Ninth District Opinions for July 29 and July 31, 2013

The Court of Appeals for the Ninth Appellate District released four opinions during the week of July 29. One opinion was released on July 29 and three opinions were released on July 31. My summaries of the opinions appeal below. 

Opinions Released on July 31, 2013 

 State v. El-Jones, 2013-Ohio-3349 affirmed a decision of the Summit County Common Pleas Court denying El-Jones's petition for post-conviction relief. El-Jones argued on appeal that the trial court should have given him a hearing on his petition.

El-Jones argued on appeal that the trial court should have given him a hearing because he had submitted an affidavit from a friend that established the existence of an alibi defense. The alibi defense was not raised by El-Jones's counsel during the trial. The Court of Appeals reviewed the findings of fact made by the trial court and concluded that the trial court acted correctly in not granting El-Jones a hearing. 

Maxim Ents., Inc. v. Haley, 2013-Ohio-3348 reversed a decision from the Summit County Common Pleas Court granting a Civ. R. 60 motion to a third party defendant. The trial court had vacated a default judgment against the third party defendant. Haley, who was the plaintiff in the third party litigation, appealed. The Court of Appeals found that the trial court's order granting the motion to vacate the order should be reversed. 

The trial court had found that the third party defendant was a "non-entity" and therefore couldn't be sued. If it was a non-entity, then the trial court had the right to vacate the judgment without considering the three prong test set forth in GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976). The record, however, also contained a reference to the third party defendant as having "appeared". If it had "appeared" then it couldn't be a non-entity and the trial court would have to apply the three prong test set forth in GTE Automatic Elec., Inc. Since the Court of Appeals found that it wasn't able to determine the basis for the trial court's ruling it remanded the case to the trial court with an order that the trial court clarify its reasoning. 

State v. Conley, 2013-Ohio-3347 reversed Conley's conviction for disorderly conduct in the Barberton Municipal Court. The case started out as an assault case but the trial court found him guilty of disorderly conduct. The Court of Appeals found that disorderly conduct is not a lesser included offense of assault and reversed his conviction. 

Opinion Released on July 29, 2013

State v. Johnson, 2013-Ohio-3306 reversed a decision of the Medina County Common Pleas Court imposing consecutive sentences for two counts of felonious assault. The Court of Appeals found that the trial court made a erroneous factual finding when it imposed the consecutive sentences and remanded for further proceedings. Since it remanded the case on the basis of the erroneous factual findings, it did not address the issue of whether the two offenses were allied offenses of similar import. 

Ninth District Opinions Released on July 22 and 24, 2013

Last week the Court of Appeals for the Ninth Appellate District released 10 opinions for decisions from all four counties that comprise its jurisdiction. My summaries of the opinions are listed below:

Opinions Released on July 24, 2013

BAC Home Loan Serv. v. McFerren, 2013-Ohio-3228 was a decision reversing a Summit County Common Pleas Court decision that granted a foreclosure to Bank of America. The decision was based on the Ohio Supreme Court case of Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017. The Court of Appeals determined that Bank of America had not shown that it had standing to bring the foreclosure action. The case was remanded back to the trial court for further proceedings. 

In the opinion the Ninth District makes clear that the Bank had to show that it had possession of the note when it filed the foreclosure action as opposed to just showing that the note had been assigned to the Bank prior to filing the foreclosure action. This analysis was based on Ninth District opinions released prior to the Schwartzwald decision. 

Hoyle v. DTJ Ents., Inc., 2013-Ohio-3223 was a decision reversing a summary judgment that was granted to the Cincinnati Insurance Company by the Summit County Common Pleas Court. The issue on appeal was whether the insurance company had an obligation to provide a defense to two defendants who were sued as a result of a workplace injury by an employee of one of the defendants. The insurance company argued that it did not have to provide such a defense because the policy in question did not provide coverage for "intentional acts." 

The Court of Appeals reversed on the reasoning that while acts with a deliberate intent to injured were excluded from coverage, the policy specifically provided coverage for the following: "...an “intentional act,” which it defines as one where the insured (1) knows of the existence of a dangerous condition within its business operation, (2) knows that if an employee is 
subjected to the dangerous condition, then harm to the employee will be a “substantial certainty,” and (3) requires “the ‘employee’ to continue to perform the dangerous task.” The appellate court could not conclude that an act which met the three conditions above would also be an act with a deliberate intent to injure. Therefore summary judgment was not appropriate and the trial court was reversed. 

Saxon Mtge. Servs., Inc. v. Whitely, 2013-Ohio-3221 was a decision affirming a denial of a motion to vacate a judgment by the Summit County Common Pleas Court. The reason why the Court of Appeals affirmed the trial court was the proceeds of the foreclosure sale had been disbursed and therefore there was no controversy before the appellate court. The opinion contains a very interesting discussion on the doctrine of mootness at paragraphs numbers 6 through ten. 

State v. Ross, 2013-Ohio-3220  was a decision both affirming in part and reversing in part a criminal conviction by the Summit County Common Pleas Court. Ross set forth three assignments of error in his appeal.

The first assignment was that the trial court had not adequately informed him of the rights he was giving up by entering a plea of guilty. The appellate court reviewed the language used by the trial court and found that although the colloquy didn't quote the language of Crim. R. 11 verbatim, it was sufficient to satisfy the requirements of that Rule, especially considering that Ross also signed a written plea waiver form. 

The second assignment of error was that the trial court should have held a hearing on his motion to withdraw his plea. At the change of plea hearing the State was recommending a six month prison sentence on both counts to run concurrently. The trial court expressed reservations about imposing the jointly recommended sentences. At the time of the sentence the trial court imposed two sentences of 11 months to run consecutively. (It should be noted that Ross failed to appear at the first scheduled sentencing hearing.) 

The Court of Appeals held that the trial court should have held a hearing since (1) the trial court had equivocated on following the recommendations of the State and (2) because Ross maintained he was not guilty of one of the offenses. 

State v. Johnson, 2013-Ohio-3218  affirmed Johnson's conviction by the Summit County Common Pleas Court on one count of cocaine trafficking. Johnson argued on appeal that his conviction was based on insufficient evidence and that the jury verdict was against the manifest weight of the evidence. Both arguments were rejected by the Court of Appeals. 

JPMorgan Chase Bank v. Byrd, 2013-Ohio-3217 affirmed a decision of the Summit County Common Pleas Court granting a foreclosure to J.P. Morgan. The homeowners argued that the evidence offered by the Bank to obtain a summary judgment wasn't sufficient. In particular they argued that the bank officer who signed the affidavit wasn't identified in the interrogatories they had sent to the bank and that the officer didn't have personal knowledge of the matters attested to in his affidavit. Both arguments were rejected. 

Opinions Released on July 22, 2013


State v. New, 2013-Ohio-3193 reversed a decision by the Lorain County Common Pleas Court on an appeal filed by the State of Ohio. The trial court had found that the State had not justified a 35 year delay in bringing a murder charge against New for the death of a woman he was dating. The appeal involved the issue of pre-indictment delay and New's right to a speedy trial. On an appeal involving pre-indictment delay the appellate court defers to the trial court on issues of fact but reviews the case de novo on the application of the law to the facts. Under that standard the Court of Appeals found that the delay was justified, reversed the decision, and remanded for further proceedings. 

State v. Martinez, 2013-Ohio-3189 affirmed Martinez's conviction by the Wayne County Municipal Court for domestic violence. Martinez appealed arguing that his conviction was against the manifest weight of the evidence. The Court of Appeals affirmed the conviction. 

