By Judge James L. Kimbler
There was an interesting decision out of the Summit County Court of Appeals concerning judicial notice this past week. The decision, which can be cited as In re J.C., 2010-Ohio-637, contains the following language at P. 14:
This Court has stated that “‘[t]rial courts will not take judicial notice of their own proceedings in other cases, even though between the same parties and even though the same judge presided.’” See, e.g., Patel v. Gadd, 9th Dist No. 21604, 2004-Ohio-436, at ¶7, quoting State v. Hill (June 9, 1993), 9th Dist. No. 92CA005358, citing Diversified Mortgage Investors, Inc. v. Bd. of Revision (1982), 7 Ohio App.3d 157, 159. A trial court “may only take judicial notice of prior proceedings in the immediate case.” In re LoDico, 5th Dist. No. 2003-CA-00446, 2005-Ohio-172, at ¶94. See, also, In the Matter of Erin N. (Apr.12, 1996), 6th Dist. Nos. E-95-029 and 95-JN-000001 (holding that the juvenile court committed reversible error by sua sponte taking “judicial notice” of a prior dependency case involving the same parent and child).
The rationale for the rule is then stated in P. 15, which reads as follows:
The rationale for this rule is that an appellate court cannot review the propriety of the trial court’s reliance on such prior proceedings when that record is not before the appellate court. NorthPoint Properties, Inc. v. Petticord, 179 Ohio App.3d 342, 2008-Ohio-5996. This Court’s review is necessarily limited to the record on appeal. “[A] reviewing court should be limited to what transpired in the trial court as reflected by the record made of the proceedings.” State v. Ishmail (1978), 54 Ohio St.2d 402, 406. Matters outside the record cannot be used to demonstrate error, nor can they be considered in defense of the judgment.
Although the case in which the above language appeared was an appeal from a juvenile court decision, the same rationale would seem to apply to other areas of litigation. For example, let's suppose that a trial judge had a case in which his or her prior decision would be applicable in a pending case and wanted to apply the prior ruling. That judge couldn't just take judicial notice of the prior decision, even though the case was in front of that judge and the records were kept in his or her court. Apparently, in such a situation, the judge would make the prior ruling an exhibit and then introduce it into the record of the pending case, thus allowing the court of appeals to review the appropriateness of the prior decision.
Given the decision and language of In Re JCattorneys asking judges to take judicial notice of prior decisions would be well advised to have a certified copy of the prior entry to introduce into the record of the case in which they are seeking such notice.
Sunday, February 28, 2010
"Old Medina County Courthouse" Has Holes in Floor
There are actually two buildings that house the Medina County Common Pleas Court and the Medina County Clerk of Courts. One of them is a Victorian structure that is 170 years old and the other is a relatively much newer building that was built in 1968.
The older building houses the Medina County Domestic Relations Court, the Medina County Adult Probation Department, part of the Medina County Clerk of Courts staff, and the Medina County Juvenile Court Probation Department.
The newer building is where the two General Division Judges of the Medina County Common Pleas Court are located; the Medina County Law Library; the Medina County Probate and Juvenile Court Judge; and the main operations of the Medina County Clerk of Courts.
The Victorian building, while charming, has a lot more maintenance issues than the 1968 building. This was shown last week when an employee of Domestic Relations Judge Mary Kovack stepped through the floor of the Domestic Relations Court. Judge Kovack believes that the steam pipes that heat the building weakened the wood floor.
A more detailed account can be found by clicking here.
The older building houses the Medina County Domestic Relations Court, the Medina County Adult Probation Department, part of the Medina County Clerk of Courts staff, and the Medina County Juvenile Court Probation Department.
The newer building is where the two General Division Judges of the Medina County Common Pleas Court are located; the Medina County Law Library; the Medina County Probate and Juvenile Court Judge; and the main operations of the Medina County Clerk of Courts.
The Victorian building, while charming, has a lot more maintenance issues than the 1968 building. This was shown last week when an employee of Domestic Relations Judge Mary Kovack stepped through the floor of the Domestic Relations Court. Judge Kovack believes that the steam pipes that heat the building weakened the wood floor.
A more detailed account can be found by clicking here.
Cuyahoga County Common Pleas Judge Holds Men in Contempt for Taking Pictures of Jury
On Wednesday, Feburary 24, 2010, Judge Nancy Margaret Russo of the Cuyahoga County Common Pleas Court, put two men in jail for contempt of court for either making a video recording, or giving the impression of taking pictures, of a jury during a murder trial. One man used a small camcorder to take pictures of the jury and an assistant county prosecutor. The other man was appearing to take pictures with his cell phone, but when the cell phone was confiscated, there were no pictures on it.
Judge Russo jailed the men for contempt because they were "intimidating and frightening my jury" and making it more difficult to get people to serve on juries. The man with the video camcorder received 60 days in jail while the man with the cell phone got 30 days in jail.
Judge Russo also declared a mistrial of the murder case which the men were attending. Judge Russo said that so many jurors were intimidated by the incident, that it was impossible to continue the trial.
Following the incident Judge Russo and other Cuyahoga County Common Pleas Judges posted signs forbidding the use of recording devices and ordering that cell phones be turned off when entering their courtrooms.
A more complete account of this incident was reported by the Cleveland Plain Dealer and can be read by clicking here.
Judge Russo jailed the men for contempt because they were "intimidating and frightening my jury" and making it more difficult to get people to serve on juries. The man with the video camcorder received 60 days in jail while the man with the cell phone got 30 days in jail.
Judge Russo also declared a mistrial of the murder case which the men were attending. Judge Russo said that so many jurors were intimidated by the incident, that it was impossible to continue the trial.
Following the incident Judge Russo and other Cuyahoga County Common Pleas Judges posted signs forbidding the use of recording devices and ordering that cell phones be turned off when entering their courtrooms.
A more complete account of this incident was reported by the Cleveland Plain Dealer and can be read by clicking here.
Friday, February 26, 2010
Savings Statute and Wrongful Death
by Ohio Supreme Court Justice Paul Pfeifer
On November 26, 2003, Joshua M. Eppley, a student in the Tri-Valley Local School District, died in an auto accident while he was a passenger in a car driven by Corey W. Jenkins.
Nearly two years after the accident – on August 3, 2005 – Randy J. Eppley, the administrator of Joshua’s estate, filed a complaint for wrongful death against the Tri-Valley school district and board, but a little over a month later – on September 15, 2005 – he dismissed the case without prejudice. A “dismissal without prejudice” means that the person can still sue again on the same cause of action. Thus, Eppley refiled his complaint the following year, on September 7.
The refiled complaint alleged that unnamed employees of the school district engaged in willful, wanton, and reckless conduct by allowing Corey to remove Joshua from school premises without the permission of Joshua’s parents and that his death was the result of that conduct.
The school board and district filed a motion for judgment on the pleadings, arguing that the statute of limitations – which was two years – had run on the complaint before refiling and that they were, therefore, immune from liability.
Eppley, however, was depending on something called the “general saving statute.” What is the general saving statute? It is a law that states, in part, that when a plaintiff “fails otherwise than upon the merits, the plaintiff…may commence a new action within one year after the date” of that failure, or “within the period of the original applicable statute of limitations, whichever occurs later.”
By virtue of the general saving statute, Eppley believed that he had another year beyond the original statute of limitations to file his suit. The trial court did not agree, and dismissed the complaint without giving a reason for the dismissal.
The court of appeals reversed that judgment. After that, the case came before us – the Supreme Court of Ohio – for a final review.
In this case there were two different laws that were potentially applicable. The first was the general saving statute, which was described earlier. The second law, which was specific to wrongful death actions, said that if a plaintiff’s action is dismissed – for some reason other than the merits – after the statute of limitations has expired, then the plaintiff has one year from the time of that dismissal to file a new suit.
Before the year 2000, both the general saving statute and the one specific to wrongful death actions granted a plaintiff an additional year in which to refile only if dismissal occurred after the original statute of limitations had expired. Sometimes referred to as the “malpractice trap,” the general saving statute as it then existed meant that a plaintiff whose case had been dismissed without prejudice before the original statute of limitations had run was required to refile the action within the original statutory time, regardless of how much time was left.
But the Ohio legislature amended the general saving statute in 2004, closing the malpractice trap and permitting a plaintiff to refile within one year after dismissal or within the time remaining under the statute of limitations, whichever is longer.
The legislature, however, did not make a similar amendment to the wrongful-death saving statute. By a six-to-one majority, our court concluded that since the wrongful-death saving statute is the more specific statute, it applies to this case, and therefore, Eppley’s complaint was untimely filed.
The fatal accident occurred November 26, 2003, and the case was dismissed without prejudice on September 15, 2005. According to the majority, under the saving statute specific to wrongful-death actions, Eppley’s refiling deadline was not extended to September 15, 2006. Because the action was dismissed before the two-year statute of limitations ran, Eppley still had only two years from the date of the accident – until November 26, 2005 – to bring suit.
I cast the dissenting vote because I preferred to see the distinction between the saving clauses contained in the two statutes as the result of legislative inadvertence. The General Assembly fixed the “malpractice trap” associated with the general saving statute, and since that statute applies “in any action that is commenced or attempted to be commenced,” the legislature could have assumed that it would apply to wrongful-death actions as well. After all, everyone makes mistakes – even the Ohio General Assembly.
The amendment to the general saving statute was meant to fix inequitable treatment of certain plaintiffs. “The amendment permits plaintiffs one year to refile, or the time left (if any) on an unexpired statute of limitations, whichever is later.”
If the General Assembly’s inaction in failing to make the same change to the wrongful death saving statute was purposeful, that is more disturbing than a mistake.
There is no rational basis to distinguish between wrongful-death plaintiffs and all other plaintiffs in fixing the malpractice trap. Is there a rational basis to fix a disparity that existed between plaintiffs that dismissed civil claims within a few days of each other but to not have that fix apply to wrongful-death plaintiffs?
If the General Assembly’s aim is to speed along wrongful-death claims, as the majority suggested, it has not adopted a rational method to achieve that end. Wrongful-death plaintiffs still have the ability to extend the lives of their claims, as long as they wait to dismiss their claims until the statute of limitations has passed.
To encourage prompt dismissals and refilings, the General Assembly should have made the same amendment to both saving statutes. If the General Assembly’s aim was to perpetuate a malpractice trap only for wrongful-death plaintiffs in order to limit overall damages awarded in wrongful-death cases, that would constitute an illegitimate attempt to limit the damages recovered in wrongful-death claims and would violate the Ohio Constitution.
I believe the majority attempted to attribute rationality to the General Assembly’s unintentional act. The General Assembly thus emerges worse than if it had been merely mistaken. Nevertheless, the majority saw it differently, and we reversed the judgment of the court of appeals.
EDITOR’S NOTE: The case referred to is: Eppley v. Tri-Valley Local School Dist. Bd. Of Edn., 122 Ohio St.3d 56, 2009-Ohio-1970. Case No. 2008-0366. Decided May 5, 2009. Majority opinion written by Justice Judith Ann Lanzinger.
Judge Kimbler Credit Card Trial Order
We have been putting on the following order in cases in which credit card companies are seeking damages from a credit card holder for non-payment. Attorneys representing either credit card companies or credit card holders with cases on my docket should review this order.
At trial Plaintiff must produce monthly account statements to establish the balance prayed for in the complaint, starting from a zero balance or four years of statements, whichever is less. The statements must show the interest rate(s) charged by Plaintiff. Plaintiff must also produce a legible copy of the cardholder's agreement which was in existence when the Defendant last used the account. Plaintiff's evidence must be admissible under the rules of evidence.
In the event Defendant was charged interest in excess of 25% per year before the account was charged-off, Plaintiff must calculate the balance owed on the account, excluding usurious interest. For those months Defendant was charged more than 25% per year, Plaintiff must re-calculate the balance due assuming interest at the statutory rate, i.e., 10% through June 2, 2004, 4% from June 3, 2004 through December 31, 2004, 5% for 2005, 6% for 2006, 8% for 2007, 8% for 2008 and 5% for 2009.
In the event the account is no longer held by the original issuer, Plaintiff must show documentary proof of the assignment of the account to demonstrate its legal status to pursue its claim against the Defendant.
If Plaintiff fails to present admissible evidence of the account as set forth above, the Court may enter judgment in favor of Defendant because Plaintiff cannot meet its burden of proof.
At trial Plaintiff must produce monthly account statements to establish the balance prayed for in the complaint, starting from a zero balance or four years of statements, whichever is less. The statements must show the interest rate(s) charged by Plaintiff. Plaintiff must also produce a legible copy of the cardholder's agreement which was in existence when the Defendant last used the account. Plaintiff's evidence must be admissible under the rules of evidence.
In the event Defendant was charged interest in excess of 25% per year before the account was charged-off, Plaintiff must calculate the balance owed on the account, excluding usurious interest. For those months Defendant was charged more than 25% per year, Plaintiff must re-calculate the balance due assuming interest at the statutory rate, i.e., 10% through June 2, 2004, 4% from June 3, 2004 through December 31, 2004, 5% for 2005, 6% for 2006, 8% for 2007, 8% for 2008 and 5% for 2009.
In the event the account is no longer held by the original issuer, Plaintiff must show documentary proof of the assignment of the account to demonstrate its legal status to pursue its claim against the Defendant.
If Plaintiff fails to present admissible evidence of the account as set forth above, the Court may enter judgment in favor of Defendant because Plaintiff cannot meet its burden of proof.
Thursday, February 25, 2010
415 Prospective Lawyers Took Ohio Bar Exam This Week
More than 400 prospective lawyers took the February 2010 Ohio Bar Examination Tuesday, Wednesday and today at Franklin County Veterans Memorial, 300 W. Broad St.
The bar exam features various components, including 12 essay questions covering 11 topics, the Multistate Performance Test and the Multistate Bar Examination.
Results from the exam will be announced on April 30, and individuals who passed the exam and meet all other requirements for admission will be sworn in on May 10 during a special session of the Supreme Court of Ohio at the historic Ohio Theatre.
The bar exam is administered by the Supreme Court, which regulates the practice of law in Ohio, including the admission of new attorneys, the biennial registration of current attorneys, attorney discipline in cases of misconduct, and the administration of continuing legal education.
The bar exam features various components, including 12 essay questions covering 11 topics, the Multistate Performance Test and the Multistate Bar Examination.
Results from the exam will be announced on April 30, and individuals who passed the exam and meet all other requirements for admission will be sworn in on May 10 during a special session of the Supreme Court of Ohio at the historic Ohio Theatre.
The bar exam is administered by the Supreme Court, which regulates the practice of law in Ohio, including the admission of new attorneys, the biennial registration of current attorneys, attorney discipline in cases of misconduct, and the administration of continuing legal education.
Denial of Discretionary Bindover of Juvenile for Adult Trial is Not Final Order That State has Right to Appeal
When Defendant Found Amenable to Rehabilitation in Juvenile System
In re M.P., Slip Opinion No. 2010-Ohio-599.
Hardin App. No. 6-08-09. Judgment of the court of appeals affirmed, and cause remanded to the trial court.
Moyer, 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-599.pdf
(Feb. 25, 2010) The Supreme Court of Ohio ruled today that an order of a juvenile court denying discretionary bindover of a juvenile offender for trial as an adult because the court finds the defendant is amenable to care or rehabilitation within the juvenile system is not a final order from which the state may appeal as a matter of right.
The Court’s 7-0 opinion, which affirmed a decision of the 3rd District Court of Appeals, was authored by Justice Robert R. Cupp.
The case involved a 15-year-old, identified by the initials M.P., who was charged in the Hardin County Juvenile Court with a delinquency count of murder for the killing of her mother. The county prosecutor’s office filed a motion asking the juvenile court to issue a discretionary order binding over M. P. to the Hardin County Court of Common Pleas for trial as an adult. In ruling on that motion, the juvenile court first found that there was probable cause to believe that M.P. committed the acts for which she was charged. The judge then conducted a hearing and made a judicial determination that M.P. was “amenable to rehabilitation within the juvenile justice system,” and therefore should not be bound over for trial as an adult.
The prosecutor filed a motion with the 3rd District Court of Appeals seeking leave to appeal the denial of bindover. The 3rd District declined to grant leave for an appeal.
