Summit County Appellate Decisions for January, 2014

State v. Furman, 2014-Ohio-20 affirmed Ms. Furman's conviction for aggravated burglary and aggravated robbery by the Summit County Common Pleas Court. That court sentenced her to 18 years in prison, nine years on each count. In an earlier appeal the Court of Appeals for the Ninth Appellate District ordered a new sentencing hearing so that the trial court could consider whether the two offenses were allied offenses of similar import under a State v. Johnson analysis. The trial conducted such an analysis and found that the offenses were not allied offenses under State v. Johnson and re-sentenced Ms. Furman to 18 years in prison. 

Ms. Furman raised two issues on appeal. The first issue was whether the trial court erred in determining the two offenses were not allied offenses. The second was whether the trial court erred in not giving her a minimum sentence. In both cases the appellate court found that the failure to enter the presentence investigation report into the record meant that the appellate court could not review the sentence and therefore has to presume regularity. Such a presumption meant that the trial court would be affirmed. 

State v. Nichols, 2014-Ohio-102 affirmed a decision of the Summit County Common Pleas Court denying Nichols's motion for post-conviction relief. The appellate court found that he had not established that he was entitled to the relief and therefore affirmed the denial of his petition. 

State v. Rogers, 2014-Ohio-103 affirmed a decision of the Summit County Common Pleas Court convicting Rodgers of a drug offense. Rodgers challenged his conviction on the grounds that the trial court erred in denying him motion to suppress. He argued that the officer who arrested him did not have a reasonable and articulable suspicion that he was committing an offense. He also argued that the trial court relied on facts that were not proved by the hearing. 

In denying Rodger's assignment of error the appellate court noted that Rodgers was operating a motor vehicle with restricted license plates; that he was behind the wheel of a car in a high-crime area; that the car was idling; and that when he asked Rodgers about the restricted operator's license, Rodgers could not verify that he was operating the car for work-related purposes. While the appellate court said that the mere fact that a car has restricted license plates does not, by itself, give rise to a reasonable suspicion, in this case there were other corroborating factors. Therefore the conviction was affirmed. 

Haley v. Nomad Preservation, Inc., 2014-Ohio-181 affirmed a two decisions of the Summit County Common Pleas Court. In one decision the trial court had granted judgment to a defendant after converting a motion to dismiss under Civ. R. 12 (B) into a motion for summary judgment so that it could consider evidence. In the other decision the trial court had granted a motion to dismiss on the grounds that the trial court did not have personal jurisdiction over the moving defendant. 

Haley argued that the trial court erred in considering material outside of the four corners of the motion which, in effect, converted the motion to dismiss into a motion for summary judgment. In rejecting this argument the appellate court wrote the following: "Not only had the trial court considered other evidence the first time it ruled on the motion, this Court explained in its decision that it was proper for the trial court to consider other evidence so long as notice was given. In light of the procedural history of this particular case, we cannot say that the trial court’s consideration of Mr. Ayache’s affidavit was unexpected or that Mr. Haley did not have an adequate opportunity to oppose the evidence." 

The appellate court also found that granting the motion for dismissal because of a lack of personal jurisdiction was also proper. Haley argued that the defendant filing the motion had acted untimely. In rejecting this argument the appellate court wrote the following: "Mr. Haley has not cited any authority suggesting that a party forfeits his right to move to vacate a judgment that was rendered without personal jurisdiction merely because of the passage of time. See Civ.R. 12(H)(1) (setting out specific conditions under which a party waives the defense of lack of jurisdiction over the person); Timekeeping Sys., Inc. v. Safety Protection Universal Ltd., 8th Dist. Cuyahoga No. 99714, 2013-Ohio-3919, ¶ 12."

State v. McDaniel, 2014-Ohio-183 affirmed Mr. McDaniel's convictions for murder and felonious assault. McDaniel argued that the two offenses were allied offenses of similar import and that the State should have been made to elect the offense for which it wanted McDaniel sentenced. The Court of Appeals rejected this assignment of error. It found that under the analysis dictated by State v. Johnson the two offenses were not allied offenses of similar import. 

Ramoso v. Ramoso, 2014-Ohio-28 overruled the assignment of error brought by Mrs. Ramoso. She argued that the Summit County Domestic Relations Court erred by dismissing her objections to a magistrate's decision without a hearing. The Court of Appeals rejected this argument noting that she did not file a transcript with the objections. It pointed out that Civ.R. 53(D)(3)(b)(iii) requires such a transcript and failure to file one allowed the trial court to dismiss the objections. 

State v. Reeves, 2014-Ohio-282 affirmed the conviction of Mr. Reeves for possession of heroin and affirmed the forfeiture of money claimed to be proceeds from the felony drug offense. It also affirmed his conviction for having weapons while under a disability. 

Reeves raised three assignments of error. The first was that the evidence was insufficient to support his conviction. The second was that the guilty verdicts were against the manifest weight of the evidence. The third was that the trial court did not require the State to produce evidence that the order of forfeiture was proportional to the offense. All three assignments of error were overruled. In overruling the third assignment of error the appellate court noted that the law does not require a proportionality review when the property being forfeited is money derived from the offense.   

Lorain County Appellate Decisions for January, 2014

State v. Powell, 2014-Ohio-63 affirmed Mr. Powell's conviction for one count of rape. Powell argued on appeal that the verdict, which came after a bench trial, was based on insufficient evidence and was against the manifest weight of the evidence. Both assignments of error were rejected. 