Kostyo v. Kaminski, 2013-Ohio-3188 affirmed in part and reversed in part the decision of the Lorain County Common Pleas Court granting a summary judgment to Kaminski. The case involved the transfer of money from Mrs. Kostyo to an account controlled by her sister, Kaminski, and a mutual brother of the two women. When the brother died, Kaminski was the sole owner of the account. The litigation started when Kostyo was alive, but when she died, the litigation was continued by her son who was the estate administrator. 

Kostyo appealed arguing that the trial court should have denied Kaminski's motion for summary judgment and should have awarded him summary judgment instead. The Court of Appeals affirmed the trial court's denial of Kostyo's motion for summary judgment. It reversed the trial court's finding that Kaminksi was entitled to summary judgment on the issues of unjust enrichment and conversion. The case was then remanded to the trial court for further proceedings. 

State v. Bellomy, 2013-Ohio-3187 affirmed Bellomy's conviction by the Medina County Common Pleas Court for violating a civil protection order, which is a fifth degree felony since Bellomy had been convicted of a previous violation. Bellomy appealed citing four assignments of error. He argued that the trial court erred by not giving a mistake of fact instruction; that it erred by not answering a jury request for a definition of negligence; that it erred by not granting a Crim. R. 29 motion; and that it erred by not granting Bellomy the proper jail time credit. 

The Court of Appeals found that Bellomy had not preserved the argument that there should have been a mistake of fact instruction because the record didn't contain a copy of his proposed instruction. It found that when his trial counsel agreed with the trial court's decision not to instruct on negligence he waived all but plain error with respect to that assignment and that plain error didn't apply. It found that the trial court properly overruled his Crim. R. 29 motion, and it found that his assignment regarding jail time credit was moot. 

Ninth District Opinions Released on June 24, 2013

The Court of Appeals for the Ninth Appellate District released three opinions on June 24, 2013. Two were from Medina County and one was from Lorain County. 

The case from the Lorain County Common Pleas Court  was State v. Malone, 2013-Ohio-2605, a criminal case in which the Court of Appeals affirmed the trial court's judgment. Mr. Malone cited two assignments of error. The first was that the trial court erred in not allowing him to withdraw his guilty plea. The second was that his counsel was ineffective in not advising him of the strength of the State's case and in not conducting a proper pre-trial investigation. The Court overruled both assignments of error. Judge Carr concurred in the judgment of the Court only since she would have affirmed on the basis of res judicata. She wrote in her concurring opinion that Mr. Malone could have raised these issues on a direct appeal and that since he didn't, he couldn't raise them on this appeal from the trial court's denial of his motion to withdraw his plea. 

The two Medina County cases were both criminal cases out of the Medina County Court of Common Pleas. In one case the appellate court affirmed the trial court and in the other case the court reversed and remanded. 

The case in which the trial court was affirmed was State v. Sebestyen, 2013-Ohio-2606. Mr. Sebestyen appealed from the trial court's decision overruling his motion to withdraw his guilty plea. The Court of Appeals affirmed the trial court's decision under the doctrine of res judicata. The Court noted that Mr. Sebestyen could have raised the issues on a direct appeal. The Court further noted that the fact that Mr. Sebestyen didn't file a direct appeal doesn't stop the doctrine from being applied to his appeal from the decision regarding his motion to withdraw his plea. 

The case in which the trial court was overruled was State v. Labriola, 2013-Ohio-2604. Labriola was convicted after a jury trial of complicity to commit arson. Mr. Labriola raised two assignments of error. The first was that his conviction was not based on sufficient evidence. The Court of Appeals rejected this argument. The second assignment of error was that the assistant prosecutor's comments during closing argument were an impermissible comments on Labriola's credibility and the credibility of other witnesses. The Court of Appeals accepted this assignment of error and reversed his conviction. The case was remanded back to the Common Pleas Court for a new trial. 

Video Review of Ohio's Criminal Rule 29

Below is the link to a short video clip, about 4:30, reviewing Ohio's Criminal Rule 29, which allows for a defendant to make a motion for a directed verdict of acquittal: 

Ninth District Opinions Released on June 10, 2013

The Court of Appeals for the Ninth Appellate District released eight opinions on June 10, 2013. Below are short summaries of the opinions. 

Vestige, Ltd. v. Mills, 2013-Ohio-2379 reversed a decision of the Medina County Common Pleas Court granting a directed verdict to the plaintiff on the defendant's counterclaim. The defendant had retained the plaintiff to perform a forensic examination of the computer belonging to the client of the defendant. The client was charged with possessing pornography involving minors on this computer. The plaintiff is a firm that offers computer forensic services. The defendant's client got convicted. The defendant believed that the plaintiff had breached its contract with the defendant by not providing its services in a competent and professional manner. 

During the presentation of the counterclaim the defendant did not call an expert witness. This led to the trial court granting the plaintiff's motion for a directed verdict. The appellate court reversed the trial court on the grounds that the allegations being made by the defendant could be understood by a lay jury and no expert witness was needed. 

Stanfield v. United States Steel Corp., 2013-Ohio-2378 reversed a decision from the Lorain County Common Pleas Court granting a motion for summary judgment filed by the defendant. The case involved whether the plaintiff was discharged for filing a workers' compensation claim. The Court of Appeals found that there were issues of material fact about whether the firing of the plaintiff was in retaliation for filing a workers' compensation and whether the employer's conduct was extreme and outrageous. The appellate court reversed and remanded for further proceedings. 

Rodriguez v. S. Star Corp., 2013-Ohio-2377 affirmed a decision of the Medina County Common Pleas Court overruling a decision of the Unemployment Compensation Review Commission that denied unemployment benefits to the plaintiff. The plaintiff was an employee of the defendant who was assigned to work with a crew chief that had repeatedly used racial slurs around the plaintiff. The plaintiff asked to be reassigned to other crews, but the supervisor refused even though he had honored such requests in the past. The plaintiff then quit. The UCRC found that he had quit without just cause. The trial court reversed that decision and the Court of Appeals affirmed the trial court. 

State v. Smetana, 2013-Ohio-2376 affirmed a decision of the Lorain County Common Pleas court that convicted the defendant of one count of sexual battery and one count of sexual imposition. The defendant appealed arguing that the trial judge had been biased against him, that his conviction was based on insufficient evidence, and that it was also against the manifest weight of the evidence. The Court of Appeals rejected all three assignments of error. 

State v. Jones, 2013-Ohio-2375 reversed a decision of the Lorain County Common Pleas Court that suppressed evidence seized as the result of a traffic stop. The trial court held that the officer did not have probable cause to make a warrantless search of the trunk of the defendant's car following the stop. The State argued that the search was justified on the basis of the automobile exception to the warrant requirement. The Ohio Highway Patrol trooper who stopped the vehicle smelled an odor of marijuana. He found marijuana "shake" in the passenger compartment of the car, but believed that the shake was not the source of the odor. He searched the trunk and found more drugs, including marijuana and heroin. By a 2 to 1 vote the Court of Appeals upheld the search. The decision contains an interesting dissent by Judge Belfance in which she reviews the history of the automobile exception to the Fourth Amendment. 

Wells Fargo Bank N.A. v. Horn, 2013-Ohio-2374 reversed of decision of the Lorain County Common Pleas Court that granted a summary judgment to Wells Fargo in a foreclosure action. The appellate court reversed and remanded with directions to dismiss the case without prejudice. The dismissal order was based on the recent Ohio Supreme Court case of Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, ¶ 40.

