The Court of Appeals for the Ninth Appellate District released numerous opinions on appeals from civil cases from Summit County courts. My summaries of the opinions that I was able to view appear below.
Stetz v. Copley Fairlawn School Dist., 2013-Ohio-5411, released on December 11, 2013, reversed the Summit County Common Pleas Court's decision that the school district was not entitled to sovereign immunity. The Court of Appeals held that whether the school district is entitled to such immunity depends on a three tier analysis. In this case the trial court did not complete such an analysis and therefore the denial of the motion for summary judgment was reversed and the case was remanded.
Hendy v. Wright, 2013-Ohio-5786, issued on December 31, 2013, affirmed a decision of the Summit County Common Pleas Court, Domestic Relations Division. The assignments of error broke down into two groups. One group alleged that the trial court had violated Ohio's Code of Judicial Conduct through its orders and the magistrate's recommendations. All of those assignments of error were overruled because the Court of Appeals doesn't have jurisdiction over the enforcement of the Code of Judicial Conduct.
The other assignments of error were overruled because the appellant had not specifically objected to the trial court's order as required by Civ. R. 53(D)(3)(b). Since such objections weren't filed the only way that the appellant could get relief was to have shown plain error but since he didn't argue plain error nor did he explain why the appellate court should adopt a plain error standard of review.
Witschey, Witschey & Firestine Co., L.P.A. v. Daniele, Jr., 2013-Ohio-5724, released on December 26, 2013, reversed and remanded a decision of the Summit County Common Pleas Court that a real estate conveyance wasn't fraudulent under R.C. Chapter 1336. The trial court R.C. 1336.08 (A) to rebut the presumption of fraud that arose because the transferror had not received any compensation for the transfer. The trial court's reasoning was that since the original transfer was a gift then when the defendant son transferred the property back to the defendant parents it was a transfer for valuable consideration or a reasonable equilavent value. The Court of Appeals found that this was not correct. It remanded the case back to the trial court with instructions to use R.C. 1336.04 (A) (1) to the evidence already introduced.
Black v. Stouffer Realty, Inc., 2013-Ohio-5723 was released on December 26, 2013. Black, Stouffer Realty, and a sales person for Stouffer Realty filed assignments and cross-assignments of error. All the assignments and cross-assignments of error were overruled.
When the case was submitted to the jury there was a form which allowed the jury to determine whether Black was entitled to attorney fees and punitive damages. The jury indicated that she was entitled to attorney fees but not punitive damages. Black argued that this was an inconsistent verdict and therefore the jury should be re-instructed and returned for further deliberation. The trial court refused. On appeal Black argued that Civ. R. 49 (B) applied to the facts in her case. That Rule deals with the procedure that is to be applied when there are inconsistent answers to jury interrogatories. The appellate court, however, the the form was a a general verdict form and not the same as jury interrogatories. Therefore that assignment of error was overruled.
Black also assigned as error the use of the verdict form described above. Since Black didn't object at the time the trial court sent the verdict form to the jury she was limited to a plain error analysis. The appellate court found that the trial court did not commit plain error. The other assignments of error made by the parties can be seen by clicking on the link to the opinion above.
Ward v. Ohio State Waterproofing, 2013-Ohio-5560, released on December 18, 2013, affirmed the decision of the Summit County Common Pleas Court denying a motion to vacate an arbitration award. The Court of Appeals noted that when considering a motion to vacate an arbitration award the court is guided by R.C. 2711.10. That section allows a court to vacate an award if it finds that the award was procured by fraud, corruption or undue means; if there evident partiality or corruption on part of any of the arbitrators; if the arbitrators were guilty of certain specified misconduct; and if the arbitrators exceeded their power, or so imperfectly executed them that final award could not be made. Applying that statute to the facts of the case, the trial court denied the motion. The appellate court affirmed that denial.
Lasater v. Vidahl, 2013-Ohio-5558, released on December 18, 2013, affirmed a decision of the Summit County Common Pleas Court denying a motion to award attorney fees to the prevailing party in a civil lawsuit. The awarding of attorney fees is allowed in certain circumstances by R.C. 2323.51. The granting of a motion for attorney fees under that section or the denial of attorney fees is reviewed under an abuse of discretion standard. Applying that standard to the facts in this case the appellate court concluded that the denial should be affirmed.
111 N. Main St., Inc. v. Von Allmen Ents., L.L.C., 2013-Ohio-5554, released on December 19, 2013, affirmed in part and reversed in part a decision of the Summit County Common Pleas Court. The parties had entered into a settlement agreement whereby von Allmen Enterprises and the Von Allmens had agreed that they owed certain sums of money to 111 N. Main Street for arrearages of rent on a lease. Mr. Von Allmen appeared at a settlement conference and agreed that they money was owed and that he personally guaranteed the arrearage amount. When the payments weren't made, 111 N. Main filed a lawsuit seeking to enforce the settlement agreement.
The Court of Appeals found that the trial court never had personal jurisdiction over the Von Allmens as individuals because service was never obtained on them, they never waived service, or were ever served personally with the motion to enforce the agreement. Since there was no personal jurisdiction then the trial court could not enter judgment against them as individuals.
The appellate court also considered the assignments of error by Von Allmen Enterprises and overruled them.
