tag:blogger.com,1999:blog-247932272024-03-21T16:18:27.105-07:00Retired Judge James Kimbler's BlogThis is a blog that contains articles about the law, happenings in the Medina County Courthouse, and reports on decisions of various courts. It is hosted by Retired Judge James Kimbler of the Medina County Common Pleas Court. Judge Kimbler served on the Wadsworth Municipal Court from February 10, 1986 to December 31, 1996. He served on the Medina County Common Pleas Court from January 1, 1997 to December 31, 2014. No public funds are used in the hosting of this website.Unknownnoreply@blogger.comBlogger835125tag:blogger.com,1999:blog-24793227.post-11802854597983867002017-04-13T19:18:00.001-07:002017-04-13T19:18:36.502-07:00Can You Impeach a Witness with a Fifth Degree Felony Conviction?<div class="MsoNormal">
Ohio Evid. R. 609 allows a witness to be impeached with proof of a
conviction of a crime. Subsection A of
Evid. R. 609 states what it terms the "General rule." That subsection
reads as follows:</div>
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(A) General rule. For the purpose of
attacking the credibility of a witness:</div>
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(1) Subject
to Evid.R. 403, evidence that a
witness other than the accused has been convicted
of a crime is admissible if the crime
was punishable by death or imprisonment in excess of one year pursuant to the
law under which the witness was convicted.</div>
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(2)
Notwithstanding Evid.R. 403(A), but subject to Evid.R. 403(B), evidence that the accused has been convicted of a crime is admissible if
the crime was punishable by death
or imprisonment in excess of one year pursuant to the law under which the
accused was convicted and if the court determines that the probative value of
the evidence outweighs the
danger of unfair prejudice, of confusion of the issues, or of misleading the
jury.</div>
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(3)
Notwithstanding Evid.R. 403(A), but subject to Evid.R. 403(B), evidence that any witness, including
an accused, has been convicted of a
crime is admissible if the crime
involved dishonesty or false statement, regardless of the punishment and
whether based upon state or federal statute or local ordinance.</div>
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An examination of the above shows that the Rule is setting forth two
requirements regarding the type of
criminal conviction that may be used for impeachment. The first is found
in Subsection (A) (1) and that is that the crime "was punishable by death
or imprisonment in excess of one year pursuant to the law under which the
witness was convicted. The second is found in Subsection (A) (3) which states
regardless of the punishment evidence of a conviction is admissible if the
"crime involved dishonesty or false statement." </div>
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Up until the passage of Senate Bill 2 in 1996 all felonies were
punishable by a prison sentence in excess of one year. This was because the
prison for a fourth degree felony, which prior to the passage of Senate Bill 2
was the lowest degree of felony that could be committed, carried a prison range
of 6 months to 18 months. Thus every felony in year, regardless of the type of
felony, could be used for impeachment. </div>
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That all changed, however, when the General Assembly passed Senate Bill
2. That bill established a new degree of felony, the fifth degree felony, which
was punishable by a prison sentence of 6 months to 12 months, a sentence that
is not in excess of one year. Under the language of the Rule the prison term
has to be in excess of one year which means that if a litigant was attempting
to impeach a witness with conviction of a fifth degree felony then the mere
fact that the crime was a felony wouldn't end the analysis. The trial court
would then have to decide whether the offense was one that involved dishonesty
or false statement. </div>
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Not all felonies are going to be considered such crimes. This was shown
in the case of State v. Chambers, (12th Dist.), 2011 Ohio 1187. In that case
the Court of Appeals for the 12th Appellate District faced the issue of whether
a defendant was properly impeached in a trial in which he was accused of
harboring a "vicious dog" under state law. In the trial it came out
that the defendant had been convicted of three offenses. One conviction was for
receiving stolen property. The 12th District Court of Appeals found that the
crime of receiving stolen property was a crime that involved "dishonesty
or false statement" and therefore impeachment was proper. See P43 of the
opinion. </div>
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The other two crimes, however, for importuning and attempted unlawful
sexual conduct with a minor, both fifth degree felonies. The Court of Appeals
held that those two convictions could not be used to impeach because both fifth
degree felonies were not punishable by death or imprisonment in excess of one
year, such convictions "were inadmissible pursuant to Evid.R.
609(A)(2). See <i>State v. Sledge</i>, Trumball App. No. 2001-T-0123, 2003
Ohio 4100, ¶24; see, also, <i>State v. Brown</i>, 100 Ohio St. 3d 51, 2003
Ohio 5059, ¶26-27, 796 N.E.2d 506." See P44. </div>
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Now in analyzing whether a fifth degree felony can be used to impeach a
witness you must consider the nature of the offense. If the fifth degree felony
is, for example, a theft offense, then it will most likely be considered an
offense of "dishonesty or false statement" and such impeachment will
be allowed. If, however, the offense is one that courts do not consider to be a
crime of "dishonesty or false statement" then the fifth degree felony
should not be allowed as an impeachment device. </div>
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Where this issue could become a problem for the State is in a drug
possession trial. There are a fair number of drug possession charges that are
fifth degree felonies. R.C. 2925.11, which deals with drug possession offenses,
makes possession of drugs a fifth degree felony then goes on to classify drug
possession offenses as greater than fifth degree felonies depending on the
nature of the drug and the amount of the drug. Thus in a trial for a second offense
drug possession case where the defendant had a prior fifth degree felony
conviction for drug possession the State might not be able to get such a prior
conviction into evidence. </div>
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In summary when you a trying a case and you wish to use a prior criminal
offense for impeachment don't assume that you can use any felony offense for
impeachment. Make sure that it fits the requirements of Evid. R. 609 (A). </div>
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Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-24793227.post-60339369514105162082017-02-17T14:46:00.001-08:002017-02-18T12:28:50.555-08:00Judge Joyce Kimbler's Criminal Docket for February, 16, 2017<div class="MsoNoSpacing">
<span style="font-family: Verdana, sans-serif; font-size: 12.0pt;">The
following people appeared in court February 16:<o:p></o:p></span></div>
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<span style="font-family: Verdana, sans-serif;"><br /></span></div>
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<span style="font-family: Verdana, sans-serif; font-size: 12.0pt;">Hannah
Ballard, 27, of Durling Drive in Wadsworth, was sentenced to three years of
community control sanctions, with 90 days in jail, on one count of Forgery, a
fifth-degree felony.<o:p></o:p></span></div>
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<span style="font-family: Verdana, sans-serif;"><br /></span></div>
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<span style="font-family: Verdana, sans-serif; font-size: 12.0pt;">Adrian
Sampsel, 23, of Pigeon Run Road in Navarre, was sentenced to three years of
community control sanctions on one count of Possession of LSD, a fifth-degree
felony.<o:p></o:p></span></div>
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<span style="font-family: Verdana, sans-serif;"><br /></span></div>
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<span style="font-family: Verdana, sans-serif; font-size: 12.0pt;">Gary
Brown, 25, of Spieth Road in Medina, pled not guilty to two counts of
Aggravated Possession of Drugs, both of which are fifth-degree felonies. A jury
trial is scheduled for April 19.<o:p></o:p></span></div>
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<span style="font-family: Verdana, sans-serif;"><br /></span></div>
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<span style="font-family: Verdana, sans-serif; font-size: 12.0pt;">Justin
Hartle, 34, of East Normandy Park Drive in Medina, pled not guilty to one count
of Vandalism, a fifth-degree felony. A jury trial is scheduled for April 17.<o:p></o:p></span></div>
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<span style="font-family: Verdana, sans-serif;"><br /></span></div>
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<span style="font-family: Verdana, sans-serif; font-size: 12.0pt;">Anthony
Hobson, 33, of Lafayette Road in Medina, pled not guilty to one count of
Aggravated Possession of Drugs, a fifth-degree felony. A jury trial is
scheduled for April 18.<o:p></o:p></span></div>
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<span style="font-family: Verdana, sans-serif;"><br /></span></div>
<div class="MsoNoSpacing">
<span style="font-family: Verdana, sans-serif; font-size: 12.0pt;">Corey
Ryan, 26, of North Lane in Willoughby, pled not guilty to one count of
Possession of Cocaine, a fourth-degree felony. A jury trial is scheduled for April
17.<o:p></o:p></span></div>
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<span style="font-family: Verdana, sans-serif;"><br /></span></div>
<div class="MsoNoSpacing">
<span style="font-family: Verdana, sans-serif; font-size: 12.0pt;">Christopher
Salajcik, 35, of Baxter Street in Medina, pled not guilty to two counts of
Aggravated Trafficking in Drugs, one of which is a third-degree felony and one
of which is a fourth-degree felony, and one count of Aggravated Possession of
Drugs, a fifth-degree felony. A jury trial is scheduled for April 17.<o:p></o:p></span></div>
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<span style="font-family: Verdana, sans-serif;"><br /></span></div>
<div class="MsoNoSpacing">
<span style="font-family: Verdana, sans-serif; font-size: 12.0pt;">Denise
Sefcik, 58, of Sweetbriar Drive in Medina, pled not guilty to one count of
Forgery, a fifth-degree felony. A jury trial is scheduled for April 18.<o:p></o:p></span></div>
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<span style="font-family: Verdana, sans-serif;"><br /></span></div>
<span style="font-family: Verdana, sans-serif;"><span style="font-family: Times, Times New Roman, serif;"><br /></span>
</span><br />
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<span style="font-size: 12.0pt;"><span style="font-family: Verdana, sans-serif;">Jonathon
Wenner, 25, of Crow Road in Litchfield, pled not guilty to one count of
Aggravated Possession of Drugs, a fifth-degree felony. A jury trial is
scheduled for April 19.</span><span style="font-family: "times new roman" , serif; font-size: 12pt;"><o:p></o:p></span></span></div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-24793227.post-65607040024108654332015-11-08T07:27:00.002-08:002017-02-18T12:28:39.233-08:00Mediation Course at National Judicial College at the University of Nevada in Reno<span style="font-family: Verdana, sans-serif;"><span style="font-family: Times, Times New Roman, serif;">Last week, (November 2-6, 2015), I had the opportunity to attend the Civil Mediation Course at the University of Nevada in Reno. It was an excellent course and I had the opportunity to meet with judges all across the United States including a Justice from the Kansas Supreme Court. She was there because the Kansas is conte</span>mplating starting a mediation program for appellate cases.</span><br />
<span style="font-family: Verdana, sans-serif;"><br /></span>
<span style="font-family: Verdana, sans-serif;">The course consisted of both role plays and lectures It was a very fascinating course and I enjoyed attending the course even as it provided new challenges. Below are pictures of four of the judges who I ate dinner with the last night we were in Reno and the front of the National Judicial College building at the University of Nevada, Reno campus.</span><br />
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Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-24793227.post-65459240832216970772015-04-09T06:53:00.003-07:002015-04-09T07:00:05.897-07:00JK"S Down and Dirty Hearsay Test<div style="text-align: center;">
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Speaking of hearsay, let me share what I call “JK’s down and dirty hearsay test”. In determining whether or not something is hearsay you have to decide is it coming into evidence for the truth of the facts contained in the statement. If it is, then it is hearsay, but if it isn’t, then it is not hearsay. The question is how do you quickly determine whether something is coming in for the truth of the matter contained in the statement?</div>
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<br /></div>
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My quick test is whether the answer would be relevant if it was false. That is, if we knew that the</div>
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facts set forth in the answer or statement were false, would it matter to the outcome of the trial or proceeding?</div>
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<br /></div>
<div style="text-align: left;">
Here is a quick example: Suppose the issue at a hearing on a motion to suppress is whether an officer making a traffic stop had a reasonable and articulable suspicion to make the stop. She testifies that she ran a L.E.A.D.S. check on the vehicle’s license plate and information came back that the person to who the plates were registered was driving under a court-ordered suspension. Now suppose that the information about the owner’s license was false. The fact that it was false wouldn't matter because the relevance of the information is that the information, whether true or false, gave the officer a legal basis for stopping the car. That’s what I mean by assuming that the information is false and then considering whether its relevance depends on its veracity. I am not saying that this test works in all cases, but it works in a lot of them and it can be applied in the heat of battle that is a trial.</div>
</div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-24793227.post-60318301675408483242015-04-08T04:42:00.001-07:002015-04-08T08:25:02.981-07:00Law Student's Insights on Jury Service <div class="MsoNormal" style="text-align: left;">
<span style="font-family: Times, Times New Roman, serif;"><span style="background-color: white;">Nathaniel E Wilkinson, a law student at Cleveland State University's School of Law, recently served as a juror in Judge Joyce Kimbler's courtroom for a civil trial. Here is an article he wrote about the experience. I think that attorneys who do trial work will find it interesting and informative. If you have any questions for Nathaniel about his jury experience or his article he can be reached at </span><span style="background-color: white;">(308)440-2284. </span></span></div>
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<b>A Lighthearted and
Educational Account of My Time as Juror 28, or The Time I Got to Hear
The Words, “Race to The Toilet,” in a Court of Law</b><u><o:p></o:p></u></div>
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Two
weeks ago, I received a piece of mail from the Medina County Court. After a
brief mental revisiting of the previous months, I couldn’t think of any laws I
had broken, so I opened the letter and discovered that I had been summoned to
perform my civic duty as a juror number 28. After filling out the
questionnaire, I called to find that yes, Medina County Court of Common Pleas
would be seating a jury on Monday, February 9th. I considered attempting to
postpone or avoid the duty, but as a first-year law student, I thought that
this presented a timely opportunity not often available. While I would miss a
few days of class, this chance to participate in a jury trial seemed to offer
an educational opportunity that would give me a chance to look at the law from a
different perspective. Also, my wife correctly pointed out that $20 a day would
be $20 more income than I currently bring home.</div>
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As I would be present in court, I
put on my best pair of chinos, a nice vertically striped dress shirt and my
trusty cashmere coat, and drove to the Medina square. After having a level
difficulty finding a parking spot matched only by the NES game Battletoads, I
relieved myself of my bevy of weapons (metal detectors), and joined the fray of
potential jurors. About 40 citizens of Medina County had reported, ranging from
18 to 80; which would eventually be whittled down to 9; 8 jurors and 1
alternate. The attorney for the Plaintiff addressed the jury pool first, asking
questions of each juror about past experiences with the court system, jury
selection, occupation, and favorite color. The attorney for the defendant then
addressed the jury as a whole, asking general questions about bias and
willingness to follow the law. Two jurors were quickly dismissed; one because
she was an employee of the defendant (so yeah, pretty clear on that one) and
another due to a hearing disability. In a scene right out of a lazily written
sitcom, the Judge asked the gentleman if his he would be able to hear the
proceedings clearly and without problems. His response of, “Could you repeat
that?” was sufficient answer. </div>
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After a
brief discussion between the court and counsels, the jury had been selected.