Committe v. Rudolchick, 2013-Ohio-2373 reversed a decision granting a motion for summary judgment to a defendant in a negligent entrustment lawsuit. The Court of Appeals reversed because the documents cited in support of the motion were not evidentiary material required by Civ. R. 56. The Court pointed out that in the Ninth District a trial court may rely on documents that are not evidence as that term is used in Civ. R. 56. Here, though, the plaintiff objected to such documents and the trial court should not have considered them. Without the contested documents, the defendant did not establish that there was no issue of material fact. 

Artim v. Lorain Cty. Bd. of Dev. Disabilities, 2013-Ohio-2372 both reversed and affirmed a decision of the Lorain County Common Pleas Court that had granted motions for summary judgment filed by the Disabilities Board and an employee of the Board. The lawsuit involved injuries received by a child of the plaintiffs' while she was undergoing therapy at a facility run by the Board. The appellate court found that the trial court properly granted summary judgment to the Board on the basis of sovereign immunity but that it erred when it granted summary judgment to the employee. The appellate court wrote that there was a material issue of fact as to whether the employee's acts were wanton and malicious. Judge Carr dissented because she found that the employee as well as the Board should have had their motions for summary judgment granted.  

Ninth District Opinions for May 20, 2013

The Court of Appeals for the Ninth Appellate District released the following opinions on May 20, 2013:

State v. Taylor, 2013-Ohio-2035 reversed a decision from the Oberlin Municipal Court that found lack of physical control to be a lesser included of driving while under the influence. The appellate court found that a person can commit the offense of driving while under the influence in violation of R.C. 4511.19 without being in a motor vehicle, but could not commit the offense of lack of physical control in violation of R.C. 4511.194 unless they were in a motor vehicle. Therefore an R.C. 4511.194 offense is not a lesser included of a R.C. 4511.19 offense. 

Kick v. Smithville W. Care Ctr., 2013-Ohio-2034 reversed a decision from the Wayne County Court of Common Pleas that had enforced an arbitration agreement between a nursing home and one of its patients. The trial court had also stayed proceedings. The reason for the reversal and remand was because the trial court had not considered issues raised by the estate of the patient. These issues included whether an arbitration agreement between the nursing home and the patient terminated on the parient's death and whether the arbitration agreement bound the patient's personal representative in a wrongful death case. The trial court was instructed to consider the issues raised by the appellant. 

Hadcock Properties, Inc. v. Mesar, 2013-Ohio-2033 reversed and remanded a decision from the Medina County Common Pleas Court that had held that attorney fees shouldn't be awarded pursuant to a lease. The lease had been drafted by Hadcock Properties. The lease was for five years, but wasn't acknowledged by the lessee. 

The trial court found that the equitable doctrine of partial performance took the lease out of the Statute of Conveyances, but that since the doctrine of part performance is a equitable doctrine and since the landlord had drafted the lease, it wasn't equitable to enforce the clause regarding payment of attorney fees. 

The Court of Appeals disagreed. It held that once the doctrine of part performance was applied, the whole lease was valid and the trial court should have enforced the attorney fees provision. The case was remanded with instructions to award attorney fees as claimed by the landlord. 

Ninth District Appellate Opinions from Medina & Lorain Counties Released on 4/17-4/24/2013

The Court of Appeals for the Ninth Appellate District released 11 opinions from April 17 through April 24, 2013. One decision was for a Medina County appeal; three were for Lorain County appeals; and seven were for Summit County appeals. 

The Medina County decision was released on April 17, 2013. The case citation is Lexington Ridge Homeowners' Assn. v. Schlueter, 2013-Ohio-1601.  The  appeal involved a sale of a condominium unit by a home-owners' association and a mortgage that was held by Chase Home Finance LLC and Chase Bank USA, N.A. (Chase). The Association brought the foreclosure action to collect past due fees. The Association gave notice to Chase of the foreclosure since the judicial title report listed Chase as having a mortgage on the property. Chase did not make an appearance in the action. The Common Pleas Court signed a default judgment entry declaring that Chase had no interest in the property. Prior to the judgment entry being filed the case had been pending for almost two years. 

The decree of foreclosure was issued on July 7, 2010. On July 12, 2010, Chase filed a motion for leave to file an answer instanter. The Common Pleas Court denied that motion. Chase then filed an appeal to the Ninth Appellate District. Chase presented two assignments of error. 

The first assignment of error was that the decree of foreclosure exceeded the relief that was sought in the complaint and therefore failed to comply with Civ. R. 54(C). The second assignment of error was that the decree of foreclosure and judgment entry was against the manifest weight of the evidence. The Court of Appeals rejected both assignments of error and affirmed the trial court's judgment. 

The three Lorain County decisions were all issued on April 22, 2013. The decisions are as follows:

Spradlin v. Elyria, 2013-Ohio-1602 reversed a decision of the Lorain County Court of Common Pleas grating a Civ. R. 12 (B) (6) motion to dismiss for failure to state a claim. The case involved the death of a young boy who fell from steps overlooking a waterfall in a park in Elyria. Elyria filed the motion alleging that it was immune from liability because it was a governmental entity performing a governmental function. 

The Court of Appeals noted that in deciding a Civ. R. 12(B)(6) motion, a trial court has to assume that all of the factual allegations in the complaint are true. The Court of Appeals stated that the trial court apparently considered matters outside of the pleadings. Since this is not permitted, unless the trial court converts the motion to dismiss into a motion for summary judgment, the appellate court reversed and remanded the case for further proceedings. 

In re Adoption of A.H., 2013-Ohio-1600 affirmed a decision of the Lorain County Probate Court allowing the adoption of a child by the child's paternal grandparents. The paternal grandparents had raised the child since the child was less than a year old. R.C. 3107.07(A) provides that a parent’s consent to adoption is not required if it is alleged in the adoption petition and the court finds by clear and convincing evidence that: "the parent has failed without justifiable cause to provide more than de minimis contact with the minor or to provide for the maintenance and support of the minor as required by law or judicial decree for a period of at least one year immediately preceding either the filing of the adoption petition or the placement of the minor 
in the home of the petitioner."

Because R.C. 3107.07(A) is written in the disjunctive, either a failure to 
communicate or a failure to provide support for the one-year time period is sufficient to obviate the need for a parent’s consent. In this particular case the Probate Court made the finding that the mother, who was objecting to the adoption, had failed to provide more than de minimis contact. The mother argued on appeal that the appellate court should apply an abuse of discretion standard of review. The appellate court rejected that argument and held that in order to reverse the Probate Court's decision, the Court of Appeals would have to find that the Probate Court decision was against the manifest weight of the evidence. The Court of Appeals held that it could not make such a finding and affirmed the decision. 

BankUnited v. Klug, 2013-Ohio-1599 was an appeal by a bank from a decree of foreclosure that held that a woman's dower interest was one-third of the value of the property and that it was superior to the bank's mortgage. The Court of Appeals reversed on the first assignment of error and concluded that its decision on the first assignment of error meant that the second assignment of error was not ripe for adjudication. 

In its assignment of error the bank argued that application of the principles of equitable mortgage and equitable subrogation required the trial court to find that the bank's lien was superior to any dower interest. The Court of Appeals, however, found that the bank failed to show that there was an an absence of a factual issue, and  therefore the trial court was right to deny its motion for summary judgment. 

The Court of Appeals, however, then reviewed the trial court's granting of the woman's motion for summary judgment, It held that granting that motion was improper for the reason that she too had not shown an absent of a factual issue. Therefore the case was remanded back to the trial court for further proceedings. 

Medina County Prison Report for 2009

According to the Medina County Clerk of Courts Criminal Division, in 2009 Judge Christopher Collier and Judge James Kimbler of the Medina County Common Pleas Court sent 447 defendants to prison. Of these defendants 33 were re-sentenced to prison because of a Ohio Supreme Court decision.

