Ohio Supreme Court Certifications of Conflict for February of 2013

February 6, 2013

"On review of order certifying a conflict. The court determines that a conflict exists. The parties are to brief the issue stated at page 3 of the court of appeals' entry filed December 13, 2012:

"If a court commits a child to a secure facility, does R.C. 2152.83(B)(1) permit the court to conduct a classification hearing at the time of disposition?"

O'Donnell , J., dissents.

The conflict case is In re B.G., 5th Dist. No. 2011-COA-012, 2011 Ohio 5898.

In re I.A., 134 Ohio St. 3d 1447 (Ohio 2013)"

February 20, 2013

"On review of order certifying a conflict. The court determines that a conflict exists. The parties are to brief the issue stated at page 2 of the court of appeals' entry filed December 17, 2012:

"A defendant [may] benefit from a decrease in a classification and penalty of an offense by the General Assembly [that becomes effective] between the time the defendant committed the offense and the time of his sentencing on that offense[.]"

The conflict cases are State v. Gillespie, 5th Dist. No. 2012-CA-6, 2012 Ohio 3485, 975 N.E.2d 492, and State v. David, 5th Dist. No. 11-CA-110, 2012 Ohio 3984.

O'Donnell , J., dissents.

O'Connor , C.J., not participating.

State v. Taylor, 134 Ohio St. 3d 1466 (Ohio 2013)"

February 20, 2013

"On review of order certifying a conflict. The court determines that a conflict exists. The parties are to brief the issue stated at page 3 of the court of appeals' entry filed October 23, 2012:

"Is R.C. 2905.05(A) unconstitutionally overbroad?"

The conflict case is State v. Clark, 1st Dist. No. C-040329, 2005 Ohio 1324.

Cause consolidated with 2012-2042, State v. Romage, Franklin App. No. 11AP-822, 2012 Ohio 3381, 974 N.E.2d 120.

State v. Romage, 134 Ohio St. 3d 1465 (Ohio 2013)"

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.

Ninth District Court of Appeals Opinions for 3.27.2013

The Court of Appeals for the Ninth Appellate District released eight opinions on March 27, 2013. The opinions were as  follows:

State v. Austin, 2013-Ohio-1159, which was a criminal case out of Summit County. Austin listed three assignments of error. The Court affirmed on the first two assignments of error, but reversed and remanded on the third.

The Court held that the trial court did not consider whether the two offenses that Austin were sentenced on were allied offenses of similar import under a "merger" theory.

In its opinion by Judge Whitmore, the Court wrote the following:

"The record does not support the conclusion that the trial court considered and applied Johnson when it sentenced Austin. Neither the court, nor the parties ever discussed Johnson or the issue of merger. Were this Court to apply Johnson to Austin’s breaking and entering and vandalism convictions, we would be doing so in the first instance. This Court has consistently declined to do so. See, e.g., State v. Chisholm, 9th Dist. No. 26007, 2012-Ohio-3932, ¶ 22. The State here has acknowledged that the trial court did not consider Johnson and has requested that this Court remand the matter. We agree that a remand is appropriate, given our prior decisions. Therefore, this matter must be remanded to the trial court for it to apply Johnson and determine whether Austin’s offenses should merge. “Moreover, in the event that the offenses are allied, ‘the State also must have the opportunity to elect the offense[] upon which it wishes to proceed to sentencing.’” Asefi at ¶ 8, quoting State v. Ziemba, 9th Dist. No. 25886, 2012-Ohio-1717, ¶ 23. Austin’s third assignment of error is sustained solely on the basis that this matter must be remanded, consistent with the foregoing discussion."

Harper v. Chaney, 2013-Ohio-1160, which was a civil case out of Summit County. The assignment of error was:

The Court held that there was a genuine issue of material fact as to whether the danger confronted by the plaintiff was "open and obvious" and therefore held that summary judgment was improper.

The Court explained its ruling this way:

"Viewing the evidence in a light most favorable to Ms. Harper, the non-moving party, we conclude that the totality of the circumstances give rise to a question of fact regarding whether Ms. Harper would have been able to observe the step had she been looking down at the basement floor on the day of her accident. See Zambo at ¶ 9. Specifically, there was evidence of

some daylight streaming in from a basement window, which may or may not have been partially obstructed by a curtain. Further, there was evidence of sufficient lighting to descend the basement stairs, but insufficient lighting in the area beyond the basement stairs where this seemingly random step was located. While the trier of fact may ultimately find that, under these

lighting conditions, Ms. Harper was reasonably expected to discover the step and avoid the hazard, we believe that such a factual determination must be resolved in Ms. Harper’s favor at this stage of the proceedings. Accordingly, this Court concludes that a genuine issue of material fact exists as to whether, under the existing lighting conditions, the step posed an open and

obvious danger. See Marock v. Barberton Liedertafel, 9th Dist. No. 23111, 2006-Ohio-5423, ¶ 19."

State ex rel. Longville v. Akron, 2013-Ohio-1161, was a civil case out of Summit County which listed three assignments of error by the appellant and one assignment of error by the appellee.  Only one of the assignments was ruled upon and the Court reversed on that assignment. The Court of Appeals wrote the following concerning the assignment of error that it reversed on:

"In its first assignment of error, the City of Akron argues that the trial court erred in granting Ms. Longville’s motion for summary judgment because it improperly converted Ms. Longville’s request for declaratory judgment and injunction into a mandamus action, where Ms. Longville did not properly plead the elements of a mandamus action in her complaint. For the

reasons set forth below, we agree that the trial court erred."

Because it reversed on that assignment of error, it held that it did not have to reach the other assignments of error at this time.

Statev. Papczun, 2013-Ohio-1162 was a criminal case out of Summit County. The Court dismissed the appeal for a lack of a final appealable order.  In the following paragraph, the Court explained its ruling:

"In State v. Keith, 9th Dist. No. 08CA009362, 2009-Ohio-76, this Court concluded that the calculation of jail-time credit must be included in the sentencing order and that, “in order to challenge the trial court’s calculation of jail time credit, an appellant must appeal from the trial court’s entry imposing sentencing.” Id. at ¶ 8. We reasoned that an appeal from an order that denies a motion to revisit the issue of jail time credit is, essentially, an appeal from an order denying reconsideration of the sentencing order. Id. Because “[a] motion for reconsideration of a final judgment is a nullity * * * and ‘a judgment entered on a motion for reconsideration is a

nullity,’” this Court concluded that an order that denies a motion for jail time credit is not final and appealable. Id., quoting State v. Harbert, 9th Dist. No. 20955, 2002-Ohio-6114, ¶ 24-25."

