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Disciplinary Counsel v. O'Neill9/7/2004
s apartment but adamantly denied that a sexual assault took place or any sexual conduct took place. The case was called for trial on November 10, 1997 and the jury was selected. Angela Canepa, who was the Director of the Sex Crimes Unit of the Franklin County prosecutor's office, took over the case on the day of trial. She learned that day that there was no physical evidence and there were serious issues with the victim's credibility, which compromised the prosecution's case. (Transcript Vol. I - 157-159)
12. Seeking to salvage this prosecution Canepa offered Birchler a plea to simple assault (a non-sex offense misdemeanor). Birchler accepted and counsel discussed with Judge O'Neill a sentence of six months with 60 days work release jail time, the rest suspended and five years probation. In the transcript, (Exhibit 35) the plea is described as an Alford plea, albeit somewhat tardily. Although considerable testimony was taken as to the nature of the plea, all participating parties who testified herein agreed this was an Alford plea. In an Alford plea the defendant pleads guilty to a charge while protesting his innocence.
13. In the sentencing transcript, Judge O'Neill for the first time told the parties that one of the conditions of probation would be Birchler's participation in sex offender counseling. Neither Birchler, Littrell nor Canepa were aware that sex-offender counseling required participants to admit they committed a sexual assault on a victim. (Transcript Vol. I - 23,163,187). Over the next 2 years Birchler complied with all conditions of his probation except the sexual offender counseling. He was discharged from the 2 programs offered in Franklin County, because he refused to admit he committed a sexual assault and that he had a victim.
14. In 2000, a Request for Revocation of Probation was filed. Littrell and Canepa entered into and submitted to Judge O'Neill an entry that removed Birchler's sex offender counseling condition of his probation to resolve the matter. (Exhibit 1, Relator's Exhibit A) Judge O'Neill rejected the entry and a revocation hearing was held February 28, 2000. (Transcript Vol. I -- 168,169)
15. At the revocation hearing it was established that Birchler had not completed the sex-offender counseling programs because he would not admit to committing a sexual assault and having a victim. He would only admit he had been convicted of simple assault out of a plea bargain. (Exhibit 35, p.38) Littrell argued that the sexual assault requirement was inconsistent with his client's Alford plea. (Exhibit 35, p. 43-46) Judge O'Neill revoked Birchler's probation for failure to meet the sexual offender counseling condition stating she was "infuriated" that Birchler denied he had a victim and stated in the transcript "it doesn't take a rocket scientist to figure out that if you are on probation from a sex offense and the Judge tells you that you are to successfully complete sex offender counseling that you either go with the program or you are going to be revoked," " I don't care what you call it, this was a sexual assault and he did plead guilty," and "he has been convicted of an assault that arose out of a sexual attack"(Exhibit 35, pp.48, 57)
16. Littrell appealed the probation revocation and the Tenth District Court of Appeals reversed, stating "We cannot reconcile appellant's Alford plea and the requirement as a part of his counseling session that he admit he had a victim.... Requiring appellant to admit that there was a victim or to specific criminal conduct would be in contradiction to his maintenance of factual innocence pursuant to Alford." (Exhibit 5, p.4) The appellate court further held that "because appellant did not have notice
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