The state sought Supreme Court review of the 3rd District’s refusal to hear its appeal. In October 2008, while the state’s petition for review was still pending, the Supreme Court issued a decision, In re A.J.S., in which it held that a juvenile court’s denial of mandatory bindover of a juvenile offender based on a finding of no probable cause was the “functional equivalent of the dismissal of a criminal indictment,” and therefore under R.C. 2945.67 was a final order from which the state had a right to appeal. Following announcement of its decision in In re A.J.S., the Court agreed to review the 3rd District’s ruling in this case.
In today’s decision, Justice Cupp cited R.C. 2945.67(A), which provides that: “A prosecuting attorney ... may appeal as a matter of right ... any decision of a juvenile court in a delinquency case, which decision grants a motion to dismiss all or any part of an indictment, ... and may appeal by leave of the court to which the appeal is taken any other decision, except the final verdict, ... of the juvenile court in a delinquency case.”
Justice Cupp wrote: “The state urges this court to apply the rationale used in A.J.S. to allow appeals as a matter of right by the state from juvenile court decisions in which discretionary-bindover requests are denied because the court concludes that the child is amenable to care and rehabilitation in the juvenile system, even though the court also finds probable cause to believe that the child committed the act charged. Because of the important difference between mandatory-bindover and discretionary-bindover proceedings, we decline the state’s invitation.”
“In a mandatory-bindover proceeding, when a juvenile court determines that no probable cause exists to believe that the juvenile committed the act charged, the court’s finding is the ‘functional equivalent of a dismissal of a criminal indictment and constitutes a final order from which the state may appeal as a matter of right’ under R.C. 2945.67(A). ... Here, the court determined that probable cause did exist to believe that the child committed the act charged, and the question presented is the appealability of the court’s order that nevertheless denied the state’s requested discretionary bindover because the court concluded that the child was amenable to care or rehabilitation in the juvenile system. In contrast to the probable-cause inquiry, an amenability hearing is a broad assessment of individual circumstances and is inherently individualized and fact-based. ... (U)nder the statute, juvenile court decisions regarding a child’s amenability to care or rehabilitation within the juvenile system are different from probable-cause determinations. The legal effects of such determinations are also different.”
“In contrast to a probable-cause determination, a denial of a discretionary-bindover request on the basis of amenability does not necessitate dismissal of any of the charges in the complaint. Rather, the juvenile court retains jurisdiction of the case, the complaint continues as it was filed, and if appropriate, the child is prosecuted as a serious youthful offender under R.C. 2152.11. ... When a discretionary-bindover request is denied in these circumstances, there is no ‘functional equivalent of a dismissal of a criminal indictment’ and there is no authority under R.C. 2945.67(A) for the state to appeal as a matter of right. ... Therefore, any appeal must be by leave of the court.”
Contacts
Colleen P. Limerick, 419.674.2284, for the Hardin County prosecutor’s office.
Elizabeth R. Miller, 614.466.5394, for juvenile offender M.P.
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."
In re M.P., Slip Opinion No. 2010-Ohio-599.
Hardin App. No. 6-08-09. Judgment of the court of appeals affirmed, and cause remanded to the trial court.
Moyer, 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-599.pdf
(Feb. 25, 2010) The Supreme Court of Ohio ruled today that an order of a juvenile court denying discretionary bindover of a juvenile offender for trial as an adult because the court finds the defendant is amenable to care or rehabilitation within the juvenile system is not a final order from which the state may appeal as a matter of right.
The Court’s 7-0 opinion, which affirmed a decision of the 3rd District Court of Appeals, was authored by Justice Robert R. Cupp.
The case involved a 15-year-old, identified by the initials M.P., who was charged in the Hardin County Juvenile Court with a delinquency count of murder for the killing of her mother. The county prosecutor’s office filed a motion asking the juvenile court to issue a discretionary order binding over M. P. to the Hardin County Court of Common Pleas for trial as an adult. In ruling on that motion, the juvenile court first found that there was probable cause to believe that M.P. committed the acts for which she was charged. The judge then conducted a hearing and made a judicial determination that M.P. was “amenable to rehabilitation within the juvenile justice system,” and therefore should not be bound over for trial as an adult.
The prosecutor filed a motion with the 3rd District Court of Appeals seeking leave to appeal the denial of bindover. The 3rd District declined to grant leave for an appeal.
The state sought Supreme Court review of the 3rd District’s refusal to hear its appeal. In October 2008, while the state’s petition for review was still pending, the Supreme Court issued a decision, In re A.J.S., in which it held that a juvenile court’s denial of mandatory bindover of a juvenile offender based on a finding of no probable cause was the “functional equivalent of the dismissal of a criminal indictment,” and therefore under R.C. 2945.67 was a final order from which the state had a right to appeal. Following announcement of its decision in In re A.J.S., the Court agreed to review the 3rd District’s ruling in this case.
In today’s decision, Justice Cupp cited R.C. 2945.67(A), which provides that: “A prosecuting attorney ... may appeal as a matter of right ... any decision of a juvenile court in a delinquency case, which decision grants a motion to dismiss all or any part of an indictment, ... and may appeal by leave of the court to which the appeal is taken any other decision, except the final verdict, ... of the juvenile court in a delinquency case.”
Justice Cupp wrote: “The state urges this court to apply the rationale used in A.J.S. to allow appeals as a matter of right by the state from juvenile court decisions in which discretionary-bindover requests are denied because the court concludes that the child is amenable to care and rehabilitation in the juvenile system, even though the court also finds probable cause to believe that the child committed the act charged. Because of the important difference between mandatory-bindover and discretionary-bindover proceedings, we decline the state’s invitation.”
“In a mandatory-bindover proceeding, when a juvenile court determines that no probable cause exists to believe that the juvenile committed the act charged, the court’s finding is the ‘functional equivalent of a dismissal of a criminal indictment and constitutes a final order from which the state may appeal as a matter of right’ under R.C. 2945.67(A). ... Here, the court determined that probable cause did exist to believe that the child committed the act charged, and the question presented is the appealability of the court’s order that nevertheless denied the state’s requested discretionary bindover because the court concluded that the child was amenable to care or rehabilitation in the juvenile system. In contrast to the probable-cause inquiry, an amenability hearing is a broad assessment of individual circumstances and is inherently individualized and fact-based. ... (U)nder the statute, juvenile court decisions regarding a child’s amenability to care or rehabilitation within the juvenile system are different from probable-cause determinations. The legal effects of such determinations are also different.”
“In contrast to a probable-cause determination, a denial of a discretionary-bindover request on the basis of amenability does not necessitate dismissal of any of the charges in the complaint. Rather, the juvenile court retains jurisdiction of the case, the complaint continues as it was filed, and if appropriate, the child is prosecuted as a serious youthful offender under R.C. 2152.11. ... When a discretionary-bindover request is denied in these circumstances, there is no ‘functional equivalent of a dismissal of a criminal indictment’ and there is no authority under R.C. 2945.67(A) for the state to appeal as a matter of right. ... Therefore, any appeal must be by leave of the court.”
Contacts
Colleen P. Limerick, 419.674.2284, for the Hardin County prosecutor’s office.
Elizabeth R. Miller, 614.466.5394, for juvenile offender M.P.
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's Criminal Docket for February 25, 2010
Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Kimbler’s court on February 25, 2010, for criminal cases:
Timothy Hermann, 29, of Spencer Lane in Brunswick, was sentenced to three years of community control sanctions, with six months in a Community Based Correctional Facility, on two counts of Trafficking in Marijuana, both of which are fifth-degree felonies.
Nicholas Jelenic, 25, of Miner Drive in Brunswick, was sentenced to three years of community control sanctions on two counts of Trafficking in Marijuana, both of which are fifth-degree felonies.
Lawrence Lawson, 31, of Bennington Boulevard 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.
Anthony Patrick, 27, of Hemlock Court in Brunswick, was sentenced to three years of community control sanctions on one count of Theft of Credit Cards, a fifth-degree felony. He also was ordered to pay $20 restitution to his victim.
Thomas Townsend, 53, of Ryan Road in Medina, was sentenced to three years of community control sanctions on one count of Possession of Drugs, a third-degree felony.
Lukas Caraballo, 23, of Center Road in Brunswick, pleaded not guilty to one count of Trafficking in Cocaine, a fourth-degree felony. A jury trial is scheduled for April 26.
Eric Finklea, 25, of West 62nd Street in Cleveland, pleaded no contest to one count of Trafficking in Cocaine, a fifth-degree felony. Sentencing is scheduled for April 2.
Bobby Hanson, 26, of Haverford Drive in Lyndhurst, pleaded guilty to and was sentenced to two years in prison on six counts of Trafficking in Drugs; two of the charges are second-degree felonies and four of the charges are third-degree felonies.
Andrea Walker, 36, of Firsby Avenue in Cleveland, pleaded not guilty to one count of Theft of a Motor Vehicle, a fourth-degree felony. A jury trial is scheduled for April 19.
Matthew Wendel, 31, of Drake Road in Strongsville, pleaded guilty to and was sentenced to seven years in prison on three counts of Rape, all of which are first-degree felonies. He also was labeled a Tier III Sex Offender.
Timothy Hermann, 29, of Spencer Lane in Brunswick, was sentenced to three years of community control sanctions, with six months in a Community Based Correctional Facility, on two counts of Trafficking in Marijuana, both of which are fifth-degree felonies.
Nicholas Jelenic, 25, of Miner Drive in Brunswick, was sentenced to three years of community control sanctions on two counts of Trafficking in Marijuana, both of which are fifth-degree felonies.
Lawrence Lawson, 31, of Bennington Boulevard 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.
Anthony Patrick, 27, of Hemlock Court in Brunswick, was sentenced to three years of community control sanctions on one count of Theft of Credit Cards, a fifth-degree felony. He also was ordered to pay $20 restitution to his victim.
Thomas Townsend, 53, of Ryan Road in Medina, was sentenced to three years of community control sanctions on one count of Possession of Drugs, a third-degree felony.
Lukas Caraballo, 23, of Center Road in Brunswick, pleaded not guilty to one count of Trafficking in Cocaine, a fourth-degree felony. A jury trial is scheduled for April 26.
Eric Finklea, 25, of West 62nd Street in Cleveland, pleaded no contest to one count of Trafficking in Cocaine, a fifth-degree felony. Sentencing is scheduled for April 2.
Bobby Hanson, 26, of Haverford Drive in Lyndhurst, pleaded guilty to and was sentenced to two years in prison on six counts of Trafficking in Drugs; two of the charges are second-degree felonies and four of the charges are third-degree felonies.
Andrea Walker, 36, of Firsby Avenue in Cleveland, pleaded not guilty to one count of Theft of a Motor Vehicle, a fourth-degree felony. A jury trial is scheduled for April 19.
Matthew Wendel, 31, of Drake Road in Strongsville, pleaded guilty to and was sentenced to seven years in prison on three counts of Rape, all of which are first-degree felonies. He also was labeled a Tier III Sex Offender.
Judge Collier's Criminal Docket for February 24, 2010
Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Collier’s court on February 24, 2010 for criminal cases:
Roger Beckler III, 42, of College Street in Wooster, pleaded no contest and was sentenced to six months in prison on one count of Possession of Drugs, a fifth-degree felony.
Lamont McBride, 37, of Griffing Avenue in Cleveland, pleaded no contest and was sentenced to two years of community control sanctions on one count of Trafficking in Drugs, a fifth-degree felony. His driver’s license also was suspended for six months.
Robert Padgett Jr., 30, of Pine Ridge Drive in Wooster, pleaded no contest to one count of Breaking and Entering, a fifth-degree felony. Sentencing is scheduled for March 8.
Olympia Rodriguez, 29, of Youngstown, pleaded guilty to one count of Possession of Drugs, a fifth-degree felony. She was ordered to pay a $500 fine and had her driver’s license suspended for six months.
James Senz, 39, of Congress Road in West Salem, pleaded no contest to one count of Felonious Assault, a second-degree felony. Sentencing is scheduled for April 5.
Roger Beckler III, 42, of College Street in Wooster, pleaded no contest and was sentenced to six months in prison on one count of Possession of Drugs, a fifth-degree felony.
Lamont McBride, 37, of Griffing Avenue in Cleveland, pleaded no contest and was sentenced to two years of community control sanctions on one count of Trafficking in Drugs, a fifth-degree felony. His driver’s license also was suspended for six months.
Robert Padgett Jr., 30, of Pine Ridge Drive in Wooster, pleaded no contest to one count of Breaking and Entering, a fifth-degree felony. Sentencing is scheduled for March 8.
Olympia Rodriguez, 29, of Youngstown, pleaded guilty to one count of Possession of Drugs, a fifth-degree felony. She was ordered to pay a $500 fine and had her driver’s license suspended for six months.
James Senz, 39, of Congress Road in West Salem, pleaded no contest to one count of Felonious Assault, a second-degree felony. Sentencing is scheduled for April 5.
Wednesday, February 24, 2010
Lodi Man Found Not Guilty of Felonious Assault
A three day jury trial on a charge of Felonious Assault ended in a not guilty verdict for Mr. Nicholas R. Quintile of Madera Drive in Lodi. The trial, which was conducted by Judge James Kimbler, began with jury selection on Monday, February 22, and concluded on Wednesday. The jury returned its verdict late Wednesday (2-24-2010) afternoon.
Although Mr. Quintile now lives in Lodi, at the time he was indicted, he was living on Damon Drive in Medina. The alleged assault took place on August 8, 2009, at a apartment building on West Liberty street in Medina. The State alleged that Mr. Quintile drove his father's sports utility vehicle at a man while visiting the apartment building. The State alleged that Mr. Quintile was angry that an ex-girlfriend of his was socializing with other men at a outdoors party that was taking place at the apartment building.
In support of its case, the State called several witnesses who lived at the party, including the person named as a victim in the indictment. They testified that Mr. Quintile drove his vehicle at two people, left the property on which the apartment building was located, and then came back and continued driving his vehicle at people.
The State's witnesses also testified that while Mr. Quintile was at the party, he first got into a fight with men who were talking to his ex-girlfriend. This led to one of the people who lived in the apartment building choking him until he lost consciousness. Then, after he returned a second time to the apartment building, people at the party threw rocks at his vehicle and after his vehicle got stuck on a tree stump, drug him out at the vehicle and started beating him up.
Mr. Quintile testified that he was at the party, and that he was choked, although he disagreed that he was causing any sort of disturbance with his ex-girlfriend. He testified that he after he was choked, he was dragged out to his SUV and put behind the wheel. He said that he had difficulty driving away from the apartment building because he was not totally aware of his surroundings.
He testified that he did come back to the property, but it was because he was concerned for his ex-girlfriend and not because he was angry. Once he came on the property, and bricks were thrown at his vehicle, his windshield was smashed and he couldn't see clearly.
The jury deliberated for over two hours before reaching a verdict. The State of Ohio was represented by Assistant Medina County Prosecutor Matt Razavi and Mr. Quintile was represented by Attorney Michael K. Astrab of Berea, Ohio.
Although Mr. Quintile now lives in Lodi, at the time he was indicted, he was living on Damon Drive in Medina. The alleged assault took place on August 8, 2009, at a apartment building on West Liberty street in Medina. The State alleged that Mr. Quintile drove his father's sports utility vehicle at a man while visiting the apartment building. The State alleged that Mr. Quintile was angry that an ex-girlfriend of his was socializing with other men at a outdoors party that was taking place at the apartment building.
In support of its case, the State called several witnesses who lived at the party, including the person named as a victim in the indictment. They testified that Mr. Quintile drove his vehicle at two people, left the property on which the apartment building was located, and then came back and continued driving his vehicle at people.
The State's witnesses also testified that while Mr. Quintile was at the party, he first got into a fight with men who were talking to his ex-girlfriend. This led to one of the people who lived in the apartment building choking him until he lost consciousness. Then, after he returned a second time to the apartment building, people at the party threw rocks at his vehicle and after his vehicle got stuck on a tree stump, drug him out at the vehicle and started beating him up.