State v. Porter, 2013-Ohio-1163 was another decision where the Court of Appeals concluded that the appeal was defective and therefore it did not have to address the merits of the appeal. Porter, who was convicted in the Summit County Common Pleas Court, was appealing from the dismissal of his petition for post-conviction relief. In the opinion the Court wrote the following:

"A trial court may not entertain an untimely petition for post-conviction relief

unless the petitioner shows that: (1) either he or she “was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief, or, [after the filing deadline], the United States Supreme Court recognized a new federal or state right that applies

retroactively to persons in the petitioner’s situation, and that the petition asserts a claim based on that right”; and (2) the petitioner shows that but for the constitutional error at trial, no reasonable fact-finder would have found petitioner guilty. R.C. 2953.23(A)(1)(a)-(b). Porter has made no

argument that any of these conditions apply."

Since Porter did not file a timely petition for relief, the trial court was not required to entertain the petition and the Court of Appeals affirmed the trial court's dismissal.

Thomas v. Bauschlinger, 2013-Ohio-1164, was an appeal from a decision of the Summit County Common Pleas Court dealing with several issues. The Court affirmed in part and reversed and remanded in part. The appellants, who were acting pro se, sued several officials of the City of Barberton. The lawsuit involved actions taken by the City administration and the City Police Department. The Court of Appeals affirmed the dismissal of the lawsuit with respect to members of the Police Department, the Mayor, and the City Prosecutor. The Court, however, reversed regarding the allegations made against the City's Building Inspector.

The Court explained its ruling in this paragraph:

"Here, again taking as true the facts as alleged in the complaint, the Building

Department condemned the property without an interior inspection or any further justification. Without notice to the Thomases and without providing them an opportunity to collect their personal belongings, the City demolished the property, destroying their belongings. In their prayer for relief, the Thomases maintained that they lost the use of their real and personal property due to the “willful[ ]and wanton acts” of the Appellees. Taking as true the allegations of the complaint, we cannot say that there exists no set of facts by which the Thomases could establish that [the Building inspector] acted manifestly outside the scope of his employment or with “malicious purpose, in bad faith, or in a wanton or reckless manner.” See LaSalle Bank at ¶ 19; R.C. 2744.03(A)(6)(b). Therefore, the claims against him should not have been dismissed under Civ.R. 12(b)(6). Accordingly, to the extent that the Thomases argue that the trial court erred in dismissing their claims against [the Building Inspector] on the basis of his purported political subdivision employee immunity, their assignments of error are sustained."

Young v. Young, 2013-Ohio-1165, was an appeal from a decision of the Summit County Court of Domestic Relations regarding allocation of parenting time. The Court of Appeals dismissed the appeal because the issues raised in the appeal became moot when the child who was the subject of the parenting time order turned 18. The Court explained its ruling this way:

"Once K.Y. turned 18, she ceased to be a child/minor. The domestic relations court lacks authority to order an adult to engage in companionship time with her parent. Even if the court erred by dismissing the proceedings, the remedy Father seeks is no longer available due to K.Y.’s having turned 18. Therefore, Father’s appeal is moot. See In re Wyatt, 3d Dist. No. 5-07-

45, 2008-Ohio-2115, ¶ 9; Dahmen v. Dahmen, 11th Dist. No. 2007-T-0037, 2008-Ohio-2129, ¶ 7-9; Matter of Miller, 5th Dist. No. 97-COA-01223, 1998 WL 429830, *1-2 (July 9, 1998)."

Vanderbilt v. Vanderbilt, 2013-Ohio-1222 is an appeal from the Medina County Court of Domestic Relations. Both the husband and the wife appealed from the trial court's order. The wife's appeal resulted in the Court of Appeals affirming the trial court, but the husband's appeal resulted in the Court reversing the trial court's order regarding the issue of spousal support.

The husband argued that the trial court erred by not conducting an analysis of whether a pre-nuptial agreement that concerned spousal support had

terms that were unconscionable as of the time of the divorce.

The Court set forth its reasoning in this quote from the opinion:

"The question for the trial court is not whether the spousal support terms of a prenuptial agreement are fair, but whether they are unconscionable when viewed at the time of the divorce. The burden of this demonstration is on the party alleging the unconscionability. Gross at 109-110."

Ninth District Court of Appeals Decisions 3/18-3/25/2013

The Court of Appeals for the Ninth Appellate District released seven opinions from March 18 through March 25, 2013. One opinion was released on Monday, March 18, three opinions were released on March 20, and three opinions were released on March 25, 2013.  

The opinion released on March 18 reflected an appeal that was heard by a visiting panel of judges. The decision, State v. Fiscus, 2013-Ohio-1124, involved a pro se defendant who challenged his sentence for d riving under an OVI suspension in violation of R.C. §4510.14. He argued that the sentence was too "harsh". The Court of Appeals found that the sentence was within the statutory limits and denied the appeal. 

The three opinions released on Wednesday, March 20, were the following:

Adam v. Kovitch, 2013-Ohio-1020, which involved the issue of how much weight should be granted to the parent of a child when a non-parent is granted visitation under R.C. 3109.11. That section allows for a non-parent to have visitation with a the relatives of a deceased parent. The Court of Appeals found that the trial court's decision should be affirmed and that its
decision was not against the manifest weight of the evidence. 

The following quote appears in P20 of the opinion: "As noted above, the trial court was authorized to exercise its discretion under R.C. 3109.11 to award reasonable visitation to Lindsay.  Mr. Kovitch again argues that, because he is a fit parent, his opinion is entitled to special weight.  In other words, Mr. Kovitch suggests that unless evidence is submitted that he is not a fit parent, his parental opinion supersedes all the other factors in R.C. 3109.051.  However, this argument does not have legal merit given the trial court’s statutory obligations."

Linnen Co., L.P.A. v. Roubic, 2013-Ohio-1022 deals with issues arising from the arbitration of fee disputes between attorneys under Chapter 2711 of the Ohio Revised Code. The Court of Appeals noted that while that Chapter deals with arbitration pursuant to a contractual agreement, the parties seemed to agree that the Chapter dealt with their dispute, which was a non-contractual arbitration. Therefore, the Court assumed that Chapter 2711 applied for the purposes of its analysis. The Court of Appeals upheld trial court's decision to affirm the arbitration award. At P11 through P17 there is a discussion concerning the application of Prof. Cond. R. 1.5. 

State v. Hoffman, 2013-Ohio-1021 deals with the issues raised by the murder conviction of a father of an infant child. The Court of Appeals upheld the murder conviction of the father who had argued that the trial court erred in allowing joinder of offenses; erred in convicting him of murder; and that the convictions were against the manifest weight of the evidence. 

