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.