Osburn Towing v. Akron, 2013-Ohio-5409, released on December 11, 2013, reversed a decision of the Summit County Common Pleas Court. The decision was reversed because the appellate court found that the Common Pleas Court did not have subject matter jurisdiction. The reason why the trial court did not have subject matter jurisdiction was that the act that Osburn was complaining about was a legislative act and therefore could not be reviewed under R.C. 2506.01. Since the appellate court found that the trial court did not have subject matter jurisdiction, it did not address the other issues raised on appeal by the City of Akron.
Wednesday, January 08, 2014
Tuesday, January 07, 2014
Summit County Appellate Decisions in Juvenile Court Cases, December, 2013
The Court of Appeals for the Ninth Appellate District released five decisions on appeals from the Summit County Juvenile Court during December of 2013. My summaries of these decisions appear below.
In re R.P., 2013-Ohio-5728, released on December 26, 2013, affirmed the decision of the Summit County Juvenile Court's decision to declare R.P. a dependent child and place her in the custody of the Summit County Children Services Board.
In the first assignment of error R.P.'s father argued that the trial court erred in allowing evidence to be admitted at the hearing that had not been made available to him during discovery. The Court of Appeals overruled this assignment of error. It noted that the Juvenile Rules, unlike the Criminal Rules, do not require that the discovery response be supplemental as more information becomes available. The Court of Appeals reasoned that under the Juvenile Rules a party has to make a motion to compel discovery in order to make sure that the party is receiving updated discovery.
In two of the assignments of error the father argued that the trial court committed reversible error in allowing R.P.'s counselor to testify. The Court of Appeals held that if allowing the testimony was erroneous, it was harmless error.
Three of the assignments of error dealt with the Juvenile Court allowing the intervention of a couple who had been legal custodians of R.P. into the case and quashing a subpoena that had been issued for records of the CSB that related to the couple.
With regard to the trial court's quashing of the subpoena to the couple the Court of Appeals held that the father did not demonstrate how the evidence would have been relevant to his case. With regard to the decision of the trial court to allow the couple to intervene even though they did not comply with the Juvenile Rules regarding intervention of parties, the Court of Appeals held that the father did not establish that the intervention was prejudicial to his rights.
The father also assigned as error the trial court allowing certified copies of the mother's misdemeanor convictions into evidence. The Court of Appeals held that such evidence was allowed under Evid. R. 902 (4) and Evid. R. 803 (8), which is the hearsay exception for public records.
Two of the assignments of error dealt with the finding by the trial court that R.P. was a dependent child. The Court of Appeals overruled those assignments of error, finding that the evidence was sufficient to support the dependency finding.
The last two assignments of error dealt with the trial court not allowing copies of confidential records held by the CSB's counsel to be given to the father and the findings made by the trial court in support of its decision. Both assignments of error were overruled.
In re J.B., 2013-Ohio-5727, released on December 26, 2013, affirmed the decision of the Summit County Juvenile Court that terminated the parental rights of the mother of J.B. and placed him in the permanent custody of the Children Services Board. The mother alleged that the finding that such termination was in the best interest of the child was against the manifest weight of the evidence. The Court of Appeals overruled that assignment of error.
In re M.H., 2013-Ohio-5565, released on December 18, 2013, affirmed an order of the Summit County Juvenile Court terminating the parental rights of the mother of M.H. and placing her in the permanent custody of the Children Services Board. She argued that the order was an abuse of discretion by the trial court. The appellate court disagreed and affirmed the trial court's order.
In re L.W., 2013-Ohio-5556, released on December 18, 2013, affirmed an order of the Juvenile Court finding that the best interests of L.W. were served by placing him in the temporary custody of the Children Services Board. Both the mother and the father appealed.
Both parents assigned as error the trial court's finding that L.W. was dependent was against the manifest weight of the evidence. That assignment was overruled.
The father assigned as error the trial court's finding that the child did not have to be personally served in order for the court to have acquired jurisdiction over the child. The Court of Appeals noted that objections to personal jurisdiction have to be made timely and that the father's refusal to make timely objections to the trial court having personal jurisdiction meant that he had forfeited that argument.
The father also asserted as error the trial court's finding that it did not have to appoint counsel or a guardian ad litem for L.W. The Court of Appeals noted that such a finding is reviewed under an abuse of discretion standard and that there is not an absolute right for a child to be represented by counsel or a GAL in a dependency or neglect case, but only in an abuse case. Therefore that assignment of error was also overruled.
In re V.H., 2013-Ohio-5408, released on December 11, 2013, affirmed the Juvenile Court's finding that V.H. was a delinquent child by reason of having the offense of gross sexual imposition. V.H. challenged the finding by arguing that the evidence was insufficient to support the Juvenile Court's finding of delinquency. The Court of Appeals reviewed the evidence and found it sufficient.
In re R.P., 2013-Ohio-5728, released on December 26, 2013, affirmed the decision of the Summit County Juvenile Court's decision to declare R.P. a dependent child and place her in the custody of the Summit County Children Services Board.
In the first assignment of error R.P.'s father argued that the trial court erred in allowing evidence to be admitted at the hearing that had not been made available to him during discovery. The Court of Appeals overruled this assignment of error. It noted that the Juvenile Rules, unlike the Criminal Rules, do not require that the discovery response be supplemental as more information becomes available. The Court of Appeals reasoned that under the Juvenile Rules a party has to make a motion to compel discovery in order to make sure that the party is receiving updated discovery.
In two of the assignments of error the father argued that the trial court committed reversible error in allowing R.P.'s counselor to testify. The Court of Appeals held that if allowing the testimony was erroneous, it was harmless error.
