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Disciplinary Counsel v. O'Neill9/7/2004
. Ralph Kerns (admitted 1981, general private practice since then) represented Smiley. At the pretrial Judge O'Neill granted leave for Smiley to consider a plea offered to a single felony count through the trial date. (Exhibit 235) Smiley agreed to accept the plea and Kerns told the assigned prosecutor, Angela Bolognone (admitted 1997, Franklin County Prosecutor's office from 1997-October 2001, abuse unit, now inactive status for family reasons). Parties and counsel appeared on the day of trial at 9:00 am to enter the plea. Bolognone advised the victim's family that because both parties have requested a PSI and HB 180 a sexual predator status hearing was required and that sentencing would not take place that day. Under the Ohio Sexual Predator law (R.C. 2950.09) when a defendant pleads guilty to a felony sexual offense, the statute proscribes that a hearing be held to determine the defendant's sexual offender classification. Notice is required to the parties and counsel of the date and time of the hearing and the State has the burden of proof. (Transcript Vol. IV - 209-211, 213-214, 272, 280-281)
84. Judge O'Neill was not present at 11:30 am and Bolognone told the victim's family they could go home and they could be heard at the HB 180/sentencing hearing, which would be scheduled another day. Judge O'Neill took the bench at 1:40 pm and appeared to Kerns and Bolognone to be agitated and angry. (Transcript Vol. IV -- 215, 249) Bolognone specifically requested a PSI and an HB 180 hearing, stating that there has to be formal notice given. Judge O'Neill stated, "We're going to do that now -- at the time of sentencing, which is now. The parents want jail time, or are they interested in probation, or what is their position?" (Exhibit 22, p.14) Bolognone apologized for the parents' absence and again requested a PSI and that an HB 180 hearing be set. Judge O'Neill then stated "The statute makes it very clear that the House Bill 180 is at the time of sentencing and nobody should count on a presentence investigation. So I take it you are in favor of jail time, because you are not waiving a PSI?" Bolognone stated: "I was hoping to find out more about this individual from the PSI, Judge. I know very little about this individual." Bolognone repeated her request for the HB 180 hearing and Judge O'Neill replied: "No, you have the House Bill 180 hearing at the time of sentence. If you've said all you're going to say, I need to fill out these forms before I proceed." Bolognone apologized again and testified she sensed the judge was angry and the hearing was "starting to spin out of control." (Transcript Vol. IV - 215-216) When asked again, Bolognone declined to say anything about sentencing. Judge O'Neill went on to sentence Smiley to six months in prison finding that a prison term was consistent with the purposes of R.C. 2929.11, Smiley was not amenable to community control and "because of the nature of the case involving intercourse with a 13-year-old child, that it would demean the seriousness of the offense by giving him probation." (Exhibit 277 p.17, 18) Judge O'Neill then proceeded in a soliloquy to enumerate the factors for the sexual offender classifications and make findings without asking for any evidence from the prosecutor. (Exhibit 227 pp. 18-22)
85. Kerns went with Smiley into the lockup to discuss with him what had happened. When he returned to the courtroom, Kerns saw Judge O'Neill talking to two women near the bench and he heard Judge O'Neill state at a volume, "fully sufficient for my client's mother to hear that had I taken the matter to trial and this girl taken the stand and testified that my client wouldn't have been convicted. ...And then I approach the judge, I'm stunned that she's made that sta
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