Ninth Appellate District Decisions Released on 3.29.2013

The Ninth District Court of Appeals released 12 opinions on Friday, March 29, 2013. There were two decisions from Medina County appeals, five decisions from Lorain County appeals, and five decisions from Summit County appeals.

The decisions released from Medina County appeals were:

State v. Evans, 2013-Ohio-1216, which involved a petition for post-conviction relief. Mr. Evans appealed from a denial of his petition for post-conviction relief by the trial court. In his petition he claimed that his trial counsel was ineffective in failing to call a witness, in failing to use information to impeach the State's witnesses, and in failing to inform him of plea negotiations. At a hearing scheduled on his petition, Mr. Evans failed to produce witnesses that he claimed would support his allegations. The trial court overruled his petition for post-conviction relief. The Court of Appeals applied an abuse of discretion standard to the appeal and affirmed the trial court's ruling.

State v. Schmolz, 2013-Ohio-1220, which involved the issue of whether the trial court erred by allowing the State to amend the indictment during trial. The indictment charged Ms. Schmolz with receiving stolen property. The property was described as a "license plate". During trial the State established that the property was a "temporary license placard". Both kinds of property are covered by R.C. 2913.71(C), which makes theft offenses involving such property felonies of the fifth degree. The Court of Appeals found that the amendment did not change the identity of the offense, which was receiving stolen property, nor the penalty, since theft offenses involving both "license plates" and "temporary license placards" are fifth degree felonies. Therefore the Court of Appeals affirmed Ms. Schmolz's conviction.

The decisions released from Lorain County appeals were:

Billi v. Moyse-Morgan Ents. Inc., 2013-Ohio-1214, which involved an appeal from the granting of a motion for summary judgment. The Plaintiff, who was the appellant, alleged two claims of negligence against the Defendants, who were owners and employees of a bar. The first claim was for negligence and the second was for a violation of Ohio's Dram Shop Act. The Court of Appeals affirmed the trial court's granting of the motion for summary judgment on the negligence claim, but reversed the trial court's granting of the summary judgment motion on the Dram Shop Act claim.

Gargasz v. Lorain Cty., 2013-Ohio-1218, concerned an appeal from a declaratory judgment. The Court of Appeals reversed the trial court finding that the trial court's judgment entry did not declare the "rights and responsibilities of the parties". Since the trial court's entry did not make such declarations, the judgment was not a final and appealable order. The trial court's judgment entry was an entry that stated that it was granting the Defendants' motion for summary judgment and denying the Plaintiffs' motion for summary judgment. The Court of Appeals held that such an entry did not comply with R.C. R.C. 2721.02(A) which expressly provides that a “declaration has the effect of a final judgment or decree[]” and that a declaration is “either affirmative or negative in form[.]”

Strickler v. First Ohio Banc & Lending, Inc.,2013-Ohio-1221, which was an interlocutory appeal from an order by the Lorain County Common Pleas Court granting class certification. The Court of Appeals affirmed the class certification made by the Lorain County Common Pleas Court. The class action is based on allegations that First Ohio had failed to provide buyers with disclosure statements that complied with R.C. 1322.062. The class action is directed at First Banc and at the sureties who had issued mortgage broker bonds to First Ohio and its employees. The decision contains a discussion on what the role of a trial court is in determining whether to grant class certification.

Young v. Conry, 2013-Ohio-1223 which was an appeal from a decision of the Lorain County Probate Court granting summary judgment to the defendants in a will contest case. The appellants argued that the Probate Court abused its discretion by enforcing a discovery cut-off date and by granting the summary judgment motion. The Court of Appeals affirmed the actions of the Probate Court regarding both allegations of error.

State v. Zepeda-Ramires, 2013-Ohio-1224 which was an appeal from an order of the Lorain County Common Pleas Court requiring payment of a forfeited bond issued by a bonding company in a criminal case. The Court of Appeals noted that the appellants were objecting to what the appellants called the trial court's failure to comply with the statutory requirements for bond forfeiture. The Court of Appeals also noted that the appellants failed to attend hearings that were scheduled on the State's motion to revoke bond and declare the bond forfeited. Since the appellants could have raised these issues at those hearings, the Court of Appeals considered those issues were forfeited on appeal. If an appellate issue is forfeited, then the Court of Appeals can only review under a "plain error" standard, but, in this case, the appellants did not allege "plain error." Therefore the trial court was affirmed.

The decisions released from Summit County were:

Akron v. State Emp. Relations Bd., 2013-Ohio-1213, which was an appeal from a decision of the Summit County Court of Common Pleas that the City of Akron engaged in an unfair labor practice in its dealings with the Fraternal Order of Police during labor negotiations. The Order represents Akron's police officers. Originally the allegation was heard by the State Employment Relation Board, S.E.R.B., which found that the City had engaged in an unfair labor practice. The Common Pleas Court affirmed the order of the S.E.R.B. on an administrative appeal. The Court of Appeals affirmed the Common Pleas Court.

State v. Castagnola, 2013-Ohio-1215, was an appeal from Mr. Castagnola's convictions for multiple offenses in two separate cases. The offenses were described as "criminal damaging, vandalism, criminal trespass, possession of criminal tools, two counts of retaliation, and multiple forfeiture specifications" in one case and "pandering sexually oriented matter involving a minor" in the other case. He was convicted by a jury in the first case and by the trial court in the second case. On appeal he alleged error by the trial court in not suppressing a search and seizure of his computer, by convicting him of the pandering charge on insufficient evidence, by not merging offense, and by imposing consecutive sentences without making required findings. The Court of Appeals affirmed the trial court on the first two assignments of error, reversed and remanded on the merger issue, and, because his sentence may change following the merger, did not address the assignment of error involving the consecutive sentences.