Three of the assignments of error dealt with the Juvenile Court allowing the intervention of a couple who had been legal custodians of R.P. into the case and quashing a subpoena that had been issued for records of the CSB that related to the couple.
With regard to the trial court's quashing of the subpoena to the couple the Court of Appeals held that the father did not demonstrate how the evidence would have been relevant to his case. With regard to the decision of the trial court to allow the couple to intervene even though they did not comply with the Juvenile Rules regarding intervention of parties, the Court of Appeals held that the father did not establish that the intervention was prejudicial to his rights.
The father also assigned as error the trial court allowing certified copies of the mother's misdemeanor convictions into evidence. The Court of Appeals held that such evidence was allowed under Evid. R. 902 (4) and Evid. R. 803 (8), which is the hearsay exception for public records.
Two of the assignments of error dealt with the finding by the trial court that R.P. was a dependent child. The Court of Appeals overruled those assignments of error, finding that the evidence was sufficient to support the dependency finding.
The last two assignments of error dealt with the trial court not allowing copies of confidential records held by the CSB's counsel to be given to the father and the findings made by the trial court in support of its decision. Both assignments of error were overruled.
In re J.B., 2013-Ohio-5727, released on December 26, 2013, affirmed the decision of the Summit County Juvenile Court that terminated the parental rights of the mother of J.B. and placed him in the permanent custody of the Children Services Board. The mother alleged that the finding that such termination was in the best interest of the child was against the manifest weight of the evidence. The Court of Appeals overruled that assignment of error.
In re M.H., 2013-Ohio-5565, released on December 18, 2013, affirmed an order of the Summit County Juvenile Court terminating the parental rights of the mother of M.H. and placing her in the permanent custody of the Children Services Board. She argued that the order was an abuse of discretion by the trial court. The appellate court disagreed and affirmed the trial court's order.
In re L.W., 2013-Ohio-5556, released on December 18, 2013, affirmed an order of the Juvenile Court finding that the best interests of L.W. were served by placing him in the temporary custody of the Children Services Board. Both the mother and the father appealed.
Both parents assigned as error the trial court's finding that L.W. was dependent was against the manifest weight of the evidence. That assignment was overruled.
The father assigned as error the trial court's finding that the child did not have to be personally served in order for the court to have acquired jurisdiction over the child. The Court of Appeals noted that objections to personal jurisdiction have to be made timely and that the father's refusal to make timely objections to the trial court having personal jurisdiction meant that he had forfeited that argument.
The father also asserted as error the trial court's finding that it did not have to appoint counsel or a guardian ad litem for L.W. The Court of Appeals noted that such a finding is reviewed under an abuse of discretion standard and that there is not an absolute right for a child to be represented by counsel or a GAL in a dependency or neglect case, but only in an abuse case. Therefore that assignment of error was also overruled.
In re V.H., 2013-Ohio-5408, released on December 11, 2013, affirmed the Juvenile Court's finding that V.H. was a delinquent child by reason of having the offense of gross sexual imposition. V.H. challenged the finding by arguing that the evidence was insufficient to support the Juvenile Court's finding of delinquency. The Court of Appeals reviewed the evidence and found it sufficient.
Summit County Appellate Decisions in Criminal Cases, December 2013
The Court of Appeals for the Ninth Appellate District released 14 decisions in criminal cases out of Summit County during December of 2013. My summaries of these cases appear below.
State v. Wood, 2013-Ohio-5802, released on December 31, 2013, affirmed Wood's criminal conviction for drug possession by the Summit County Common Pleas Court. Wood argued that the assistant prosecutor trying the case engaged in prosecutorial misconduct by introducing evidence that Wood had used a drug scale, a plate, and a razor blade to weigh and cut crack cocaine. The Court of Appeals affirmed the conviction and found that the evidence was relevant to show that Wood possessed the drugs involved in the charge.
State v. Tayse, 2013-Ohio-5801,released on December 31, 2013, affirmed the denial of a petition for post-conviction relief by the Summit County Court of Common Pleas. The Court of Appeals held that the trial court ruled correctly when it held that the petition was filed untimely.
State v. Carson, 2013-Ohio-5785, released on December 31, 2013, affirmed Mrs. Carson's conviction for one count of attempted deception to obtain a dangerous drug, a first degree misdemeanor. Mrs. Carson argued that her attorney was ineffective in not presenting certain evidence to the jury. The Court of Appeals pointed out that on that issue Mrs. Carson had the burden of proof on the issue that her trial attorney was not effective and that she didn't meet that burden. She also argued that the evidence was not sufficient to sustain the State's burden of proof and that her verdict was against the manifest weight of the evidence. Two judges of the appellate panel rejected all of Mrs. Carson's assignments of error. Judge Carla Moore would have sustained Mrs. Carson's manifest weight of the evidence assignment of error.
State v. Culp, 2013-Ohio-5799, released on December 31, 2013, reversed a decision of the Summit County Court of Common Pleas. The reversal was because the trial court did not conduct an analysis of the offenses for which Culp was convicted to see if they merged for purposes of sentencing. The case was remanded so that the trial court could conduct such an analysis.
State v. Bostick, 2013-Ohio-5784, released on December 31, 2013, sustained the defendant's convictions in the Summit County Common Pleas Court. Bostick had argued that the assistant prosecutor trying the case had unconstitutionally used her peremptory challenges to dismiss female jurors. The trial court conducted a brief hearing outside the presence of the jurors and overruled all three of the objections. The Court of Appeals affirmed. It held that Batson v. Kentucky, 476 U.S. 79, 89 (1986), does not require a trial judge to conduct a in-depth hearing when ruling on a Batson challenge.