Judge Kimbler's Court Schedule for March 31 through April 6, 2010

Click here to view Judge Kimbler's court schedule for Wednesday, March 31, through Tuesday, April 6, 2010. Please note that the court schedule is subject to change.

Medina County Foreclosures Near 1200 in 2009

Policy Matters Ohio, which is an organization that researches state government released a report showing that the number of foreclosure actions increased in 2009 over 2008 in most Ohio counties, including Medina County. In Medina County in 2009 there were 1155 foreclosure cases filed as compared to 961 in 2008. By way of comparison, in 1997 there were only 206 foreclosure actions filed.

The graph for Medina County that is on the Policy Matters Ohio website can be viewed below. To see an interaction map of Ohio which allows you to see a similar graph for all of Ohio's counties, click here.

Cases Filed in the Medina County Common Pleas Court, General Division, in December of 2009

Material is not available.

Ninth District Court of Appeals Decision Limits Use of Pre-Trial Motions to Suppress

On December 31, 2009, the Ninth District Court of Appeals on an appeal from a Medina County conviction, released the decision of State v. Patterson, 2009-Ohio-6953 which raised the issue of whether a conviction that was resulted from a plea where the defendant was not informed of post-release control could be used to enhance an offense. The defendant Patterson was convicted of a felony DUI in 1998. In 2008 he was again indicted for a felony DUI. (Once you have had a felony DUI then any subsequent DUI is a felony regardless of when it occurs.)

He filed a pre-trial motion to suppress challenging the 1998 conviction on the grounds that he wasn't advised of post-release control before entering his plea. The trial court denied his motion concluding that his prior conviction was not void. He then entered a plea of no-contest and appealed his conviction.

In a 2-1 opinion, the Ninth District Court of Appeals held that he hadn't preserved the issue for appeal and therefore didn't address the merits of his appeal. The third judge concurred in the judgment only. She agreed with the result, but believed that the Court should have addressed the merits of the appeal.

The opinion contains the following language in paragraphs 8 and 9:

"{8} A defendant may use a motion to suppress to challenge a prior DUI conviction if the basis for the challenge is that the prior conviction was uncounseled. State v. McCallum, 9th Dist. No. 08CA0037-M, 2009-Ohio-1424, at 12-16. An argument that a conviction was uncounseled amounts to a Sixth Amendment challenge, an appropriate basis for a motion to suppress. See Hilliard, 77 Ohio St.3d at 158. Yet, Patterson sought to challenge his prior DUI conviction through a motion to suppress on the basis that it was void for lack of a post-release control notification. “A defendant does not have a constitutional right to be advised of postrelease control[.]” State v. Souris, 9th Dist. No. 24550, 2009-Ohio-3562, at 5. As such, an improper post-release control notification does not amount to a constitutional violation that could be addressed through a motion to suppress. Hilliard, 77 Ohio St.3d at 158.

{9} Recently, this Court addressed the issue of whether a defendant could rely upon any pretrial motion to preserve a non-constitutional challenge to a prior conviction that, if proven, would serve as the basis for enhancing the degree of the defendant’s current conviction. See State v. Echard, 9th Dist. No. 24643, 2009-Ohio-6616. In Echard, a defendant sought to challenge a prior domestic violence conviction, the existence of which would elevate his current offense to a third-degree felony. Echard filed a motion in limine to challenge the existence of his prior conviction and entered a no contest plea after the trial court denied his motion. In considering Echard’s appeal, we noted that pretrial motions only properly address issues that are “capable of determination without the trial of the general issue.” Id. at 6, quoting Crim.R. 12(C). We concluded that, when a prior conviction is an essential element of an offense that the State must prove at trial, a challenge to the sufficiency of that prior conviction is an issue that is not “capable of determination without the trial of the general issue.” Echard at 7. Accordingly, we held that a defendant cannot preserve such a challenge for appeal simply by raising it in a pretrial motion. Id."

Under the concurring judge's analysis, the motion to suppress was a proper pre-trial motion under Crim. R. 12. Further, she agreed with Patterson's argument that a conviction that resulted in a prison sentence that was based on a plea where there wasn't sufficient notice of post-release control was defective. In Patterson's case, however, the 1998 conviction hadn't resulted in the application of community control sanctions and not in a prison sentence. Therefore, under her analysis, the 1998 conviction wasn't void

The Court's holding leaves open the question of whether Patterson could have challenged the prior conviction at trial and, if so, how would he have done so? Would the fact that Patterson hadn't received sufficient notice of post-release control have been a fact issue or a legal issue? That is, would the evidence about the change of plea in 1998 been considered by the jury in weighing the evidence of the conviction or would it be an issue for the trial court to consider before allowing the evidence of the prior conviction to be given to the jury?

Since there are five judges on the Ninth District Court of Appeals and since only three were involved in Patterson decision, it is possible that another panel would reach a somewhat different result. That is, a different panel might have found that the 1998 conviction could have been challenged in a pre-trial motion to suppress and then have addressed the merits of the appeal.

Attorneys who do criminal cases in the Ninth District Court of Appeals' jurisdiction might want to watch for future cases on this issue.

Judge Collier's Criminal Docket for December 14, 2009

Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Collier's court on December 14, 2009:

Kennedy Donald, 48, of Bronson Street in Medina, was sentenced to six months in prison on one count of Possession of Cocaine, a fifth-degree felony.

Adam Howell, 33, of Byers View Drive in Wadsworth, pleaded not guilty to one count of Trafficking in Drugs, a fourth-degree felony. A jury trial is scheduled for January 27.

Kim McNutt, 46, of Lafayette Road in Medina, pleaded guilty to one count of Theft from the Elderly, a fourth-degree felony. She was sentenced to six months in prison and ordered to pay $1,344.85 in restitution.

Thomas Stevenson, 34, of Lisa Court in Lodi, pleaded not guilty to one count of Burglary, a second-degree felony. A jury trial is scheduled for February 16.

Robert Suchan, 52, of Tollis Parkway in Broadview Heights, pleaded no contest to one count of Theft of a Motor Vehicle, a fourth-degree felony, and one count of Vandalism, a fifth-degree felony. Sentencing is scheduled for January 25.

Carlos Tripp, 34, of Harding Street in Medina, pleaded guilty to one count of Trafficking in Drugs, a fifth-degree felony. He was sentenced to nine months in prison.

Proposed Local Rules for Medina County Common Pleas-General Division

Medina County Court of Common Pleas

Rules of the General Division

Effective January 1, 2009Civil Rules

Rule 1 Hours of Session
Rule 2 Assignment of Cases
Rule 3 Leave to Plead
Rule 4 Case Management Conferences
Rule 5 Motions
Rule 6 Motions for Summary Judgment
Rule 7 Motions for Default Judgment
Rule 8 Motions to Continue
Rule 9 Discovery
Rule 10 Dismissals of Actions and Claims
Rule 11 Journal and Judgment Entries
Rule 12 Foreclosures
Rule 13 Bankruptcy
Rule 14 Mediation
Rule 15 Jury Management
Rule 16 Clerk of Courts
Rule 17 Privacy Rights
Criminal Rules
Rule 1 General
Rule 2 Motions
Rule 3 Criminal Pretrials
Rule 4 Intervention in Lieu of Conviction
Rule 5 Adult Probation Department
Rule 6 Assignment and Compensation of Appoint Counsel
Rule 7 Investigators and Experts

RULE 1 Hours of Session

Unless otherwise ordered by the Trial Judge, court shall be in session from 8:00 a.m. to 4:30 p.m. Monday through Friday except for those days designated as legal holidays.

