Medina County Courthouse

Monday, March 24, 2014

Summit County Appellate Decisions for February, 2014

A. L. v. Stephens, 2014-Ohio-677 (Ohio Ct. App., Summit County Feb. 26, 2014) reversed a decision of the Summit County Common Pleas Court because the decision of the magistrate didn't comply with Civ. R. 53. Therefore the civil stalking protection order should not have been issued. 

State v. Brooks, 2014-Ohio-679 affirmed the decision of the trial court since, as Brooks' counsel has argued, there were no appealable issues in the case. The Ninth District conducted its own examination of the record and reached the same conclusion as appellate counsel. 

State v. Davis, 2014-Ohio-687 from Lexis: "HOLDINGS: [1]-Defendant's convictions for aggravated burglary and aggravated robbery were not against the manifest weight of the evidence because any gaps or inconsistencies in the victim's testimony regarding what occurred at his home were not so significant that the jury clearly lost its way when it credited the victim's testimony and convicted defendant." Trial court affirmed. 

State v. Chesrown, 2014-Ohio-680 from Lexis:"HOLDINGS: [1]-Court did not err in failing to hold a hearing prior to denying a petition for post-conviction relief under R.C. 2953.21(E) because petitioner failed to submit evidentiary materials containing sufficient operative facts to demonstrate that he was prejudiced by his trial counsel's alleged ineffectiveness; petitioner simply attached a self-serving affidavit accusing another person of making the videos of the child because "they were of the type that the other person would have produced."" Trial court affirmed. 

State v. Shepherd, 2014-Ohio-686 affirmed the trial court's decision that Mr. Shepherd was not entitled to a hearing on his motion for discharge since he did not provide any authority supporting his arguments. 

Sandor v. Marks, 2014-Ohio-685 affirmed the granting of a motion for summary judgment in favor of an attorney in a legal malpractice case. From Lexis: "HOLDINGS: [1]-A client's legal malpractice claim against an attorney, filed on November 8, 2012, was time-barred by R.C. 2305.11(A) because the attorney established the attorney-client relationship terminated on November 7, 2011, when the attorney sent written notice to the client regarding the termination; the attorney presented a certified mail receipt showing the termination letter was sent on that same day and a time-stamped copy of his notice of withdrawal filed in the underlying action that same day; [2]-Because the trial court did not err in rendering judgment in favor of the attorney on the client's legal malpractice claim, summary judgment was appropriate in favor of the law firm on the client's vicarious liability claim as well."

State v. Hach, 2014-Ohio-682 affirmed the trial court's dismissal of an untimely petition for post-conviction relief.  

State v. Hendricks, 2014-Ohio-683 affirmed the trial court's dismissal of an untimely filed petition for post-conviction relief. 

State v. Lollis, 2014-Ohio-684 from Lexis: "HOLDINGS: [1]-There was sufficient evidence to sustain the aggravated murder conviction under R.C. 2903.01(B) because the text messages provided showed a common plan between defendant and another man to violently rob the victim. The evidence was also sufficient for the jury to reasonably have inferred that defendant had knowledge that the other man would be using a weapon or engaging in violence of a type reasonably likely to produce death, as he instructed the man to "tare em up;" [2]-Although there was no direct evidence that the other man used a gun in the commission of the planned robbery, there existed circumstantial evidence from which a jury could reasonably have inferred that he did so for the firearm specification under R.C. 2941.145(A); [3]-Because aggravated murder was a special felony, defendant was subject to parole, not post-release control on that conviction."

Regions Bank v. Sabatino, 2014-Ohio-580 from Lexis: "HOLDINGS: [1]-The trial court did not err in granting summary judgment to a bank in its suit to recover a debt owed by appellant. That no evidence was presented that the bank ever sent appellant a notice of default was immaterial, because while the parties's agreement required notice of default for suspensions or reductions of credit, it did not require notice of default for termination and acceleration of the obligation." Trial court affirmed. 

State v. Robinson, 2014-Ohio-579 from Lexis: "HOLDINGS: [1]-Given the totality of the circumstances, at the time of the stop, the informant's tip was not sufficiently corroborated to furnish reasonable suspicion that the occupants of the vehicle were committing or about to commit a crime as neither officer was able to verify the significant aspects of the informant's tip that detailed the suspect's future behavior, namely, that the subject, a black male, would go to the restaurant with a white female to complete a drug deal." Trial court reversed. 

Lykes v. Akron Dept. of Public Serv., 2014-Ohio-578 from Lexis:  "HOLDINGS: [1]-The property owner could not argued that his trial counsel was ineffective because he had no right to counsel for purposes of his administrative appeal; [2]-The trial court abused its discretion and acted unreasonably in dismissing the administrative appeal under Civ.R. 41(B)(1) on the basis of his failure to prosecute because it did not consider the unique posture of the administrative appeal before imposing the harshest sanction possible. When he contacted the city after acquiring the property about his options to prevent the demolition of the house he had just purchased, he was advised that his only recourse was to file an administrative appeal, which he did and then sought, albeit clumsily, a stay of the condemnation order and equitable relief from an order which only subsequently implicated his interests after it was issued." Trial court reversed. 