Bostick also argued that a jury, and not the trial judge, should have determined whether he was a repeat violent offender. This assignment of error was also overruled.
Editor's Note: I was not able to view the decision of State v. Maffei, 2013-Ohio-5787, which was also released on December 31, 2013.
State v. Hrnjak, 2013-Ohio-5726, released on December 26, 2013, affirmed the denial of the defendant's motion to withdraw his guilty plea and/or for post-conviction relief. Hrnjak argued that his defense attorney failed to correctly advise him regarding the impact a conviction would have on his immigration status in the United States. He also alleged that the trial court erred in not conducting a live hearing instead of determining the motions from the record. Both assignments of error were overruled. Judge Carr's concurring opinion contains an interesting analysis of a recent United States Supreme Court decision regarding the duty of defense counsel in a criminal case to advise about the effects on a defendant's immigration status in the United States.
State v. Hill, 2013-Ohio-5725, released on December 26, 2013, affirmed in part and reversed in part Hill's convictions for murder and felonious assault. Hill was charged with two counts of murder and four counts of felonious assault. He was found guilty of all charges and also found guilty of having a firearm when he committed the offenses. At sentencing the trial judge found that count two, which was for murder, merged into count one, also for murder. The judge also found that count four, for felonious assault, merged into count one.
On appeal Hill argued that the evidence was insufficient to support a conviction for murder. He also argued that the evidence was insufficient to support a conviction for felonious assault on count three. The Court of Appeals overruled his assignment of error on the murder count but granted the assignment of error on the felonious assault count. In particular the appellate court found that the injuries received by the victim prior to being shot did not arise to the level of "serious physical harm" as that count required.
State v. Valenti, 2013-Ohio-5564, released on December 18, 2013, affirmed a decision of the Summit County Common Pleas Court denying a motion to suppress. Valenti appealed raising the issue of whether she had been unreasonably detained by the police while they were waiting for a drug dog to arrive and walk about her boyfriend's vehicle. The Court of Appeals found that the approximate 19 minute delay was not unreasonable and overruled the assignment of error.
State v. Powell, 2013-Ohio-5561, released on December 18, 2013, affirmed a decision of the Summit County Common Pleas Court denying a motion for judicial release. Powell was sentenced to four years in prison on one charge and one year in prison on a second charge, the two sentences to be served consecutively. Powell also received credit for 256 days of jail time against his sentences. When he filed the motion for judicial release the trial judge denied the motion because he had not filed according to the time limits for filing for judicial release when a defendant is serving a five year prison sentence.
Powell raised two arguments in the appeals court. The first was that his cases should have been considered as two cases, not one case, for purposes of calculating time limits for filing a motion for judicial release. The second was that because he had been given 256 days of jail credit, he was not serving a five year sentence, even if both sentences were considered. For procedural reasons the Court of Appeals rejected both arguments.
State v. McCallister, 2013-Ohio-5559, released on December 18, 2013, affirmed the decision of the Summit County Common Pleas Court denying McCallister's motion to withdrew his plea. McCallister argued that the trial court's omission in its sentencing entry of post-release control meant that his sentence was void. The appellate court found that the trial court had properly imposed post-release control in the sentencing entry. It also pointed out that even if it had not such an error would not void the sentence but would instead lead to the case being remanded for a proper imposition of post-release control.
State v. Jackson, 2013-Ohio-5557, released on December 18, 2013, affirmed in part and reversed in part Jackson's convictions for two counts of murder, 10 counts of felonious assault, one count of firing a gun into a habitation, and one count of carrying a concealed weapon. Several of the counts also contained firearm specifications.
In his first assignment of error Jackson argued that the evidence offered was insufficient to support his convictions for murder, felonious assault, and improper discharge of a firearm into a habitation. The Court of Appeals rejected this assignment of error and found that the evidence was sufficient.
In his second assignment of error Jackson argued that the offenses of murder, felonious assault, and improper discharge of a firearm into a habitation were allied offenses of similar import. The Court of Appeals found that the offense of improper discharge of a weapon into a habitation merged with the felonious assault and murder counts but that the offenses of murder and felonious assault did not merge.
State v. Marbury, 2013-Ohio-5306, released on December 4, 2013, affirmed the denial of Marbury's motion to "correct illegal or void sentence" by the Summit County Common Pleas Court. The appellate court overruled both assignments of error. It found that Marbury could have brought the assignments of error before the Court of Appeals by a direct appeal from his sentence. Since he did not, he could not bring them up after sentencing by a post-sentence motion.
State v. Lerch, 2013 Ohio 5305, was released on December 4, 2013. Unfortunately I could not retrieve the document in order to summarize the decision.
State v. Wood, 2013-Ohio-5802, released on December 31, 2013, affirmed Wood's criminal conviction for drug possession by the Summit County Common Pleas Court. Wood argued that the assistant prosecutor trying the case engaged in prosecutorial misconduct by introducing evidence that Wood had used a drug scale, a plate, and a razor blade to weigh and cut crack cocaine. The Court of Appeals affirmed the conviction and found that the evidence was relevant to show that Wood possessed the drugs involved in the charge.
State v. Tayse, 2013-Ohio-5801,released on December 31, 2013, affirmed the denial of a petition for post-conviction relief by the Summit County Court of Common Pleas. The Court of Appeals held that the trial court ruled correctly when it held that the petition was filed untimely.
