of himself to causes he is passionate about, from professionalism among lawyers to local theatre to scouting, demonstrate his civic-mindedness and make him a witness to each of us to do our part to make our community better. In fulfilling these roles, Ron has had an outsized impact on the Dayton community, and we are all the better for it. His selection as Barrister of the Month is well-deserved.

By Nathaniel M. Fouch Esq. Chair, Editorial Board Supreme Court of Ohio nathaniel.fouch@sc.ohio.gov

jan/feb 2024 | DAYTON Bar Briefs

Criminal Law

Appellate Review and Consecutive Sentencing: Another Change

“F

or more than 100 years, the common law- not state statute- controlled the imposition of consecutive sentences in Ohio.”1 Through changes made by either the Ohio General Assembly or interpretation of the statues passed by them, it is now presumed by state statute that prison terms are to be imposed concurrently2 and when a trial court wishes to impose consecutive sentences, that certain findings must be made.3 Gwynne has been back and forth, from the Fifth District Court of Appeals to the Ohio Supreme Court and back again. A majority opinion on this case was issued by the Supreme Court on December 23, 2022, which held “the findings required by R.C. 2929.14(C) (4) to impose consecutive prison sentences on an offender ‘must be made in consideration of the aggregate term to be imposed,’” and that “appellate review of consecutive sentences did not require appellate courts to defer to the sentencing court’s findings” but that the appellate courts could review the record de novo to “decide whether the record clearly and convincingly does not support the consecutivesentence findings.”4 Due to those findings being “contrary to the plain language of R.C. 2953.08(G)(2)”5 the Court granted a motion for reconsideration in early 2023. Central to the court’s reconsideration is the language of R.C. 2953.08(G)(2), in which it was previously held that an appellate court is to review the record de novo. Now, however, appellate courts “may increase, reduce, or otherwise modify consecutive sentences only if the record does not ‘clearly and convincingly’ support the trial court’s * * * consecutive-sentence findings,” which is a correct expression of the General Assembly’s intent that a deferential standard to the trial court’s findings be followed.6 This now directs an appellate court that it must have a firm belief that the record does not support the trial court’s findings, rather than a firm belief that the record supports the findings, before it may modify consecutive sentences. In reviewing the language of R.C. 2953.08(G)(2), the first dissent argues that the Court must first answer the question of what is meant in R.C. 2929.14(C)(4) by the terms “consecutive service” and “consecutive sentences,” stating that, as previously held, that there are multiple meanings that could be applied to these terms and one acceptable meaning is to look at the aggregate prison term that results from every count the court imposes.7 The 10

DAYTON Bar Briefs | jan/feb 2024

majority opinion, conversely, holds that neither of those terms are synonymous with the term ‘aggregate sentence.’8 To add to this back-and-forth confusion over the issue of what is the standard of review, the concurring opinion points out that the record is not complete for the court to review it as required, regardless of the outcome. In the present case, the trial court reviewed the defendant’s presentence investigation report, however, this report never made it into the appellate record and was never reviewed by an appellate court.9 Thus, requiring the court to make a finding that the record does not not support the trial court’s findings, as the appellate courts are unable to review the record in its entirety. You read that correctly, does not not support the trial court’s findings, as the majority opinion holds that the statutory language does not require that “the appellate court have a firm belief or conviction that the record supports the findings,”10 simply that if it clearly and convincingly does not support the findings, that it may modify or vacate the consecutive sentences.11 The majority opinion acknowledges that should appellate review of consecutive-sentencing be done de novo, “[t]he legislature knows how to express whether a court should conduct a de novo review” and it did not do so in the present statutes.12 To say that this opinion raises more questions than it answers would be an understatement. For starters, there is now an open question as to the standard of review. The majority opinion states that “[t]he clear-and convincing standard for appellate review in R.C. 2953.08(G)(2) is written in the negative”13 and that the court must have a firm belief that the record does not support the trial court’s findings because “[o]rdinarily, appellate courts defer to trial courts’ broad discretion in making sentencing decisions,” and that R.C. 2953.08(G)(2) reflects that deference.14 The dissent, conversely, argues that R.C. 2953.08(G)(2) does not state that any deference must be given to a trial court’s findings.15 It also states that the clear and convincing standard referenced in R.C. 2953.08(G)(2) indicates that the legislature intended for the appellate court to act as a second fact finder when reviewing the trial court’s findings, rather than requiring the finding of a negative as the majority has found, because that standard is an evidentiary standard of proof, rather than a

By Samuel Saul Richardson, Esq. Shelby County Public Defender’s Office & Sinclair Community College SSRLaw@Outlook.com

standard of review.16 Additionally, the second dissent addresses the fact that without looking at the aggregate sentence, that justice is not being done as the defendant’s aggregate sentence is vastly longer than those that are typically imposed for this type of case.17 Further, that “Ohio’s citizens expect justice to be fair. Judge’s are given leeway under the state’s sentencing laws to ensure that fairness[,]”18 and by maintaining the standard of review given by the majority, that public confidence in the judiciary may be shaken. Lastly, the concurring opinion reminds us that the question of aggregate sentencing and review thereof is far from settled law in Ohio. There is currently a pending case before the Supreme Court, State v. Glover,19 that “presents an opportunity for this court to address whether an aggregate prison term is a factor in imposing or reviewing consecutive sentences.”20 For now, appellate review of consecutive sentences “turns on whether the trial court’s findings are clearly and convincingly not supported by the record, and if the evidence supports the trial court’s consecutive-sentencing findings, the analysis ends there.”21

ENDNOTES: 1. State v. Gwynne (“Gwynne V”), 2023-Ohio-3851 at ¶ 62 (Stewart, J., dissenting). 2. R.C. § 2929.41(A). 3. R.C. § 2929.14(C)(4). 4. Gwynne V at ¶ 2 (quoting State v. Gwynne (“Gwynne IV”), 2022-Ohio-4607 at ¶ 1-2). 5. Id. at ¶ 4. 6. Id. at ¶ 13. 7. Id. at ¶ 56 (Stewart, J., dissenting). 8. Id. at ¶ 21. 9. Id. at ¶ 38 (Fischer, J., concurring in judgment only). 10. Id. at ¶ 15. 11. Id. at ¶ 22. 12. Id. at ¶ 16. 13. Id. at ¶ 13. 14. Id. at ¶ 11 (quoting State v. Rahab, 2017-Ohio-1401 at ¶ 10 (lead opinion)). 15. Id. at ¶ 71 (Stewart, J., dissenting) (quoting Gwynne IV at ¶ 19). 16. Id. at ¶ 71 (Stewart, J., dissenting) (quoting Gwynne IV at ¶ 20), see also Id. at ¶ 73 (Stewart, J., dissenting). 17. Id. at ¶ 89 (Brunner, J., dissenting). 18. Id. at ¶ 95 (Brunner, J., dissenting). 19. Supreme Court Case No. 2023-0654. 20. Gwynne V at ¶ 45 (Fischer, J., concurring in judgment only). 21.

