Summit County Appellate Decisions for November, 2013

The Court of Appeals for the Ninth Appellate District released 16 decisions for appeals from Summit County in November of 2013. Summaries of these decisions appear below. 

November 27, 2013 Decisions

State v. Robinson, 2013-Ohio-5237 was an appeal from the Summit County Common Pleas Court denying Mr. Robinson's motions to vacate his 2003 convicted for murder and other offenses. The majority of the court affirmed the trial court on two grounds. The first was that the entry that Robinson argued was defective was not a sentencing entry and therefore did have to comply with the requirements of Crim. R. 32. The second was that the remaining assignments of error should have been raised on direct appeal and therefore were subject to the doctrine of res judicata. Judge Carr concurred but reasoned that the trial court's conclusion that Robinson's motions were actually petitions for post-conviction relief and were untimely was correct. 

State v. Payne, 2013-Ohio-5230 was an appeal from a conviction of Mr. Payne for rape of a minor. Payne set forth two assignments of error.

One was that the trial court erred in allowing evidence of a conversation between the victim, who is now an adult, and himself to come into evidence. He argued that the evidence was obtained in violation of R.C. 2933.52 and that his statements amounted to an involuntary confession. The Court of Appeals found that while Payne had filed a motion in limine and a motion to suppress, he had not objected to certain testimony regarding the taped conversation and that he had therefore waived this assignment of error unless there was plain error. The appellate court then did a plain error analysis and found no such error. 

Payne also argued that the trial court should have sustained his Batson objection to the State's peremptory challenge of an African-American man. The Court of Appeals found that the State presented a racially neutral justification for the challenge and overruled that assignment also. 

State v. Deem, 2013-Ohio-5227 was an appeal from a conviction in the Summit County Common Pleas Court for aggravated possession of drugs. Mr. Deem set forth one assignment of error which was that the trial court erred in not granting his motion for a directed verdict of acquittal pursuant to Crim. R. 29. Such a motion is an attack on the sufficiency of the evidence offered by the State. In this case the Court of Appeals examined the evidence offered by the State and found that the trial court ruled correctly. The conviction was affirmed. 

State v. Parham, 2013-Ohio-5229 affirmed the conviction of Parham for drug possession. Parham argued that the trial court erred in not granting his suppression motion. He alleged that his statements to the officer should have been suppressed because he did not receive Miranda warnings. He also alleged that the arresting officer who conducted a pat-down search didn't have probable cause to pull out the packet of drugs that he felt when conducting the pat-down. The Court of Appeals held that Parham didn't show that he was subject to a custodial interrogation. It also held that he didn't establish that the arresting officer was lying when he said that he recognized the packet of drugs as contraband from his experience as a police officer. 


State v. Davis, 2013-Ohio-5226 affirmed the conviction of Davis for felony murder and aggravated robbery. At trial the jury found that Davis was not guilty of having weapons under a disability and the firearm specification attached to the indictment. 

Davis argued on appeal that the trial court erred in not granting his Crim. R. 29 motion for acquittal. The appellate court found that the trial court did properly deny the motion since the evidence was both sufficient to justify the case going to the jury and the conviction was not against the manifest weight of the evidence. 

Davis argued that since he was found not guilty of the firearm specification and having weapons under a disability, the convictions for felony murder and aggravated murder were inconsistent and should be reversed. The Court of Appeals pointed out that under Ohio case law a person can be found not guilty of a firearm specification and that such a verdict doesn't undermine the conviction on the underlying charge. 

Finally David argued that his attorney was ineffective for not requesting a severance of his trial from that of a co-defendant. This assignment of error was also overruled. 

State v. Boware, 2013-Ohio-5225 affirmed the dismissal by the Summit County Common Pleas Court of a petition for post-conviction relief on the basis that it was untimely. Boware filed the motion out of time. In the motion he did not set forth reasons why the trial court should have considered the motion. The trial court held that since he hadn't set forth reasons why the trial court should consider the post-conviction relief petition the trial court did not have jurisdiction to hear the petition. The Court of Appeals affirmed that position. 

November 20, 2013

Jacobson-Kirsch v. Kaforey, 2013-Ohio-5114  affirmed a decision from the Summit County Common Pleas Court dismissing a case on the basis that it was filed outside of the statute of limitations. The plaintiff brought the case for the tort of interference with parental interests. The plaintiff argued that an action brought under R.C. 2307.50 is not a civil action and therefore the statute of limitations set forth in R.C. 2305.04 through R.C. 2305.22. The Court of Appeals disagreed finding that such an action is a civil action and should be brought within the statute of limitations set forth in R.C. 2305.09 (D), which is four years. 

State v. Brown, 2013-Ohio-5112 affirmed in part and reversed in part a decision by the Summit County Common Pleas Court. The Court of Appeals overruled the assignment of error that the trial court's verdict was against the manifest weight of the evidence. It reversed in part based on the fact that the trial court should have conducted an analysis to see if the offenses were allied offenses of similar import. The case was remanded back to the trial court in order to allow that court to conduct such an analysis. 

November 13, 2013 

Univ. of Akron v. Jones, 2013-Ohio-4999 affirmed a judgment of the Summit County Common Pleas Court. Mr. Jones raised two assignments of error in the Court of Appeals. The first assignment was that the trial court erred in not dismissing the case for lack of standing. The second assignment of error was that the trial court erred in not holding a hearing to determine whether he had been served properly. Both assignments of error were overruled. 

In re M.T.B., 2013-Ohio-4998 affirmed a decision of the Summit County Common Pleas Court, Juvenile Division, returning her children to M.T.B.'s custody while placing under the protective supervision of the Summit County Children Services Board. The mother alleged four assignments of error. 

The first was that the trial court should have dismissed the complaint regarding one of the children because service wasn't perfected on the father. The Court of Appeals noted that even if she had standing to raise that issue, she should have raised in the trial court. Her failure to do so waived that error. 

The second assignment of error concerned the ability of a visiting judge assigned to the Summit County Juvenile Court by the Ohio Supreme Court to sign an order adopting the magistrate's decision. The Court of Appeals noted that even if the visiting judge didn't have the authority to adopt the magistrate's order, it wouldn't have affected the Summit County Juvenile Court Judge's authority to sign a final order of disposition. 

The third assignment of error alleged that the trial court should have made what is described as a "reasonable efforts" determination regarding actions of the CSB. The Court of Appeals noted that such a determination is not required if the trial court has not removed or is not removing the child from the parent's home. Since the trial court was not issuing such an order in this case, it was not required to make such a finding. 

The fourth and final assignment of error was that the finding of the trial court that two of the children were dependent was against the manifest weight of the evidence. That assignment was also overruled. 

State v. Gordon, 2013-Ohio-4997 affirmed a decision of the Summit County Common Pleas Court denying a motion to suppress. Gordon alleged that the arresting officer didn't have probable cause to make a warrantless arrest for the offense which the officer subjectively believed that Gordon was committing. The Court of Appeals noted that the officer's subjective belief as to what crime he or she is arresting a defendant for is not relevant. The issue is whether the officer could have made a warrantless arrest for any offense that he or she had probable cause to believe was committed. Applying that standard meant that the trial court was affirmed. 