Eight numbers were called-I was in the clear. Then the bailiff announced the
alternate- lucky number 28. As alternate, I would be present for the entire
trial, and if any jurors were unable to complete their service, I would serve
in his or her stead. The 8 of us assembled in the jury box, when the defense
counsel realized that we were missing a juror- number 64. If juror 64 was
unable to be located, we would have to start anew with a fresh, and unavoidably
less handsome jury pool. Both counsels and the bailiff ran outside yelling,
“Juror 64!” with a fervor similar to a lost toddler in WalMart yelling, “Mom!”
Luckily, she was found and we were able to be sworn in, ready for the opening
statements.</div>
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The
case at bar was a personal injury civil suit. The plaintiff was a paraplegic
who was struck by a restroom door opened by the employee of the defendant
grocery store. As the employee was acting within the scope of her employment,
the case fell under the doctrine of <i>respondeat
superior,</i> so the store itself was the defendant<i>.</i> The door struck her wrist and caused injury. As a paraplegic, the
plaintiff’s arms, wrists and hands are integral to her independence. If I hurt
my hand, no worries, I’ll get it immobilized and use the other hand- 75% of my
extremities would still be functional. The plaintiff, unfortunately, suffered a
marked decrease in the quality of her life as a result of the injury, a fact
which the plaintiff’s counsel repeated <i>ad
nauseum</i>. The main issue of the case, per the plaintiff’s attorney, was
whether or not the employee exercised reasonable care in opening the restroom
door. He proposed that the extent of the injuries suffered provided evidence
that the employee did not use reasonable care when opening the restroom door.
Around 90% of the plaintiff’s attorney’s time was split between damages and
relating how independent the plaintiff was prior to the incident, despite the
fact that opposing counsel was not contesting either of those issues, with the
small exception of the extent of damages. The plaintiff also slipped while
getting out of her new, shorter bed 13 months after the restroom door incident,
and was attempting to recover damages for that as well. Since I recently
completed Torts with Professor Peter Garlock, I know pretty much all there is
to know about negligence, legal cause, and intervening and superseding causes,
and thus was mightily surprised that the plaintiff included that incident. The
additional damages were only about $1000, compared to the $12,000 from the
restroom door incident, and the requested $100,000 for the reduction in quality
of life. </div>
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The defense counsel spoke primarily
about the employee’s duty to behave reasonably, as well as the foreseeability
that her actions would cause injury. Unfortunately for the plaintiff, as the
restroom was directly in front of the service desk of the grocery store, there
was surveillance footage of part of the incident. To save storage space, the
video was recorded at 5 frames per second, which had the unexpected benefit of
enabling the viewer to fairly accurately gauge the speed of the door opening
during the 5 minutes of video. During the video, four people in total entered
the restroom, and the plaintiff’s opening was the least forceful, second only
to the plaintiff’s. As the alternate, I was unable to be present for
deliberation, but this seemed to be the primary issue among the real jurors. After
a short amount of deliberation, the jury found for the defendant.</div>
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Things I have learned:</div>
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While one jury on one civil case in a relatively small
county is not a statistically significant sample, I believe my experience
provided some general knowledge that might offer some edification for a
prospective lawyer. The jury on which I served consisted of 8 people, 3 men and
5 women. There was a retired schoolteacher, an autoshop teacher, a retired tool
maker; everyday, salt-of-the-earth folk. My 5 months of legal education was the
greatest amount of legal education in the jury room, Law and Order marathons
notwithstanding. When submitting briefs, the reader is presumed to be an
educated legal reader, but when addressing the jury, it’s just folks. Normal,
everyday folks. These are some observations I made over the course of the 3 day
trial. I’m just a 1L, and could be pretty off base with a lot of these, but
these seem to reflect the mood of the jury, and my personal feelings as well.</div>
<div class="MsoListParagraph" style="mso-list: l0 level1 lfo3; text-indent: -.25in;">
<!--[if !supportLists]--><span style="font-family: Symbol; mso-bidi-font-family: Symbol; mso-fareast-font-family: Symbol;">·<span style="font-family: 'Times New Roman'; font-size: 7pt; font-stretch: normal;">
</span></span><!--[endif]-->Time is currency: use it wisely</div>
<div class="MsoNormal">
Jurors don’t necessarily want to be there. I am reminded of
the old joke, “Jury of my peers? Anyone who cannot get out of jury duty is not
my peer.” I was excited for the opportunity because of my career aspirations,
but the retired toolmaker was not equally thrilled. Many view jury duty with a
similar disdain as a trip to the dentist: they recognize its import to society,
but would much rather be watching The Price is Right, hosted by the inimitable
Drew Carey. As early on in the proceedings as the end of voir dire, the jurors were
sympathetic to the defendant because the counsel for the defense was sensitive
to the time concerns of the jury- he addressed the jury as a group because “if
I talk to each one of you, we’ll be here all day.” As the trial progressed,
there were occasions where the defense counsel was even more verbose than the plaintiff’s,
but they were infrequent and with visible cause. From each juror’s perspective,
the jury’s time is a scarce resource that should not be wasted. If a juror feels
that one of the attorneys is wasting his time, the juror gets a little cranky.
Luckily, there were free donuts, which cheered everyone.</div>
<div class="MsoListParagraph" style="margin-left: 72.3pt; mso-add-space: auto; mso-list: l2 level1 lfo2; text-indent: -.25in;">
<!--[if !supportLists]--><span style="font-family: Symbol; mso-bidi-font-family: Symbol; mso-fareast-font-family: Symbol;">·<span style="font-family: 'Times New Roman'; font-size: 7pt; font-stretch: normal;">
</span></span><!--[endif]-->Choose your battles:</div>
<div class="MsoNormal" style="text-indent: .5in;">
The plaintiff’s counsel spent a
great deal of time and the majority of the witnesses establishing his client’s
independence and ability prior to the incident, and comparatively little
establishing foreseeability of injury or violation of a standard of care. The
decline in the plaintiff’s quality of life was completely uncontested by the
defense, yet hours were spent convincing the jury of this. As the proverbial
horse was dead and buried, the extensive kicking only served to bore and annoy
the jury. There was complaining. </div>
<div class="MsoListParagraph" style="margin-left: 1.0in; mso-add-space: auto; mso-list: l1 level1 lfo1; text-indent: -.25in;">
<!--[if !supportLists]--><span style="font-family: Symbol; mso-bidi-font-family: Symbol; mso-fareast-font-family: Symbol;">·<span style="font-family: 'Times New Roman'; font-size: 7pt; font-stretch: normal;">
</span></span><!--[endif]-->Ask for everything that is reasonable, then
stop.</div>
<div class="MsoNormal" style="text-indent: .5in;">
The inclusion of a slip and fall in
the plaintiff’s home 13 months after the restroom door incident in the
complaint, despite the comparatively small amount of damages, made it appear
that the plaintiff was not seeking just compensation, but any money she could
get. Oddly, this approximately $1000 claim felt greedier than the much larger
$100,000 request for a decline in quality of life because it was so clearly not
connected to the original incident. When one’s case is predicated upon
engendering sympathy for the plaintiff, one should avoid even the appearance of
avarice.</div>
<div class="MsoListParagraph" style="margin-left: 1.0in; mso-add-space: auto; mso-list: l1 level1 lfo1; text-indent: -.25in;">
<!--[if !supportLists]--><span style="font-family: Symbol; mso-bidi-font-family: Symbol; mso-fareast-font-family: Symbol;">·<span style="font-family: 'Times New Roman'; font-size: 7pt; font-stretch: normal;">
</span></span><!--[endif]-->Don’t have a 2 hour videotaped deposition OR If
you have to say something that you don’t want the jury to notice, put it in the
middle of a 2 hour videotaped deposition.</div>
<div class="MsoNormal" style="text-indent: .5in;">
We were subjected to a videotaped
deposition of the plaintiff’s surgeon with a runtime greater than that of The
Shawshank Redemption. Under penalty of perjury, I would not testify that every
juror’s eyes were open through the entirety of the film. A film that can hold
the average person in rapt attention for 2 hours will make millions of dollars.
The vast majority of viewers’ minds will wander during a 2 hour film. </div>
<div class="MsoListParagraph" style="margin-left: 1.0in; mso-add-space: auto; mso-list: l1 level1 lfo1; text-indent: -.25in;">
<!--[if !supportLists]--><span style="font-family: Symbol; mso-bidi-font-family: Symbol; mso-fareast-font-family: Symbol;">·<span style="font-family: 'Times New Roman'; font-size: 7pt; font-stretch: normal;">
</span></span><!--[endif]-->Decorum</div>
<div class="MsoNormal" style="text-indent: .5in;">
Don’t roll your eyes or look incredulous
when the opposition says something you don’t like. It makes you look like a
jerk. </div>
<div class="MsoListParagraph" style="margin-left: 1.0in; mso-add-space: auto; mso-list: l1 level1 lfo1; text-indent: -.25in;">
<!--[if !supportLists]--><span style="font-family: Symbol; mso-bidi-font-family: Symbol; mso-fareast-font-family: Symbol;">·<span style="font-family: 'Times New Roman'; font-size: 7pt; font-stretch: normal;">
</span></span><!--[endif]-->Clearly and simply explain the law</div>
<div class="MsoNormal" style="text-indent: .5in;">
When pushing a restroom door comes
to shove, it all comes down to the law. Jury instructions and interrogatories
were written in such a way that it boiled down to the jury being finders of
fact, not arbiters of their feelings. A simply written and clearly written yes
or no question such as, “Did the employee use reasonable care when opening the
restroom door?” takes a lot of the juror’s emotion out of it. Some jurors were
sympathetic to the plaintiff and felt she should get “something,” even though
they felt that neither the employee nor the employer were negligent. However,
through the jury instructions and the interrogatories, the sympathetic
component was curtailed, and the law was able to be the focus.<a href="https://www.blogger.com/null" name="_GoBack"></a></div>
<br />
<div class="MsoNormal" style="text-indent: .5in;">
<br /></div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-24793227.post-38459447037694250192015-04-04T14:15:00.001-07:002015-04-04T14:15:05.538-07:00Frequently Asked Questions about "Private Judging" Under R.C. 2701.10<div align="center" class="MsoNormal" style="text-align: center;">
<b><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 150%;">Frequently
Asked Questions About Private Judging<o:p></o:p></span></b></div>
<div align="center" class="MsoNormal" style="text-align: center;">
<br /></div>
<div class="MsoNormal">
<b><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 150%;">What
is a "private judge"? </span></b><i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 150%;">A
private judge is a retired judge who has registered with the Ohio Supreme Court
that he or she is interested in serving as a "private judge" pursuant
to Section 2701.10 of the Revised Code. A private judge then files a form with the
Clerks of Courts for the courts in which the private judge will be hearing
cases. <o:p></o:p></span></i></div>
<div class="MsoNormal">
<b><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 150%;">What
does Ohio Revised Code Section 2701.10 do? </span></b><i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 150%;">It
authorizes retired judges to serve as private judges in Ohio courts. It states
that such judges" shall have all of the powers, duties, and authority of
an active judge of the court in which the action or proceeding is pending."
( See R.C. 2701.10 (C))<o:p></o:p></span></i></div>
<div class="MsoNormal">
<b><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 150%;">How
does a case get referred to a private judge? </span></b><i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 150%;">All
the parties to a lawsuit file what R.C. 2701.10 refers to as a referral or submission.
<o:p></o:p></span></i></div>
<div class="MsoNormal">
<b><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 150%;">What
are the requirements for such a referral or submission? </span></b><i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 150%;">R.C. 2701.10 states that the
parties must enter into an agreement with the retired judge who is to serve as
a private judge in their case. <o:p></o:p></span></i></div>
<div class="MsoNormal">
<b><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 150%;">Who
pays for the private judge? </span></b><i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 150%;">The
agreement referred to above sets forth the payment that the private judge shall
receive for his or her services. <o:p></o:p></span></i></div>
<div class="MsoNormal">
<b><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 150%;">What
else does the agreement do? </span></b><i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 150%;">R.C.
2701.10 requires the parties to pay any expense for the facilities in which the
case will be tried and to pay for any personnel needed by the private judge. <o:p></o:p></span></i></div>
<div class="MsoNormal">
<b><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 150%;">Once
the agreement is filed, what does the judge on whose docket is pending do? </span></b><i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 150%;">R.C. 2701.10 requires the judge on
whose docket the case is pending to order the case transferred to the private
judge in accordance with the agreement of the parties. <o:p></o:p></span></i></div>
<div class="BasicParagraph">
<b><span style="font-family: "Times New Roman","serif";">Does
a private judge get to use the active judge’s courtroom for hearings? </span></b><i><span style="font-family: "Times New Roman","serif";">No. R.C. 2701.10 states that the
court in which the case is pending does not have to provide the private judge
with facilities, courtroom or personnel. </span></i><i><span style="font-family: "Times New Roman","serif";">. <o:p></o:p></span></i></div>
<div class="MsoNormal">
<b><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 150%;">Can
a private judge perform jury trials? </span></b><i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 150%;">No.
The Ohio Supreme Court has held that R.C. 2701.10 does not allow private judges
to hear jury trials.<o:p></o:p></span></i></div>
<div class="MsoNormal">
<b><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 150%;">Can
a private judge do criminal trials? </span></b><i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 150%;">No.
R.C. 2701.10 restricts the use of private judges to "civil actions". </span></i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 150%;"><o:p></o:p></span></div>
<div class="MsoNormal">
<b><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 150%;">Can
a party appeal a decision of a private judge? </span></b><i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 150%;">Yes.
All decisions of a private judge are subject to appeal as they would be if made
by the judge to whose docket the case was assigned. (See R.C. 2701.10 (D))<o:p></o:p></span></i></div>
<div class="MsoNormal">
<b><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 150%;">Does
R.C. 2701.10 contain requirements for the private judge? </span></b><i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 150%;">The private judge is required to
hear the case in accordance with the agreement, issue findings of fact and
conclusions of law if requested by the parties in accordance with the Ohio
Rules of Civil Procedure. The decision issued by the private judge has the same
effect as a decision issued by the judge on whose docket the case was pending.