The three opinions released on Monday, March 25, were the following:

Smith v. Esser & Sons, Inc., 2013-Ohio-1095 deals with the issue of motions for summary judgment and issues of material fact where an employee alleges violation of the statute imposing liability on employers for intentional torts committed against employees. The Court of Appeals held that the trial court erred in granting summary judgment for the employer because there was a issue of material fact whether the employer knew that the employee was "substantially certain" to be injured when the employer assigned the employee to the work site. 

State v. Frum, 2013-Ohio-1096 is a decision reversing the Wayne County Municipal Court's conviction of a defendant for violating Orrville Codified Ordinance No. 351.08. The Court of Appeals reversed but there was a dissent by one of the panel. 

Rogers v. Credit Acceptance Corp., 2013-Ohio-1097 involves whether a trial court can deny a motion for arbitration as a sanction for not complying with a discovery order. The Court of Appeals noted that there is no authority in Ohio dealing with that particular issue. It held, however, that even if a trial court could issue such an order, it was an abuse of discretion to do so in this particular case given the wording of the trial court's order that supposedly compelled the discovery. 

Ohio Supreme Certifies Conflict in Mortgage Case

The Ohio Supreme Court has certified a conflict between two appellate decisions regarding mortgage foreclosure cases. The questions certified for conflict are stated as follows:

"1. Whether a judgment decree in foreclosure is a final appealable order if it includes as part of the recoverable damages amounts advanced by the mortgagee for inspections, appraisals, property protection and maintenance, but does not include specific itemization of those amounts in the judgment.

"2. Whether a mortgagor that contests amounts expended by a mortgagee for inspections, appraisals, property protection and maintenance can challenge those amounts as part of the proceedings to confirm the foreclosure sale, and appeal any adverse ruling in an appeal of the order of confirmation."

The two decisions that are in conflict are CitiMortgage, Inc. v. Roznowski, 2012 Ohio 4901, from the Fifth District and  LaSalle Bank Natl. Assn. v. Smith, 7th Dist. No. 11 MA 85, 2012 Ohio 4040 from the Seventh District. 

Ohio Supreme Court to Resolve HB 86 Conflict

HB 86 raised the felony theft level from $500 to $1000.00. The bill stated that anyone found guilty before its effective date of 9.30.2011 but sentenced after that date for stealing less than $1000 but more than $500 would be sentenced as if for a misdemeanor. The issue then became whether the defendant was being sentenced for a felony or for a misdemeanor? That is would the sentencing entry read that the defendant was convicted for a felony, but with a misdemeanor sentence, or was convicted of a misdemeanor with a misdemeanor sentence?

This issue has caused a conflict in Ohio's courts of appeals. The Ninth has ruled that the defendant has been convicted of a felony but other appellate courts have held that such a defendant is convicted of a misdemeanor. The issue to be resolved is stated this way by the Ohio Supreme Court: "A defendant [may] benefit from a decrease in a classification and penalty of an offense by the General Assembly [that becomes effective] between the time the defendant committed the offense and the time of his sentencing on that offense[.]" 

The Ninth decision accepted for review is State v. Taylor, 2012 Ohio 5403.

Changes to R.C. 2929.13 (B)

On March 22, 2013, an amended version of R.C. 2929.13 (B) goes into effect. The changes are show below. If the text is lined through, then that means that the language was taken out of 2929.13 (B). If the text is underlined, that means that the language was added. Among other things, the new language clarifies that any prior felony conviction, not just one occurring within two years, means that a judge doesn't have to impose community control sanctions when sentencing for a non-violent fourth or fifth degree felony. 
The entire bill, which contains other changes, can be read by clicking here. 

(B)(1)(a) Except as provided in division (B)(1)(b) of this section, if an offender is convicted of or pleads guilty to a felony of the fourth or fifth degree that is not an offense of violence, the court shall sentence the offender to a community control sanction of at least one year's duration if all of the following apply:

(i) The offender previously has not been convicted of or pleaded guilty to a felony offense or to an offense of violence that is a misdemeanor and that the offender committed within two years prior to the offense for which sentence is being imposed.

(ii) The most serious charge against the offender at the time of sentencing is a felony of the fourth or fifth degree.

(iii) If the court made a request of the department of rehabilitation and correction pursuant to division (B)(1)(c) of this section, the department, within the forty-five-day period specified in that division, provided the court with the names of, contact information for, and program details of one or more community control sanctions of at least one year's duration that are available for persons sentenced by the court.

(iv) The offender previously has not been convicted of or pleaded guilty to a misdemeanor offense of violence that the offender committed within two years prior to the offense for which sentence is being imposed.

(b) The court has discretion to impose a prison term upon an offender who is convicted of or pleads guilty to a felony of the fourth or fifth degree that is not an offense of violence if any of the following apply:

(i) The offender committed the offense while having a firearm on or about the offender's person or under the offender's control.

(ii) The offender caused physical harm to another person while committing the offense.

(iii) The offender violated a term of the conditions of bond as set by the court.

(iv) The court made a request of the department of rehabilitation and correction pursuant to division (B)(1)(c) of this section, and the department, within the forty-five-day period specified in that division, did not provide the court with the name of, contact information for, and program details of any community control sanction of at least one year's duration that is available for persons sentenced by the court.

(v) The offense is a sex offense that is a fourth or fifth degree felony violation of any provision of Chapter 2907. of the Revised Code.

(vi) In committing the offense, the offender attempted to cause or made an actual threat of physical harm to a person with a deadly weapon.

(vii) In committing the offense, the offender attempted to cause or made an actual threat of physical harm to a person, and the offender previously was convicted of an offense that caused physical harm to a person.

(viii) The offender held a public office or position of trust, and the offense related to that office or position; the offender's position obliged the offender to prevent the offense or to bring those committing it to justice; or the offender's professional reputation or position facilitated the offense or was likely to influence the future conduct of others.

(ix) The offender committed the offense for hire or as part of an organized criminal activity.

(x) The offender at the time of the offense was serving, or the offender previously had served, a prison term.

(xi) The offender committed the offense while under a community control sanction, while on probation, or while released from custody on a bond or personal recognizance.