Id. at ¶ 24.

jan/feb 2024 | DAYTON Bar Briefs

Estate Planning Trust & Probate Law

Medicaid Mysteries – Must A Client Deplete Their Retirement Account for Long Term Care?

he Medicaid system is a minefield of unique rules, exceptions to the rules, and different interpretations of the rules between the 88 counties in Ohio. It’s a lot for even the seasoned elder law practitioner to keep up with—and it’s enough to send many estate planners running for the hills if they aren’t focusing their practice on elder law matters. There is also a huge amount of misinformation about the Medicaid system. Attorneys, professional advisors, and the general public often have preconceived notions about what Medicaid eligibility involves. Many clients come through the door at our office with the idea that they will be forced to spend everything they have before Medicaid starts picking up the tab. While the general rule of thumb is that a person must spend down their assets to less than $2,000 before Medicaid benefits will kick in, it’s not quite so cut and dry. Ohio’s Medicaid laws allow a single person to keep $2,000 and any exempt assets. For a married couple, the Institutionalized Spouse can keep $2,000 and any exempt assets, while the Community Spouse is assigned a Community Spouse Resource Allowance (CSRA) that is calculated based on the value of the couple’s countable resources as of a particular moment in time, known as the snapshot date. While the details of how to calculate the CSRA are outside the scope of this article, it’s worth understanding that the maximum is $148,620 in 2023. The question then becomes: what is considered an exempt asset? Historically, the most common exempt assets have been the primary residence1, one automobile, life insurance policies with a cash value less than $1,500, pre-paid irrevocable funeral contracts, burial spaces, and personal effects. One notable exception to the list of exempt assets was previously retirement accounts. Clients were frequently and understandably frustrated when they learned that Medicaid would require them to spend down the funds in their retirement accounts, even when it meant paying taxes, or even early withdrawal penalties, for taking out the money. In recent years, elder law practitioners across the state began to see a shift in the Ohio Department of Medicaid’s treatment of retirement accounts. While the rule had always been that retirements accounts were considered countable resources, attorneys were beginning to be told that was no longer the case. Elder law attorneys across the state quickly began discussing this issue 12

DAYTON Bar Briefs | jan/feb 2024

and sharing their experiences across various Ohio counties. This created a great deal of uncertainty and confusion statewide. Eventually, after internal employee trainings by the Ohio Department of Medicaid (“ODM”) and several State Hearing and Administrative Appeal decisions related to treatment of retirement funds, ODM issued Medicaid Eligibility Procedure Letter No. 164 (“the MEPL”), which clarified their stance regarding the treatment of retirement assets and provided formal guidance for attorneys. The MEPL provides guidance as to how caseworkers should evaluate and treat retirement funds when determining an individual’s eligibility for Medicaid. The primary takeaway from the MEPL is confirmation from ODM that retirement funds should first be evaluated as sources of unearned income2 before potentially considering them as countable resources. The MEPL further clarifies that for a retirement account to be treated as unearned income, rather than a resource, the account owner must have the “legal ability to receive regular guaranteed lifetime payments.” Additionally, it states that an account owner is “required to obtain the maximum available amount of payment from his/ her retirement plan.” Finally, the MEPL requires that “if an individual is eligible for either periodic payments or a lump-sum, the individual must choose to receive periodic payments.” Interestingly, the MEPL goes on to provide that when an account owner is taking the required minimum distribution (“RMD”) from a retirement account, the RMD payment is considered the “maximum benefit available” to the individual, therefore satisfying the requirement that the individual must obtain the maximum amount for the account to be treated as unearned income. If an account owner is not old enough to qualify for RMDs, or if he or she is not required to take an RMD, then “regular, period payments” of any amount will be sufficient to satisfy the maximum benefit criteria. In determining the amount of regular, periodic payments, an account owner may (but is not required to) use the IRS or Social Security Administration life expectancy tables. While regular periodic payments will be treated as unearned income only, if an account owner takes non-periodic distributions or irregular withdrawals from an IRA, those non-periodic distributions will always be considered a resource and treated like a lump-sum payment. Lumpsum payments are counted as unearned income

By Kim C. Estess, Esq. O'Diam & Estess Law Group, Inc. kim@oedayton.com in the month of receipt and then as a countable resource in the following month. At the Medicaid eligibility phase, account owners must be prepared to demonstrate that they received fair market value for any lump-sum withdrawals taken during the five-year lookback period prior to filing a Medicaid application. What if an individual owns a retirement account but is not yet taking RMDs or other regular, periodic payments? In this situation, the retirement account is still considered a countable resource. In some cases, especially when there is a married couple and a snapshot date has not yet occurred, this can work to the client’s advantage, as it could help the couple to maximize the CSRA. After the CSRA has been calculated, it may be advisable for the client to begin taking regular, periodic payments, even if he or she is not yet at the required beginning age. These issues, of course, are highly case specific. With new rules come new planning opportunities—and a chance for practitioners to educate others in the community about these extensive changes. While the specific details of new planning strategies are not covered in this article, it’s helpful for practitioners who work with retirement-age clients to be able to issue spot on this topic. Even a basic understanding that it’s no longer required to exhaust a retirement account as part of a long-term care strategy could be hugely beneficial information to share with a client. In many cases, timing is everything, and the attorney who can provide this information before a client has begun an unnecessary spenddown could be providing a substantial savings to the client. Do you want to learn more about these complex rules? The MEPL is available for review online through the ODM website (Medicaid. ohio.gov) under the Resources for Providers heading.