R.C. 2701.10 refers to the judges on whose docket the transferred case was pending
as an "active" judge. <o:p></o:p></span></i></div>
<div class="MsoNormal">
<b><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 150%;">What
are the advantages of a private judge? <o:p></o:p></span></b></div>
<div class="MsoNormal">
<b><i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 150%;">Certainty</span></i></b><b><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 150%;">: </span></b><i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 150%;">Private
judges are retained to hear a specific case. This means that your case is not
one of hundreds pending on that judge's docket. Your case will have priority
and will not be continued because a criminal case has precedence. Your case
will be tried at a date and time agreed to by the parties and the private judge. <o:p></o:p></span></i></div>
<div class="MsoNormal">
<b><i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 150%;">Discretion:
</span></i></b><i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 150%;">Some litigants
are reluctant to come to a county courthouse where their friends, neighbors, or
relatives may see them. Private judges try the cases in the facilities agreed
to by the parties. <o:p></o:p></span></i></div>
<div class="MsoNormal">
<b><i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 150%;">Convenience:
</span></i></b><i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 150%;">Private judges
are not required to try their cases in the county courthouse. In fact, they
usually won't be trying them in the county courthouse. The case can be tried
anywhere the parties agree. <o:p></o:p></span></i></div>
<div class="MsoNormal">
<b><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 150%;">Can
only certain issues be referred or submitted to a private judge? </span></b><i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 150%;">Yes. R.C. 2701.10 allows a private
judge to hear just certain issues in a case. <o:p></o:p></span></i></div>
<div class="MsoNormal">
<b><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 150%;">Is
retired Judge James L. Kimbler registered as a private judge? </span></b><i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 150%;">Yes. Judge James L. Kimbler
registered with the Ohio Supreme Court to serve as a private judge. Judge
Kimbler is currently registered with the
Clerks of Courts of Medina, Cuyahoga, Summit, Lorain, Wayne and Ashland
counties. <o:p></o:p></span></i></div>
<br />
<div class="MsoNormal">
<b><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 150%;">Can
Judge Kimbler hear cases in other counties then the ones listed above? </span></b><i><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 150%;">Yes. R. C. 2701.10 states that
there is no limitation on the number of counties in which a retired judge may
serve as a private judge. If you are interested in retaining Judge Kimbler as a
private judge in other counties, or if you have any questions about private
judges, please contact him at
330-322-6737 or email him at jameskimbler@northcoastadrservices.com<o:p></o:p></span></i></div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-24793227.post-87318629588726525082014-04-20T04:44:00.000-07:002014-04-20T04:44:12.471-07:0065th Birthday PicturesMy staff was kind enough to throw me a party on Tuesday, April 15, which was my 65th birthday. Below are some pictures from that day. Thanks to Amanda, Leeanne, Karen and Barb for making all the arrangements. My thanks to all of those who came. It was a very nice day.<br />
<table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="margin-left: auto; margin-right: auto; text-align: center;"><tbody>
<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgtgma3lnEnfbEBDSfMfiqwiUR_G6GU_gvdpzm_lKzUBB2gzV6P_letyv3pUI0nSajEF-Tm1Rt3hLwSv8zHJ49pAWAMT2Xk4IOSph2RINsfNJVQUT1mg_Se6pBzATkpwFObusem/s1600/IMG_7863.JPG" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgtgma3lnEnfbEBDSfMfiqwiUR_G6GU_gvdpzm_lKzUBB2gzV6P_letyv3pUI0nSajEF-Tm1Rt3hLwSv8zHJ49pAWAMT2Xk4IOSph2RINsfNJVQUT1mg_Se6pBzATkpwFObusem/s1600/IMG_7863.JPG" height="213" width="320" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">This was how it looked from our back deck when I woke up that morning</td></tr>
</tbody></table>
<br />
<table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="margin-left: auto; margin-right: auto; text-align: center;"><tbody>
<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjP3Vvh0FpLC2YOTq79jpCndDko5TMynm-uehyf-ODdIy2LzDPjsik-_Az7TGFNOoVlpJE9aNKkUxC25iUV8Q4jUd1S8LLVqZZzSGI_suTICF5digTljT4pMa25nrUL6tWzl2Gi/s1600/IMG_7867.JPG" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjP3Vvh0FpLC2YOTq79jpCndDko5TMynm-uehyf-ODdIy2LzDPjsik-_Az7TGFNOoVlpJE9aNKkUxC25iUV8Q4jUd1S8LLVqZZzSGI_suTICF5digTljT4pMa25nrUL6tWzl2Gi/s1600/IMG_7867.JPG" height="213" width="320" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">My administrative assistant, Amanda Armstrong, set up our "smart board" for the party</td></tr>
</tbody></table>
<br />
<table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="margin-left: auto; margin-right: auto; text-align: center;"><tbody>
<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj4CrEcewSws6LA-xbfWUcxmG1IUkUAHJSscGHqQUKn9b3I2HP4_pVGTUaOKy0WAPAeebGANm0e66Vu9vpUPJrNXGt6Fx-p9nJbn1zIO3AzqLlXDwQ7jxn5GAQkslmZRICw0hQX/s1600/IMG_7869.JPG" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj4CrEcewSws6LA-xbfWUcxmG1IUkUAHJSscGHqQUKn9b3I2HP4_pVGTUaOKy0WAPAeebGANm0e66Vu9vpUPJrNXGt6Fx-p9nJbn1zIO3AzqLlXDwQ7jxn5GAQkslmZRICw0hQX/s1600/IMG_7869.JPG" height="213" width="320" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">Birthday cake with the bench festooned for the party</td></tr>
</tbody></table>
<br />
<table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="margin-left: auto; margin-right: auto; text-align: center;"><tbody>
<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiHV9F2WgdmsYJUcySX8L4Id19rRM97Pd68OJSQyDQXN7vUAftrRXGTK_QLLBpYnv_x8Q5pkVHVL71G6RQAOVwPgXaR1HSGa8OdMXi4YIcBjfpk0xrKESjjMhzzLdwgmOT1SyOO/s1600/IMG_7871.JPG" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiHV9F2WgdmsYJUcySX8L4Id19rRM97Pd68OJSQyDQXN7vUAftrRXGTK_QLLBpYnv_x8Q5pkVHVL71G6RQAOVwPgXaR1HSGa8OdMXi4YIcBjfpk0xrKESjjMhzzLdwgmOT1SyOO/s1600/IMG_7871.JPG" height="213" width="320" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">People arriving as my magistrate, Barb Porzio, gets ready to cut pizza sheets</td></tr>
</tbody></table>
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<table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="margin-left: auto; margin-right: auto; text-align: center;"><tbody>
<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg6w0OsfcW4otNwBy3CLSoFjDBiDO7vCyhpgoUM70MSbk45lf8w2XOYAa88OPqtqsVyfcGBz3NcM-f-BHJd7ow1OfXHI02hlyJQce5iIYw73SQf8oRzTa_M_igOWOjqrvWeYBNp/s1600/IMG_7872.JPG" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg6w0OsfcW4otNwBy3CLSoFjDBiDO7vCyhpgoUM70MSbk45lf8w2XOYAa88OPqtqsVyfcGBz3NcM-f-BHJd7ow1OfXHI02hlyJQce5iIYw73SQf8oRzTa_M_igOWOjqrvWeYBNp/s1600/IMG_7872.JPG" height="213" width="320" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">Two of my staff, Karen and Leeann, at the left near the doors talking to guests</td></tr>
</tbody></table>
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<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEilDsMwFc_IC5PQp9vTayQDnzSU0Z2pTODWatlMSv8nLtjZLoG0WMSo50HYKBiF_TeBcEl3XI3e5HWCGSTNZOpMElX-bO-6ew-k8mO9bx5VnQOnQGeDHoAA-Qd7lOIFbT0S4EIj/s1600/IMG_7875.JPG" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEilDsMwFc_IC5PQp9vTayQDnzSU0Z2pTODWatlMSv8nLtjZLoG0WMSo50HYKBiF_TeBcEl3XI3e5HWCGSTNZOpMElX-bO-6ew-k8mO9bx5VnQOnQGeDHoAA-Qd7lOIFbT0S4EIj/s1600/IMG_7875.JPG" height="213" width="320" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">Attorney Ed Bowers, his wife, Lynda, and Attorney Mary Beth Corrigan</td></tr>
</tbody></table>
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<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEigCFrC8lO0oEWUyjXOAdLOhNgavUfliZJYMbOGINNkOXUodnSuD1tzeDQcxxslLw81onuUwkp4QRsK-6D1qhyphenhypheniyJbcDOG5_5QCXUlrZbGTh1EJYZC_ryCoLoAssuJY3g5VCIHd/s1600/IMG_7878.JPG" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEigCFrC8lO0oEWUyjXOAdLOhNgavUfliZJYMbOGINNkOXUodnSuD1tzeDQcxxslLw81onuUwkp4QRsK-6D1qhyphenhypheniyJbcDOG5_5QCXUlrZbGTh1EJYZC_ryCoLoAssuJY3g5VCIHd/s1600/IMG_7878.JPG" height="213" width="320" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">People at the party in the courtroom. </td></tr>
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<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjTJcRzCTFNnOBDWJF4Z6jj53okV60xIFUvNEzoh4rXLLL4cXPNK1Cal7dekO2zMzmfot4QWMdPgm1QMfJqpgcKpjPOs9JdzOGqgXSEE1lYlwQRVKQ90hJS-_FsWDIcUJivE8At/s1600/IMG_7879.JPG" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjTJcRzCTFNnOBDWJF4Z6jj53okV60xIFUvNEzoh4rXLLL4cXPNK1Cal7dekO2zMzmfot4QWMdPgm1QMfJqpgcKpjPOs9JdzOGqgXSEE1lYlwQRVKQ90hJS-_FsWDIcUJivE8At/s1600/IMG_7879.JPG" height="213" width="320" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">More people in the courtroom</td></tr>
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<br />Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-24793227.post-11682969875685293492014-03-24T07:48:00.000-07:002014-03-24T07:48:50.916-07:00Summit County Appellate Decisions for February, 2014<a href="http://www.lexis.com/research/xlink?app=00075&view=full&searchtype=get&search=2014-Ohio-677" style="background-color: white; color: #9933cc; font-family: Verdana, sans-serif; font-weight: bold;" target="x" title="Clicking this link retrieves the full text document in another window">A. L. v. Stephens, 2014-Ohio-677 (Ohio Ct. App., Summit County Feb. 26, 2014)</a><span style="font-family: Verdana, sans-serif;"> reversed a decision of the Summit County Common Pleas Court because the decision of the magistrate didn't comply with Civ. R. 53. Therefore the civil stalking protection order should not have been issued. </span><br />
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<span style="color: #333333; font-family: Verdana, sans-serif;"><span style="background-color: white;"><b><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2014/2014-ohio-679.pdf" target="_blank">State v. Brooks, 2014-Ohio-679</a> </b>affirmed the decision of the trial court since, as Brooks' counsel has argued, there were no appealable issues in the case. The Ninth District conducted its own examination of the record and reached the same conclusion as appellate counsel. </span></span><br />
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<span style="color: #333333; font-family: Verdana, sans-serif;"><span style="background-color: white;"><b><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2014/2014-ohio-687.pdf" target="_blank">State v. Davis, 2014-Ohio-687</a> </b>from Lexis: "</span>HOLDINGS: [1]-Defendant's convictions for aggravated burglary and aggravated robbery were not against the manifest weight of the evidence because any gaps or inconsistencies in the victim's testimony regarding what occurred at his home were not so significant that the jury clearly lost its way when it credited the victim's testimony and convicted defendant." Trial court affirmed. </span><br />
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<span style="color: #333333; font-family: Verdana, sans-serif;"><b><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2014/2014-ohio-680.pdf" target="_blank">State v. Chesrown, 2014-Ohio-680</a> </b>from Lexis:"HOLDINGS: [1]-Court did not err in failing to hold a hearing prior to denying a petition for post-conviction relief under R.C. 2953.21(E) because petitioner failed to submit evidentiary materials containing sufficient operative facts to demonstrate that he was prejudiced by his trial counsel's alleged ineffectiveness; petitioner simply attached a self-serving affidavit accusing another person of making the videos of the child because "they were of the type that the other person would have produced."" Trial court affirmed. </span><br />
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<span style="color: #333333; font-family: Verdana, sans-serif;"><b><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2014/2014-ohio-686.pdf" target="_blank">State v. Shepherd, 2014-Ohio-686</a> </b>affirmed the trial court's decision that Mr. Shepherd was not entitled to a hearing on his motion for discharge since he did not provide any authority supporting his arguments. </span><br />
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<span style="color: #333333; font-family: Verdana, sans-serif;"><b><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2014/2014-ohio-685.pdf" target="_blank">Sandor v. Marks, 2014-Ohio-685</a> </b>affirmed the granting of a motion for summary judgment in favor of an attorney in a legal malpractice case. From Lexis: "HOLDINGS: [1]-A client's legal malpractice claim against an attorney, filed on November 8, 2012, was time-barred by R.C. 2305.11(A) because the attorney established the attorney-client relationship terminated on November 7, 2011, when the attorney sent written notice to the client regarding the termination; the attorney presented a certified mail receipt showing the termination letter was sent on that same day and a time-stamped copy of his notice of withdrawal filed in the underlying action that same day; [2]-Because the trial court did not err in rendering judgment in favor of the attorney on the client's legal malpractice claim, summary judgment was appropriate in favor of the law firm on the client's vicarious liability claim as well."</span><br />
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<span style="color: #333333; font-family: Verdana, sans-serif;"><b><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2014/2014-ohio-682.pdf" target="_blank">State v. Hach, 2014-Ohio-682</a> </b>affirmed the trial court's dismissal of an untimely petition for post-conviction relief. </span><br />
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<span style="color: #333333; font-family: Verdana, sans-serif;"><b><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2014/2014-ohio-683.pdf" target="_blank">State v. Hendricks, 2014-Ohio-683</a> </b>affirmed the trial court's dismissal of an untimely filed petition for post-conviction relief. </span><br />
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<span style="background-color: white; color: #333333;"><span style="font-family: Verdana, sans-serif;"><b>State v. Lollis, </b><span id="tophead"><b>2014-Ohio-684 </b>from Lexis: "</span></span></span><span style="color: #333333; font-family: Verdana, sans-serif;">HOLDINGS: [1]-There was sufficient evidence to sustain the aggravated murder conviction under R.C. 2903.01(B) because the text messages provided showed a common plan between defendant and another man to violently rob the victim. The evidence was also sufficient for the jury to reasonably have inferred that defendant had knowledge that the other man would be using a weapon or engaging in violence of a type reasonably likely to produce death, as he instructed the man to "tare em up;" [2]-Although there was no direct evidence that the other man used a gun in the commission of the planned robbery, there existed circumstantial evidence from which a jury could reasonably have inferred that he did so for the firearm specification under R.C. 2941.145(A); [3]-Because aggravated murder was a special felony, defendant was subject to parole, not post-release control on that conviction."</span><br />
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<span style="color: #333333; font-family: Verdana, sans-serif;"><b><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2014/2014-ohio-580.pdf" target="_blank">Regions Bank v. Sabatino, 2014-Ohio-580</a> </b>from Lexis: "HOLDINGS: [1]-The trial court did not err in granting summary judgment to a bank in its suit to recover a debt owed by appellant. That no evidence was presented that the bank ever sent appellant a notice of default was immaterial, because while the parties's agreement required notice of default for suspensions or reductions of credit, it did not require notice of default for termination and acceleration of the obligation." Trial court affirmed. </span><br />
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<span style="color: #333333; font-family: Verdana, sans-serif;"><b><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2014/2014-ohio-579.pdf" target="_blank">State v. Robinson, 2014-Ohio-579</a> </b>from Lexis: "HOLDINGS: [1]-Given the totality of the circumstances, at the time of the stop, the informant's tip was not sufficiently corroborated to furnish reasonable suspicion that the occupants of the vehicle were committing or about to commit a crime as neither officer was able to verify the significant aspects of the informant's tip that detailed the suspect's future behavior, namely, that the subject, a black male, would go to the restaurant with a white female to complete a drug deal." Trial court reversed. </span><br />
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<span style="color: #333333; font-family: Verdana, sans-serif;"><b><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2014/2014-ohio-578.pdf" target="_blank">Lykes v. Akron Dept. of Public Serv., 2014-Ohio-578</a> </b>from Lexis: "HOLDINGS: [1]-The property owner could not argued that his trial counsel was ineffective because he had no right to counsel for purposes of his administrative appeal; [2]-The trial court abused its discretion and acted unreasonably in dismissing the administrative appeal under Civ.R. 41(B)(1) on the basis of his failure to prosecute because it did not consider the unique posture of the administrative appeal before imposing the harshest sanction possible. When he contacted the city after acquiring the property about his options to prevent the demolition of the house he had just purchased, he was advised that his only recourse was to file an administrative appeal, which he did and then sought, albeit clumsily, a stay of the condemnation order and equitable relief from an order which only subsequently implicated his interests after it was issued." Trial court reversed. </span><br />