State v. Bryant, 2013-Ohio-4996 affirmed the denial of a motion to vacate sentence by the Summit County Common Pleas Court. Bryant had argued that the trial court erred in considering his motion as a petition for post-conviction relief and then holding that the petition was untimely. Bryant argued that the trial court did not properly merge allied offenses of similar import for sentencing. The Court of Appeals held that if a trial judge does not merge allied offenses, the sentence is voidable but not void. Since the sentence wasn't void, the trial court was correct in holding that the motion to vacate was really a petition for post-conviction relief, and that it was untimely filed. 

November 6, 2013

State v. Williams, 2013-Ohio-4897 affirmed a decision by the Summit County Common Pleas Court that the petition for post-conviction relief filed by Williams was untimely. Although Williams had titled his motion as a motion to vacate sentence, the trial court found that the motion was really a petition for post-conviction relief. 

The reason was this was so is seen by this quote from the Court of Appeals opinion: "The Supreme Court of Ohio has held that, “[w]here a criminal defendant, subsequent to his or her direct appeal, files a motion seeking vacation or correction of his or her sentence on the basis that his or her constitutional rights have been violated, such a motion is a petition for post-conviction relief as defined in R.C. 2953.21.” State v. Reynolds, 79 Ohio St.3d 158 (1997), at syllabus." Once the motion was considered as such a petition, it then becomes subject to the time limits for such motions and it was untimely. 

State v. Stoddard, 2013-Ohio-4896 affirmed Stoddard's conviction by the Summit County Common Pleas Court. Stoddard argued that his guilty plea was not knowingly, intelligently, and voluntarily made and that the trial court abused its discretion by not considering mitigating factors when it sentenced him. Both assignments of error were rejected. 

State v. Russell, 2013-Ohio-4895 affirmed the denial of a motion to suppress by the Summit County Common Pleas Court. Russell argued that the affidavit submitted by the officer was not sufficient to establish that the drugs and/or contraband would be found at the premises to be searched. The Court of Appeals reviewed the affidavit and found that even if the one paragraph that was disputed by Russell were not considered, the affidavit still have enough information to establish probable cause. 

Prussak-Klein v. Durachinsky, 2013-Ohio-4894 affirmed a decision of the Summit County Domestic Relations Court regarding whether or not tutoring expenses for the child of the parties was a "medical expense" and whether the motion for back child support was barred by the doctrine of res judicata. The Court of Appeals found no error by the trial court and both assignments of error were overruled. 

Medina County Appellate Decisions for November, 2013

The Court of Appeals for the Ninth Appellate District issued three decisions for appeals from Medina County during the month of November. All three decisions were issued on November 12, 2013.Summaries of the decisions appear below. 

 Sunset Estate Properties, L.L.C. v. Lodi, 2013-Ohio-4973 reversed a decision from the Medina County Common Pleas Court that upheld a zoning ordinance in the Village of Lodi that declared a mobile home park lot vacant if it had not been rented for six months. Such a declaration meant that the Lodi Board of Public Affairs wouldn't extend utility service to such lots. The Court of Appeals found that the ordinance was facially unconstitutional. The Court of Appeals reversed the granting of a summary judgment to the Village of Lodi on the grounds that the section involved was unconstitutional. It remanded the case back to the trial court for further proceedings. 

State v. McDonald, 2013-Ohio-4972  affirmed a decision by the Medina County Common Pleas Court Mr. McDonald him of various sexual offenses including three counts of rape. McDonald alleged four assignments of error. They were that the trial court erred in allowing a witness to testify as an expert; that the verdict was against the manifest weight of the evidence; that the trial court erred in admitting hearsay testimony; and that the trial court erred when it denied a motion to sever the charges. 

State v. Garnett, 2013-Ohio-4971 affirmed a decision of the Medina County Common Pleas Court convicting Mr. Garnett of drug trafficking in an amount equal to or greater than bulk amount. The appeal was based on the argument that the State erred in only testing one of the alleged Oxycodone pills and that it should have tested more. The Court of Appeals affirmed the conviction and held that the State could test a random sample of the pills given that the pills were identical, carried the same markings, and were manufactured by a pharmaceutical company.  

Wayne County Appellate Decisions for November, 2013

The Court of Appeals for the Ninth Appellate District released one decision on an appeal from Wayne County. That decision was released on November 12, 2013. A summary of the decision appears below. 

State v. Fields, 2013-Ohio-4970 affirmed a decision from the Wayne County Municipal Court. Mr. Fields appealed his conviction for driving while under the influence of alcohol. Mr. Fields was originally arrested in March of 2007. When the first trial date appeared Mr. Fields orally waived on the record his right to a speedy trial. He failed to appear and a warrant was issued for his arrest. In June of 2011 he filed a motion to dismiss for lack of speedy trial. That motion was denied. He then filed motions for a pretrial and discovery. The case went to trial and August of 2012 and he was found guilty. 

The Court of Appeals affirmed the trial court's denial of the motion to dismiss under the following analysis: From the time he orally waived his right to a speedy trial until he filed the motion to dismiss was tolled because of the waiver. Then from the time the motion to dismiss was filed until the trial date was reasonable because of delays attributable to the motions that Mr. Fields had filed. 

Lorain County Appellate Decisions for November, 2013

The Court of Appeals released four decisions for cases on appeal from Lorain County courts. Summaries of those decisions are set forth below. 

Deutsche Bank v. Holloway, 2013-Ohio-5194 was released on November 25, 2013. The decisions reversed a decision from the Lorain County Common Pleas Court granting a motion for summary judgment to the bank. The trial court was reversed because the bank didn't show that it had standing to bring the foreclosure. The decision relied on the Ohio Supreme Court decision of   Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, ¶ 28 and the Ninth District's own decision in BAC Home Loan Servicing, LP. v. McFerren, 9th Dist. Summit No. 26384, 2013-Ohio-3228, ¶ 8, 13. The latter decision holds that a plaintiff in a foreclosure action must show that it holds both the note and the mortgage when it files the action. 

In re A.H., 2013-Ohio-5080 was released on November 19, 2013. The appeal was from a decision of the Lorain County Common Pleas Court, Juvenile Division,  revoking probation for A.H. for 90 days. The appellate court found the appeal to be moot since he had already served the 90 day revocation period. 

State v. Ditzler, 2013-Ohio-4969 was released on November 12, 2013. The appeal was from a decision of the Lorain County Common Pleas Court denying a motion to void Mr. Ditzler's sexually violent predator specification. Ditzler argued that based on a Ohio Supreme Court decision that had held that a defendant could not be found guilty of such a specification if the predicate offense was not prior to the specification date. The Court of Appeals found that since Ditzler had not appealed this issue back in 2000 when he was convicted, there was no appeal pending from him at the time the Ohio Supreme Court released its decision. Therefore he could not raise the issue on this appeal. 

A.S. v. P.F., 2013-Ohio-4857 was released on November 4, 2013. The decision affirmed the granting of a civil stalking protection order by Lorain County Court of Common Pleas. The decision is very fact specific. The Court of Appeals noted that the decision of the trial court was done under the recently amended Civ. R. 65.1 which allows a magistrate to issue a civil stalking protection order and that order may be reviewed on appeal without the appellant having filed for review by the trial court prior to the appeal. Judge Carr dissented from the holding since she believed that the appellee did not establish a basis for the protection order. 

