Medina County Courthouse

Thursday, October 28, 2010

Judge Collier's Criminal Docket for October 25, 2010

Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Collier's courtroom on October 25, 2010 for criminal cases:

Michael Buckler, 29, of Sunset Drive in Lodi, was sentenced to two years of community control sanctions on two counts of Trafficking in Marijuana, both of which are fifth-degree felonies. His driver’s license was suspended for six months.

Nicholas Mauch, 23, of Blueberry Hill Drive in Brunswick, was sentenced to two years of community control sanctions on one count of Possession of Heroin, a fifth-degree felony. His driver’s license was suspended for six months.

Jerome Santora, 28, of Princeton Drive in Brunswick, was sentenced to two years of community control sanctions on one count of Trafficking in Marijuana, a fifth-degree felony. His driver’s license was suspended for six months.

Albert Stiver, 36, of Spruce Street in Medina, was sentenced to five years of community control sanctions, with 180 days in jail, on one count of Domestic Violence, a fourth-degree felony. He also was ordered not to have any contact with the victim in the case.

Doneil Hamilton, 19, of Pennsylvania, pleaded not guilty to one count of Possession of Cocaine, a third-degree felony. A jury trial is scheduled for December 6.

Jeffrey Lunger, 41, of Old State Road in Middlefield, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for January 26.

Marko Milosevic, 31, of Moore Road in Avon, pleaded not guilty to one count of Possession of Heroin, a fifth-degree felony. A jury trial is scheduled for January 26.

Matthew Paxton, 28, pleaded not guilty to one count Burglary, a third-degree felony and two counts of Theft of a Dangerous Drug, both of which are fourth-degree felonies. A jury trial is scheduled for December 15.

Bryan Rhoads, 28, of Chippewa Road in Medina, pleaded not guilty to one count of Possession of Cocaine, a fifth-degree felony. A jury trial is scheduled for January 24.

Robert Tate, 53, pleaded not guilty to one count of Violation of a Protection Order, a fifth-degree felony. A jury trial is scheduled for December 22.

Judge Kimbler Arraignments for October 21, 2010

Medina County Prosecutor Dean Holman reports that the following defendants appeared in Judge Kimbler's courtroom on October 21, 2010 for arraignment on new charges:

Kenneth Bellomy, 39, of North Avon Road in Wadsworth, pleaded not guilty to the following charges: two counts of Menacing by Stalking, both of which are fourth-degree felonies; two counts of Breaking and Entering, both of which are fifth-degree felonies; and two counts of Violation of a Protection Order, both of which are first-degree misdemeanors. A jury trial is scheduled for December 27.

Jason Casey, 26, of Greeley Street in West Salem, pleaded not guilty to three counts of Aggravated Vehicular Homicide, two of which are second-degree felonies and one of which is a third-degree felony. A jury trial is scheduled for December 13.

Tamas Czirjak, 26, of Lafayette Road in Medina, pleaded not guilty to one count of Domestic Violence, a fifth-degree felony. A jury trial is scheduled for December 28.

Crystal Gargasz, 31, of Ledgestone Drive in Wadsworth, pleaded not guilty to one count of Possession of Heroin, a fifth-degree felony. A jury trial is scheduled for December 27.

Peter Ketchem, 31, of Westwood Drive in Strongsville, pleaded not guilty to one count of Possession of Drugs, a fifth-degree felony. A jury trial is scheduled for December 28.

Victoria Spear, 21, of Grant Street in Galion, pleaded not guilty to two counts of Aggravated Vehicular Homicide, one of which is a second-degree felony and one of which is a third-degree felony. A jury trial is scheduled for December 20.

Tuesday, October 26, 2010

Jury's Verdict is Less than Last Offer

Tuesday afternoon a jury in Judge James Kimbler's courtroom returned a verdict that was less than the last offer made by the insurance company that insured the defendant. Prior to trial Spiros D. Kontos and his wife Areti Kontos were offered $13,900 to settle both of their claims against Tracy D. Bauer. That offer was in response to a $30,000.00 settlement demand. The verdicts returned by the jury Tuesday afternoon totaled $10,426.00 for both claims.

Mr. and Mrs. Kontos filed suit against Mrs. Bauer as a result of injuries sustained in a automobile collision that took place in Medina in October of 2005. Mrs. Bauer admitted that she was negligent, but disputed the nature and extent of Mr. and Mrs. Kontos' injuries.

Both Mr. and Mrs. Kontos had been injured before and claimed that Mrs. Bauer's neglience had aggravated their pre-existing physical conditions. Under Ohio law, a person whose negligence aggravates a pre-existing condition is only responsible for the extent of the aggravation.

The jury trial began on Monday, October 25 and concluded Tuesday afternoon. Mr. and Mrs. Kontos called four witnesses. Mrs. Bauer did not call any witnesses, but did introduce one exhibit.

Criminal Jury Trial Continuances Filed 10.11.2010-10.25.2010

All jury trials start at 9:00 am unless otherwise noted.

State of Ohio v. Luke D. Rufener, Case No. 10CR0176, new date is November 29, 2010

State of Ohio v. Michelle Foglesong, Case No. 10CR0316, new date is December 7, 2010

State of Ohio v. Kajuana K. Myers, Case No. 10CR0301, new date is November 16, 2010

State of Ohio v. Kevin My Foy, Case No. 10CR0224, new date is November 29, 2010

State of Ohio v. Jeffery A. Starcheski, Case No. 10CR0198, new date is December 6, 2010

State of Ohio v. David L. Resovky, Case No. 10CR0399, new date is November 30, 2010

State of Ohio v. Jessica L. Graham, Case No. 10CR0330, new date is November 19, 2010

State of Ohio v. Virgil T. Smith, III, Case No. 10CR0345, new date is December 27, 2010

State of Ohio v. Todd W. Anshutz, Case No. 10CR0279, new date is December 6, 2010

State of Ohio v. Michael A. Hilson, Case No. 10CR0386, new date is December 14, 2010

State of Ohio v. Toni J. Amodio, Case No. 10CR0387, new date is December 6, 2010

State of Ohio v. Jacob White, Case No. 10CR0391, new date is December 6, 2010

State of Ohio v. Dustin C. Niemann, Case No. 10CR0225, new date is November 29, 2010

State of Ohio v. Jessica Allen, Case No. 09CR0491, new date is November 15, 2010

State of Ohio v. Tonya D. Faulkner, Case No. 10CR0119, new date is December 7, 2010

State of Ohio v. Angel M. Perry, Case No. 10CR0118, new date is December 13, 2010

State of Ohio v. Daniel S. Watson, Case No. 10CR0222, new date is December 14, 2010

State of Ohio v. Brian McKee, Case No. 10CR0298, new date is November 14, 2010

State of Ohio v. Thomas M. O'Connor, Case No. 10CR0278, new date is December 12, 2010

Monday, October 25, 2010

Judge Kimbler Criminal Sentences for October 21, 2010

On Thursday, October 21, 2010, Judge Kimbler imposed sentences in criminal cases. The names of the defendants and the sentences imposed are as follows:

Christi L. Leprevost, 35, of Whitney Road in Strongsville, Ohio, was put on non-residential community control sanctions for one of Trafficking in Drugs, a fourth degree felony. Judge Kimbler put her under the supervision of the Medina County Adult Probation Department for three years; ordered her driver’s license suspended for six months; ordered her to perform 24 hours of community service; ordered her not to consume or possess alcoholic beverages while on supervision; and ordered her to submit to random drug and alcohol testing. In the event that she violates these conditions, Judge Kimbler ordered a six month prison sentence.

Tyler L. Jones, 46, of Rockwood Avenue in Oil City, Pennsylvania was sentenced to six months in prison for Drug Possession, a fifth degree felony. Judge Kimbler gave him credit for 85 days he spent in the Medina County Jail prior to sentencing. Judge Kimbler also suspended his driver’s license for six months.

Lisa M. Terrill, 29, of Water Street in Wadsworth was sentenced to one year in prison for Theft, a fourth degree felony. Judge Kimbler gave her credit for 92 days served prior to the imposition of her sentence. Although indicted for both Theft and Receiving Stolen Property she could only be sentenced on one of the two counts because they are allied offenses of similar import. The State of Ohio elected to have Judge Kimbler sentence her on the Theft charge.

Zachary R. Howard, 33, of Water Street in Wadsworth, Ohio was sentenced to one year and six months in prison for two counts of Theft, both fourth degree felonies, and one count of Receiving Stolen Property, a fifth degree felony. Judge Kimbler ordered that he serve one year in prison for the two theft charges and six months for the receiving charge. The sentences for the two theft charges run concurrently but the prison sentence for the receiving charge runs consecutively to the other two sentences. Judge Kimbler also gave him credit for 91 days served in the county jail prior to sentencing.

Jennifer F. Seaton, 26 of Wooster Street in Lodi, Ohio was sentenced to eight months in prison for Theft, a fifth degree felony. Judge Kimbler gave her credit for 61 days served in the county jail prior to sentencing.

Desiree M. O’Neill, 25, of Judita Drive in Brunswick, Ohio was sentenced to non-residential community control sanctions for two counts of Drug Trafficking, both fifth degree felonies. Judge Kimbler put her under the supervision of the Medina County Adult Probation Department for five years; ordered her to do 24 hours of community service; ordered her to get a drug-alcohol assessment at Solutions Behavioral Health Center; she is to have no contact with her co-defendant; submit to all drug and alcohol testing and be arrested on first positive finding; and pay court costs, supervision fees, and drug testing fees as ordered by the Court. In the event she violates the conditions of her supervision, she will be sent to prison for two years.

Alex R. Huffman, 25, of Remsen Road in Medina, Ohio was sentenced to non-residential community control sanctions for one count of Unauthorized Use of a Motor Vehicle, a first degree misdemeanor. The sanctions include supervision by the Medina County Adult Probation Department for two years; 24 hours of community service; obtain drug/alcohol counseling through the Veterans’ Administration and follow all treatment recommendations; no possession or consumption of alcoholic beverages while under supervision; pay restitution of $500.00; pay court costs and a community control sanctions fee; and submit to drug and alcoholic testing. In the event that Mr. Huffman violates these conditions he will serve 180 days in the county jail.