State v. Thomas, 2014-Ohio-64 affirmed a decision of the Lorain County Common Pleas Court denying his motion to "correct" a void decision of that court. Thomas argued that his conviction of aggravated murder was defective because the determination of his guilt wasn't made by a three judge panel. 

The appellate court pointed out that failure to have a three judge panel doesn't deprive a common pleas court of subject matter jurisdiction. If a common pleas court has erred in not having a three judge panel hear a defendant's case, that error must be brought up on a direct appeal, not in a post-conviction proceeding or in a motion for relief pursuant to a writ of habeas corpus. 

Third Fed. S. & L. Assn. v. Haupt, 2014-Ohio-348 reversed a decision by the Lorain County Common Pleas Court granting judgment to Third Federal Savings & Loan. Ms. Haupt argued that she had not been served a copy of the magistrate's decision and therefore didn't have the opportunity to file objections to the decision. The Court of Appeals agreed with her contention. There was also an interesting issue regarding whether the appeal was timely. By a 2-1 decision the Court of Appeals found that it was timely. The dissent believed that the appeal was not timely.  

Wayne County Appellate Decisions for January, 2014

PNC Bank, Natl. Assn. v. West, 2014-Ohio-161 overruled the granting of a motion for summary judgment to the plaintiff by the Wayne County Common Pleas Court. The appellate court found that the "evidence" offered in support of the motion for summary judgment and was intended to establish that the bank had standing to bring the action wasn't admissible under Ohio's Rules of Evidence. Therefore the summary judgment was reversed and the cause remanded back to the trial court. 

State v. Raber, 2014-Ohio-249 affirmed an order of the Wayne County Common Pleas Court denying Mr. Raber's motion to expunge his record or seal his conviction. The basis for the trial court's ruling was that a conviction for the offense of sexual imposition, a third degree misdemeanor, is not one that can be expunged or sealed. The appellate court agreed and affirmed the trial court's ruling. 

Medina County Appellate Decisions for January, 2014

U.S. Bank v. Cooper, 2014-Ohio-61 reversed and remanded the case to the Medina County Common Pleas Court with instructions that the case was to be dismissed. The Coopers had filed a motion to set aside a default judgment that was granted to U.S. Bank by the Medina County Common Pleas Court. 

The trial court denied the Rule 60 (B) motion because the Coopers did not meet the requirements of GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976). In reversing the decision of the trial court the Court of Appeals reasoned that the Coopers were not required to file a motion under Rule 60 (B) because if the bank never had standing to bring the lawsuit then the judgment was void and not just voidable. Since it was void the case was remanded with instructions to dismiss. 

State v. Johnson, 2014-Ohio-62 affirmed Johnson's conviction for two counts of felonious assault and one count of breaking and entering. Johnson argued on appeal that the trial court erred in not giving the "castle doctrine" instruction and in answering questions posed by the jury. 

With respect to the "castle doctrine" Johnson argued that the instruction should have been given because Johnson was in his car and pursuant to R.C. 2901.09(B).  The trial court concluded that the defense wasn't available because under Johnson's version of events he was not in the car when he assaulted the victims. The appellate court found that it could not find that the trial court abused its discretion in refusing to give the instruction and so denied the appeal on that basis. 

With regard to the second assignment of error the appellate court found that Johnson's counsel had agreed to the instruction as given by the trial court. Therefore the assignment was reviewed under a plain error analysis. Under that standard the assignment of error overruled. 

Johnson also alleged that his attorney was ineffective in representing him a trial. The Court of Appeals also rejected that argument. 

Summit County Civil Appellate Decisions, December, 2013

The Court of Appeals for the Ninth Appellate District released  numerous opinions on appeals from civil cases from Summit County courts. My summaries of the opinions that I was able to view appear below. 

Stetz v. Copley Fairlawn School Dist., 2013-Ohio-5411, released on December 11, 2013, reversed the Summit County Common Pleas Court's decision that the school district was not entitled to sovereign immunity. The Court of Appeals held that whether the school district is entitled to such immunity depends on a three tier analysis. In this case the trial court did not complete such an analysis and therefore the denial of the motion for summary judgment was reversed and the case was remanded.  

Hendy v. Wright, 2013-Ohio-5786, issued on December 31, 2013, affirmed a decision of the Summit County Common Pleas Court, Domestic Relations Division. The assignments of error broke down into two groups. One group alleged that the trial court had violated Ohio's Code of Judicial Conduct through its orders and the magistrate's recommendations. All of those assignments of error were overruled because the Court of Appeals doesn't have jurisdiction over the enforcement of the Code of Judicial Conduct. 

The other assignments of error were overruled because the appellant had not specifically objected to the trial court's order as required by Civ. R. 53(D)(3)(b). Since such objections weren't filed the only way that the appellant could get relief was to have shown plain error but since he didn't argue plain error nor did he explain why the appellate court should adopt a plain error standard of review. 

Witschey, Witschey & Firestine Co., L.P.A. v. Daniele, Jr.,  2013-Ohio-5724, released on December 26, 2013, reversed and remanded a decision of the Summit County Common Pleas Court that a real estate conveyance wasn't fraudulent under R.C. Chapter 1336. The trial court R.C. 1336.08 (A) to rebut the presumption of fraud that arose because the transferror had not received any compensation for the transfer. The trial court's reasoning was that since the original transfer was a gift then when the defendant son transferred the property back to the defendant parents it was a transfer for valuable consideration or a reasonable equilavent value. The Court of Appeals found that this was not correct. It remanded the case back to the trial court with instructions to use R.C. 1336.04 (A) (1) to the evidence already introduced. 