RULE 2 Assignment of Cases

All cases filed in the General Division with the Clerk of Courts shall be assigned to the docket of a specific Judge by lot as required by the Rules of Superintendence for the Courts of Ohio. Counsel, or parties if unrepresented, shall submit all motions and proposed entries only to the Judge or Magistrate assigned to the case unless the Judge to whom the case is assigned has authorized another Judge or Magistrate to act in his or her absence.

RULE 3 Leave to Plead

A party is permitted one automatic leave to plead, not to exceed twenty-eight (28) days, in which to plead to a complaint, counterclaim, cross-claim or third party complaint by filing with the Clerk of Courts a notice of such leave. The notice shall state that no prior extension of time has been granted and must be filed prior to the expiration of the time originally prescribed in the Civil Rules. If an additional extension of time is requested, the party requesting the extension must file a motion.

A party seeking leave to respond to any other pleading, request or motion must do so by written motion. The movant shall prepare a proposed journal entry granting the motion for leave and submit it to the court along with the motion.


RULE 4 Case Management Conferences

The Court may conduct a case management conference for the purpose of scheduling definite trial and/or mediation dates. Pretrial statements are not required. The Court may fix deadlines for completion of discovery, set time limitations for filing dispositive motions, and establish trial procedures. The Court may decide any motions pending in the case at the time of the case management conference. Parties and party representatives need not be present for the case management conference.
In the event an attorney or party fails to appear at a case management conference or other hearing, the Court shall have the authority:

1. To dismiss a claim or motion for want of prosecution on motion of the opposing party.
2. To order sanctions as provided by the Rules of Civil Procedure.
3. To allow parties who are present to proceed with the case ex parte and to decide all matters pending before the Court.
4. To make such orders as the Court may deem appropriate.

RULE 5 Motions

(A) Briefs
Unless otherwise ordered by the Court, motions shall be decided without an oral hearing. All motions shall be accompanied by a memorandum stating the grounds for the motion and citing the authorities relied upon. A supporting or opposing memorandum, including administrative appeals, shall not exceed fifteen (15) pages exclusive of any supporting documents.

(B) Non-oral Hearings
In the event a motion is scheduled for a non-oral hearing, written notice of the hearing date will be sent by ordinary mail to the parties or their counsel. The Court will not consider any responses to a motion unless it is filed prior to the non-oral hearing date. No appearance is necessary for a non-oral hearing.

(C) Oral Hearings
In the event the assigned Judge or Magistrate schedules a motion for an oral hearing, notice shall be sent by ordinary mail or, if an expedited hearing is necessary, notice may be communicated by telephone. Attendance is required. Any written memorandum relating to a motion scheduled for oral hearing must be filed one (1) day prior to the hearing.

(D) Contempt
Post- judgment motions for contempt must be served pursuant to Civ. R. 4 through Civ. R. 4.6.

(E) Copies
Copies of motions filed with the Clerk of Courts need not be delivered to the assigned judge.

(F) Proposed Journal Entries
The movant shall prepare a proposed journal entry granting the motion and submit it to the court along with the motion.


RULE 6 Motions for Summary Judgment

Unless otherwise ordered by the Court, motions for summary judgment will be decided without an oral hearing. A non-oral hearing will be scheduled no sooner than fourteen (14) days after the motion has been filed with the Court.

Unless the Court directs otherwise, any response in opposition may be filed any time prior to the day of the scheduled hearing. Any response not filed prior to the day of the non-oral hearing will not be considered.

Original evidentiary materials as permitted by Civil Rule 56(C) shall be filed with the Clerk of Courts with the original motion. A copy of the motion need not be delivered directly to the assigned Judge.

RULE 7 Motions for Default Judgment

A party seeking default judgment pursuant to Civil Rule 55 shall include with the motion an affidavit of an individual with personal knowledge containing sufficient facts to support the claim. The Court in its discretion may set any motion for default judgment for an evidentiary hearing. A copy of the motion need not be delivered directly to the assigned Judge. The movant shall prepare a proposed journal entry granting the motion for default and submit it to the court along with the motion.

RULE 8 Motions to Continue

(A) Content of Motion
No party shall be granted a continuance of a trial or hearing without a written motion stating the reason for the continuance and whether opposing counsel objects or consents to the continuance. The motion shall contain the written consent of the moving party, except that this requirement may be waived for good cause, provided the motion states the reason why the attorney has been unable to obtain the written consent of the movant. The Court will not consider any motion for continuance due to a conflict of assignment dates unless a copy of the conflicting assignment is attached to the motion.

(B) Journal Entries
The movant shall prepare a proposed journal entry granting the motion continuance and submit it to the court along with the motion. The number of previous continuances granted, the party requesting said continuances, and a space for the new case management conference, trial or hearing date shall be included in the journal entry. Bottom of FormThe new date shall first be obtained from the Court and confirmed with opposing counsel.

RULE 9 Discovery

Counsel shall make a timely and good faith effort to confer and agree to schedules for depositions. Counsel may not schedule a deposition without first consulting with opposing counsel for a mutually agreed-upon date, time and place. Unless otherwise permitted by the Court or agreed to by the parties, depositions must take place in Medina County.

Within such time as not to delay the trial, a party may obtain one automatic leave to respond to discovery, not to exceed twenty-eight (28) days, by filing a notice of such leave. The notice shall indicate that no prior extension of time for discovery has been granted and must be filed prior to the expiration of the time originally proscribed. If any additional extension of time is requested, the party requesting the extension must apply to the Court by written motion.

Counsel shall make every effort to resolve discovery disputes by agreement prior to filing motions with the Court.

RULE 10 Dismissals of Actions and Claims

(A) Dismissal before trial
If a case has settled prior to trial, counsel shall immediately notify the Court and file a stipulation of dismissal or other appropriate entry within thirty (30) days of the date the Court was notified. Failure to do so may result in dismissal of the action or claim after notice to the parties.

(B) Pending cross-claims
Upon the dismissal of any complaint, any pending cross-claims are deemed automatically dismissed without prejudice, unless the cross-claimant files a notice of intent to proceed on the cross-claim within thirty (30) days of the filing of the notice of dismissal.

(C) Failure to Proceed with Trial
If a party seeking affirmative relief fails to appear or is not ready to proceed with trial, the Court may in its discretion dismiss the claim for want of prosecution. In the event Defendant is unprepared to proceed, the Court may proceed with the case.

(D) Costs
Upon voluntary dismissal of any action or claim, court costs associated with that claim shall be assessed to the dismissing parties unless otherwise ordered by the Court.

RULE 11 Journal and Judgment Entries

Unless otherwise directed by the Court, counsel for the party in whose favor a decision or judgment is rendered shall prepare an entry and submit it to opposing counsel within five days of the conclusion of the trial or hearing. Counsel for the adverse party shall approve or reject the entry within three days after receipt. In the event of rejection, the opposing party shall file with the Court a written statement of his objections to the proposed judgment entry.

All entries shall state the claim or motion which is being disposed by the entry, and shall indicate whether it is a final entry. If the entry does not dispose of all claims, it shall specify what claims remain pending. Pursuant to Civil Rule 58, all final entries shall contain instructions to the Clerk of Courts directing her to serve upon all parties not in default for failure to appear notice of the judgment and its date of entry upon the journal.