In re T.K., 2014-Ohio-576 from Lexis: "Because the mother not only consented to the award of legal custody to the grandparents, but also specifically waived her right to trial under circumstances where she was represented by counsel, there was nothing in the record to suggest that the mother did not understand the import of her decisions. Thus, the mother could not argue on appeal that the agency failed to make reasonable efforts to eliminate the children’s continued removal from the home under R.C. 2151.419; [2]-In exercising her residual parental privilege to determine the religious affiliation of her child, under R.C. 2151.353(A)(3)(c), the mother could not control the child's every exposure to religion beyond the common understanding of the phrase." Trial court affirmed. 

State v. Litten, 2014-Ohio-577 from Lexis: "HOLDINGS: [1]-Defendant’s convictions for rape and kidnapping, under R.C. 2907.02(A)(2) and R.C. 2905.01(A)(4) were not against the manifest weight of the evidence because the victim, defendant’s 86-year-old grandmother, testified that defendant grabbed her left breast and digitally penetrated her. Although defendant’s daughter did not testify that she heard the victim screaming, defendant’s version of the events also encompassed screaming on the part of the victim; [2]-Pursuant to R.C. 2941.25, the trial court erred by not merging the convictions for rape and kidnapping because the kidnapping was, in fact, incidental to the rape. Defendant’s attack on his grandmother amounted to one continuous course of conduct, he kidnapped her for the sole purpose of raping her, and the kidnapping did not result in an increased risk of harm to the victim, was not prolonged, secretive, or substantial. Judgment affirmed in part, reversed in part, and remanded."

Beasley v. Fischer's Foreign Cars, Inc., 2014-Ohio-678 from Lexis: "HOLDINGS: [1]-A letter written to a magistrate by the owner of a car that objected to the magistrate's calculation of his damages and the date from which interest would accrue with regard to a repair bill refund constituted "written objections" for purposes of Civ.R. 53(D)(3)(b)(i); [2]-The trial court erred in adopting the magistrate's decision on the sole basis that no objections had been filed with regard to the magistrate's decision." Trial court reversed and case remanded. 

Uhl v. McKoski, 2014-Ohio-479 from Lexis: "HOLDINGS: [1]-A decision granting summary judgment in favor of appellees was proper on appellant's claims after she was bitten by a dog, as the trial court did not err in concluding there was no dispute of fact as to whether appellants harbored the dog; in response to summary judgment, appellant did not present evidence that created a material dispute of fact as to whether appellants knew about the dog, there was no evidence that they had been at the premises after the subject property was leased, and there was no evidence that they had seen or were aware of a "Beware of Dog" sign at the premises." Trial court affirmed. 

Tennant v. Gallick, 2014-Ohio-477 from Lexis: "OVERVIEW: HOLDINGS: [1]-Small claims court properly adopted a magistrate's decision to enter a default judgment against an attorney who failed to appear for trial in a small claims action filed by a client, arising from the attorney's failure to timely file an appeal for her son, as agreed, as the fact that the attorney had filed a motion to dismiss did not preclude the default judgment under R.C. 1925.05(A) because no answer was required and the statutory notification indicated that appearance at the hearing was necessary; [2]-Further, as the attorney failed to appear at the small claims trial, he did not present any evidence in support of his objections, such  that his assigned errors lacked merit.OUTCOME: Judgment affirmed."

State v. Culver , 2014-Ohio-681, from Lexis: "HOLDINGS: [1]-Defendant’s convictions for aggravated burglary under R.C. 2911.11(A)(2) and aggravated robbery under R.C. 2911.01(A)(1) were not against the manifest weight of the evidence because the evidence demonstrated that defendant and his brother worked together with the purpose of stealing from the victim through the use of deception. The officer testified that the two witnesses’ statements were consistent with his observations; [2]-Because the trial court did not in reality merge the counts of aggravated burglary and aggravated robbery, but rather effectively ordered them to run concurrently, defendant’s sentence was contrary to law. The second judgment entry of conviction did not indicate which count was merged into the other. OUTCOME: Judgment affirmed in part, reversed in part, and remanded."

Castin, LLC v. First Am. Title Ins. Co., 2014-Ohio-476, from Lexis: "OVERVIEW: HOLDINGS: [1]-A title insurer was not obligated to take any action in regard to a purported defect in a deed because the insured did not suffer loss or damage as a result of a challenge to the title by a third party; rather, all of the damages alleged by the insured arose from its own actions in challenging the title. OUTCOME: Judgment affirmed."

State v. Easley, 2014-Ohio-575, from Lexis: "OVERVIEW: HOLDINGS: [1]-Sufficient evidence supported defendant's conviction for breaking and entering under R.C. 2911.13(A), because he admitted that he was trespassing, copper plumbing was stolen from the house, the back door had been kicked in, and his DNA matched the blood sample found in the kitchen; [2]-The jury concluded that defendant, by force or stealth, unlawfully entered the vacant home with the purpose to commit a theft offense; [3]-Prosecutorial misconduct did not deprive defendant of his right to receive a fair trial; [4]-The prosecutor's comment that no evidence was presented to support defendant's version of the events as described in his opening statement was not improper; [5]-The evidence without the prosecutor's alleged improper rebuttal comment supported defendant's conviction beyond a reasonable doubt. OUTCOME: Judgment affirmed."