Mr. Quintile testified that he was at the party, and that he was choked, although he disagreed that he was causing any sort of disturbance with his ex-girlfriend. He testified that he after he was choked, he was dragged out to his SUV and put behind the wheel. He said that he had difficulty driving away from the apartment building because he was not totally aware of his surroundings.
He testified that he did come back to the property, but it was because he was concerned for his ex-girlfriend and not because he was angry. Once he came on the property, and bricks were thrown at his vehicle, his windshield was smashed and he couldn't see clearly.
The jury deliberated for over two hours before reaching a verdict. The State of Ohio was represented by Assistant Medina County Prosecutor Matt Razavi and Mr. Quintile was represented by Attorney Michael K. Astrab of Berea, Ohio.
Jury Gives Wadsworth Woman Less than Offered Before Trial
A jury trial in a personal injury case resulted in a verdict of $3000.00. The trial, which was conducted by Judge Christopher Collier, started on February 22 and ended on February 23. The lawsuit was brought by Mindy Kennell of Wadsworth, Ohio.
Ms. Kennell alleged that on April 26, 2006, she was driving her car in Wadsworth when she was struck from behind by Ms. Mae Grams, who also lived in Wadsworth. The collision took place at the intersection of State Route 94, which is also known as Main Street in the City of Wadsworth, a East Bergey Street.
Ms. Grams admitted that she was negligent in failing to bring her car to stop within an assured clear distance, but disputed the extent of Ms. Kennell’s injuries. According to court personeel, prior to trial, Ms. Kennell had made a demand of $20,000.00 and Ms. Grams’ insurance carrier had offered $5,000.00.
Ms. Kennell alleged that on April 26, 2006, she was driving her car in Wadsworth when she was struck from behind by Ms. Mae Grams, who also lived in Wadsworth. The collision took place at the intersection of State Route 94, which is also known as Main Street in the City of Wadsworth, a East Bergey Street.
Ms. Grams admitted that she was negligent in failing to bring her car to stop within an assured clear distance, but disputed the extent of Ms. Kennell’s injuries. According to court personeel, prior to trial, Ms. Kennell had made a demand of $20,000.00 and Ms. Grams’ insurance carrier had offered $5,000.00.
Tuesday, February 23, 2010
Are Lawyers and Judges Bad Drivers?
As a lawyer who is a judge, and who is married to a lawyer, I found this article about a report from a independent insurance agency in Solon, Ohio, to be pretty interesting. The article points out that this agency, which maintains a website for potential customers to use when applying for insurance, has been keep track of the accident history that people self-report when applying for insurance.
According to this agency's report, 44% of legal professionals seeking insurance report having a previous accident. This was the highest percentage of all occupations surveyed. The survey was based on single, primary drivers owning a single vehicle and was complied over a seven month period.
One of the officers of Insurance.com, the agency doing the survey, links the cause to the desire of legal professionals to "multi-task" while driving. Of course, another explanation could be that legal professionals are more conscientious about giving an accurate history of prior accidents.
No matter what the reason, the article is fascinating. Check it out.
According to this agency's report, 44% of legal professionals seeking insurance report having a previous accident. This was the highest percentage of all occupations surveyed. The survey was based on single, primary drivers owning a single vehicle and was complied over a seven month period.
One of the officers of Insurance.com, the agency doing the survey, links the cause to the desire of legal professionals to "multi-task" while driving. Of course, another explanation could be that legal professionals are more conscientious about giving an accurate history of prior accidents.
No matter what the reason, the article is fascinating. Check it out.
Monday, February 22, 2010
Judge Collier's Criminal Docket for February 22, 2010
Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Collier's courtroom on February 22, 2010, for criminal cases:
Tyler Diamond, 20, of Walnut Creek Drive in Strongsville, was sentenced to three years of community control sanctions on one count of Trafficking in Drugs, a fourth-degree felony, and three counts of Trafficking in Marijuana, all of which are fifth-degree felonies.
Jennifer Harrison, 28, of Inverness Avenue in Brunswick, was sentenced to one year in prison on two counts of Trafficking in Drugs, both of which are fourth-degree felonies, and two counts of Trafficking in Marijuana, both of which are fifth-degree felonies.
Kyle Kelling, 23, of Aldersyde Circle in Brunswick, was sentenced to five years of community control sanctions on one count of Trafficking in Marijuana, a fifth-degree felony.
Howard Williams, 26, of Marks Road in Valley City, was sentenced to three years of community control sanctions on one count of Trafficking in Drugs, a fourth-degree felony.
Alfonso Yunis, 36, of Broadview Road in Seven Hills, was sentenced to one year in prison on three counts of Trafficking in Cocaine, all of which are fifth-degree felonies. His 1994 Buick was ordered forfeited to law enforcement.
Miron Crossley, 24, of Detroit, Michigan, pleaded no contest and was sentenced to one year in prison on the following charges: one count of Possession of Drugs and one count of Having Weapons While Under Disability, both of which third-degree felonies, and one count of Carrying a Concealed Weapon, a fourth-degree felony. He was ordered to forfeit $3,875 to law enforcement.
Sean McManus, 27, of Bradley Road in Bay Village, pleaded guilty to one count of Theft, a fifth-degree felony. Sentencing is scheduled for April 5.
Robert Krumwiede, 20, of Crestwood Avenue in Wadsworth, pleaded not guilty to one count of Possession of Cocaine, a fifth-degree felony. A jury trial is scheduled for April 21
Tyler Diamond, 20, of Walnut Creek Drive in Strongsville, was sentenced to three years of community control sanctions on one count of Trafficking in Drugs, a fourth-degree felony, and three counts of Trafficking in Marijuana, all of which are fifth-degree felonies.
Jennifer Harrison, 28, of Inverness Avenue in Brunswick, was sentenced to one year in prison on two counts of Trafficking in Drugs, both of which are fourth-degree felonies, and two counts of Trafficking in Marijuana, both of which are fifth-degree felonies.
Kyle Kelling, 23, of Aldersyde Circle in Brunswick, was sentenced to five years of community control sanctions on one count of Trafficking in Marijuana, a fifth-degree felony.
Howard Williams, 26, of Marks Road in Valley City, was sentenced to three years of community control sanctions on one count of Trafficking in Drugs, a fourth-degree felony.
Alfonso Yunis, 36, of Broadview Road in Seven Hills, was sentenced to one year in prison on three counts of Trafficking in Cocaine, all of which are fifth-degree felonies. His 1994 Buick was ordered forfeited to law enforcement.
Miron Crossley, 24, of Detroit, Michigan, pleaded no contest and was sentenced to one year in prison on the following charges: one count of Possession of Drugs and one count of Having Weapons While Under Disability, both of which third-degree felonies, and one count of Carrying a Concealed Weapon, a fourth-degree felony. He was ordered to forfeit $3,875 to law enforcement.
Sean McManus, 27, of Bradley Road in Bay Village, pleaded guilty to one count of Theft, a fifth-degree felony. Sentencing is scheduled for April 5.
Robert Krumwiede, 20, of Crestwood Avenue in Wadsworth, pleaded not guilty to one count of Possession of Cocaine, a fifth-degree felony. A jury trial is scheduled for April 21
Brunswick Woman Wins Personal Injury Jury Trial
Alison Vitas of Creekside Boulevard in Brunswick, Ohio, won her personal injury jury trial last week in Judge Kimbler’s court. The jury was selected on Tuesday, February 16, and returned its verdict on February 18.
Ms. Vitas was injured in two separate accidents in January and March of 2007. One of the accidents took place in Logan County, Ohio, near Nelsonville and the second accident took place in Medina County on IS 71 in Brunswick, Ohio. In the first accident Ms. Vitas was a passenger in her car which one of her brothers was driving. In the second accident Ms. Vitas was driving her car when the accident occurred.
The first accident was caused by a Mr. Melvin Bond of Logan County. The second accident was caused by a Mr. Robert Cebula of Medina County. Since the second accident took place in Medina County, Ms. Vitas was allowed to file her lawsuit against both defendants in Medina County.
Mr. Bond and Mr. Cebula admitted that they were negligent and had caused their respective accidents. The only issue in the trial was what damages were attributable to Mr. Bond and what damages were attributable to Mr. Cebula.
The jury returned a total verdict of $24,815.00. The jury broke down the damages as follows: Ms. Vitas was awarded $21,443.00 against Mr. Bond and she was awarded $3372.00 against Mr. Cebula. Prior to trial, she had made a demand of $22,000.00 and the defendants had made a combined offer of $13,500.00.
Ms. Vitas was injured in two separate accidents in January and March of 2007. One of the accidents took place in Logan County, Ohio, near Nelsonville and the second accident took place in Medina County on IS 71 in Brunswick, Ohio. In the first accident Ms. Vitas was a passenger in her car which one of her brothers was driving. In the second accident Ms. Vitas was driving her car when the accident occurred.
The first accident was caused by a Mr. Melvin Bond of Logan County. The second accident was caused by a Mr. Robert Cebula of Medina County. Since the second accident took place in Medina County, Ms. Vitas was allowed to file her lawsuit against both defendants in Medina County.
Mr. Bond and Mr. Cebula admitted that they were negligent and had caused their respective accidents. The only issue in the trial was what damages were attributable to Mr. Bond and what damages were attributable to Mr. Cebula.
The jury returned a total verdict of $24,815.00. The jury broke down the damages as follows: Ms. Vitas was awarded $21,443.00 against Mr. Bond and she was awarded $3372.00 against Mr. Cebula. Prior to trial, she had made a demand of $22,000.00 and the defendants had made a combined offer of $13,500.00.
Saturday, February 20, 2010
Man Changes Plea During Trial, Gets 10 Years in Prison
James Polanski, 26, of Quincy Court in Medina, pleaded no contest February 18 to one count of Aggravated Robbery, a first-degree felony and one count of Robbery, a second-degree felony. The charges carried two firearm specifications and one repeat violent offender specification.
Judge Christopher Collier sentenced Polanski to 10 years in prison.
He walked into the First Merit Bank on North Court Street in Medina at approximately 4 p.m. on April 8, 2008 and robbed a teller at gunpoint. Polanski wore a hooded sweatshirt and a rudely crafted face-mask.
The teller put money in a bag, along with a dye pack. As Polanski ran out of the bank, the dye pack exploded, leaving red dye on the sweatshirt, which he took off, along with the mask. Police were able to recover both the sweatshirt and the mask and DNA was recovered from both items.
The Bureau of Criminal Investigation and Identification was able to tie Polanski to the crime because he was previously convicted of aggravated robbery and felonious assault in 2004. Both of those charges also carried firearm specifications. Polanski served four years in prison for that offense.
A jury was seated and the trial was into its third day when Polanski entered his plea.
Judge Christopher Collier sentenced Polanski to 10 years in prison.
He walked into the First Merit Bank on North Court Street in Medina at approximately 4 p.m. on April 8, 2008 and robbed a teller at gunpoint. Polanski wore a hooded sweatshirt and a rudely crafted face-mask.
The teller put money in a bag, along with a dye pack. As Polanski ran out of the bank, the dye pack exploded, leaving red dye on the sweatshirt, which he took off, along with the mask. Police were able to recover both the sweatshirt and the mask and DNA was recovered from both items.
The Bureau of Criminal Investigation and Identification was able to tie Polanski to the crime because he was previously convicted of aggravated robbery and felonious assault in 2004. Both of those charges also carried firearm specifications. Polanski served four years in prison for that offense.
A jury was seated and the trial was into its third day when Polanski entered his plea.
Friday, February 19, 2010
Medina County Ranks 22 out of 88 Counties in Percentage of Foreclosure Case Increase in 2009
According to a study issued on February 17, 2010, by the Ohio Supreme Court, Medina County ranked 22 out of Ohio's 88 counties in increases in foreclosures cases from 2008 to 2009. The study shows that in 2008 Medina County had 961 foreclosures cases. In 2009 Medina County had 1155 foreclosures cases. The 2009 figures represented an increase of 20.2%.
Over the last five years, Medina County's foreclosure cases have increased every year. The number of foreclosure cases filed during that period are as follows:
2005-607
2006-729
2007-859
2008-961
2009-1155
The above figures show that over the course of those five years, the number of foreclosure cases filed in the Medina County Common Pleas Court has gone up over 90%.
Over the last five years, Medina County's foreclosure cases have increased every year. The number of foreclosure cases filed during that period are as follows:
2005-607
2006-729
2007-859
2008-961
2009-1155
The above figures show that over the course of those five years, the number of foreclosure cases filed in the Medina County Common Pleas Court has gone up over 90%.
Ohio Supreme Court Report Shows that Ohio Foreclosures Increased in 2009
Supreme Court Numbers Show Total of 89,053 During Year
Ohio foreclosure case filings in 2009 again set a record, according to data released on February 17, 2010 by the Supreme Court of Ohio.
Common pleas courts across Ohio last year reported 89,053 new residential and commercial foreclosure case filings, marking the 14th consecutive annual increase. However, the increase in 2009 (3.8 percent) reflects the relatively steady, yet modest, increases of the past few years (5 percent in 2007 and 3 percent in 2008), which is notably slower growth than was seen in 2005 and 2006.
A quarter of Ohio’s 88 counties experienced a decline in foreclosure case filings in 2009 compared to 2008 with the remaining counties showing an increase in year-over-year foreclosures case filings except for Lawrence County, which held steady.
Morgan County showed the highest percentage increase (129.7 percent) in 2009 while Allen County showed the highest percentage decrease (30.7 percent). As for raw numbers, Cuyahoga County experienced the most new foreclosure case filings in 2009 with 14,171, although this total is less than the foreclosure case filings recorded in 2007. Noble County reported the fewest foreclosures case filings in 2009 with 32.
Ohio foreclosure case filings in 2009 again set a record, according to data released on February 17, 2010 by the Supreme Court of Ohio.
Common pleas courts across Ohio last year reported 89,053 new residential and commercial foreclosure case filings, marking the 14th consecutive annual increase. However, the increase in 2009 (3.8 percent) reflects the relatively steady, yet modest, increases of the past few years (5 percent in 2007 and 3 percent in 2008), which is notably slower growth than was seen in 2005 and 2006.
A quarter of Ohio’s 88 counties experienced a decline in foreclosure case filings in 2009 compared to 2008 with the remaining counties showing an increase in year-over-year foreclosures case filings except for Lawrence County, which held steady.
Morgan County showed the highest percentage increase (129.7 percent) in 2009 while Allen County showed the highest percentage decrease (30.7 percent). As for raw numbers, Cuyahoga County experienced the most new foreclosure case filings in 2009 with 14,171, although this total is less than the foreclosure case filings recorded in 2007. Noble County reported the fewest foreclosures case filings in 2009 with 32.
Thursday, February 18, 2010
Judge Kimbler's Criminal Docket for February 18, 2010
Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Kimbler's court on February 18, 2010, for criminal caess:
John C. Friedrichsen Jr., 48, of Edwards Road in Doylestown, was sentenced to seven months in prison on one count of Driving Under the Influence of Drugs or Alcohol, a fourth-degree felony. His driver’s license was suspended for three years.
Jeremy Griffitts, 30, of Wooster Street in Lodi, pleaded not guilty to one count of Having Weapons While Under Disability, a third-degree felony. A jury trial is scheduled for April 20.
Robert Krumwiede, 20, of Crestwood Avenue in Wadsworth, pleaded not guilty to one count of Possession of Cocaine, a fifth-degree felony. Sentencing is scheduled for April 21.
John C. Friedrichsen Jr., 48, of Edwards Road in Doylestown, was sentenced to seven months in prison on one count of Driving Under the Influence of Drugs or Alcohol, a fourth-degree felony. His driver’s license was suspended for three years.
Jeremy Griffitts, 30, of Wooster Street in Lodi, pleaded not guilty to one count of Having Weapons While Under Disability, a third-degree felony. A jury trial is scheduled for April 20.
Robert Krumwiede, 20, of Crestwood Avenue in Wadsworth, pleaded not guilty to one count of Possession of Cocaine, a fifth-degree felony. Sentencing is scheduled for April 21.
Tuesday, February 16, 2010
Judge Collier's Criminal Docket for February 16, 2010
Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Collier’s court for criminal cases on February 16, 2010:
William Culp, 48, of Byron Drive in Brunswick, was sentenced to six months in prison on one count of Assault of a Police Officer, a fourth-degree felony.