Income Calculations for Child Support May Include Employer Benefits

Click here to read the opinion summary of Morrow v. Becker prepared by the Ohio Supreme Court's Office of Public Information. 

Hazard in City Park Does Not Affect City’s Recreational Use Immunity

Click here to read the opinion summary issued by the Ohio Supreme Court's Office of Public Information regarding the Court's decision in Pauley v. Circleville. 

Supreme Court Decision Regarding Expert Witness Testimony & Medical Bill Write-Off

In Moretz v. Muakkassa the Ohio Supreme Court wrote the following in the third paragraph of the opinion syllabus: "R.C. 2317.421 obviates the necessity of expert testimony for the admission of evidence of write-offs, reflected on medical bills and statements, as prima facie evidence of the reasonable value of medical services. (R.C. 2317.421, construed.)" The Court of Appeals for the Ninth Appellate District had held that such testimony was required. Note that the actual wording of the syllabus would seem to require that the bill or statement contain information showing the write-off. 

Ninth District Opinions for October 5 through October 31, 2013

State v. Burns, 2013-Ohio-4784 affirmed in part and reversed in part Mr. Burns' conviction from the Summit County Common Pleas Court. Burns was convicted of several offenses, including felonies. Burns appealed alleging that his convictions were based on insufficient evidence, that his counsel was ineffective, and that the trial court allowed inadmissible evidence to be introduced by the State. All of those assignments of error were overruled. 

The Court of Appeals, however, did remand the case back to the trial court to take care of some sentencing issues. One was that the trial court just ordered the imposition of costs as a sentence on three minor misdemeanor counts. The Court of Appeals found that costs cannot be a sentence and that a trial court cannot not impose a sentence in a criminal or traffic case. Therefore the remand was necessary to correct that problem. 

A remand was also necessary to correct sentences that were imposed on offenses that the trial court found had merged with each other for purposes of sentencing. 

Dunn v. State Auto. Mut. Ins., 2013-Ohio-4758 affirmed a decision from the Lorain County Common Pleas Court denying a motion to vacate a judgment under Civ. R. 60 (B). Mr. Dunn raised two issues. One was that the trial court denied him due process when it overruled his motion since he had not received the four notices that were sent to him warning him of a possible dismissal if action was not taken. The second issue was that his counsel was ineffective in representing him. 

The Court of Appeals found that Dunn had not alleged enough facts in his motion to establish that he had a possible meritorious defense, as required by GTE Automatic Elec. Inc. v. ARC Indus. Inc., 47 Ohio St.2d 146, paragraph two of the syllabus (1976). Therefore the Court of Appeals was not able to say that the trial court erred in denying the motion to vacate. With regard to the second issue the Court of Appeals found that a civil litigant cannot raise the issue that his or her counsel was ineffective. 

State v. Winchester, 2013-Ohio-4683 affirmed Mr. Winchester's rape conviction out of the Summit County Common Pleas Court. Winchester alleged that the he was deprived of due process because his conviction was against the manifest weight of the evidence, was based on insufficient evidence, because he had ineffective assistance of counsel, because the trial court improperly sentenced him for two offenses that were allied offenses of similar import and because the trial court improperly denied his counsel the right to argue that one of the State's witness had a motive to lie. All of Winchester's assignments of error were overruled. 

State v. Smith, 2013-Ohio-4682  affirmed Mr. Smith's conviction for felonious assault by the Summit County Common Pleas Court. Smith claimed that the trial court erred in sentencing him to 11 years in prison. His arguments were that the trial court failed to consider the sentencing criteria listed in R.C. 2929.12 and that the trial court failed to consider the criteria listed in R.C. 2929.12 (E) regarding the likelihood of recidivism. Both assignments of error were overruled. 

State v. Randles, 2013-Ohio-4681 affirmed Mr. Randles sentence for rape by the Summit County Common Pleas Court. Randles argued that the trial court erred in sentencing him to 25 year to life for the rape. He maintained that the 
verdict form did not contain a finding that the victim was under 13 years of age or that he engaged in sexual conduct with the victim. The Court of Appeals pointed out that the indictment charged him with a violation of R.C. 
2907.02(A)(1)(b). In order to be found guilty the State had to prove beyond a reasonable doubt both of those facts. If the jury would have had a reasonable doubt as to either of those facts, it would have found him not guilty. Therefore the sentence for the offense which he was found guilty of was appropriate. 

State v. Johnson, 2013-Ohio-4680 reversed in part and affirmed in part a decision from the Summit County Common Pleas Court which convicted Mr. Johnson of rape and gross sexual imposition. The trial court sentenced Johnson to two maximum sentences of 11 and 3 years. Johnson appealed claiming that the trial court had abused its discretion by imposing the maximum sentences consecutively. The court of appeals found that the 11 sentence for rape was not correct since Johnson committed the rape prior to the effective date of HB 86, which increased the penalties for first degree felonies from 10 to 11 years. Johnson also argued that he should not have received consecutive sentences, but the Court of Appeals determined that the issue was not ripe for review since it had to remand the case for re-sentencing. 

In re M.C., 2013-Ohio-4679 affirmed a decision from the Summit County Juvenile Court terminating parental rights and transferring custody to the Summit County Children Services Board. Both parents appealed. The mother argued that the trial court's denial of her motion to transfer custody to her was against the manifest weight of the evidence. The father argued that the trial court's decision was not supported by clear and convincing evidence and was also against the manifest weight of the evidence. All three judges agreed that the finding with respect to the mother was correct, but Judge Carr dissented with respect to the father's assignment of error. 

Summit Cty. Fiscal Officer v. Helms, 2013-Ohio-4678 dismissed an appeal from a decision of the Summit County Common Pleas Court because there was not a final order. The case was one for delinquent taxes on a vacant lot. There were several other parties that had liens on the lot. The order was not a final order because the trial court did not include a specific amount that was due to the plaintiff for back taxes. The case was then remanded for further proceedings. 

Batcher v. Pierce, 2013-Ohio-4677 affirmed in part and reversed in part a decision from the Summit County Domestic Relations Court that modified child support due to Pierce from Batcher and denied Pierce's motion to terminate the shared parenting plan that the parties had entered into. The Court found that the trial court abused its discretion in lowering the child support due to Pierce from Batcher because it had not undertaken an analysis of whether there had been a change in circumstances justifying the child support reduction. The Court of Appeals affirmed, however, the trial court's decision not to terminate the shared parenting plan.


State v. Hairston, 2013-Ohio-4634 affirmed an order from the Lorain County Common Pleas Court denying Mr. Hairston's motion to resentence him. Hairston argued that the trial court improperly failed to sentence him on all the offenses for which he was convicted. The Court of Appeals noted that since some of the offenses had merged into other offenses, the trial court acted appropriately. Hairston also argued that the trial court improperly imposed consecutive sentences. The Court of Appeals rejected this argument since it could have been brought up by direct appeal. 

Bernardini v. Fedor, 2013-Ohio-4633 reversed in part and affirmed in part the granting of a motion for summary judgment in a legal malpractice case. The trial court granted the motion for summary judgment because Mr. Bernardini had not produced an expert opinion that Mr. Fedor's alleged malpractice was the proximate cause of his damages. The Court of Appeals reversed since such an opinion is not required in every malpractice case and f whether it is required in a particular case depends on an analysis of the nature of the malpractice claim and the attendant circumstances. Therefore the order of the trial court was reversed and the case remanded for further proceedings on that assignment of error.