Black v. Stouffer Realty, Inc., 2013-Ohio-5723 was released on December 26, 2013. Black, Stouffer Realty, and a sales person for Stouffer Realty filed assignments and cross-assignments of error. All the assignments and cross-assignments of error were overruled. 

When the case was submitted to the jury there was a form which allowed the jury to determine whether Black was entitled to attorney fees and punitive damages. The jury indicated that she was entitled to attorney fees but not punitive damages. Black argued that this was an inconsistent verdict and therefore the jury should be re-instructed and returned for further deliberation. The trial court refused. On appeal Black argued that Civ. R. 49 (B) applied to the facts in her case. That Rule deals with the procedure that is to be applied when there are inconsistent answers to jury interrogatories. The appellate court, however, the the form was a a general verdict form and not the same as jury interrogatories. Therefore that assignment of error was overruled. 

Black also assigned as error the use of the verdict form described above. Since Black didn't object at the time the trial court sent the verdict form to the jury she was limited to a plain error analysis. The appellate court found that the trial court did not commit plain error. The other assignments of error made by the parties can be seen by clicking on the link to the opinion above. 

Ward v. Ohio State Waterproofing, 2013-Ohio-5560, released on December 18, 2013, affirmed the decision of the Summit County Common Pleas Court denying a motion to vacate an arbitration award. The Court of Appeals noted that when considering a motion to vacate an arbitration award the court is guided by R.C. 2711.10. That section allows a court to vacate an award if it finds that the award was procured by fraud, corruption or undue means; if there evident partiality or corruption on part of any of the arbitrators; if the arbitrators were guilty of certain specified misconduct; and if the arbitrators exceeded their power, or so imperfectly executed them that final award could not be made. Applying that statute to the facts of the case, the trial court denied the motion. The appellate court affirmed that denial. 

Lasater v. Vidahl, 2013-Ohio-5558, released on December 18, 2013, affirmed a decision of the Summit County Common Pleas Court denying a motion to award attorney fees to the prevailing party in a civil lawsuit. The awarding of attorney fees is allowed in certain circumstances by R.C. 2323.51. The granting of a motion for attorney fees under that section or the denial of attorney fees is reviewed under an abuse of discretion standard. Applying that standard to the facts in this case the appellate court concluded that the denial should be affirmed. 

111 N. Main St., Inc. v. Von Allmen Ents., L.L.C., 2013-Ohio-5554, released on December 19, 2013, affirmed in part and reversed in part a decision of the Summit County Common Pleas Court. The parties had entered into a settlement agreement whereby von Allmen Enterprises and the Von Allmens had agreed that they owed certain sums of money to 111 N. Main Street for arrearages of rent on a lease. Mr. Von Allmen appeared at a settlement conference and agreed that they money was owed and that he personally guaranteed the arrearage amount. When the payments weren't made, 111 N. Main filed a lawsuit seeking to enforce the settlement agreement. 

The Court of Appeals found that the trial court never had personal jurisdiction over the Von Allmens as individuals because service was never obtained on them, they never waived service, or were ever served personally with the motion to enforce the agreement. Since there was no personal jurisdiction then the trial court could not enter judgment against them as individuals. 
The appellate court also considered the assignments of error by Von Allmen Enterprises and overruled them. 

Osburn Towing v. Akron, 2013-Ohio-5409, released on December 11, 2013, reversed a decision of the Summit County Common Pleas Court. The decision was reversed because the appellate court found that the Common Pleas Court did not have subject matter jurisdiction. The reason why the trial court did not have subject matter jurisdiction was that the act that Osburn was complaining about was a legislative act and therefore could not be reviewed under R.C. 2506.01. Since the appellate court found that the trial court did not have subject matter jurisdiction, it did not address the other issues raised on appeal by the City of Akron. 

Summit County Appellate Decisions in Juvenile Court Cases, December, 2013

The Court of Appeals for the Ninth Appellate District released five decisions on appeals from the Summit County Juvenile Court during December of 2013. My summaries of these decisions appear below. 

In re R.P., 2013-Ohio-5728, released on December 26, 2013, affirmed the decision of the Summit County Juvenile Court's decision to declare R.P. a dependent child and place her in the custody of the Summit County Children Services Board. 

In the first assignment of error R.P.'s father argued that the trial court erred in allowing evidence to be admitted at the hearing that had not been made available to him during discovery. The Court of Appeals overruled this assignment of error. It noted that the Juvenile Rules, unlike the Criminal Rules, do not require that the discovery response be supplemental as more information becomes available. The Court of Appeals reasoned that under the Juvenile Rules a party has to make a motion to compel discovery in order to make sure that the party is receiving updated discovery. 

In two of the assignments of error the father argued that the trial court committed reversible error in allowing R.P.'s counselor to testify. The Court of Appeals held that if allowing the testimony was erroneous, it was harmless error. 

Three of the assignments of error dealt with the Juvenile Court allowing the intervention of a couple who had been legal custodians of R.P. into the case and quashing a subpoena that had been issued for records of the CSB that related to the couple. 