Thomas Dempsey, 46, of Shady Lane Road in Columbus, was sentenced to five years of community control sanctions on one count of Receiving Stolen Property, Credit Card, a fifth-degree felony.
Tyrell Shepherd, 20, of Albertly Avenue in Parma, was sentenced to three years of community control sanctions on one count of Carrying a Concealed Weapon and one count of Receiving Stolen Property, a Firearm, both of which are fourth-degree felonies.
Barbara Welty, 57, of Akron Road in Wadsworth, was sentenced to two years of community control sanctions on one count of Cultivation of Marijuana, a third-degree felony. Her driver’s license was suspended for six months and $608 was ordered forfeited to law enforcement.
Jerry Welty, 57, of Akron Road in Wadsworth, was sentenced to two years of community control sanctions on one count of Cultivation of Marijuana, a third-degree felony. His driver’s license was suspended for six months and $608 was ordered forfeited to law enforcement.
Deandre Baskerville, 23, of Mineola Avenue in Akron, pleaded guilty to one count of Possession of Marijuana, a fifth-degree felony. Sentencing is scheduled for March 29.
Michael Bell, 50, of North Medina Line Road in Richfield, pleaded not guilty to one count of Theft from the Elderly, a fourth-degree felony. A jury trial is scheduled for April 7.
Kyle Birt, 19, of Rush Avenue in Bellefontaine, pleaded no contest to one count of Possession of Cocaine, a fifth-degree felony. Sentencing is scheduled for April 5.
Angela Gibson-Askew, 41, of Donald Avenue in Akron, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for May 24.
Michael Graham, 22, of Congress Road in Lodi, pleaded guilty to one count of Possession of Heroin, a fifth-degree felony. Sentencing is scheduled for March 29.
Robert Padgett, 30, of Ruffner Extension Road in Rittman, pleaded not guilty to one count of Theft of a Credit Card, a fifth-degree felony. A jury trial is scheduled for April 21.
Richard Probst, 29, of Fairland Road in Clinton, pleaded not guilty to one count of Trafficking in Marijuana, a fourth-degree felony. A jury trial is scheduled for May 19.
Jason Tice, 40, of North Main Street in West Salem, pleaded not guilty to one count of Possession of Drugs, a fifth-degree felony. A jury trial is scheduled for May 17.
Eric Vormelker, 27, of Wooster Street in Lodi, pleaded not guilty to one count of Carrying a Concealed Weapon, a fourth-degree felony. A jury trial is scheduled for May 24.
William Culp, 48, of Byron Drive in Brunswick, was sentenced to six months in prison on one count of Assault of a Police Officer, a fourth-degree felony.
Thomas Dempsey, 46, of Shady Lane Road in Columbus, was sentenced to five years of community control sanctions on one count of Receiving Stolen Property, Credit Card, a fifth-degree felony.
Tyrell Shepherd, 20, of Albertly Avenue in Parma, was sentenced to three years of community control sanctions on one count of Carrying a Concealed Weapon and one count of Receiving Stolen Property, a Firearm, both of which are fourth-degree felonies.
Barbara Welty, 57, of Akron Road in Wadsworth, was sentenced to two years of community control sanctions on one count of Cultivation of Marijuana, a third-degree felony. Her driver’s license was suspended for six months and $608 was ordered forfeited to law enforcement.
Jerry Welty, 57, of Akron Road in Wadsworth, was sentenced to two years of community control sanctions on one count of Cultivation of Marijuana, a third-degree felony. His driver’s license was suspended for six months and $608 was ordered forfeited to law enforcement.
Deandre Baskerville, 23, of Mineola Avenue in Akron, pleaded guilty to one count of Possession of Marijuana, a fifth-degree felony. Sentencing is scheduled for March 29.
Michael Bell, 50, of North Medina Line Road in Richfield, pleaded not guilty to one count of Theft from the Elderly, a fourth-degree felony. A jury trial is scheduled for April 7.
Kyle Birt, 19, of Rush Avenue in Bellefontaine, pleaded no contest to one count of Possession of Cocaine, a fifth-degree felony. Sentencing is scheduled for April 5.
Angela Gibson-Askew, 41, of Donald Avenue in Akron, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for May 24.
Michael Graham, 22, of Congress Road in Lodi, pleaded guilty to one count of Possession of Heroin, a fifth-degree felony. Sentencing is scheduled for March 29.
Robert Padgett, 30, of Ruffner Extension Road in Rittman, pleaded not guilty to one count of Theft of a Credit Card, a fifth-degree felony. A jury trial is scheduled for April 21.
Richard Probst, 29, of Fairland Road in Clinton, pleaded not guilty to one count of Trafficking in Marijuana, a fourth-degree felony. A jury trial is scheduled for May 19.
Jason Tice, 40, of North Main Street in West Salem, pleaded not guilty to one count of Possession of Drugs, a fifth-degree felony. A jury trial is scheduled for May 17.
Eric Vormelker, 27, of Wooster Street in Lodi, pleaded not guilty to one count of Carrying a Concealed Weapon, a fourth-degree felony. A jury trial is scheduled for May 24.
Three Defendants Change Plea in Judge Kimbler's Court on Tuesday, February 16, 2010
Three defendants who were scheduled for court appearances on February 16, 2010, entered changes of plea in their cases. All were referred to the Medina County Adult Probation for a pre-sentence investigation. All three will be sentenced on March 25, 2010. The defendants are:
Johnnie D. Price, Jr., of 2010 George Drive, in Brunswick, Ohio. Mr. Price entered a plea of no contest to one count of Deception to Obtain a Dangerous Drug, a fifth degree felony.
Gage C. Brossa, of 2325 Auden Dr., in Brunswick, Ohio. Mr. Brossa entered a plea of "no contest" to four counts of Trafficking in Drugs, all fourth degree felonies.
Trinity Fonte, of 108 Aztec Road in Aberdeen, Maryland. Ms. Fonte entered a plea of "guilty" to one count of Theft, a first degree misdemeanor.
Johnnie D. Price, Jr., of 2010 George Drive, in Brunswick, Ohio. Mr. Price entered a plea of no contest to one count of Deception to Obtain a Dangerous Drug, a fifth degree felony.
Gage C. Brossa, of 2325 Auden Dr., in Brunswick, Ohio. Mr. Brossa entered a plea of "no contest" to four counts of Trafficking in Drugs, all fourth degree felonies.
Trinity Fonte, of 108 Aztec Road in Aberdeen, Maryland. Ms. Fonte entered a plea of "guilty" to one count of Theft, a first degree misdemeanor.
Judge Collier's Supreme Court Report for January, 2010
At the beginning of January, 2010, Judge Collier had 708 cases pending on his docket. During the month, 18 cases were either transferred to his docket, reactivated, or re-designated. During January, 104 new cases were filed and assigned to Judge Collier's docket. Consequently, during the month of January Judge Collier had 830 cases pending at some point on his docket.
The Ohio Supreme Court Report category that had the most new cases filed was foreclosures, with 38. Next was other civil with 35; criminal with 27 new cases; workers' compensation with 3 and other torts with one.
During January, Judge Collier terminated 96 cases, leaving 734 cases pending on his docket. In January, the category that saw the most terminations by Judge Collier was criminal with 35 terminations. The second biggest category for terminations was other civil with 29; followed by foreclosures with 26; workers' compensation with five; and other torts with one.
The Ohio Supreme Court Report category that had the most new cases filed was foreclosures, with 38. Next was other civil with 35; criminal with 27 new cases; workers' compensation with 3 and other torts with one.
During January, Judge Collier terminated 96 cases, leaving 734 cases pending on his docket. In January, the category that saw the most terminations by Judge Collier was criminal with 35 terminations. The second biggest category for terminations was other civil with 29; followed by foreclosures with 26; workers' compensation with five; and other torts with one.
Monday, February 15, 2010
Bill Would Give Condo Owners' Associations Priority Over Lenders in Foreclosures
There is a bill introduced in the Ohio House of Representatives that would give condominium owners associations priority over liens held by lenders in foreclosures. The bill, which is House Bill 408, would allow owner associations to receive up to six months of unpaid association dues before the lender received its money in the event of a foreclosure. The intention is that this money would then be available for the association to use in maintaining the common areas of the condominium development.
At the present time when a condominium unit is sold in a foreclosure sale, any unpaid taxes are paid first, followed by the amount owed to the lender who has the first mortgage. At best, a condominium association is going to be third in line behind the county treasurer and the bank. Since most condo owners stop paying the association when they default on their mortgages, the amount that is being lost by associations can be relatively large, especially if the foreclosure action is pending in court for a long time.
The bill is modeled on laws that have been adopted in at least a dozen other states. You can read more about this proposed law, and the problems that foreclosures are causing condo owners' associations by clicking here.
At the present time when a condominium unit is sold in a foreclosure sale, any unpaid taxes are paid first, followed by the amount owed to the lender who has the first mortgage. At best, a condominium association is going to be third in line behind the county treasurer and the bank. Since most condo owners stop paying the association when they default on their mortgages, the amount that is being lost by associations can be relatively large, especially if the foreclosure action is pending in court for a long time.
The bill is modeled on laws that have been adopted in at least a dozen other states. You can read more about this proposed law, and the problems that foreclosures are causing condo owners' associations by clicking here.
Sunday, February 14, 2010
State Officials Argue that Community Control Sanctions are Cheaper, More Effective than Incarceration
There is a very interesting article that appeared on the website of the Willoughby News-Herald concerning the relative cost and effectiveness of using community control sanctions to punish offenders as opposed to prison. Community control sanctions include supervision by a probation department, community service, restitution, drug treatment, counseling, and other programs designed to reduce recidivism.
According to state officials, 60% of people sent to prison serve less than 12 months. Those prisoners are mostly fourth and fifth degree felonies. In Ohio the maximum sentence for a fourth degree felon is 18 months and for a fifth degree felon it is 12 months.
In 1996 Ohio adopted a new sentencing protocol in which judges who are sentencing fourth and fifth degree felons were to presume that community control sanctions should be applied unless the sentencing judge could make specific findings to overcome that presumption. The 1996 law also mandated that when judges sentenced defendants convicted of first and second degree felonies, there were to presume that such defendants should be sentenced to prison.
From 1998 to 2004, following the application of the 1996 sentencing protocol, the state's prison population declined. However, over the last three years, the state's prison population has begun to increase. In 2008 there were 50,371 inmates incarcerated in Ohio's prisons. If this trend continues, there will be an increase of 11% in Ohio's prison population over the next 10 years. The State projects that it will cost 925 million to accommodate this increase in the state's prison population. The cost would include both new facilities and additional operating costs.
Part of this increase may be due to a Ohio Supreme Court decision. In 2006 the Supreme Court of Ohio handed down the State v. Foster decision. (This decision is found at 109 Ohio St.3d 1, 2006-Ohio-856.) This decision declared unconstitutional certain aspects of the sentencing protocol adopted in 1996. As a result of this decision, Ohio judges no longer had to worry about applying the presumptions in favor of community control sanctions for fourth and fifth degree felonies. Whether this decision led to the increase in the state's prison population is not addressed in the News-Herald article.
The News-Herald article points out that in Lake County, the sheriff's office estimates that it costs $24,220.00 per year to house a prisoner in the jail. It only costs $1500.00 to supervise a defendant who is on probation for one year. The same result was also reported for Geauga County.
What the News-Herald article doesn't address, however, is a comparison of the recidivism rates for fourth and fifth degree felons who are sent to prison as opposed to being put on community control sanctions. Only if that information is know, can a true comparison of the effectiveness of both sentencing schemes be analyzed.
Despite the lack of that information, however, the News-Herald article is well worth the time it takes to read it.
(If you have any questions about Ohio's criminal sentencing laws, send them to judgejameskimbler@yahoo.com. If I can ethically answer them, I will.)
According to state officials, 60% of people sent to prison serve less than 12 months. Those prisoners are mostly fourth and fifth degree felonies. In Ohio the maximum sentence for a fourth degree felon is 18 months and for a fifth degree felon it is 12 months.
In 1996 Ohio adopted a new sentencing protocol in which judges who are sentencing fourth and fifth degree felons were to presume that community control sanctions should be applied unless the sentencing judge could make specific findings to overcome that presumption. The 1996 law also mandated that when judges sentenced defendants convicted of first and second degree felonies, there were to presume that such defendants should be sentenced to prison.
From 1998 to 2004, following the application of the 1996 sentencing protocol, the state's prison population declined. However, over the last three years, the state's prison population has begun to increase. In 2008 there were 50,371 inmates incarcerated in Ohio's prisons. If this trend continues, there will be an increase of 11% in Ohio's prison population over the next 10 years. The State projects that it will cost 925 million to accommodate this increase in the state's prison population. The cost would include both new facilities and additional operating costs.
Part of this increase may be due to a Ohio Supreme Court decision. In 2006 the Supreme Court of Ohio handed down the State v. Foster decision. (This decision is found at 109 Ohio St.3d 1, 2006-Ohio-856.) This decision declared unconstitutional certain aspects of the sentencing protocol adopted in 1996. As a result of this decision, Ohio judges no longer had to worry about applying the presumptions in favor of community control sanctions for fourth and fifth degree felonies. Whether this decision led to the increase in the state's prison population is not addressed in the News-Herald article.
The News-Herald article points out that in Lake County, the sheriff's office estimates that it costs $24,220.00 per year to house a prisoner in the jail. It only costs $1500.00 to supervise a defendant who is on probation for one year. The same result was also reported for Geauga County.
What the News-Herald article doesn't address, however, is a comparison of the recidivism rates for fourth and fifth degree felons who are sent to prison as opposed to being put on community control sanctions. Only if that information is know, can a true comparison of the effectiveness of both sentencing schemes be analyzed.
Despite the lack of that information, however, the News-Herald article is well worth the time it takes to read it.
(If you have any questions about Ohio's criminal sentencing laws, send them to judgejameskimbler@yahoo.com. If I can ethically answer them, I will.)
Saturday, February 13, 2010
Does a Judge's Race, Gender, or Political Affiliation Make a Difference in How Cases are Determined??
There is a fascinating article online that is posted on the American Bar Association Journal website about a recent study by law professors from Pittsburgh.
The studies claim that in cases involving allegations of racial and sexual harassment, the race and gender of the judges led to different results, although not different procedural rulings. That is, the studies indicate that all judges applied the law in the same manner, but that different judges reached different factual conclusions depending on their backgrounds.
According to the article, the studies were made of cases in the Federal court system. They apparently covered both trial and appellate courts. In the case of the racial harassment study, the authors looked at a random selection of 40% of all such cases handled in six federal circuit court of appeals. In the sexual harassment study, the authors looked at 556 cases in the federal appellate courts.
In the racial harassment study, the authors found that plaintiffs "...lost just 54 percent of the time when the judge handling the case was an African-American. Yet plaintiffs lost 81 percent of the time when the judge was Hispanic, 79 percent when the judge was white, and 67 percent of the time when the judge was Asian American."
The study also shows that political affiliation was important, at least in the study of the racial harassment cases. This is a quote from the study regarding racial harassment: "As shown in Table 3, judges appointed by a Democratic President (“Democratic judges”) held for the plaintiff in 29.3% of the cases, in contrast to judges appointed by a Republican President (“Republican judges”) who held for the plaintiff only 17% of the time."
While lawyers may not be surprised by these findings, people who are not lawyers may find these results disconcerting. Most people want to believe that a judge is only influenced by the law and that he or she does not allow their background to influence how they decide cases.
There is also some interesting information in the racial harassment study concerning the racial breakdown of judges in both state courts and federal courts. The racial harassment study can be read online in a pdf format. You can read the article by clicking here.
The studies claim that in cases involving allegations of racial and sexual harassment, the race and gender of the judges led to different results, although not different procedural rulings. That is, the studies indicate that all judges applied the law in the same manner, but that different judges reached different factual conclusions depending on their backgrounds.
According to the article, the studies were made of cases in the Federal court system. They apparently covered both trial and appellate courts. In the case of the racial harassment study, the authors looked at a random selection of 40% of all such cases handled in six federal circuit court of appeals. In the sexual harassment study, the authors looked at 556 cases in the federal appellate courts.