Akron v. Turner, 2013-Ohio-4578 dismissed an appeal from the Akron Municipal Court's order denying Ms. Turner's administrative appeal of her license suspension. The Court of Appeals found that it did not have jurisdiction since Turner untimely filed her appeal from the trial court's decision regarding her license suspension. The Court of Appeals noted that the license suspension and the underlying operating while under the influence charge are separate proceedings. Turner filed her appeal after she had been found not guilty of OMVI but guilty of speeding and failing to yield. She should have filed it when the trial court denied her license suspension appeal which took place approximately a month before the trial for OMVI and the two minor misdemeanors. 

State v. Proctor, 2013-Ohio-4577  affirmed Mr. Proctor's conviction for the felony theft by the Summit County Common Pleas Court. Proctor appealed citing two assignments of error. The first was that the trial court erred in not finding that he was convicted of a misdemeanor since the verdict form did not include a special finding that the property taken was a motor vehicle. The Court of Appeals found that since he did not object to the verdict form at the time the form was submitted he had to show that the use of the verdict form was plain error and he did not show plain error. Proctor also argued that his lawyer was ineffective. Since the record supported a finding of guilt on the fourth degree felony charge, he could not show ineffective assistance of counsel. 

State v. Berkenstock, 2013-Ohio-4576 affirmed a decision from the Summit County Common Pleas Court sentencing him to 42 months in prison for conviction of fourth and fifth degree felonies. Mr. Berkenstock argued on appeal that the trial court abused its discretion in imposing consecutive sentences. The appellate court found that the trial court had complied with R.C. 2929.14(C)(4) and made the requisite findings on the record. It also found that since the pre-sentence investigation report wasn't made part of the record on appeal it could not determine whether imposing consecutive sentences was an abuse of discretion. The same analysis also applied to Mr. Berkenstock's assignment of error that the trial court abused its discretion in imposing a maximum sentence. That is, given the fact that the psi was not in the record, the appellate court could not undertake an abuse of discretion review. 

State v. Troutman, 2013-Ohio-455 affirmed Mr. Troutman's conviction in the Lorain County Common Pleas Court. Troutman argued that his conviction was based on insufficient evidence, was against the manifest weight of the evidence and that the trial court erred in not granting a suppression motion. All three assignments of error were overruled. 

State v. Stambaugh, 2013-Ohio-4558 reversed a decision by the Medina County Common Pleas Court sentencing Mr. Stambaugh to one year in prison. The basis of the appeal was that the trial court should have sentenced Stambaugh to nine months in prison instead of one year. Originally the trial court had ordered community control sanctions for Stambaugh and said that if he violated the community control sanctions he would receive a one year prison term. In September of 2012 the trial court sentenced him to nine months in prison for violating community control sanction. At the request of the Bureau of Sentence Computation the trial court held another sentencing hearing on October 29, 2012 to clarify the amount of jail time credit Stambaugh should receive. Following that hearing the trial court issued a new sentencing entry ordering a one year prison sentence. The Court of Appeals held that since the entry imposing the nine month prison sentence was a final and appealable order, the trial court did not have jurisdiction to then order a one year prison sentence. 

Pfizer, Inc. v. Schmidlin, 2013-Ohio-4557 affirmed a decision from the Lorain County Common Pleas Court denying a motion to vacate a judgment under Civ. R. 60 (B). Ms. Schmidlin argued that her failure to file an answer was caused by inadvertence and excusable neglect, In particular she argued that she believed the case would proceed like a small claims case and she would be able to appear in court after receiving notice of a hearing date. In this particular case the appellate court found by a 2-1 decision that she was not entitled to her the default judgment vacated. Judge Belfance dissented because she believed the trial court should have held a hearing on the motion. 

State v. Robertson, 2013-Ohio-4556 affirmed a decision from the Medina County Common Pleas Court denying Mr. Robertson's motion to withdraw his guilty plea. The trial court found that the claim was barred by the doctrine of res judicata since Robertson had raised the same issue in a prior decision by the trial court that had been affirmed by the Court of Appeals. 

State v. Perry, 2013-Ohio-4466 affirmed a decision by the Summit County Common Pleas Court denying a motion for post-conviction relief. Mr. Perry filed his motion untimely. Since he filed it out of time he had to show that the filing of his untimely petition satisfied R.C. 2953.23(A). That section requires a petitioner to show that he or she was unavoidably prevented from discovering the facts upon which the petitioner must rely to establish the claim. If the petitioner is alleging that there was a constitutional error he or she must establish by clear and convincing evidence that bur for the constitutional error no reasonable tried of fact would have found the petitioner guilty. In this case Perry did not establish that R.C. 2953.23 (A) applied to his case. 

State v. Rapp, 2013-Ohio-4408  affirmed a decision by the Wayne County Municipal Court denying a motion to suppress. Mr. Rapp argued that the trial court had erred when it ruled that based on the report of a citizen informant the Ohio State Highway Patrol trooper lacked a reasonable suspicion to justify a traffic stop. He also argued that the trial court erred when it denied his motion to file a subsequent motion to suppress. Both assignments of error were overruled. 

Burr v. Nationwide Mut. Ins. Co., 2013-Ohio-4406 reversed a decision from the Lorain County Common Pleas Court granting a motion for summary judgment. The case arose from the death of a person on a motorcycle. Nationwide insured the operator of the vehicle that struck the motorcycle. The motorcycle had two people on it when the collision occurred, the driver and his passenger. The driver was killed. His estate settled with Nationwide and with the insurance company that covered him. Nationwide then claimed that since the settlement with AIG, the insurance carrier that covered the operator, it was released from all liability. The Estate then sued alleging fraudulent inducement, breach of contract, promissory estoppel, and unjust enrichment. The trial court found that the AIG settlement had released Nationwide. The Court of Appeals found that there was a material issue of fact since the Estate was alleging that the torts which were the basis for the lawsuit against Nationwide arose out of the settlement negotiations and therefore there was a question of whether the release covered such torts. 

State v. Hartman, 2013-Ohio-4407 reversed a conviction of Mr. Hartman by the Medina County Common Pleas Court for errors that occurred during the trial. The State has filed an appeal to the Ohio Supreme Court. 

Ninth District Decisions Released on 9/30/2013-10/2/2013

The Court of Appeals for the Ninth Appellate District released a total of 28 opinions during the week of September 30, 2013. Most of those were released on Monday, September 30. Below are my summaries of these opinions:

In re J.W., 2013-Ohio-4368 affirmed a decision from the Summit County Juvenile Court that denied a motion to vacate a prior decision terminating parental rights. In affirming the trial court's decision the Court of Appeals expressly recognized that a parent whose rights have been terminated by collaterally attack that judgment by filing a Civ. R. 60 (B) motion. There is an excellent discussion in the opinion about the interaction of Civ. R. 60 (B) and the continuing jurisdiction of the juvenile court pursuant to R.C. 2151.353(E)(1); R.C. 2151.417(B). Although the Court of Appeals found that the parent could use Civ. R. 60 (B) to try to attack the judgment, the Court found that the parent had not established that she was entitled to relief from Civ. R. 60 (B). 