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<span style="color: #333333; font-family: Verdana, sans-serif;"><b><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2014/2014-ohio-576.pdf" target="_blank">In re T.K., 2014-Ohio-576</a> </b>from Lexis: "</span><span style="color: #333333; font-family: Verdana, sans-serif;">Because the mother not only consented to the award of legal custody to the grandparents, but also specifically waived her right to trial under circumstances where she was represented by counsel, there was nothing in the record to suggest that the mother did not understand the import of her decisions. Thus, the mother could not argue on appeal that the agency failed to make reasonable efforts to eliminate the children’s continued removal from the home under R.C. 2151.419; [2]-In exercising her residual parental privilege to determine the religious affiliation of her child, under R.C. 2151.353(A)(3)(c), the mother could not control the child's every exposure to religion beyond the common understanding of the phrase." Trial court affirmed. </span><br />
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<span style="color: #333333; font-family: Verdana, sans-serif;"><b>State v. Litten, 2014-Ohio-577 </b>from Lexis: "HOLDINGS: [1]-Defendant’s convictions for rape and kidnapping, under R.C. 2907.02(A)(2) and R.C. 2905.01(A)(4) were not against the manifest weight of the evidence because the victim, defendant’s 86-year-old grandmother, testified that defendant grabbed her left breast and digitally penetrated her. Although defendant’s daughter did not testify that she heard the victim screaming, defendant’s version of the events also encompassed screaming on the part of the victim; [2]-Pursuant to R.C. 2941.25, the trial court erred by not merging the convictions for rape and kidnapping because the kidnapping was, in fact, incidental to the rape. Defendant’s attack on his grandmother amounted to one continuous course of conduct, he kidnapped her for the sole purpose of raping her, and the kidnapping did not result in an increased risk of harm to the victim, was not prolonged, secretive, or substantial. </span><span style="color: #333333; font-family: Verdana, sans-serif;">Judgment affirmed in part, reversed in part, and remanded."</span><br />
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<span style="color: #333333; font-family: Verdana, sans-serif;"><b>Beasley v. Fischer's Foreign Cars, Inc., 2014-Ohio-678</b> from Lexis: "HOLDINGS: [1]-A letter written to a magistrate by the owner of a car that objected to the magistrate's calculation of his damages and the date from which interest would accrue with regard to a repair bill refund constituted "written objections" for purposes of Civ.R. 53(D)(3)(b)(i); [2]-The trial court erred in adopting the magistrate's decision on the sole basis that no objections had been filed with regard to the magistrate's decision." Trial court reversed and case remanded. </span><br />
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<span style="color: #333333; font-family: Verdana, sans-serif;"><b><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2014/2014-ohio-479.pdf" target="_blank">Uhl v. McKoski, 2014-Ohio-479</a> </b>from Lexis: "HOLDINGS: [1]-A decision granting summary judgment in favor of appellees was proper on appellant's claims after she was bitten by a dog, as the trial court did not err in concluding there was no dispute of fact as to whether appellants harbored the dog; in response to summary judgment, appellant did not present evidence that created a material dispute of fact as to whether appellants knew about the dog, there was no evidence that they had been at the premises after the subject property was leased, and there was no evidence that they had seen or were aware of a "Beware of Dog" sign at the premises." Trial court affirmed. </span><br />
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<span style="color: #333333; font-family: Verdana, sans-serif;"><b><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2014/2014-ohio-477.pdf" target="_blank">Tennant v. Gallick, 2014-Ohio-477</a> </b>from Lexis: "OVERVIEW: HOLDINGS: [1]-Small claims court properly adopted a magistrate's decision to enter a default judgment against an attorney who failed to appear for trial in a small claims action filed by a client, arising from the attorney's failure to timely file an appeal for her son, as agreed, as the fact that the attorney had filed a motion to dismiss did not preclude the default judgment under R.C. 1925.05(A) because no answer was required and the statutory notification indicated that appearance at the hearing was necessary; [2]-Further, as the attorney failed to appear at the small claims trial, he did not present any evidence in support of his objections, such </span><span style="color: #333333; font-family: Verdana, sans-serif;"> that his assigned errors lacked merit.</span><span style="color: #333333; font-family: Verdana, sans-serif;">OUTCOME: Judgment affirmed."</span><br />
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<span style="color: #333333; font-family: Verdana, sans-serif;"><b><a href="http://www.lexis.com/research/xlink?app=00075&view=full&searchtype=get&search=2014-Ohio-681" target="_blank">State v. Culver </a>, 2014-Ohio-681, </b>from Lexis: "HOLDINGS: [1]-Defendant’s convictions for aggravated burglary under R.C. 2911.11(A)(2) and aggravated robbery under R.C. 2911.01(A)(1) were not against the manifest weight of the evidence because the evidence demonstrated that defendant and his brother worked together with the purpose of stealing from the victim through the use of deception. The officer testified that the two witnesses’ statements were consistent with his observations; [2]-Because the trial court did not in reality merge the counts of aggravated burglary and aggravated robbery, but rather effectively ordered them to run concurrently, defendant’s sentence was contrary to law. The second judgment entry of conviction did not indicate which count was merged into the other. </span><span style="color: #333333; font-family: Verdana, sans-serif;">OUTCOME: Judgment affirmed in part, reversed in part, and remanded."</span><br />
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<span style="color: #333333; font-family: Verdana, sans-serif;"><b>Castin, LLC v. First Am. Title Ins. Co., 2014-Ohio-476, </b>from Lexis: "OVERVIEW: HOLDINGS: [1]-A title insurer was not obligated to take any action in regard to a purported defect in a deed because the insured did not suffer loss or damage as a result of a challenge to the title by a third party; rather, all of the damages alleged by the insured arose from its own actions in challenging the title. </span><span style="color: #333333; font-family: Verdana, sans-serif;">OUTCOME: Judgment affirmed."</span><br />
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<span style="background-color: white; color: #333333; font-family: Verdana, Arial, Helvetica, sans-serif;"><b>State v. Easley, </b><span id="tophead"><b>2014-Ohio-575, </b>from Lexis: "</span></span><span style="color: #333333; font-family: Verdana, Arial, Helvetica, sans-serif;">OVERVIEW: HOLDINGS: [1]-Sufficient evidence supported defendant's conviction for breaking and entering under R.C. 2911.13(A), because he admitted that he was trespassing, copper plumbing was stolen from the house, the back door had been kicked in, and his DNA matched the blood sample found in the kitchen; [2]-The jury concluded that defendant, by force or stealth, unlawfully entered the vacant home with the purpose to commit a theft offense; [3]-Prosecutorial misconduct did not deprive defendant of his right to receive a fair trial; [4]-The prosecutor's comment that no evidence was presented to support defendant's version of the events as described in his opening statement was not improper; [5]-The evidence without the prosecutor's alleged improper rebuttal comment supported defendant's conviction beyond a reasonable doubt. </span><span style="color: #333333; font-family: Verdana, Arial, Helvetica, sans-serif;">OUTCOME: Judgment affirmed."</span><br />
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<span style="background-color: white; color: #333333; font-family: Verdana, Arial, Helvetica, sans-serif;"><b>State v. Powe, </b><span id="tophead"><b>2014-Ohio-478, </b>affirmed the decision of the trial court denying Powe's motion for merger. Powe argued that he was sentenced for two offenses that were allied offenses of similar import. Powe argued that his sentence was void, but the Court of Appeals has held that failure to merge allied offenses does not result in a void sentence. Further the appellate court held that Powe had waited too long to bring a motion for post-conviction relief. </span></span><br />
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<span style="background-color: white; color: #333333; font-family: Verdana, Arial, Helvetica, sans-serif;"><b>State v. Broadt, </b><span id="tophead"><b>2014-Ohio-370, </b>from Lexis: "</span></span><span style="color: #333333; font-family: Verdana, Arial, Helvetica, sans-serif;">OVERVIEW: HOLDINGS: [1]-The trial court did not comply with R.C. 2951.041(F) and the requirements of due process when it terminated defendant from the intervention in lieu of conviction progam, as defendant, who had appeared in court for a status call, had no prior notice that she was subject to termination and no opportunity to prepare and present information in her defense. </span><span style="color: #333333; font-family: Verdana, Arial, Helvetica, sans-serif;">OUTCOME: Reversed and remanded."</span><br />
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<span style="font-family: Verdana, sans-serif;"><b><a href="http://supremecourt.ohio.gov/rod/docs/pdf/9/2014/2014-ohio-371.pdf" target="_blank">State v. Heard, 2014-Ohio-371</a>, </b>affirmed the decision of the trial court denying Heard's motion to withdraw his guilty plea. </span></div>
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<span style="background-color: white; color: #333333; font-family: Verdana, Arial, Helvetica, sans-serif;"><b>State v. Shover, </b><span id="tophead"><b>2014-Ohio-373, </b>from Lexis: "</span><span style="font-size: 12px; font-weight: bold;"> </span></span><span style="color: #333333; font-family: Verdana, Arial, Helvetica, sans-serif;">OVERVIEW: HOLDINGS: [1]-Assuming without deciding, that the Second Amendment extended outside the home, and specifically to motor vehicles, the trial properly concluded that intermediate scrutiny applied to R.C. 2923.16(B), improperly handling a firearm in a motor vehicle, because it acted as a regulation to preserve the safety of Ohio drivers and the State's law enforcement personnel; [2]-The trial court properly reinstated defendant’s conviction for improperly handling firearms in a motor vehicle on remand, after determining that R.C. 2923.16(B) was constitutional; [3]-The trial court failed to comply with the community service notifications in R.C. 2947.23 when it imposed costs at the sentencing hearing; [4]-The trial court erred by failing to consider defendant’s ability to pay under R.C. 2929.19(B) before imposing a $500 fine. </span><span style="color: #333333; font-family: Verdana, Arial, Helvetica, sans-serif;">OUTCOME: Judgment affirmed in part, reversed in part, and remanded."</span><br />
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<span style="background-color: white; color: #333333; font-family: Verdana, Arial, Helvetica, sans-serif;"><b>State v. South, </b><span id="tophead"><b>2014-Ohio-374, </b>from Lexis: </span><b> "</b></span><span style="color: #333333; font-family: Verdana, Arial, Helvetica, sans-serif;">OVERVIEW: HOLDINGS: [1]-Defendant failed to show that his counsel was ineffective for failing to file a motion to suppress because the officer testified that the.087 result he received when he performed defendant’s blood alcohol concentration test was an accurate result and that the BAC Datamaster was regularly calibrated for accuracy. The issue regarding exactly when defendant had consumed alcohol (i.e., whether he drank it before or after the crash) was simply a matter of credibility for the trier of fact to determine; [2]-The five-year sentence on his underlying operating a vehicle while under the influence of alcohol (OVI) conviction was contrary to law. Because the current version of R.C. 2929.14 was applicable, defendant’s third-degree OVI felony under R.C. 4511.19(A) was subject to a maximum of 36 months in prison, pursuant to R.C. 2929.14(A)(3)(b). </span><span style="color: #333333; font-family: Verdana, Arial, Helvetica, sans-serif;">OUTCOME: Judgment affirmed in part, reversed in part, and remanded for resentencing on his OVI conviction."</span><br />
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<span style="background-color: white; color: #333333; font-family: Verdana, Arial, Helvetica, sans-serif;"><b>State v. Wallace, </b><span id="tophead"><b>2014-Ohio-375, </b>from Lexis: "</span></span><span style="color: #333333; font-family: Verdana, Arial, Helvetica, sans-serif;">OVERVIEW: HOLDINGS: [1]-The trial court did not err by granting defendant's motion to suppress evidence of marijuana seized by a police officer from the pocket of the sweatshirt that he was wearing at the park, because the State failed to prove that the warrantless search fell under one of the well-delineated exceptions to the warrant requirement of the Fourth Amendment, U.S. Const. amend. IV. </span><br />
<span style="color: #333333; font-family: Verdana, Arial, Helvetica, sans-serif;">OUTCOME: Judgment affirmed.<span style="background-color: white;"><b>"</b></span></span><br />
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<span style="color: #333333; font-family: Verdana, Arial, Helvetica, sans-serif;"><span style="background-color: white;"><b>State v. Wilson, 2014-Ohio-376, </b>from Lexis: "</span>OVERVIEW: HOLDINGS: [1]-The trial court did not abuse its discretion in denying defendant’s motion for an identification expert because the motion failed to satisfy his burden of a "particularized showing" that there was a reasonable probability that such an expert would aid in his defense and that he would be denied a fair trial if his request was denied; [2]-The trial court did not abuse its discretion when it found that the recorded jailhouse statements were relevant and admissible because the statements, wherein defendant expressed displeasure about the police stating that there were two victims, indicated he knew that only one person was hit by bullets; [3]-The record was devoid of any evidence that the trial court considered the issue of whether felonious assault and having a weapon while under a disability were allied and of similar import under R.C. 2941.25 prior to imposing sentence.</span><span style="color: #333333; font-family: Verdana, Arial, Helvetica, sans-serif;">OUTCOME: Judgment affirmed in part, reversed in part, and remanded for a merger determination."</span><br />
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<span style="background-color: white; color: #333333; font-family: Verdana, Arial, Helvetica, sans-serif;"><b>Wuscher v. Wuscher, </b><span id="tophead"><b>2014-Ohio-377, </b>from Lexis: "</span></span><span style="color: #333333; font-family: Verdana, Arial, Helvetica, sans-serif;">OVERVIEW: HOLDINGS: [1]-A trial court abused its discretion when considering a wife's motion to modify spousal support because the court refused to consider sources for the husband's income outside of his base salary, which was $ 275,000 in 2012 with a total income of $ 573,600; the parties' financial agreement, incorporated into the divorce decree, indicated their clear intent for the court to address substantial changes in the parties' income not contemplated at the time of the decree; [2]-The court abused its discretion by refusing to modify the husband's child support obligation because the court mistakenly believed the parties agreed to never calculate the child support obligation on income above $ 150,000, and, after failing to properly consider the parties' incomes, the court did not employ the requisite child support computation worksheet, R.C. 3119.022. </span><span style="color: #333333; font-family: Verdana, Arial, Helvetica, sans-serif;">OUTCOME: Judgment reversed and cause remanded."</span></div>
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<span style="color: #333333; font-family: Verdana, sans-serif;"><br /></span>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-24793227.post-15068487183272275672014-03-23T21:08:00.004-07:002014-03-23T21:08:53.507-07:00Lorain County Appellate Decision for February, 2014<span style="font-family: Verdana, sans-serif;">There were five appellate decisions for Lorain County cases released in February, 2014, by the Court of Appeals for the Ninth Appellate District. Two were appeals from criminal cases, two were appeals from civil cases, and one was an appeal from the Lorain County Juvenile Court regarding termination of a father's parental rights. </span><br />
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<span style="font-family: Verdana, sans-serif;">The two civil appellate decisions were <a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2014/2014-ohio-348.pdf" target="_blank"><b>Third Fed. S. & L. Assn. v. Haupt, 2014-Ohio-348</b></a>, released on February 3, 2014 and <b> <a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2014/2014-ohio-643.pdf" target="_blank">Varga v. Drees Co., 2014-Ohio-643,</a></b> released on February 24, 2014. Both were appeals from decisions of the Lorain County Common Pleas Court. </span><br />