Flaughers v. Thomas, 2013-Ohio-1217 reversed a decision of the Summit County Probate Court that entered a judgment in favor of the defendants/appellees following a jury trial. The issue on appeal involved whether the trial court erred by not granting a motion for summary judgment filed by the plaintiff-appellant. The appellant argued that the United States Bankruptcy Court had determined that the appellees had embezzled assets from the decedent's estate. The appellant had been appointed the administrator of the estate. The Court of Appeals found that the issue of whether the appellees had embezzled or concealed the estate's assets had been determined by the Bankruptcy Court and that determination was res judicata on the Probate Court. The Court of Appeals held that while the issue of liability had been determined, the issue of damages was not reached by the Bankruptcy Court. It remanded the case to the Probate Court for a determination on that issue.

State v. Lamp, 2013-Ohio-1219 reversed a decision of the Summit County Common Pleas Court which had granted the defendant's motion to dismiss the case on grounds of double jeopardy. Mr. Lamp had been charged with breaking and entering in the Common Pleas Court, a fifth degree felony, and with theft in a municipal court, a first degree misdemeanor. After pleading guilty to the theft charge, he filed the motion for dismissal on double jeopardy grounds. The trial court granted the motion, but the Court of Appeals reversed. The appellate court found that when determining whether there is a double jeopardy violation for successive prosecutions, the trial court must examine the elements of each offense. In this case the trial court did not conduct an examination of the elements of each offense, but focused on whether there was a merger of the two offenses. The Court of Appeals reversed and remanded so that the trial court could conduct an examination of the elements to determine if either statute required proof of a fact that the other statute did not require.

Rivers v. Cashland, 2013-Ohio-1225 was an appeal from a decision of the Summit County Court of Common Pleas granting summary judgment on several claims raised by the plaintiff-appellant. The claims included disability discrimination, racial discrimination, sexual discrimination, retaliatory discharge for filing a worker's compensation claim, retaliation for making a discrimination complaint, negligent supervision and training, and intentional infliction of emotional distress. The Court of Appeals reversed the trial court on the claims regarding disability discrimination, racial discrimination, sexual discrimination, retaliatory discharge for filing a worker's compensation claim, and negligent supervision and training. It affirmed the trial court on the granting of summary judgment on the issues of retaliation for making a discrimination claim and for intentional infliction of emotional distress. The case was then remanded for further proceedings.

Judge Christopher Collier's Criminal Docket for Monday, October 4, 2010

Medina County Prosecutor Dean Holman reports that the following defendants appeared in Judge Collier's courtroom for criminal cases on Monday, October 4, 2010:

James Brooks, 33, of Chestnut Street in Wadsworth, was sentenced to 14 months in prison on one count of Domestic Violence, a fourth-degree felony.

William Grunder, 46, of James Way in Strongsville, was sentenced to six month of residential community control sanctions on one count of Theft of a License Plate, a fifth-degree felony.

Mitchell Wegner, 24, of North Ridge Street in Monroeville, was sentenced to six months of residential community control sanctions on one count of Possession of Marijuana, a fifth-degree felony. He also was ordered to forfeit $186 and his vehicle to law enforcement.

Edward Adkins, 52, of Medina Street in Lodi, pleaded not guilty to two counts of Driving Under the Influence of Drugs or Alcohol, both of which are fourth-degree felonies. A jury trial is scheduled for January 18.

Ashley Ligas, 21, of Sussex Drive in Clinton, pleaded not guilty to one count of Receiving Stolen Property, a fifth-degree felony. A jury trial is scheduled for January 12.

Benjamin Merold, 27, of Substation Road in Brunswick, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for January 5.

Eric Miller, 28, of West Washington Street in Medina, pleaded no contest to two counts of Trafficking in Marijuana, both of which are fifth-degree felonies. Sentencing is scheduled for November 15.

Robin Moore, 38, of Whitehall Drive in Berea, pleaded not guilty to one count of Theft of Credit Cards, a fifth-degree felony. A jury trial is scheduled for January 5.

Michael Reese, 35, of Mansfield, pleaded guilty to the following charges: one count of Rape and one count of Kidnapping, both of which are first-degree felonies; and one count of Gross Sexual Imposition, a third-degree felony. He was sentenced to three years in prison, to be served consecutively to his current sentence. Reese will be released from prison in 2017. He also was classified as a Tier III Sex Offender.

Alexander Tomovich, 36, of West 130th Street in Brunswick, pleaded not guilty to two counts of Breaking and Entering, both of which are fifth-degree felonies. A jury trial is scheduled for January 18.

Judge Kimbler's Criminal Sentences for October 7, 2010

Medina County Prosecutor Dean Holman reports that Judge Kimbler sentenced the following defendants on Thursday, October 7, 2010:

Nichole Fenick, 33, of Valley Drive in Medina, was sentenced to three years of community control sanctions on one count of Illegal Processing of a Drug Document, a fourth-degree felony and five counts of Deception to Obtain Dangerous Drugs, all of which are fifth-degree felonies.

Michael Leskin, 38, of Laurel Road in Brunswick, was sentenced to one year in prison on one count of Theft of a Motor Vehicle, a fourth-degree felony.

Eric D. Brown, 24, of Pearl Street in Youngstown, was sentenced to one year supervision for Carrying a Concealed Weapon, a first degree misdemeanor. Judge Kimbler also ordered to pay a $1000.00 fine and pay court costs. Mr. Brown also agreed to forfeit the firearm involved in the charge.

Two Defendants Change Pleas in Judge Kimbler's Court

Medina County Prosecutor Dean Holman reports that the following defendants appeared in Judge Kimbler's courtroom on Thursday, October 7, 2010 and entered a change of plea:

Michael Barber, 30, of Biggs Road in Grafton, pleaded guilty to two counts of Burglary, both of which are second-degree felonies and one count of Possession of Criminal Tools, a fifth-degree felony. Sentencing is scheduled for November 18.

Nathan Haynes, 36, of Wakefield Drive in Akron, pleaded no contest to one count of Possession of Cocaine, a fifth-degree felony. Sentencing is scheduled for November 18.