RULE 12 Foreclosures

(A) Judicial Reports
­ In actions to quiet title, partition and for foreclosure of liens on real property, Plaintiff shall file with the Clerk of Courts a preliminary judicial report within fourteen (14) days after filing the complaint. The preliminary judicial report shall provide evidence of the state of the title to the property in question covering the chain of title for at least forty (40) years and must show all liens and encumbrances on the property, as may appear of record. Where the evidence of title indicates that necessary parties have not been joined in the action, Plaintiff shall cause all necessary parties to be joined and served in accordance with the Rules of Civil Procedure.

Upon failure of Plaintiff to file the preliminary judicial report within fourteen (14) days after the complaint has been filed, any interested party may file such evidence of title within the next fourteen (14) days. The cost of the judicial report shall be taxed as costs.

The preliminary judicial report shall be effective within thirty (30) days prior to the filing of the complaint or other pleading requesting a judicial sale and shall include at least all of the following:

(1) A legal description of each parcel of real estate to be sold at the judicial sale;
(2) The street address of the real estate or, if there is no street address, the name of the street or road upon which the real estate fronts together with the names of the streets or roads immediately to the north and south or east and west of the real estate;
(3) The County Treasurer's permanent parcel number or other tax identification number of the real estate;
(4) The name of the owners of record of the real estate to be sold;
(5) A reference to the volume and page or instrument number of the recording by which the owners acquired title to the real estate;
(6) A description of the record title to the real estate; however, easements, restrictions, setback lines, declarations, conditions, covenants, reservations, and rights-of-way that were filed for record prior to the lien being foreclosed are not required to be included;
(7) The name and address of each lienholder and the name and address of each lienholder's attorney, if any, as shown on the recorded lien of the lienholder.

Failure to file the judicial reports as required by this rule shall be grounds for dismissal of the complaint or other claim seeking foreclosure.

Upon filing a motion for default judgment or motion for summary judgment in a foreclosure case, the movant shall submit a proposed decree of foreclosure. The movant shall also file a final judicial report showing the record state of title from the effective date of the preliminary judicial report to the date of lis pendens.

(B) Medina County Treasurer in Foreclosure Cases
In foreclosure cases, the Medina County Treasurer shall be named as a party defendant, and shall not be served with the complaint unless the lien of the Medina County Treasurer for taxes is being challenged, either as to its amount, or as to priority as first and best lien. If there is a challenge to the amount or priority of the Treasurer’s lien(s), it must be plead in the complaint and the complaint must be served on the Treasurer.

The Medina County Treasurer need not be served with any answer or other pleadings unless the party filing the pleading intends to challenge the taxes claimed by the Treasurer on the tax records, either as to amount, validity, or as to priority as first and best lien. If there is a challenge to the amount or priority of the Treasurer’s lien(s) in any cross-claim or counterclaim, it must be served on the Treasurer.

At least seven (7) days prior to submitting the proposed decree of foreclosure and the journal entry for confirmation of sale to the assigned judge, the entries shall be provided to the Medina County Prosecutor’s Office for approval.

(C) Approval of Legal Description
Prior to filing with the Clerk of Courts, the legal description set forth in the decree of foreclosure and the judgment entry for confirmation of sale must be approved as accurate by the Tax Map Office of Medina County. The legal description may be mailed to the Tax Map Office at the Medina County Administration Building, Room 119, 144 North Broadway, Medina, Ohio 44256 or faxed to 330-764-8797 for approval.

If the legal description and other information set forth in the decree of foreclosure and judgment entry for confirmation of sale are accurate, the Tax Map Office shall affix a written notation on the entry that the legal description has been reviewed and is correct. In the event the Tax Map Office requires that a legal description be redefined before approving same, any expense incurred to obtain the updated legal description shall be taxed as costs.

In a praecipe for order of sale, the legal description must be stamped as approved by the Tax Map Office and must be accompanied by the Property Description Approval Form, which is available on the website for the Medina County Clerk of Courts.

(D) Sheriff’s Sale
In all sales of real estate, except where the purchaser is the holder of the first lien after the amount owed for costs, taxes and assessments, the successful bidder shall pay to the Sheriff ten percent (10%) of the appraised value of the real estate. Payment shall be made by cash, certified check, money order or bank check at the time of the final bid. In the event the successful bidder fails to pay the required deposit, the Sheriff shall disregard the bid, and shall immediately re-offer the property for sale on the same date.

The unpaid balance of the purchase price shall be paid to the Sheriff within thirty (30) days from the date of the Sheriff’s sale. In the event a purchaser fails to pay the balance due on the purchase price and complete the purchase, the purchaser may be held in contempt of court. The Sheriff or other interested party may cause an order to issue commanding the defaulting purchaser to appear before the assigned Judge and show cause why an order of contempt should not issue.

Where the purchaser at the Sheriff’s sale is the holder of the first lien after the amount owed for costs, taxes and assessments, said purchaser shall pay to the Sheriff one percent (1%) of the appraised value by cash, certified check, money order, or law firm check. This provision shall not apply in tax foreclosure cases for non-payment of real estate taxes.

(E) Cancellation of Sheriff’s Sale
Except in the case of bankruptcy, a Plaintiff may withdraw a property from Sheriff’s sale, provided Plaintiff deposits with the Clerk of Courts the sum set forth on the Court Fee Schedule as surety of court costs. The cancellation of the Sheriff’s sale shall be by written motion and shall include a copy of the receipt evidencing payment of the required sum. A Magistrate is authorized to sign an order withdrawing a property from Sheriff’s sale.

RULE 13 Bankruptcy

Whenever a party to an action pending in the Court files for bankruptcy protection, the attorney of record, or the party if acting pro se, shall within five (5) days file written notice of the automatic stay with the Clerk of Courts. The notice shall include the bankruptcy case number, the date the bankruptcy petition was filed, the name of the bankruptcy court and the names of the debtors. The attorney or party shall serve the notice of bankruptcy on other counsel or parties of record in the pending litigation in conformity with Civil Rule 5.

RULE 14 Mediation

(A) General
Upon order of the Court, a civil action filed in this Court may be submitted to mediation as provided in this rule. By participating in mediation, a non-party participant, as defined by Ohio Revised Code Section 2710.01 (D), submits to the Court’s jurisdiction to the extent necessary for enforcement of this rule. Any non-party participant shall have the rights and duties under this rule as are attributed to parties, except that no evidence privilege shall be expanded.

Mediator is defined to mean any individual who mediates cases pursuant to an order of this Court, regardless of whether that individual is an employee, an independent contractor or a volunteer.

(B) Case Selection and Timing for Mediation
All civil cases may be referred to mediation. Before the initial status conference in a case, counsel shall discuss the appropriateness of mediation in the litigation with their clients and with opposing counsel. Mediation shall not be used as an alternative to the prosecution or adjudication of domestic violence, to determine whether to grant, modify or terminate a protection order, to determine the terms and conditions of a protection order, or to determine the penalty for violation of a protection order.

At the initial case management conference the parties and counsel shall advise the Court of the results of their discussions concerning mediation. At that time and at subsequent conferences, if necessary, the Court may explore with the parties and counsel the possibility of using mediation.

(C) Referral to Mediation
The case is referred to mediation by order of the Court. The Court may issue the order on its own motion, upon the motion of counsel, or upon referral by the mediator.

(D) Continuances
Requests for continuances shall be directed to the mediation office. Continuances shall be granted only for good cause shown and after a mutually acceptable date has been determined. No continuance will be granted by the mediation office if the mediation cannot be scheduled prior to the final pretrial or the trial date.

(E) No Stay of Proceedings
All remaining court orders shall remain in effect. No order is stayed or suspended during the mediation process.

(F) Mediation Privilege
Mediation communications are privileged as described in R. C. §2710.03 through R.C. §2710.05.