In re S.H., 2013-Ohio-4380 reversed a decision by the Medina County Probate Court denying a motion to appoint a guardian for S.H. to make medical decisions on her behalf. The decision was made by  the Court of Appeals for the Fifth Appellate District sitting by assignment for the Court of Appeals for the Ninth Appellate District. The case involves the administration of chemotherapy for a minor. The appellate court reversed the Probate Court's decision and remanded the case to the Medina County Probate Court so that it may appoint the guardian to make medical decisions. 

Equable Ascent Fin., L.L.C. v. Ybarra, 2013-Ohio-4283 affirmed in part and reversed in part a decision from the Avon Lake Municipal Court in Lorain County. The issue on the appeal was whether the trial court should have granted a summary judgment motion filed by Equable Ascent and whether it should have dismissed the case on the basis of res judicata. On the assignment of error regarding the granting of the summary judgment motion, the appellate court agreed with Ybarra that there was a question of fact regarding whether Equable owned the account or was a collection agency pursuan to R.C. 1319.12(A)(1). The assignment of error regarding the dismissal of the case on the basis of res judicata was overruled. 

Equable Ascent Fin. v. Ybarra, 2013-Ohio-4282 reversed a decision of the Avon Lake Municipal Court granting Equable Ascent relief from judgment under Civ. R. 60 (B). The appellate decision states that the trial court granted the motion under Civ. R. 60 (B) the same day that it was filed. Ybarra asserted on appeal that the trial court erred by not giving him enough time to respond. The appellate court agreed. The case was reversed and remanded back to the trial court for further proceedings. 

State v. Vargas, 2013-Ohio-4281 affirmed Vargas's conviction in the Lorain County Common Pleas Court for gross sexual imposition. Vargas appealed claiming that his conviction was against the manifest weight of the evidence, that the evidence was insufficient to convict him, and that the trial court had sentenced him for a different subsection of R.C. 2907.05 than the one for which he was indicted. All three assignments of error were overruled. 

State v. Valle, 2013-Ohio-4280 affirmed a decision of the Lorain County Common Pleas Court dismissing the charge against Valle. The charge was dismissed because Valle had successfully completed a diversion program created by the Lorain County Common Pleas Court. The appellate opinion noted that the Lorain County Common Pleas Court stated in its journal entry that the charge against Valle was being dismissed pursuant to R.C. 2951.041(E). (That section of the Revised Code concerns the dismissal of charges pursuant to the completion of an intervention in lieu of conviction program.) The Court of Appeals noted that the State did not address R.C. 2951.041(E) in its brief or whether the trial court had not acted pursuant to that section. Therefore the dismissal was affirmed. 

State v. Tulk, 2013-Ohio-4279 reversed a conviction by the Avon Lake Municipal Court for improper passing on the right. The Court of Appeals found that the evidence did not establish the violation of the municipal ordinance with which Tulk was charged. The conviction was reversed and the case remanded for further proceedings. 

Deutsche Bank Natl. Trust Co. v. Taylor, 2013-Ohio-4278 reversed in part and sustained in part an appeal from the Summit County Common Pleas Court. The trial court was reversed because it granted a summary judgment to a former counsel for Deutsche Bank who had been named in Taylor's counter-claim. The Court of Appeals held that while the Bank could move for summary judgment on Taylor's counterclaim, it could not move for summary judgment on behalf of its former counsel. In support of its ruling the appellate court cited to Civ. R. 56 (B). All other assignments of error were overruled. 

Szymczak v. Tanner, 2013-Ohio-4277 affirmed a decision of the Medina County Common Pleas Court, Domestic Relations Division, that restored the mother's original shared parenting time. The order came after the Court of Appeals had reversed the trial court and ordered that the mother's original parenting time be reinstated. In this appeal the court of appeals found that the law of the case required that three of the father's assignments of error be overruled. The appellate court also found that the trial court was not required to take further evidence in order to comply with the appellate court's prior order. 

State v. Simpson, 2013-Ohio-4276 affirmed the conviction of Simpson for several felonies by the Lorain County Court of Common Pleas. Simpson listed several assignments of error in his appeal. Simpson's assignments of error included improper consolidation of charges, improper admission of Evid. R. 404 (B) evidence, improper instruction regarding complicity, and the verdicts were against the manifest weight of the evidence. All assignments of error were overruled. 

State v. Ruoff, 2013-Ohio-4275 affirmed a decision of the Lorain County Common Pleas Court dismissing a felony charge after Ruoff had completed the Court's diversion program. The State appealed the dismissal arguing that the Court's diversion program was set up without statutory authority and that the establishing of a diversion program by the Court is a violation of the doctrine of separation of powers. The Court of Appeals affirmed the Common Pleas Court for the same reasons set forth in State v. Valle, supra. 

State v. Reid, 2013-Ohio-4274 reversed a decision from the Lorain County Court of Common Pleas suppressing evidence in a felony prosecution. The trial court had held that the fact that a trained drug dog "hit" on the vehicle did not give the officer stopping the vehicle a reasonable basis to search the entire vehicle. In particular Reid argued that once the Ohio State Highway Patrol Trooper had searched the passenger compartment and did not find any drugs, a search of her trunk was not justified. The Court of Appeals reversed noting that in recent decisions it had held that a trained drug dog "hitting" on a vehicle gave the police probable cause to search the entire vehicle. 

State v. Ocasio, 2013-Ohio-4273 affirmed a decision of the Lorain County Common Pleas Court dismissing charges after Ocasio completed the Court's pre-trial diversion program. This decision involved the same issues as State v. Valle, supra. 

State v. Miles, 2013-Ohio-4272 affirmed a decision of the Medina County Common Pleas Court denying a motion to suppress evidence. Miles argued that the trial court took too long to hear and decide the motion before denying it. The Court of Appeals disagreed. 

State v. Meadows, 2013-Ohio-4271 affirmed a decision from the Summit County Court of Common Pleas convicting Meadows of murder and imposing a 15 to life sentence. Meadows argued that the trial court should have give a self-defense instruction and also instructed on lesser included offenses. That assignment of error was overruled. Meadows argued that the trial court relied on incompetent evidence in the form of written reports when finding him competent to stand trial. The Court of Appeals overruled that assignment noting Meadows had had an opportunity to object to the reports but chose not to do so and waived that argument. Meadows argued that the sentencing statute regarding the charge of murder was unconstitutional. That argument was rejected. Finally he argued ineffective assistance of counsel. That argument was also rejected. 

State v. Manacapilli, 2013-Ohio-4270 reversed a decision from the Wayne County Municipal Court finding Manacapilli guilty of speeding. The Court of Appeals found that the Municipal Court had violated the speedy trial requirements of R.C. 2945.71, et seq when it failed to bring Manacapilli to trial within 30 days of the charge being certified by the Mount Eaton's Mayor's Court. 

In re M.T., 2013-Ohio-4269 affirmed a decision of the Wayne County Court of Common Pleas, Juvenile Court Division, denying a step-father's motion for legal custody and terminating the mother's parental rights. The mother argued that the Children's Services Board had failed to show by clear and convincing evidence that it was in the best interests of the child to grant it legal custody and  that the finding was against the manifest weight of the evidence. The step-father argued that the CSB failed to prove by a preponderance of the evidence that a denial of a change of custody to him was in the best interest of the child and that the trial court erred in denying him custody because of his marijuana use. All assignments of error were overruled. 

