Ninth District Opinions Released June 26, 2013

The Court of Appeals for the Ninth Appellate District released 10 opinions on June 26, 2013. All of the decisions were for appeals from Summit County. My summaries of the opinions appear below. 

State v. Weems, 2013-Ohio-2673 was a decision from the Summit County Court of Common Pleas. Mr. Weems challenged the severity of his sentence. He alleged that his sentence was more severe than that given to a co-defendant even though his involvement in the crime was less. The Court of Appeals affirmed the decision of the trial court because Mr. Deems did not provide either the transcript of the proceedings from his co-defendant's case nor the presentence investigation. Consequently the appellate court had nothing in the record to compare his sentence to and therefore it had to affirm the trial court's decision. 

State v. Sanders, 2013-Ohio-2672 was an appeal from the Summit County Common Pleas Court. Mr. Sanders was convicted of various felonies. He appealed challenging the legality of a search of his residence and also the fact that the trial court had kept the affidavit for the search warrant under seal and that the affidavit was insufficient to establish probable cause. 

He challenged the fact that a visiting municipal court judge who was assigned by the Ohio Supreme Court's Chief Justice to serve on the Akron Municipal Court. His argument was that none of the six Judges on the Municipal Court had requested a visiting judge on the day that the warrant was issued, hence there was no authority for a visiting judge to act. The Court of Appeals rejected this argument noting that while the record was unclear about why the Chief Justice had appointed a visiting judge, the authority of the Chief Justice to appoint visiting judges is such that an appointment of a visiting judge does not depend on a request. Therefore that assignment of error was overruled. 

With respect to the affidavit the Court of Appeals examined it under seal and concluded that it was sufficient to justify the existence of a search warrant. Since it found that it was sufficient the other argument concerning the sealing of the warrant was rendered moot. 

Akron v. Prince, 2013-Ohio-2671 was an appeal from the defendant's conviction in the Akron Municipal Court. The Court of Appeals reversed the conviction and remanded the case for further proceedings. Ms. Prince raised two assignments of error on appeal. The appellate court consolidated them for purposes of its decision. 

Since Ms. Prince was representing herself, the Court of Appeals had some difficulty with the issues she was raising on appeal. The Court wrote that her complaints were that she was not given all the documents she should have been given prior to trial through discovery and that the trial court considered matters outside of the evidence presented at trial. The Court of Appeals found that the trial court had considered matters outside of the evidence introduced at trial and therefore Ms. Prince's due process rights were violated. 

State v. Kosturko, 2013-Ohio-2670 was an appeal from a decision of the Summit County Common Pleas Court. Appellate counsel informed the appellate court that she had reviewed the transcript of the proceedings below and there were no grounds for an appeal. This representation was based on the United States Supreme Court decision of Anders v. California, 386 
U.S. 738 (1967). The Court of Appeals gave the defendant an opportunity to respond, no response was made, and so the case was dismissed. 

In re L.M., 2013-Ohio-2669 was an appeal from a decision of the Summit County Juvenile Court terminating the parental rights of a mother and awarding temporary custody of the child to the Summit County Children Services' Bureau. The Court affirmed the termination order. 

The mother filed two assignments of error. One was that the trial court erred in not allowing the mother an additional six months of custody in order to complete her case plan objectives. The other was that the trial court erred in not appointing a guardian ad litem for the child. The Court of Appeals overruled both assignments of error. 

State v. Hume, 2013-Ohio-2668 was an appeal from a decision of the Summit County Common Pleas Court. The Court of Appeals reversed in part and affirmed in part and remanded. The Court of Appeals sustained the assignment of error that claimed the trial court erred when it ordered restitution over the objection of defense counsel without a hearing. The Court overruled the assignment of error that claimed the trial court erred when it imposed the maximum sentence of three years in prison and a lifetime revocation of the defendant's driver's license. 

State v. Griffin, 2013-Ohio-2667 affirmed a decision from the Summit County Common Pleas Court. Mr. Griffin listed three assignments of error. The first assignment of error was that the trial court erred when it reimposed post-release control following a hearing. The second was that the trial court should erred in stating that it had no authority to do other than reimpose the original sentence. The third was that Mr. Griffin had inadequate representation. All three assignments of error were overruled. 

Flagstar Bank, FSB v. Harvey, 2013-Ohio-2666 reversed a decision from the Summit County Common Pleas Court granting a foreclosure to Flagstar Bank. Based on the Ohio Supreme Court decision of Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, it found that it was not established that the Bank was the real party in interest at the time of the filing of the lawsuit. It therefore reversed and remanded. Since it had reversed and remanded on that assignment of error, the other two assignments of error were moot. 

State v. Brown, 2013-Ohio-2665 reversed Mr. Brown's conviction on the grounds that the manifest weight of the evidence didn't support his conviction. The Court of Appeals found that there was sufficient evidence of his guilt to justify the case going to the jury, but that the manifest weight of the evidence did not support his conviction. Since the Court of Appeals reversed and remanded on that assignment of error, it did not reach the second assignment of error which was that the trial court erred in admitting other acts evidence. 

State v. Boone, 2013-Ohio-2664 reversed and remanded Mr. Boone's conviction because the trial court failed to comply with two provisions of the Ohio Revised Code regarding the imposition of court costs and the imposition of repayment of assigned counsel fees. The case was remanded back to the Summit County Common Pleas Court for further proceedings.