(c) If a court that is sentencing an offender who is convicted of or pleads guilty to a felony of the fourth or fifth degree that is not an offense of violence believes that no community control sanctions are available for its use that, if imposed on the offender, will adequately fulfill the overriding principles and purposes of sentencing, the court shall contact the department of rehabilitation and correction and ask the department to provide the court with the names of, contact information for, and program details of one or more community control sanctions of at least one year's duration that are available for persons sentenced by the court. Not later than forty-five days after receipt of a request from a court under this division, the department shall provide the court with the names of, contact information for, and program details of one or more community control sanctions of at least one year's duration that are available for persons sentenced by the court, if any. Upon making a request under this division that relates to a particular offender, a court shall defer sentencing of that offender until it receives from the department the names of, contact information for, and program details of one or more community control sanctions of at least one year's duration that are available for persons sentenced by the court or for forty-five days, whichever is the earlier.

If the department provides the court with the names of, contact information for, and program details of one or more community control sanctions of at least one year's duration that are available for persons sentenced by the court within the forty-five-day period specified in this division, the court shall impose upon the offender a community control sanction under division (B)(1)(a) of this section, subject to divisions (B)(1)(b)(i) and (ii) of this section. If the department does not provide the court with the names of, contact information for, and program details of one or more community control sanctions of at least one year's duration that are available for persons sentenced by the court within the forty-five-day period specified in this division, the court may impose upon the offender a prison term under division (B)(1)(b)(iii)(iv) of this section.

(d) A sentencing court may impose an additional penalty under division (B) of section 2929.15 of the Revised Code upon an offender sentenced to a community control sanction under division (B)(1)(a) of this section if the offender violates the conditions of the community control sanction, violates a law, or leaves the state without the permission of the court or the offender's probation officer.

(2) If division (B)(1) of this section does not apply, except as provided in division (B)(3), (E), (F), or (G) of this section, insentencing an offender for a felony of the fourth or fifth degree, the sentencing court shall determine whether any of the following apply:

(a) In committing the offense, the offender caused physical harm to a person.

(b) In committing the offense, the offender attempted to cause or made an actual threat of physical harm to a person with a deadly weapon.

(c) In committing the offense, the offender attempted to cause or made an actual threat of physical harm to a person, and the offender previously was convicted of an offense that caused physical harm to a person.

(d) The offender held a public office or position of trust and the offense related to that office or position; the offender's position obliged the offender to prevent the offense or to bring those committing it to justice; or the offender's professional reputation or position facilitated the offense or was likely to influence the future conduct of others.

(e) The offender committed the offense for hire or as part of an organized criminal activity.

(f) The offense is a sex offense that is a fourth or fifth degree felony violation of section 2907.03, 2907.04, 2907.05, 2907.22, 2907.31, 2907.321, 2907.322, 2907.323, or 2907.34 of the Revised Code.

(g) The offender at the time of the offense was serving, or the offender previously had served, a prison term.

(h) The offender committed the offense while under a community control sanction, while on probation, or while released from custody on a bond or personal recognizance.

(i) The offender committed the offense while in possession of a firearm.

(3)(a) If the court makes a finding described in division (B)(2)(a), (b), (c), (d), (e), (f), (g), (h), or (i) of this section and if the court, after considering the factors set forth in section 2929.12 of the Revised Code, finds that a prison term is consistent with the purposes and principles of sentencing set forth in section 2929.11 of the Revised Code and finds that the offender is not amenable to an available community control sanction, the court shall impose a prison term upon the offender.

(b) Except as provided in division (E), (F), or (G) of this section, if the court does not make a finding described in division (B)(2)(a), (b), (c), (d), (e), (f), (g), (h), or (i) of this section and if the court, after considering the factors set forth in section 2929.12 of the Revised Code, finds that a community control sanction or combination of community control sanctions is consistent with the purposes and principles of sentencing set forth in section 2929.11 of the Revised Code, the court shall impose a community control sanction or combination of community control sanctions upon the offender determining whether to impose a prison term as a sanction for a felony of the fourth or fifth degree, the sentencing court shall comply with the purposes and principles of sentencing under section 2929.11 of the Revised Code and with section 2929.12 of the Revised Code.

Ninth District Court of Appeals Releases Seven Opinions on Monday, March 18, 2013

The Court of Appeals for the Ninth Appellate District, which covers Lorain, Medina, Summit, and Wayne Counties released seven opinions on Monday, March 18. Five were from Medina County, one was from Lorain County, and the remaining opinion was from Wayne County.

The five opinions from Medina County were: 

Sturdevant v. Likley, 2013-Ohio-987, which deals with the torts of defamation, false light, and intentional infliction of emotional distress. The appellant was appealing the granting of a motion for summary judgment. The opinions contains a discussion of the Restatement of Torts, 2nd, Sections 602 and 652. The decision affirmed the trial court's granting of the motion for summary judgment. 

State v. Samples, 2013-Ohio-986, which deals with the issue of sufficiency of the evidence in a case involving driving while under the influence. The Court of Appeals found that the evidence was insufficient to sustain a conviction for operating while under the influence of a drug of abuse. In particular the Court noted that the State had not produced evidence showing what "drug of abuse" Mr. Samples had consumed. Since the term "drug of abuse" is the same as the term "controlled substance" used in a different section of the Revised Code, and since that section lists the names of "controlled substances", it was necessary for the State to establish the identity of the "drug of abuse." The Court reversed Mr. Samples' conviction. 

State v. Miller, 2013-Ohio-985, which deals with the issues of whether a Ohio State Highway Patrol Trooper had a reasonable suspicion to justify the continued detention of a car's operator who had originally been stopped for expired license plates, and whether the consent of the driver to a search was voluntary. The Court of Appeals overruled the first assignment of error, but granted the second assignment. Although there were three assignments of error listed, since the Court of Appeals reversed on the second assignment. the Court did not issue any decision on the third assignment. 

Michaels v. Michaels, 2013-Ohio-984, which deals with the issue of spousal support and contempt of court for non-payment of spousal support. The issue of spousal support dealt with whether the husband, who was obligated to pay spousal support, had shown a significant change of circumstances to justify a modification of his support order. The trial court concluded that he had, and the Court of Appeals affirmed that decision. On the second assignment of error, the Court of Appeals held that the doctrine of res judicata barred the wife from raising the issue on the appeal covered by the March 18th decision. 

State v. Ibrahim, 2013-Ohio-983, which deals with the issue of whether there was sufficient evidence to allow the State to withstand a motion for a directed verdict made pursuant to Crim. R. 29. The charge involved possession of a controlled substance. The issue on appeal was whether there was enough evidence to allow the jury to find that the defendant constructively possessed the controlled substance. The trial court found that there was, but the Court of Appeals disagreed. The decision contains a discussion of the concept of "constructive possession" and its application to a situation involving multiple occupants of a van, which had been involved in an traffic accident. 

The Lorain County opinion was: 

Bonnette v. Bonnette, 2013-Ohio-981,  which deals with the issue of dismissal of an appeal for failure to file the appeal timely. The opinion contains an interesting discussion of Civ. R. 52, which concerns findings of fact and conclusions of law, and App. R. 4. 