In the racial harassment study, the authors found that plaintiffs "...lost just 54 percent of the time when the judge handling the case was an African-American. Yet plaintiffs lost 81 percent of the time when the judge was Hispanic, 79 percent when the judge was white, and 67 percent of the time when the judge was Asian American."
The study also shows that political affiliation was important, at least in the study of the racial harassment cases. This is a quote from the study regarding racial harassment: "As shown in Table 3, judges appointed by a Democratic President (“Democratic judges”) held for the plaintiff in 29.3% of the cases, in contrast to judges appointed by a Republican President (“Republican judges”) who held for the plaintiff only 17% of the time."
While lawyers may not be surprised by these findings, people who are not lawyers may find these results disconcerting. Most people want to believe that a judge is only influenced by the law and that he or she does not allow their background to influence how they decide cases.
There is also some interesting information in the racial harassment study concerning the racial breakdown of judges in both state courts and federal courts. The racial harassment study can be read online in a pdf format. You can read the article by clicking here.
Should Cell Phones be Banned from Courthouses?
By Judge James Kimbler
Judges of the Erie County Court of Common Pleas, which is located in Sandusky, Ohio, have adopted a local rule of court that bans cell phones, laptop computers and notebook computers from the courthouse. This ban affects jurors, witnesses, and parties to lawsuits. According to a online article about the Erie County policy,"Court workers, lawyers, law enforcement officers and news media are exempt from the new rule."
The article linked to above points out that this policy is based on similar policies adopted in Licking and Lucas counties. The article also refers to a mistrial in Cuyahoga County Common Pleas Court. Judge John Russo found out that a juror had sent a text message to an attorney asking a legal question about the felonious assault case the juror was hearing.
The Erie County judges seem to be concerned about jurors and trial participants using cell phones and portable computers to take pictures of trial participants, do their own legal research while a trial is in progress, or text or record what witnesses are saying in order to allow other witnesses to tailor their testimony.
Similar bans have been adopted in other counties such as Stark County and Knox County. These bans are sometimes imposed just on participants in trials while other bans are more comprehensive, affecting everyone who comes into the courthouse.
So far the Ohio Supreme Court has not used its rule making power to adopt a comprehensive rule that would coverall Ohio counties and all Ohio courts. When you consider the diversity in Ohio among its 88 counties in terms of population and financial resources, it is hard to imagine the Ohio Supreme Court doing so in the near feature.
This rule could negatively impact people called for jury duty. Jurors often use their cell phones to talk with babysitters, other family members, and to keep up with work while they are on jury duty. Having to go to their car to use their cell phones or get them from court personnel might be more than a little inconvenient. It also might make people less willing to serve on juries.
Interestingly enough, the biggest problem that I have ever had as a judge with a juror using computers didn't involve a cell phone or laptop. It involved a juror going home one night during a two week medical malpractice, researching how often the defendant doctor had been sued for malpractice and then coming in the next day and sharing that information with the rest of the jury panel. The result was a mistrial and waste of thousands of dollars in trial expense for both parties. A ban on cell phones or laptop computers wouldn't have prevented the mistrial in that case.
If anyone knows of other counties which have instituted such bans, please send me information about the ban, and your reaction to it, at judgejameskimbler@yahoo.com. For more information on such bans in other parts of the United States, click here.
Judges of the Erie County Court of Common Pleas, which is located in Sandusky, Ohio, have adopted a local rule of court that bans cell phones, laptop computers and notebook computers from the courthouse. This ban affects jurors, witnesses, and parties to lawsuits. According to a online article about the Erie County policy,"Court workers, lawyers, law enforcement officers and news media are exempt from the new rule."
The article linked to above points out that this policy is based on similar policies adopted in Licking and Lucas counties. The article also refers to a mistrial in Cuyahoga County Common Pleas Court. Judge John Russo found out that a juror had sent a text message to an attorney asking a legal question about the felonious assault case the juror was hearing.
The Erie County judges seem to be concerned about jurors and trial participants using cell phones and portable computers to take pictures of trial participants, do their own legal research while a trial is in progress, or text or record what witnesses are saying in order to allow other witnesses to tailor their testimony.
Similar bans have been adopted in other counties such as Stark County and Knox County. These bans are sometimes imposed just on participants in trials while other bans are more comprehensive, affecting everyone who comes into the courthouse.
So far the Ohio Supreme Court has not used its rule making power to adopt a comprehensive rule that would coverall Ohio counties and all Ohio courts. When you consider the diversity in Ohio among its 88 counties in terms of population and financial resources, it is hard to imagine the Ohio Supreme Court doing so in the near feature.
This rule could negatively impact people called for jury duty. Jurors often use their cell phones to talk with babysitters, other family members, and to keep up with work while they are on jury duty. Having to go to their car to use their cell phones or get them from court personnel might be more than a little inconvenient. It also might make people less willing to serve on juries.
Interestingly enough, the biggest problem that I have ever had as a judge with a juror using computers didn't involve a cell phone or laptop. It involved a juror going home one night during a two week medical malpractice, researching how often the defendant doctor had been sued for malpractice and then coming in the next day and sharing that information with the rest of the jury panel. The result was a mistrial and waste of thousands of dollars in trial expense for both parties. A ban on cell phones or laptop computers wouldn't have prevented the mistrial in that case.
If anyone knows of other counties which have instituted such bans, please send me information about the ban, and your reaction to it, at judgejameskimbler@yahoo.com. For more information on such bans in other parts of the United States, click here.
Supporting Businesses in a Tough Economy
by Ohio Attorney General Richard Cordray
Ohio's economy is made up of tens of thousands of small businesses, and at its heart are those entrepreneurs who set out to make a difference, to make their mark and to do it their way. From the auto repair shop in Cleveland to the software engineering firm in Toledo to the daycare center in Cincinnati, Ohio's small businesses are the driving force behind Ohio's economy. In fact, 85 percent of Ohio businesses have fewer than 20 employees.
As someone who has run a small business myself, I understand their importance to Ohio's economic growth, and my office and I want to help them grow and prosper. So we are starting a new initiative that we hope will help small businesses deal with those who try to exploit them.
One of the Ohio Attorney General's primary duties over the years has been protecting individual consumers from fraud and unfair business transactions. However, small businesses and nonprofits who are victimized by scams previously have not been able to file such complaints.
Now, for the first time ever, the office has made this service available to small businesses. In July, we opened up the complaint process to a test market of these enterprises. In just six months, we received complaints from more than 500 businesses, and we recovered more than $60,000 for them. We also are offering this new service to nonprofit organizations such as libraries, churches and others who improve the quality of life in our communities and deserve the same protections from the Attorney General.
Businesses that order products that are not delivered, receive shoddy services or otherwise get ripped off can now file a complaint with my office. We offer an informal dispute resolution service through which we may be able to resolve complaints and help get money back for those who have been scammed. Complaints also give us the kind of evidence we need to take legal action against scammers and predators.
Hundreds of scenarios have come through our office already. They have painted a clear picture: Ohio's small businesses can use our support, and I am proud to say they have it.
Here are just a few stories from businesses and nonprofits that have already filed complaints:
A Trotwood trucking company employee purchased a truck over the Internet for more than $8,000. After paying for the product, the supplier failed to deliver and refused to return phone calls. The Attorney General's Office resolved the issue and the trucking company received its purchase.
A West Jefferson library was charged for a Web service that it never authorized. We recovered $244.
A Columbus auto repair company was charged $849 for a Web site advertisement listing that it never authorized. We resolved the issue and the auto repair company did not have to pay the charges.
The types of issues that the Attorney General's office can help resolve include:
Invoices for unauthorized advertisements.
Payment for a product or service that was never received.
Overcharges for property repairs and improvements or performing work poorly.
Disputed invoices for office supplies.
Sometimes we will be able to recover $100; other times it may be as much as $10,000.
Either way, helping our small businesses avoid being nickel-and-dimed is well worth the effort. If you yourself or any small business or nonprofit you know has been targeted by unfair practices, take a few moments to file a complaint with my office at www.OhioAttorneyGeneral.gov/Complaint or call us at (800) 282-0515. We are glad to stand on your side.
Richard Cordray is Ohio Attorney General. For updates about the office's work protecting small businesses and consumers, and for other updates, visit www.OhioAttorneyGeneral.gov/SignUp
Judge Kimbler's Criminal Docket for February 12, 2010
Medina County Dean Prosecutor Dean Holman reported that following people appeared in Judge Kimbler's court on February 12, 2010, for criminal cases:
Jeffrey Berlin, 38, of East Ohio Avenue in Rittman, was sentenced to two years of community control sanctions on one count of Ilegal Processing of Drug Documents, a fifth-degree felony.
Timothy Fueglein, 26, of Longview Road in Medina, was sentenced to three years of community control sanctions on one count of Receiving Stolen Property, Credit Card, a fifth-degree felony.
David Huckoby, 31, of Clark Avenue in Cleveland, was sentenced to four years in prison on one count of Felonious Assault, a second-degree felony.
Traounci Short, 38, of Westview Road in Cleveland, was sentenced to five years of community control sanctions on one count of Non-Support of Dependents, a fourth-degree felony.
Stephen Swain, 26, of Knickerbocker Road in Sheffield Lake, was sentenced to three years of community control sanctions on one count of Domestic Violence, a fourth-degree felony.
Arlene Dobbins, 48, of Elyria Street in Lodi, pleaded not guilty to one count of Assault of a Peace Officer, a fourth-degree felony. A jury trial is scheduled for April 13.
Kimberly Henry, 27, of Springbrook Drive in Medina, pleaded not guilty to one count of Trafficking in Heroin Within the Vicinity of a Juvenile or School and one count of Possession of Heroin, both of which are fourth-degree felonies. Forfeiture specifications are attached to both charges. A jury trial is scheduled for April 12.
Robert Mooney, 26, of Madera Drive in Lodi, pleaded not guilty to one count of Possession of Cocaine, a fourth-degree felony. A jury trial is scheduled for April 13.
Robert Mote, 29, of Trease Road in Wadsworth, pleaded not guilty to one count of Possession of Heroin, a fifth-degree felony. A jury trial is scheduled for April 7
Kimberlee Palma, 23, of Canal Fulton Road in Marshallville, pleaded not guilty to the following charges: two counts of Robbery, one of which is a second-degree felony and one of which is a third-degree felony; and one count of Vandalism, a fifth-degree felony. A jury trial is scheduled for April 5.
Allen Pawl, 32, of Springbrook Drive in Medina, pleaded not guilty to one count of Trafficking in Heroin Within the Vicinity of a Juvenile or School and one count of Possession of Heroin, both of which are fourth-degree felonies. Forfeiture specifications are attached to both charges. A jury trial is scheduled for April 19.
Correy Steele, 19, of Ridge Road in Wadsworth, pleaded not guilty to one count of Vandalism, a fifth-degree felony. A jury trial is scheduled for April 13.
Randall Weekly, 30, of Portage Street in Doylestown, pleaded not guilty to three counts of Breaking and Entering and three counts of Vandalism, all of which are fifth-degree felonies. A jury trial is scheduled for April 12.
Jeffrey Berlin, 38, of East Ohio Avenue in Rittman, was sentenced to two years of community control sanctions on one count of Ilegal Processing of Drug Documents, a fifth-degree felony.
Timothy Fueglein, 26, of Longview Road in Medina, was sentenced to three years of community control sanctions on one count of Receiving Stolen Property, Credit Card, a fifth-degree felony.
David Huckoby, 31, of Clark Avenue in Cleveland, was sentenced to four years in prison on one count of Felonious Assault, a second-degree felony.
Traounci Short, 38, of Westview Road in Cleveland, was sentenced to five years of community control sanctions on one count of Non-Support of Dependents, a fourth-degree felony.
Stephen Swain, 26, of Knickerbocker Road in Sheffield Lake, was sentenced to three years of community control sanctions on one count of Domestic Violence, a fourth-degree felony.
Arlene Dobbins, 48, of Elyria Street in Lodi, pleaded not guilty to one count of Assault of a Peace Officer, a fourth-degree felony. A jury trial is scheduled for April 13.
Kimberly Henry, 27, of Springbrook Drive in Medina, pleaded not guilty to one count of Trafficking in Heroin Within the Vicinity of a Juvenile or School and one count of Possession of Heroin, both of which are fourth-degree felonies. Forfeiture specifications are attached to both charges. A jury trial is scheduled for April 12.
Robert Mooney, 26, of Madera Drive in Lodi, pleaded not guilty to one count of Possession of Cocaine, a fourth-degree felony. A jury trial is scheduled for April 13.
Robert Mote, 29, of Trease Road in Wadsworth, pleaded not guilty to one count of Possession of Heroin, a fifth-degree felony. A jury trial is scheduled for April 7
Kimberlee Palma, 23, of Canal Fulton Road in Marshallville, pleaded not guilty to the following charges: two counts of Robbery, one of which is a second-degree felony and one of which is a third-degree felony; and one count of Vandalism, a fifth-degree felony. A jury trial is scheduled for April 5.
Allen Pawl, 32, of Springbrook Drive in Medina, pleaded not guilty to one count of Trafficking in Heroin Within the Vicinity of a Juvenile or School and one count of Possession of Heroin, both of which are fourth-degree felonies. Forfeiture specifications are attached to both charges. A jury trial is scheduled for April 19.
Correy Steele, 19, of Ridge Road in Wadsworth, pleaded not guilty to one count of Vandalism, a fifth-degree felony. A jury trial is scheduled for April 13.
Randall Weekly, 30, of Portage Street in Doylestown, pleaded not guilty to three counts of Breaking and Entering and three counts of Vandalism, all of which are fifth-degree felonies. A jury trial is scheduled for April 12.
Physician-Patient Privilege
by Ohio Supreme Court Justice Paul Pfeifer
Most people are familiar with the concept of physician-patient privilege. Here at the Supreme Court of Ohio we recently reviewed a case that focused on that subject. The case involved Dr. William Schlotterer and Medical Mutual of Ohio, which provided coverage to many of Schlotterer’s patients.
To document the services that he provides to his patients, Schlotterer submits reports to Medical Mutual detailing the services rendered; the insurance company accordingly reimburses him. As part of these reports, Schlotterer assigns AMA-developed codes to each patient visit, based on his assessment of the patient’s condition, the extent of the examination and so forth.
Medical Mutual compensates Schlotterer based on the codes he assigns. The code warranting the highest reimbursement, to be used “rarely” and only for “complex medical decisions,” is 99215.
A review of Schlotterer’s billing reports in 2004 revealed a high percentage of 99215 code submissions. Medical Mutual then requested medical records for ten families, which Schlotterer provided. After reviewing those records the insurer determined that the 99215 billing code was not warranted in those cases. A subsequent investigation into Schlotterer’s coding practices allegedly revealed that he had been overpaid by almost $270,000 for 99215 code submissions.
Medical Mutual filed a complaint against Schlotterer for – among other things – fraud. Schlotterer denied the allegations. To determine the amount of the alleged fraud, Medical Mutual filed a motion for an order directing Schlotterer “to respond to discovery” of patient records. These records were to have obscured any information that would identify the patients. Schlotterer opposed the motion based on the physician-patient privilege.
The certificates of coverage issued to Schlotterer’s Medical Mutual patients include the following language: “You consent to the release of medical information to Medical Mutual when you…sign an Application. When you present your identification card…you are also giving your consent to release medical information to Medical Mutual,” which “has the right to refuse to reimburse for Covered Services if you refuse to consent to the release of any medical information.”
The participation agreement signed by Schlotterer contains similar provisions: “Provider agrees to furnish, upon request, to Medical Mutual…all requested Records relating to claims filed with Medical Mutual.”
Given that, the trial court granted Medical Mutual’s motion, ordering Schlotterer to respond to the discovery requests. Schlotterer appealed, and the court of appeals vacated the trial court’s decision, holding that the order to comply with the discovery requests violated the physician-patient privilege. After that, the case came before us for final review.
The physician-patient privilege is designed to “promote health by encouraging a patient to fully and freely disclose all relevant information which may assist the physician in treating the patient.” Under Ohio law, medical records are generally privileged from disclosure. The privilege does not apply, however, where the patient has given express consent to disclosure.