With regard to the trial court's quashing of the subpoena to the couple the Court of Appeals held that the father did not demonstrate how the evidence would have been relevant to his case. With regard to the decision of the trial court to allow the couple to intervene even though they did not comply with the Juvenile Rules regarding intervention of parties, the Court of Appeals held that the father did not establish that the intervention was prejudicial to his rights. 

The father also assigned as error the trial court allowing certified copies of the mother's misdemeanor convictions into evidence. The Court of Appeals held that such evidence was allowed under Evid. R. 902 (4) and Evid. R. 803 (8), which is the hearsay exception for public records. 

Two of the assignments of error dealt with the finding by the trial court that R.P. was a dependent child. The Court of Appeals overruled those assignments of error, finding that the evidence was sufficient to support the dependency finding. 

The last two assignments of error dealt with the trial court not allowing copies of confidential records held by the CSB's counsel to be given to the father and the findings made by the trial court in support of its decision. Both assignments of error were overruled. 

In re J.B., 2013-Ohio-5727, released on December 26, 2013, affirmed the decision of the Summit County Juvenile Court that terminated the parental rights of the mother of J.B. and placed him in the permanent custody of the Children Services Board. The mother alleged that the finding that such termination was in the best interest of the child was against the manifest weight of the evidence. The Court of Appeals overruled that assignment of error. 

In re M.H., 2013-Ohio-5565, released on December 18, 2013, affirmed an order of the Summit County Juvenile Court terminating the parental rights of the mother of M.H. and placing her in the permanent custody of the Children Services Board. She argued that the order was an abuse of discretion by the trial court. The appellate court disagreed and affirmed the trial court's order. 

In re L.W., 2013-Ohio-5556, released on December 18, 2013, affirmed an order of the Juvenile Court finding that the best interests of L.W. were served by placing him in the temporary custody of the Children Services Board. Both the mother and the father appealed. 

Both parents assigned as error the trial court's finding that L.W. was dependent was against the manifest weight of the evidence. That assignment was overruled. 

The father assigned as error the trial court's finding that the child did not have to be personally served in order for the court to have acquired jurisdiction over the child. The Court of Appeals noted that objections to personal jurisdiction have to be made timely and that the father's refusal to make timely objections to the trial court having personal jurisdiction meant that he had forfeited that argument. 

The father also asserted as error the trial court's finding that it did not have to appoint counsel or a guardian ad litem for L.W. The Court of Appeals noted that such a finding is reviewed under an abuse of discretion standard and that there is not an absolute right for a child to be represented by counsel or a GAL in a dependency or neglect case, but only in an abuse case. Therefore that assignment of error was also overruled. 

In re V.H., 2013-Ohio-5408, released on December 11, 2013, affirmed the Juvenile Court's finding that V.H. was a delinquent child by reason of having the offense of gross sexual imposition. V.H. challenged the finding by arguing that the evidence was insufficient to support the Juvenile Court's finding of delinquency. The Court of Appeals reviewed the evidence and found it sufficient.  

Summit County Appellate Decisions in Criminal Cases, December 2013

The Court of Appeals for the Ninth Appellate District released 14 decisions in criminal cases out of Summit County during December of 2013. My summaries of these cases appear below. 

State v. Wood, 2013-Ohio-5802, released on December 31, 2013, affirmed Wood's criminal conviction for drug possession by the Summit County Common Pleas Court. Wood argued that the assistant prosecutor trying the case engaged in prosecutorial misconduct by introducing evidence that Wood had used a drug scale, a plate, and a razor blade to weigh and cut crack cocaine. The Court of Appeals affirmed the conviction and found that the evidence was relevant to show that Wood possessed the drugs involved in the charge. 

State v. Tayse, 2013-Ohio-5801,released on December 31, 2013, affirmed the denial of a petition for post-conviction relief by the Summit County Court of Common Pleas. The Court of Appeals held that the trial court ruled correctly when it held that the petition was filed untimely. 

State v. Carson, 2013-Ohio-5785, released on December 31, 2013, affirmed Mrs. Carson's conviction for one count of attempted deception to obtain a dangerous drug, a first degree misdemeanor. Mrs. Carson argued that her attorney was ineffective in not presenting certain evidence to the jury. The Court of Appeals pointed out that on that issue Mrs. Carson had the burden of proof on the issue that her trial attorney was not effective and that she didn't meet that burden. She also argued that the evidence was not sufficient to sustain the State's burden of proof and that her verdict was against the manifest weight of the evidence. Two judges of the appellate panel rejected all of Mrs. Carson's assignments of error. Judge Carla Moore would have sustained Mrs. Carson's manifest weight of the evidence assignment of error. 

State v. Culp, 2013-Ohio-5799, released on December 31, 2013, reversed a decision of the Summit County Court of Common Pleas. The reversal was because the trial court did not conduct an analysis of the offenses for which Culp was convicted to see if they merged for purposes of sentencing. The case was remanded so that the trial court could conduct such an analysis. 

State v. Bostick, 2013-Ohio-5784, released on December 31, 2013, sustained the defendant's convictions in the Summit County Common Pleas Court. Bostick had argued that the assistant prosecutor trying the case had unconstitutionally used her peremptory challenges to dismiss female jurors. The trial court conducted a brief hearing outside the presence of the jurors and overruled all three of the objections. The Court of Appeals affirmed. It held that  Batson v. Kentucky, 476 U.S. 79, 89 (1986), does not require a trial judge to conduct a in-depth hearing when ruling on a Batson challenge. 