The Wayne County opinion was: 

State v. Hillman, 2013-Ohio-982, which deals with the issue of whether a defendant could raise an issue of withdrawal of a no-contest plea in a post-conviction relief petition when it could have been raised on a direct appeal. The Court of Appeals held that the trial court committed reversible error when it heard the post-conviction relief petition because the issue should have been raised on a direct appeal. 

Ohio Supreme Court Upholds Felony Cocaine Conviction Despite Absence of Drug Name, Degree of Offense on Jury Verdict Form

Listing of Drug, Degree of Offense in Indictment, Evidence, Jury Instructions Held Sufficient


2011-0599.  State v. Eafford, Slip Opinion No. 2012-Ohio-2224.
Cuyahoga App. No. 94718, 2011-Ohio-927.  Judgment reversed and sentence reinstated.
O'Connor, C.J., and Lundberg Stratton, O'Donnell, Cupp, and McGee Brown, JJ., concur.
Pfeifer and Lanzinger, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-Ohio-2224.pdf


 (May 22, 2012) The Supreme Court of Ohio today reinstated the felony conviction of a Cleveland man whose offense and sentence for possession of cocaine had been reduced to a misdemeanor on appeal because the verdict form completed by the jury in his case did not identify the drug he was charged with possessing or the degree of the charged offense.


In a 5-2 decision authored by Justice Terrence O’Donnell, the court held that because the grand jury indictment under which the defendant, Donald Eafford, was charged identified his offense as possession of cocaine, a fifth-degree felony; and because the trial evidence and arguments presented by the state and the court’s instructions to the jury all clearly alleged that the drug he possessed was cocaine, the trial court did not commit plain error in convicting and sentencing Eafford for a fifth-degree felony count of cocaine possession notwithstanding the defects in the jury verdict form.


Eafford was arrested by Cleveland police officers who executed a search warrant at a residence on Rexford Avenue after an informant had purchased a controlled substance there. Upon entering the house, officers found several people with crack cocaine and drug paraphernalia in plain sight and found Eafford, whose name was on the lease for the house, upstairs.  A subsequent search revealed drug paraphernalia in Eafford’s bedside table and a glass and rubber pipe with cocaine residue in his bathroom medicine cabinet.


A grand jury indicted Eafford on charges of permitting drug abuse in violation of R.C. 2925.13(B) (Count One); possession of “cocaine or a compound, mixture, preparation, or substance containing cocaine in an amount of less than 5 grams” in violation of R.C. 2925.11(A) (Count Two); and possession of criminal tools (Count Three).


The matter proceeded to a jury trial, at which the state presented testimony by a police forensic examiner that she had conducted scientific testing of the material contained in the glass and rubber pipe and found that it “was positive for cocaine.” At the close of the state’s case in chief, the trial court directed a verdict of acquittal on the charge of possession of criminal tools. The defense rested without presenting any evidence. 


The jury returned guilty verdicts on Counts One and Two. The court sentenced Eafford under state sentencing guidelines for a fifth-degree felony to an eight-month term of incarceration for possession of cocaine, to be served concurrently with a second eight-month term for permitting drug abuse.
Eafford appealed.  On review, the Eighth District Court of Appeals vacated his felony conviction on Count Two and ordered the trial court to resentence him for a misdemeanor count of drug possession.
The court of appeals based its ruling on a finding that “[T]he verdict form [for Count Two] does not include a statement indicating either the degree of the offense charged or that an aggravating circumstance existed to justify a conviction on the greater offense, specifically that the drug involved was cocaine or a compound, mixture, preparation, or substance containing cocaine in an amount less than five grams. ... As this case stands, without a statement of the degree of the offense for which he was convicted, or a statement of the aggravating element demonstrating that defendant was convicted of a greater degree of the offense, he stands convicted of only a misdemeanor.”


The state sought and was granted Supreme Court review of the Eighth District’s ruling vacating Eafford’s felony conviction on Count Two.


Writing for the majority in today’s decision, Justice O’Donnell began by noting that because Eafford did not object to the jury verdict form at trial, he forfeited the right to seek reversal of his felony conviction based on that defect unless it constituted “plain error,” that is, an obvious error that affected a substantial right in a way that affected the outcome of his trial.


Analyzing the action of the trial court under a plain error standard, Justice O’Donnell wrote: “R.C. 2925.11(A) states, ‘No person shall knowingly obtain, possess, or use a controlled substance,’ and the statute establishes separate offenses based on the identity of the controlled substance involved. ... R.C. 2925.11(C)(4) defines the separate offense of ‘possession of cocaine’: ‘If the drug involved in the violation is cocaine or a compound, mixture, preparation, or substance containing cocaine, whoever violates division (A) of this section is guilty of possession of cocaine. The penalty for the offense shall be determined as follows: ... (a) Except as otherwise provided ... possession of cocaine is a felony of the fifth degree.’”


“Count Two of the indictment alleged that Eafford possessed cocaine, expert testimony confirmed the substance at issue tested positive for cocaine, and throughout the trial the parties and the court treated the phrase ‘possession of drugs’ as synonymous with possession of cocaine. Further, in its jury instructions − a copy of which the court submitted to jurors who had it in the deliberating room during deliberations − the trial court explained to the jury that it could not find Eafford guilty of possession of drugs as charged in Count Two unless it found the drug involved to be cocaine or a compound, mixture, preparation, or substance containing cocaine.  And, as we observed in State v. Johnson (1994), ‘[j]uries are presumed to follow the court's instructions.’   Thus, when the jury found Eafford guilty as charged in Count Two of the indictment, its finding necessarily related to possession of cocaine.”


“Eafford therefore failed to demonstrate that the trial court committed plain error in these circumstances. The verdict form used the phrase ‘possession of drugs’ but did not ask jurors to specify whether the drug involved in this case was or was not cocaine. The jurors found Eafford ‘guilty of Possession of Drugs in violation of §2925.11(A) of the Ohio Revised Code, as charged in Count Two of the indictment.’ The finding in the verdict cannot be described as error, let alone an obvious defect in the trial proceedings, and it did not affect Eafford’s substantial rights. He knew from the outset that the state intended to prove his guilt of possession of cocaine.  And it did.  The form of the jury verdict did not affect the outcome of the trial. The state intended to prove the accused guilty of possession of cocaine, it did so, and the jury in accordance with its findings rendered a verdict in conformity with the evidence presented by the state that Eafford possessed cocaine.” 