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<span style="font-family: Verdana, sans-serif;">The Haupt case involved the issue of whether a trial court errs if it does not give notice of a magistrate's decision under Civ. R. 53. In the Haupt case the record did not reveal that Haupt was served with a copy of the magistrate's order and therefore did not have an opportunity to object to the order granting the bank's motion for summary judgment prior to the trial court adopting the order and granting the bank's motion. </span><br />
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<span style="font-family: Verdana, sans-serif;">The Varga case involved the issue of whether a trial court should have stayed a lawsuit between the parties which concerned the building of a residence for the Vargas by the Drees Company. In reversing the trial court the appellate court held that if arguably the causes of action can be related to the subject matter of the contract, and if the contract contains an arbitration clause, then the case must be stayed by the trial court and the parties given the opportunity to arbitrate the dispute. In this case the appellate court found that the issues raised by the Vargas' lawsuit arguably arose out of the contract and therefore the action should be stayed. </span><br />
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<span style="font-family: Verdana, sans-serif;">The two criminal appellate decisions were State v. D'Agostino,2014-Ohio-551, </span><span style="font-family: Verdana, sans-serif;">and State v. Marrero, 2014-Ohio-553.</span><br />
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<span style="font-family: Verdana, sans-serif;">In D'Agostino the appellate court held the following:"[1]-Defendant failed to show that her appointed counsel was suffering from a medical condition that affected her ability to represent defendant; appointed counsel conducted voir dire, gave both the opening statement and closing argument, cross-examined the victim, and conducted the direct examination of defendant; [2]-By having her own expert testify extensively about his methodologies and her credibility, defendant opened the door for the State to rebut that testimony through its expert; as such, defendant could not demonstrate prejudice as a result of her counsel's failure to object to the testimony of the State's expert; [3]-The trial court erred by sentencing defendant for both felonious assault and domestic violence as the offenses were allied offenses of similar import; hence, it was necessary to remand the matter for the trial court to issue a nunc pro tunc entry." (Quote from decision on Lexis."</span><br />
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<span style="font-family: Verdana, sans-serif;">In<b> <a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2014/2014-ohio-553.pdf" target="_blank">Marrero</a> </b>the appellate court found that the defendant had filed a petition for post-conviction relief untimely and therefore the trial court did not have jurisdiction to grant the relief sought. The trial court's dismissal of the petition was affirmed. </span><br />
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<span style="font-family: Verdana, sans-serif;">The remaining case was a case from the Lorain County Juvenile Court. The case was captioned <b><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2014/2014-ohio-552.pdf" target="_blank">In re A.H., 2014-Ohio-552</a>.</b> In that case the appellate court affirmed the order of the trial court terminating the parental rights of A.H.'s father. From Lexis: "HOLDING: [1]-A father's parental rights over his child were properly terminated because the evidence supported the finding that the child was in the care of the social service agency for the requisite period of time pursuant to R.C. 2151.414(B)(1)(d); [2]-Accordingly, even if the father's challenge to the termination under § 2151.414(E) was not supported by the record, any error was not reversible because it did not result in prejudice to the father; [2]-The record supported the trial court's conclusion that termination of parental rights and permanent custody in the social service agency was in the child's best interests based on consideration of the factors under § 2151.414(D)(1)(a)-(d), the child's need for a secure permanent placement, and the father's inability to provide that."</span><br />
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-24793227.post-81996230923217865552014-03-18T11:44:00.003-07:002014-03-18T11:44:45.838-07:00Medina County Appellate Decisions for February, 2014<span style="font-family: Verdana, sans-serif;">The Court of Appeals for the Ninth Appellate District released three decisions in February for appeals out of Medina County. All three of them were criminal cases. Two of the cases involved search and seizure issues. The third involved an issue of sufficiency of the evidence. </span><br />
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<span style="font-family: Verdana, sans-serif;">The two search and seizure opinions were <a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2014/2014-ohio-347.pdf" target="_blank"><b>State v. Harper, 2014-Ohio-347</b></a>, released on February 3, 2014, and<b> <a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2014/2014-ohio-641.pdf" target="_blank">State v. Horvath, 2014-Ohio-641</a> </b>released on February 24, 2014.<b> </b></span><br />
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<span style="font-family: Verdana, sans-serif;">In the Harper opinion the appellate court reversed the Medina County Court of Common Pleas that had ruled that a traffic stop was based on a reasonable and articulable suspicion and that the Ohio Highway Patrol Trooper making the stop had conducted a valid inventory search. The appellate court disagreed with both of those conclusions. Since the State had introduced evidence seized from Ms. Harper's car at her trial for drug possession her conviction was reversed and the case was remanded. On remand the State moved to dismiss the charge since it could not sustain its burden of proof without the seized evidence. </span><br />
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<span style="font-family: Verdana, sans-serif;">In the Horvath opinion the appellate court also reversed the trial court, but in that case the reversal was of the granting of a motion to suppress by the Medina Municipal Court. In Horvath the Medina Municipal Court had ruled that weaving by a motorist within his or her own lane does not constitute a traffic violation and therefore cannot lead to a traffic stop. </span><br />
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<span style="font-family: Verdana, sans-serif;">The appellate court held that the case should be remanded to the trial court for that court to determine whether, given the particular facts of the case, Horvath's weaving raised a reasonable suspicion that his operation was impaired. </span><br />
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<span style="font-family: Verdana, sans-serif;"><b><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2014/2014-ohio-642.pdf" target="_blank">State v. Lewis, 2014-Ohio-642</a>,</b> released on February 24, 2014<b>, </b>concerned the issue of whether the evidence introduced in the Medina County Common Pleas Court was sufficient to sustain a conviction for domestic violence. The appellate court held that it was and affirmed Lewis's conviction, which had resulted in a 10 month prison sentence. </span>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-24793227.post-49308397660624909762014-03-18T11:22:00.001-07:002014-03-18T11:22:19.271-07:00Wayne County Appellate Decisions for February, 2014<span style="font-family: Verdana, sans-serif;">The Court of Appeals for the Ninth Appellate District released one opinion in February for a case out of Wayne County. <a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2014/2014-ohio-554.pdf" target="_blank"><b>Poulson v. Fraternal Order of the Eagles, Inc., 2014-Ohio-554</b>,</a> concerned whether the Wayne County Court of Common Pleas had erred in awarding summary judgment to the Fraternal Order of Eagles in a slip and fall case. </span><br />
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<span style="font-family: Verdana, sans-serif;">Poulson had brought suit under two theories. One was negligence and the other was negligence per se. The negligence per se cause of action was based on a Wooster, Ohio ordinance that incorporated the Ohio Basic Building Code. The Court of Appeals found that the Eagle's motion for summary judgment had not addressed the cause of action for negligence per se. Therefore the motion for summary judgment should not have been granted on that cause of action. </span><br />
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<span style="font-family: Verdana, sans-serif;">The appellate court further found that the motion for summary judgment was well taken with respect to the cause of action for negligence. Therefore the trial court's order was affirmed on that cause of action. </span>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-24793227.post-2216273863482245372014-02-14T06:57:00.003-08:002014-02-14T06:57:41.239-08:00Summit County Appellate Decisions for January, 2014<span style="font-family: Verdana, sans-serif;"><b><a href="http://www.sconet.state.oh.us/rod/docs/pdf/9/2014/2014-ohio-20.pdf" target="_blank">State v. Furman, 2014-Ohio-20</a> </b>affirmed Ms. Furman's conviction for aggravated burglary and aggravated robbery by the Summit County Common Pleas Court. That court sentenced her to 18 years in prison, nine years on each count. In an earlier appeal the Court of Appeals for the Ninth Appellate District ordered a new sentencing hearing so that the trial court could consider whether the two offenses were allied offenses of similar import under a <i>State v. Johnson </i>analysis. The trial conducted such an analysis and found that the offenses were not allied offenses under <i>State v. Johnson</i> and re-sentenced Ms. Furman to 18 years in prison. </span><br />
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<span style="font-family: Verdana, sans-serif;">Ms. Furman raised two issues on appeal. The first issue was whether the trial court erred in determining the two offenses were not allied offenses. The second was whether the trial court erred in not giving her a minimum sentence. In both cases the appellate court found that the failure to enter the presentence investigation report into the record meant that the appellate court could not review the sentence and therefore has to presume regularity. Such a presumption meant that the trial court would be affirmed. </span><br />
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<span style="font-family: Verdana, sans-serif;"><a href="http://www.sconet.state.oh.us/rod/docs/pdf/9/2014/2014-ohio-102.pdf" target="_blank"><b>State v. Nichols, 2014-Ohio-102</b></a> affirmed a decision of the Summit County Common Pleas Court denying Nichols's motion for post-conviction relief. The appellate court found that he had not established that he was entitled to the relief and therefore affirmed the denial of his petition. </span><br />
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<span style="font-family: Verdana, sans-serif;"><a href="http://www.sconet.state.oh.us/rod/docs/pdf/9/2014/2014-ohio-103.pdf" target="_blank"><b>State v. Rogers, 2014-Ohio-103</b></a> affirmed a decision of the Summit County Common Pleas Court convicting Rodgers of a drug offense. Rodgers challenged his conviction on the grounds that the trial court erred in denying him motion to suppress. He argued that the officer who arrested him did not have a reasonable and articulable suspicion that he was committing an offense. He also argued that the trial court relied on facts that were not proved by the hearing. </span><br />
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<span style="font-family: Verdana, sans-serif;">In denying Rodger's assignment of error the appellate court noted that Rodgers was operating a motor vehicle with restricted license plates; that he was behind the wheel of a car in a high-crime area; that the car was idling; and that when he asked Rodgers about the restricted operator's license, Rodgers could not verify that he was operating the car for work-related purposes. While the appellate court said that the mere fact that a car has restricted license plates does not, by itself, give rise to a reasonable suspicion, in this case there were other corroborating factors. Therefore the conviction was affirmed. </span><br />
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<span style="font-family: Verdana, sans-serif;"><a href="http://www.sconet.state.oh.us/rod/docs/pdf/9/2014/2014-ohio-181.pdf" target="_blank">H<b>aley v. Nomad Preservation, Inc., 2014-Ohio-181 </b></a>affirmed a two decisions of the Summit County Common Pleas Court. In one decision the trial court had granted judgment to a defendant after converting a motion to dismiss under Civ. R. 12 (B) into a motion for summary judgment so that it could consider evidence. In the other decision the trial court had granted a motion to dismiss on the grounds that the trial court did not have personal jurisdiction over the moving defendant. </span><br />
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<span style="font-family: Verdana, sans-serif;">Haley argued that the trial court erred in considering material outside of the four corners of the motion which, in effect, converted the motion to dismiss into a motion for summary judgment. In rejecting this argument the appellate court wrote the following: "Not </span><span style="font-family: Verdana, sans-serif;">only had the trial court considered other evidence the first time it ruled on the motion, this Court </span><span style="font-family: Verdana, sans-serif;">explained in its decision that it was proper for the trial court to consider other evidence so long as </span><span style="font-family: Verdana, sans-serif;">notice was given. In light of the procedural history of this particular case, we cannot say that the </span><span style="font-family: Verdana, sans-serif;">trial court’s consideration of Mr. Ayache’s affidavit was unexpected or that Mr. Haley did not </span><span style="font-family: Verdana, sans-serif;">have an adequate opportunity to oppose the evidence." </span><br />
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<span style="font-family: Verdana, sans-serif;">The appellate court also found that granting the motion for dismissal because of a lack of personal jurisdiction was also proper. Haley argued that the defendant filing the motion had acted untimely. In rejecting this argument the appellate court wrote the following: "Mr. Haley has not cited any authority suggesting that a party forfeits his right to move to vacate a </span><span style="font-family: Verdana, sans-serif;">judgment that was rendered without personal jurisdiction merely because of the passage of time. </span><span style="font-family: Verdana, sans-serif;">See Civ.R. 12(H)(1) (setting out specific conditions under which a party waives the defense of </span><span style="font-family: Verdana, sans-serif;">lack of jurisdiction over the person); Timekeeping Sys., Inc. v. Safety Protection Universal Ltd., </span><span style="font-family: Verdana, sans-serif;">8th Dist. Cuyahoga No. 99714, 2013-Ohio-3919, ¶ 12."</span><br />
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<span style="font-family: Verdana, sans-serif;"><a href="http://www.sconet.state.oh.us/rod/docs/pdf/9/2014/2014-ohio-183.pdf" target="_blank"><b>State v. McDaniel, 2014-Ohio-183</b> </a>affirmed Mr. McDaniel's convictions for murder and felonious assault. McDaniel argued that the two offenses were allied offenses of similar import and that the State should have been made to elect the offense for which it wanted McDaniel sentenced. The Court of Appeals rejected this assignment of error. It found that under the analysis dictated by State v. Johnson the two offenses were not allied offenses of similar import. </span><br />
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<span style="font-family: Verdana, sans-serif;"><a href="http://www.sconet.state.oh.us/rod/docs/pdf/9/2014/2014-ohio-281.pdf" target="_blank"><b>Ramoso v. Ramoso, 2014-Ohio-28</b> </a>overruled the assignment of error brought by Mrs. Ramoso. She argued that the Summit County Domestic Relations Court erred by dismissing her objections to a magistrate's decision without a hearing. The Court of Appeals rejected this argument noting that she did not file a transcript with the objections. It pointed out that Civ.R. 53(D)(3)(b)(iii) requires such a transcript and failure to file one allowed the trial court to dismiss the objections. </span><br />
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<span style="font-family: Verdana, sans-serif;"><a href="http://www.sconet.state.oh.us/rod/docs/pdf/9/2014/2014-ohio-282.pdf" target="_blank"><b>State v. Reeves, 2014-Ohio-282</b></a> affirmed the conviction of Mr. Reeves for possession of heroin and affirmed the forfeiture of money claimed to be proceeds from the felony drug offense. It also affirmed his conviction for having weapons while under a disability. </span><br />
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<span style="font-family: Verdana, sans-serif;">Reeves raised three assignments of error. The first was that the evidence was insufficient to support his conviction. The second was that the guilty verdicts were against the manifest weight of the evidence. The third was that the trial court did not require the State to produce evidence that the order of forfeiture was proportional to the offense. All three assignments of error were overruled. In overruling the third assignment of error the appellate court noted that the law does not require a proportionality review when the property being forfeited is money derived from the offense. </span><br />