ENDNOTES: 1. There are caveats to the house being considered an exempt asset. For a full list of ways for the home to qualify as an exempt resource, see Ohio Adm.Code 5160:1-3-05.13(C) (4). 2. Pursuant to Ohio Adm. Code 5160:1-3-03.10

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1/23 Noon *Civil Trial/ADR Principled Negotiations - The Enduring Lessons of "Getting To Yes" 1/24 Noon *Domestic Relations Everything You Wanted to Know About Guardians Ad Litem, Maybe? 1/25 Noon Paralegal What an Attorney Needs in a Paralegal 1/25 4:30pm *Corporate Counsel & Federal Practice Ethical Responsbility in Corporate Litigation

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jan/feb 2024 | DAYTON Bar Briefs

Real Property

Navigating the Surge in Property Taxes:

By Jordan P. Staley, Esq. Coolidge Wall Co., LPA staley@coollaw.com

Understanding and Appealing Real Estate Taxes in Montgomery County, Ohio

ontgomery County, Ohio, is witnessing a historic increase in property values, a trend that is sending ripples through the community. As reported by the Dayton Daily News in July of 2023, residential property values are expected to see an average increase of 34%, and commercial properties by 12%. Montgomery County is also bracing for an unprecedented $8.5 billion rise in overall value. In 2022, 83% of properties sold for a higher price than the county’s current value. Although the increase in value reflects an exceptionally strong real estate market, it also directly correlates with an increased tax burden for property owners, both residential and commercial. Montgomery County estimates taxes will increase 4-6%, on average, because of this property value update. Understanding the available options for challenging these assessments is crucial for those impacted by this surge. In Ohio, property values are reappraised by county auditors every six years, with an update every third year. The 2023 tax year marked a reappraisal year for 28 Ohio counties, including Montgomery County. Property owners can challenge these valuations once in each three-year cycle by filing a "Complaint Against Valuation" with the county Board of Revision (“BOR”), though under certain circumstances a property owner may qualify for a statutory exception to file more than once in a three-year cycle. The BOR is a three-person administrative board that includes representatives from the County Treasurer, County Auditor, and Board of County Commissioners offices. RC 5715.19(A) who establishes jurisdiction and who has standing to bring a complaint before the BOR. For example, a property owner or spouse, appraiser or broker, and a tenant of a property have standing to bring these complaints; however, a tenant only has standing if all of the following are true: (i) the property is commercial or industrial for tax purposes (ii) they are required to pay all the property taxes under their lease, and (iii) the owner authorizes the tenant in bringing the valuation complaint. In addition, a trustee may bring a challenge on behalf of property owned by a trust. The complaint process must be initiated between January 1st and March 31st of each year, and the hearings typically occur in the summer and fall. It is important for property owners to present strong evidence to support their case, as the burden of proof lies with the party who filed the valuation complaint. To prepare for the appeal, evidence such as independent appraisals, photographs, sales data of comparable properties with appropriate adjustments, and other relevant information should be gathered. During the hearing process, the complainants presents their cases and are subject to questioning under oath by the BOR (and possibly by counsel for the local Board of Education). In Montgomery County, the hearings generally last between 10 and 20 minutes per property but may be longer in more complex cases such as commercial tax appeals supported by appraisal evidence and testimony. All hearings take place remotely via Zoom. If the BOR changes a property’s value, that change will be effective as of January 1 of the tax year under appeal (and thus, will apply to that entire tax year). Property assessment is not an exact science — especially for commercial property. Location is usually the foremost factor when evaluating commercial real estate. This can allow surrounding properties to affect tax bills substantially, especially in rapidly developing areas. Triennial assessments can be questionable since they are generally based on statistical analysis. Nevertheless, these adjustments can have a very real impact on a DAYTON Bar Briefs | jan/feb 2024

property owner’s bottom line. School districts (also referred to as Boards of Education) generally receive approximately 40% of all property taxes collected meaning they are one of the political subdivisions most affected by reductions in value. Owners should be aware when filing a complaint that the local school district will likely receive a copy as part of its routine public records requests and could get involved if the reduction sought is greater than $50,000 in market value. The process may become adversarial and, in many ways, resembles a trial. If the school district decides to become involved with the owner’s case, its attorneys may cross-examine the owner (and the owner’s witnesses) at the BOR hearing and present contrary evidence of the property’s value. Following the hearing, the BOR will issue a decision. If the property owner disagrees with this decision, they may appeal to the Ohio Board of Tax Appeals or the county common pleas court. While the process can be lengthy, a successful appeal may result in a reduction of future property taxes, aligning them more closely with the fair market value of the property. Recent legislative changes in Ohio have significantly affected property tax appeals. House Bill 126 changed school districts’ ability to file complaints regarding property values. Historically, school districts had broad discretion to file complaints attempting to increase the market value of properties. However, in 2022 House Bill 126 limited this ability. School districts may now only file an appeal if it is based upon a sale transaction where the price exceeded the county auditor’s market value by at least 10% and by more than $500,000. Additionally, school districts are no longer permitted to appeal any unfavorable BOR decisions to the Ohio Board of Tax Appeals, though some school districts are attempting to seek judicial review of BOR decisions through filing a Chapter 2506 administrative appeal in the local county common pleas court. Many school districts have questioned the validity of House Bill 126, raising arguments that House Bill 126 violates the Ohio and Federal constitutions’ equal protection and due process clauses. School districts including but not limited to Columbus, Hilliard, Licking Heights, South-Western, Westerville, and Worthington have joined recent lawsuits. Essentially, they argue that the law greatly limits their ability to seek increases or oppose decreases in property values for tax purposes, which is their right under the law. Other critics argue that the law is not functioning as it was meant to and encourages creative legal efforts to get around the rules. Despite these challenges, House Bill 126 is nonetheless law. The surge in property values and the subsequent increase in taxes in Montgomery County underscore the importance of being well-informed about the tax appeal process. For property owners facing unexpectedly high taxes, an appeal can offer a viable path to a fair reassessment.

jan/feb 2024 | DAYTON Bar Briefs

Rising Star

Christopher Wolcott Esq.