(G) Client Defined Confidentiality
If the parties believe that confidentiality is necessary, the parties shall effect a written confidentiality agreement prior to the mediation.

(H) Mediator’s Duty
The mediator shall inform the Court who attended the mediation, whether the case settled, and whether efforts to settle the case through mediation are being continued or if the case is being returned to the Court for further proceedings. No other information shall be directly or indirectly communicated by the mediator to the Court, unless all who hold a mediation privilege, including the mediator, have consented to such disclosure. The mediator shall keep mediation communications confidential, unless all who hold a mediation privilege, including the mediator, have consented to such disclosure.

(I) Duties of Attorneys/Parties
Unless otherwise ordered by the Court, trial counsel, all parties, and if applicable, the principal insurance adjuster(s), all with authority to settle, shall personally attend all mediation sessions and be prepared to discuss all relevant issues, including settlement terms. A legal entity must have an agent with authority to settle attend the mediation in addition to counsel.

If counsel or any mediation party becomes aware of the identity of a person or entity whose consent is required to resolve the dispute, but who has not yet been joined as a party in the pleading, they shall promptly inform the mediator as well as the assigned Judge of such fact.

If the opposing parties to any case have either resided in a common residence or are related by blood, adoption, or marriage, and have known or alleged domestic abuse at any time prior to the mediation, then the parties or their counsel have a duty to disclose such information to the mediation staff. Such party shall have a duty to participate in any screening required by Rule 16 of the Rules of Superintendence for the Courts of Ohio both prior to, and, in the mediator’s discretion, during the mediation session(s).
(J) Sanctions
If any of the individuals identified in the above-paragraph fail to attend mediation without good cause, the Court may impose sanctions, including the award of attorney’s fees and other costs, contempt, or other appropriate sanctions.

(K) Immunity
A mediator acting pursuant to this rule shall have all immunity conferred by statute, rule, and common law.

(L) No Advice
The efforts of the mediator shall not be construed as giving legal advice. The Court may have materials for legal or other support services available in the community. The mediator is authorized to provide such resource information; however, such distribution shall not be construed as a recommendation of, or referral to, such resource. The recipient of that information is charged with the duty to evaluate those resources independently.

(M) Administrative Dismissal
If the parties fail to dismiss a settled case within the later of thirty (30) days or the time noted in the entry that gave the Court notice of the settlement, then the Court may dismiss the case administratively. Upon such administrative dismissal, court costs shall be paid from the funds deposited. If court costs exceed the funds deposited, each party shall bear their own costs.

RULE 15 Jury Management

(A) Eligibility and General Administration
Responsibility for administering the jury system will be vested in the Administrative Judge for the Court of Common Pleas, General Division. Procedures concerning jury selection and service are generally governed by Ohio law and Ohio Rules of Court.

The opportunity for jury service shall not be denied or limited on the basis of race, national origin, gender, age, religious belief, income, occupation, disability, or any other factor that discriminates against a cognizable group in the jurisdiction.
All persons shall be eligible for jury service except those who:
1. are less than eighteen years of age;
2. are not citizens of the United States;
3. are not residents of Medina County;
4. are not able to communicate in the English Language;
5. have been convicted of a felony and have not had their civil rights restored.

(B) Jury Source List
The Court hereby adopts an electronic jury pool selection process. Once each year, the list of registered voters shall be obtained from the Medina County Board of Elections in electronic form. The jury source list will be derived from the names shown on the registration list for the most recent past election.

A miscellaneous journal entry signed by the Judges of the General Division shall instruct that upon certification of the list of voters to the Jury Commission by the Medina County Board of Elections and in accordance with a journal entry filed with the Clerk of Courts setting forth the number of prospective jurors to be called, that the drawing of the annual jury list shall proceed until an adequate number of persons are drawn for the coming jury term (year). Pools for the Municipal Courts of Medina County shall be selected in the same manner by journal entry signed by a Judge of the Municipal Court. The output from the computer selection process shall be in the form specified by the Judges of the Court of Common Pleas and the respective Municipal Courts.
(C) Notification and Summoning Procedures
There shall be a notice summoning a person to jury service and the questionnaire eliciting information regarding that person. The juror summons shall be delivered by ordinary mail. The summons shall explain how and when the recipient must respond and the consequences of failure to comply with the summons. The questionnaire shall request only that information essential for determining whether a person meets the criteria for eligibility. The jury questionnaire shall contain the following language:

READ THIS BEFORE ANSWERING –ALL INFORMATION ON THIS FORM MAY BE PUBLICLY DISCLOSED. IF YOU BELIEVE YOUR PRIVACY INTERESTS WILL BE HARMED BY ANSWERING ANY OF THE FOLLOWING QUESTIONS, YOU MAY LEAVE A RESPONSE LINE BLANK AND INDICATE THAT YOU HAVE DONE SO INTENTIONALLY.

The Court will develop uniform policy and procedure for monitoring failures to respond to a summons and for enforcing a summons to report for jury service.
(D) Voir Dire
Voir dire examination shall be limited to matters relevant to determining whether to remove a juror for cause and to determine the juror's fairness and impartiality. Basic background information regarding panel members will be made available to counsel on the day which jury selection is to begin. The Trial Judge shall conduct a preliminary voir dire examination. Subject to the control of the Court, counsel shall then be permitted to question panel members. The Judge will ensure that the privacy of prospective jurors is reasonably protected, and the questioning is consistent with the purpose of the voir dire process. The voir dire process shall be held on the record, unless otherwise ordered by the Court. (E) Jury Deliberations
All communications between the Judge and members of the jury panel during deliberations shall be in writing or on the record in open court. Counsel for each party shall be informed of such communication and given the opportunity to be heard.
Jury deliberations should take place under conditions and pursuant to procedures that are designed to ensure impartiality and to enhance rational decision-making and shall conform to existing Ohio law. A jury should not be required to deliberate after a reasonable hour and on weekends, unless the Trial Judge determines that such deliberations would not impose an undue hardship upon the jurors, and that they are required in the interest of justice.
(F) Monitoring the Jury system
The Court shall monitor the performance of the jury system in order to evaluate: the representativeness and inclusiveness of the jury source list; the effectiveness of qualification and summoning procedures; the responsiveness of individual citizens to jury duty; the efficient use of jurors; and the cost-effectiveness of the jury management system.

(G) Juror Use
The Court shall utilize the services of prospective jurors so as to achieve optimum use with a minimum of inconvenience to jurors. The Court shall determine the minimally sufficient number of jurors needed to accommodate trial.

(H) Jury Facilities
Each Judge is charged with the responsibility of providing jury deliberation rooms conducive to reaching a fair verdict and with the safety and security of the deliberation rooms in conjunction with the Medina County Sheriff. To the extent feasible, court staff will attempt to minimize contact between jurors, parties, counsel, and the public by limiting juror movement to those areas designated for jury assemblage, deliberation, and trial.
RULE 16 Clerk of Courts

(A) Original documents presented for filing with the Clerk of Courts shall not be stapled. All copies of documents presented for time-stamping must be stapled.

(B) Costs
No civil action or proceeding shall be accepted for filing unless there is deposited as security for costs the amount set forth on the Fee Schedule of the Medina County Clerk of Courts. Said Fee Schedule can be found at the Clerk of Courts’ website. If the party initiating a civil action is unable to give security as provided under this rule, that party shall file a poverty affidavit with the complaint. The collection of costs shall be postponed until the case is terminated.

(C) Case Classification
All civil complaints must be accompanied by a Case Designation Form as prescribed by the Court. Said form is available on the website for the Medina County Clerk of Courts.