State v. Carson, 2013-Ohio-5785, released on December 31, 2013, affirmed Mrs. Carson's conviction for one count of attempted deception to obtain a dangerous drug, a first degree misdemeanor. Mrs. Carson argued that her attorney was ineffective in not presenting certain evidence to the jury. The Court of Appeals pointed out that on that issue Mrs. Carson had the burden of proof on the issue that her trial attorney was not effective and that she didn't meet that burden. She also argued that the evidence was not sufficient to sustain the State's burden of proof and that her verdict was against the manifest weight of the evidence. Two judges of the appellate panel rejected all of Mrs. Carson's assignments of error. Judge Carla Moore would have sustained Mrs. Carson's manifest weight of the evidence assignment of error.
State v. Culp, 2013-Ohio-5799, released on December 31, 2013, reversed a decision of the Summit County Court of Common Pleas. The reversal was because the trial court did not conduct an analysis of the offenses for which Culp was convicted to see if they merged for purposes of sentencing. The case was remanded so that the trial court could conduct such an analysis.
State v. Bostick, 2013-Ohio-5784, released on December 31, 2013, sustained the defendant's convictions in the Summit County Common Pleas Court. Bostick had argued that the assistant prosecutor trying the case had unconstitutionally used her peremptory challenges to dismiss female jurors. The trial court conducted a brief hearing outside the presence of the jurors and overruled all three of the objections. The Court of Appeals affirmed. It held that Batson v. Kentucky, 476 U.S. 79, 89 (1986), does not require a trial judge to conduct a in-depth hearing when ruling on a Batson challenge.
Bostick also argued that a jury, and not the trial judge, should have determined whether he was a repeat violent offender. This assignment of error was also overruled.
Editor's Note: I was not able to view the decision of State v. Maffei, 2013-Ohio-5787, which was also released on December 31, 2013.
State v. Hrnjak, 2013-Ohio-5726, released on December 26, 2013, affirmed the denial of the defendant's motion to withdraw his guilty plea and/or for post-conviction relief. Hrnjak argued that his defense attorney failed to correctly advise him regarding the impact a conviction would have on his immigration status in the United States. He also alleged that the trial court erred in not conducting a live hearing instead of determining the motions from the record. Both assignments of error were overruled. Judge Carr's concurring opinion contains an interesting analysis of a recent United States Supreme Court decision regarding the duty of defense counsel in a criminal case to advise about the effects on a defendant's immigration status in the United States.
State v. Hill, 2013-Ohio-5725, released on December 26, 2013, affirmed in part and reversed in part Hill's convictions for murder and felonious assault. Hill was charged with two counts of murder and four counts of felonious assault. He was found guilty of all charges and also found guilty of having a firearm when he committed the offenses. At sentencing the trial judge found that count two, which was for murder, merged into count one, also for murder. The judge also found that count four, for felonious assault, merged into count one.
On appeal Hill argued that the evidence was insufficient to support a conviction for murder. He also argued that the evidence was insufficient to support a conviction for felonious assault on count three. The Court of Appeals overruled his assignment of error on the murder count but granted the assignment of error on the felonious assault count. In particular the appellate court found that the injuries received by the victim prior to being shot did not arise to the level of "serious physical harm" as that count required.
State v. Valenti, 2013-Ohio-5564, released on December 18, 2013, affirmed a decision of the Summit County Common Pleas Court denying a motion to suppress. Valenti appealed raising the issue of whether she had been unreasonably detained by the police while they were waiting for a drug dog to arrive and walk about her boyfriend's vehicle. The Court of Appeals found that the approximate 19 minute delay was not unreasonable and overruled the assignment of error.
State v. Powell, 2013-Ohio-5561, released on December 18, 2013, affirmed a decision of the Summit County Common Pleas Court denying a motion for judicial release. Powell was sentenced to four years in prison on one charge and one year in prison on a second charge, the two sentences to be served consecutively. Powell also received credit for 256 days of jail time against his sentences. When he filed the motion for judicial release the trial judge denied the motion because he had not filed according to the time limits for filing for judicial release when a defendant is serving a five year prison sentence.
Powell raised two arguments in the appeals court. The first was that his cases should have been considered as two cases, not one case, for purposes of calculating time limits for filing a motion for judicial release. The second was that because he had been given 256 days of jail credit, he was not serving a five year sentence, even if both sentences were considered. For procedural reasons the Court of Appeals rejected both arguments.
State v. McCallister, 2013-Ohio-5559, released on December 18, 2013, affirmed the decision of the Summit County Common Pleas Court denying McCallister's motion to withdrew his plea. McCallister argued that the trial court's omission in its sentencing entry of post-release control meant that his sentence was void. The appellate court found that the trial court had properly imposed post-release control in the sentencing entry. It also pointed out that even if it had not such an error would not void the sentence but would instead lead to the case being remanded for a proper imposition of post-release control.
State v. Jackson, 2013-Ohio-5557, released on December 18, 2013, affirmed in part and reversed in part Jackson's convictions for two counts of murder, 10 counts of felonious assault, one count of firing a gun into a habitation, and one count of carrying a concealed weapon. Several of the counts also contained firearm specifications.
In his first assignment of error Jackson argued that the evidence offered was insufficient to support his convictions for murder, felonious assault, and improper discharge of a firearm into a habitation. The Court of Appeals rejected this assignment of error and found that the evidence was sufficient.