Taft Law

hris Wolcott has the calm confidence you want in a litigator—calm honed over years of distance running and confidence developed from patience, experience, and determination. The University of Kansas School of Law graduate has been an associate at Taft’s Dayton office for a little over three years. He has made the most of that time, building his skillset, integrating himself into the DBA and Federal Bar Association (FBA), and serving the community as a volunteer assistant coach for Waynesville’s cross country and track teams. Chris’s return as a lawyer to the area where he was raised has been a triumphant one, and his personal and professional engagement in the Dayton community has marked him as a Rising Star. Born in Kansas City, Chris grew up in Oakwood from first grade through high school, where he ran track and cross country. He continued running in college, first at Clemson then at Tiffin University, where he graduated with a B.A. in Political Science. Running has proven integral to Chris’s life: he met his wife, Becky, on Tiffin’s track and cross country team, and both now serve together as assistant coaches in Waynesville. Both also recently received Tiffin’s “Carry the Torch” award, which is granted to alumni of TU’s track and cross country teams who have distinguished themselves professionally and as community leaders. Not only does “Coach” Chris still make time to run himself, but he also makes a point to show up for his team even at their non-running sports, regularly attending Waynesville girls soccer games to support several of his runners who are dual-sport athletes. After graduating from Tiffin, Chris decided to return to his homeland and matriculated to the University of Kansas School of Law on a full scholarship. KU is the “family school” for Chris—with multiple generations having attended over the years. When he attended, Chris found it was a really good fit for him as well (it didn’t hurt that he is a lifelong Jayhawks 16

DAYTON Bar Briefs | jan/feb 2024

fan). Chris thrived in the environment fostered by Board the law school’s decision to intentionally limit class for Bar sizes, which resulted in its having all the resources of Briefs, a bigger school with the intimacy of a smaller one. He is a became a fixture in the campus community, serving co-chair in student government and on both the Kansas Law of the Review (as a contributing author and Symposium DBA’s Editor) and Moot Court Council. A loyal alumnus, Federal he still makes it back to Lawrence as often as he can, Practice including recently to serve as a moot court judge—and Section, maybe to watch a game or catch up with friends and and was professors as well. a member of the DBA’s Leadership Development Following law school, Chris worked for a mid-sized Class of 2021-22. He is also heavily involved in the civil litigation firm in the Kansas City area for a year FBA, both locally and nationally, previously servbefore serving as a judicial law clerk for then-Kansas ing as the vice-chair of the Dayton chapter’s Young Court of Appeals Judge—now Kansas Supreme Court Lawyers Division and presently serving as both the Justice—Melissa T. Standridge. These experiences Dayton chapter’s treasurer and as a member of the were formative to his identity as a professional and led Young Lawyers Division National Board. Chris was to his decision to join Taft and return to Dayton. He also a member of—and the sole attorney selected to started in his current role in August 2020, in the midst participate in—the Dayton Chamber of Commerce’s of the global pandemic. Using the skills he developed inaugural Gen D Ignite program. The program assists during his clerkship, Chris slotted right in. As one of early career professionals in attaining professional adtwo litigation associates at Taft’s Dayton office, he is vancement, personal growth, and deeper involvement responsible for any cases that come through the door. in the community. Not only did he grow his network That runs the gamut from labor and employment to and form friendships with other young professionals breach of contract to construction to intra-corporate in the community, but this experience directly led to battles. The diversity of work has kept things interested him giving a talk at the Chamber’s Safety Breakfast and made Chris a more versatile litigator. this past July. But Chris doesn’t just confine his practice to Chris’s drive is unquestioned, and his dedication— billable hours. He has developed a robust pro bono to his family, the law, his firm, his clients, his bar practice in the federal courts. This has led to unique associations, his alma maters, experiences at an early stage in his career, including his cross country and track serving as co-lead counsel on a federal jury trial. Chris teams, and to Dayton—is has been recognized by his firm, the federal courts, and exemplary. With his passion the FBA for his pro bono work. and commitment, and the When not in the office, on the track, or with his strong foundation he has built wife and young daughter (Sloane), Chris is most likely for himself, it is clear his star to be found engaged in the work of any number of will continue to rise. professional associations. He serves on the Editorial Watch this space.

By Nathaniel M. Fouch Esq. Chair, Editorial Board Supreme Court of Ohio nathaniel.fouch@sc.ohio.gov

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January

April

Civil Trial/ADR presents:

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Principled Negotiations The Enduring Lessons of "Getting To Yes"

Montgomery County Juvenile Court Certification Tues. April 2 | Seminar Room

Tues. Jan 23 | Noon-1pm | 1.0 Gen Hr | Seminar Room Domestic Relations presents:

Everything You Wanted to Know About Guardians Ad Litem, Maybe? Wed. Jan 24 | Noon-1pm | 1.0 Gen Hr | Mont Cty Domestic Relations Court Corporate Counsel & Federal Practice presents:

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July New admittee this one's for you! New Lawyers Division presents:

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DAYTON Bar Briefs | jan/feb 2024

Upcoming Featured CLE

DBA 2nd Annual

Real Property Thursday, February 1st 9am-2:30pm | 4.5 Gen Hrs Engineer's Club of Dayton

Register now for this second annual, half-day seminar, complete with topics of interest to real estate and environmental law attorneys, including issues that impact our local communities!

Institute

AGENDA: 8:30am Registration 9:00am Welcome by Section Chairs 9:10am-10:25am (1.25 Gen Hrs) Post-Sackett Update: Ohio’s Regulation of Development in Wetlands & CERCLA Fundamentals for Commercial Real Estate Attorneys with Lee Slone 10:25am-11:25am (1.0 Gen Hr) Know Before You Demo: Asbestos Basics Panelists: Wendlene Lavy and Susie Crabill

Real Property Section Co-Chairs: Tom Kendo Thomas W. Kendo, Jr. Co. LPA Christopher Walker Walker Environmental Law

Presenters: John McManus Montgomery County Treasurer Lee Slone McMahon Degulis LLP MaryLynn Lodor Miami Conservancy District W. Chip Herin III. Coolidge Wall, Co., LPA Wendlene Lavy McMahon Degulis LLP Susie Crabill Montgomery County Land Bank

11:25am-12pm Lunch (included with registration) 12pm-12:45pm (.75 Gen Hr) Miami Conservancy District Overview and Update Who we are and what we do to protect, preserve and promote the Great Miami Riverway and Watershed with MaryLynn Lodor 12:45pm-1:30pm (.75 Gen Hr) Real Property Tax Appeals – From the Commercial Property Owner’s Perspective with W. Chip Herin III. 1:30pm-1:45pm Break 1:45pm-2:30pm (.75 Gen Hr) Tax Lien Sales in Montgomery County with John McManus

jan/feb 2024 | DAYTON Bar Briefs

Continuing Legal Education

Thank you to all 2023 DBA CLE & Event Speakers! Candace Anderson

Andrew French

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Steve Magas Alysia Goss Law Office of Montgomery County Public Defender Ohio's Bike Lawyer Mike Menninger Susan Gottschalk

Theresa Busher

Artemis Center

Taft Stettinius & Hollister LLP

Judge Julie Bruns

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Nick Gounaris

Chris Carville

Gounaris and Abboud, LPA

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David Greer

Anthony Corona

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Ohio Civil Rights Commission

Jack Greiner

Jeff Cox

Faruki PLL

Judge Denise Cross Montgomery County Domestic Relations Court

Leon Daidone Retired, Prosecutor's Office

Judge Steven Dankof, Sr. Montgomery County Common Pleas Court

Lindsey Deck Auman, Mahan & Furry

Catherine Dempsey LAWO

Keara Dever Law Office of Keara R. Dever, LLC

Lauren Dever Law Office of Montgomery County Public Defender

Judge Bradley Dunn Ohio Civil Rights Commission

Travis Dunnington Law Office of Montgomery County Public Defender

Alan Duvall Duvall & Associates, Inc.