(D) Instructions for Service
Unless otherwise directed by written instructions, all complaints or other pleadings which initiate a case shall be served by certified mail, return receipt. The Clerk will not serve any other pleading or documents unless accompanied by Instructions for Service. An Instruction for Service form is available on the website for the Clerk of Courts.

(E) Electronic Service of Process
When technology permits, the Clerk of Courts shall issue service of process as provided in Civil Rule 4.1, including “virtual” service of process utilizing advanced U.S. postal technology for delivery of certified mail and receipt of the confirmation of service. The confirmation of service of process served by virtual service shall be made available through the Clerk’s office and/or website.

(F) Court Files
No person, except a Judge of the Court, a Magistrate, or representative of either shall remove any documents or case files from the custody of the Clerk, without the consent of the Judge to whom the case has been assigned. All files must be checked out with a deputy clerk before being removed from the Clerk’s office.

(G) Electronic Filing
Subject to further order of Court, the Medina County Clerk of Courts does not accept for filing pleadings or other papers by facsimile transmission or electronic mail.

(H) Duplication
An individual seeking to have a copy of any court filing must deliver to the Clerk a self-addressed, stamped envelope with sufficient postage and of sufficient size as well as payment of a photocopy fee, when applicable. The Clerk shall provide by U.S. mail, a copy of any original document maintained by its office, except transcripts. The Clerk is not required to send faxed copies of any documents which may be requested.

(I) Disclosure and Duplication of Transcripts
Unless otherwise ordered by the Court, the Clerk of Courts shall allow any individual to examine, but not remove or duplicate, any original transcript of testimony that has been filed with the Clerk. The Clerk shall not provide copies of an original transcript without the permission of the Court Reporter. Copies of transcripts shall be made available upon payment of the photocopy fee set forth in the Fee Schedule.

(J) Subpoenas
Pursuant to Civil Rule 45, if a subpoena is to be served by the Clerk of Courts, Medina County Sheriff, or the Sheriff of another county, the party requesting the subpoena shall provide to the Clerk quadruplicate copies as well as the amount set forth on the Fee Schedule as security for costs.

If the witness being subpoenaed resides outside the county, the fee for one day’s attendance and mileage shall be attached to the subpoena, by a check made payable to the witness. The subpoena shall indicate in the upper right corner the amount of the fee attached as well as the name of the Judge or Magistrate before whom the witness is to appear.
An attorney who has filed an appearance on behalf of a party in an action may sign and issue a subpoena on behalf of the Court in which the action is pending.

RULE 17 Privacy Rights

In order to promote electronic access to case files while also protecting personal privacy and other legitimate interests, parties shall refrain from including, or shall partially redact where inclusion is necessary, the following personal data identifiers from all documents filed with the Court, including exhibits thereto, unless otherwise ordered by the Court:

1. Social Security numbers. If an individual’s Social Security number must be included in a document, only the last four digits of that number should be used.
2. Names of minor children. If the involvement of a minor child must be mentioned, only the initials of that child should be used.
3. Dates of Birth. If an individual’s date of birth must be included in a document, only the year should be used.
4. Financial account numbers. If financial account numbers are relevant, only the last four digits of these numbers should be in the document used.

This rule does is not applicable to Petitions for Civil Stalking Protection Orders.

The responsibility for redacting these personal identifiers rests solely with counsel and the parties. The Clerk shall not review each document for compliance with this rule.
CRIMINAL RULES

RULE 1 General

Criminal cases shall be handled in accordance with the Rules of Criminal Procedure and the Ohio Revised Code.

RULE 2 Motions

(A) Unless otherwise ordered by the Court, motions and other requests in criminal cases shall be filed within thirty-five (35) days after arraignment or seven (7) days before trial, whichever is earlier.

(B) All motions must be supported by a memorandum which contains citations of authority pursuant to Criminal Rule 47.

(C) The defendant shall not be granted a continuance without a written motion stating the reason for the continuance. The motion shall contain the written consent of the defendant, except that this requirement may be waived for good cause, provided the motion states the reason why the attorney has been unable to obtain the written consent of the defendant. The Court will not consider any motion for continuance due to a conflict of assignment dates unless a copy of the conflicting assignment is attached to the motion.


RULE 3 Criminal Pretrials

(A) Criminal cases may be set for pretrial at the time of arraignment, or thereafter, at the discretion of the court. Counsel for the defendant, the defendant, and the prosecutor must appear for all pretrials.

(B) Discovery shall be completed prior to the pretrial and in compliance with Criminal Rule 16.

RULE 4 Intervention in Lieu of Conviction

Upon the filing of a motion pursuant to R.C. §2951.041 and prior to granting Intervention in Lieu of Conviction, the court shall refer the defendant to the Adult Probation Department to determine the defendant’s eligibility.

RULE 5 Adult Probation Department

(A) If ordered by the Court, the Adult Probation Department shall conduct a pre-sentence investigation and submit a pre-sentence report to the Court in all cases where the defendant has pleaded guilty or was found guilty of a crime.

(B) Pre-sentence reports may be prepared and submitted to the Court on motions for Intervention in Lieu of Conviction under R.C. §2951.041, motions for Sealing of Records under R.C. §2953.32 and §2953.52, and motions for Judicial Release under R.C. §2929.20 if required by the Court.

RULE 6 Assignment and Compensation of Appointed Counsel

(A) When it appears to the Court that a defendant in a criminal case is indigent and seeks to have the Court assign counsel, the defendant must execute an Affidavit of Indigency upon the form provided by the Ohio Public Defender. Within seven days of submitting the affidavit to the Court, the defendant shall pay a $25 non-refundable application fee to the Clerk of Court.

(B) The Court shall appoint an attorney at arraignment, or as soon as possible thereafter, to represent an indigent defendant in criminal cases.

(C) Appointed counsel shall be compensated for services and reimbursed for expenses in accordance with the schedule of fees adopted by the Board of County Commissioners. To receive compensation, appointed counsel shall submit to the County Auditor’s office a Motion, Entry and Certification for Appointed Counsel Fees form attesting to the number of hours expended, the work performed, and the actual expenses incurred. The Court, after due consideration, shall determine the amount of compensation within the scheduled limits.

(D) Attorneys assigned to represent indigent defendants in probation violation hearings, extradition hearings, and other criminal matters shall be appointed and compensated in compliance with Local Criminal Rule 6.

(E) Requests for attorney fees and expenses in excess of the scheduled limits shall only be granted upon motion by the assigned counsel. In the event the Court awards extraordinary fees, counsel shall attach a copy of the Motion for Extraordinary Fees and the order granting same to the Motion, Entry and Certification for Appointed Counsel Fees form and submit it to the County Auditor’s Office.

RULE 7 Investigators and Experts

(A) Counsel assigned to represent indigent defendants shall investigate cases to which they have been assigned.

(B) Investigators shall not be employed by assigned counsel unless ordered by the court. In such cases, counsel shall file a motion to hire an investigator at least thirty (30) days before trial. Said motion shall set forth in detail the reasons for the need for an investigator and the approximate expense that would be incurred if the motion were granted. The motion shall only be granted after a hearing conducted by the assigned Judge.

(C) Experts shall not be employed by assigned counsel except by leave of court. Counsel shall file a motion for the appointment of an expert at least thirty (30) days before trial. Said motion shall set forth in detail the reasons for the need for such expert and the approximate expense that would be incurred if the motion were granted. The motion shall only be granted after a hearing conducted by the trial judge.

(D) Invoices for investigators and experts shall be filed with defense counsel's application for attorney's fees, on a separate sheet. Upon motion by counsel, experts or investigators may be paid prior to trial by the Court.