In his second assignment of error Jackson argued that the offenses of murder, felonious assault, and improper discharge of a firearm into a habitation were allied offenses of similar import. The Court of Appeals found that the offense of improper discharge of a weapon into a habitation merged with the felonious assault and murder counts but that the offenses of murder and felonious assault did not merge.
State v. Marbury, 2013-Ohio-5306, released on December 4, 2013, affirmed the denial of Marbury's motion to "correct illegal or void sentence" by the Summit County Common Pleas Court. The appellate court overruled both assignments of error. It found that Marbury could have brought the assignments of error before the Court of Appeals by a direct appeal from his sentence. Since he did not, he could not bring them up after sentencing by a post-sentence motion.
State v. Lerch, 2013 Ohio 5305, was released on December 4, 2013. Unfortunately I could not retrieve the document in order to summarize the decision.
Sunday, January 05, 2014
Lorain County Appellate Decisions, December, 2013
The Court of Appeals for the Ninth Appellate District released 10 Lorain County decisions in December of 2013. My summaries of the decisions appear below:
State v. Stone, 2013-Ohio-5782, released on December 30, 2013, was an appeal from the Lorain County Court of Common Pleas. At issue was the amount of jail credit that Stone should have received against his jail sentence imposed as a community control sanction. The Court of Appeals dismissed the appeal and held that it did not have jurisdiction to hear the appeal. It did not have jurisdiction and that Stone should have raised the issue in an appeal from the judgement entry of conviction.
King v. Carleton, 2013-Ohio-5781, released on December 30, 2013, affirmed a decision of the Lorain County Juvenile Court. The appeal was filed pro se and the appellate court stated in its decision that it had difficulty understanding all the issues that the mother of the child was raising. The appellate court affirmed the decision of the Lorain County Juvenile Court granting overnight visitation to the child's father and also finding that the mother was in contempt, but imposing no penalty.
State v. Bales, 2013-Ohio-5780, released on December 30, 2013, affirmed the Lorain County Common Pleas Court's order dismissing the case against Bales pursuant to Crim. R. 48. In dismissing the case the trial court made the following findings and set them forth in its journal entry. These findings included: 1) successful participation in the judicially created diversion program, (2) payment of fines and court costs, (3) no pending criminal charges, (4) no dependence on alcohol or drugs, and (5) a positive recommendation from the adult probation department. The Court of Appeals held that dismissing a charge after making such findings was not an abuse of discretion.
In re T.A., 2013-Ohio-5646, released on December 23, 2013, affirmed a decision of the Lorain County Juvenile Court terminating the parental rights of both the mother and father of two minor children. The mother raised one assignment of error and the father raised two assignments of error. All assignments of error were overruled.
Camera v. Lorain Civ. Serv. Comm., 2013-Ohio-5644, released on December 23, 2013, affirmed a decision of the Lorain County Common Pleas Court which, in turn, had affirmed a decision of the Lorain City Civil Service Commission. The Commission had terminated Camera's employment as Street Commissioner following his conviction for theft and tampering with records, both of which were first degree misdemeanors. The trial court found that there was reliable, substantial, and probative evidence supporting the Commission's decision. The Court of Appeals agreed.
State v. Liebling, 2013-Ohio-5491, released on December 16, 2013, affirmed a decision of the Lorain County Common Pleas Court granting a motion to suppress evidence. The State raised two grounds for its appeal. One was that the trial court's factual findings were not supported by the record and the other was that the trial court improperly considered an argument not raised in the defendant's motion but was raised in a prior motion.
The Court of Appeals rejected both arguments. it noted that the trial court had considered the testimony of both the Trooper making the traffic stop and Liebling. It found Liebling's version of events more plausible. Since the trial court is in the best position to judge the credibility of witnesses. The Court also found that the issue of the drug dog's credibility had been raised in a prior motion, it was not the basis of the trial court's ruling suppressing the evidence.
Bank of New York Mellon Trust Co. v. Bowers, 2013-Ohio-5488, released on December 16, 2013, affirmed a trial court's denial of a motion to set aside a judgment filed pursuant to Civ. R. 60 (B). The trial court denied the motion because Mr. and Mrs. Bowers did not asset that they had a meritorious defense and therefore could not satisfy their burden under Civ. R. 60.
State v. Spurlock, 2013-Ohio-5369, released on December 9, 2013, affirmed in part and reversed in part a decision from the Elyria Municipal Court. Spurlock argued that his warrantless arrest violated his due process rights. That argument was rejected. he also argued that the State failed to show that the field sobriety tests were done in substantial compliance with testing standards as required by 4511.19(D)(4)(b). The Court of Appeals reversed the trial court on that assignment of error. In doing so it rejected the State's argument that Spurlock's motion did not set forth an adequate factual basis for the suppression of the test on those grounds. The Court of Appeals found that the State, by failing to object in the Municipal Court, had waived that argument.
State v. Guerra, 2013-Ohio-5367, released on December 9, 2013, affirmed Guerra's conviction for aggravated murder. Guerra argued that his conviction was against the manifest weight of the evidence and that the evidence was insufficient to support his conviction. Both of those assignments of error were overruled. The Court of Appeals also rejected his argument that the trial court had improperly allowed evidence of prior confrontations between Guerra and the victim or friends of the victim. Guerra argued that the evidence was inadmissible under Evid. R. 404 and 403. That argument was also rejected.