Jeffery L. Wiseman, Jr., 30, of Spyglass Hill Drive in Brunswick, Ohio was sentenced for three counts of Drug Trafficking, all fourth degree felonies. Judge Kimbler sentenced him to non-residential community control sanctions. The sanctions include three years of supervision by the Medina County Adult Probation Department; 180 days of home incarceration; drug/alcohol assessment and treatment at a state certified agency; a one year license suspension; payment of court costs and a community control sanction fee; and weekly attendance at AA/NA meetings. Judge Kimbler ordered that if Mr. Wiseman violates these conditions, he will serve an 18 month prison sentence.

Jesse M. Naumilket, 22, of Station Road in Medina, Ohio was sentenced for one count of Drug Trafficking, a fifth degree felony. Judge Kimbler sentenced him to non-residential community control sanctions. These sanctions included three years supervision by the Medina County Adult Probation Department; 24 hours of community service; a six month license suspension; and payment of court costs and a monthly community control sanctions fee. If Mr. Naumilket doesn't comply with the above conditions, he will serve a six month prison term.

Bobby L. Sallee, 27, of Bank Street in Lodi, Ohio was sentenced to one year in prison for Theft and Forgery, both fifth degree felonies. The prison sentences will be served concurrently. Court costs were waived.

Douglas S. Kirtley, 24, of North Geyers Chapel Road in Smithville, Ohio was sentenced for Drug Possession. He was sentenced to a residential community control sanction of up to six months at the Lorain County Community Based Correctional Facility. When he is released he will be under the supervision of the Medina County Adult Probation Department for a three year period. He was also ordered to do 24 hours of community service; obtain a drug-alcohol assessment and abide by all aftercare recommendations; and a six month license suspension. If he violates the terms of his supervision, he will serve a one year prison sentence. Court costs and community control sanction fees were waived.

Sunday, October 24, 2010

Judge Kimbler's September 2010 Ohio Supreme Court Report

At the beginning of September, 2010, Judge Kimbler had 750 cases pending on his docket. Pending cases in the various categories that are reported on the Ohio Supreme Court monthly report were as follows:

Professional Tort: 5
Product Liability: 1
Other Torts: 92
Workers’ Compensation: 34
Foreclosures: 283
Administrative Appeal: 6
Complex Litigation: 2
Other Civil: 191
Criminal: 136

During the month Judge Kimbler’s docket saw 122 new cases filed. New cases were filed in just four categories. Those categories were as follows:

Other Torts: 13
Foreclosures: 40
Other Civil: 37
Criminal: 32

In September there were 16 cases transferred in, reactivated, or redesignated in three categories. Those categories were as follows:

Foreclosures: 7
Other Civil: 3
Criminal: 6

During September Judge Kimbler closed 147 cases. Closed cases were as follows:

Professional Tort: 1
Other Torts: 10
Workers’ Compensation: 3
Foreclosures: 55
Administrative Appeal: 1
Other Civil: 52
Criminal: 25

As a result of these terminations Judge Kimbler had 741 cases pending on his docket at the end of September.

Saturday, October 23, 2010

Judge Kimbler Probation Violation Hearings for October 21, 2010

Medina County Chief Adult Probation Officer Veronica Perry reports that Judge James Kimbler only had one probation violation hearing on Thursday, October 21, 2010. The probationer was Ashley Isenhart who admitted to the violation. Judge Kimbler ordered her to complete a drug/alcohol assessment; follow all treatment recommendations made the assessing agency; and continue on supervision by the Medina County Adult Probation Department. Court costs were waived.

Wednesday, October 20, 2010

Second Jury Rejects Entrapment Defense

A jury in Judge Kimbler's courtroom today, October 20, 2010, returned a guilty verdict on two counts of Drug Trafficking, both fifth degree felonies, in the case of State of Ohio v. Michael A. Porach, 33, of Manitoulin Pike in Brunswick, Ohio. Mr. Porach had argued to the jury that he was entrapped into committing the two drug trafficking charges. The jury, by returning guilty verdicts, rejected the entrapment defense.

The jury trial, which started on Monday, involved the same confidential informant who testified in another trial in Judge Kimbler's courtroom earlier this year. In both cases the defendants argued that they were entrapped into committing the trafficking offenses. In each case the confidential informant was vigorously cross-examined by defense counsel. In each case, though, there was also corroborating evidence such as audio recordings of the alleged drug transactions. Although he has been a judge for almost 25 years, this is the first year in which Judge Kimbler has given a jury instruction on entrapment.

Following the reading of the verdicts, Judge Kimbler ordered a pre-sentence investigation and continued Mr. Porach's bond. Sentence will be imposed on December 16, 2010 at 8:30 am.

Judge Kimbler's Criminal Docket for October 19, 2010

On Tuesday, October 19, 2010, Judge James Kimbler had four defendants appear in his courtroom and enter changes of pleas in their cases. In all four cases Judge Kimbler continued the bond and ordered a pre-sentence investigation. Judge Kimbler will sentence all four defendants on December 16, 2010. The names of the defendants and their charges are:

Martin Mata, 29, who is a citizen Mexico, entered a plea of no contest and was found guilty of one count of Possession of Drugs, Crack Cocaine, a fourth degree felony. Although bond was continued, Mr. Mata remains in custody since there he couldn't make the bond and there is a "holder" on him from the Bureau of Immigration and Naturalization.

Stacey K. Wilmington, 28, of Springbrook Street in Medina, Ohio, entered a plea of no contest and was found guilty of one count of Theft over $500.00, a fifth degree felony.

Anthony J. Danilo, 27, of Ravine Boulevard in Parma, Ohio, entered a plea of no contest and was found guilty of one count of Possession of Drugs, Heroin, a fifth degree felony.

Candace M. Kane, 24, of Maddock Road in North Ridgeville, Ohio, entered a plea of no contest and was found guilty of one count of Possession of Drugs, Heroin, a fifth degree felony.

Tuesday, October 19, 2010

Judge Kimbler Changes of Plea for Monday, October 18, 2010

Judge James Kimbler took three changes of plea on Monday, October 18, 2010. He took the changes of plea before starting a criminal jury trial. In all three cases Judge Kimbler ordered a presentence investigation and continued the defendant's bond. Judge Kimbler will sentence all three defendants on December 3, 2010 starting at 8:30 am. The defendants who entered the changes of plea are as follows:

Andrea Anderson, 32, of Lancelot Street in Streetsboro entered a plea to a charge of Permitting Drug Abuse, a fifth degree felony. Originally Ms. Anderson had been charged with another fifth degree felony. The State amended the charge and Ms. Anderson entered a guilty plea.

Thomas F. Higgins, III, 26, of Winterberry Lane in Medina, entered a plea of no contest to three counts of Illegal Processing of Drug Documents, and was found guilty of all three charges. All three charges are felonies of the fifth degree.

Lynn M. Grace-Anspach, 24, of North State Street in Medina, Ohio, entered a plea of guilty to an amended charge of Theft, a first degree misdemeanor.

Judge Collier's Criminal Docket for October 18, 2010

Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Collier's court on October 18, 2010:

Rhett Hall, 22, of Virginia Avenue in Elyria, was sentenced to two years of community control sanctions on one count of Carrying a Concealed Weapon, a fourth-degree felony. The weapon was ordered forfeited to law enforcement.

Robert Kirk, 35, of Valley Drive in Medina, was sentenced to 90 days in jail for a probation violation on an original charge of Failure to Comply with a Police Officer, a third-degree felony.

Vaynette McClendon, 47, of Heatherbridge Lane in Blacklick, was sentenced to six months in prison on one count of Possession of Cocaine, a fifth-degree felony.

Tyrell Shepherd, 21, of Albertly Avenue in Parma, was sentenced to 180 days in jail for a probation violation on original charges of Carrying a Concealed Weapon and Receiving Stolen Property, a Firearm, both of which are fourth-degree felonies.

Stephanie Barry, 31, of Pinecrest Drive in Brunswick, pleaded not guilty to one count of Abusing Harmful Intoxicants, a fifth-degree felony. A jury trial is scheduled for December 6.

Vincent Butler, 32, of Invermere Avenue in Garfield Heights, pleaded not guilty to one count of Forgery, a third-degree felony and one count of Theft of a Motor Vehicle, a fourth-degree felony. A jury trial is scheduled for December 6.

Shanita Law, 24, of West Union Street, pleaded no contest to one count of Trafficking in Drugs and one count of Trafficking in Marijuana, both of which are fifth-degree felonies. Sentencing is scheduled for November 29.

Andrew Smith, 31, of 19th Street NW in Barberton, pleaded not guilty to one count of Failure to Comply with a Police Officer, a third-degree felony and one count of Receiving Stolen Property, a Motor Vehicle, a fourth-degree felony. A jury trial is scheduled for January 24.

Carolyn Tino, 46, of West Union Street, pleaded no contest to one count of Trafficking in Marijuana within the Vicinity of a Juvenile, a fourth-degree felony and one count of Trafficking in Marijuana, a fifth-degree felony. Sentencing is scheduled for November 29.

Heather Woutat, 31, of Cole Avenue in Akron, pleaded guilty to one count of Theft, a fifth-degree felony. She was sentenced to three years of community control sanctions.

Judge Kimbler's Probation Violations for October 18, 2010

Medina County Chief Adult Probation Officer Veronica Perry reports that the following probation violations were heard by Judge Kimbler on October 18, 2010. The report is laid out as follows:

First row contains the Case No.
Second row contains the defendant's Name
Third row is the initials of the Probation Officer
Fourth row is the violation PV Hearing Date: 10/18/20010
Fifth row is Judge Kimbler's Disposition:

07CR0592
Brown, William
JA
10/18/2010
PV - Terminated IILOC; PSI ordered - Sent. On 12/3/2010

09CR0198
Johnson, Kevin
CC
10/18/2010
PV - 30 days MCJ w/25 days credit; obtain valid driver's license; obtain GED; make best efforts to obtain employment; must reside with mother in Columbus.

09CR0385
Garrett, Deshine
ML
10/18/2010
PV - Franklin Co. CBCF; Trans. to ISP for minimun of 134 days

07CR0605
McCraney, Deangelo
JA
10/18/2010
PV - Continued to 10/28/2010

07CR0336
Price, Douglas
KT
10/18/2010
PV - Violation dismissed; continue supervision

06CR0573
Alban, David
HS
10/18/2010
PV - Violation dismissed. Probation terminated

09CR0500
Jelenic, Nicholas
ML
10/18/2010
PV - Continued to 10/25/2010

08CR0218
Gray, Joshua
BB
10/18/2010
PV - Violation dismissed. Probation terminated

09CR0127
Lovejoy, Heather
LL
10/18/2010
PV - 6 months county jail w/9 days credit. Probation terminated

08CR0166
Green, Theresa
JA
10/18/2010
PV - Continued – hearing to be set at a later date

08CR0402
Amaya, Vincent
HS
10/18/2010
PV - 6 months MCJ w/66 days credit; costs waived; probation terminated upon completion of jail time.

