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7th District: Defense attorney violated attorney-client privilege

Brian Garrett, right, listens as Dan Ritchie, left, speaks during a meeting of the Ohio State University Board of Trustees on Thursday, Nov. 21, 2019, at the Longaberger Alumni House in Columbus, Ohio. The two men, along with Mike Schyck, center, were all victims of Dr. Richard Strauss, a former Ohio State University team doctor who sexually abused athletes and other young men throughout his two decades at the school. (Joshua A. Bickel/The Columbus Dispatch via AP)

Legal News Reporter

Published: December 3, 2019

Defense counsel violated attorney-client privilege in a Belmont County felonious assault case.
Therefore, defendant John William Hoover’s seven-year prison sentence for felonious assault must be reversed, according to the 7th District Court of Appeals.
Hoover appealed his conviction and sentence on the second-degree felony – which arose from a domestic violence situation.
Case summary shows Hoover and his wife married in 2012 and divorced in 2013. After their divorce, he and the victim were occasionally romantically involved. In November of 2017, the two were romantically involved and living together. On the night of November 25, 2017, he and the victim went to a bar in Martin’s Ferry. While at the bar, Hoover had numerous alcoholic drinks.
Shortly after midnight the next day, Hoover and the victim left the bar and went to a grocery store to buy food. After returning home, Hoover wanted to have sex with the victim. When the victim said no, he became angry, began punching her in the head, and hit her with a belt. The victim’s two teenage children from a previous relationship called the police and attempted to stop Hoover from hitting their mother. The victim suffered numerous injuries – including a broken nose, missing teeth in her lower jaw, lacerations in and around her mouth, bleeding from her gums, multiple contusions to her head, and bruising under her eyes - as a result of the attack.
Hoover was arrested and the victim filled out a petition for a protection order against him. The protection order provided that Hoover not initiate contact with the victim and stay at least 500 feet away from her.
On February 15, 2018, Hoover filed a pro se motion for new counsel, claiming: the public defender’s office did not receive adequate funding to “mount any type of believable offense,” counsel told appellant that he was “pretty much guilty as charged” due to the victim’s injuries and appellant’s prior criminal record, and counsel opposed appellant’s desire to call character witnesses.
The trial court denied the motion for new counsel and a jury trial began on March 1, 2018.
Hoover testified he had two shots of whiskey and six beers over two-and-a-half hours while at the bar and that he did not remember leaving the tavern, going to the grocery store, or assaulting the victim. He claimed the only thing he remembered was waking up in the Belmont County Jail, adding that he believed someone drugged his drinks while he was at the bar.
At his March 18, 2018 sentencing, Hoover’s counsel gave the trial court a letter Hoover had written him four days prior. The trial court referenced the letter as one of its sentencing factors.
The letter indicated that Hoover violated the protection order by communicating with the victim daily and having sex with her on three occasions while awaiting trial. The letter also pointed out what Hoover argued were deficiencies in his counsel’s representation during trial.
On appeal, Hoover argued his trial counsel breached attorney-client privilege by giving the court the letter.
“First, the letter states that Officer West testified at trial that it was protocol, if an arrestee had been drinking, to take that arrestee to the hospital to be examined before transporting them to jail,” 7th District Judge Gene Donofrio wrote in his opinion. “But appellant said that he was not taken to the hospital. Second, the letter states that trial counsel failed to raise the fact that appellant was diagnosed with bipolar disorder.
“The contents of this letter are protected by the attorney-client privilege. The letter was a communication from appellant to his trial counsel in counsel’s professional capacity. The letter was sent to counsel’s address at the public defender’s office by regular U.S. mail in a sealed envelope. It also concerned counsel’s representation of appellant.”
The state argued Hoover waived the attorney-client privilege in two ways: by not objecting to the letter’s submission during the sentencing hearing and by referencing the letter himself. During the sentencing hearing, Hoover said, “[a]nd as I stated in the letter, I have made multiple apologies to [the victim] multiple times.”
However, Donofrio found the record does not show that Hoover expressly waived the attorney-client privilege of his March 14, 2018 letter.
“As for revealing the context of the communication in a nonprivileged context, the `letter’ appellant referenced at the sentencing hearing was not the March 14, 2018 letter that he sent to his counsel,” Donofrio wrote. “The March 14, 2018 letter does not state that appellant apologized to the victim. Appellant stated that he apologized to the victim in a written allocution obtained by Belmont County Adult Probation after trial. Therefore, appellant did not waive the attorney-client privilege of his March 14, 2018 letter.”
The appellate panel found a reasonable probability that the outcome of appellant’s sentencing hearing would be different without the letter.
“Appellant argues in this assignment of error that he should be granted a new trial,” Donofrio added. “But the error complained of in this assignment of error occurred during sentencing, not trial. Therefore, the appropriate remedy here is a new sentencing hearing before a new trial court judge.”
Seventh District judges Cheryl L. Waite and David A. D’Apolito concurred.
The case is cited State v. Hoover, 2019-Ohio-4229.