“Eafford has not shown that but for the use of this verdict form, the outcome of the trial would have been different. Had he made a timely objection, the court could have modified the verdict form, but Eafford still would have been found guilty of possession of cocaine, because the only evidence in the case demonstrated his possession of cocaine, as he did not offer any defense in this case.  Accordingly, we reverse the judgment of the court of appeals and reinstate the sentence imposed by the trial court.”


Justice O’Donnell’s opinion was joined by Chief Justice Maureen O’Connor and Justices Evelyn Lundberg Stratton, Robert R. Cupp and Yvette McGee Brown.


Justice Judith Ann Lanzinger entered a dissent, joined by Justice Paul E. Pfeifer, stating that in her view the court should have dismissed the state’s appeal as improvidently accepted, and asserting that the majority’s decision reversing the Eight District violated Eafford’s Sixth Amendment right to trial by jury.


“The United States Supreme Court has clearly held that a court may not usurp the fact-finding of a jury through judicial findings,” wrote Justice Lanzinger. “Yet by holding that a verdict form can be modified by the indictment, the evidence at trial, the argument of counsel, and the jury instructions, the majority allows a judge to supplant the language of the jury verdict and the jury’s findings. The problem in this case is that the verdict form contains neither the degree of the offense nor the fact that the controlled substance is cocaine. ... The court of appeals appropriately held that the missing facts could not be supplied by the indictment nor cured by the trial court’s instructions. When  the trial judge ignored the verdict form reflecting misdemeanor possession of drugs and sentenced Eafford for felony possession of cocaine, the court substituted its own findings for that of the jury.”


Contacts
T. Allan Regas,             216.443.7800      , for the state and Cuyahoga County prosecutors' office.


David M. King,             216.443.3667      , for Donald Eafford.

Judge Collier's Criminal Docket for December 27, 2011

Submitted by Dean Holman
Medina County Prosecutor

The following people appeared in court December 27:

Christine Detweiller, 44, of Seymour Street NW in Massillon, was sentenced to seven years in prison on one count of Attempted Murder; one count of Aggravated Burglary, a first-degree felony; and two counts of Felonious Assault, both of which are second-degree felonies.

Eric Foster, 19, of Lodi Road in Lodi, was sentenced to nine months in prison for a probation violation on an original charge of Trafficking in Drugs, a fifth-degree felony.

Michael Fairchild, 34, of Glen Cove Commons in Brunswick, was sentenced to three years of community control sanctions, with 90 days in jail and 90 days of electronic monitoring, on one count of Possession of Drugs, a fifth-degree felony. His driver’s license was suspended for six months.

Angela Demchak, 33, of Fillmore Drive in Brunswick, pleaded guilty to one count of Possession of Heroin, a fifth-degree felony. Sentencing is scheduled for February 6.

Mark Evans, 40, of Greenwich Road in Seville, pleaded not guilty to one count of Trespass Into Habitation, a fourth-degree felony and one count of Assault, a first-degree misdemeanor. A jury trial is scheduled for March 26.

Matthew Farmer, 20, of North Huntington Street in Medina, pleaded not guilty to one count of Possession of Drugs, a fifth-degree felony. A jury trial is scheduled for February 22.

Heather Hursky, 24, of Hametown Road in Doylestown, pleaded not guilty to one count of Possession of Drugs, a fifth-degree felony. A jury trail is scheduled for February 8.

Jennifer Swingle, 34, of Alger Road in Lakewood, pleaded not guilty to one count of Telephone Harassment, a fifth-degree felony. A jury trial is scheduled for February 1.

Brooke Tummino, 22, of Bayridge Boulevard in Willowick, pleaded not guilty to one count of Trafficking in Cocaine and one count of Possession of Drugs, both of which are fifth-degree felonies. The charges carry a forfeiture specification. A jury trial is scheduled for March 26.

Judge Kimbler's Criminal Docket for December 22, 2011

Submitted by Dean Holman
Medina County Prosecutor

The following people appeared in court December 22:

Stefanie Gore, 21, of Chestnut Street in Sterling, was sentenced to nine months in prison on one count of Trafficking in Oxycodone, a third-degree felony; one count of Trafficking in Drugs, a fourth-degree felony; one count of Receiving Stolen Property, a fifth-degree felony; and three counts of Theft, all of which are fifth-degree felonies. Her driver’s license was suspended for six months.

Millicent Jones, 48, of Yellow Springs, was sentenced to nine months in prison in one count of Deception to Obtain a Dangerous Drug, a fourth-degree felony. Her driver’s license was suspended for six months.

Joseph Molnar, 19, of Rocklyn Drive in Brunswick, was sentenced to one year in prison on one count of Assault of a Peace Officer, a fourth-degree felony; one count of Vandalism, a fifth-degree felony, and one count of Harassment with a Bodily Substance, a fifth-degree felony.

Terry Pugh, 50, of West Union Street in Medina, was sentenced to three years of community control sanctions on one count of Having Weapons While Under Disability, a third-degree felony.

Erik Sullen, 20, of Station Road in Valley City, was sentenced to three years of community control sanctions, with 90 days of house arrest, on three counts of Trafficking in Drugs, two of which are third-degree felonies and one of which is a fourth-degree felony.

Jordan Williams, 23, of Avery Road in Peebles, was sentenced to 18 months in prison on two counts of Robbery, both of which are third-degree felonies.

Kenneth Belcher, 38, of Miner Drive in Medina, pleaded no contest to the following charges: one count of Possession of Drugs, a third-degree felony; one count of Deception to Obtain a Dangerous Drug, a fourth-degree felony; two counts of Complicity to Commit Illegal Processing of Drug Documents, both of which are fourth-degree felonies; and nine counts of Illegal Processing of Drug Documents, five of which are fourth-degree felonies and four of which are fifth-degree felonies. Sentencing is scheduled for January 26.

Robert Bennett, 28, of 21st Street in Barberton, pleaded no contest and was sentenced to 18 months in prison on one count of Failure to Comply with a Police Officer, a third-degree felony; one count of Attempted Tampering with Evidence, a fourth-degree felony; and one count of Possession of Drugs, a fifth-degree felony. His driver’s license was suspended for six months.

Ronald DeFranco, 48, of Hartman Road in Wadsworth, pleaded not guilty to one count of Unlawful Sexual Conduct with a Minor, a third-degree felony. A jury trial is scheduled for February 21.

Trevor Freeman, 18, of Grafton Road in Brunswick, pleaded not guilty to one count of Receiving Stolen Property, a fifth-degree felony. A jury trial is scheduled for February 21.

Shayne Grady, 25, of Trease Road in Wadsworth, pleaded not guilty to one count of Possession of Heroin, a fifth-degree felony. A jury trial is scheduled for January 17.

