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.