Judge Kimbler Arraignments for October 7, 2010

Medina County Prosecutor Dean Holman reports that the following defendants appeared in Judge Kimbler's courtroom for arraignments on their indictments:

Matthew Arnold, 35, of Beck Street in Wadsworth, pleaded not guilty to two counts of Trafficking in Marijuana within the Vicinity of a Juvenile, both of which are fourth-degree felonies. A jury trial is scheduled for December 6.

Gregory Blackwood, 49, of South Boulevard in Wadsworth, pleaded not guilty to one count of Domestic Violence, a fourth-degree felony. A jury trial is scheduled for December 7.

Mason Chalmers, 23, of Old Post Street in Olmsted Falls, pleaded not guilty to one count of Breaking and Entering and one count of Theft, both of which are fifth-degree felonies. A jury trial is scheduled for November 18.

Elizabeth Harper, 28, of Bank Street in Lodi, pleaded not guilty to one count of Possession of Heroin, a fifth-degree felony. A jury trial is scheduled for December 8.

Scott Wilkes, 38, of Cherry Street in West Salem, pleaded not guilty to one count of Forgery, a fifth-degree felony. A jury trial is scheduled for December 8.

Kerry Williams, 18, of William Drive in Brunswick, pleaded not guilty to one count of Trafficking in Marijuana, a fifth-degree felony. A jury trial is scheduled for November 30.

Jason Zappe, 26, of Elyria Street in Lodi, pleaded not guilty to one count of Possession of Heroin, a fifth-degree felony. A jury trial is scheduled for December 7.

Judge Collier's Criminal Docket for October 4, 2010

Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Collier's courtroom on Monday, October 4, 2010:

James Brooks, 33, of Chestnut Street in Wadsworth, was sentenced to 14 months in prison on one count of Domestic Violence, a fourth-degree felony.

William Grunder, 46, of James Way in Strongsville, was sentenced to six month of residential community control sanctions on one count of Theft of a License Plate, a fifth-degree felony.

Mitchell Wegner, 24, of North Ridge Street in Monroeville, was sentenced to six months of residential community control sanctions on one count of Possession of Marijuana, a fifth-degree felony. He also was ordered to forfeit $186 and his vehicle to law enforcement.

Edward Adkins, 52, of Medina Street in Lodi, pleaded not guilty to two counts of Driving Under the Influence of Drugs or Alcohol, both of which are fourth-degree felonies. A jury trial is scheduled for January 18.

Ashley Ligas, 21, of Sussex Drive in Clinton, pleaded not guilty to one count of Receiving Stolen Property, a fifth-degree felony. A jury trial is scheduled for January 12.

Benjamin Merold, 27, of Substation Road in Brunswick, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for January 5.

Eric Miller, 28, of West Washington Street in Medina, pleaded no contest to two counts of Trafficking in Marijuana, both of which are fifth-degree felonies. Sentencing is scheduled for November 15.

Robin Moore, 38, of Whitehall Drive in Berea, pleaded not guilty to one count of Theft of Credit Cards, a fifth-degree felony. A jury trial is scheduled for January 5.

Michael Reese, 35, of Mansfield, pleaded guilty to the following charges: one count of Rape and one count of Kidnapping, both of which are first-degree felonies; and one count of Gross Sexual Imposition, a third-degree felony. He was sentenced to three years in prison, to be served consecutively to his current sentence. Reese will be released from prison in 2017. He also was classified as a Tier III Sex Offender.

Alexander Tomovich, 36, of West 130th Street in Brunswick, pleaded not guilty to two counts of Breaking and Entering, both of which are fifth-degree felonies. A jury trial is scheduled for January 18.

Judge Kimbler Miscellaneous Journal Entries in Criminal Cases for the Week of September 27, 2010

Judge James L. Kimbler issued the following miscellaneous journal entries in criminal cases during the week of September 27 through October 1, 2010:

State of Ohio v. Jeffrey M. Holcom, Case No. 10-CR-0419: Motion to continue arraignment granted. New arraignment date of September 30, 2010 at 1:30 pm.

State of Ohio v. Kyle R. Robison, Case No. 10-CR-0264: Motion for continuance of jury trial granted. Jury trial is now scheduled for November 15, 2010 at 9:00 am.

State of Ohio v. Schawn P. Schrubb, Case No. 10-CR-0137: Court hereby reschedules the defendant’s sentencing from September 23, 2010 to October 28, 2010 at 8:30 am. Bond is revoked.

State of Ohio v. Jacob Packard, Case No. 10-CR-0160: Hearing on motion to suppress evidence is scheduled for October 15, 2010 at 2:00 pm. Jury trial scheduled for December 1, 2010 at 9:00 am.

State of Ohio v. Carl J. Curry, Case No. 10-CR-0206: Attorney Thomas Kelly is allowed to withdraw as counsel for Mr. Curry. Court appoints Attorney Ed Bowers to represent Mr. Curry. Jury trial is continued until November 9, 2010 at 9:00 am.

State of Ohio v. Lisa M. Elfers, Case No. 10-CR-0350: Jury trial continued until November 1, 2010 at 9:00 am.

State of Ohio v. Jessica L. Graham, Case No. 10-CR-0330: Hearing on motion to suppress evidence set for October 21, 2010 at 1:30 pm.

State of Ohio v. Joseph M. Tracy, Case No. 10-CR-0311: Hearing previously scheduled for September 23, 2010 is hereby continued until October 1, 2010 at 1:30 pm.

State of Ohio v. Douglas S. Kirtley, Case No. 09-CR-0032: Sentencing hearing is hereby continued until October 21, 2010 at 8:30 am.

State of Ohio v. Gregory A. Blackwood, Case No. 10-CR-0455: Arraignment continued until October 7, 2010 at 8:30 am.

State of Ohio v. Perry W. Avery, JR., Case No. 10-CR-0398: Hearing scheduled on motion to suppress evidence for October 8, 2010 at 9:30 am.