Bremke v. Sherck, 2013-Ohio-5361, released on December 9, 2013, reversed a decision of the Lorain County Common Pleas Court granting a motion for summary judgment in a case involving a vacated street and whether or not the defendants had an easement over the vacated land. The appellate court found that there was a material issue of fact regarding this issue and that a motion for summary judgment should not have been granted.
State v. Stone, 2013-Ohio-5782, released on December 30, 2013, was an appeal from the Lorain County Court of Common Pleas. At issue was the amount of jail credit that Stone should have received against his jail sentence imposed as a community control sanction. The Court of Appeals dismissed the appeal and held that it did not have jurisdiction to hear the appeal. It did not have jurisdiction and that Stone should have raised the issue in an appeal from the judgement entry of conviction.
King v. Carleton, 2013-Ohio-5781, released on December 30, 2013, affirmed a decision of the Lorain County Juvenile Court. The appeal was filed pro se and the appellate court stated in its decision that it had difficulty understanding all the issues that the mother of the child was raising. The appellate court affirmed the decision of the Lorain County Juvenile Court granting overnight visitation to the child's father and also finding that the mother was in contempt, but imposing no penalty.
State v. Bales, 2013-Ohio-5780, released on December 30, 2013, affirmed the Lorain County Common Pleas Court's order dismissing the case against Bales pursuant to Crim. R. 48. In dismissing the case the trial court made the following findings and set them forth in its journal entry. These findings included: 1) successful participation in the judicially created diversion program, (2) payment of fines and court costs, (3) no pending criminal charges, (4) no dependence on alcohol or drugs, and (5) a positive recommendation from the adult probation department. The Court of Appeals held that dismissing a charge after making such findings was not an abuse of discretion.
In re T.A., 2013-Ohio-5646, released on December 23, 2013, affirmed a decision of the Lorain County Juvenile Court terminating the parental rights of both the mother and father of two minor children. The mother raised one assignment of error and the father raised two assignments of error. All assignments of error were overruled.
Camera v. Lorain Civ. Serv. Comm., 2013-Ohio-5644, released on December 23, 2013, affirmed a decision of the Lorain County Common Pleas Court which, in turn, had affirmed a decision of the Lorain City Civil Service Commission. The Commission had terminated Camera's employment as Street Commissioner following his conviction for theft and tampering with records, both of which were first degree misdemeanors. The trial court found that there was reliable, substantial, and probative evidence supporting the Commission's decision. The Court of Appeals agreed.
State v. Liebling, 2013-Ohio-5491, released on December 16, 2013, affirmed a decision of the Lorain County Common Pleas Court granting a motion to suppress evidence. The State raised two grounds for its appeal. One was that the trial court's factual findings were not supported by the record and the other was that the trial court improperly considered an argument not raised in the defendant's motion but was raised in a prior motion.
The Court of Appeals rejected both arguments. it noted that the trial court had considered the testimony of both the Trooper making the traffic stop and Liebling. It found Liebling's version of events more plausible. Since the trial court is in the best position to judge the credibility of witnesses. The Court also found that the issue of the drug dog's credibility had been raised in a prior motion, it was not the basis of the trial court's ruling suppressing the evidence.
Bank of New York Mellon Trust Co. v. Bowers, 2013-Ohio-5488, released on December 16, 2013, affirmed a trial court's denial of a motion to set aside a judgment filed pursuant to Civ. R. 60 (B). The trial court denied the motion because Mr. and Mrs. Bowers did not asset that they had a meritorious defense and therefore could not satisfy their burden under Civ. R. 60.
State v. Spurlock, 2013-Ohio-5369, released on December 9, 2013, affirmed in part and reversed in part a decision from the Elyria Municipal Court. Spurlock argued that his warrantless arrest violated his due process rights. That argument was rejected. he also argued that the State failed to show that the field sobriety tests were done in substantial compliance with testing standards as required by 4511.19(D)(4)(b). The Court of Appeals reversed the trial court on that assignment of error. In doing so it rejected the State's argument that Spurlock's motion did not set forth an adequate factual basis for the suppression of the test on those grounds. The Court of Appeals found that the State, by failing to object in the Municipal Court, had waived that argument.
State v. Guerra, 2013-Ohio-5367, released on December 9, 2013, affirmed Guerra's conviction for aggravated murder. Guerra argued that his conviction was against the manifest weight of the evidence and that the evidence was insufficient to support his conviction. Both of those assignments of error were overruled. The Court of Appeals also rejected his argument that the trial court had improperly allowed evidence of prior confrontations between Guerra and the victim or friends of the victim. Guerra argued that the evidence was inadmissible under Evid. R. 404 and 403. That argument was also rejected.
Bremke v. Sherck, 2013-Ohio-5361, released on December 9, 2013, reversed a decision of the Lorain County Common Pleas Court granting a motion for summary judgment in a case involving a vacated street and whether or not the defendants had an easement over the vacated land. The appellate court found that there was a material issue of fact regarding this issue and that a motion for summary judgment should not have been granted.
Wayne County Appellate Decisions, December 2013
The Court of Appeals for the Ninth Appellate District released two decisions for appeals from Wayne County Courts in December of 2013. My summaries of these decisions appear below:
State v. Weese, 2013-Ohio-5789, released on 12/31/2013, reversed a decision of the Wayne County Municipal Court. The trial court had ordered Mr. Weese to pay court costs but did not tell him that if he didn't pay the court costs the court could order him to do community service. At the time of his sentencing the Court of Appeals held that R.C. 2947.23(A)(1)(a) required a sentencing judge to advise a defendant that failure to pay court costs could result in a community service requirement. The case was then remanded back to the trial court so that the trial court could properly order the payment of court costs.