State v. Hess, 2013-Ohio-4268 affirmed Hess's conviction for driving while under the influence of alcohol and failure to control in the Wayne County Municipal Court. Hess argued that the evidence was insufficient for the trial court to have convicted him following his trial to the bench. He also argued that the trial court improperly admitted testimony in violation of his right against self-incrimination and his right to the advice of any attorney. Both assignments of error were overruled. 

State v. Greer, 2013-Ohio-4267 affirmed Greer's conviction for a felony offense of driving while under the influence of alcohol in the Summit County Common Pleas Court. Greer alleged that his attorney was ineffective and that the trial court improperly admitted evidence of his prior convictions in that the entries used to establish his prior convictions did not comply with Crim. R. 32. Both arguments were rejected by the Court of Appeals. 

Green v. Full Serv. Property Inspections, L.L.C., 2013-Ohio-4266 affirmed the granting of a summary judgment to the defendants by the Barberton Municipal Court. The Court of Appeals found by a 2-1 vote that the motion was properly granted on both the breach of contract claim and the claim based on the Ohio Consumer Sales Practice Act. The majority found that the Greens did not present Civ. R. 56 evidence that established a material issue of fact. Judge Carr, in her dissent, wrote that while the affidavits submitted by Mr. and Mrs. Green were not based on personal knowledge and contained hearsay, the defendants did not object to the affidavits. Therefore, based on prior decisions from the Court of Appeals, the trial court should have considered them and found that there was a material issue of fact. 

R.C. v. J.G., 2013-Ohio-4265 affirmed the granting of a civil stalking protection order by the Medina County Common Pleas Court. J.G. alleged that the evidence was insufficient, that the trial court abused its discretion in setting forth the terms of the order, and that the magistrate's decision was not sufficient to allow the trial court to adopt it. All assignments of error were overruled. 

Galloway v. Firelands Local School Dist. Bd. of Edn., 2013-Ohio-4264 reversed a decision of the Lorain County Common Pleas Court and remanded the case back to that court with instructions to dismiss the case. The reason for the reversal and remand was that the School Board had not entered a final order and therefore the trial court did not have jurisdiction to hear the administrative appeal. 

State v. Farrey, 2013-Ohio-4263 affirmed Farrey's convictions for drug possession by the Summit County Court of Common Pleas. Farrey alleged that his lawyer was ineffective and that his convictions were against the manifest weight of the evidence. Both arguments were rejected by the appellate court. 

Darno v. Davidson, 2013-Ohio-4262 reversed a decision by the Summit County Common Pleas Court granting a summary judgment to Westfield Insurance Company in an uninsured motorist case. The issue material fact found by the Court of Appeals concerning the definition of the term "occupying" the covered auto in a clause excluding coverage. The case was remanded for further proceedings. 

State v. Burgin, 2013-Ohio-4261 affirmed the conviction of Burgin by the Lorain County Common Pleas Court. Burgin assigned as error the denial of his motion to suppress by the trial court. The Court of Appeals found that the denial of the motion was proper. 

State v. Boden, 2013-Ohio-4260 affirmed Boden's convictions for several sex offenses by the Summit County Common Pleas Court. Boden alleged three assignments of error. One was that the evidence was not sufficient to convict him of the offenses. The second was that the trial court erred in denying his motion for a mistrial. The third was that the trial court erred in not granting his motion to sever the charges. All three assignments were overruled. 

Apple Group Ltd. v. Granger Twp. Bd. of Zoning Appeals, 2013-Ohio-4259 affirmed a decision of the Medina County Common Pleas Court finding that the proposed development by Apple Group of land it owned in Granger Township violated the township zoning resolution and that the zoning resolution was constitutional. Apple appealed alleging four assignments of error. The first and second assignments of error were that trial court erred in finding that the township had adopted its zoning resolution in accordance with a comprehensive plan. The third assignment of error was that the trial court erred in not finding that township had exceeded its statutory zoning powers when it adopted its resolution. The fourth assignment of error was that the trial court erred when it found that the zoning resolution was constitutional as it applied to the Apple Group property. A majority of the court overruled all four assignments of error, but Judge Belfance dissented. 

State v. Adams, 2013-Ohio-4258 affirmed Adams' conviction for operating while under the influence of alcohol. Adams claimed on appeal that the trial court erred in finding that there was probable cause to arrest and that the trial court erred in admitting three prior convictions for OMVI when only one conviction was required to prove that Adams had a prior conviction within the past 20 years. Both assignments of error were overruled. Judge Moore concurred in the result reached by the Court of Appeals but for different reasons. 

Ninth District Opinions for 9/16 to 9/25

State v. Rondon, 2013-Ohio-4175 reversed and remanded a conviction from the Summit County Court of Common Pleas for carrying a concealed weapon. Rondon appealed his conviction arguing that the R.C. 2923.12 violates both the Ohio and Federal Constitutions. The appellate court did not reach those issues because it found that Rondon's change of plea from not guilty to no contest was not made voluntarily, intelligently, and/or knowingly made.

Pastor v. Pastor, 2013-Ohio-4174 affirmed a decision by the Summit County Domestic Relations Court denying a motion to show cause filed by a father against the mother of minor children.  The parties had entered into a shared parenting plan. That plan was modified by what was called an "agreed order".  The appellate court found that the agreed order was ambiguous and that the trial court did not abuse its discretion when it interpreted the order.

State v. Knuckles, 2013-Ohio-4173 affirmed a decision of the Summit County Court of Common Pleas denying a motion to withdraw a guilty plea without conducting a evidentiary hearing. The appellate court held that since Knuckles had not taken an appeal from his conviction, he was barred by the doctrine of res judicata in the present case. (Note: This is a different opinion than the other Knuckles case cited below. It is the same defendant, however.)

State v. Jordan, 2013-Ohio-4172 affirmed Jordan's conviction for a felony theft offense in the Summit County Common Pleas Court.  Jordon asserted that the trial judge should have granted his Crim. R. 29 motion, that his verdict was against the manifest weight of the evidence, that the trial erred in not instructing on the lesser included offense of attempted theft, and that the trial court abused its discretion in imposing  a 12 month prison sentence. All assignments of error were overruled.

In re M.P., 2013-Ohio-4171 affirmed a decision by the Summit County Juvenile Court placing legal custody of a minor child with a maternal aunt.  The only assignment of error alleged that the trial court erred in admitting the mother's mental health records after they were not provided in discovery. The appellate court, in its opinion, pointed out that while the mother alleged error, she did not allege prejudice. The appellate court held that even if the admission of the records was error, there was no prejudice since there substantial evidence supporting the trial court's decision.

In re A.S., 2013-Ohio-4170 affirmed a decision of the Summit County Juvenile Court denying a contempt motion filed by the Father of a dependent child.  The sole assignment of error was the trial court abused its discretion in denying the motion.  The Court of Appeals in affirming the trial court noted that the evidence was conflicting and that it could not say that the trial court abused its discretion.