Bostick also argued that a jury, and not the trial judge, should have determined whether he was a repeat violent offender. This assignment of error was also overruled. 

Editor's Note: I was not able to view the decision of State v. Maffei, 2013-Ohio-5787, which was also released on December 31, 2013. 

State v. Hrnjak, 2013-Ohio-5726, released on December 26, 2013, affirmed the denial of the defendant's motion to withdraw his guilty plea and/or for post-conviction relief. Hrnjak argued that his defense attorney failed to correctly advise him regarding the impact a conviction would have on his immigration status in the United States. He also alleged that the trial court erred in not conducting a live hearing instead of determining the motions from the record. Both assignments of error were overruled. Judge Carr's concurring opinion contains an interesting analysis of a recent United States Supreme Court decision regarding the duty of defense counsel in a criminal case to advise about the effects on a defendant's immigration status in the United States. 

State v. Hill, 2013-Ohio-5725, released on December 26, 2013, affirmed in part and reversed in part Hill's convictions for murder and felonious assault. Hill was charged with two counts of murder and four counts of felonious assault. He was found guilty of all charges and also found guilty of having a firearm when he committed the offenses. At sentencing the trial judge found that count two, which was for murder, merged into count one, also for murder. The judge also found that count four, for felonious assault, merged into count one. 

On appeal Hill argued that the evidence was insufficient to support a conviction for murder. He also argued that the evidence was insufficient to support a conviction for felonious assault on count three. The Court of Appeals overruled his assignment of error on the murder count but granted the assignment of error on the felonious assault count. In particular the appellate court found that the injuries received by the victim prior to being shot did not arise to the level of "serious physical harm" as that count required. 


State v. Valenti, 2013-Ohio-5564, released on December 18, 2013, affirmed a decision of the Summit County Common Pleas Court denying a motion to suppress. Valenti appealed raising the issue of whether she had been unreasonably detained by the police while they were waiting for a drug dog to arrive and walk about her boyfriend's vehicle. The Court of Appeals found that the approximate 19 minute delay was not unreasonable and overruled the assignment of error. 

State v. Powell, 2013-Ohio-5561, released on December 18, 2013, affirmed a decision of the Summit County Common Pleas Court denying a motion for judicial release. Powell was sentenced to four years in prison on one charge and one year in prison on a second charge, the two sentences to be served consecutively. Powell also received credit for 256 days of jail time against his sentences. When he filed the motion for judicial release the trial judge denied the motion because he had not filed according to the time limits for filing for judicial release when a defendant is serving a five year prison sentence. 

Powell raised two arguments in the appeals court. The first was that his cases should have been considered as two cases, not one case, for purposes of calculating time limits for filing a motion for judicial release. The second was that because he had been given 256 days of jail credit, he was not serving a five year sentence, even if both sentences were considered. For procedural reasons the Court of Appeals rejected both arguments. 

State v. McCallister, 2013-Ohio-5559, released on December 18, 2013, affirmed the decision of the Summit County Common Pleas Court denying McCallister's motion to withdrew his plea. McCallister argued that the trial court's omission in its sentencing entry of post-release control meant that his sentence was void. The appellate court found that the trial court had properly imposed post-release control in the sentencing entry. It also pointed out that even if it had not such an error would not void the sentence but would instead lead to the case being remanded for a proper imposition of post-release control. 

State v. Jackson, 2013-Ohio-5557, released on December 18, 2013, affirmed in part and reversed in part Jackson's convictions for two counts of murder, 10 counts of felonious assault, one count of firing a gun into a habitation, and one count of carrying a concealed weapon. Several of the counts also contained firearm specifications. 

In his first assignment of error Jackson argued that the evidence offered was insufficient to support his convictions for murder, felonious assault, and improper discharge of a firearm into a habitation. The Court of Appeals rejected this assignment of error and found that the evidence was sufficient. 

In his second assignment of error Jackson argued that the offenses of murder, felonious assault, and improper discharge of a firearm into a habitation were allied offenses of similar import. The Court of Appeals found that the offense of improper discharge of a weapon into a habitation merged with the felonious assault and murder counts but that the offenses of murder and felonious assault did not merge. 

State v. Marbury, 2013-Ohio-5306, released on December 4, 2013, affirmed the denial of Marbury's motion to "correct illegal or void sentence" by the Summit County Common Pleas Court. The appellate court overruled both assignments of error. It found that Marbury could have brought the assignments of error before the Court of Appeals by a direct appeal from his sentence. Since he did not, he could not bring them up after sentencing by a post-sentence motion. 

State v. Lerch, 2013 Ohio 5305, was released on December 4, 2013. Unfortunately I could not retrieve the document in order to summarize the decision. 

Lorain County Appellate Decisions, December, 2013

The Court of Appeals for the Ninth Appellate District released 10 Lorain County decisions in December of 2013. My summaries of the decisions appear below:

State v. Stone, 2013-Ohio-5782, released on December 30, 2013, was an appeal from the Lorain County Court of Common Pleas. At issue was the amount of jail credit that Stone should have received against his jail sentence imposed as a community control sanction. The Court of Appeals dismissed the appeal and held that it did not have jurisdiction to hear the appeal. It did not have jurisdiction and that Stone should have raised the issue in an appeal from the judgement entry of conviction. 