09CR0391
Isenhart, Ashley
KT
10/18/2010
PV - Continued to 10/21/2010

Thursday, October 14, 2010

Four Defendants Change Plea in Judge Kimbler’s Courtroom on Tuesday, October 12, 2010

Leann N. Gibson, 29, of Cross Creek Boulevard in Brunswick, Ohio entered a change of plea on Tuesday, October 12, 2010 to two criminal charges. She had been indicted for one count of Theft and one count of Forgery, both fifth degree felonies. She entered a no contest plea to both charges and was found guilty. Judge Kimbler ordered a presentence investigation. Sentence will be imposed on November 18, 2010

Delmar R. Bates, 62, of Grafton Road in Brunswick, Ohio entered a change of plea to one count of Theft, a misdemeanor of the first degree on Tuesday, October 12, 2010. Originally Mr. Bates had been indicted for one misdemeanor count and one felony count. The State agreed to drop the felony charge if he entered a guilty plea to the misdemeanor charge. Judge Kimbler ordered a presentence investigation and will impose sentence on November 18, 2010.

Kimberly L. Mance, 40, of Muirland Drive, Broadview Heights, Ohio entered a change of plea to the charge of Drug Trafficking, a fifth degree felony on Tuesday, October 12, 2010. Ms. Mance entered a no contest plea and was found guilty. Judge Kimbler then ordered a presentence investigation and will impose sentence on November 18, 2010.

Gilbert N. Yezbak, Jr., 45, of Norwood Drive in Brookpark, Ohio entered a change of plea to one count of Possession of Drugs, a fifth degree felony. Mr. Yezbak entered a plea of no contest. After finding him guilty, Judge Kimbler ordered a presentence investigation and will impose sentence on November 18, 2010.

Judge Collier's Criminal Docket for October 12, 2010

Medina County Prosecutor Dean Holman reports that the following defendants appeared in Judge Collier's courtroom on October 12, 2010 for criminal cases:

Laura Gandolf, 26, of Hudak Drive in Brunswick, was sentenced to four years of community control sanctions on four counts of Trafficking in Cocaine within the Vicinity of a School or Juvenile, all of which are fourth-degree felonies. She also had her driver’s license was suspended for six months.

Curtis Lehman, 32, of Lorraine Drive in Strongsville, was sentenced to three years of community control sanctions on one count of Trafficking in Marijuana, a fifth-degree felony. He also had his driver’s license suspended for six months.

Carla Rohr, 28, of Old Eagle Drive in Brunswick, was sentenced to five years of community control sanctions on one count of Permitting Drug Abuse, a fifth-degree felony.

Leonard Rohr, 28, of Old Eagle Drive in Brunswick, was sentenced to five years of community control sanctions on two counts of Trafficking in Marijuana within the Vicinity of a School or Juvenile, both of which are fourth-degree felonies. He also had his driver’s license suspended for six months.

Karen Werner, 46, of Beverly Hills Drive in Brunswick, was sentenced to three years of community control sanctions on two counts of Trafficking in Cocaine, both of which are fifth-degree felonies. She also had her driver’s license suspended for six months.

Michael Cook Sr., 45, of Greenwich Road in Seville, pleaded not guilty to one count of Patient Abuse, a fourth-degree felony. A jury trial is scheduled for January 24.

David Fowler, 31, of Medina, pleaded no contest to one count of Failure to Give Notice of Change of Address, a fourth-degree felony and one count of Theft of a Credit Card, a fifth-degree felony. Sentencing is scheduled for November 22.

Thomas Masie, 38, of East Bergey Street in Wadsworth, pleaded not guilty to one count of Domestic Violence, a fourth-degree felony. A jury trial is scheduled for January 24.

Vaynette McClendon, 47, of Heatherbridge Lane in Blacklick, pleaded no contest to one count of Possession of Cocaine, a fifth-degree felony. Sentencing is scheduled for October 18.

Albert Stiver, 36, of Spruce Street in Medina, pleaded guilty to one count of Domestic Violence, a fourth-degree felony. Sentencing is scheduled for October 25.

Wednesday, October 13, 2010

Judge Kimbler Criminal Case Journal Entries October 4-8, 2010

Judge Kimbler has continued the following cases that were set for October 15, 2010 to October 21, 2010 at 8:30 am or as called by the Court:

State v. LePrevost, Case No. 10CR0188
State v. Griffin, Case No. 10CR0156
State v. Ispan, Case No. 10CR0287
State v. Huffman, Case No. 10CR0247
State v. Naumilket, Case No. 10CR0274
State v. Wiseman, Case No. 10CR0204
State v. Wallace, Case No. 10CR0228
State v. Valenti, Case No. 10CR0019
State v. Price, Case No. 07CR0336
State v. Lovejoy, Case No. 09CR0127
State v. Jelenic, IV, Case No. 09CR0500
State v. Huntsman, Case No. 08CR0382
State v. Green, Case No. 08CR0166
State v. Alban, Case No. 06CR0573
State v. Amaya, Case No. 08CR0402
State v. Gray, Case No. 08CR0218

The following jury trials have been continued to the new date set forth below:

State v. Tracy, Case No. 10CR0311, November 22, 2010 at 9:00 am
State v. Watson, Case No. 10CR0222, October 28, 2010 at 9:00 am
State v. Foglesong, Case No. 10CR0316, October 27, 2010 at 9:00 am
State v. Bearden, Case No. 10CR0242, November 8, 2010 at 9:00 am
State v. Akers, Case No. 10CR0347, November 15, 2010 at 9:00 am
State v. Smith, III, Case No. 10CR0345, November 16, 2010 at 9:00 am
State v. Scholz, Case No. 10CR0211, November 30, 2010 at 9:00 am
State v. Thomas, Case No. 08CR0503, November 1, 2010 at 9:00 am
State v. Starecheski, Case No. 10CR0198, October 26, 2010 at 9:00 am

The motions to modify and/or grant bonds have been set for the following dates:

State v. Tracy, Case No. 10CR0311, October 8, 2010 at 10:00 am
State v. Hermansen, Case No. 10CR0412, October 14, 2010 at 1:30 pm
State v. Zappe, Case No. 10CR0480, October 21, 2010 at 1:35 pm

Miscellaneous journal entries:

State v. Sallee, Case No. 10CR0320: Probation violation hearing set for October 15, 2010 is hereby continued until October 21, 2010 at 8:30 am
State v. Akers, Case No. 10CR0347: Defendant granted 14 days to file pretrial motions.
State v. Clegg, Case No. 10CR0408: Hearing set on defendant's motion for disclosure on October 29, 2010 at 9:00 am
State v. Graham, Case No. 10CR0330: Hearing set on defendant's motion to appoint expert on October 21, 2010 at 1:30 pm
State v. McCoy, Case No. 06CR0161: Probation violation hearing set for October 22, 2010 is continued until October 28, 2010 at 1:30 pm
State v. Carson, Case No. 08CR0577: Motion to stay execution of sentence is denied.
State v. Hinz, Case No. 10CR0177: Jury trial scheduled for November 30, 2010 at 9:00 am

Private Property Leased For Profit to School Does Not Qualify for 'Public Schoolhouse' Tax Exemption

Anderson/Maltbie Partnership v. Levin, Slip Opinion No. 2010-Ohio-4904.
Board of Tax Appeals, No. 2007-A-11. Decision reversed.
Brown, C.J., and Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-4904.pdf


(Oct. 12, 2010) In a 7-0 decision announced today, the Supreme Court of Ohio held that the property tax exemption for a “public schoolhouse” set forth in R.C. 5709.07(A)(1) does not apply to property that is leased by its owner to a school for profit. The decision, authored by Justice Judith Ann Lanzinger, reversed a ruling by the State Board of Tax Appeals (BTA).

The case involved a for-profit company, Anderson/Maltbie Partnership (AMP), which leased property from October 1999 through October 2004 to a nonprofit corporation, which used the property to operate a community or charter school called the Cincinnati College Preparatory Academy (CCPA). Under the lease agreement, CCPA paid AMP $275,000 a year for the use of the building.

AMP filed an application with the state tax commissioner seeking a property tax exemption for the 2002 tax year and remission of taxes it had paid for 1999, 2000 and 2001. In its application, AMP asserted that because the property was used by the lessee as a public school facility, it qualified for exemption from property taxes under R.C. 5709.07(A)(1), a provision of state law that grants exemption to “public schoolhouses.” The commissioner denied the requested exemption. AMP appealed the commissioner’s determination to the BTA. On review, the BTA overruled the commissioner and ordered him to approve the requested exemption.

The commissioner exercised his right to appeal the BTA ruling to the Supreme Court.

In today’s decision, Justice Lanzinger rejected the legal reasoning underlying the BTA’s ruling as inconsistent with Supreme Court of Ohio decisions dating back to Gerke v. Purcell (1874).

She wrote: “Gerke holds that the public-schoolhouse exemption does extend to privately owned property, but only when that property is ‘appropriated to the support of education for the benefit of the public without any view to profit,’ an essential element being the ‘exclusion of all idea of private gain or profit.’ … By seeking to exempt a commercial office building that is leased to the school for profit, AMP seeks a broader exemption, an application that we reject.”

“AMP also contends that a commercial lease is irrelevant to the issue of exempt status so long as the lessee uses the property for exempt purposes. … This argument raises two questions. The first is whether ownership and use must coincide for a building to qualify as an exempt public schoolhouse. Gerke answers this question by declaring that the ‘public’ in public schoolhouse ‘is not used in the sense of ownership, but as descriptive of the uses to which the property is devoted.’ … Thus, property ‘appropriated to the support of education for the benefit of the public without any view to profit’ qualifies for exemption, … and that standard contains no requirement that the owner be the entity that operates the school. It follows that a community school that leases its building may still receive the benefit of tax exemption as a public schoolhouse.”

