Prosecutor Mason Wants Appeals Court To Overturn Ruling That Misdemeanor Drug Convictions Don't Prevent Bearing Firearms

Submitted by JournalistKathy... on Wed, 04/06/2011 - 04:06.

Cuyahoga County Prosecutor Bill Mason

By Kathy Wray Coleman, Editor of The Kathy Wray Coleman Online News Blog. Com and Cleveland Urban News.Com (

Cuyahoga County Prosecutor Bill Mason has appealed to the Ohio Eighth District Court of Appeals asking it to overturn a ruling by Cuyahoga County Court of Common Pleas Judge Brian Corrigan that dismissed a felony firearms case against a local entrepreneur. Corrigan said that the U.S. Supreme Court made it clear in a decision issued last year that it is unconstitutional to prosecute people with misdemeanors, including drug convictions, that are not otherwise precluded from bearing arms in their homes for protection as permitted by the Second Amendment of the U.S. Constitution. And, according to Corrigan, any state law that says otherwise is unconstitutional pursuant to the Second Amendment, and the recent U.S. Supreme Court decision at issue.

Marinko Tomas, who owns and operates an East Side carpet business on St Clair in Cleveland, was charged with a third-degree felony punishable by up to five years in prison for firearms in his home that is connected to the business. Prosecutors said that a 20-year-old misdemeanor conviction for attempted drug trafficking in marijuana precluded Tomas from owning guns under state law, regardless of his claim that he needs them for protection of his business in a high drug trafficking area of the city.

Tomas' lawyer John Parker, also one of the attorneys of suspected serial killer Anthony Sowell, argued before Corrigan that a June decision by the U.S. Supreme Court in McDonald vs. Chicago allows misdemeanor drug offenders to possess fire arms for protection unless they are precluded for one of the other reasons under state law, none applicable to his client. Lawyers for both sides agree that relevant case law give states the right to regulate firearms as to felony convictions and as to guns in places such as government buildings and school grounds.

Mason, however, claims that guns and illegal drugs go hand and hand and that state law prevents Ohioans with felonies, certified mental instability issues and, among others matters , drug convictions of all types whether felony trafficking or a misdemeanor drug abuse, from carrying firearms at home or otherwise. He argued also in his appellate brief filed last week that people must be law abiding citizens to bear arms in their homes for protection, though what makes a person a law abiding citizen is also in controversy in the case.

And, said Mason to the court of appeals, Tomas had military rifles and not guns typically used for protection, thereby requiring that Corrigan's ruling is overturned on that issue too, though he cited not one authority in support of that argument in his appellate brief on behalf of the State of Ohio, the venue that prosecutes people in Cuyahoga County for felonies and misdemeanors that are attached to felony indictments by the Cuyahoga County Grand Jury.

Asked if Tomas could simply apply for an expungement while the case is on appeal to eliminate Mason's claim that he is not law abiding where relevant case law says that an expungement would give Tomas a clean record aside from the issues on appeal, Mason spokesperson Ryan Miday said that "the appellate brief speaks for itself and Prosecutor Mason has no further comment."

Chardon Black, a community activist, said that a man should be able to protect his family and his home regardless of either a felony or misdemeanor conviction and precluding that protection should be assessed on a case by case basis such as a felony conviction of violence that might preclude bearing firearms, and not one such as a single conviction for welfare fraud.

"Not all convictions whether a felony or a misdemeanor should keep a man or woman from using firearms when a criminal comes in their homes with the intent of harm and they fear for their lives or the lives of their family members," said Black.

Parker has not filed his appellee brief on Tomas' behalf, which is due later this month. Any decision by the Eighth District Court of Appeals in this particular case is binding in the district, which includes Cuyahoga County.

District appellate court decisions are binding on the district at issue, Ohio Supreme Court decisions are binding on the state, and U.S. Supreme Court decisions are binding on the country, unless otherwise noted such as the 2002 decision by the U.S. Supreme Court in Zelman vs. Simmons-Harris that upheld school vouchers, but only with respect to Cleveland. Trial court decisions however, such as that of Corrigan at issue, have no precedent setting value from a legal standpoint and are applicable only to that particular case, unless it is heard by the appellate court whereby its decision then typically becomes binding in that appellate district, and sometimes precedent setting. In the current case at issue, Corrigan's ruling was appealed by Mason's office, making the upcoming decision by a three-judge panel of the Ohio Eighth District Court of Appeals precedent setting, and ripe for a request by the losing party for the Ohio Supreme Court to hear it.

Ohio trial court judges, such as municipal and common pleas court judges, are for the most part ethically required to adhere to appellate decisions from their respective districts and from the Ohio Supreme Court, and the U.S. Supreme Court.

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