Miranda Jarochovic, 23, of Glenbrook Drive in Brunswick, pleaded not guilty to one count of Receiving Stolen Property, Checks, a fifth-degree felony. A jury trial is scheduled for February 22.

Jason Jenkins, 33, of Front Street in Burbank, pleaded not guilty to one count of Trafficking in Heroin within the Vicinity of a Juvenile or School, a fourth-degree felony. A jury trial is scheduled for February 22.

Jesse Parks, 25, of Beverly Hills Drive in Brunswick, pleaded not guilty to one count of Possession of Heroin, a fifth-degree felony. A jury trial is scheduled for February 21.

Eric Robinson, 25, of Water Street in Wadsworth, pleaded not guilty to one count of Trafficking in Marijuana, a fifth-degree felony. The charge carries a forfeiture specification. A jury trial is scheduled for February 22.

David Sheers, 38, of Root Road in Spencer, pleaded not guilty to one count of Illegal Manufacture of Drugs, a fourth-degree felony. A jury trial is scheduled for February 22.

Judge Kimbler's Criminal Docket for December 15, 2011

Submitted by Dean Holman
Medina County Prosecutor

The following people appeared in court December 15:

Aaron Bain, 26, of Kepler Avenue in Canal Fulton, was sentenced to two years in prison on one count of Burglary, a second-degree felony.

Arnexts Blanc, 26, of Florida, was sentenced to 180 days in jail on one count of Receiving Stolen Property, a fourth-degree felony.

Rachel Cuevas, 38, of Arizona, was sentenced to three years of community control sanctions, with 160 days of home arrest, on one count of Possession of Marijuana, a third-degree felony.

Jeremy Diestler, 21, of Neff Road in Medina, was sentenced to two years in prison on one count of Robbery, a third-degree felony, and one count of Receiving Stolen Property, a fifth-degree felony.

Amanda Hickman, 25, of Brady Lake Road in Ravenna, was sentenced to three years of community control sanctions on one count of Theft, a fifth-degree felony. She also was ordered to pay $776 restitution.

Marc Bates, 35, of Avon Lake Road in Lodi, pleaded not guilty to the following charges: one count of Burglary, a second-degree felony; one count of Theft of Motor Vehicle, a fourth-degree felony; and two counts of Breaking and Entering, both of which are fifth-degree felonies. A Repeat Violent Offender Specification is attached to the charges. A jury trial is scheduled for February 6.

Dylan Crosier, 19, of Dogwood Trail in Medina, pleaded not guilty to one count of Trafficking in Marijuana, a fifth-degree felony. A jury trial is scheduled for February 14.

Holly Klembara, 50, of Foster Road in Wellington, pleaded not guilty to one count of Possession of Dangerous Drugs, a fifth-degree felony. A jury trial is scheduled for February 15.

Laura Kobak, 46, of Center Road in Brunswick, pleaded not guilty to one count of Illegal Conveyance of Weapons or Prohibited Items onto Grounds of Detention Facility or Institution, a third-degree felony, and one count of Possession of Cocaine, a fifth-degree felony. A jury trial is scheduled for February 21.

Jonathan Lorincz, 19, of Nave Road S.E. in Massillon, pleaded not guilty to one count of Trafficking in Drugs and one count of Trafficking in Marijuana, both of which are fifth-degree felonies. A jury trial is scheduled for February 15.

Mary Maynard, 35, of West Erie Avenue in Lorain, pleaded not guilty to one count of Forgery, a fifth-degree felony. A jury trial is scheduled for February 21.

James McClain, 26, of Eastern Road in Doylestown, pleaded not guilty to one count of Aggravated Burglary, a first-degree felony and one count of Robbery, a second-degree felony. A jury trial is scheduled for February 13.

Sean Rush, 43, of Plainview Road in Mansfield, pleaded not guilty to one count of Theft of a Motor Vehicle, a fourth-degree felony. A jury trial is scheduled for February 13.

Jessica Smiley, 19, of Northeast Avenue in Tallmadge, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for February 22.

Tanner Smith, 23, of Root Road in North Ridgeville, pleaded not guilty to one count of Theft and one count of Safecracking, both of which are fourth-degree felonies. A jury trial is scheduled for February 13.

Jason Zappe, 27, of West Liberty Street in Medina, pleaded not guilty to one count of Trafficking in Marijuana within the Vicinity of a Juvenile, a fourth-degree felony and one count of Theft, a first-degree misdemeanor. A jury trial is scheduled for February 14.

Judge Collier's Criminal Docket for December 7, 2011

Submitted by Dean Holman
Medina County Prosecutor

The following people appeared in court December 7:

Quay Barber, 45, of Birch Hill Drive in Medina, pleaded no contest to one count of Complicity to Commit Burglary, a second-degree felony and one count of Theft of Drugs, a fourth-degree felony. Sentencing is scheduled for January 23.

Tiffany Barnett, 23, of Miner Drive in Medina, pleaded no contest to one count of Theft, a fifth-degree felony. Sentencing is scheduled for January 23.

Andrew Downs, 20, of Sibley Avenue in Columbus, pleaded no contest to one count of Possession of Drugs, a fifth-degree felony. Sentencing is scheduled for January 23.

Elliot Smith, 42, of Dunbar Circle in Medina, pleaded guilty and was sentenced to one year in prison on one count of Attempted Felonious Assault, a third-degree felony.

Judge Collier's Criminal Docket for December 5, 2011

Submitted by Dean Holman
Medina County Prosecutor

The following people appeared in court December 5:

David Cherconis, 49, of Lakeview Drive in Brunswick, was sentenced to five years of community control sanctions, with 180 days of electronic monitoring, on one count of Domestic Violence, a third-degree felony.

William Koch, 57, of Osborne Road in Columbia Station, was sentenced to one year in prison on two counts of Gross Sexual Imposition, both of which are fourth-degree felonies. He also was labeled a Tier I Sex Offender.

David Lynch, 45, of Elyria Street in Lodi, was sentenced to nine years in prison on one count of Attempted Murder, with a Firearm Specification, and one count of Having Weapons While Under Disability, a third-degree felony.

Joshua Roper, 25, of Lisa Court in Lodi, was sentenced to nine months in prison on one count of Misuse of Credit Cards, Elderly, a fifth-degree felony.

Ryan Barth, 26, of North Broadway in Medina, pleaded not guilty to one count of Aggravated Burglary, a first-degree felony and one count of Burglary, a second-degree felony. A jury trial is scheduled for January 9.

Jeffery Davis, 31, of Medina, pleaded not guilty to two counts of Forgery, both of which are fifth-degree felonies. A jury trial is scheduled for February 27.