“But property subject to a commercial, for-profit lease is a different matter. Gerke specifically limits the exemption of privately owned property to property that is used ‘without any view to profit.’ The second question raised by AMP’s argument is whose use should be considered, the lessee’s, or both the lessor’s and the lessee’s? AMP relies on Bexley Village, Ltd. v. Limbach (1990) … to maintain that the commissioner and the BTA must focus exclusively on the lessee’s use of the property. … Because Bexley Village addresses the public-college exemption, we regard the case as inapposite. We hold that under the public-schoolhouse exemption, the restriction that the property not be used with a view to profit requires examination of the total use of the property by both lessor and lessee. If the lease is intended to generate profit for the lessor, the property does not qualify for exemption; similarly, the property does not qualify if the lessee’s use is intended to generate profit. It follows that because AMP leases the property to CCPA under a for-profit lease, the public-schoolhouse exemption is not available in the present case.”

“The BTA erred by granting a public-schoolhouse exemption for property owned by a commercial landlord and leased to a community school under a for-profit lease. We therefore reverse the decision of the BTA and reinstate the Tax Commissioner’s denial of the exemption.”

Justice Lanzinger’s opinion was joined by Chief Justice Eric Brown and Justices Paul E. Pfeifer, Maureen O’Connor, Terrence O’Donnell and Robert R. Cupp.

Justice Evelyn Lundberg Stratton entered a separate opinion in which she concurred with the majority in judgment based on established Ohio case law, but expressed concern that the Court’s holding renders operators of many community schools ineligible for property tax exemption while other provisions of state law explicitly prohibit them from using the state funds they receive to operate their schools to pay such taxes.

She wrote: “My concern is that our holding creates a predicament for community schools that lease the property and buildings that they use to operate the schools. Under our holding, lessors who lease property for use as a schoolhouse will fail to qualify for an exemption under R.C. 5709.07(A)(1) when the lessor leases the property with a view to profit. The property-tax obligation is passed on to the community school pursuant to the triple-net lease. However, community schools are prohibited by law from using state funds to pay these taxes. In my opinion, disqualifying property from the schoolhouse exemption when it is used for a public schoolhouse merely because the property’s lessor has a view to profit seems to run contrary to the general intent within R.C. 5709.07, and causes community schools that lease property to face a conundrum as to how they will pay the real estate taxes. Accordingly, although I concur in the holding in this case, I invite the General Assembly to amend R.C. 5709.07(A)(1) if they share my concerns.”

Contacts
Graham A. Bluhm, 419.241.6000, for the Anderson/Maltbie Partnership.

Sophia Hussain, 614.466.5967, for the State Tax Commissioner.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."

Ten Dollar Limit on Skill Game Prizes Does Not Violate Equal Protection Clauses of U.S., Ohio Constitutions

Pickaway Cty. Skilled Gaming, L.L.C. v. Cordray, Slip Opinion No. 2010-Ohio-4908.
Franklin App. No. 08AP-1032, 183 Ohio App.3d 390, 2009-Ohio-3483. Judgment of the court of appeals reversed, and cause remanded to the court of appeals.
Preston, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Pfeifer, Acting C.J., concurs in judgment only.
Vernon L. Preston, J., of the Third Appellate District, sitting for Brown, C.J.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-4908.pdf

(Oct. 12, 2010) The Supreme Court of Ohio held today that a provision of state law placing a $10 value limit on the prizes that may be awarded for one play of a legal skill-based gaming machine is rationally related to legitimate government interests, and does not violate the equal protection clauses of the U.S. and Ohio Constitutions.

The Court’s 7-0 decision, authored by Justice Maureen O’Connor, reversed a ruling of the 10th District Court of Appeals.

In October 2007, the General Assembly adopted changes to R.C. Chapter 2915, the state’s anti-gambling statute. Among those changes was the insertion of new language distinguishing between illegal “schemes of chance” and legal skill-based amusement machines. In addition to other provisions distinguishing between permissible skill-based games and prohibited gambling, the bill limited the value of merchandise prizes or vouchers awarded for a single play of skill-based amusement machines to $10 or less.

Pickaway County Skilled Gaming LLC and Stephen S. Cline own and operate Spinners, an amusement game arcade located in Circleville. Shortly after the amendments to the gambling statute took effect, Spinners filed suit in the Franklin County Court of Common Pleas seeking a declaratory judgment that the prize-limit provision of the amended statute was unconstitutional, and seeking a permanent injunction barring the Ohio Attorney General from enforcing the prize-limit provision. The trial court granted summary judgment in favor of the state, rejecting the constitutional arguments advanced by the arcade owners. The owners appealed the trial court’s decision to the 10th District Court of Appeals.

On review, the 10th District ruled that the prize limit set forth in R.C. 2915.01(AAA)(1) was unconstitutional under the equal protection clauses of the U.S. and Ohio Constitutions. In its opinion, the court of appeals held that the legislative purpose of the statute was to prohibit games of chance while permitting the operation of skill-based amusement machines, and that the distinction between machines that award prizes worth more than $10 and those that do not is not rationally related to the legislature’s goal of distinguishing between illegal chance-based and legal skill-based amusement machines. Having found the prize-limit provision unconstitutional on equal protection grounds, the court of appeals did not address a separate argument advanced by the arcade owners that the challenged provision was void for vagueness. The Supreme Court granted discretionary review of the court of appeals’ equal protection ruling.

In today’s decision, Justice O’Connor wrote: “The fact that one purpose of R.C. 2915.01(AAA) is to define ‘skill-based amusement machines’ for the purpose of identifying what gambling is illegal does not negate the possibility that the prize-value limit set forth in R.C. 2915.01(AAA)(1) may simultaneously serve other valid government interests. Indeed, the attorney general identifies two legitimate government interests that the prize-value limit purportedly serves.”

“First, the attorney general argues that the prize-value limit serves as an economic regulation of skill-based amusement machines. The state plainly has a legitimate interest in regulating its local economies. … The operation of skill-based amusement machines is a valid statewide industry in Ohio, and the state has a legitimate interest in establishing economic regulations for the industry, including regulating the prizes that may be awarded. Second, the attorney general contends that the prize-value limit protects against criminal acts and enterprises by acting as a prophylactic measure against illegal chance-based gambling. Courts have long recognized that state legislatures have a legitimate interest in regulating gambling. … Accordingly, the prize-value limit set forth in R.C. 2915.01(AAA)(1) satisfies the first prong of the rational-basis analysis. It serves two vital and valid government interests: economic regulation and protection against criminal acts and enterprises.”

“ … Therefore, we turn to whether the prize-value limit set forth in R.C. 2915.01(AAA)(1) is rationally related to the legitimate interests that the Attorney General has established in this case. We hold that it is. First, the ten-dollar prize-value limit set forth in R.C. 2915.01(AAA)(1) is a regulation that is part of the state’s scheme to protect its local economies. The statute is calculated to further the state’s interest by eliminating the lure of big prizes and thus minimizing irresponsible play while providing a legal safe harbor for harmless games (e.g., Skee-ball) that award token prizes.”

“ … The prize-value limit is also rationally related to the government’s interest in preventing criminal acts and enterprises by acting as a prophylactic measure against illegal, chance-based gambling. … Motivated by financial gain, operators of illegal chance-based amusement machines can easily alter games of chance to appear to be games of skill. Financial motivation may come from charging more to play illegal games of chance or from individuals who overspend in hopes of winning big prizes. … (T)he ten dollar prize-value limit is designed to eliminate the latter motivation. Furthermore, it stands to reason that players will not pay the same fee to play games that award a ten dollar prize as they would to play games that offer higher value prizes. By limiting the potential prizes awarded by skill-based amusement machines, R.C. 2915.01(AAA)(1) effectively limits the fee that operators can charge to play the games. Thus, the prize-value limit effectively removes the financial incentive for operators to disguise illegal chance-based machines as skill-based games.”

“ … We hold that the prize-value limit set forth in R.C. 2915.01(AAA)(1) is rationally related to legitimate government interests and does not violate the Equal Protection Clauses of the United States and Ohio Constitutions. We therefore reverse the judgment of the Tenth District Court of Appeals to the extent that it held otherwise. Because we hold that R.C. 2915.01(AAA)(1) does not violate the Equal Protection Clauses, PCSG and Cline’s void-for-vagueness argument is no longer moot. Since the court of appeals did not reach the merits of PCSG and Cline’s argument that R.C. 2915.01(AAA) (1) is void for vagueness, we remand the case to the Tenth District for consideration of PCSG and Cline’s first assignment of error.”

Justice O’Connor’s opinion was joined by Justices Evelyn Lundberg Stratton, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp, and by Judge Vernon L. Preston of the 3rd District Court of Appeals, who sat in place of Chief Justice Eric Brown. Justice Paul E. Pfeifer concurred in judgment only.

Contacts
Benjamin C. Mizer, 614.466.8980, for Ohio Attorney General Richard Cordray.

Gail M. Zalimeni, 614.221.3151, for Pickaway County Skilled Gaming LLC.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."

Supreme Court Rules Wrongful Imprisonment Claims May Not Originate in Ohio Court of Claims

Common Pleas Court Must First Find Claimant Was 'Wrongfully Imprisoned'

Griffith v. Cleveland, Slip Opinion No. 2010-Ohio-4905.
Franklin App. No. 08AP-964, 2009-Ohio-2854. Judgment of the court of appeals reversed.
Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-4905.pdf

(Oct. 12, 2010) The Supreme Court of Ohio held today that all wrongful-imprisonment claims brought against the state must follow a two-step process in which the claimant must first bring an action in a court of common pleas to secure a determination that he or she is a wrongfully imprisoned individual entitled to compensation, and then must file a civil action against the state in the Ohio Court of Claims to recover a sum of money.

The Court’s 6-0 decision, authored by Justice Paul E. Pfeifer, reversed a ruling by the 10th District Court of Appeals.

In 2003, the General Assembly amended R.C. 2743.48, the state law that authorizes persons who have been wrongfully imprisoned to recover civil damages from the state under certain circumstances. Among other changes, the 2003 amendment added language to the statute allowing recovery not only by persons who are officially exonerated of guilt for the crimes for which they were imprisoned, but also by persons whose convictions and prison sentences are vacated, dismissed or permanently overturned on appeal because of procedural errors during their trials.

In this case, Gerry Griffith Jr. of Cleveland was charged in federal district court with a firearms offense. Before trial, Griffith moved to suppress all evidence obtained through the search of his home, arguing that the search resulted from an unlawful arrest. The trial court denied the motion to suppress. Griffith was convicted on the firearms charge and sentenced to a prison term.