King v. Carleton, 2013-Ohio-5781, released on December 30, 2013, affirmed a decision of the Lorain County Juvenile Court. The appeal was filed pro se and the appellate court stated in its decision that it had difficulty understanding all the issues that the mother of the child was raising. The appellate court affirmed the decision of the Lorain County Juvenile Court granting overnight visitation to the child's father and also finding that the mother was in contempt, but imposing no penalty. 

State v. Bales, 2013-Ohio-5780, released on December 30, 2013, affirmed the Lorain County Common Pleas Court's order dismissing the case against Bales pursuant to Crim. R. 48. In dismissing the case the trial court made the following findings and set them forth in its journal entry. These findings included: 1) successful participation in the judicially created diversion program, (2) payment of fines and court costs, (3) no pending criminal charges, (4) no dependence on alcohol or drugs, and (5) a positive recommendation from the adult probation department. The Court of Appeals held that dismissing a charge after making such findings was not an abuse of discretion. 

In re T.A., 2013-Ohio-5646, released on December 23, 2013, affirmed a decision of the Lorain County Juvenile Court terminating the parental rights of both the mother and father of two minor children. The mother raised one assignment of error and the father raised two assignments of error. All assignments of error were overruled. 

Camera v. Lorain Civ. Serv. Comm., 2013-Ohio-5644, released on December 23, 2013, affirmed a decision of the Lorain County Common Pleas Court which, in turn, had affirmed a decision of the Lorain City Civil Service Commission. The Commission had terminated Camera's employment as Street Commissioner following his conviction for theft and tampering with records, both of which were first degree misdemeanors. The trial court found that there was reliable, substantial, and probative evidence supporting the Commission's decision. The Court of Appeals agreed. 

State v. Liebling, 2013-Ohio-5491, released on December 16, 2013, affirmed a decision of the Lorain County Common Pleas Court granting a motion to suppress evidence. The State raised two grounds for its appeal. One was that the trial court's factual findings were not supported by the record and the other was that the trial court improperly considered an argument not raised in the defendant's motion but was raised in a prior motion. 

The Court of Appeals rejected both arguments. it noted that the trial court had considered the testimony of both the Trooper making the traffic stop and Liebling. It found Liebling's version of events more plausible. Since the trial court is in the best position to judge the credibility of witnesses. The Court also found that the issue of the drug dog's credibility had been raised in a prior motion, it was not the basis of the trial court's ruling suppressing the evidence.

Bank of New York Mellon Trust Co. v. Bowers, 2013-Ohio-5488, released on December 16, 2013, affirmed a trial court's denial of a motion to set aside a judgment filed pursuant to Civ. R. 60 (B). The trial court denied the motion because Mr. and Mrs. Bowers did not asset that they had a meritorious defense and therefore could not satisfy their burden under Civ. R. 60.  

State v. Spurlock, 2013-Ohio-5369, released on December 9, 2013, affirmed in part and reversed in part a decision from the Elyria Municipal Court. Spurlock argued that his warrantless arrest violated his due process rights. That argument was rejected. he also argued that the State failed to show that the field sobriety tests were done in substantial compliance with testing standards as required by 4511.19(D)(4)(b). The Court of Appeals reversed the trial court on that assignment of error. In doing so it rejected the State's argument that Spurlock's motion did not set forth an adequate factual basis for the suppression of the test on those grounds. The Court of Appeals found that the State, by failing to object in the Municipal Court, had waived that argument. 

State v. Guerra, 2013-Ohio-5367, released on December 9, 2013, affirmed Guerra's conviction for aggravated murder. Guerra argued that his conviction was against the manifest weight of the evidence and that the evidence was insufficient to support his conviction. Both of those assignments of error were overruled. The Court of Appeals also rejected his argument that the trial court had improperly allowed evidence of prior confrontations between Guerra and the victim or friends of the victim. Guerra argued that the evidence was inadmissible under Evid. R. 404 and 403. That argument was also rejected. 

Bremke v. Sherck, 2013-Ohio-5361, released on December 9, 2013, reversed a decision of the Lorain County Common Pleas Court granting a motion for summary judgment in a case involving a vacated street and whether or not the defendants had an easement over the vacated land. The appellate court found that there was a material issue of fact regarding this issue and that a motion for summary judgment should not have been granted. 

Wayne County Appellate Decisions, December 2013

The Court of Appeals for the Ninth Appellate District released two decisions for appeals from Wayne County Courts in December of 2013. My summaries of these decisions appear below:

State v. Weese, 2013-Ohio-5789, released on 12/31/2013, reversed a decision of the Wayne County Municipal Court. The trial court had ordered Mr. Weese to pay court costs but did not tell him that if he didn't pay the court costs the court could order him to do community service. At the time of his sentencing the Court of Appeals held that R.C. 2947.23(A)(1)(a) required a sentencing judge to advise a defendant that failure to pay court costs could result in a community service requirement. The case was then remanded back to the trial court so that the trial court could properly order the payment of court costs. 

In re K.P., 2013-Ohio-5490, released on 12/31/2013, affirmed a decision on the Wayne County Juvenile Court ordering that the mother of K.P. be named sole residential parent. 

Appellate Decisions for Medina County for December of 2013

The Court of Appeals for the Ninth Appellate District released six decisions for appeals from Medina County courts during December of 2013. My summaries of these decisions appear below:

Dillard v. Automation Tool & Die, Inc., 2013-Ohio-5645, released on 12/23/2013. This decision held that a denial by a trial court of a motion to dismiss under Civ. R. 41 (A) (2) is not a final appellable order. Since the trial judge's order denying the motion could not be appealed, the appellate court did not have jurisdiction to hear the case. 