Judge Christopher Epley Second District Court of Appeals

Charlie Faruki Faruki PLL

Emily Feaver Montgomery County Common Pleas Court

Magistrate Gina Feller Montgomery County Juvenile Court

Magistrate Judge Caroline Gentry USDC, Southern District of Ohio Tracy Goodpaster

Judge Ronald Lewis

DAYTON Bar Briefs | jan/feb 2024

Tricia Griffieth Greater Dayton Volunteer Lawyer's Project

Robert Gurry Gurry Law, LLC & Consulting

Melanie Hankinson Owner/Managing Director of IKOR

Summer Hawks Greater Dayton Volunteer Lawyer's Project

Jeff Hazlett Mediator/Arbitrator

Zach Heck Taft Stettinius & Hollister LLP

Max Hersch Office of the Ohio Public Defender

Ashton Hood Assistant Attorney General, Civil Rights

Brooke Horan Dungan & Lefevre Judge Kate Huffman

Houck Menninger Law, LLC

Magistrate Judge Michael Merz USDC, Southern District of Ohio

Michael Millonig Michael Millonig, LLC

Kelsey Mincheff Thompson Hine

Judge Thomas Rose USDC, Southern District of Ohio

John Ruffolo Ruffolo Stone & Stone

Professor Jeffrey Schmidt University of Dayton School of Law

Magistrate Judge Peter Silvain, Jr. USDC, Southern District of Ohio

Louis Sitler Wood, Herron & Evans

Judge Richard Skelton Montgomery County Common Pleas Court

Lee Slone McMahon DeGulis

Edward Smith Nolan, Sprowl & Smith

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Dayton Live

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Lee Lauren Truesdale Dayton Foodbank

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Tim Pepper

Mark Tuss Anthony VanNoy

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John Pinard Law Offices of Pinard and Bryan

Denise Platfoot Lacey University of Dayton School of Law

Robert "Buzz" Portune Foos & Lentz

The VanNoy Firm

Shannon Wahrhaftig Erma's House

Judge Helen Wallace Montgomery County Juvenile Court

Andrew Walsh

Second District Court of Appeals

William Price

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Vorys, Sater, Seymour and Pease LLP

Karl Keith

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Second District Court of Appeals

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Jamar King Thompson Hine

Judy LaMusga LaMusga Law Office, LLC

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Christopher Wilcott

Jeff Rezabek

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• Name and logo on seminar brochure, email, calendar listings and all other Diversity Day, DBA Annual Meeting, seminar marketing materials. Domestic Relations Institute, Real Property Institute • Recognition by the DBAby at the start ofand the seminar or someone from Bench and Probate Institute. Recognition Name Logo on Recognition by Name and LogoBar on Conference, • Recognition by NameLaw and Logoand on Logo on Recognition by Name and Logo on Name and Logo on • Recognition by Name sponsoring organization makes the introductions and provides a 30 second Recognition by$500 Title Sponsorship ame and Logo on Recognition by Name and Logo on • Recognition by Name and Logo on the following:following: the following: the following: the following: the following: commercial for theirthe product/service. • Name and logo included on the on-site agenda & signage 1. Event 1. page of the DBA website with Event page of the DBA website with 1. 1. Event page of the DBAofwebsite with the following: the following: Event materials page oftothe DBA website • Ability to provide marketing all attendees either viawith electronic 1. Event page of •the website with Event page the and DBA website with NameDBA and logo included on event 1. listing on website, e-blasts, other marketing materials link to your website/url. link to your website/url. link to your website/url. materials or paper format at the seminar. your website/url. link towith your website/url. link towebsite your website/url. • ¼1.Page Ad in Attendee if applicable e DBA website withlink to 1. Event page of the DBA website Event pageMaterials of the DBA with 2.seminar • Post follow-up email sent materials, byprograms the DBA on your all attendees. materials, programs Marketing materials, & behalf to & 2. 2.&Marketing materials,materials, programs programs & 2. Marketing $800 Sterling Sponsorship programs & Marketing programs 2. Marketing materials, 2. Marketing & te/url. link to your website/url. link to your website/url. signage. signage. signage. signage. • Name and logo includedsignage. on the on-site agenda & signage signage. ials, programs & 3.of(1) 3. (1) issue Marketing materials, & BarDayton 2.Bar programs & and 2. Marketing • Name and logo includedmaterials, on event 3. listing on website, e-blasts, other marketing materials Dayton Briefs. Bar Briefs. issue Briefs. 3. (1)programs of Bar Briefs. issue of Dayton (1)Dayton issue of Bar Briefs. 3. (1) issue 3. of (1)Dayton issue of Dayton Bar Briefs. Quarterly CLE $1,500-3,000 • 1/2 Page Ad Space in Attendee Materials if applicable ad within materials. 4. Full-page ad within materials. 4. Half-page 4. 1/4-page ad within materials. Full-page ad within materials. 4. signage. materials. 4. Half-page ad withinsignage. 4. 1/4-page ad within materials. Q1-3:$1,500, Q4: $3,000 • Registration for (1) at the event 5. Peek of the Week (circulation 1,600) with1,600) Lunch andLunch registration for (2) at the 5. Peek the Week (circulation with and registration for (2) at the • Sponsor designation at allofCLE seminars hosted by DBA in a given Bar Briefs. (1) issue ofthe Dayton Barquarter Briefs. 3. 3. (1) Barrister issue of Sponsorship Dayton Bar Briefs. $1,200 website. program. program. of thelink year.to firm link to firm website. • Name and logo included the on-sitematerials. agenda & signage materials. Half-page ad within materials. 4. 4. 1/4-page adonwithin information, via • NameExhibit and logoyour onExhibit allcompany seminar brochures, emails, calendar listings your company information, via and all other • Name and logo included on event listing on website, e-blasts, and other marketing materials irculation 1,600) with for and registration for (2) at the marketing materials seminars inflyers that promotional flyers orLunch gifts at quarter. event. promotional or gifts at event. Full Page Page Space in Attendee Materials if applicable ContactContact Kate •Bertke toAdSponsor a CLE oraEvent! Kate toorSponsor CLE orattendees Event! • Recognition by the DBA at the startfor of the seminars or someone from sponsoring Lunch and registration (2) at the • Leave behindBertke brochure/flyer promotional items at each seat program. Lunch and registration for (2) at the (937) 222-2324 organization makes the introductions and provides a 30 second commercial for their kbertke@daybar.org kbertke@daybar.org (937) 222-2324 • Follow up email sent by the DB A to all attendees on behalf of the sponsor program. ny information, via program. product/service. • Lunch & Registration for (2) at the event seminar follow-up email sent by the DBA on your behalf to all attendees. r gifts at• Post event.