State of Ohio v. Ryan A. Walter, Case No. 10-CR-0286: Change of plea hearing continued until September 30, 2010, at 8:30 am.

Miscellaneous Criminal Case Journal Entries for Week of September 20, 2010

Judge Kimbler filed the following journal entries in criminal cases the week of September 20 through September 24, 2010:

State of Ohio v. James E. Polanski, Case No. 10-CR-0261: Motion by the defense to continue the sentencing hearing is granted. New sentencing date is October 7, 2010 at 8:30 am.

State of Ohio v. Alex R. Huffman, Case No. 10-CR-0247: Motion by the defense to reinstate bond is scheduled for hearing on October 1, 2010 at 1:30 pm.

State of Ohio v. Stacey K. Wilmington, Case No. 10-CR-0342: Motion to continue the jury trial is granted. New trial date is October 19, 2010 at 9:00 am.

State of Ohio v. Max A. Perino, Case No. 10-CR-0149: Motion to convert the jury trial scheduled for September 27, 2010 is hereby converted to a change of plea hearing.

State of Ohio v. Angel M. Perry, Case No. 10-CR-0118: Motion by the defendant to continue the jury trial set for October 25, 2010 is denied.

State of Ohio v. Zachary T. Flinn, Case No. 09-CR-0101: Motion of the defendant to continue the probation violation hearing is granted. New hearing date is October 7, 2010 at 8:30 am.

State of Ohio v. Zachary T. Flinn, Case No. 08-CR-0308: Motion of the defendant to continue the probation violation hearing is granted. New hearing date is October 7, 2010 at 8:30 am.

State of Ohio v. Michael A. Porach, Case No. 10-CR-0208: Due to another jury trial going forward, the jury trial in this case is continued until October 18, 2010 at 9:00 am.

State of Ohio v. Antwon D. Boggan, Case No. 10-CR-0426: Motion of the State to advance the trial date is granted and the jury trial is now scheduled for November 9, 2010 at 9:00 am.

State of Ohio v. Dustin C. Niemann, Case No. 10-CR-0225: The Court hereby continues the hearing set for September 24, 2010 to October 1, 2010 at 10:30 am.

State of Ohio v. Jennifer L. Overdorf, Case No. 06-CR-0180: Defendant’s motion to modify her sentence is denied.

State of Ohio v. Bryan P. Carlton, Case No. 10-CR-0181: Defendant’s motion to continue the arraignment is granted and the new arraignment date is September 30, 2010 at 8:30 am.

Judge Christopher Collier's Criminal Docket for Monday, September 20, 2010

Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Collier's courtroom on September 20, 2010 for criminal cases:

Sherri Hawkins-Smalls, 41, of Beverly Hills Drive in Brunswick, was sentenced to six months in prison on two counts of Trafficking in Cocaine and one count of Possession of Cocaine, all of which are fifth-degree felonies.

Glenda Alfano, 59, of Martin Court in Medina, pleaded no contest to one count of Receiving Stolen Property, Credit Card and one count of Forgery, both of which are fifth-degree felonies. Sentencing is scheduled for November 1.

Robert Anders, 25, of Hazelwood Avenue in Barberton, pleaded not guilty to one count of Trafficking in Drugs, Counterfeit Controlled Substance, a fifth-degree felony. A jury trial is scheduled for December 15.

Pamela Bucci, 20, of York Road in Parma Heights, pleaded not guilty to one count of Trafficking in Marijuana, a fifth-degree felony. A jury trial is scheduled for December 20.

Dirk Dowdley Jr., 22, of Olympia Road in Cleveland, pleaded not guilty to one count of Possession of Drugs, a fifth-degree felony. A jury trial is scheduled for December 20.

Jeramiah Haugen, 29, of Springbrook Drive in Medina, pleaded not guilty to one count of Trafficking in Marijuana, a fifth-degree felony. A jury trial is scheduled for December 5.

Barry Holland, 26, of 33 Street S.W. in Barberton, pleaded not guilty to one count of Tampering with Evidence, a third-degree felony, and two counts of Theft, both of which are fifth-degree felonies. A jury trial is scheduled for November 17.

David Reed, 49, of Bronson Street in Medina, pleaded not guilty to one count of Trafficking in Crack Cocaine, a fourth-degree felony, and two counts of Trafficking in Cocaine, both of which are fifth-degree felonies. A jury trial is scheduled for November 10.

Anthony Waple, 24, of Pearl Road in Strongsville, pleaded not guilty to two counts of Trafficking in Marijuana, both of which are fifth-degree felonies. A jury trial is scheduled for December 20.

Judge Collier's Criminal Docket for September 7, 2010

Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Collier's courtroom on September 7, 2010:

Larry Adkins, 61, of Eric Lane in Wadsworth, was sentenced to five years of community control sanctions, with 180 days in jail, on one count of Menacing by Stalking, a fourth-degree felony. He also was ordered to be electronically monitored for the remainder of his probation after he is released from jail; not to have any contact with the victim and not to be within one-quarter mile of the victim; to pay restitution to the victim; to undergo anger management counseling; and to forfeit all his weapons to law enforcement.

Zackary Burgess, 21, of Grafton Road in Grafton, was sentenced to one year in prison for a probation violation on an original charge of Failure to Comply with a Police Officer, a third-degree felony.

Daniel Curtis, 36, of West Bergey Street in Wadsworth, was sentenced to nine months in prison on one count of Theft, a fifth-degree felony. He also was ordered to pay $1,100 in restitution.

Ashley Krettler, 23, of Stone Road in Litchfield, was sentenced to two years of community control sanctions on one count of Forgery, a fifth-degree felony.

Bradley Sheridan, 26, of Bradey Avenue in Barberton, was sentenced to nine months in prison for a probation violation on original charges of Theft and Breaking and Entering, both of which are fifth-degree felonies.