State v. Cooper, 2013-Ohio-5489, released on 12/16/2013, held that the Wadsworth Municipal Court properly denied a defendant's motion to suppress evidence. The defendant argued that motion should be granted on the basis of R.C. 4511.19(D)(4)(b). That section of the O.R.C. allows a police officer to testify as to the results of a field sobriety test if the trial court makes certain findings. The burden of proof set forth in that section is clear and convincing evidence. The Court of Appeals found that the trial court did not err in overruling the motion to suppress. 

Bonk v. Mitchell, 2013-Ohio-5487, released on 12/16/2013, held 2-1 that an appeal filed from a decision of the Medina Municipal Court was untimely and therefore the appeal should be dismissed. Judge Belfance dissented. The appellant did not file a response brief to the appellee's motion to dismiss the appeal. The dissent contains an interesting discussion regarding a trial court's duty under Civ. R. 58 and the effect that a failure to comply with that rule can have on the time to file an appeal. 

Drogell v. Westfield Group, 2013-Ohio-5262, released on 12/2/2013, upheld a decision of the Medina County Common Pleas Court granting a motion for summary judgment filed by Westfield. Mr. Drogell set forth two causes of action in his complaint. One was for age discrimination and the other was for disability discrimination. The trial court had awarded summary judgment on both causes of action. The decision contains an interesting discussion regarding whether a trial court has to consider a deposition that does not comply with the Ohio Rules of Civil Procedure. The majority held that it does not. In her dissent, however, Judge Carr maintained that the trial court should consider such a deposition unless there is an objection to the deposition being considered. 

There were two other decisions from Medina County that were released but I did not summarize them because I couldn't open them. The decisions are State v. Dukles and State v. Shank. If I can open the decisions at a later date this blog post will be updated. 

Summit County Appellate Decisions for November, 2013

The Court of Appeals for the Ninth Appellate District released 16 decisions for appeals from Summit County in November of 2013. Summaries of these decisions appear below. 

November 27, 2013 Decisions

State v. Robinson, 2013-Ohio-5237 was an appeal from the Summit County Common Pleas Court denying Mr. Robinson's motions to vacate his 2003 convicted for murder and other offenses. The majority of the court affirmed the trial court on two grounds. The first was that the entry that Robinson argued was defective was not a sentencing entry and therefore did have to comply with the requirements of Crim. R. 32. The second was that the remaining assignments of error should have been raised on direct appeal and therefore were subject to the doctrine of res judicata. Judge Carr concurred but reasoned that the trial court's conclusion that Robinson's motions were actually petitions for post-conviction relief and were untimely was correct. 

State v. Payne, 2013-Ohio-5230 was an appeal from a conviction of Mr. Payne for rape of a minor. Payne set forth two assignments of error.

One was that the trial court erred in allowing evidence of a conversation between the victim, who is now an adult, and himself to come into evidence. He argued that the evidence was obtained in violation of R.C. 2933.52 and that his statements amounted to an involuntary confession. The Court of Appeals found that while Payne had filed a motion in limine and a motion to suppress, he had not objected to certain testimony regarding the taped conversation and that he had therefore waived this assignment of error unless there was plain error. The appellate court then did a plain error analysis and found no such error. 

Payne also argued that the trial court should have sustained his Batson objection to the State's peremptory challenge of an African-American man. The Court of Appeals found that the State presented a racially neutral justification for the challenge and overruled that assignment also. 

State v. Deem, 2013-Ohio-5227 was an appeal from a conviction in the Summit County Common Pleas Court for aggravated possession of drugs. Mr. Deem set forth one assignment of error which was that the trial court erred in not granting his motion for a directed verdict of acquittal pursuant to Crim. R. 29. Such a motion is an attack on the sufficiency of the evidence offered by the State. In this case the Court of Appeals examined the evidence offered by the State and found that the trial court ruled correctly. The conviction was affirmed. 

State v. Parham, 2013-Ohio-5229 affirmed the conviction of Parham for drug possession. Parham argued that the trial court erred in not granting his suppression motion. He alleged that his statements to the officer should have been suppressed because he did not receive Miranda warnings. He also alleged that the arresting officer who conducted a pat-down search didn't have probable cause to pull out the packet of drugs that he felt when conducting the pat-down. The Court of Appeals held that Parham didn't show that he was subject to a custodial interrogation. It also held that he didn't establish that the arresting officer was lying when he said that he recognized the packet of drugs as contraband from his experience as a police officer. 


State v. Davis, 2013-Ohio-5226 affirmed the conviction of Davis for felony murder and aggravated robbery. At trial the jury found that Davis was not guilty of having weapons under a disability and the firearm specification attached to the indictment. 

Davis argued on appeal that the trial court erred in not granting his Crim. R. 29 motion for acquittal. The appellate court found that the trial court did properly deny the motion since the evidence was both sufficient to justify the case going to the jury and the conviction was not against the manifest weight of the evidence. 

Davis argued that since he was found not guilty of the firearm specification and having weapons under a disability, the convictions for felony murder and aggravated murder were inconsistent and should be reversed. The Court of Appeals pointed out that under Ohio case law a person can be found not guilty of a firearm specification and that such a verdict doesn't undermine the conviction on the underlying charge. 