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<span style="font-family: Verdana, sans-serif;"><br /></span>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-24793227.post-8080283834340361432014-02-11T12:13:00.001-08:002014-02-11T12:13:42.735-08:00Lorain County Appellate Decisions for January, 2014<span style="font-family: Verdana, sans-serif;"><b><a href="http://www.sconet.state.oh.us/rod/docs/pdf/9/2014/2014-ohio-63.pdf" target="_blank">State v. Powell, 2014-Ohio-63</a> </b>affirmed Mr. Powell's conviction for one count of rape. Powell argued on appeal that the verdict, which came after a bench trial, was based on insufficient evidence and was against the manifest weight of the evidence. Both assignments of error were rejected. </span><br />
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<span style="font-family: Verdana, sans-serif;"><b><a href="http://www.sconet.state.oh.us/rod/docs/pdf/9/2014/2014-ohio-64.pdf" target="_blank">State v. Thomas, 2014-Ohio-64</a> </b>affirmed a decision of the Lorain County Common Pleas Court denying his motion to "correct" a void decision of that court. Thomas argued that his conviction of aggravated murder was defective because the determination of his guilt wasn't made by a three judge panel. </span><br />
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<span style="font-family: Verdana, sans-serif;">The appellate court pointed out that failure to have a three judge panel doesn't deprive a common pleas court of subject matter jurisdiction. If a common pleas court has erred in not having a three judge panel hear a defendant's case, that error must be brought up on a direct appeal, not in a post-conviction proceeding or in a motion for relief pursuant to a writ of habeas corpus. </span><br />
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<span style="font-family: Verdana, sans-serif;"><b><a href="http://www.sconet.state.oh.us/rod/docs/pdf/9/2014/2014-ohio-348.pdf" target="_blank">Third Fed. S. & L. Assn. v. Haupt, 2014-Ohio-348</a> </b>reversed a decision by the Lorain County Common Pleas Court granting judgment to Third Federal Savings & Loan. Ms. Haupt argued that she had not been served a copy of the magistrate's decision and therefore didn't have the opportunity to file objections to the decision. The Court of Appeals agreed with her contention. There was also an interesting issue regarding whether the appeal was timely. By a 2-1 decision the Court of Appeals found that it was timely. The dissent believed that the appeal was not timely. </span>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-24793227.post-2342246539533606592014-02-11T07:30:00.000-08:002014-02-11T07:30:12.142-08:00Wayne County Appellate Decisions for January, 2014<span style="font-family: Verdana, sans-serif;"><b><a href="http://www.sconet.state.oh.us/rod/docs/pdf/9/2014/2014-ohio-161.pdf" target="_blank">PNC Bank, Natl. Assn. v. West, 2014-Ohio-161</a> </b>overruled the granting of a motion for summary judgment to the plaintiff by the Wayne County Common Pleas Court. The appellate court found that the "evidence" offered in support of the motion for summary judgment and was intended to establish that the bank had standing to bring the action wasn't admissible under Ohio's Rules of Evidence. Therefore the summary judgment was reversed and the cause remanded back to the trial court. </span><br />
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<span style="font-family: Verdana, sans-serif;"><b><a href="http://www.sconet.state.oh.us/rod/docs/pdf/9/2014/2014-ohio-249.pdf" target="_blank">State v. Raber, 2014-Ohio-249</a> </b>affirmed an order of the Wayne County Common Pleas Court denying Mr. Raber's motion to expunge his record or seal his conviction. The basis for the trial court's ruling was that a conviction for the offense of sexual imposition, a third degree misdemeanor, is not one that can be expunged or sealed. The appellate court agreed and affirmed the trial court's ruling. </span>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-24793227.post-87354630550785342972014-02-11T06:51:00.000-08:002014-02-11T06:51:40.424-08:00Medina County Appellate Decisions for January, 2014<span style="font-family: Verdana, sans-serif;"><a href="http://www.sconet.state.oh.us/rod/docs/pdf/9/2014/2014-ohio-61.pdf" target="_blank"><b>U.S. Bank v. Cooper, 2014-Ohio-6</b>1</a> reversed and remanded the case to the Medina County Common Pleas Court with instructions that the case was to be dismissed. The Coopers had filed a motion to set aside a default judgment that was granted to U.S. Bank by the Medina County Common Pleas Court. </span><br />
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<span style="font-family: Verdana, sans-serif;">The trial court denied the Rule 60 (B) motion because the Coopers did not meet the requirements of <i>GTE Automatic Elec., Inc. v. ARC Industries, Inc</i>., 47 Ohio </span><span style="font-family: Verdana, sans-serif;">St.2d 146 (1976). In reversing the decision of the trial court the Court of Appeals reasoned that the Coopers were not required to file a motion under Rule 60 (B) because if the bank never had standing to bring the lawsuit then the judgment was void and not just voidable. Since it was void the case was remanded with instructions to dismiss. </span><br />
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<span style="font-family: Verdana, sans-serif;"><b><a href="http://www.sconet.state.oh.us/rod/docs/pdf/9/2014/2014-ohio-62.pdf" target="_blank">State v. Johnson, 2014-Ohio-62</a> </b>affirmed Johnson's conviction for two counts of felonious assault and one count of breaking and entering. Johnson argued on appeal that the trial court erred in not giving the "castle doctrine" instruction and in answering questions posed by the jury. </span><br />
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<span style="font-family: Verdana, sans-serif;">With respect to the "castle doctrine" Johnson argued that the instruction should have been given because Johnson was in his car and pursuant to R.C. 2901.09(B). The trial court concluded that the defense wasn't available because under Johnson's version of events he was not in the car when he assaulted the victims. The appellate court found that it could not find that the trial court abused its discretion in refusing to give the instruction and so denied the appeal on that basis. </span><br />
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<span style="font-family: Verdana, sans-serif;">With regard to the second assignment of error the appellate court found that Johnson's counsel had agreed to the instruction as given by the trial court. Therefore the assignment was reviewed under a plain error analysis. Under that standard the assignment of error overruled. </span><br />
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<span style="font-family: Verdana, sans-serif;">Johnson also alleged that his attorney was ineffective in representing him a trial. The Court of Appeals also rejected that argument. </span>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-24793227.post-61495609388785852292014-01-08T03:46:00.003-08:002014-01-08T03:46:34.058-08:00Summit County Civil Appellate Decisions, December, 2013<span style="font-family: Verdana, sans-serif;">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. </span><br />
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<span style="font-family: Verdana, sans-serif;"><b>S<a href="http://supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-5411.pdf" target="_blank">tetz v. Copley Fairlawn School Dist., 2013-Ohio-5411</a>,</b> 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. </span><br />
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<span style="font-family: Verdana, sans-serif;"><a href="http://supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-5786.pdf" target="_blank"><b>Hendy v. Wright, 2013-Ohio-5786</b>,</a> 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. </span><br />
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<span style="font-family: Verdana, sans-serif;">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. </span><br />
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<span style="font-family: Verdana, sans-serif;"><b><a href="http://supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-5724.pdf" target="_blank">Witschey, Witschey & Firestine Co., L.P.A. v. Daniele, Jr., 2013-Ohio-5724,</a></b> 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. </span><br />
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<span style="font-family: Verdana, sans-serif;"><b><a href="http://supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-5723.pdf" target="_blank">Black v. Stouffer Realty, Inc., 2013-Ohio-5723 </a></b>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. </span><br />
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<span style="font-family: Verdana, sans-serif;">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. </span><br />
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<span style="font-family: Verdana, sans-serif;">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. </span><br />
<span style="font-family: Verdana, sans-serif;"><br /></span><span style="font-family: Verdana, sans-serif;"><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-5560.pdf" target="_blank"><b>Ward v. Ohio State Waterproofing, 2013-Ohio-5560</b>,</a> 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. </span><br />
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<span style="font-family: Verdana, sans-serif;"><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-5558.pdf" target="_blank"><b>Lasater v. Vidahl, 2013-Ohio-5558,</b></a> 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. </span><br />
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<span style="font-family: Verdana, sans-serif;"><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-5554.pdf" target="_blank"><b>111 N. Main St., Inc. v. Von Allmen Ents., L.L.C., 2013-Ohio-5554,</b></a> 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. </span><br />
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<span style="font-family: Verdana, sans-serif;">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. </span><br />
<span style="font-family: Verdana, sans-serif;">The appellate court also considered the assignments of error by Von Allmen Enterprises and overruled them. </span><br />
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<span style="font-family: Verdana, sans-serif;"><b><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-5409.pdf" target="_blank">Osburn Towing v. Akron, 2013-Ohio-5409</a></b>, 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. </span>
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<span style="font-family: Verdana, sans-serif;"><br /></span>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-24793227.post-12370878898459561922014-01-07T11:41:00.003-08:002014-01-07T11:41:58.179-08:00Summit County Appellate Decisions in Juvenile Court Cases, December, 2013<span style="font-family: Trebuchet MS, sans-serif;">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. </span><br />
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<span style="font-family: Verdana, sans-serif;"><a href="http://supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-5728.pdf" style="font-weight: bold;" target="_blank">In re R.P., 2013-Ohio-5728</a>, 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. </span><br />
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<span style="font-family: Verdana, sans-serif;">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. </span><br />
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<span style="font-family: Verdana, sans-serif;">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. </span><br />
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<span style="font-family: Verdana, sans-serif;">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. </span><br />
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<span style="font-family: Verdana, sans-serif;">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. </span><br />
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<span style="font-family: Verdana, sans-serif;">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. </span><br />
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<span style="font-family: Verdana, sans-serif;">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. </span><br />
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<span style="font-family: Verdana, sans-serif;">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. </span><br />
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<span style="font-family: Verdana, sans-serif;"><a href="http://supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-5727.pdf" style="font-weight: bold;" target="_blank">In re J.B., 2013-Ohio-5727</a>, 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. </span><br />
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<span style="font-family: Verdana, sans-serif;"><b><a href="http://supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-5565.pdf" target="_blank">In re M.H., 2013-Ohio-5565</a>, </b>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. </span><br />
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<span style="font-family: Verdana, sans-serif;"><a href="http://supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-5556.pdf" style="font-weight: bold;" target="_blank">In re L.W., 2013-Ohio-5556</a>, 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. </span><br />
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<span style="font-family: Verdana, sans-serif;">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. </span><br />
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<span style="font-family: Verdana, sans-serif;">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. </span><br />
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<span style="font-family: Verdana, sans-serif;">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. </span><br />
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<span style="font-family: Verdana, sans-serif;"><a href="http://supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-5408.pdf" target="_blank">I<b>n re V.H., 2013-Ohio-5408,</b></a> 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. </span><br />
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<span style="font-family: Verdana, sans-serif;"><br /></span>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-24793227.post-89061497746198136842014-01-07T07:49:00.001-08:002014-01-07T07:54:07.694-08:00Summit County Appellate Decisions in Criminal Cases, December 2013<span style="font-family: Verdana, sans-serif;">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. </span><br />
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<span style="font-family: Verdana, sans-serif;"><a href="http://www.sconet.state.oh.us/rod/docs/pdf/9/2013/2013-ohio-5802.pdf" target="_blank"><b>State v. Wood, 2013-Ohio-5802</b>,</a> 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. </span><br />
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<span style="font-family: Verdana, sans-serif;"><a href="http://www.sconet.state.oh.us/rod/docs/pdf/9/2013/2013-ohio-5801.pdf" style="font-weight: bold;" target="_blank">State v. Tayse, 2013-Ohio-5801</a>,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. </span><br />
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<span style="font-family: Verdana, sans-serif;"><a href="http://www.sconet.state.oh.us/rod/docs/pdf/9/2013/2013-ohio-5785.pdf" style="font-weight: bold;" target="_blank">State v. Carson, 2013-Ohio-5785</a>, 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. </span><br />
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<span style="font-family: Verdana, sans-serif;"><a href="http://www.sconet.state.oh.us/rod/docs/pdf/9/2013/2013-ohio-5799.pdf" style="font-weight: bold;" target="_blank">State v. Culp, 2013-Ohio-5799</a>, 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. </span><br />
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<span style="font-family: Verdana, sans-serif;"><b><a href="http://www.sconet.state.oh.us/rod/docs/pdf/9/2013/2013-ohio-5784.pdf" target="_blank">State v. Bostick, 2013-Ohio-5784,</a></b> 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 <i>Batson v. Kentucky</i>, 476 U.S. 79, 89 (1986), does not require a trial judge to conduct a in-depth hearing when ruling on a Batson challenge. </span><br />
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<span style="font-family: Verdana, sans-serif;">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. </span><br />
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<span style="font-family: Verdana, sans-serif;">Editor's Note: I was not able to view the decision of <b>State v. Maffei, 2013-Ohio-5787,</b> which was also released on December 31, 2013. </span><br />
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<span style="font-family: Verdana, sans-serif;"><b><a href="http://www.sconet.state.oh.us/rod/docs/pdf/9/2013/2013-ohio-5726.pdf" target="_blank">State v. Hrnjak, 2013-Ohio-5726</a></b>, 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. </span><br />
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<span style="font-family: Verdana, sans-serif;"><a href="http://supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-5725.pdf" target="_blank"><b>State v. Hill, 2013-Ohio-5725</b></a>, 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. </span><br />