Jeremy Stafford, 21, of Congress Street in West Salem, was sentenced to nine months in prison for a probation violation on an original charge of Possession of Cocaine, a fifth-degree felony.

James Tosatto, 46, of Boston Road in Brunswick, was sentenced to 18 months in prison on one count of Domestic Violence, a fourth-degree felony.

Sarah Vaccarelli, 31, of Maplewood Farms in Medina, was sentenced to one year in prison on three counts of Forgery, all of which are fifth-degree felonies.

Kyle Copley, 22, of Skypark Drive in Wadsworth, pleaded not guilty to one count of Burglary, a second-degree felony. A jury trial is scheduled for November 17.

Kenneth Cummings, 32, of Triskett Road in Cleveland, pleaded not guilty to the following charges: one count of Trafficking in Crack Cocaine, a fourth-degree and a charge that carries a forfeiture specification; one count of Trafficking in Cocaine within the Vicinity of a Juvenile or School, a fourth-degree felony; and one count of Trafficking in Cocaine, a fifth-degree felony. A jury trial is scheduled for November 15.

Martez Hope, 18, of Pearl Road in Brunswick, pleaded not guilty to one count of Robbery, a second-degree felony. A jury trial is scheduled for November 8.

Amie Moore, 20, of Redfern Road in Chippewa Lake, pleaded not guilty to one count of Theft of a Dangerous Drug, a fourth-degree felony. A jury trial is scheduled for December 8.

Carla Rohr, 27, of Old Eagle Drive in Brunswick, pleaded no contest to one count of Permitting Drug Abuse, a fifth-degree felony. Sentencing is scheduled for October 12.

Karen Werner, 46, of Beverly Hills Drive in Brunswick, pleaded guilty to two counts of Trafficking in Cocaine, both of which are fifth-degree felonies. Sentencing is scheduled for October 12.

Judge Kimbler's Criminal Docket for September 16, 2010

Medina County Prosecutor Dean Holman reports that the following people appeared in Judge Kimbler's court September 16:

Greg Finnegan, 47, of Beverly Hills Drive in Brunswick, was sentenced to three years of community control sanctions on one count of Trafficking in Drugs and one count of Trafficking in Cocaine, both of which are fifth-degree felonies.

Darnell Milton, 41, of East 110th Street in Cleveland, was sentenced to three years of community control sanctions on one count of Theft of a Motor Vehicle, a fourth-degree felony.

Marvin Neal, 23, of Bursley Road in Spencer, was sentenced to four years in prison on two counts of Felonious Assault, both of which are second-degree felonies. One of the charges specifies that the victim was pregnant at the time of the assault.

William Robinson, 29, of Lansing Avenue in Cleveland, was sentenced to six months in prison on one count of Breaking and Entering, both of which are fifth-degree felonies.

Kevin Taylor, 21, of South Medina Line Road in Wadsworth, was sentenced to 180 days in jail on one count of Failure to Comply with a Police Officer, a third-degree felony.

Nicholas Dufala, 23, of Hamilton Road in Medina, pleaded not guilty to two counts of Theft of a Credit Card, both of which are fifth-degree felonies. A jury trial is scheduled for September 16.

Ryan Johnson, 33, of Euclid Avenue in Cleveland, pleaded guilty and was sentenced to six months in prison on one count of Forgery, a fifth-degree felony.

Michael Pesta, 31, of Laurel Road in Brunswick, pleaded not guilty to one count of Trafficking in Marijuana and three counts of Trafficking in Cocaine, all of which are fifth-degree felonies. A jury trial is scheduled for October 26.

Sarah Sicking, 29, of Bennington Boulevard in Brunswick, pleaded not guilty to one count of Robbery, a second-degree felony. A jury trial is scheduled for November 15.

Joseph Tracy, 32, of Sunset Drive in Lodi, pleaded not guilty to the following charges: three counts of Pandering Sexually Oriented Matter Involving a Minor, all of which are second-degree felonies and 16 counts of Illegal Use of a Minor in Nudity Oriented Material or Performance, all of which are fifth-degree felonies. These are supplemental charges to Tracy’s original charge of one count of Illegal Use of a Minor in Nudity Oriented Material or Performance, a fifth-degree felony. A jury trial is scheduled for October 18.

Noah Torres, 21, of Pearl Road in Brunswick, pleaded not guilty to one count of Tampering with Evidence, a third-degree felony. A jury trial is scheduled for November 16.

Ashley Tucker, 22, of South Hawkins Avenue in Akron, pleaded no contest to one count of Theft of Credit Cards, a fifth-degree felony. Sentencing is scheduled for October 28.

Jeffery Withrow, 44, of Columbia Road in Valley City, pleaded not guilty to one count of Escape, a second-degree felony. A jury trial is scheduled for November 22.

Two Women Change Plea in Drug Trafficking Cases

Two women who were each charged with trafficking in drugs appeared in Judge Kimbler's courtroom on Tuesday, September 14, and changed their pleas. They were Elizabeth K. O'Connor and Desiree M. O'Neill.

Ms. O'Connor was charged with two counts of Trafficking in Drugs, Oxycodone, a Schedule II drug, with each count being a fourth degree felony. Ms. O'Connor, 48, who lives on West Washington Street in Medina, Ohio will be sentenced on October 21, 2010, following a pre-sentence investigation. Judge Kimbler continued her bond while her case is pending for sentence.

Ms. O'Neill was charged with two counts of Trafficking in Drugs, Cocaine, a Schedule II drug, with each count being a fifth degree felony. Ms. O'Neill, 25, who lives on Beverly Hills Drive in Brunswick, Ohio will also be sentenced on October 21, 2010, following a pre-sentence investigation. At the request of her defense attorney, Ms. O'Neill will be evaluated for placement in a community based correctional facility in either Summit or Lorain county. Judge Kimbler also continued Ms. O'Neill's bond while her case is pending for sentence.