On review, the U.S. Sixth Circuit Court of Appeals ruled that Griffith’s arrest was unlawful, and the trial court should have suppressed the search results that yielded the evidence on which his conviction was based. On remand to the trial court, the firearms charge was dismissed and Griffith was released from custody.

Griffith filed a claim seeking damages from the state as a “wrongfully imprisoned individual” under R.C. 2743.48. Griffith filed his complaint directly with the Ohio Court of Claims. The state moved to dismiss the complaint, arguing that the Court of Claims did not have jurisdiction to consider a wrongful imprisonment claim until the claimant’s eligibility for damages had been certified by a common pleas court. The Court of Claims granted the motion to dismiss. On review, the 10th District Court of Appeals reversed the Court of Claims’ ruling and ordered it to accept and process Griffith’s complaint. In its opinion, the 10th District held that the 2003 amendments to R.C. 2743.48 did not impose a requirement of a prior common pleas judgment of eligibility for wrongful imprisonment claims that are based on procedural error.

The state sought and was granted Supreme Court review of the 10th District’s decision.

In today’s unanimous decision, Justice Pfeifer wrote: “Griffith argues, and we do not deny, that R.C. 2743.48(A), as amended, does not state that a claim premised on a procedural error must originate in a court of common pleas. It is equally clear, however, that the statute does not explicitly state that such a claim can originate in the Court of Claims. We consider the statute ambiguous as to the sole issue before us. Accordingly, we turn to other considerations to determine the intent of the General Assembly, as permitted by R.C. 1.49.”

“R.C. 1.49(D) permits a court, faced with determining the legislative intent behind an ambiguous statute, to consider ‘[t]he common law or former statutory provisions, including laws upon the same or similar subjects.’ … R.C. 2743.48(A) sets forth five requirements for a determination that a person is a wrongfully imprisoned individual. … Nothing in the statutory scheme states that the Court of Claims has authority to determine that a person is a wrongfully imprisoned individual. … R.C. 2743.48(H) states that to be eligible to recover compensation for wrongful imprisonment, a claimant ‘shall commence a civil action under this section in the court of claims no later than two years after the date of the entry of the determination of a court of common pleas that the individual is a wrongfully imprisoned individual.’ This provision also clearly authorizes a court of common pleas to determine that a person is a wrongfully imprisoned individual and just as clearly does not authorize the Court of Claims to make that determination.”

“Under R.C. 1.49(E), the intent of the legislature in enacting an ambiguous statute may be determined by considering ‘[t]he consequences of a particular construction.’ … If a wrongful-imprisonment case based on procedural error could originate in the Court of Claims, that court would have to rule on the criteria of R.C. 2743.48(A)(1) through (4). These criteria are replete with criminal-law considerations. The Court of Claims is statutorily designed to adjudicate civil claims and does not ordinarily address criminal issues. Further, if actions brought under R.C. 2743.48 could originate in the Court of Claims, attorneys and witnesses from the county of origin would all be required to travel to the Court of Claims in Franklin County. Nothing in the statutory scheme contemplates this waste of time and money.”

“…Based on the foregoing, we are convinced that the holding in Walden v. State … still applies: All wrongful-imprisonment claimants must follow a two-step process. In the first step, the claimant must bring an action in the court of common pleas to secure a determination that he or she is a wrongfully imprisoned individual entitled to compensation. In the second step, the claimant must file a civil action against the state, in the Court of Claims, to recover a sum of money. … We are further persuaded that the General Assembly intended that only courts of common pleas have jurisdiction to determine whether a person has satisfied the five requirements of R.C. 2743.48(A). Accordingly, only courts of common pleas can determine whether a person is a wrongfully imprisoned individual. We reverse the judgment of the court of appeals.”

Justice Pfeifer’s opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp. Chief Justice Eric Brown did not participate in the court’s deliberations or decision in this case.

Contacts
Benjamin C. Mizer, 614.466.8980, for the Ohio Attorney General's Office.

Charles W. Slicer, 937.223.1100, for Gerry Griffith Jr.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."

Tuesday, October 12, 2010

Man Changes Plea on Day of Trial

Brandon S. Myers, 39, had a jury trial scheduled in Judge Kimbler's courtroom on Tuesday, October 12, 2010. Instead of going to trial on a charge of Burglary, a fourth degree felony, Mr. Myers entered a plea of guilty to one count of Aggravated Trespass, a first degree misdemeanor.

Following the change of plea, Judge Kimbler imposed a 180 day jail sentence, but suspended 113 days of the jail sentence; ordered Mr. Myers to pay court costs; and also ordered him to make restitution of $250.00 to his victim, who is a relative. Until he pays the court costs and restitution Mr. Myers will be supervised by the Medina County Adult Probation Department.

Judge Kimbler Sentences Two Defendants Who Assaulted County Inmate to Prison

Judge Kimbler has sentenced James E. Polanski, 27, and Logan P. Clark, 22, both of whom are inmates in the Lorain Correctional Institution to one year in prison for Attempted Aggravated Assault, a fifth degree felony. The victim in the assault was an inmate of the Medina County Jail who was in jail due to being charged with a sex offense. The State of Ohio alleged that both Polanski and Clark were aided in the attempted assault by a Medina County Corrections Officer. The Corrections Officer was also indicted for this offense, and his case is still pending.

Both Polanski and Clark entered guilty pleas to the assault charge. Although both were charged with more serious offenses, the State agreed to amend the charges in exchange for the men telling the County Prosecutor’s Office what they knew about the case. Both men also agreed to testify if the charge against the Corrections Officer goes to trial.

Polanski entered his change of plea on August 16, 2010 and Clark entered his change of plea on October 12, 2010. Judge Kimbler sentenced Polanski on October 7, 2010 and sentenced Clark on October 12, 2010.

Sunday, October 10, 2010

Judge Christopher Collier's Criminal Docket for Monday, October 4, 2010

Medina County Prosecutor Dean Holman reports that the following defendants appeared in Judge Collier's courtroom for criminal cases on Monday, October 4, 2010:

James Brooks, 33, of Chestnut Street in Wadsworth, was sentenced to 14 months in prison on one count of Domestic Violence, a fourth-degree felony.

William Grunder, 46, of James Way in Strongsville, was sentenced to six month of residential community control sanctions on one count of Theft of a License Plate, a fifth-degree felony.

Mitchell Wegner, 24, of North Ridge Street in Monroeville, was sentenced to six months of residential community control sanctions on one count of Possession of Marijuana, a fifth-degree felony. He also was ordered to forfeit $186 and his vehicle to law enforcement.

Edward Adkins, 52, of Medina Street in Lodi, pleaded not guilty to two counts of Driving Under the Influence of Drugs or Alcohol, both of which are fourth-degree felonies. A jury trial is scheduled for January 18.

Ashley Ligas, 21, of Sussex Drive in Clinton, pleaded not guilty to one count of Receiving Stolen Property, a fifth-degree felony. A jury trial is scheduled for January 12.

Benjamin Merold, 27, of Substation Road in Brunswick, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for January 5.

Eric Miller, 28, of West Washington Street in Medina, pleaded no contest to two counts of Trafficking in Marijuana, both of which are fifth-degree felonies. Sentencing is scheduled for November 15.

Robin Moore, 38, of Whitehall Drive in Berea, pleaded not guilty to one count of Theft of Credit Cards, a fifth-degree felony. A jury trial is scheduled for January 5.

Michael Reese, 35, of Mansfield, pleaded guilty to the following charges: one count of Rape and one count of Kidnapping, both of which are first-degree felonies; and one count of Gross Sexual Imposition, a third-degree felony. He was sentenced to three years in prison, to be served consecutively to his current sentence. Reese will be released from prison in 2017. He also was classified as a Tier III Sex Offender.

Alexander Tomovich, 36, of West 130th Street in Brunswick, pleaded not guilty to two counts of Breaking and Entering, both of which are fifth-degree felonies. A jury trial is scheduled for January 18.

Friday, October 08, 2010

When Does a Document Speak for Itself?

By Judge James L. Kimbler
Medina County Common Pleas Court

A phrase that attorneys, and judges for that matter, sometimes use during trial is that a document “speaks for itself.” It is usually said when a witness is trying to explain the wording of a document or what a document means. When such an explanation is attempted, the opposing party will often object and say “Your Honor, the document speaks for itself.” After making that objection, the attorney will give the court and opposing counsel a satisfied smile as if to say, “Well, that settles that issue.”

But does it? When an attorney objects on the grounds that a document speaks for itself the objecting attorney is not making any objection recognized by the Ohio Rules of Evidence. If you look at Evidence Rules contained in Article X, titled “Contents of Writings, Recordings, and Photographs” you won’t see any rule listed that says that a document speaks for itself. Evidence Rule 1002 does require that to prove the contents of a document the original is required, but that is not the same thing as saying that the contents cannot be attacked or explained.

What the objecting attorney is really saying is one of two things:
(1)That an explanation of the document is not permitted or;
(2)That the document itself is completely self-explanatory.

If the basis of the objection is that an explanation of the document is not legally permitted, then what the attorney is saying is that such an explanation is irrelevant. In such a case, the proper objection is one based on Evidence Rule 402. If the basis of the objection is that further testimony about the document would be a waste of time, then the proper objection is one based on Evidence Rule 403.

An example of the first situation would be a contract case where there is a written contract and the terms are unambiguous. In such a situation, an attorney making the claim that a document speaks for itself is correct in the sense that evidence contradicting or explaining the contract, if made prior to or contemporaneous with the contract’s execution is not legally permitted under the parol evidence rule.

An example of the second situation might be where an attorney wants a witness to read a document to the jury that is going to come in as a exhibit. In such a situation such a reading might very well be permissible, but it could also be time consuming.

Another situation in which it might be claimed that a document “speaks for itself” is a situation where the contents of a document constitute admissible hearsay. In such a situation the trier of fact may accept the contents as true, but is certainly not required to do so, and further explanation or questioning might show why the trier shouldn’t accept the contents as true.

Ohio Rule of Evidence 806 allows impeachment of a hearsay declarant by any means that could be used if the declarant was testifying in person. So, for example, if it could be shown that the maker of the document was incompetent when the writing was made, then that fact should be allowed to be proved. Likewise, if it could be shown that the maker of the writing had a felony conviction that carried the risk of more than one year in prison that fact should also be allowed to be proved.