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<span style="font-family: Verdana, sans-serif;">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. </span><br />
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<span style="font-family: Verdana, sans-serif;"><a href="http://supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-5564.pdf" target="_blank"><b>State v. Valenti, 2013-Ohio-5564</b>,</a> 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. </span><br />
<span style="font-family: Verdana, sans-serif;"><br /></span><span style="font-family: Verdana, sans-serif;"><b><a href="http://supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-5561.pdf" target="_blank">State v. Powell, 2013-Ohio-5561</a>,</b> 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. </span><br />
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<span style="font-family: Verdana, sans-serif;">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. </span><br />
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<span style="font-family: Verdana, sans-serif;"><a href="http://supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-5559.pdf" style="font-weight: bold;" target="_blank">State v. McCallister, 2013-Ohio-5559</a>, 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. </span><br />
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<span style="font-family: Verdana, sans-serif;"><b><a href="http://supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-5557.pdf" target="_blank">State v. Jackson, 2013-Ohio-5557</a>, </b>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. </span><br />
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<span style="font-family: Verdana, sans-serif;">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. </span><br />
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<span style="font-family: Verdana, sans-serif;">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. </span><br />
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<span style="font-family: Verdana, sans-serif;"><a href="http://supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-5306.pdf" style="font-weight: bold;" target="_blank">State v. Marbury, 2013-Ohio-5306</a>, 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. </span><br />
<span style="font-family: Verdana, sans-serif;"><br /></span><span style="font-family: Verdana, sans-serif;"><b>State v. Lerch, 2013 Ohio 5305</b>, was released on December 4, 2013. Unfortunately I could not retrieve the document in order to summarize the decision. </span>
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<span style="font-family: Verdana, sans-serif;"><br /></span>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-24793227.post-34181605165803052082014-01-05T09:01:00.001-08:002014-01-05T09:01:16.847-08:00Lorain County Appellate Decisions, December, 2013<span style="font-family: Verdana, sans-serif;">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:</span><br />
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<span style="font-family: Verdana, sans-serif;"><b><a href="http://www.sconet.state.oh.us/rod/docs/pdf/9/2013/2013-ohio-5782.pdf" target="_blank">State v. Stone, 2013-Ohio-5782</a>, </b>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. </span><br />
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<span style="font-family: Verdana, sans-serif;"><a href="http://www.sconet.state.oh.us/rod/docs/pdf/9/2013/2013-ohio-5781.pdf" target="_blank"><b>King v. Carleton, 2013-Ohio-5781</b>,</a> 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. </span><br />
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<span style="font-family: Verdana, sans-serif;"><a href="http://www.sconet.state.oh.us/rod/docs/pdf/9/2013/2013-ohio-5780.pdf" target="_blank"><b>State v. Bales, 2013-Ohio-5780</b></a>, 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 </span><span style="font-family: Verdana, sans-serif;">program, (2) payment of fines and court costs, (3) no pending criminal charges, (4) no </span><span style="font-family: Verdana, sans-serif;">dependence on alcohol or drugs, and (5) a positive recommendation from the adult probation </span><span style="font-family: Verdana, sans-serif;">department. The Court of Appeals held that dismissing a charge after making such findings was not an abuse of discretion. </span><br />
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<span style="font-family: Verdana, sans-serif;"><b><a href="http://www.sconet.state.oh.us/rod/docs/pdf/9/2013/2013-ohio-5646.pdf" target="_blank">In re T.A., 2013-Ohio-5646</a>,</b> 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. </span><br />
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<span style="font-family: Verdana, sans-serif;"><b><a href="http://www.sconet.state.oh.us/rod/docs/pdf/9/2013/2013-ohio-5644.pdf" target="_blank">Camera v. Lorain Civ. Serv. Comm., 2013-Ohio-5644</a>,</b> 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. </span><br />
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<span style="font-family: Verdana, sans-serif;"><a href="http://www.sconet.state.oh.us/rod/docs/pdf/9/2013/2013-ohio-5491.pdf" target="_blank"><b>State v. Liebling, 2013-Ohio-5491</b></a>, 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. </span><br />
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<span style="font-family: Verdana, sans-serif;">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.</span><br />
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<span style="font-family: Verdana, sans-serif;"><a href="http://www.sconet.state.oh.us/rod/docs/pdf/9/2013/2013-ohio-5488.pdf" target="_blank"><b>Bank of New York Mellon Trust Co. v. Bowers, 2013-Ohio-5488</b></a>, 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. </span><br />
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<span style="font-family: Verdana, sans-serif;"><b><a href="http://www.sconet.state.oh.us/rod/docs/pdf/9/2013/2013-ohio-5369.pdf" target="_blank">State v. Spurlock, 2013-Ohio-5369</a>, </b>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. </span><br />
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<span style="font-family: Verdana, sans-serif;"><b><a href="http://www.sconet.state.oh.us/rod/docs/pdf/9/2013/2013-ohio-5367.pdf" target="_blank">State v. Guerra, 2013-Ohio-5367</a></b>, 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. </span><br />
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<span style="font-family: Verdana, sans-serif;"><a href="http://www.sconet.state.oh.us/rod/docs/pdf/9/2013/2013-ohio-5361.pdf" style="font-weight: bold;" target="_blank">Bremke v. Sherck, 2013-Ohio-5361</a>, 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. </span>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-24793227.post-50094110204490806092014-01-05T07:54:00.001-08:002014-01-05T07:54:11.581-08:00Wayne County Appellate Decisions, December 2013<span style="font-family: Verdana, sans-serif;">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:</span><br />
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<span style="font-family: Verdana, sans-serif;"><a href="http://www.sconet.state.oh.us/rod/docs/pdf/9/2013/2013-ohio-5789.pdf" target="_blank"><b>State v. Weese, 2013-Ohio-5789</b>,</a> 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. </span><br />
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<span style="font-family: Verdana, sans-serif;"><b><a href="http://www.sconet.state.oh.us/rod/docs/pdf/9/2013/2013-ohio-5490.pdf" target="_blank">In re K.P., 2013-Ohio-5490</a>,</b> 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. </span>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-24793227.post-79042812828829916682014-01-05T07:44:00.000-08:002014-01-05T07:44:58.816-08:00Appellate Decisions for Medina County for December of 2013<span style="font-family: Verdana, sans-serif;">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:</span><br />
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<span style="font-family: Verdana, sans-serif;"><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-5645.pdf" target="_blank"><b>Dillard v. Automation Tool & Die, Inc., 2013-Ohio-5645</b></a>, 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. </span><br />
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<span style="font-family: Verdana, sans-serif;"><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-5489.pdf" target="_blank"><b>State v. Cooper, 2013-Ohio-5489,</b></a> 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. </span><br />
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<span style="font-family: Verdana, sans-serif;"><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-5487.pdf" target="_blank"><b>Bonk v. Mitchell, 2013-Ohio-5487</b></a>, 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. </span><br />
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<span style="font-family: Verdana, sans-serif;"><a href="http://www.sconet.state.oh.us/rod/docs/pdf/9/2013/2013-ohio-5262.pdf" target="_blank"><b>Drogell v. Westfield Group, 2013-Ohio-5262</b></a>, 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. </span><br />
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<span style="font-family: Verdana, sans-serif;">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. </span><br />
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<span style="font-family: Verdana, sans-serif;"><br /></span>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-24793227.post-54347937266063907102013-12-09T11:51:00.002-08:002013-12-09T11:51:36.348-08:00Summit County Appellate Decisions for November, 2013<span style="font-family: Verdana, sans-serif;">The Court of Appeals for the Ninth Appellate District released 16 decisions for appeals from Summit County in November of 2013. Summaries of these decisions appear below. </span><br />
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<span style="font-family: Verdana, sans-serif;">November 27, 2013 Decisions</span><br />
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<span style="font-family: Verdana, sans-serif;"><b><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-5237.pdf" target="_blank">State v. Robinson, 2013-Ohio-5237</a> </b>was an appeal from the Summit County Common Pleas Court denying Mr. Robinson's motions to vacate his 2003 convicted for murder and other offenses. The majority of the court affirmed the trial court on two grounds. The first was that the entry that Robinson argued was defective was not a sentencing entry and therefore did have to comply with the requirements of Crim. R. 32. The second was that the remaining assignments of error should have been raised on direct appeal and therefore were subject to the doctrine of res judicata. Judge Carr concurred but reasoned that the trial court's conclusion that Robinson's motions were actually petitions for post-conviction relief and were untimely was correct. </span><br />
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<span style="font-family: Verdana, sans-serif;"><b>State v. Payne, 2013-Ohio-5230</b></span></a><span style="font-family: Verdana, sans-serif;"> was an appeal from a conviction of Mr. Payne for rape of a minor. Payne set forth two assignments of error.</span><br />
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<span style="font-family: Verdana, sans-serif;">One was that the trial court erred in allowing evidence of a conversation between the victim, who is now an adult, and himself to come into evidence. He argued that the evidence was obtained in violation of R.C. 2933.52 and that his statements amounted to an involuntary confession. The Court of Appeals found that while Payne had filed a motion in limine and a motion to suppress, he had not objected to certain testimony regarding the taped conversation and that he had therefore waived this assignment of error unless there was plain error. The appellate court then did a plain error analysis and found no such error. </span><br />
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<span style="font-family: Verdana, sans-serif;">Payne also argued that the trial court should have sustained his Batson objection to the State's peremptory challenge of an African-American man. The Court of Appeals found that the State presented a racially neutral justification for the challenge and overruled that assignment also. </span><br />
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<span style="font-family: Verdana, sans-serif;"><b><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-5227.pdf" target="_blank">State v. Deem, 2013-Ohio-5227</a> </b>was an appeal from a conviction in the Summit County Common Pleas Court for aggravated possession of drugs. Mr. Deem set forth one assignment of error which was that the trial court erred in not granting his motion for a directed verdict of acquittal pursuant to Crim. R. 29. Such a motion is an attack on the sufficiency of the evidence offered by the State. In this case the Court of Appeals examined the evidence offered by the State and found that the trial court ruled correctly. The conviction was affirmed. </span><br />
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<span style="font-family: Verdana, sans-serif;"><b>S<a href="http://supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-5229.pdf" target="_blank">tate v. Parham, 2013-Ohio-5229</a> </b>affirmed the conviction of Parham for drug possession. Parham argued that the trial court erred in not granting his suppression motion. He alleged that his statements to the officer should have been suppressed because he did not receive <i>Miranda</i> warnings. He also alleged that the arresting officer who conducted a pat-down search didn't have probable cause to pull out the packet of drugs that he felt when conducting the pat-down. The Court of Appeals held that Parham didn't show that he was subject to a custodial interrogation. It also held that he didn't establish that the arresting officer was lying when he said that he recognized the packet of drugs as contraband from his experience as a police officer. </span><span style="font-family: Verdana, sans-serif;"><br /></span><br />
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<span style="font-family: Verdana, sans-serif;"><b><a href="http://supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-5226.pdf" target="_blank">State v. Davis, 2013-Ohio-5226</a> </b>affirmed the conviction of Davis for felony murder and aggravated robbery. At trial the jury found that Davis was not guilty of having weapons under a disability and the firearm specification attached to the indictment. </span><br />
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<span style="font-family: Verdana, sans-serif;">Davis argued on appeal that the trial court erred in not granting his Crim. R. 29 motion for acquittal. The appellate court found that the trial court did properly deny the motion since the evidence was both sufficient to justify the case going to the jury and the conviction was not against the manifest weight of the evidence. </span><br />
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<span style="font-family: Verdana, sans-serif;">Davis argued that since he was found not guilty of the firearm specification and having weapons under a disability, the convictions for felony murder and aggravated murder were inconsistent and should be reversed. The Court of Appeals pointed out that under Ohio case law a person can be found not guilty of a firearm specification and that such a verdict doesn't undermine the conviction on the underlying charge. </span><br />
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<span style="font-family: Verdana, sans-serif;">Finally David argued that his attorney was ineffective for not requesting a severance of his trial from that of a co-defendant. This assignment of error was also overruled. </span><br />
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<span style="font-family: Verdana, sans-serif;"><b><a href="http://supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-5225.pdf" target="_blank">State v. Boware, 2013-Ohio-5225</a> </b>affirmed the dismissal by the Summit County Common Pleas Court of a petition for post-conviction relief on the basis that it was untimely. Boware filed the motion out of time. In the motion he did not set forth reasons why the trial court should have considered the motion. The trial court held that since he hadn't set forth reasons why the trial court should consider the post-conviction relief petition the trial court did not have jurisdiction to hear the petition. The Court of Appeals affirmed that position. </span><br />
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<span style="font-family: Verdana, sans-serif;">November 20, 2013</span><br />
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<span style="font-family: Verdana, sans-serif;"><b><a href="http://supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-5114.pdf" target="_blank">Jacobson-Kirsch v. Kaforey, 2013-Ohio-5114 </a> </b>affirmed a decision from the Summit County Common Pleas Court dismissing a case on the basis that it was filed outside of the statute of limitations. The plaintiff brought the case for the tort of interference with parental interests. The plaintiff argued that an action brought under R.C. 2307.50 is not a civil action and therefore the statute of limitations set forth in R.C. 2305.04 through R.C. 2305.22. The Court of Appeals disagreed finding that such an action is a civil action and should be brought within the statute of limitations set forth in R.C. 2305.09 (D), which is four years. </span><br />