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Contact Kate Bertke to Sponsor a CLE or Event! jan/feb 2024 | DAYTON Bar Briefs 23 kbertke@daybar.org (937) 222-2324

Column

From the Judge's Desk:

A View From the Bench

By The Honorable Judge Steven K. Dankof Montgomery County Common Pleas Court steven.dankof@montcourt.oh.gov

nd before Dantes could open his mouth…the jailer disappeared, taking with him the lamp and closing the door, leaving stamped upon the prisoner’s mind the dim reflection of the dripping walls of his dungeon.”1

On May 19, 1975, three young African American men were accused of the brutal murder of Cleveland grocer, Harold Franks. Based upon the “synthesized”2 testimony of 12-year-old Edward Vernon who later admitted he hadn’t even seen the murder, the three young men were convicted and sentenced to death. One of those men is my friend Ricky Jackson who served 39 years, 5 months and 27 days3 before his exoneration by the Ohio Innocence Project and its Director, UC Law Professor Mark Godsey. I have been honored to serve the citizens of Montgomery County, Ohio for nearly 13 years since my appointment to the Bench in January, 2011, by Governor Ted Strickland in the waning hours of his administration. Although a trial lawyer for roughly 35 years before taking the Bench, I had much to learn. Especially about the siren’s song of the Executive and Legislative Branches that the Judiciary is on the “Team” when it comes to the interdiction, prosecution and punishment of crime. The Judiciary IS NOT AND CANNOT BE on the same Team with the Legislative Branch, much less the Executive Branch and its Law Enforcement Officers and Prosecutors. And a sentient Judge CANNOT EMBRACE the notion that her job is to ensure “a level playing field” in the trial of criminal matters. Why? Because the United States and Ohio Constitutions make it quite clear that the playing field, by design, is NOT level; it is constitutionally slanted in favor of the Accused. Ever notice that the Rights enshrined in the 4th, 5th, 6th and 8th Amendments all run to the Accused and NOT the State? Socrates articulated that “an unexamined life isn’t worth living.” Singer/ songwriter Don Henley, with whom I share a birthday, echoed Socrates, intoning that “I’m tired of waiting for reason to arrive; It’s too long we’ve been living these unexamined lives.”4 In trying to live an examined life, I have reached the inescapable5 conclusion that the greatest cause of wrongful convictions and imprisonment is trial judges, far too cozy with the State, fancying themselves “crime fighters”, as opposed to independent jurists ensuring an Accused receives ACTUAL, AUTHENTIC, REAL DUE PROCESS, and not something masquerading as such in some court of appeals. Why? Who but trial judges, typically affirmed on appeal, are responsible for admitting evidence of junk forensic science, false confession, jailhouse snitch testimony and other evidence born of governmental misconduct? Who but trial judges fail to instruct juries on the frailties of human memory, eyewitness and cross-racial misidentification, and the pitfalls of implicit bias? Wrongful convictions and resulting imprisonment are a scourge on the

DAYTON Bar Briefs | jan/feb 2024

American Criminal Justice System.6 To the end of mitigating their horrors, I commend to your consideration two forthcoming events: 1) On Thursday Evening, January 18, 2024, at the Neon Movies, we will present clips from Amanda Knox’ Netflix Documentary on her wrongful conviction and imprisonment for murder in Italy, Gilbert King, Pulitzer Prize winning author for his seminal book: “Devil in the Grove” – Thurgood Marshall, the Groveland Boys, and the Dawn of a New America”, and Dean Gillispie’s forthcoming documentary on his wrongful conviction in Montgomery County, Ohio and wrongful imprisonment for over 23 years; and 2) On Thursday Evening, February 29, 2024, at the Victoria Theatre we will present “An Evening for Justice” at which Ms. Knox, Mr. King, and Mark Godsey of the Ohio Innocence Project will present live regarding the ongoing nightmare of wrongful conviction and imprisonment. This event will also remember the life and work of Judge Michael W. Krumholtz who died suddenly this past April. Mike’s widow Janis will be my guest at the Victoria that Evening. The Ohio Innocence Project’s work is funded entirely by charitable donations. Your contribution to “the cause” cannot be more important and essential. Please consider attending both of these events. Our Finance Committee consisting of Jay Adams of Cicero & Adams, Wray Blattner of Thompson Hine, Jeff Ireland of the Faruki Firm and Walter Reynolds of Porter Wright would be pleased to receive your call supporting this effort. They may call you. Please lend them an empathetic ear. I truly believe that hardly any of us went to Law School “for the money”. We went to Law School, inspired, perhaps, by a fictional Atticus Finch, or maybe real-life heroes like Clarence Darrow and Gerry Spence. If nothing else, your support and attendance at these events will remind you to live up to your youthful aspirations to pursue a life’s work devoted to the service of others and preserving what remains of a once free people. Until we meet again on these pages…

ENDNOTES: 1.

The Count of Monte Cristo. Alexander Dumas’ tale of wrongful conviction and imprisonment continues to resonate for nearly 180 years. 2. Which is lawyer talk for “perjured”, suborned by the Cleveland Police. 3. Including time on Ohio’s Death Row. 4. And, as you’ve already guessed, I spend a lot more time with Henley than Socrates… 5. For me, anyway… 6. Aptly dubbed the “Punishment Bureaucracy” by Alec Karakatsanis in his excellent book “Usual Cruelty” – The Complicity of Lawyers in the Criminal Injustice System.

CLE Sponsorship

jan/feb 2024 | DAYTON Bar Briefs

Social Justice

HOPE is on the Menu at Njoy! Njoy!

This article is one of a series from the DBA’s Social Justice Initiative to inform our membership about, and encourage their participation in, many of the non-profits in our community that address issues of “social justice.” If you would like to suggest a non-profit for us to highlight, please contact Chris Albrektson at the DBA.