State v. Powe, 2014-Ohio-478, affirmed the decision of the trial court denying Powe's motion for merger. Powe argued that he was sentenced for two offenses that were allied offenses of similar import. Powe argued that his sentence was void, but the Court of Appeals has held that failure to merge allied offenses does not result in a void sentence. Further the appellate court held that Powe had waited too long to bring a motion for post-conviction relief. 

State v. Broadt, 2014-Ohio-370, from Lexis: "OVERVIEW: HOLDINGS: [1]-The trial court did not comply with R.C. 2951.041(F) and the requirements of due process when it terminated defendant from the intervention in lieu of conviction progam, as defendant, who had appeared in court for a status call, had no prior notice that she was subject to termination and no opportunity to prepare and present information in her defense. OUTCOME: Reversed and remanded."

State v. Heard, 2014-Ohio-371, affirmed the decision of the trial court denying Heard's motion to withdraw his guilty plea. 

State v. Shover, 2014-Ohio-373, from Lexis: " OVERVIEW: HOLDINGS: [1]-Assuming without deciding, that the Second Amendment extended outside the home, and specifically to motor vehicles, the trial properly concluded that intermediate scrutiny applied to R.C. 2923.16(B), improperly handling a firearm in a motor vehicle, because it acted as a regulation to preserve the safety of Ohio drivers and the State's law enforcement personnel; [2]-The trial court properly reinstated defendant’s conviction for improperly handling firearms in a motor vehicle on remand, after determining that R.C. 2923.16(B) was constitutional; [3]-The trial court failed to comply with the community service notifications in R.C. 2947.23 when it imposed costs at the sentencing hearing; [4]-The trial court erred by failing to consider defendant’s ability to pay under R.C. 2929.19(B) before imposing a $500 fine. OUTCOME: Judgment affirmed in part, reversed in part, and remanded."

State v. South, 2014-Ohio-374, from Lexis:  "OVERVIEW: HOLDINGS: [1]-Defendant failed to show that his counsel was ineffective for failing to file a motion to suppress because the officer testified that the.087 result he received when he performed defendant’s blood alcohol concentration test was an accurate result and that the BAC Datamaster was regularly calibrated for accuracy. The issue regarding exactly when defendant had consumed alcohol (i.e., whether he drank it before or after the crash) was simply a matter of credibility for the trier of fact to determine; [2]-The five-year sentence on his underlying operating a vehicle while under the influence of alcohol (OVI) conviction was contrary to law. Because the current version of R.C. 2929.14 was applicable, defendant’s third-degree OVI felony under R.C. 4511.19(A) was subject to a maximum of 36 months in prison, pursuant to R.C. 2929.14(A)(3)(b). OUTCOME: Judgment affirmed in part, reversed in part, and remanded for resentencing on his OVI conviction."

State v. Wallace, 2014-Ohio-375, from Lexis: "OVERVIEW: HOLDINGS: [1]-The trial court did not err by granting defendant's motion to suppress evidence of marijuana seized by a police officer from the pocket of the sweatshirt that he was wearing at the park, because the State failed to prove that the warrantless search fell under one of the well-delineated exceptions to the warrant requirement of the Fourth Amendment, U.S. Const. amend. IV. 
OUTCOME: Judgment affirmed."

State v. Wilson, 2014-Ohio-376, from Lexis: "OVERVIEW: HOLDINGS: [1]-The trial court did not abuse its discretion in denying defendant’s motion for an identification expert because the motion failed to satisfy his burden of a "particularized showing" that there was a reasonable probability that such an expert would aid in his defense and that he would be denied a fair trial if his request was denied; [2]-The trial court did not abuse its discretion when it found that the recorded jailhouse statements were relevant and admissible because the statements, wherein defendant expressed displeasure about the police stating that there were two victims, indicated he knew that only one person was hit by bullets; [3]-The record was devoid of any evidence that the trial court considered the issue of whether felonious assault and having a weapon while under a disability were allied and of similar import under R.C. 2941.25 prior to imposing sentence.OUTCOME: Judgment affirmed in part, reversed in part, and remanded for a merger determination."

Wuscher v. Wuscher, 2014-Ohio-377, from Lexis: "OVERVIEW: HOLDINGS: [1]-A trial court abused its discretion when considering a wife's motion to modify spousal support because the court refused to consider sources for the husband's income outside of his base salary, which was $ 275,000 in 2012 with a total income of $ 573,600; the parties' financial agreement, incorporated into the divorce decree, indicated their clear intent for the court to address substantial changes in the parties' income not contemplated at the time of the decree; [2]-The court abused its discretion by refusing to modify the husband's child support obligation because the court mistakenly believed the parties agreed to never calculate the child support obligation on income above $ 150,000, and, after failing to properly consider the parties' incomes, the court did not employ the requisite child support computation worksheet, R.C. 3119.022. OUTCOME: Judgment reversed and cause remanded."

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