When the objection or comment is made that a document speaks for itself, the following analysis should be taking place: Why is the document being offered? Are the contents of the document admissible? Even if the contents are admissible, does the other party have a right to challenge the document’s contents? The answers to those three questions will usually determine whether the document does truly “speak for itself”.

Judge Kimbler Probation Violations for October 7, 2010

07CR0592
Brown, William
JA
10/7/2010
PV - Continued until 10/15/10

08CR0301
Lisy, Michael
BB
10/7/2010
PV - 17 days MCJ w/17 days credit; Assess, w/Ron Blue; ISP; complete Crossroads Program

09CR0198
Johnson, Kevin
CC
10/7/2010
PV - Continued until next week - 10/14/10

09CR0385
Garrett, Deshine
ML
10/7/2010
PV - Continued until 10/15/10

07CR0605
McCraney, Deangelo
JA
10/7/2010
PV - Continued until 10/15/10

08CR0534
Patman, Marsha
BB
10/7/2010
PV - 7 days MCJ w/7 days credit; pay restitution of $17.70; costs and supervision fees waived; terminate upon payment of restitution

09CR0101
Flinn, Zachary
LL
10/7/2010
PV - 1 yr. Prison w/credit for 166 days to run c/c/w case 08CR0308; costs waived.

08CR0308
Flinn, Zachary
LL
10/7/2010
PV - 1 yr. Prison w/credit for 182 days to run c/c/w case 09CR0101; costs waived.

08CR0325
Lackey, Benjamin
HS
10/7/2010
PV - Continued until 10/21/10

09CR0310
Gorgan, Richard
KT
10/7/2010
PV - 30 days MCJ w/10 days credit; continue on Probation

07CR0336
Prie, Douglas
KT
10/7/2010
PV - Continued until Friday 10/15/10

06CR0573
Alban, David
HS
10/7/2010
PV - Rescheduled for 10/15/10

09CR0206
Dotson, Mark
BB
10/7/2010
PV - PV dismissed; continue on supervision

09CR0407
Finklea, Eric
BB
10/7/2010
PV - PV dismissed; continue on supervision

08CR0256
Finklea, Eric
BB
10/7/2010
PV - PV dismissed; continue on supervision

Judge Kimbler's Criminal Sentences for October 7, 2010

Medina County Prosecutor Dean Holman reports that Judge Kimbler sentenced the following defendants on Thursday, October 7, 2010:

Nichole Fenick, 33, of Valley Drive in Medina, was sentenced to three years of community control sanctions on one count of Illegal Processing of a Drug Document, a fourth-degree felony and five counts of Deception to Obtain Dangerous Drugs, all of which are fifth-degree felonies.

Michael Leskin, 38, of Laurel Road in Brunswick, was sentenced to one year in prison on one count of Theft of a Motor Vehicle, a fourth-degree felony.

Eric D. Brown, 24, of Pearl Street in Youngstown, was sentenced to one year supervision for Carrying a Concealed Weapon, a first degree misdemeanor. Judge Kimbler also ordered to pay a $1000.00 fine and pay court costs. Mr. Brown also agreed to forfeit the firearm involved in the charge.

Thursday, October 07, 2010

Two Defendants Change Pleas in Judge Kimbler's Court

Medina County Prosecutor Dean Holman reports that the following defendants appeared in Judge Kimbler's courtroom on Thursday, October 7, 2010 and entered a change of plea:

Michael Barber, 30, of Biggs Road in Grafton, pleaded guilty to two counts of Burglary, both of which are second-degree felonies and one count of Possession of Criminal Tools, a fifth-degree felony. Sentencing is scheduled for November 18.

Nathan Haynes, 36, of Wakefield Drive in Akron, pleaded no contest to one count of Possession of Cocaine, a fifth-degree felony. Sentencing is scheduled for November 18.

Judge Kimbler Arraignments for October 7, 2010

Medina County Prosecutor Dean Holman reports that the following defendants appeared in Judge Kimbler's courtroom for arraignments on their indictments:

Matthew Arnold, 35, of Beck Street in Wadsworth, pleaded not guilty to two counts of Trafficking in Marijuana within the Vicinity of a Juvenile, both of which are fourth-degree felonies. A jury trial is scheduled for December 6.

Gregory Blackwood, 49, of South Boulevard in Wadsworth, pleaded not guilty to one count of Domestic Violence, a fourth-degree felony. A jury trial is scheduled for December 7.

Mason Chalmers, 23, of Old Post Street in Olmsted Falls, pleaded not guilty to one count of Breaking and Entering and one count of Theft, both of which are fifth-degree felonies. A jury trial is scheduled for November 18.

Elizabeth Harper, 28, of Bank Street in Lodi, pleaded not guilty to one count of Possession of Heroin, a fifth-degree felony. A jury trial is scheduled for December 8.

Scott Wilkes, 38, of Cherry Street in West Salem, pleaded not guilty to one count of Forgery, a fifth-degree felony. A jury trial is scheduled for December 8.

Kerry Williams, 18, of William Drive in Brunswick, pleaded not guilty to one count of Trafficking in Marijuana, a fifth-degree felony. A jury trial is scheduled for November 30.

Jason Zappe, 26, of Elyria Street in Lodi, pleaded not guilty to one count of Possession of Heroin, a fifth-degree felony. A jury trial is scheduled for December 7.

Judge Collier's Criminal Docket for October 4, 2010

Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Collier's courtroom on Monday, October 4, 2010:

James Brooks, 33, of Chestnut Street in Wadsworth, was sentenced to 14 months in prison on one count of Domestic Violence, a fourth-degree felony.

William Grunder, 46, of James Way in Strongsville, was sentenced to six month of residential community control sanctions on one count of Theft of a License Plate, a fifth-degree felony.

Mitchell Wegner, 24, of North Ridge Street in Monroeville, was sentenced to six months of residential community control sanctions on one count of Possession of Marijuana, a fifth-degree felony. He also was ordered to forfeit $186 and his vehicle to law enforcement.

Edward Adkins, 52, of Medina Street in Lodi, pleaded not guilty to two counts of Driving Under the Influence of Drugs or Alcohol, both of which are fourth-degree felonies. A jury trial is scheduled for January 18.

Ashley Ligas, 21, of Sussex Drive in Clinton, pleaded not guilty to one count of Receiving Stolen Property, a fifth-degree felony. A jury trial is scheduled for January 12.

Benjamin Merold, 27, of Substation Road in Brunswick, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for January 5.

Eric Miller, 28, of West Washington Street in Medina, pleaded no contest to two counts of Trafficking in Marijuana, both of which are fifth-degree felonies. Sentencing is scheduled for November 15.

Robin Moore, 38, of Whitehall Drive in Berea, pleaded not guilty to one count of Theft of Credit Cards, a fifth-degree felony. A jury trial is scheduled for January 5.

Michael Reese, 35, of Mansfield, pleaded guilty to the following charges: one count of Rape and one count of Kidnapping, both of which are first-degree felonies; and one count of Gross Sexual Imposition, a third-degree felony. He was sentenced to three years in prison, to be served consecutively to his current sentence. Reese will be released from prison in 2017. He also was classified as a Tier III Sex Offender.

Alexander Tomovich, 36, of West 130th Street in Brunswick, pleaded not guilty to two counts of Breaking and Entering, both of which are fifth-degree felonies. A jury trial is scheduled for January 18.

Wednesday, October 06, 2010

Four Defendants Change Pleas in Judge Kimbler's Court

On Monday, October 4 through Wednesday, October 6, 2010, four defendants entered changes of plea in Judge Kimbler's courtroom. They are as follows:

Scott A. Shamp, 44, of Township Road 466 in Lakeville, Ohio, entered a plea of guilty to one count of Non-Support of Dependents, a fifth degree felony. Judge Kimbler took the change of plea and ordered a pre-sentence investigation. Judge Kimbler will impose sentence on November 12, 2010 at 8:30 am. Judge Kimbler continued Mr. Shamp's bond.

Jaclyn K. Gibbons, 20, of State Road in Parma, entered a plea of no contest to two counts of Drug Trafficking, both fifth degree felonies. Judge Kimbler ordered a pre-sentence investigation. Sentence will be imposed on November 18, 2010 at 8:30 am. Bond was continued.

Lukas D. Caraballo, 24, of Center Road in Brunswick, Ohio, entered a plea of no contest to one count of Trafficking in Drugs, a fourth degree felony. Judge Kimbler ordered a pre-sentence investigation and will impose sentence on November 12, 2010 at 8:30 am. Bond was continued.

Gary J. Spry, 20, of Fifth Street in Akron, Ohio, entered a plea of no contest to one count of Drug Trafficking, a fourth degree felony. Judge Kimbler ordered a pre-sentence investigation and continued his bond. Sentence will be imposed on November 12, 2010 at 8:30 am.

Tuesday, October 05, 2010

Law Talk with Court of Appeals Judge Eve Belfance

Attorney John C. Celebrezze, host of the community access television show Law Talk, recently had Ninth District Court of Appeals Judge Eve Belfance as a guest on his show. The Ninth District Court of Appeals has jurisdiction over Lorain, Medina, Summit and Wayne Counties. It has five judges. Click on the arrows below to watch John's interview with Judge Belfance.

Judge Eve Belfance, Part One



Judge Eve Belfance, Part Two

State Must Prove That Presence of Alternate Juror During Deliberations Did Not Prejudice Defendant

When Defendant Enters Objection, Seeks New Trial

State v. Downour, Slip Opinion No. 2010-Ohio-4503.
Lucas App. No. L-08-1029, 182 Ohio App.3d 12, 2009-Ohio-1812. Judgment of the court of appeals reversed, and cause remanded to the trial court.
Pfeifer, Lundberg Stratton, O'Connor, Lanzinger, and Cupp, JJ., concur.
O'Donnell, J., concurs in judgment only.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-4503.pdf

(Sept. 29, 2010) The Supreme Court of Ohio ruled 6-0 today that, when a trial court permits an alternate juror to be present during deliberations by seated jury members over the objection of the defendant, the jury returns a verdict adverse to the defendant, and the defendant moves for a new trial based on the presence of the alternate juror, the state bears the burden of proving that the presence of the alternate juror during deliberations did not result in prejudice to the defendant.