By Magistrate Jacqueline V. Gaines Montgomery County Domestic Relations Court Co-Chair of the Non-profit Clearinghouse Subcommittee & Njoy! Njoy! Board Member gainesj@mcohio.org

joy! Njoy!’s mission is to “feed any and everybody who comes to our establishment seeking a meal” and to “reach out to offer good home cooked meals to homeless/hungry in the form of nourishment both emotionally and nutritionally.”1 Njoy! Njoy!, located at 1500 West Riverview Avenue in West Dayton, is a 501(c)(3) non-profit organization that provides a free, hot lunch and fellowship, no questions asked, no appointment necessary, on the third Thursday of every month from 11:00 am-1:00 pm. It also provides free groceries on the fourth Thursday of every month. The organization was founded 12 years ago by Freida Oriakhi and her late mother, Lottie Rutherford, who were inspired to meet the needs of the underserved in West Dayton through hospitality, generosity, and compassion. Njoy! Njoy! seeks to holistically meet the needs of West Dayton residents of all ages. For example, at the start of the 2023-2024 school year, Njoy! Njoy! donated money to provide free backpacks and school supplies to Dayton Leadership Academies students. Njoy! Njoy! and Dayton Leadership Academies buildings are next door to each other. Volunteers from Njoy! Njoy! attended and distributed resource literature at Dayton Leadership Academies’ back-to-school block party in August 2023. Njoy! Njoy! was awarded $300,000 from the City of Dayton through the American Rescue Plan Act to construct a new building. Preliminary steps have already started for the new building. The construction costs are estimated to total $2 million dollars. Njoy! Njoy! is seeking additional grant money for the construction. Njoy! Njoy! is currently operating on a reduced hour, COVID schedule, and will return to its normal weekly hours of operations when the construction of its new building is complete. With the new building, Njoy! Njoy! will increase the number of days it distributes free meals, maintain a food pantry, and provide mobile feeding to disabled adults and senior citizens. The new building will be named Angels @ Work Resource Center, which will supply health screenings/shots; computer training; legal aid services; adult daycare for those with disabilities/special needs; youth parenting classes; GED/ job readiness training; clothing and shoe give away; community conference room; a home health aide training school, and provide resources and support to enable seniors to stay in their homes. Njoy! Njoy! is primarily funded by its founder, Freida Oriakhi, along with funds through its charitable endeavors such as, its annual fish fry dinner fundraisers. It is also funded by grants; Dayton Foodbank; Miami Valley Meals; and from the generosity of people like you. Njoy! Njoy! does not have any salaried employees and is solely operated by a core of dedicated volunteers. Dayton Bar Association members can help Njoy! Njoy! continue its legacy of spreading HOPE (Helping people overcome their food shortages; Opportunity to have a healthy nutritious meal; Provide the homeless/hungry a free lunch; Eat often and well) by providing tax-deductible monetary donations or donating paper supplies to the organization. You can contact Njoy! Njoy! President, Ms. Oriakhi at 937-275-3119 or email her at njoynjoy7@gmail.com.

Njoy! Njoy! volunteer greeting the public during a Thursday feeding.

Njoy! Njoy! volunteers at the Dayton Leadership Academies’ August 2023 Block Party. President-Founder Freida Oriakhi center, seated at the table, Magistrate Gaines and family behind her, and Dayton Leadership Academies administrator back row.

Njoy! Njoy volunteers serve food to the public.

ENDNOTES: 1

Njoy! Njoy! is pronounced Enjoy Enjoy.

DAYTON Bar Briefs | jan/feb 2024

Volunteers inside the Njoy! Njoy dining room, President-Founder Freida Oriakhi, bottom right.

Become an Ohio Notary! Through a joint venture with the Akron, Cincinnati, Cleveland, Toledo and Ohio State Bar Associations, the DBA is helping new and renewing notaries across all of Ohio with all of their education and testing needs. Ohio Notary Services (ONS) is truly the one-stop-shop for all things notary in Ohio, including required courses, tests, and notary supplies. Notary Law Checklist: Step 1 Obtain a formal Bureau of Criminal Investigation (BCI) background check Step 2 Visit www.becomeanohionotary.com, attend class virtually and pass the test (if required.) ONS will provide you with a certificate for submission to the Secretary of State. Step 3 Visit the Ohio Secretary of State's website and select File Online to submit your application. Step 4 Return to www.becomeanohionotary.com to purchase your notary supplies. Free standard shipping on all notary bundles! (Use the code “FREE”)

Law Related Organizations Dayton Bar Foundation

Your Gift Will Help

STRENGTHEN Our Foundation.

The Dayton Bar Foundation (DBF) is a 501(c)(3) charitable organization and serves as the giving arm of the Greater Dayton Legal Community.Your contribution will enable the DBF to continue to fulfill its mission of funding innovative local organizations in their quest to improve our community by promoting equal access to justice and respect for the law. In the past few years your contributions helped to fund grants to:

•Advocates for Basic Legal Equality (ABLE) •Greater Dayton Volunteer Lawyers Project (GDVLP) •Law & Leadership Institute •Legal Aid of Western Ohio (LAWO) •Miami University Pre-Law Center •Wills for Heroes All gifts are eligible for charitable deductions on your federal income tax return if you itemize deductions. = = = = = = = = == = = == = = = = = = = = = = = = = DETACH AND RETURN OR SCAN TO DONATE= = = = = = = = = = = = = = = = = = = = = = = =

Dayton Bar Foundation, 109 N. Main St., Ste. 600, Dayton OH 45402-1129

Name: __________________________________________

Contributions may also be submitted online: daybar.org/dbfdonate Make a donation now and help us make a difference through our programs!

Firm: ___________________________________________

Gifts may also be made in honor or in memory of family, friends or colleagues.

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DAYTON Bar Briefs | jan/feb 2024

Greater Dayton Volunteers Lawyers Project (GDVLP)

Ringing in the New Year with Purpose: The Transformative Power of Pro Bono Volunteering

VOLUNTEER! By Summer D. Hawks, Esq. Exec. Dir. GDVLP summer@gdvlp.org

As the clock strikes midnight, ushering in a new year, many of us embark on a journey of self-reflection and resolutions. While personal goals often take center stage, there exists a profound opportunity to make a difference in the lives of others—pro bono volunteering. In the spirit of the new year, let's explore the transformative power of dedicating time and expertise to those in need through pro bono work.

1. A Resolution for Good:

New Year's resolutions typically involve self-improvement, but what if our aspirations extended beyond personal goals? Pro bono volunteering offers a resolution for good—a commitment to use our skills and knowledge to benefit those who may not have access to essential services. It's a promise to make the world a better place, one act of kindness at a time.