A consent to the release of medical information is valid, and waives the physician-patient privilege, if it is voluntary, express, and reasonably specific in identifying to whom the information is delivered. The requirement of specificity allows patients to know exactly who will have access to their medical records in order for them to make an informed decision regarding waiver of the privilege.
The majority of our court concluded that the certificates of coverage provided to Schlotterer’s patients met the necessary requirements for disclosure: they were voluntary, qualified as express consent, and the “provisions are reasonably specific in identifying to whom the release is made” – Medical Mutual.
Schlotterer argued that the release did not authorize Medical Mutual to investigate fraud; instead he claimed that the consent forms allowed for review of the medical records only before the insurer makes a coverage determination. By a six-to-one vote our court disagreed.
The majority maintained that the language in the consent form does not limit the release to permission to determine whether services will be reimbursed, but merely explains the consequences should a patient withdraw his consent. Because Schlotterer’s patients consented to release their medical information to Medical Mutual, the majority concluded that the consent exception to the physician-patient privilege applies in this case.
I concurred with part of the majority opinion, but I also dissented in part. The insureds in this case did not consent to release medical information to enable Medical Mutual to pursue a lawsuit against a doctor; they consented to release medical information to enable Medical Mutual to determine whether specific insurance claims should be paid.
The insureds upheld their end of the bargain: their medical information was available to the insurance company before the claims were paid. Once the claims had been paid, Medical Mutual, in effect, attempted to contort a specific, single-purpose consent to release into a general, all-purpose consent to release.
One thing is abundantly clear: the insureds did not consent to the release of their medical information for any purpose other than to determine whether their claims would be paid. Because the claims have been paid, the consent to release is no longer available to the insurance company. Therefore, I believe that the majority’s interpretation of the consent to release in this case is much too broad.
Nevertheless, the information sought by Medical Mutual should be available to it to pursue a claim against Schlotterer for fraud. Thus, I would have adopted a new exception to the physician-patient privilege – one suggested by the Ohio State Medical Association and American Medical Association.
They said, “the exception should be narrowly defined and applied only after a demonstrated compelling need for the information sought.” Adopting a more narrow exception would allow insurance companies to pursue claims against allegedly fraudulent doctors without eroding the physician-patient privilege.
The result that the majority opinion reached is laudable because its effect is to allow an insurance company to combat fraud, but the means used are too general and too likely to result in further litigation to determine the bounds of the general exception.
Nonetheless, the majority opinion reversed the judgment of the court of appeals and sent this case back to the trial court for further proceedings.
EDITOR’S NOTE: The case referred to is: Med. Mut. Of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496. Case No. 2008-0598. Decided June 3, 2009. Majority opinion written by Chief Justice Thomas J. Moyer.
Tuesday, February 09, 2010
Judge Collier's Criminal Docket for February 8, 2010
Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Collier’s court on February 8, 2010:
Leslie Prokay, 37, of Warwick Drive in Parma, was sentenced to six months in prison for a probation violation on an original charge of Possession of Drugs, a fifth-degree felony.
Leroy Thomas, 41, of West Liberty Street in Medina, was sentenced to one year in prison on one count of Sexually Oriented Offender Failure to Give Notice of Change of Address Within New County, a third-degree felony.
Keith Wright, 29, of Columbus, was sentenced to two years of community control sanctions on one count of Possession of Marijuana, a fifth-degree felony.
Larry Adkins, 60, of Eric Lane in Wadsworth, pleaded not guilty to one count of Attempted Murder, a first-degree felony, and one count of Menacing by Stalking, a fourth-degree felony. A jury trial is scheduled for May 10.
Cheryl Andrasak, 51, of Diana Drive in Brunswick, pleaded guilty to one count of Trafficking in Drugs, a fourth-degree felony, and one count of Permitting Drug Abuse, a fifth-degree felony. Sentencing is scheduled for March 22.
James Croft, 38, of 5th Street SE in Barberton, pleaded not guilty to one count of Domestic Violence, a third-degree felony. A jury trial is scheduled for April 21.
Kody Romans, 19, of Medina Street in Lodi, pleaded not guilty to three counts of Trafficking in Marijuana, all of which are fifth-degree felonies. Forfeiture specifications are attached to each charge. A jury trial is scheduled for May 10.
Randy Thomas, 39, of Talbot Avenue in Akron, pleaded not guilty to one count of Possession of Cocaine, a second-degree felony. A jury trial is scheduled for April 28.
Leslie Prokay, 37, of Warwick Drive in Parma, was sentenced to six months in prison for a probation violation on an original charge of Possession of Drugs, a fifth-degree felony.
Leroy Thomas, 41, of West Liberty Street in Medina, was sentenced to one year in prison on one count of Sexually Oriented Offender Failure to Give Notice of Change of Address Within New County, a third-degree felony.
Keith Wright, 29, of Columbus, was sentenced to two years of community control sanctions on one count of Possession of Marijuana, a fifth-degree felony.
Larry Adkins, 60, of Eric Lane in Wadsworth, pleaded not guilty to one count of Attempted Murder, a first-degree felony, and one count of Menacing by Stalking, a fourth-degree felony. A jury trial is scheduled for May 10.
Cheryl Andrasak, 51, of Diana Drive in Brunswick, pleaded guilty to one count of Trafficking in Drugs, a fourth-degree felony, and one count of Permitting Drug Abuse, a fifth-degree felony. Sentencing is scheduled for March 22.
James Croft, 38, of 5th Street SE in Barberton, pleaded not guilty to one count of Domestic Violence, a third-degree felony. A jury trial is scheduled for April 21.
Kody Romans, 19, of Medina Street in Lodi, pleaded not guilty to three counts of Trafficking in Marijuana, all of which are fifth-degree felonies. Forfeiture specifications are attached to each charge. A jury trial is scheduled for May 10.
Randy Thomas, 39, of Talbot Avenue in Akron, pleaded not guilty to one count of Possession of Cocaine, a second-degree felony. A jury trial is scheduled for April 28.
Brunswick Woman Changes Plea in Receiving Stolen Property Case
Alexandria E. Albright of 451 Mohawk Trail in Brunswick, Ohio, changed her plea in Judge Kimbler's courtroom on Tuesday, February 9, 2010. She entered a plea of no contest to the charge of Receiving Stolen Property, a fifth degree felony. The property involved was jewelry that was stolen from a man who lived on Jefferson Avenue in Brunswick.
Judge Kimbler took the change of plea, found her guilty of the offense and referred her to the Medina County Adult Probation Department for a pre-sentence investigation. Judge Kimbler will sentence her on March 25, 2010.
At the change of plea hearing the State was represented by Medina County Dean Holman's office and the assistant prosecutor handling the case was Mr. Matt Razavi. Ms. Albright was represented by Attorney Ronald Spears of Medina.
Judge Kimbler took the change of plea, found her guilty of the offense and referred her to the Medina County Adult Probation Department for a pre-sentence investigation. Judge Kimbler will sentence her on March 25, 2010.
At the change of plea hearing the State was represented by Medina County Dean Holman's office and the assistant prosecutor handling the case was Mr. Matt Razavi. Ms. Albright was represented by Attorney Ronald Spears of Medina.
Monday, February 08, 2010
Judge Kimbler's Supreme Court Report for January, 2010
At the beginning of January of 2010, Judge Kimbler had 745 cases pending on his individual docket. Pending cases broke down as follows:
Professional Tort: 6
Product Liability: 0
Other Torts: 81
Workers Compensation: 28
Foreclosures: 255
Administrative Appeal: 7
Complex Litigation: 4
Other Civil: 235
Criminal: 129
During the month of January, 2010, 97 new cases were assigned to Judge Kimbler's docket. New cases filed broke down as follows:
Professional Tort: 1
Other Torts: 9
Workers Compensation: 6
Foreclosures: 33
Other Civil: 28
Criminal: 20
Adding the above figures to the cases reactivated or transferred to Judge Kimbler's docket, (21), meant that during January Judge Kimbler had 863 cases pending at some point on his docket.
During January, Judge Kimbler terminated 114 cases. Terminated cases broke down as follows:
Professional Tort: 2
Other Torts: 6
Workers Compensation: 1
Foreclosures: 24
Complex Litigation: 1
Other Civil: 41
Criminal: 39
At the end of January, 2010, Judge Kimbler had 749 cases pending on his individual docket. Pending cases at the end of the month broke down as follows:
Professional Tort: 5
Product Liability: 0
Other Torts: 84
Workers Compensation: 34
Foreclosures: 265
Administrative Appeal: 7
Complex Litigation: 3
Other Civil: 225
Criminal: 126
Professional Tort: 6
Product Liability: 0
Other Torts: 81
Workers Compensation: 28
Foreclosures: 255
Administrative Appeal: 7
Complex Litigation: 4
Other Civil: 235
Criminal: 129
During the month of January, 2010, 97 new cases were assigned to Judge Kimbler's docket. New cases filed broke down as follows:
Professional Tort: 1
Other Torts: 9
Workers Compensation: 6
Foreclosures: 33
Other Civil: 28
Criminal: 20
Adding the above figures to the cases reactivated or transferred to Judge Kimbler's docket, (21), meant that during January Judge Kimbler had 863 cases pending at some point on his docket.
During January, Judge Kimbler terminated 114 cases. Terminated cases broke down as follows:
Professional Tort: 2
Other Torts: 6
Workers Compensation: 1
Foreclosures: 24
Complex Litigation: 1
Other Civil: 41
Criminal: 39
At the end of January, 2010, Judge Kimbler had 749 cases pending on his individual docket. Pending cases at the end of the month broke down as follows:
Professional Tort: 5
Product Liability: 0
Other Torts: 84
Workers Compensation: 34
Foreclosures: 265
Administrative Appeal: 7
Complex Litigation: 3
Other Civil: 225
Criminal: 126
Local High School Teams Participate in 2010 Mock Trial Competition
On Friday, February 5, 2010, six teams of high school students from Buckeye and Cloverleaf Senior High Schools participated in the 2010 Ohio High School Mock Trial District Competition at the Medina County Courthouse. Judge Kimbler participated as a presiding judge in two of the trials. This year's competition took up the issue of whether a school district could suspend a student for criticizing a teacher on a blog that was accessed by other students during school hours.
Buckeye and Cloverleaf each fielded three teams. The mock trials took place in Judge Kimbler's courtroom; Judge Collier's courtroom; and Judge Lohn's courtroom. The winners of the competition appear below. In order to advance to the regional competition, a team had to win both rounds. In one round the mock trial team represented the student and in the other round the same team would represent the school board. This means that each team had to have enough students to play two attorneys and two witnesses per side, or at least eight students. All teams also had to provide a bailiff for each round.
Congratulations to all those students who participated and good luck to the two Buckeye teams and the Cloverleaf team at the regional competitions!
Based on the results below, Buckeye Team Orange and Buckeye Team Brown advanced to the regional competition as did Cloverleaf Team Cloverleaf. The Buckeye High School Teams also won five out of six awards for Outstanding Attorney and all six rewards for Outstanding Witness.
Trial 1 – Buckeye Team Orange wins over Cloverleaf Team Oberholtzer
Outstanding Attorney – Daniella Chambers – Buckeye High
Outstanding Witness – Brent Wilken – Buckeye High
Trial 1 – Buckeye Team Brown wins over Cloverleaf Team Green
Outstanding Attorney – Jordan Canedy – Buckeye High
Outstanding Witness - Mary Oglesbee – Buckeye High
Trial 1 – Cloverleaf Team Cloverleaf wins over Buckeye Team White
Outstanding Attorney – Alexis Gillies – Cloverleaf High
Outstanding Witness – Callaway Berry – Buckeye High
Trial 2 – Cloverleaf Team Cloverleaf wins over Buckeye Team White
Outstanding Attorney – Kendra Huspaska – Buckeye High
Outstanding Witness – Sabrina McDonald – Buckeye High
Trial 2 – Buckeye Team Brown wins over Cloverleaf Team Oberholtzer
Outstanding Attorney – Brad Shook – Buckeye High
Outstanding Witness – Amanda Oswald – Buckeye High
Trial 2 – Buckeye Team Orange wins over Cloverleaf Team Green
Outstanding Attorney – Lenae` Horvath – Buckeye High
Outstanding Witness – Zachary Miller – Buckeye High
Buckeye and Cloverleaf each fielded three teams. The mock trials took place in Judge Kimbler's courtroom; Judge Collier's courtroom; and Judge Lohn's courtroom. The winners of the competition appear below. In order to advance to the regional competition, a team had to win both rounds. In one round the mock trial team represented the student and in the other round the same team would represent the school board. This means that each team had to have enough students to play two attorneys and two witnesses per side, or at least eight students. All teams also had to provide a bailiff for each round.
Congratulations to all those students who participated and good luck to the two Buckeye teams and the Cloverleaf team at the regional competitions!
Based on the results below, Buckeye Team Orange and Buckeye Team Brown advanced to the regional competition as did Cloverleaf Team Cloverleaf. The Buckeye High School Teams also won five out of six awards for Outstanding Attorney and all six rewards for Outstanding Witness.
Trial 1 – Buckeye Team Orange wins over Cloverleaf Team Oberholtzer
Outstanding Attorney – Daniella Chambers – Buckeye High
Outstanding Witness – Brent Wilken – Buckeye High
Trial 1 – Buckeye Team Brown wins over Cloverleaf Team Green
Outstanding Attorney – Jordan Canedy – Buckeye High
Outstanding Witness - Mary Oglesbee – Buckeye High
Trial 1 – Cloverleaf Team Cloverleaf wins over Buckeye Team White
Outstanding Attorney – Alexis Gillies – Cloverleaf High
Outstanding Witness – Callaway Berry – Buckeye High
Trial 2 – Cloverleaf Team Cloverleaf wins over Buckeye Team White
Outstanding Attorney – Kendra Huspaska – Buckeye High
Outstanding Witness – Sabrina McDonald – Buckeye High
Trial 2 – Buckeye Team Brown wins over Cloverleaf Team Oberholtzer
Outstanding Attorney – Brad Shook – Buckeye High
Outstanding Witness – Amanda Oswald – Buckeye High
Trial 2 – Buckeye Team Orange wins over Cloverleaf Team Green
Outstanding Attorney – Lenae` Horvath – Buckeye High
Outstanding Witness – Zachary Miller – Buckeye High
Cleveland Man Sentenced to Prison for Stealing in Medina County
Daniel A. Hale, whose last know address was 3603 Woodbridge Street in Cleveland, Ohio, appeared in Judge Kimbler's court on Monday, February 8, 2010, on charges of Theft of a Motor Vehicle, a fourth degree felony; Theft of a Credit Card, a fifth degree felony; Receiving Stolen Property, a fourth degree felony; and Theft, a first degree misdemeanor. The property involved included two motor vehicles; one credit card; and tools.
Mr. Hale entered a "no contest" plea to all four charges. Judge Kimbler found him guilty on all four charges. Judge Kimbler sentenced him to one year in prison on each of the felonies and 180 days in jail on the misdemeanor. All prison sentences ran concurrent with each other and the jail sentence ran concurrent with the prison sentences. Judge Kimbler waived his court costs.
The State of Ohio was represented by Medina County Prosecutor Dean Holman's office. The assistant county prosecutor in Mr. Hale's case was Joe Dangelo. Mr. Hale was represented by Attorney Sandra Dembie.
Mr. Hale entered a "no contest" plea to all four charges. Judge Kimbler found him guilty on all four charges. Judge Kimbler sentenced him to one year in prison on each of the felonies and 180 days in jail on the misdemeanor. All prison sentences ran concurrent with each other and the jail sentence ran concurrent with the prison sentences. Judge Kimbler waived his court costs.
The State of Ohio was represented by Medina County Prosecutor Dean Holman's office. The assistant county prosecutor in Mr. Hale's case was Joe Dangelo. Mr. Hale was represented by Attorney Sandra Dembie.
Friday, February 05, 2010
Medina County Commissioners Back Off Jury Fee Reduction
The Medina County Board of County Commissioners released a memorandum on February 5, 2010, announcing that juror fees will not be reduced for at least the first half of 2010. In January, the Board sent a memorandum to courthouse officials telling them that they would decrease juror fees from $20.00 per day to $10.00 per day. This change was scheduled to take place on March 1, 2010.
