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. 

Ninth District Decisions for August 26, 2013

Sherrill v. Knight, 2013-Ohio-3665 is a decision dismissing for lack of jurisdiction an appeal from an order of the Summit County Domestic Relatons Court modifying a shared parenting arrangement. The Court found that the DR Court order was not a final appealable order and therefore it did not have jurisdiction to hear the appeal. 

State v. Herzberger, 2013-Ohio-3664 affirmed a decision of the Lorain County Common Pleas Court classifying him as a sexual predator instead of a sexually oriented offender under the law that existed when Herzberger raped his daughters. The Court of Appeals found that the trial court had complied with the classification statute that then existed and that there was competent and credible evidence supporting the classification. 

Cashland Fin. Servs., Inc. v. Hoyt, 2013-Ohio-3663 affirmed a decision from the Lorain County Court of Common Pleas granting judgment to the plaintiff against Ms. Hoyt. Ms. Hoyt appealed citing three assignments of error.  

Hoyt claimed that the trial court erred in disallowing her counterclaim. The first assignment of error was on Hoyt's claim that Cashland had charged her an interest rate that was twice that called for in the contract. The Court of Appeals noted that when a defendant brings a counterclaim for breach of contract the defendant must show three things. 

The first is that the contract existed. The second is that the defendant fulfilled his or her duties under the contract. The third is that the plaintiff did not perform. In this case the appellate court found that since Hoyt did not claim that she had performed the contract, she couldn't maintain her counterclaim and that the motion for judgment on the pleadings had been correctly upheld. 

The second assignment of error was that the trial court erred in rewarding check cashing fees to Cashland in excess of those allowed by R.C. 1315.40(B), and by the contract. The appellate court found that since Cashland only charged the insufficient funds fee that it had been charged by the bank that held Hoyt's checking account. Since Cashland only charged what it itself had been charged, there was no violation of either the statute or the contract. 

The third assignment of error was that Cashland had charged a rate of interest not allowed by Ohio's laws on pay day lenders. The Court of Appeals held that since the complaint was dismissed, and Hoyt had not repaid the loan, there was no evidence that Hoyt had been charged anything by Cashland and therefore her cause of action for violation of Ohio's pay day lending statute was premature.