Supreme Court: Shooter Wants Sentence Vacated Because Judge Misstated Self-Defense Law

DeMarco Gowdy has a story to tell about acting in self-defense during a fight in a McDonald’s parking lot. The problem, explains a Hamilton County trial judge, is that Gowdy’s story doesn’t match the restaurant’s parking lot surveillance video.

Gowdy insisted on going to trial to argue against a felonious assault charge. The trial judge advised during a pretrial hearing that Gowdy wouldn’t meet his “burden of proof” to require the judge to provide a self-defense jury instruction to the jurors. The problem, argues Gowdy, is the trial judge misstated the law and what is needed when self-defense is claimed.

Gowdy argued the judge “put him in a box” by refusing to instruct the jury on self-defense, and he pleaded guilty to reduced charges, which led to a four-year prison sentence. The Supreme Court of Ohio will hear oral arguments next week on whether to vacate Gowdy’s plea because of the judge’s mistakes.

Judge Incorrectly Explains Self-Defense
In August 2023, Gowdy fought with Mohammad Diol in a McDonald’s parking lot in Cincinnati. The store video surveillance camera shows Gowdy hitting Diol with a gun and shooting at him once, injuring Diol. Gowdy was charged with two counts of felonious assault, along with a firearm specification and a gun forfeiture specification.

At a pretrial hearing the judge stated, “[s]ometimes I shortcut a lot at trials by watching the video.” After watching the video, the judge told Gowdy the video “does not look good for you.” Gowdy and the judge had an exchange in which the judge told Gowdy that the footage showed that he started the fight before shooting Diol. Gowdy insisted there was more to the encounter than was captured on the silent video. He insisted he was acting in self-defense and feared Diol had a weapon or was trying to get Gowdy’s gun.

At a subsequent pretrial hearing, the judge warned Gowdy he was facing 28 years in prison if convicted of the crimes and specifications. When Gowdy stated he was requesting a self-defense jury instruction, the trial judge explained that Gowdy had to “satisfy certain elements in order to get me to give the jury the instruction on self-defense.” The judge told Gowdy he couldn’t meet his burden of proof for self-defense because Gowdy wouldn’t be able to show that he didn’t start the altercation.

Gowdy met with his lawyer and the Hamilton County Prosecutor’s Office and agreed to a deal, which would lead to a four-year prison sentence. At sentencing, Gowdy complained to the judge that he was put in a “lose-lose situation” after the judge flatly stated that he would not provide a self-defense jury instruction. Gowdy took the plea and appealed to the First District Court of Appeals. The First District found the trial judge wrongly stated the rules on receiving a self-defense jury instruction and overstated the maximum time Gowdy could receive in prison. Nevertheless, the First District affirmed the conviction, finding Gowdy pled to the charge without being coerced.

Supreme Court To Consider Plea Validity
Gowdy explains that the due process clauses of the U.S. and Ohio constitutions require a plea to be  “knowing, intelligent, and voluntary.” He could only enter a plea if he understood the circumstances and consequences of his plea, and by misstating the law, the trial judge denied him the ability to understand the circumstances, Gowdy argues.

The prosecutor notes that while making errors in his presentation about a self-defense claim, the trial judge repeatedly said he wouldn’t coerce Gowdy. And while Gowdy debated what happened between him and Diol as the judge watched the video, the prosecutor maintains at no time did Gowdy state he had other witnesses or evidence to refute the facts captured on the video.

All the quarreling about the self-defense instruction occurred before trial, giving Gowdy time to confer with his attorney and consider his options. Gowdy had to weigh the uncertainty of a long prison sentence if his self-defense claim failed against a solid offer from the prosecution of a reduced charge, the prosecutor argues. He made a knowing choice to plead guilty, and the sentence should stand, the office concludes.

Watch Oral Arguments Online
The Court will hear State v. Gowdy and three other cases on June 24. Four more cases will be argued on June 25. Oral arguments begin at 9 a.m. They will be streamed live online at SupremeCourt.Ohio.gov and on the Ohio Channel, where they are archived.

Detailed case previews from the Office of Public Information are available by clicking on the case names in the article or in the list of cases in the sidebar.