Akron Woman Gets Jail Sentence for Obstructing a Police Cruiser

On Thursday, September 2, 2010, Judge James L. Kimbler sentenced Amanda D. Young, 32, of Marcy Street in Akron to 13 days in jail for obstructing a police cruiser that was responding to a complaint of a street disturbance. Judge Kimbler gave Ms. Young credit for the 13 days she spent in jail pending trial and waived court costs. Ms. Young was also charged with taking part in a riot in Medina Municipal Court. She was ordered to pay $536.50 in court costs for that offense.

Ms. Young is the sister of a woman who was dating a man named Frank Gauthier. Mr. Gauthier was involved in a disturbance on West Union Street in Medina. When a Medina police officer came to the scene, Ms. Young stepped in front of the cruiser in an apparent effort to prevent the officer from approaching Mr. Gauthier. The Medina officer's cruiser was only obstructed for a few moments, and eventually Mr. Gauthier was arrested for having weapons while under a disability, tampering with evidence, and carrying a concealed weapon. Mr. Gauthier was sentenced by Judge Collier for these offenses and received a one year prison sentence.

Court Holds Indictment Lacking Culpable Mental State Is Not Defective When It Tracks Language of Statute

State v. Horner, Slip Opinion No. 2010-Ohio-3830.
Lucas App. No. L-07-1224, 2008-Ohio-6169. Certified question answered, and judgment of the court of appeals affirmed.
Lundberg Stratton, O'Connor, O'Donnell, and Cupp, JJ., concur.
Lanzinger, J., concurs in part and dissents in part.
Pfeifer, J., dissents.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-3830.pdf

(Aug. 27, 2010) – In a decision announced today, the Supreme Court of Ohio overruled its 2008 decision in State v. Colon and ruled that:
1) An indictment that charges an offense by tracking the language of the criminal statute is not defective for failure to identify a culpable mental state when the statute itself fails to specify a mental state.
2) When the General Assembly includes a culpable mental state in one discrete clause, subsection, or division of a statute, but not in another discrete clause, subsection, or division of the same statute, courts must apply the analysis prescribed in the Supreme Court’s decisions in State v. Wac (1981) and State v. Maxwell (2002) to determine the necessary mental state where none is specified.
3) By failing to enter a timely objection to a defect in an indictment, a defendant waives all but plain error on appeal.

The Court’s 4-2 majority opinion was authored by Justice Evelyn Lundberg Stratton.

In order to convict a defendant of a criminal offense, the state must prove: 1) that the accused committed an act that is prohibited by law (in Latin, the actus reus), and 2) that in committing the prohibited conduct, the accused acted with a specified guilty or “culpable” mental state (in Latin, the mens rea) which is set forth in the section of law defining that offense. The culpable mental states set forth in Ohio criminal statutes, in increasing order of severity, are “negligently,” “recklessly,” “knowingly,” and “intentionally.”

R.C. 2901.21(B) provides that when a state law that defines a criminal offense does not specify a required mens rea for that offense, courts hearing charges under that statute must determine whether or not the language of the statute “plainly indicates a purpose to impose strict criminal liability for the conduct described in that section.” If it is determined that the legislature intended to impose strict liability, then the state is required to prove at trial only that the accused engaged in the prohibited conduct, and is not required to establish any culpable mental state. If it is determined that the statutory language does not impose strict liability, R.C. 2901.21(B) requires the state to prove at trial that the defendant acted with at least the guilty mental state of “recklessly.”

In this case, Gregory Horner of Toledo was indicted on six criminal counts arising from an incident in which he and a codefendant assaulted two other men during a robbery. One charge was dismissed by the state. Two of the five remaining counts in the indictment alleged that Horner had committed aggravated robbery in violation of R.C. 2911.01(A)(3), which prohibits the infliction or attempted infliction of “serious physical harm” on another person during the commission of a theft offense. R.C. 2911.01(A)(3) does not specify a culpable mental state. The state did not allege and the grand jury did not find that Horner had acted with any specified mens rea in committing the aggravated robbery counts in his indictment. Horner did not object to the absence of a mens rea in the aggravated robbery counts of the indictment at any point in the trial court proceedings. He entered no-contest pleas to each of the five counts of the indictment, and was convicted on all counts and sentenced to 11 years in prison.

In a subsequent appeal, Horner cited the Supreme Court’s 2008 holding in State v. Colon that failure by the state to include a required guilty mental state of “recklessly” in a defendant’s indictment for the crime of robbery rendered his indictment fatally defective, and that the defendant’s failure to object to that error at the time of his trial did not bar him from raising it later on appeal. Horner asked the 6th District Court of Appeals to rule that he was entitled to a new trial because his indictment for aggravated robbery lacked a mens rea and therefore was invalid on the same basis as the indictment in Colon. The 6th District denied the appeal, stating that in Colon the Supreme Court had considered only the mens rea required for a violation of the robbery statute, R.C. 22911.02(A)(2), and therefore its holding applied only to indictments for that offense and not to indictments for the separate offense of aggravated robbery chargedunder R.C. 2911.01(A)(3).

The 6th District subsequently certified that its decision on the applicability of Colon was in conflict with a ruling in a similar case by another appellate district. The Supreme Court agreed to review the case to resolve the conflict between districts.

Writing for the Court in today’s decision, Justice Stratton observed that, prior to the Colon decision, prosecutors and trial courts across the state had relied on the Supreme Court’s holdings in State v. Wac and State v. Maxwell. In those cases, she noted, the Court ruled that where one clause or section of a criminal statute sets forth a required mens rea for one form or element of a crime, but a different section of the same statute does not include a mens rea, the legislature’s omission of a mens rea in the latter provision indicated intent that the element set forth in the latter section of the law be considered a “strict liability” element for which the state was not required to prove any mens rea. Applying that standard to this case, Justice Stratton said the legislature’s inclusion of a mens rea in another section of the statute under which Horner was charged, R.C. 2911.01(B), means that the exclusion of a required mens rea in R.C. 2911.01(A)(3) showed clear legislative intent that the latter section be read as a strict liability provision.