2. Fulfilling the Pledge of Giving:

The new year often prompts us to reflect on the blessings we've received and consider how we can give back. Pro bono volunteering provides a tangible way to fulfill the pledge of giving, allowing us to contribute to the well-being of our community. By offering our time and expertise, we become catalysts for positive change.

3. Building a Legacy of Impact:

2023 Outstandin g GDVLP Voluntee rs, Elizabeth Chin Lester Thompson ault, , and Trisha Duff (not pictured), ho nored at the DBA Holiday Luncheon!

Each new year offers a blank canvas—a chance to shape the legacy we leave behind. Pro bono work enables us to build a legacy of impact, leaving footprints of compassion and support in the lives of those less fortunate. It's an investment in a future where the echoes of our service resonate for generations to come.

4. Professional Growth with Purpose:

As we set career goals for the new year, let's consider the profound impact of professional growth with purpose. Pro bono volunteering provides an avenue for honing our skills, gaining diverse experiences, and expanding our networks—all while contributing to the greater good. It's a dual commitment to personal and professional development.

5. A Year of Advocacy:

The turning of the calendar marks not only a change in date but also an opportunity to advocate for justice and equality. Pro bono work allows us to be champions for those who may not have a voice, addressing systemic issues and working towards a more just society. In the new year, let's make advocacy a cornerstone of our actions. As we welcome the new year with hope and anticipation, let's carry the spirit of giving and compassion into our daily lives. Pro bono volunteering stands as a powerful vehicle for turning our aspirations into tangible actions, creating a ripple effect of positive change. In 2023, let our resolutions extend beyond personal boundaries, encompassing a commitment to serve, uplift, and empower those in need. Together, let's make the new year a chapter of purpose, where pro bono volunteering becomes a cornerstone of our journey towards a brighter, more compassionate future.

! e t a D e h t e v Sa May 9, 2024 y Day

DBA Diversit

jan/feb 2024 | DAYTON Bar Briefs

Law Related Organizations University of Dayton School of Law

Benefiting the Hon. Carl D. Kessler and the Lee C. Falke Scholarships

Monday, May 20 at 1 p.m. NCR Country Club North Course

Details And Register @ go.udayton.edu/golf

DBA Classified Ads: MEDIATION/ARBITRATION

HERBERT M. EIKENBARY

Trust

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MEDIATIONS

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DISPLAY AD INDEX: coolidge wall co., lpa.........................................................7 Daily Court Reporter........................................................14 dayton disability foundation......................................9 EIKENBARY TRUST....................................................................30

What is The Eikenbary Trust? The late Herbert M. Eikenbary granted the bulk of his estate to fund Grants and Loans to lawyers under the age of 35 who practice/reside in Montgomery County. These Grants and Loans are to aid young, deserving lawyers who are in need of financial assistance. Individual loans, are available up to $6,000 at 4% interest, while grants up to $4,000 are also available.

Ferneding Insurance..........................................................31 LCNB Bank......................................................................................9 oBLIC.........................................................................back cover R.L. Emmons & Associates.................................................6 30

DAYTON Bar Briefs | jan/feb 2024

To Apply: Jennifer Otchy, DBA Chief Executive Officer Dayton Bar Association | 109 N. Main St., Suite 600 | Dayton, OH 45402-1129 jotchy@daybar.org | 937.222.7902 | www.daybar.org

Members on the Move

The Honorable Chris Epley was elected Presiding and Administrative Judge of the Ohio Second District Court of Appeals for 2024 by Judges Welbaum, Tucker, Lewis and Huffman. The Second District includes six counties: Montgomery, Greene, Clark, Miami, Darke, and Champaign counties. As Presiding Judge, Judge Epley chairs general meetings of the court and presides over oral arguments in the court room. As the Administrative Judge, Judge Epley is responsible for the administration, docket, case assignment, and calendar of the Second District Court of Appeals.

The National Board of Trial Advocacy (NBTA) is pleased to announce that John H. Rion and his son, Jon Paul Rion of the law firm, Rion, Rion and Rion, L.P.A. Inc. have successfully achieved recertification as a criminal trial advocate. The NBTA was formed out of a strong conviction that both the law profession and its clients would benefit from an organization designed specifically to create an objective set of standards illustrating an attorney's experience and expertise in the practice of trial law. The Rions are part of a growing number of trial attorneys that have illustrated their commitment to bettering the legal profession by successfully completing a rigorous application process and providing the consumer of legal services with an objective measure by which to choose qualified and experienced legal counsel.

The law firm, Coolidge Wall Co., LPA is pleased to announce the following (photos above from left to right): • Dina Cary joins as of counsel in our Litigation department. • Michael Ruffolo has joined the firm as an associate in its Corporate & Business, Estate Planning and Probate, and Tax Departments. • Jordan Staley joins as an associate in our Real Estate and Corporate/Business Departments.

In addition to recently receiving the prestigious OSBF Ritter Award, Merle Wilberding authored an article recently featured in the Dayton Daily News, "VOICES: Reaching across the aisle, one step at a time". Read it here: https://www.daytondailynews.com/ ideas-voices/voices-reaching-across-the-aisle-one-step-at-a-time/ DBNNUZAVKBGYBLG756LUTHZ5CE/#

Members on the Move Guidelines:

If you are a member of the DBA and you’ve moved, been promoted, hired an associate, taken on a partner, received an award, or have other news to share, we’d like to hear from you! • News of CLE presentations & political announcements not accepted • Printed at no cost • Must be submitted via email and are subject to editing • Printed as space is available Contact Shayla to submit your announcement or ad:

seggleton@daybar.org | 937.222.7902

jan/feb 2024 | DAYTON Bar Briefs

109 N. Main St., Suite 600 Dayton, OH 45402–1129 ADDRESS SERVICE REQUESTED

Dayton Bar Briefs Magazine Jan/Feb 2024: Vol. 73 No. 3

Articles inside

Ringing in the New Year with Purpose: The Transformative Power of Pro Bono Volunteering

A View from the Bench

Rising Star Christopher Wolcott Esq.

Navigating the Surge in Property Taxes: Understanding and Appealing Real Estate Taxes in Montgomery County, Ohio

Medicaid Mysteries –Must A Client Deplete Their Retirement Account for Long Term Care?

Appellate Review and Consecutive Sentencing: Another Change

Attention Appointed Counsel: Second District joins growing number of jurisdictions in rejection of Anders briefs