Tuesday, June 24
Record Sealing
In 2023, a woman applied to the Hamilton County Municipal Court asking to seal the record of seven misdemeanor convictions that occurred between 2012 to 2016. The county and city prosecutors didn’t object to the requests at the time. The court rejected the application, but the appellate court overturned the decision. The county prosecutor argues in State v. J.B. that the court had the discretion to decide that the applicant wasn’t sufficiently rehabilitated and that the government’s interest in keeping the record public outweighed the applicant’s interest in sealing the record. The applicant counters that the court failed to consider all of the evidence showing her rehabilitation, including her pursuit of a social work degree and receipt of a certificate of qualification for employment from the common pleas court.

Injection Wells
A company owns two injection wells in Belmont County for the disposal of waste fluids produced by natural gas and oil production. The state natural resources department issues permits setting the maximum allowable injection pressure to prevent fractures and to protect underground sources of drinking water. The department issued a replacement permit lowering the injection pressure for one well, and the company appealed the decision to court. The court didn’t hold a hearing on the matter, concluding that it could only consider the certified record from the department. In Omni Energy Group v. Ohio Department of Natural Resources, the company contends that another statute, and due process, permit additional evidence in court. The department maintains that the company chose to appeal to a court, rather than an administrative commission, and additional evidence cannot be presented in an administrative appeal to a court.

Utility Rates
In 2023, a regulated electric utility filed for an electric security plan (ESP) with the Public Utilities Commission of Ohio (PUCO), an option the utility could use to set rates for services. A company that helps commercial operations manage and develop their energy needs challenged the plan before the PUCO. The company made a discovery request for virtually all materials the utility provided to the PUCO to justify its ESP proposal. The PUCO agreed with the utility that it could limit some of the confidential material it filed to prevent the challenger’s top officials from using the material to gain a competitive advantage in the electric generation industry. When the Court hears In the matter of Ohio Power Company, it will consider whether the PUCO violated the competitor’s due process rights by unfairly shielding certain information from review. 

Wednesday, June 25
Community Control Conditions
A woman pleaded guilty to a misdemeanor count of theft in Chardon in 2023. She was placed on community control. As one condition, she was prohibited from consuming alcohol or possessing or using drugs. She objected, arguing the prohibitions weren’t related to the theft conviction. She pointed to a test established by the Supreme Court of Ohio in a 1990 decision, which required that conditions be related to the conviction. In State v. Ballish, the county prosecutor argues that the Supreme Court test no longer applies after misdemeanor sentencing laws were overhauled in 2004. The woman counters that the language the Court interpreted in 1990 remains in the laws, so the test still applies.

Postconviction Relief
In 2021, a Butler County man pleaded guilty to child pornography charges and was sentenced to prison. He appealed his conviction, but his attorney failed to file a required trial transcript, which led to the appeals court dismissing the case. When the convicted man learned of the dismissal he found another attorney to apply to reopen his appeal. That appeal was ultimately rejected, and the man petitioned for postconviction relief about 18 months after his conviction. The trial court denied the request, ruling the man missed the deadline to file. In State v. Fraley, the Court will consider a claim that the date to file for postconviction relief started when the trial transcript was filed in the appeals court, which gave him extra time to pursue postconviction relief.

Government Immunity
A senior citizen entered a remodeled city recreation center locker room and tripped over the legs of a newly installed bench. She fell and died 12 days later. Her estate claims the bench was “physically defective,” not because of its condition but because the city chose a bench with extended legs and placed it in a narrow locker room, creating a deadly safety hazard. The city maintains it’s immune from such lawsuits under state law. In Steigerwald v. City of Berea, the Court will consider whether an exception to immunity applies when the negligence of an employee causes an injury and the injury is due to a physical defect within the grounds of the government’s building.

Wind Farms
The owner of six out-of-state wind farms applied for certification in Ohio as renewable energy resource generating facilities. The PUCO determined that the owner had demonstrated that the wind farms could deliver power into Ohio at the required level. The commission certified the wind farms. A Chicago environmental consulting firm intervened to challenge the certifications. In In re application of Moraine Wind, the firm asserts that the wind farms didn’t meet the required standard to show deliverability. The commission responds that the studies presented to it showed that the wind farm power was capable of being physically delivered into the state.