Justice Stratton also wrote that, despite a second opinion (Colon II) in which the Supreme Court reconsidered and limited its holding in Colon I to cases where a defective indictment leads to multiple other errors by a trial court, “(T)he effect of our Colon holdings meant that for the first time, an indictment that charged an offense in the exact language of the Revised Code could still be defective when the statute itself failed to specify a culpable mental state. As a result, Colon I and Colon II have been called ‘a boon to defendants, a headache to appellate courts, and a nightmare to prosecutors.’ ... Today we recognize the confusion created by Colon I and II and hold that when an indictment fails to charge a mens rea element of the crime, but tracks the language of the criminal statute describing the offense, the indictment provides the defendant with adequate notice of the charges against him and is, therefore, not defective.”

“Consequently, we respond to the certified question by holding that Colon I and (Colon II) are inapplicable to the offense of aggravated robbery in violation of R.C. 2911.01(A)(3). In fact, Colon I is overruled, and Colon II is overruled to the extent that it holds that such an indictment is defective. Further, we hold that failure to timely object to a defect in an indictment constitutes a waiver of the error. ... Any claim of error in the indictment in such a case is limited to a plain-error review on appeal. ... (B)ecause the language of Horner’s indictment charging him with aggravated robbery tracked the aggravated robbery statute, R.C. 2911.01(A)(3), and because the statute does not require any further mens rea requirement beyond that encompassed in the theft portion of the statute, the grand jury considered the essential elements of aggravated robbery. Accordingly, we uphold the appellate court’s determinations that the indictment was not defective and that there was no plain error, and we affirm the judgment of the court of appeals.”

Justice Stratton’s opinion was joined by Justices Maureen O’Connor, Terrence O’Donnell and Robert R. Cupp.

Justice Judith Ann Lanzinger concurred in judgment and agreed with the first and third paragraphs of the majority opinion syllabus. She dissented, however, from the majority holding that because another section of R.C. 2911.01 includes the required mens rea of “knowingly,” the absence of a required mens rea in R.C. 2911.01(A)(3) indicated legislative intent to impose strict liability for the element that a defendant inflicted or attempted to inflict physical harm.

She wrote: “R.C. 2901.21(B) establishes the mens rea of recklessness as the default standard of liability when no mens rea is specified ... The majority has mistakenly held that the lack of mens rea alone is sufficient to indicate an intention to impose strict liability, stating ‘[b]y choosing language in R.C. 2911.01(A)(3) that makes it a crime to merely inflict or attempt to inflict serious physical harm, as opposed to requiring a purpose or intent to injure, the General Assembly ... has indicated its purpose to impose strict liability.’ But to ‘inflict or attempt to inflict serious physical harm,’ as that phrase is used in R.C. 2911.01(A)(3), implies action on the part of a defendant that requires a mental state of some degree, unless it has been clearly dispensed with. The General Assembly explicitly provides in R.C. 2901.21(B) that recklessness is the default mens rea, unless there is a clear indication that strict liability is intended.”

Justice Paul E. Pfeifer entered a dissent in which he agreed with Justice Lanzinger’s view that the physical harm form of aggravated robbery set forth in R.C. 2911.01(A)(3) is not a strict liability offense but is rather an offense for which the state must show the “default” culpability of recklessness set forth in R.C. 2901.21(B). Justice Pfeifer wrote further that, by holding that the aggravated robbery charge brought against Horner was a strict liability offense, the majority had made it unnecessary and therefore improper for the Court to overturn its earlier decisions in Colon I and Colon II in order to resolve this case.

He wrote: “Had the majority found recklessness as the operative mens rea here, then Colon I and Colon II would have been fair game, since Colon I and Colon II involved a situation in which R.C. 2901.21(B) imposed a mens rea of recklessness and the indictment failed to set forth that mens rea. Here, the majority overrules Colon I and Colon II even before determining whether they are applicable. You can overrule the Colon cases or you can find strict liability for an R.C. 2911.01(A)(3) offense, but you cannot do both in this case.”

Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.

Contacts
David F. Cooper, 419.213.2061, for the state and Lucas County Prosecutor’s Office.

John F. Potts, 419.255.2800, for Gregory Horner.

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Judge Kimbler Arraignments for August 26, 2010

Medina County Prosecutor Dean Holman reports that the following defendants appeared in Judge Kimbler's courtroom on Thursday, August 26, 2010, for arraignments:

Eric Bruner, 28, of Winchester Court in Strongsville, pleaded not guilty to one count of Possession of Heroin, a fifth-degree felony. A jury trial is scheduled for September 28.

Candice Kane, 24, of Maddock Road in North Ridgeville, pleaded not guilty to one count of Possession of Heroin, a fifth-degree felony. A jury trial is scheduled for October 26.

Michael Leskin, 38, of Pearl Road in Brunswick, pleaded no contest to one count of Theft of a Motor Vehicle, a fourth-degree felony. Sentencing is scheduled for October 7.

David Resovsky, 42, of Branch Road in Medina, pleaded not guilty to three counts of Trafficking in Drugs, one of which is a fourth-degree felony and two of which are fifth-degree felonies. A jury trial is scheduled for October 27.

Michelle Riggs, 25, of McAllister Road in Akron, pleaded not guilty to the following charges: one count of Receiving Stolen Property, Motor Vehicle, a fourth-degree felony, and two counts of Theft, and one count of Receiving Stolen Property, all of which are fifth-degree felonies. A jury trial is scheduled for September 29.

Medina Man Pleads Guilty to Robbery

Lucas D. Carter of Jackson Street in Medina, Ohio, entered a change of plea to one count of Robbery in Judge Kimbler's court on Monday, August 9, 2010. Originally Mr. Carter was charged with two counts of Robbery. Count I was a second degree felony and Count II was a third degree felony. The State moved to dismiss Count I in exchange for Mr. Carter entering a guilty plea to Count II. Following the dismissal of Count I, Mr. Carter entered a guilty plea to Count II. Judge Kimbler continued Mr. Carter's bond and ordered a pre-sentence investigation. Sentencing is set for September 23, 2010.