Buster Emerson, 38, of Broad Street in Wadsworth, pleaded guilty and was sentenced to one year in prison on one count of Failure to Comply with a Police Officer, a third-degree felony.

Fredric Frazier, 50, of Prospect Street in Medina, pleaded not guilty to five counts of Pandering Sexually Oriented Matter Involving a Minor, all of which are second-degree felonies. A jury trial is scheduled for January 30.

Derrick Kenney, 23, of Kewanee Avenue in Cleveland, pleaded guilty and was sentenced to years in prison on one count of Robbery, a second-degree felony.

James Mathes, 38, of Bronson Street in Medina, pleaded not guilty to one count of Passing Bad Checks, a fifth-degree felony. A jury trial is scheduled for February 13.

Raymond Ruiz, 55, of Halifax Lane in Medina, pleaded not guilty to the following charges: one count of Extortion, a third-degree felony; one count of Identity Fraud, a third-degree felony; one count of Unauthorized Use of Property or Computer or Telecommunications Property, a fourth-degree felony; and one count of Telecommunications Harassment, a first-degree misdemeanor. A jury trial is scheduled for March 5.

Judge Kimbler's Criminal Docket for December 2, 2011

Submitted by Dean Holman
Medina County Prosecutor

The following people appeared in court December 2:

Brandy Arnold, 30, of Manhattan Avenue in Brunswick, was sentenced to three years of community control sanctions, with a period of time in a Community Based Correction Facility, on one count of Deception to Obtain a Dangerous Drug, a fifth-degree felony.

Joshua Bragg, 20, of Wooster Street in Lodi, was sentenced to 180 days in jail for a probation violation on an original of Trafficking in Marijuana, a fifth-degree felony.

Gary Buckingham, 34, of West Britton Road in Burbank, was sentenced to one year in prison on three counts of Trafficking in Heroin, one of which is a third-degree felony and two of which are fourth-degree felonies.

Drake Chiccarelli, 43, of Regal Avenue in Brunswick, was sentenced to one year of community control sanctions, with 180 days in jail, on two counts of Theft of a Motor Vehicle, both of which are fourth-degree felonies and one count of Possession of Cocaine, a fifth-degree felony. He also was ordered to pay $500 restitution.

Nick Crowe, 51, of Seville Road in Wadsworth, was sentenced to 180 days in jail on one count of Domestic Violence, a fourth-degree felony.

James Kaley, 29, of Industry Drive in Atwater, was sentenced to six months in prison on one count of Theft, a fifth-degree felony.

Joseph Barnum, 42, of Lake Road in Chippewa Lake, pleaded not guilty to two counts of Theft from the Elderly, one of which is a fourth-degree felony and one of which is a fifth-degree felony. A jury trial is scheduled for February 6.

Louis Bologna, 29, of Hudson Drive in Stow, pleaded not guilty to one count of Failure to Comply with a Police Officer and one count of Receiving Stolen Property, Motor Vehicle, both of which are fourth-degree felonies. A jury trial is scheduled for February 7.

Joseph Bush, 38, of Lake Road in Chippewa Lake, pleaded no contest to two counts of Trafficking in Drugs within the Vicinity of a School or Juvenile, one of which is a second-degree felony and one of which is a third-degree felony. Sentencing is scheduled for January 5.

William Egut, 31, of Sunhaven Drive in Medina, pleaded not guilty to the following charges: one count of Menacing by Stalking, a fourth-degree felony; one count of Telephone Harassment, a first-degree misdemeanor; and one count of Criminal Damaging, a second-degree felony. A jury trial is scheduled for February 14.

Eric Foster, 19, of Lodi Road in Lodi, pleaded not guilty to one count of Trespass Into Habitation, a fourth-degree felony, and one count of Possession of Drugs, a fifth-degree felony. A jury trial is scheduled for February 14.

David Frank, 34, of West 130th Street in Hinckley, pleaded not guilty to one count of Identity Fraud, a third-degree felony and one count of Forgery, a fourth-degree felony. A jury trial is scheduled for February 6.

Thomas Jancik, 29, of East Reagan Parkway, pleaded not guilty to five counts of Pandering Sexually Oriented Matter Involving a Minor, all of which are second-degree felonies. A jury trial is scheduled for February 6.

John Leiken, 18, of Brambleside Drive in Brunswick, pleaded not guilty to one count of Possession of Drugs, a fifth-degree felony. A jury trial is scheduled for February 7.

John Lester, 36, of North Inlet Drive in Strongsville, pleaded not guilty to six counts of Aggravated Vehicular Assault, four of which are third-degree felonies and two of which are fourth-degree felonies. A jury trial is scheduled for February 6.

Amber Perkins, 32, of Wagon Trail in Medina, pleaded not guilty to two counts of Theft, both of which are fifth-degree felonies. A jury trial is scheduled for February 8.

Cara Schofield, 27, of 25th Street in Cuyahoga Falls, pleaded not guilty to one count of Possession of Drugs, a fifth-degree felony. A jury trial is scheduled for February 8.

Aaron Schumacher, 24, of Brookpoint Drive in Medina, pleaded not guilty to six counts of Pandering Sexually Oriented Matter Involving a Minor, all of which are second-degree felonies. A jury trial is scheduled for February 8.

Thomas Wick, 36, of Courtland Oval in Brunswick, pleaded not guilty to two counts of Menacing by Stalking, both of which are fourth-degree felonies. A jury trial is scheduled for February 14.

Judge Collier's Criminal Docket for November 28, 2011

Submitted by Dean Holman
Medina County Prosecutor

The following people appeared in court November 28:

Michael Nabors, 24, of Jones Road in Wellington, was sentenced to five years of community control sanctions on one count of Possession of LSD, a fifth-degree felony, and one count of Possession of Drugs, a first-degree misdemeanor. His driver’s license was suspended for six months.

Martsin Prokopovich, 20, of New Jersey, was sentenced to five years of community control sanctions on one count of Theft of a Motor Vehicle, a fourth-degree felony. He also was ordered to pay $4,300 restitution to the victim.

Marc Dukles, 27, of Anderson Drive in Brunswick, pleaded not guilty to two counts of Trafficking in Drugs, both of which are fourth-degree felonies. A jury trial is scheduled for January 17.

Meghan Mora, 29, of Cowley Road in Columbia Station, pleaded not guilty to the following charges: one count of Burglary, a second-degree felony; one count of Theft of a Motor Vehicle, a fourth-degree felony; and two counts of Breaking and Entering, both of which are fifth-degree felonies. A jury trial is scheduled for January 25.