State v. Gay, 2013-Ohio-4169 affirmed the Summit County Court of Common Pleas' convictions of Gay for murder with a firearm specification and having weapons while under a disability.  Gay alleged that the verdict was against the manifest weight of the evidence;  that the trial court had erroneously granted a motion in limine filed by the State; that the trial court erroneously admitted autopsy photos; and that there were numerous instances of prosecutorial misconduct.  Although the conviction was affirmed, both Judge Carr and Judge Belfance wrote opinions that concurred in the judgment only.

State v. Nieves, 2013-Ohio-4093 reversed a decision by the Lorain County Common Pleas Court that had granted a Crim. R. 29 motion for a directed verdict of acquittal on a rape charge during a bench trial, but had allowed the case to proceed as a charge of gross sexual imposition. The State appealed on the grounds that the trial court had not followed established precedent by the Ninth District Court of Appeals. The State claimed that a rape charge could be sustained if penetration was into a woman's labia, but not into her vagina. The reversal is of the granting of the Crim. R. 29  motion on the charge of rape, although double jeopardy precludes a retrial.

State v. Knuckles, 2013-Ohio-4024 affirmed a decision of the Summit County Common Pleas Court finding Knuckes guilty of burglary.  Knuckles had been placed on community control sanctions following a guilty plea. One of his conditions was supervision by the court's probation department. Initially when he was sentenced he was advised that he would receive five years in prison for violating the terms of supervision. He violated and received the five years. He appealed arguing that since the maximum sentence for his crime was 36 months when he violated probation, the sentence was improper. The trial court denied the motion on the grounds of res judicata. The appellate court affirmed pointing out that Knuckles could have filed a direct appeal, did not do  so, and was now barred by res judicata.

In re B.R., 2013-Ohio-4023 affirmed a decision of the Summit County Juvenile Court terminating parental rights of the parents of two children and placing the children in the custody of the Summit County Children Services Board. Each parent appealed the order of the trial court. The grounds for the appeals were that the trial court's decision was against the manifest weight of the evidence and that the trial court had improperly allowed a rebuttal witness to be called by the Board. The appellate court found that the decision was not against the manifest weight of the evidence and that the parents had not shown prejudice by the calling of the rebuttal witness,.

State v. Hill, 2013-Ohio-4022 affirmed in part and reversed in part a conviction for operating while under the influence of alcohol, aggravated vehicular homicide, and involuntary manslaughter. Hill listed several assignments of error. The first was that the verdict was against the manifest weight of the evidence.  The second was that the trial erred in not giving an instruction on what Hill termed the "lesser included offense of vehicular manslaughter. The third assignment was that the trial court erred in allowing a accident reconstructionist  to testify as an expert. The fourth assignment was that the trial court erred in allowing the admission of a state exhibit. The fifth assignment was that the trial court should have merged the offenses of aggravated vehicular homicide and operating while under the influence. The first four assignments were overruled. The appellate court found that the trial court did not conduct the analysis required by State v. Johnson (2010), 126 Ohio St. 3d 153, 2010 Ohio 6314. Therefore it remanded so that the trial court could conduct such an analysis.

State v. Reed, 2013-Ohio-3970 overruled all assignments of error filed by Reed except for one. Reed was convicted of one count of murder and one count of aggravated murder. Reed argued that his convictions were against the manifest weight of the evidence, that the evidence was insufficient to convict him of the offenses, that the prosecutorial committed prejudicial error during his final argument, that his counsel was ineffective, that the trial court erred in considering a pre-sentence investigation report from another case,  and that the trial court imposed a  post-release control for a unclassified felony. Only the last assignment of error was sustained by the Court of Appeals. The appellate court pointed out that post-conviction release can only be applied when prison sentences are imposed for a classified felony. The case was remanded to the trial court so that the trial court could impose sentence without imposing post-release control.  The appeal was filed from the Wayne County Court of Appeals.

State v. Porter, 2013-Ohio-3969 affirmed a conviction of Porter for gross sexual imposition. Porter argued that the conviction was against the manifest weight of the evidence, that there was not sufficient evidence to sustain the conviction, that his counsel was ineffective, and that the appellate court should declare plain error. All assignments of error were overruled. The appeal was from the Medina County Court of Appeals. 

State v. Neumann-Boles,2013-Ohio-3968 vacated a sentencing entry and remanded the case back to the Medina County Common Pleas Court.  It was remanded back so that the trial court could correct a prior sentencing entry by filing a nunc pro tunc entry. The sentence itself was not changed.

Henry v. Henry, 2013-Ohio-3967 affirmed the modification of a divorce decree that changed the calculation from 50% of the husband's PERS benefits to a definite sum. Mr. Henry argued that the trial court did not have jurisdiction to modify a property settlement. The Court of Appeals affirmed on the grounds that the trial court's order was an enforcement of the previous order and not a modification of the entry. 

State v. Davis, 2013-Ohio-3966 affirmed a decision from the Lorain County Common Pleas Court dismissing criminal charges because the defendant completed a court ordered diversion program. The trial court was affirmed because the record did not contain enough information for the appellate court to review the trial court's decision. Judge Carr dissented. 

State v. Chisolm, 2013-Ohio-3965 reversed a decision of the Wayne County Common Pleas Court denying a motion for acquittal because Chislom's speedy trial rights had been violated. The trial court had denied the motion because it reasoned that Chislom was neglectful in not communicating with his court-appointed attorney. The Court of Appeals noted that Chislom had been incarcerated in the county jail when his attorney was appointed. He sent the lawyer a letter through another inmate who was also represented by the Public Defender's Office. That letter got put in the wrong file. The appellate court found that Chislom had not been neglectful or that he had acted improperly. 

Caskey v. Caskey, 2013-Ohio-3964 affirmed the dismissal of a complaint against the executor of an estate on the basis that the complaint was time barred. The plaintiff was the ex-husband of the decedent and the defendant was the executor of his ex-wife's estate. He alleged that he only discovered the supposed fraud committed by his wife in 2011. The Court of Appeals reasoned, however, that he suspected that his ex-wife was acting fraudulently in 2007 and therefore his causes of action were time barred. 

Ninth District Opinions for Sept. 4-11, 2013

State v. Taylor, 2013-Ohio-3906 reversed a decision from the Summit County Court of Common Pleas denying a motion to suppress. The basis for the appellate court's ruling was that the officer who made the traffic stop didn't have a reasonable, articulable suspicion that the occupants of the car were engaging in a criminal activity. The basis for the stop was that the defendant and the driver of the car had come from a location about 30 to 40 minutes away to buy lye. Lye is a substance used in the manufacture of meth. The store where the lye was purchased is a store that employs a off-duty Akron police officer. In the past that officer had tipped off the officer making the stop about people purchasing lye. Of the 20 previous tips, 19 had led to drug-related offenses. The Court of Appeals, however, found that those facts were not enough to warrant a traffic stop. 

State v. Legg, 2013-Ohio-3905 reversed a decision of the Summit County Common Pleas Court finding that the offenses of child endangering and murder were not allied offenses of similar import. What is somewhat unusual about the case is that when the trial court held a change of plea hearing the parties stipulated that the two offenses were subject to merger. When conducting the sentencing hearing, however, the trial court found that they were not subject to merger. Since the case was resolved by a plea, there were no facts on which the trial court could base its ruling. The case was remanded so that the trial court can conduct a new sentencing hearing. 