Judge Collier's Criminal Docket for August 9, 2010

Medina County Prosecutor Dean Holman reports that the following defendants appeared in Judge Collier's court for criminal cases on Monday, August 9, 2010:

Floyd Henderson, 54, of Borden Street in Youngstown, was sentenced to two years of community control sanctions on one count of Possession of Cocaine, a fifth-degree felony. His vehicle was ordered to be forfeited to law enforcement.

Daniel O’Neill, 30, of Exchange Park Drive in Medina, was sentenced to six months in prison on one count of Possession of Drugs, a fifth-degree felony.

Mitchel Osborn, 31, of Royal Crest Drive in Seville, was sentenced to five years of community control sanctions on one count of Theft, a fifth-degree felony. He also was ordered to pay $1,100 in restitution to his victim.

Colin Wojdacz, 29, of Seville Road in Seville, was sentenced to one year in prison on one count of Possession of Heroin, a fifth-degree felony.

Candy Brandenburg, 21, of West Tallmadge Avenue in Akron, pleaded not guilty to one count of Illegal Processing of a Drug Document, a fifth-degree felony. A jury trial is scheduled for November 15.

Sherrie Hawkins-Smalls, 41, of Beverly Hills Drive in Brunswick, pleaded guilty to the following charges: two counts of Trafficking in Cocaine and one count of Possession of Cocaine, all of which are fifth-degree felonies. Sentencing is scheduled for September 20.

Beth Oiler, 23, of 24th Street NW in Barberton, pleaded not guilty to one count of Illegal Manufacture of Drugs, a third-degree felony. A jury trial is scheduled for November 15.

David Supple, 30, of Martin Road in Akron, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for November 15.

Judge Collier Sentencings for August 2, 2010

Medina County Prosecutor Dean Holman reports that Judge Collier sentenced the following defendants on Monday, August 2:

Jeremy Emert, 19, of Norwalk Road in Medina, was sentenced to six months in prison on one count of Theft, a fifth-degree felony.

Daniel Glover, 39, of Freeman Avenue in Cleveland, was sentenced to two years of community control sanctions on one count of Trafficking in Drugs, a fourth-degree felony and two counts of Trafficking in Marijuana, both of which are fifth-degree felonies.

Melissa King, 40, of Eastern Road in Norton, was sentenced to three years in prison on one count of Identity Theft, a third-degree felony.

Judge Collier Arraignments for August 2, 2010

Medina County Prosecutor Dean Holman reports that the following defendants appeared in Judge Collier's courtroom on Monday, August 2 for arraignment:

David Bias, 24, of Grafton Road in Brunswick, pleaded not guilty to one count of Possession of Heroin, a fifth-degree felony. A jury trial is scheduled for October 4.

John Engbert, 45, of Solon Road in Oakwood Village, pleaded not guilty to one count of Possession of LSD, fourth-degree felony. A jury trial is scheduled for November 3.

Vaynette McClendon, 47, of Heatherbridge Lane in Blacklick, Ohio, pleaded not guilty to one count of Possession of Cocaine, a fifth-degree felony. A jury trial is scheduled for October 12.

Arraignments and Changes of Plea in Judge Kimbler's Courtroom on July 29, 2010

Medina County Prosecutor Dean Holman reports that the following defendants appeared in Judge Kimbler’s courtroom for arraignments or for a change of plea hearing on July 29, 2010:

Daniel Akers, 41, of Kimmich Drive in Brunswick, pleaded not guilty to one count of Domestic Violence, a fourth-degree felony. A jury trial is scheduled for September 29.

Richard Boreman, 47, of Bank Street in Lodi, pleaded not guilty to one count of Trafficking in Drugs, a fourth-degree felony. A jury trial is scheduled for September 14.

Lisa Elfers, 23, of Brendan Lane in North Olmsted, pleaded not guilty to one count of Theft and one count of Passing Bad Checks, both of which are fifth-degree felonies. A jury trial is scheduled for September 28.

Michelle Foglesong, 30, of West 81st Street in Cleveland, pleaded not guilty to one count of Possession of Heroin, a fifth-degree felony. A jury trial is scheduled for September 27.

Russell R. James, 26, of Boston Road in Strongsville, pleaded not guilty to one count of Possession of Drugs, a fifth-degree felony. A jury trial is scheduled for September 27.

Robert Krumwiede, 21, of Crestwood Avenue in Lakewood, pleaded guilty to one count of Receiving Stolen Property and one count of Possession of Cocaine, both of which are fifth-degree felonies. He was sentenced to three years of community control sanctions, with a period of time in a Community Based Correction Facility.

Darnell Milton, 40, of East 110th Street in Cleveland, pleaded no contest to one count of Theft of a Motor Vehicle, a fourth-degree felony. Sentencing is scheduled for September 16.

Marvin Neal, 23, of Bursley Road in Spencer, pleaded no contest to two counts of Felonious Assault, both of which are second-degree felonies. One of the counts carries the specification that the victim was pregnant at the time of the assault. Sentencing is scheduled for September 16.

Michael Reddish, 36, of Imagine Lane in Medina, pleaded not guilty to one count of Illegal Use of a Minor in Nudity-Oriented Material or Performance, a fifth-degree felony. A jury trial is scheduled for September 20.

Michael Scott, 28, of Hadcock Road in Brunswick, pleaded not guilty to two counts of Trafficking in Cocaine, both of which are fifth-degree felonies. A jury trial is scheduled for September 28.

Kevin Taylor, 21, of South Medina Line Road in Wadsworth, pleaded no contest to one count of Failure to Comply with a Police Officer, a third-degree felony. Sentencing is scheduled for September 16.