Applying that analysis to a Lucas County case, the Court reversed a decision of the 6th District Court of Appeals and ordered that a defendant found guilty of DUI receive a new trial based on the state’s failure to show that the presence of an alternate juror during the seated jurors’ deliberations was not prejudicial to the defendant. The decision was authored by Justice Paul E. Pfeifer.

James Downour of Toledo was charged with a misdemeanor count of driving under the influence of alcohol (DUI). His case was tried to a jury in the Oregon Municipal Court. In its instructions to the jury, the court directed an alternate juror to accompany the seated jurors to the jury room and be present during their deliberations. Downour’s attorney entered an immediate objection to the instruction allowing the alternate to be present in the jury room, but that objection was overruled. With the alternate present, the jury deliberated and returned a guilty verdict. Downour moved for a new trial on the basis that the presence of the alternate juror during deliberations was contrary to law and the state’s rules of criminal procedure. The trial judge denied the motion for a new trial.

Downour appealed. On review, the 6th District Court of Appeals affirmed the judgment of the trial court, finding that although the trial court erred in allowing the alternate to be present during the jury’s deliberations, the error was harmless. Downour sought and was granted Supreme Court review of the 6th District’s ruling.

In today’s decision, Justice Pfeifer wrote: “This court has consistently stated that allowing alternate jurors to be present during jury deliberations is error. In State v. Murphy (2001) … we stated that ‘it is generally regarded as erroneous to permit alternates to sit in on jury deliberations.’ In State v. Jackson (2001) … we stated that ‘[t]he trial court clearly erred … in allowing the alternate jurors to remain present during deliberations.’ In Murphy and Jackson, the defendants did not object to the presence of the alternate juror, and this court analyzed the error under a plain-error standard that does not presume prejudice.”

“In (State v.) Gross (2002), the defendant objected to the presence of the alternate jurors during jury deliberations. … We stated that because the defendant ‘objected to the presence of the alternates in jury deliberations, the burden shifted to the state to demonstrate an absence of prejudice.’ … We also stated that ‘reversible error occurs where, over objection, an alternate juror participates in jury deliberations resulting in an outcome adverse to a defendant and either (1) the state has not shown the error to be harmless, or (2) the trial court has not cured the error.’ … Because the first sentence in Gross refers to an alternate juror's ‘presence’ during jury deliberations and the second sentence refers to an alternate juror’s ‘participation,’ we now clarify that it is the presence of the alternate jurors that shifts the burden to the state to show that any error is harmless. As we discussed in Gross, ‘[T]he United States Supreme Court has explained that “[i]n theory, the presence of alternate jurors during jury deliberations might prejudice a defendant in two different ways: either because the alternates actually participated in the deliberations, verbally or through ‘body language’; or because the alternate’s presence exerted a ‘chilling’ effect on the regular jurors.’”

“We conclude that the trial court erred in allowing an alternate juror to be present during jury deliberations. We also conclude that because Downour ‘objected to the presence of the alternates in jury deliberations, the burden shifted to the state to demonstrate an absence of prejudice.’ … Nothing in the record indicates that the state established the absence of prejudice. We conclude, therefore, that the court of appeals erred when it affirmed the decision of the trial court. Because the state has the burden to show that the presence of an alternate juror in the room during jury deliberations has not prejudiced a defendant, we reverse the judgment of the court of appeals, and we remand for a new trial.”

Justice Pfeifer’s opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor, Judith Ann Lanzinger and Robert R. Cupp. Justice Terrence O’Donnell concurred in judgment only. Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.

Contacts
Dan Nathan, 419.241.6168, for James Downour.

Tim A. Dugan, 567.249.6427, for the State of Ohio and the City of Oregon.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."

Insurance Company Liquidation Statute Does Not Authorize Interest to Preferred Claimants, Creditors

When Funds Remain After Principal of Company's Debts Has Been Repaid

Hudson v. Petrosurance, Inc., Slip Opinion No. 2010-Ohio-4505.
Franklin App. No. 08AP-1030, 2009-Ohio-4307. Judgment of the court of appeals affirmed, and cause remanded to the trial court.
Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Brown, C.J., concurs separately.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-4505.pdf

(Sept. 29, 2010) The Supreme Court of Ohio held unanimously today that the Ohio statutes governing liquidation of an insolvent insurance company do not authorize the Superintendent of Insurance to pay interest to an insurer’s creditors and other preferred claimants on allowed claims before paying the funds remaining in the estate to the insurer’s shareholders.

In an opinion authored by Justice Terrence O’Donnell, the Court affirmed a decision by the 10th District Court of Appeals, and held that R.C. Chapter 3903 establishes nine prioritized classes of claims that can be filed against an insolvent insurer’s estate by preferred claimants and creditors during the liquidation process, but no provision in the statute expressly authorizes the payment of interest to any claimant.

In 1990, the Franklin County Court of Common Pleas declared the Ohio-based Oil & Gas Insurance Company (OGICO) insolvent and ordered the state’s Superintendent of Insurance to assemble and liquidate the company’s assets and distribute the proceeds according to a schedule of priorities set forth in the statute. The sole shareholder of OGICO was a separate business entity, Petrosurance, Inc.

After extended federal and state proceedings and negotiations with various groups of claimants, the Superintendent paid and obtained releases for all approved claims that had been asserted against OGICO by the first eight classes of claims, and was in possession of approximately $13 million in funds remaining in OGICO’s liquidation estate.

In April 2007, the Superintendent filed a complaint in the Franklin County Court of Common Pleas seeking a declaratory judgment that Petrosurance had no right to the assets remaining in her possession, and that those assets should be distributed as interest on a pro-rata basis to the preferred claimants and other creditors whose claims had been allowed. Petrosurance filed a counterclaim asserting entitlement to the remaining funds as the sole shareholder in OGICO, and therefore the sole Class Nine claimant under the liquidation statute. The trial court granted summary judgment in favor of the Superintendent, finding that interest could be paid to creditors and preferred claimants on the principal of their claims. Petrosurance appealed. On review, the 10th District Court of Appeals reversed the trial court’s grant of summary judgment in favor of the Superintendent, held that the liquidation scheme set forth in R.C. Chapter 3903 does not authorize the payment of interest to creditors and preferred claimants of an insolvent insurer, and ordered the trial court to undertake new proceedings to determine whether Petrosurance was entitled to recover the funds remaining in the Superintendent’s possession under the provisions of the insurance liquidation statute. The Superintendent sought and was granted Supreme Court review of the 10th District’s ruling.

In today’s decision, Justice O’Donnell wrote: “R.C. 3903.42 establishes nine prioritized classes of claimants and provides that ‘[e]very claim in each class shall be paid in full or adequate funds retained for such payment before the members of the next class may receive any payment.’ … The Liquidation Act is silent as to the payment of interest, but the General Assembly could have expressly provided for payment of interest on claims against an insurer’s estate, if it had chosen to do so. We decline to add words to the statute or interpret the legislative silence as authorization to pay interest, as such a construction would materially affect the priority of payments to claimants as set forth in R.C. 3903.42.”

“In other statutory contexts, the legislature has indicated its intent to authorize payment of interest to claimants with plain, direct, and express language. For example, R.C. 1125.24, the statute establishing the priority of distribution of the assets of an insolvent bank, provides that ‘[i]nterest shall be given the same priority as the claim on which it is based, but no interest shall be paid on any claim until the principal of all claims within the same class has been paid or provided for in full.’ (Emphasis added.) In contrast, the legislative silence in R.C. 3903.42 cannot fairly be read to authorize payment of interest in insurer liquidations. Our role as a court is to apply statutes as written, and we conclude that the General Assembly did not intend to authorize the Superintendent of Insurance, acting as liquidator of an insurance company, to pay interest to creditors and other preferred claimants of an insolvent insurance company before paying remaining funds to company shareholders.”

“(W)e reject the superintendent’s proposition of law that interest should be paid to creditors and other preferred claimants to make them whole before the owners of the company may recover from assets of the liquidation estate. Also, because the plain meaning of the statute directs payment of these remaining funds to shareholders, we decline to follow the practice in other jurisdictions of distributing assets remaining after principal claims have been paid to creditors. … Accordingly, we affirm the judgment of the court of appeals, which reversed the grant of summary judgment to the superintendent and held that R.C. Chapter 3903 does not permit the payment of interest in an insurer liquidation, and that the superintendent erroneously refused to file Petrosurance’s proof of claim. …
We further recognize, as did the appellate court that, the trial court, based on its erroneous conclusion that the superintendent could pay interest to creditors before making any payment to Petrosurance, never considered Petrosurance’s entitlement to the remaining funds held by the superintendent. Accordingly, the matter is remanded to the trial court to permit Petrosurance an opportunity to submit its proof of claim and for the trial court to determine its entitlement to the remaining funds in accordance with R.C. Chapter 3903 and its disposition of this matter in accordance with our opinion.”

Justice O’Donnell’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Maureen O’Connor, Judith Ann Lanzinger and Robert R. Cupp.

Chief Justice Eric Brown entered a concurring opinion stating that in his view “(t)he superintendent has presented an appealing policy argument” that she should be permitted to pay interest on amounts previously paid to creditors and other claimants, when adequate funds remain after satisfaction of their original claims, before distributing any remaining funds to shareholders of the defunct company. He observed that the National Association of Insurance Commissioners, in an amicus brief, had stated that “The Ohio Liquidation statutes are designed and should be implemented to protect the interests of injured claimants over the interests of shareholders and owners whose actions likely caused the insolvency.” Chief Justice Brown concluded, however, that “it is within the province of the legislative branch, rather than the judicial branch, to determine public policy relative to the liquidation of insurance companies.” He therefore wrote separately “to urge the members of the General Assembly to consider amending R.C. Chapter 3903 to expressly authorize the liquidator of an insurance company to pay interest on previously allowed claims, when surplus funds exist, prior to distributing funds to shareholders.”

Contacts
Benjamin C. Mizer, 614.446.8980, for Mary Jo Hudson, Superintendent of Insurance and Liquidator of OGICO.

Peter L. Cassady, 513.621.2100, for Petrosurance, Inc.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."

Judge Kimbler Miscellaneous Journal Entries in Criminal Cases for the Week of September 27, 2010

Judge James L. Kimbler issued the following miscellaneous journal entries in criminal cases during the week of September 27 through October 1, 2010:

State of Ohio v. Jeffrey M. Holcom, Case No. 10-CR-0419: Motion to continue arraignment granted. New arraignment date of September 30, 2010 at 1:30 pm.

