Ninth District Opinions for July 29 and July 31, 2013

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

Opinions Released on July 31, 2013 

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

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

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

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

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

Opinion Released on July 29, 2013

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