After receiving the memorandum, Judge Kimbler, as Administrative Judge of the General Division of the Common Pleas Court, asked to appear in front of the Board at its February 5, 2010, meeting. At that meeting, Judge Kimbler asked the Board to reconsider its decision.
He distributed a memorandum to the Board. outlining the reasons why he and Judge Collier thought that the fee reduction was a bad idea. Those reasons included a concern that reducing the fee would lead to people less willing to serve; a belief that reducing the fee sent the message that Medina County doesn't appreciate the sacrifice people make serving on juries; and a fear that juries could become less diverse.
At that meeting, Medina County Clerk of Courts Kathy Fortney also spoke. Ms. Fortney passed out a memorandum showing that over 2400 people served on juries in 2009 and that many thousands more appeared for jury selection, but were not chosen.
The Board does plan to review this issue at the mid-year budget review in June.
After receiving the memorandum, Judge Kimbler, as Administrative Judge of the General Division of the Common Pleas Court, asked to appear in front of the Board at its February 5, 2010, meeting. At that meeting, Judge Kimbler asked the Board to reconsider its decision.
He distributed a memorandum to the Board. outlining the reasons why he and Judge Collier thought that the fee reduction was a bad idea. Those reasons included a concern that reducing the fee would lead to people less willing to serve; a belief that reducing the fee sent the message that Medina County doesn't appreciate the sacrifice people make serving on juries; and a fear that juries could become less diverse.
At that meeting, Medina County Clerk of Courts Kathy Fortney also spoke. Ms. Fortney passed out a memorandum showing that over 2400 people served on juries in 2009 and that many thousands more appeared for jury selection, but were not chosen.
The Board does plan to review this issue at the mid-year budget review in June.
Thursday, February 04, 2010
Judge Kimbler's Criminal Docket for February 4, 2010
Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Kimbler's court on February 4, 2010 for criminal cases::
Tanya Hodges, 20, of Miner Drive in Medina, was sentenced to three years of community control sanctions on one count of Theft, a fifth-degree felony. She also was ordered to pay $1,125 in restitution to her victim.
Damian Johnson, 36, of Weymouth Road in Medina, was sentenced to eight months in prison on the following charges: three counts of Trafficking in Cocaine; one count of Possession of Cocaine; and one count of Possession of Drugs, all of which are fifth-degree felonies.
Jonathan McCamon, 24, of Stanford Drive in Brunswick, was sentenced to three years of community control sanctions on one count of Trafficking in Cocaine, a fifth-degree felony.
Kenneth Moriana, 50, of Third Street in Wadsworth, was sentenced to one year in prison on two counts of Driving Under the Influence of Drugs or Alcohol, both of which are fourth-degree felonies.
Jeremy Dusek, 21, of Ridge Road in Wadsworth, pleaded not guilty to one count of Burglary, a third-degree felony. A jury trial is scheduled for March 29.
Brandon Fazekas, 23, of Clinton Road in Doylestown, pleaded not guilty to three counts of Breaking and Entering and three counts of Vandalism, all of which are fifth-degree felonies. A jury trial is scheduled for April 7.
Aramis Fletcher, 21, of North Jenkins Boulevard in Akron, pleaded not guilty to one count of Receiving Stolen Property, a fifth-degree felony. A jury trial is scheduled for April 6.
David Hall, 34, of West Union Street in Medina, pleaded not guilty to one count of Trafficking in Marijuana in the Vicinity of a Juvenile, a fourth-degree felony. A jury trial is scheduled for April 6.
Delbert Jones, 31, of Spyglass Hill Drive in Brunswick, pleaded not guilty to one count of Domestic Violence, a fourth-degree felony. A jury trial is scheduled for March 29.
Brian Milici, 26, of Edwards Road in Doylestown, pleaded not guilty to one count of Felonious Assault, a second-degree felony, and one count of Carrying a Concealed Weapon, a fourth-degree felony. The Felonious Assault charge carries a firearm specification. A jury trial is scheduled for April 5.
Tanya Hodges, 20, of Miner Drive in Medina, was sentenced to three years of community control sanctions on one count of Theft, a fifth-degree felony. She also was ordered to pay $1,125 in restitution to her victim.
Damian Johnson, 36, of Weymouth Road in Medina, was sentenced to eight months in prison on the following charges: three counts of Trafficking in Cocaine; one count of Possession of Cocaine; and one count of Possession of Drugs, all of which are fifth-degree felonies.
Jonathan McCamon, 24, of Stanford Drive in Brunswick, was sentenced to three years of community control sanctions on one count of Trafficking in Cocaine, a fifth-degree felony.
Kenneth Moriana, 50, of Third Street in Wadsworth, was sentenced to one year in prison on two counts of Driving Under the Influence of Drugs or Alcohol, both of which are fourth-degree felonies.
Jeremy Dusek, 21, of Ridge Road in Wadsworth, pleaded not guilty to one count of Burglary, a third-degree felony. A jury trial is scheduled for March 29.
Brandon Fazekas, 23, of Clinton Road in Doylestown, pleaded not guilty to three counts of Breaking and Entering and three counts of Vandalism, all of which are fifth-degree felonies. A jury trial is scheduled for April 7.
Aramis Fletcher, 21, of North Jenkins Boulevard in Akron, pleaded not guilty to one count of Receiving Stolen Property, a fifth-degree felony. A jury trial is scheduled for April 6.
David Hall, 34, of West Union Street in Medina, pleaded not guilty to one count of Trafficking in Marijuana in the Vicinity of a Juvenile, a fourth-degree felony. A jury trial is scheduled for April 6.
Delbert Jones, 31, of Spyglass Hill Drive in Brunswick, pleaded not guilty to one count of Domestic Violence, a fourth-degree felony. A jury trial is scheduled for March 29.
Brian Milici, 26, of Edwards Road in Doylestown, pleaded not guilty to one count of Felonious Assault, a second-degree felony, and one count of Carrying a Concealed Weapon, a fourth-degree felony. The Felonious Assault charge carries a firearm specification. A jury trial is scheduled for April 5.
Ohio Supreme Court Decision: Supreme Court Rules Prosecutor’s Conduct Did Not Violate Disciplinary Rules
Supreme Court Rules Prosecutor’s Conduct Did Not Violate Disciplinary Rules
Disciplinary Counsel v. Kellogg-Martin, Slip Opinion No. 2010-Ohio-282.
On Certified Report by the Board of Commissioners on Grievances and Discipline, No. 07-069. The complaint against Kimberly J. Kellogg-Martin, Attorney Registration No. 0022083, is dismissed.
Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Moyer, C.J., dissents and would impose a 12-month suspension with six months stayed.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-282.pdf
(Feb. 4, 2010) The Supreme Court of Ohio today dismissed a disciplinary complaint alleging professional misconduct by Logan County assistant prosecutor Kimberly Kellogg-Martin. The Court’s decision reversed findings of disciplinary rule violations by the Board of Commissioners on Grievances & Discipline.
In a 6-1 per curiam opinion, the Court concluded that Kellogg-Martin’s acts and omissions in not disclosing the contents of two documents to the defendant in a juvenile rape case did not violate her legal obligations as a prosecutor or her ethical duties as an attorney. The undisclosed documents were reports summarizing the victim’s statements about the crime during interviews with a social worker and a sheriff’s deputy.
The majority opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp.
Chief Justice Thomas J. Moyer entered a dissent stating that in his view the majority erred by evaluating Kellogg-Martin’s conduct in light of the state’s rules of criminal procedure and court decisions defining defendants’ due process rights, rather than applying the more rigorous disclosure standard set by Rule 7-103(B) of the Code of Professional Responsibility. The Chief Justice wrote that he would affirm the rule violations found by the disciplinary board and impose the board’s recommended sanction of a 12-month license suspension with six months stayed on conditions.
Contacts
Jonathan E. Coughlan, 614.461.0256, for the Office of Disciplinary Counsel.
Christopher J. Weber, 614.462.5400, for Kimberly Kellogg-Martin.
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."
Disciplinary Counsel v. Kellogg-Martin, Slip Opinion No. 2010-Ohio-282.
On Certified Report by the Board of Commissioners on Grievances and Discipline, No. 07-069. The complaint against Kimberly J. Kellogg-Martin, Attorney Registration No. 0022083, is dismissed.
Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Moyer, C.J., dissents and would impose a 12-month suspension with six months stayed.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-282.pdf
(Feb. 4, 2010) The Supreme Court of Ohio today dismissed a disciplinary complaint alleging professional misconduct by Logan County assistant prosecutor Kimberly Kellogg-Martin. The Court’s decision reversed findings of disciplinary rule violations by the Board of Commissioners on Grievances & Discipline.
In a 6-1 per curiam opinion, the Court concluded that Kellogg-Martin’s acts and omissions in not disclosing the contents of two documents to the defendant in a juvenile rape case did not violate her legal obligations as a prosecutor or her ethical duties as an attorney. The undisclosed documents were reports summarizing the victim’s statements about the crime during interviews with a social worker and a sheriff’s deputy.
The majority opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp.
Chief Justice Thomas J. Moyer entered a dissent stating that in his view the majority erred by evaluating Kellogg-Martin’s conduct in light of the state’s rules of criminal procedure and court decisions defining defendants’ due process rights, rather than applying the more rigorous disclosure standard set by Rule 7-103(B) of the Code of Professional Responsibility. The Chief Justice wrote that he would affirm the rule violations found by the disciplinary board and impose the board’s recommended sanction of a 12-month license suspension with six months stayed on conditions.
Contacts
Jonathan E. Coughlan, 614.461.0256, for the Office of Disciplinary Counsel.
Christopher J. Weber, 614.462.5400, for Kimberly Kellogg-Martin.
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."
Ohio Supreme Court Decision: Conviction for Escape Does Not Require State to Show Postrelease Control Was Orally Announced at Sentencing
State v. Jordan, Slip Opinion No. 2010-Ohio-281.
Marion App. No. 9-08-11, 2008-Ohio-4647. Certified question answered in the affirmative, and judgment of the court of appeals affirmed.
Moyer, C.J., and Lundberg Stratton, O'Connor, O'Donnell, and Cupp, JJ., concur.
Pfeifer and Lanzinger, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-281.pdf
(Feb. 4, 2010) The Supreme Court of Ohio today ruled that, to obtain a conviction for the crime of escape for violating the terms of a post-release control order, the state may prove that a defendant was subject to postrelease control without proving that during a sentencing hearing the trial court orally notified the defendant that he would be subject to postrelease control. The Court’s 5-2 decision was written by Chief Justice Thomas J. Moyer.
The case involved an appeal by Rusty Jordan of Marion of his conviction for escape under R.C. 2921.34(A)(1) for violating the terms of his postrelease control.
Jordan entered guilty pleas to several felony counts in 2006 and was sentenced to a term of imprisonment. In its written sentencing entry, the trial court included a three-year term of postrelease control. After his release from prison, Jordan complied with the terms of his postrelease control for several months, reporting regularly to a parole officer. Jordan eventually failed to report for scheduled meetings with a parole officer, and it was determined that he had abandoned his approved residence. Eventually, Jordan was located, arrested, and charged with escape under R.C. 2921.34. A jury found him guilty of that offense, and the court sentenced him to a prison term of three years.
Jordan appealed, arguing that in order to be guilty of escape the law required that he must be “under detention,” and claiming that he was not lawfully under detention at the time he changed residences without notification and failed to report to probation authorities. Jordan based that claim on the fact that prosecutors at his escape trial had not submitted evidence that, during his 2006 sentencing hearing, the trial judge had orally advised Jordan in open court that he would be subject to a term of post-release control. The 3rd District Court of Appeals affirmed Jordan’s conviction, but certified that its decision conflicted with a 2007 decision in which the 9th District Court of Appeals overturned an escape conviction on similar grounds. The Supreme Court agreed to review the case to resolve the conflict between appellate districts.
In today’s decision, Chief Justice Moyer wrote: “In Jordan’s view, the evidence of supervision was legally insufficient because the state did not prove that the sentencing court advised him of postrelease control as required by R.C. 2929.19 and, therefore, the state did not prove that the Department of Rehabilitation and Corrections was authorized to supervise him. We are not persuaded by Jordan’s argument. ... When the parties do not submit evidence to show whether the sentencing court performed each of its duties for imposition of postrelease control, the question is simply whether the state provided sufficient evidence to prove that the defendant was under detention.”
“The state provided ample evidence that Jordan was under the supervision of the Department of Rehabilitation and Correction. The relevant sentencing entry states that Jordan ‘may be subject to a period of three (3) years of postrelease control.’ Jordan was also advised of his postrelease control two weeks before his release from prison. Jordan signed a document detailing the conditions of his monitored time (one type of postrelease control) on the day after his release from prison. This document stated: ‘I understand if I am a releasee and abscond supervision, I may be prosecuted for the crime of escape, under section 2921.34 of the revised code.’ A few weeks later, when Jordan was arrested for an unrelated charge, his postrelease control was increased from monitored time to basic supervision. When he was placed on basic supervision, his parole officer met with him, explained the terms of basic supervision, and provided him with a document entitled ‘Conditions of Supervision.’ This document also included the statement, ‘I understand that if I am a releasee and abscond supervision, I may be prosecuted for the crime of escape, under section 2921.34 of the Revised Code.’”
Based on this evidence and Jordan’s documented compliance with the terms his postrelease control by contacting and meeting with his parole officer over a period of several months, the Chief Justice wrote: “(W)e hold that the state proved beyond a reasonable doubt that Jordan was subject to supervision by the Department of Rehabilitation and Correction. The evidence shows that Jordan was ‘under detention’ as ‘detention’ is defined in R.C. 2921.01(E), and therefore the state proved that element of R.C. 2921.34(A)(1).”
While affirming the ruling of the 3rd District in this case, the Chief Justice noted that today’s decision did not reach the issue of whether a defendant can be convicted of escape when the evidence affirmatively demonstrates that the sentencing court failed or declined to impose postrelease control at the time of sentencing.
Chief Justice Moyer’s opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor,
Terrence O’Donnell and Robert R. Cupp.
Justice Judith Ann Lanzinger entered a dissent, joined by Justice Paul E. Pfeifer, in which she pointed out that in a line of recent Supreme Court decisions “We have ruled that unless the defendant is advised of postrelease control both at the sentencing hearing and in the judgment entry, the Adult Parole Authority is without authority to impose it. ... (I)n this case ... the state has not provided evidence that the defendant was orally notified of postrelease control at the sentencing hearing. ... In failing to require the state to show proper oral notification to the defendant, the majority retreats from the idea that unless a defendant is notified of postrelease control at sentencing, the sentence is void. ... I would require the state to prove that a defendant was notified of postrelease control at sentencing to show that the defendant was under valid detention for purposes of escape. I respectfully dissent and would reverse the defendant’s conviction.”
Contacts
Denise Martin, 740.223.4290, for the Marion County prosecutor’s office.
Stephen P. Hardwick, 614.466.5394, for Rusty Jordan.
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."
Marion App. No. 9-08-11, 2008-Ohio-4647. Certified question answered in the affirmative, and judgment of the court of appeals affirmed.
Moyer, C.J., and Lundberg Stratton, O'Connor, O'Donnell, and Cupp, JJ., concur.
Pfeifer and Lanzinger, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-281.pdf
(Feb. 4, 2010) The Supreme Court of Ohio today ruled that, to obtain a conviction for the crime of escape for violating the terms of a post-release control order, the state may prove that a defendant was subject to postrelease control without proving that during a sentencing hearing the trial court orally notified the defendant that he would be subject to postrelease control. The Court’s 5-2 decision was written by Chief Justice Thomas J. Moyer.
The case involved an appeal by Rusty Jordan of Marion of his conviction for escape under R.C. 2921.34(A)(1) for violating the terms of his postrelease control.