State of Ohio v. Kyle R. Robison, Case No. 10-CR-0264: Motion for continuance of jury trial granted. Jury trial is now scheduled for November 15, 2010 at 9:00 am.

State of Ohio v. Schawn P. Schrubb, Case No. 10-CR-0137: Court hereby reschedules the defendant’s sentencing from September 23, 2010 to October 28, 2010 at 8:30 am. Bond is revoked.

State of Ohio v. Jacob Packard, Case No. 10-CR-0160: Hearing on motion to suppress evidence is scheduled for October 15, 2010 at 2:00 pm. Jury trial scheduled for December 1, 2010 at 9:00 am.

State of Ohio v. Carl J. Curry, Case No. 10-CR-0206: Attorney Thomas Kelly is allowed to withdraw as counsel for Mr. Curry. Court appoints Attorney Ed Bowers to represent Mr. Curry. Jury trial is continued until November 9, 2010 at 9:00 am.

State of Ohio v. Lisa M. Elfers, Case No. 10-CR-0350: Jury trial continued until November 1, 2010 at 9:00 am.

State of Ohio v. Jessica L. Graham, Case No. 10-CR-0330: Hearing on motion to suppress evidence set for October 21, 2010 at 1:30 pm.

State of Ohio v. Joseph M. Tracy, Case No. 10-CR-0311: Hearing previously scheduled for September 23, 2010 is hereby continued until October 1, 2010 at 1:30 pm.

State of Ohio v. Douglas S. Kirtley, Case No. 09-CR-0032: Sentencing hearing is hereby continued until October 21, 2010 at 8:30 am.

State of Ohio v. Gregory A. Blackwood, Case No. 10-CR-0455: Arraignment continued until October 7, 2010 at 8:30 am.

State of Ohio v. Perry W. Avery, JR., Case No. 10-CR-0398: Hearing scheduled on motion to suppress evidence for October 8, 2010 at 9:30 am.

State of Ohio v. Ryan A. Walter, Case No. 10-CR-0286: Change of plea hearing continued until September 30, 2010, at 8:30 am.

Judge Kimbler Arraignments for September 30, 2010

The following defendants appeared in Judge Kimbler's court on Thursday, Sepember 30, 2010 for arraignments:

Edward P. Violett, 62, of Paradise Road in Seville, Ohio, entered a plea of not guilty to two counts of Gross Sexual Imposition, both third degree felonies. Judge Kimbler scheduled a trial date of November 22, 2010. A hearing on the defendant's motion to reduce bond is scheduled for October 14, 2010 at 1.30 pm.

Bryan P. Carlton, 25, of Substation Road in Brunswick, Ohio entered a plea of not guilty to two counts of Drug Trafficking. Judge Kimbler scheduled a jury trial date for November 15, 2010 and continued his bond.

David P. Diagle, 35, of Durling Drive in Wadsworth, Ohio entered a plea of not guilty to two counts of Drug Trafficking, one charge being a third degree felony and the other charge being a fourth degree felony. Judge Kimbler scheduled a jury trial for November 22, 2010 and continued his bond.

Kerry L. Williams, 18, of Williams Drive in Brunswick, Ohio, entered a plea of not guilty to one count of Drug Trafficking, a fifth degree felony. Judge Kimbler scheduled a jury trial for November 30, 2010 and continued his bond.

George L. Quinones, 31, of Lafayette Road in Medina, Ohio, entered a plea of not guilty to two counts of Drug Trafficking, both fifth degree felonies. Judge Kimbler scheduled a trial date of November 29, 2010 and continued his bond.

Medina County Adult Probation Department Report for September, 2010

Medina County Chief Adult Probation Officer Veronica Perry reports that the Medina County Common Pleas Judges did the following in September, 2010:

Six defendants were put on Intensive Supervised Probation, four by Judge Kimbler and two by Judge Collier.

Ten defendants were placed on General Supervision by the Probation Department, six by Judge Collier and four by Judge Kimbler.

Judge Kimbler ordered 10 defendants to do community service as part of their non-residential community control sanctions.

Ten defendants were referred to the Department's Bond Reporting Officer, seven by Judge Kimbler and three by Judge Collier.

Judge Kimbler made 26 referrals for pre-sentence investigations and Judge Collier made 16.

Judge Kimbler referred three defendants for Intervention in Lieu of Incarceration Eligibility Reports.

Three referrals were made for reports on whether the defendants can have their criminal records expunged, one by Judge Kimbler and two by Judge Collier.

Judge Kimbler referred one defendant for an evaluation of eligibility for his Mental Health Docket.

Criminal Sentences Imposed by Judge Kimbler on September 30, 2010

Medina Man Sentenced to 90 Days in Jail for Theft

Nicholas R. Dufala, 23, of Hamilton Road in Medina, Ohio, was sentenced by Judge Kimbler on two counts of Theft, both first degree misdemeanors. Judge Kimbler sentenced Mr. Dufala on Thursday, September 30, 2010 to 180 days in jail on each count, but suspended 90 days of the jail sentence. The jail sentences are to be served concurrently. Judge Kimbler also ordered Mr. Dufala to make restitution in the amount of $345.00 within 90 days of being released from jail. Judge Kimbler waived court costs and did not impose a community sanction fee.

Medina Man Sentenced to Prison for Drunk Driving

On Thursday, September 30, 2010, Judge Kimbler sentenced John T. Kaiser, 48, of Nichols Road in Medina, Ohio to a six month prison term for Driving While Under the Influence, a fourth degree felony. Judge Kimbler also suspended his driver’s license for three years and imposed a mandatory fine of $1350.00, but suspended the fine and waived court costs.

Akron Man Sentenced for Drug Trafficking

Deaire D. Ricks, 25, of Peckham Street in Akron, Ohio, was sentenced by Judge Kimbler on Thursday, September 30, 2010, for Trafficking in Drugs, a fifth degree felony. Judge Kimbler imposed residential community control sanctions at the Lorain County Community Based Correctional Facility. Following his release from that institution, Mr. Ricks will be supervised by the Medina County Adult Probation Department for three years, initially under Intensive Supervised Probation. Judge Kimbler suspended his license for six months and waived court costs. In the event he violates his supervision by the Probation Department, Mr. Ricks will be sentenced to one year in prison.

Litchfield Man Sentenced to Prison for Drug Possession

Judge Kimbler sentenced Jacob B. Bartoe, 21, of Spieth Road in Litchfield Township on Thursday, September 30, 2010, to six months in prison for two counts of Drug Possession, each a fifth degree felony. This prison sentence runs concurrent with a sentence imposed by the Cuyahoga County Common Pleas Court. Judge Kimbler also ordered a six month license suspension and waived court costs.

Brunswick Man Sentenced for Drug Trafficking

Thomas R. Traut, 33, of Gaylann Drive in Brunswick, Ohio, was sentenced by Judge Kimbler on Thursday, September 30, 2010 for Drug Trafficking, both fifth degree felonies. The drug listed in both counts is Marijuana. Judge Kimbler imposed non-residential community control sanctions and suspended Mr. Traut’s driver’s license for six months. The community control sanctions consisted of a three year period of supervision by the Probation Department, drug and alcohol assessment by the Probation Department’s in-house counselor, Judge Kimbler also ordered Mr. Traut to pay court costs and imposed a monthly community control sanction fee. If he violates his supervision, he is looking at a six month prison sentence with nine days jail credit.

Akron Woman Sentenced for Lodi Outlet Mall Crimes

Judge Kimbler sentenced Makeda D. Carey, 30, of Danmead Avenue in Akron, Ohio on Thursday, September 30, 2010 for crimes committed at the Lodi Outlet Mall in Harrisville Township in June of 2010. The crimes involved were Receiving Stolen Property and Possession of Criminal Tools, both fifth degree felonies. Although Judge Kimbler had previously sentenced her co-defendant to prison, Judge Kimbler imposed non-residential community control sanctions in Ms. Carey’s case. The difference in the sentences was based on a comparison of the criminal records of Ms. Carey and her co-defendant. If Ms. Carey violates the non-residential community control sanctions, she is looking at a seven month prison sentence. Judge Kimbler also ordered Ms. Carey to pay court costs and a community control sanctions fee.

Sunday, October 03, 2010

Judge Kimbler's Probation Violations for September 30, 2010

Medina County Chief Adult Probation Officer Veronica Perry reports that the following defendants had probation violations heard on Thursday, September 30 by Judge Kimbler:

09CR0192
Harmon, Jeffrey

B. Burcham
9/30/2010
PV - To be assessed for CBCF; to stay in jail; ISP; costs waived
06CR0161
McCoy, Michael

C. Copley
9/30/2010
PV - Denial - Continued to a later date
09CR0310
Gorgan, Richard

K. Turchek
9/30/2010
PV - denies; Continued for 1 week
07CR0604
Bartoe, Jacob

B. Burcham
9/30/2010
PV - 6 months Prison to run c/c/w/Cuyahoga Co. case w/35 days credit; 6 mos OL susp.; CC waived
09CR0584
Peck, Michael

L. Lesko
9/30/2010
PV - 90 days in MCJ w/credit for 445 days; all CC waived Supervision Terminated
09CR0380
Hannahs, Diana

R. Newman
9/30/2010
PV - 1 yr. Prison w/143 days credit to run c/c/w/case 08CR0451; all outstanding CC waived. Prob. Terminated
08CR0451
Hannahs, Diana

R. Newman
9/30/2010
PV - 1yr. Prison w/153 days to run c/c/w/case 09CR0380; a;; outstanding CC waived. Pro. Terminated
08CR0218
Gray, Joshua

B. Burcham
9/30/2010
PV - Continued to 10/15/10 - Def. instructed to call PO on 10/4/10
04CR0606
Storm, James

H. Smith
9/30/2010
PV - 180 days MCJ w/103 days credit; all costs waived; supervision terminated

Editor's Note: The numbers and name that appear in bold type are the case number and defendant's name. The next line contains the probation officer's name. The third line is the date that the alleged violation was heard. The fourth line is the disposition. The initials "cc" is an abbreviation for the words "court costs." The initials "ISP" are an abbreviation for the words "intensive supervised probation." The initials "MCJ" are an abbreviation for the words "Medina County Jail." The initials "PV" are an abbreviation for the words "probation violation."