In re K.P., 2013-Ohio-5490, released on 12/31/2013, affirmed a decision on the Wayne County Juvenile Court ordering that the mother of K.P. be named sole residential parent.
State v. Weese, 2013-Ohio-5789, released on 12/31/2013, reversed a decision of the Wayne County Municipal Court. The trial court had ordered Mr. Weese to pay court costs but did not tell him that if he didn't pay the court costs the court could order him to do community service. At the time of his sentencing the Court of Appeals held that R.C. 2947.23(A)(1)(a) required a sentencing judge to advise a defendant that failure to pay court costs could result in a community service requirement. The case was then remanded back to the trial court so that the trial court could properly order the payment of court costs.
In re K.P., 2013-Ohio-5490, released on 12/31/2013, affirmed a decision on the Wayne County Juvenile Court ordering that the mother of K.P. be named sole residential parent.
Appellate Decisions for Medina County for December of 2013
The Court of Appeals for the Ninth Appellate District released six decisions for appeals from Medina County courts during December of 2013. My summaries of these decisions appear below:
Dillard v. Automation Tool & Die, Inc., 2013-Ohio-5645, released on 12/23/2013. This decision held that a denial by a trial court of a motion to dismiss under Civ. R. 41 (A) (2) is not a final appellable order. Since the trial judge's order denying the motion could not be appealed, the appellate court did not have jurisdiction to hear the case.
State v. Cooper, 2013-Ohio-5489, released on 12/16/2013, held that the Wadsworth Municipal Court properly denied a defendant's motion to suppress evidence. The defendant argued that motion should be granted on the basis of R.C. 4511.19(D)(4)(b). That section of the O.R.C. allows a police officer to testify as to the results of a field sobriety test if the trial court makes certain findings. The burden of proof set forth in that section is clear and convincing evidence. The Court of Appeals found that the trial court did not err in overruling the motion to suppress.
Bonk v. Mitchell, 2013-Ohio-5487, released on 12/16/2013, held 2-1 that an appeal filed from a decision of the Medina Municipal Court was untimely and therefore the appeal should be dismissed. Judge Belfance dissented. The appellant did not file a response brief to the appellee's motion to dismiss the appeal. The dissent contains an interesting discussion regarding a trial court's duty under Civ. R. 58 and the effect that a failure to comply with that rule can have on the time to file an appeal.
Drogell v. Westfield Group, 2013-Ohio-5262, released on 12/2/2013, upheld a decision of the Medina County Common Pleas Court granting a motion for summary judgment filed by Westfield. Mr. Drogell set forth two causes of action in his complaint. One was for age discrimination and the other was for disability discrimination. The trial court had awarded summary judgment on both causes of action. The decision contains an interesting discussion regarding whether a trial court has to consider a deposition that does not comply with the Ohio Rules of Civil Procedure. The majority held that it does not. In her dissent, however, Judge Carr maintained that the trial court should consider such a deposition unless there is an objection to the deposition being considered.
There were two other decisions from Medina County that were released but I did not summarize them because I couldn't open them. The decisions are State v. Dukles and State v. Shank. If I can open the decisions at a later date this blog post will be updated.
Dillard v. Automation Tool & Die, Inc., 2013-Ohio-5645, released on 12/23/2013. This decision held that a denial by a trial court of a motion to dismiss under Civ. R. 41 (A) (2) is not a final appellable order. Since the trial judge's order denying the motion could not be appealed, the appellate court did not have jurisdiction to hear the case.
State v. Cooper, 2013-Ohio-5489, released on 12/16/2013, held that the Wadsworth Municipal Court properly denied a defendant's motion to suppress evidence. The defendant argued that motion should be granted on the basis of R.C. 4511.19(D)(4)(b). That section of the O.R.C. allows a police officer to testify as to the results of a field sobriety test if the trial court makes certain findings. The burden of proof set forth in that section is clear and convincing evidence. The Court of Appeals found that the trial court did not err in overruling the motion to suppress.
Bonk v. Mitchell, 2013-Ohio-5487, released on 12/16/2013, held 2-1 that an appeal filed from a decision of the Medina Municipal Court was untimely and therefore the appeal should be dismissed. Judge Belfance dissented. The appellant did not file a response brief to the appellee's motion to dismiss the appeal. The dissent contains an interesting discussion regarding a trial court's duty under Civ. R. 58 and the effect that a failure to comply with that rule can have on the time to file an appeal.
Drogell v. Westfield Group, 2013-Ohio-5262, released on 12/2/2013, upheld a decision of the Medina County Common Pleas Court granting a motion for summary judgment filed by Westfield. Mr. Drogell set forth two causes of action in his complaint. One was for age discrimination and the other was for disability discrimination. The trial court had awarded summary judgment on both causes of action. The decision contains an interesting discussion regarding whether a trial court has to consider a deposition that does not comply with the Ohio Rules of Civil Procedure. The majority held that it does not. In her dissent, however, Judge Carr maintained that the trial court should consider such a deposition unless there is an objection to the deposition being considered.
There were two other decisions from Medina County that were released but I did not summarize them because I couldn't open them. The decisions are State v. Dukles and State v. Shank. If I can open the decisions at a later date this blog post will be updated.
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