Jordan entered guilty pleas to several felony counts in 2006 and was sentenced to a term of imprisonment. In its written sentencing entry, the trial court included a three-year term of postrelease control. After his release from prison, Jordan complied with the terms of his postrelease control for several months, reporting regularly to a parole officer. Jordan eventually failed to report for scheduled meetings with a parole officer, and it was determined that he had abandoned his approved residence. Eventually, Jordan was located, arrested, and charged with escape under R.C. 2921.34. A jury found him guilty of that offense, and the court sentenced him to a prison term of three years.
Jordan appealed, arguing that in order to be guilty of escape the law required that he must be “under detention,” and claiming that he was not lawfully under detention at the time he changed residences without notification and failed to report to probation authorities. Jordan based that claim on the fact that prosecutors at his escape trial had not submitted evidence that, during his 2006 sentencing hearing, the trial judge had orally advised Jordan in open court that he would be subject to a term of post-release control. The 3rd District Court of Appeals affirmed Jordan’s conviction, but certified that its decision conflicted with a 2007 decision in which the 9th District Court of Appeals overturned an escape conviction on similar grounds. The Supreme Court agreed to review the case to resolve the conflict between appellate districts.
In today’s decision, Chief Justice Moyer wrote: “In Jordan’s view, the evidence of supervision was legally insufficient because the state did not prove that the sentencing court advised him of postrelease control as required by R.C. 2929.19 and, therefore, the state did not prove that the Department of Rehabilitation and Corrections was authorized to supervise him. We are not persuaded by Jordan’s argument. ... When the parties do not submit evidence to show whether the sentencing court performed each of its duties for imposition of postrelease control, the question is simply whether the state provided sufficient evidence to prove that the defendant was under detention.”
“The state provided ample evidence that Jordan was under the supervision of the Department of Rehabilitation and Correction. The relevant sentencing entry states that Jordan ‘may be subject to a period of three (3) years of postrelease control.’ Jordan was also advised of his postrelease control two weeks before his release from prison. Jordan signed a document detailing the conditions of his monitored time (one type of postrelease control) on the day after his release from prison. This document stated: ‘I understand if I am a releasee and abscond supervision, I may be prosecuted for the crime of escape, under section 2921.34 of the revised code.’ A few weeks later, when Jordan was arrested for an unrelated charge, his postrelease control was increased from monitored time to basic supervision. When he was placed on basic supervision, his parole officer met with him, explained the terms of basic supervision, and provided him with a document entitled ‘Conditions of Supervision.’ This document also included the statement, ‘I understand that if I am a releasee and abscond supervision, I may be prosecuted for the crime of escape, under section 2921.34 of the Revised Code.’”
Based on this evidence and Jordan’s documented compliance with the terms his postrelease control by contacting and meeting with his parole officer over a period of several months, the Chief Justice wrote: “(W)e hold that the state proved beyond a reasonable doubt that Jordan was subject to supervision by the Department of Rehabilitation and Correction. The evidence shows that Jordan was ‘under detention’ as ‘detention’ is defined in R.C. 2921.01(E), and therefore the state proved that element of R.C. 2921.34(A)(1).”
While affirming the ruling of the 3rd District in this case, the Chief Justice noted that today’s decision did not reach the issue of whether a defendant can be convicted of escape when the evidence affirmatively demonstrates that the sentencing court failed or declined to impose postrelease control at the time of sentencing.
Chief Justice Moyer’s opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor,
Terrence O’Donnell and Robert R. Cupp.
Justice Judith Ann Lanzinger entered a dissent, joined by Justice Paul E. Pfeifer, in which she pointed out that in a line of recent Supreme Court decisions “We have ruled that unless the defendant is advised of postrelease control both at the sentencing hearing and in the judgment entry, the Adult Parole Authority is without authority to impose it. ... (I)n this case ... the state has not provided evidence that the defendant was orally notified of postrelease control at the sentencing hearing. ... In failing to require the state to show proper oral notification to the defendant, the majority retreats from the idea that unless a defendant is notified of postrelease control at sentencing, the sentence is void. ... I would require the state to prove that a defendant was notified of postrelease control at sentencing to show that the defendant was under valid detention for purposes of escape. I respectfully dissent and would reverse the defendant’s conviction.”
Contacts
Denise Martin, 740.223.4290, for the Marion County prosecutor’s office.
Stephen P. Hardwick, 614.466.5394, for Rusty Jordan.
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."
Ohio Supreme Court Decision: Expert’s Testimony Without Viewing U.S. Trademark Register Insufficient to Support Counterfeiting Conviction
State v. Troisi, Slip Opinion No. 2010-Ohio-275.
Lake App. No. 2008-L-060, 179 Ohio App.3d 326, 2008-Ohio-6062. Judgment of the court of appeals affirmed.
Moyer, C.J., and Pfeifer, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Lundberg Stratton and O'Connor, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-275.pdf
(Feb. 4, 2010) The Supreme Court of Ohio today ruled that a trademark-investigation expert’s testimony that he is aware that certain trademarks are registered but that he has never personally viewed the trademark-registration documents is insufficient to prove by itself that the trademarks are registered on the principal register in the United States Patent and Trademark Office as required for a conviction for trademark counterfeiting under R.C. 2913.34.
The Court’s 5-2 decision, which affirmed a ruling by the 11th District Court of Appeals, was authored by Chief Justice Thomas J. Moyer
The case involved Juanita Troisi of Kirtland, who was arrested and charged with trademark counterfeiting and possession of criminal tools after police raided a “purse party” hosted by Troisi at which she sold and offered for sale hundreds of purses, wallets, belts, jewelry items and other merchandise that were imitations or “knock-offs” of designer brand name items.
At trial, the state presented expert testimony by Timothy Richissin, a Cleveland police officer specializing in intellectual property crimes who has also served as a private consultant to brand name manufacturers and as an investigator of alleged knock-off merchandise. During his testimony, Richissin identified several examples of items seized by police at Troisi’s party as counterfeit, and not legitimate products of the manufacturers identified on the labels, based on his personal familiarity with the designers’ products. Richissin stated his opinion that the trademarks on each of the pieces he examined were substantially indistinguishable from the brand name manufacturer’s real trademarks. The state did not enter certified copies of the registered trademarks as evidence; no other witness testified about the registration status of the trademarks; and no examples of genuine trademarks or genuine products were introduced at trial.
A jury found Troisi guilty of one count of trademark counterfeiting and one count of possessing criminal tools. She appealed, and the 11th District Court of Appeals reversed, holding that there was insufficient evidence for the jury to find that the items seized bore a “counterfeit” mark as defined by law, and that Richissin’s testimony was improper because it was introduced without a proper foundation. Based on those findings, the court of appeals vacated Troisi’s convictions. The state sought and was granted Supreme Court review of the 11th District’s decision.
Writing for the Court, Chief Justice Moyer noted that in order to secure a conviction for violating R.C. 2913.34(A)(4), the state must prove that a defendant knowingly sold, offered for sale or otherwise made available goods “with the knowledge that a counterfeit mark is attached to, affixed to, or otherwise used in connection with the goods.” He noted further that R.C. 2913.34(F) defines a “counterfeit mark” as “a spurious trademark” that is “identical with or substantially indistinguishable from a mark that is registered on the principal register in the United States patent and trademark office” and the use of which “is likely to cause confusion or mistake or [to] deceive other persons.”
Applying those statutory requirements to Troisi’s case, the Chief Justice wrote: “The statute contains very specific language protecting only those marks registered on the principal register. Richissin testified that through his ‘training and experience’ he was aware that the marks were registered, but that he had personally never seen any documents from the United States Patent and Trademark Office showing the registration. He had never obtained official trademark records, he had never seen any of the trademarks on a registry document, and he did not know when the trademarks were issued, when they expired, or if they had been renewed. In sum, his testimony was not sufficient to prove beyond a reasonable doubt that the marks were registered. Richissin’s testimony proved, at best, that the seized items bore marks that were ‘identical or substantially indistinguishable’ to marks provided to him during his training, but not to any mark proven to be registered as required by the statute.”
Because proof that a falsified trademark is a copy of one that appears in the national registry is an essential element of the crime of counterfeiting, the Chief Justice wrote, the evidence presented by the state was insufficient to support Troisi’s conviction and it must therefore be vacated. He wrote further that “(t)his gap in evidence is not due to a ‘procedural deficiency,’ permitting a retrial, as suggested by the state. Our holding that the evidence is insufficient for a conviction is based on a review of all the evidence, including Richissin’s testimony. Double-jeopardy protections therefore attach, and retrial is barred.”
Chief Justice Moyer’s opinion was joined by Justices Paul E. Pfeifer, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp. Justices Evelyn Lundberg Stratton and Maureen O’Connor entered dissenting opinions.
Justice Stratton disagreed with the majority’s determination that the state’s evidence was insufficient to support a conviction because Richissin had not compared the trademarks on the goods offered by Troisi with the actual registered trademarks on file in the principal registry in Washington. She reasoned that neither federal nor state law require that a witness must personally observe or submit copies of an authentic trademark in order to qualify as an expert witness in a trademark-counterfeiting case. She went on to recognize that Richissin received extensive trademark-counterfeit training and had investigated over 50 trademark-counterfeiting cases. Thus, Justice Stratton believed that “Richissin’s training and experience were sufficient to permit him to provide expert testimony that the trademarks in this case were registered and that they were identical or substantially indistinguishable to the marks on the goods seized from Troisi.” She concluded that Richissin’s testimony, the evidence seized from Troisi, and Troisi’s confession were sufficient to support Troisi’s conviction.
Justice O’Connor wrote: “I join Justice Stratton’s dissent, but write separately to focus on the fact that the trier of fact, the jury, was in the best position to discern the weight and quality of the state’s expert, Mr. Richissin. ... The jury’s duty is to weigh the credibility of any witness, including an expert. ... Here the jury was charged on the law and the elements of R.C. 2913.34(A)(4), and it applied the law to the evidence. The jury concluded that the state had proved its case. In light of Troisi’s admission that she knew the goods were counterfeit, and Richissin’s testimony ... that Troisi’s goods were not authentic, the jury’s verdict should be respected.” Justice O’Connor’s opinion was joined by Justice Stratton.
Contacts
Teri Daniel, 440.350.2683, for the Lake County prosecutor’s office.
Dominic Vitantonio, 440.449.3333, for Juanita Troisi.
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."
Lake App. No. 2008-L-060, 179 Ohio App.3d 326, 2008-Ohio-6062. Judgment of the court of appeals affirmed.
Moyer, C.J., and Pfeifer, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Lundberg Stratton and O'Connor, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-275.pdf
(Feb. 4, 2010) The Supreme Court of Ohio today ruled that a trademark-investigation expert’s testimony that he is aware that certain trademarks are registered but that he has never personally viewed the trademark-registration documents is insufficient to prove by itself that the trademarks are registered on the principal register in the United States Patent and Trademark Office as required for a conviction for trademark counterfeiting under R.C. 2913.34.
The Court’s 5-2 decision, which affirmed a ruling by the 11th District Court of Appeals, was authored by Chief Justice Thomas J. Moyer
The case involved Juanita Troisi of Kirtland, who was arrested and charged with trademark counterfeiting and possession of criminal tools after police raided a “purse party” hosted by Troisi at which she sold and offered for sale hundreds of purses, wallets, belts, jewelry items and other merchandise that were imitations or “knock-offs” of designer brand name items.
At trial, the state presented expert testimony by Timothy Richissin, a Cleveland police officer specializing in intellectual property crimes who has also served as a private consultant to brand name manufacturers and as an investigator of alleged knock-off merchandise. During his testimony, Richissin identified several examples of items seized by police at Troisi’s party as counterfeit, and not legitimate products of the manufacturers identified on the labels, based on his personal familiarity with the designers’ products. Richissin stated his opinion that the trademarks on each of the pieces he examined were substantially indistinguishable from the brand name manufacturer’s real trademarks. The state did not enter certified copies of the registered trademarks as evidence; no other witness testified about the registration status of the trademarks; and no examples of genuine trademarks or genuine products were introduced at trial.
A jury found Troisi guilty of one count of trademark counterfeiting and one count of possessing criminal tools. She appealed, and the 11th District Court of Appeals reversed, holding that there was insufficient evidence for the jury to find that the items seized bore a “counterfeit” mark as defined by law, and that Richissin’s testimony was improper because it was introduced without a proper foundation. Based on those findings, the court of appeals vacated Troisi’s convictions. The state sought and was granted Supreme Court review of the 11th District’s decision.
Writing for the Court, Chief Justice Moyer noted that in order to secure a conviction for violating R.C. 2913.34(A)(4), the state must prove that a defendant knowingly sold, offered for sale or otherwise made available goods “with the knowledge that a counterfeit mark is attached to, affixed to, or otherwise used in connection with the goods.” He noted further that R.C. 2913.34(F) defines a “counterfeit mark” as “a spurious trademark” that is “identical with or substantially indistinguishable from a mark that is registered on the principal register in the United States patent and trademark office” and the use of which “is likely to cause confusion or mistake or [to] deceive other persons.”
Applying those statutory requirements to Troisi’s case, the Chief Justice wrote: “The statute contains very specific language protecting only those marks registered on the principal register. Richissin testified that through his ‘training and experience’ he was aware that the marks were registered, but that he had personally never seen any documents from the United States Patent and Trademark Office showing the registration. He had never obtained official trademark records, he had never seen any of the trademarks on a registry document, and he did not know when the trademarks were issued, when they expired, or if they had been renewed. In sum, his testimony was not sufficient to prove beyond a reasonable doubt that the marks were registered. Richissin’s testimony proved, at best, that the seized items bore marks that were ‘identical or substantially indistinguishable’ to marks provided to him during his training, but not to any mark proven to be registered as required by the statute.”
Because proof that a falsified trademark is a copy of one that appears in the national registry is an essential element of the crime of counterfeiting, the Chief Justice wrote, the evidence presented by the state was insufficient to support Troisi’s conviction and it must therefore be vacated. He wrote further that “(t)his gap in evidence is not due to a ‘procedural deficiency,’ permitting a retrial, as suggested by the state. Our holding that the evidence is insufficient for a conviction is based on a review of all the evidence, including Richissin’s testimony. Double-jeopardy protections therefore attach, and retrial is barred.”
Chief Justice Moyer’s opinion was joined by Justices Paul E. Pfeifer, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp. Justices Evelyn Lundberg Stratton and Maureen O’Connor entered dissenting opinions.
Justice Stratton disagreed with the majority’s determination that the state’s evidence was insufficient to support a conviction because Richissin had not compared the trademarks on the goods offered by Troisi with the actual registered trademarks on file in the principal registry in Washington. She reasoned that neither federal nor state law require that a witness must personally observe or submit copies of an authentic trademark in order to qualify as an expert witness in a trademark-counterfeiting case. She went on to recognize that Richissin received extensive trademark-counterfeit training and had investigated over 50 trademark-counterfeiting cases. Thus, Justice Stratton believed that “Richissin’s training and experience were sufficient to permit him to provide expert testimony that the trademarks in this case were registered and that they were identical or substantially indistinguishable to the marks on the goods seized from Troisi.” She concluded that Richissin’s testimony, the evidence seized from Troisi, and Troisi’s confession were sufficient to support Troisi’s conviction.
Justice O’Connor wrote: “I join Justice Stratton’s dissent, but write separately to focus on the fact that the trier of fact, the jury, was in the best position to discern the weight and quality of the state’s expert, Mr. Richissin. ... The jury’s duty is to weigh the credibility of any witness, including an expert. ... Here the jury was charged on the law and the elements of R.C. 2913.34(A)(4), and it applied the law to the evidence. The jury concluded that the state had proved its case. In light of Troisi’s admission that she knew the goods were counterfeit, and Richissin’s testimony ... that Troisi’s goods were not authentic, the jury’s verdict should be respected.” Justice O’Connor’s opinion was joined by Justice Stratton.
Contacts
Teri Daniel, 440.350.2683, for the Lake County prosecutor’s office.
Dominic Vitantonio, 440.449.3333, for Juanita Troisi.
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."
February LawTalk Show on Ohio Probate Law with Medina Attorney Ken Marco
This month's LawTalk community access television show features host Attorney John Celebrezze talking with Medina Attorney Ken Marco about Ohio probate law. You can view the first part of the interview by clicking on the link below. You can see the rest of the interview by going to www.czclep.org.
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