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Appeals court upholds Trumbull judge’s right to comment on opiate crisis


Published: Tue, November 14, 2017 @ 12:00 a.m.

By Ed Runyan

runyan@vindy.com

WARREN

A judge was not unfair to a heroin dealer when he commented at his sentencing on the seriousness of the area’s drug epidemic, the Warren-based 11th District Court of Appeals has ruled.

As a result, the appeals court affirmed the sentence given to Jonathan M. Barnes Jr., 26, of Niles and Warren.

Atty. David Engler filed an appeal in Barnes’ case. Barnes was convicted of heroin trafficking in April in Trumbull County Common Pleas Court and sentenced to six years in prison, including one year for committing the crime with a gun.

The appeal charged that the sentence was unfair and violated Barnes’ due-process rights because Judge Peter Kontos asked Barnes at his sentencing hearing whether Barnes knew what the “No. 1 killer of people is today,” to which Barnes responded, “Heroin.”

Judge Kontos replied: “Yes. What were you doing?” Barnes responded: “Selling heroin.”

Judge Kontos stated: “The epidemic ... [has] been around for a long time, and every day I look in the obituaries and I see people that are too young to die. And it says they died suddenly at their home, which means they OD’d. I see more of those than I do shootings, die of old age. You understand what you did?”

The appeals court ruling, written by Judge Diane Grendell and joined by Judges Cynthia Wescott Rice and Thomas Wright, says the six-year sentence Barnes received fell within the permissible range of three to 11 years called for in the law plus one year for the gun specification.

But the comments the judge made about the heroin epidemic and deaths “demonstrated that it improperly ‘enhanced’ his sentence,” Engler alleged.

The Ohio Supreme Court has indicated that a sentence should be vacated only if a judge’s comments “reveal that the court imposed or enhanced the offender’s sentence because of improper considerations of false or unreliable information or parochialism,” the appeals court said.

But the judge’s “brief comments did not reach any conclusion as to the cause of the whole epidemic, nor did he state that Barnes was responsible for causing the epidemic or any deaths,” the appeals court said.

Engler cited no case law to support his position that a judge’s comments about the danger of drug use amounts to a violation of due process, the ruling says.

“The [judge’s] comments amount to a recognition of the dangers presented to society by drug trafficking, which is a relevant concern given Barnes’ conviction,” the ruling says.


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