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<span style="font-family: Verdana, sans-serif;"><b><a href="http://supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-5112.pdf" target="_blank">State v. Brown, 2013-Ohio-5112</a> </b>affirmed in part and reversed in part a decision by the Summit County Common Pleas Court. The Court of Appeals overruled the assignment of error that the trial court's verdict was against the manifest weight of the evidence. It reversed in part based on the fact that the trial court should have conducted an analysis to see if the offenses were allied offenses of similar import. The case was remanded back to the trial court in order to allow that court to conduct such an analysis. </span><br />
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<span style="font-family: Verdana, sans-serif;">November 13, 2013 </span><br />
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<span style="font-family: Verdana, sans-serif;"><b><a href="http://supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-4999.pdf" target="_blank">Univ. of Akron v. Jones, 2013-Ohio-4999</a> </b>affirmed a judgment of the Summit County Common Pleas Court. Mr. Jones raised two assignments of error in the Court of Appeals. The first assignment was that the trial court erred in not dismissing the case for lack of standing. The second assignment of error was that the trial court erred in not holding a hearing to determine whether he had been served properly. Both assignments of error were overruled. </span><br />
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<span style="font-family: Verdana, sans-serif;"><b><a href="http://supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-4998.pdf" target="_blank">In re M.T.B., 2013-Ohio-4998</a> </b>affirmed a decision of the Summit County Common Pleas Court, Juvenile Division, returning her children to M.T.B.'s custody while placing under the protective supervision of the Summit County Children Services Board. The mother alleged four assignments of error. </span><br />
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<span style="font-family: Verdana, sans-serif;">The first was that the trial court should have dismissed the complaint regarding one of the children because service wasn't perfected on the father. The Court of Appeals noted that even if she had standing to raise that issue, she should have raised in the trial court. Her failure to do so waived that error. </span><br />
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<span style="font-family: Verdana, sans-serif;">The second assignment of error concerned the ability of a visiting judge assigned to the Summit County Juvenile Court by the Ohio Supreme Court to sign an order adopting the magistrate's decision. The Court of Appeals noted that even if the visiting judge didn't have the authority to adopt the magistrate's order, it wouldn't have affected the Summit County Juvenile Court Judge's authority to sign a final order of disposition. </span><br />
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<span style="font-family: Verdana, sans-serif;">The third assignment of error alleged that the trial court should have made what is described as a "reasonable efforts" determination regarding actions of the CSB. The Court of Appeals noted that such a determination is not required if the trial court has not removed or is not removing the child from the parent's home. Since the trial court was not issuing such an order in this case, it was not required to make such a finding. </span><br />
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<span style="font-family: Verdana, sans-serif;">The fourth and final assignment of error was that the finding of the trial court that two of the children were dependent was against the manifest weight of the evidence. That assignment was also overruled. </span><br />
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<span style="font-family: Verdana, sans-serif;"><b><a href="http://supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-4997.pdf" target="_blank">State v. Gordon, 2013-Ohio-4997</a> </b>affirmed a decision of the Summit County Common Pleas Court denying a motion to suppress. Gordon alleged that the arresting officer didn't have probable cause to make a warrantless arrest for the offense which the officer subjectively believed that Gordon was committing. The Court of Appeals noted that the officer's subjective belief as to what crime he or she is arresting a defendant for is not relevant. The issue is whether the officer could have made a warrantless arrest for any offense that he or she had probable cause to believe was committed. Applying that standard meant that the trial court was affirmed. </span><br />
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<span style="font-family: Verdana, sans-serif;"><a href="http://supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-4996.pdf" style="font-weight: bold;" target="_blank">State v. Bryant, 2013-Ohio-4996 </a>affirmed the denial of a motion to vacate sentence by the Summit County Common Pleas Court. Bryant had argued that the trial court erred in considering his motion as a petition for post-conviction relief and then holding that the petition was untimely. Bryant argued that the trial court did not properly merge allied offenses of similar import for sentencing. The Court of Appeals held that if a trial judge does not merge allied offenses, the sentence is voidable but not void. Since the sentence wasn't void, the trial court was correct in holding that the motion to vacate was really a petition for post-conviction relief, and that it was untimely filed. </span><br />
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<span style="font-family: Verdana, sans-serif;">November 6, 2013</span><br />
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<span style="font-family: Verdana, sans-serif;"><b><a href="http://supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-4897.pdf" target="_blank">State v. Williams, 2013-Ohio-4897</a> </b>affirmed a decision by the Summit County Common Pleas Court that the petition for post-conviction relief filed by Williams was untimely. Although Williams had titled his motion as a motion to vacate sentence, the trial court found that the motion was really a petition for post-conviction relief. </span><br />
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<span style="font-family: Verdana, sans-serif;">The reason was this was so is seen by this quote from the Court of Appeals opinion: "</span><span style="font-family: Verdana, sans-serif;">The Supreme </span><span style="font-family: Verdana, sans-serif;">Court of Ohio has held that, “[w]here a criminal defendant, subsequent to his or her direct </span><span style="font-family: Verdana, sans-serif;">appeal, files a motion seeking vacation or correction of his or her sentence on the basis that his or </span><span style="font-family: Verdana, sans-serif;">her constitutional rights have been violated, such a motion is a petition for post-conviction relief </span><span style="font-family: Verdana, sans-serif;">as defined in R.C. 2953.21.” <i>State v. Reynolds</i>, 79 Ohio St.3d 158 (1997), at syllabus." Once the motion was considered as such a petition, it then becomes subject to the time limits for such motions and it was untimely. </span><br />
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<span style="font-family: Verdana, sans-serif;"><b><a href="http://supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-4896.pdf" target="_blank">State v. Stoddard, 2013-Ohio-4896</a> </b>affirmed Stoddard's conviction by the Summit County Common Pleas Court. Stoddard argued that his guilty plea was not knowingly, intelligently, and voluntarily made and that the trial court abused its discretion by not considering mitigating factors when it sentenced him. Both assignments of error were rejected. </span><br />
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<span style="font-family: Verdana, sans-serif;"><b><a href="http://supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-4895.pdf" target="_blank">State v. Russell, 2013-Ohio-4895</a> </b>affirmed the denial of a motion to suppress by the Summit County Common Pleas Court. Russell argued that the affidavit submitted by the officer was not sufficient to establish that the drugs and/or contraband would be found at the premises to be searched. The Court of Appeals reviewed the affidavit and found that even if the one paragraph that was disputed by Russell were not considered, the affidavit still have enough information to establish probable cause. </span><br />
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<span style="font-family: Verdana, sans-serif;"><b><a href="http://supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-4894.pdf" target="_blank">Prussak-Klein v. Durachinsky, 2013-Ohio-4894</a> </b>affirmed a decision of the Summit County Domestic Relations Court regarding whether or not tutoring expenses for the child of the parties was a "medical expense" and whether the motion for back child support was barred by the doctrine of res judicata. The Court of Appeals found no error by the trial court and both assignments of error were overruled. </span>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-24793227.post-46634723889360659602013-12-06T10:41:00.001-08:002013-12-06T10:41:08.402-08:00Medina County Appellate Decisions for November, 2013<span style="font-family: Verdana, sans-serif;">The Court of Appeals for the Ninth Appellate District issued three decisions for appeals from Medina County during the month of November. All three decisions were issued on November 12, 2013.Summaries of the decisions appear below. </span><br />
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<span style="font-family: Verdana, sans-serif;"><b><a href="http://www.sconet.state.oh.us/rod/docs/pdf/9/2013/2013-ohio-4973.pdf" target="_blank"> Sunset Estate Properties, L.L.C. v. Lodi, 2013-Ohio-4973</a> </b>reversed a decision from the Medina County Common Pleas Court that upheld a zoning ordinance in the Village of Lodi that declared a mobile home park lot vacant if it had not been rented for six months. Such a declaration meant that the Lodi Board of Public Affairs wouldn't extend utility service to such lots. The Court of Appeals found that the ordinance was facially unconstitutional. The Court of Appeals reversed the granting of a summary judgment to the Village of Lodi on the grounds that the section involved was unconstitutional. It remanded the case back to the trial court for further proceedings. </span><br />
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<span style="font-family: Verdana, sans-serif;"><b><a href="http://www.sconet.state.oh.us/rod/docs/pdf/9/2013/2013-ohio-4972.pdf" target="_blank">State v. McDonald, 2013-Ohio-4972 </a> </b>affirmed a decision by the Medina County Common Pleas Court Mr. McDonald him of various sexual offenses including three counts of rape. McDonald alleged four assignments of error. They were that the trial court erred in allowing a witness to testify as an expert; that the verdict was against the manifest weight of the evidence; that the trial court erred in admitting hearsay testimony; and that the trial court erred when it denied a motion to sever the charges. </span><br />
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<span style="font-family: Verdana, sans-serif;"><b><a href="http://www.sconet.state.oh.us/rod/docs/pdf/9/2013/2013-ohio-4971.pdf" target="_blank">State v. Garnett, 2013-Ohio-4971</a> </b>affirmed a decision of the Medina County Common Pleas Court convicting Mr. Garnett of drug trafficking in an amount equal to or greater than bulk amount. The appeal was based on the argument that the State erred in only testing one of the alleged Oxycodone pills and that it should have tested more. The Court of Appeals affirmed the conviction and held that the State could test a random sample of the pills given that the pills were identical, carried the same markings, and were manufactured by a pharmaceutical company. </span><br />
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<span style="font-family: Verdana, sans-serif;"><br /></span>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-24793227.post-52239363705187062242013-12-06T03:51:00.000-08:002013-12-06T03:51:20.925-08:00Wayne County Appellate Decisions for November, 2013<span style="font-family: Verdana, sans-serif;">The Court of Appeals for the Ninth Appellate District released one decision on an appeal from Wayne County. That decision was released on November 12, 2013. A summary of the decision appears below. </span><br />
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<span style="font-family: Verdana, sans-serif;"><b><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-4970.pdf" target="_blank">State v. Fields, 2013-Ohio-4970</a> </b>affirmed a decision from the Wayne County Municipal Court. Mr. Fields appealed his conviction for driving while under the influence of alcohol. Mr. Fields was originally arrested in March of 2007. When the first trial date appeared Mr. Fields orally waived on the record his right to a speedy trial. He failed to appear and a warrant was issued for his arrest. In June of 2011 he filed a motion to dismiss for lack of speedy trial. That motion was denied. He then filed motions for a pretrial and discovery. The case went to trial and August of 2012 and he was found guilty. </span><br />
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<span style="font-family: Verdana, sans-serif;">The Court of Appeals affirmed the trial court's denial of the motion to dismiss under the following analysis: From the time he orally waived his right to a speedy trial until he filed the motion to dismiss was tolled because of the waiver. Then from the time the motion to dismiss was filed until the trial date was reasonable because of delays attributable to the motions that Mr. Fields had filed. </span><br />
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<span style="font-family: Verdana, sans-serif;"><br /></span>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-24793227.post-812943148065330812013-12-06T03:24:00.000-08:002013-12-06T03:24:07.293-08:00Lorain County Appellate Decisions for November, 2013<span style="font-family: Verdana, sans-serif;">The Court of Appeals released four decisions for cases on appeal from Lorain County courts. Summaries of those decisions are set forth below. </span><br />
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<span style="font-family: Verdana, sans-serif;"><b><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-5194.pdf" target="_blank">Deutsche Bank v. Holloway, 2013-Ohio-5194</a> </b>was released on November 25, 2013. The decisions reversed a decision from the Lorain County Common Pleas Court granting a motion for summary judgment to the bank. The trial court was reversed because the bank didn't show that it had standing to bring the foreclosure</span><span style="font-family: Verdana, sans-serif;">. The decision relied on the Ohio Supreme Court decision of </span><span style="font-family: Verdana, sans-serif;"><i> Fed. Home Loan Mtge. Corp. v. </i></span><span style="font-family: Verdana, sans-serif;"><i>Schwartzwald</i>, 134 Ohio St.3d 13, 2012-Ohio-5017, ¶ 28 and the Ninth District's own decision in </span><span style="font-family: Verdana, sans-serif;"><i>BAC Home Loan Servicing, LP. v. McFerren,</i> 9th Dist. Summit No. 26384, </span><span style="font-family: Verdana, sans-serif;">2013-Ohio-3228, ¶ 8, 13. The latter decision holds that a plaintiff in a foreclosure action must show that it holds both the note and the mortgage when it files the action. </span><br />
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<span style="font-family: Verdana, sans-serif;"><b><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-5080.pdf" target="_blank">In re A.H., 2013-Ohio-5080</a> </b>was released on November 19, 2013. The appeal was from a decision of the Lorain County Common Pleas Court, Juvenile Division, revoking probation for A.H. for 90 days. The appellate court found the appeal to be moot since he had already served the 90 day revocation period. </span><br />
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<span style="font-family: Verdana, sans-serif;"><b><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-4969.pdf" target="_blank">State v. Ditzler, 2013-Ohio-4969</a> </b>was released on November 12, 2013. The appeal was from a decision of the Lorain County Common Pleas Court denying a motion to void Mr. Ditzler's sexually violent predator specification. Ditzler argued that based on a Ohio Supreme Court decision that had held that a defendant could not be found guilty of such a specification if the predicate offense was not prior to the specification date. The Court of Appeals found that since Ditzler had not appealed this issue back in 2000 when he was convicted, there was no appeal pending from him at the time the Ohio Supreme Court released its decision. Therefore he could not raise the issue on this appeal. </span><br />
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<span style="font-family: Verdana, sans-serif;"><b><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-4857.pdf" target="_blank">A.S. v. P.F., 2013-Ohio-4857</a> </b>was released on November 4, 2013. The decision affirmed the granting of a civil stalking protection order by Lorain County Court of Common Pleas. The decision is very fact specific. The Court of Appeals noted that the decision of the trial court was done under the recently amended Civ. R. 65.1 which allows a magistrate to issue a civil stalking protection order and that order may be reviewed on appeal without the appellant having filed for review by the trial court prior to the appeal. Judge Carr dissented from the holding since she believed that the appellee did not establish a basis for the protection order. </span>Unknownnoreply@blogger.com0