In re Z.H., 2013-Ohio-3904 reversed a decision by the Summit County Juvenile Court. The grounds for the appeal was that the service of process on him of the petition terminating parental rights. The first issue was whether the denial of the motion under Civ. R. 60 (B) (5) and under the common law to set aside a judgment because of defective service was a final and appealable order. The appellate court determined that it was a final order. Then the trial court considered whether the method used to "serve" the Z.H.'s father comported with due process. The method used was to serve by publication by using the initials of the child. The Court of Appeals found that it did not provide due process. The case was then remanded back to the trial court. 

In re C.A., 2013-Ohio-3903 affirmed a decision by the Summit County Juvenile Court finding that a child was delinquent by committing a act that would be a felony if committed by an adult, namely felonious assault. The trial court also found that the juvenile had used a firearm in the assault and therefore he was committed to the Division of Youth Services for a minimum term of two years and a maximum term until age 21. The juvenile appealed arguing that the evidence was insufficient for the court to have made such a finding and that the verdict was against the manifest weight of the evidence. Both arguments were rejected. 

State v. Horton, 2013-Ohio-3902 affirmed the conviction of Mr. Horton for felony murder, felonious assault, both with firearm specifications and of having a weapon while under a disability. Horton appealed raising several assignments of error. He argued that the trial court had allowed the State to improperly challenge a juror on the basis of race; that the jury instructions were defective in that the trial court did not include a mens rea in the instructions for the felony murder charge; that the evidence was insufficient to sustain a conviction; that the verdict was against the manifest weight of the evidence; that the indictment was defective in that it did not set forth a mens rea for the felony murder charge; and that the trial court improperly required Mr. Horton to testify on his own behalf by stating that it would not give the instruction for defense of another after the close of the State's case. All of the assignments of error were overruled. 

State v. Treadwell, 2013-Ohio-3870 affirmed Mr. Treadwell's conviction for failure to register as a sex offender by the Lorain County Common Pleas Court. Treadwell argued that his convictions were based on insufficient evidence and were also against the manifest weight of the evidence. Both assignments of error were rejected by the appellate court. 

Thomas v. Strba, 2013-Ohio-3869 reversed a decision by the Medina County Common Pleas Court granting a motion for summary judgment. The trial court had held that the building of a hunting stand was a "recreational activity". The appellate court held that the doctrine of recreational immunity should not cover activities that are done in preparation of engaging in a recreational activity. The case was remanded back to the trial court for further proceedings. 

State v. Smith, 2013-Ohio-3868 affirmed a conviction in the Wayne County Municipal Court for leaving the scene of an accident and for failing to keep an assured clear distance. Ms. Smith appealed citing three assignments of error. They were that the conviction was based on insufficient evidence; that the conviction was against the manifest weight of the evidence; and that her trial counsel was ineffective. All three assignments of error were overruled. 

Matheny v. Norton, 2013-Ohio-3798 reversed a decision of the Summit County Common Pleas Court that granted a summary judgment to the City of Norton on a petition to compel arbitration. The appeal involved whether or not an employee waived his rights under the collective bargaining agreement with the City of Norton if he filed a grievance under the bargaining agreement. While the trial court found that there was a waiver, the appellate court found that there was not. The second assignment of error dealt with the trial court not holding a hearing on the petition to compel arbitration. The appellate court held that R.C. 2711.03(A) requires the trial court to hold a hearing. The case was remanded back to the trial court. 

State v. Jacobs, 2013-Ohio-3797 was an appeal from the Stow Municipal Court. Ms. Jacobs challenged her traffic ticket on the basis that R.C. 4511.213 is unconstitutional. Jacobs was given the traffic ticket and entered a plea of not guilty. The case was then heard by a magistrate. Jacobs argued that since there was not a subsection listed, the magistrate should have considered whether the entire statute was "void for vagueness". The magistrate limited the analysis to just one subsection. The trial court, however, when it heard the objections, considered the whole statute and found that it wasn't unconstitutional. The appellate court affirmed the trial court. Ms. Jacobs also argued that the statute was void for vagueness. The Court of Appeals also rejected this argument. 

Ninth District Decision for August 28, 2013

State v. Eader, 2013-Ohio-3709 was a decision reversing in part and affirming in part Mr. Eader's conviction various drug offenses and one count of having weapons under a disability. The indictment also sought the forfeiture of $5400.00 in cash.  The case was an appeal from the Summit County Common Pleas Court. 

Eader argued that the trial court erred in imposing the burden of proof on him during a suppression hearing. He also argued that his attorney was ineffective in that he did not object to the trial court's ruling that he had the burden of proof. Since the search was conducted pursuant to a warrant, and since such searches are presumed reasonable, these two assignments of error were overruled. 

Eader also argued that the trial court erred in denying his motion to suppress. The Court of Appeals also overruled this assignment of error, finding that the trial court acted correctly in not granting the motion to suppress. 

The last two assignments of error dealt with the trial court ordering him to pay court costs without complying with R.C. 2947.23. Those assignments were sustained and the case was remanded back to the trial court for new imposition of court costs. 

State v. Jones, 2013-Ohio-3710 affirmed a decision of the Summit County Common Pleas Court denying a motion to correct an allegedly illegal sentence. Jones was arguing that the offenses for which he was sent to prison were allied offenses of similar import and should have been merged. The Court of Appeals found that Jones could have and should have raised this issue on direct appeal and therefore he could not now raise the issue eight years after his conviction. 

Kasper v. Kasper, 2013-Ohio-3711 was a decision affirming an order from the Summit County Domestic Relations Court denying Mr. Kasper's motion to modify spousal support. Kasper set forth two assignments of error. 

Kasper argued that since his ex-wife was living with her fiance the trial court should have treated her as if she was remarried. The problem with Kasper's argument was that the divorce decree contained the following language: “spousal support shall terminate upon Husband’s or Wife’s death, Wife’s remarriage or seventy-four (74) months whichever first occurs.” Since the divorce decree did not mention co-habitation as a terminating event, the trial court acted properly in denying the motion. 

The other assignment of error was that the co-habitation of Mrs. Kasper constituted a change of circumstances. The Court of Appeals noted that Ohio State Supreme Court cases require a "substantial change of circumstances". It affirmed the trial court's finding that such a change of circumstances had not taken place. 

Ninth District Decisions for August 27, 2013

In re S.H., 2013-Ohio-3708  reversed a decision by the Medina County Probate Court denying the application of a guardian for a child whose parents are Amish. The child is being treated for cancer. Her physician wanted to continue chemotherapy, but the child and her parents were opposed to more chemotherapy. The Medina County Probate Court had held that since there was no evidence that the parents were unfit or unsuitable and therefore the application should be denied. 

The case was heard by the Court of Appeals for the Fifth Appellate District since the Court of Appeals for the Ninth Appellate District had recused itself. The Court of Appeals reversed finding that R.C. 2111.06 allows for the appointment of a guardian for medical reasons without a finding that the parents are unfit or unsuitable. The Court of Appeals noted that the trial court had relied on case law, but the Court of Appeals found that R.C. 2111.06 controlled and that there was no need to resort to case law. 

The case was remanded back to the Medina County Probate Court to determine whether a guardian should be appointed without reference to whether the parents were unfit or unsuitable.