Finally David argued that his attorney was ineffective for not requesting a severance of his trial from that of a co-defendant. This assignment of error was also overruled. 

State v. Boware, 2013-Ohio-5225 affirmed the dismissal by the Summit County Common Pleas Court of a petition for post-conviction relief on the basis that it was untimely. Boware filed the motion out of time. In the motion he did not set forth reasons why the trial court should have considered the motion. The trial court held that since he hadn't set forth reasons why the trial court should consider the post-conviction relief petition the trial court did not have jurisdiction to hear the petition. The Court of Appeals affirmed that position. 

November 20, 2013

Jacobson-Kirsch v. Kaforey, 2013-Ohio-5114  affirmed a decision from the Summit County Common Pleas Court dismissing a case on the basis that it was filed outside of the statute of limitations. The plaintiff brought the case for the tort of interference with parental interests. The plaintiff argued that an action brought under R.C. 2307.50 is not a civil action and therefore the statute of limitations set forth in R.C. 2305.04 through R.C. 2305.22. The Court of Appeals disagreed finding that such an action is a civil action and should be brought within the statute of limitations set forth in R.C. 2305.09 (D), which is four years. 

State v. Brown, 2013-Ohio-5112 affirmed in part and reversed in part a decision by the Summit County Common Pleas Court. The Court of Appeals overruled the assignment of error that the trial court's verdict was against the manifest weight of the evidence. It reversed in part based on the fact that the trial court should have conducted an analysis to see if the offenses were allied offenses of similar import. The case was remanded back to the trial court in order to allow that court to conduct such an analysis. 

November 13, 2013 

Univ. of Akron v. Jones, 2013-Ohio-4999 affirmed a judgment of the Summit County Common Pleas Court. Mr. Jones raised two assignments of error in the Court of Appeals. The first assignment was that the trial court erred in not dismissing the case for lack of standing. The second assignment of error was that the trial court erred in not holding a hearing to determine whether he had been served properly. Both assignments of error were overruled. 

In re M.T.B., 2013-Ohio-4998 affirmed a decision of the Summit County Common Pleas Court, Juvenile Division, returning her children to M.T.B.'s custody while placing under the protective supervision of the Summit County Children Services Board. The mother alleged four assignments of error. 

The first was that the trial court should have dismissed the complaint regarding one of the children because service wasn't perfected on the father. The Court of Appeals noted that even if she had standing to raise that issue, she should have raised in the trial court. Her failure to do so waived that error. 

The second assignment of error concerned the ability of a visiting judge assigned to the Summit County Juvenile Court by the Ohio Supreme Court to sign an order adopting the magistrate's decision. The Court of Appeals noted that even if the visiting judge didn't have the authority to adopt the magistrate's order, it wouldn't have affected the Summit County Juvenile Court Judge's authority to sign a final order of disposition. 

The third assignment of error alleged that the trial court should have made what is described as a "reasonable efforts" determination regarding actions of the CSB. The Court of Appeals noted that such a determination is not required if the trial court has not removed or is not removing the child from the parent's home. Since the trial court was not issuing such an order in this case, it was not required to make such a finding. 

The fourth and final assignment of error was that the finding of the trial court that two of the children were dependent was against the manifest weight of the evidence. That assignment was also overruled. 

State v. Gordon, 2013-Ohio-4997 affirmed a decision of the Summit County Common Pleas Court denying a motion to suppress. Gordon alleged that the arresting officer didn't have probable cause to make a warrantless arrest for the offense which the officer subjectively believed that Gordon was committing. The Court of Appeals noted that the officer's subjective belief as to what crime he or she is arresting a defendant for is not relevant. The issue is whether the officer could have made a warrantless arrest for any offense that he or she had probable cause to believe was committed. Applying that standard meant that the trial court was affirmed. 

State v. Bryant, 2013-Ohio-4996 affirmed the denial of a motion to vacate sentence by the Summit County Common Pleas Court. Bryant had argued that the trial court erred in considering his motion as a petition for post-conviction relief and then holding that the petition was untimely. Bryant argued that the trial court did not properly merge allied offenses of similar import for sentencing. The Court of Appeals held that if a trial judge does not merge allied offenses, the sentence is voidable but not void. Since the sentence wasn't void, the trial court was correct in holding that the motion to vacate was really a petition for post-conviction relief, and that it was untimely filed. 

November 6, 2013

State v. Williams, 2013-Ohio-4897 affirmed a decision by the Summit County Common Pleas Court that the petition for post-conviction relief filed by Williams was untimely. Although Williams had titled his motion as a motion to vacate sentence, the trial court found that the motion was really a petition for post-conviction relief. 

The reason was this was so is seen by this quote from the Court of Appeals opinion: "The Supreme Court of Ohio has held that, “[w]here a criminal defendant, subsequent to his or her direct appeal, files a motion seeking vacation or correction of his or her sentence on the basis that his or her constitutional rights have been violated, such a motion is a petition for post-conviction relief as defined in R.C. 2953.21.” State v. Reynolds, 79 Ohio St.3d 158 (1997), at syllabus." Once the motion was considered as such a petition, it then becomes subject to the time limits for such motions and it was untimely. 

State v. Stoddard, 2013-Ohio-4896 affirmed Stoddard's conviction by the Summit County Common Pleas Court. Stoddard argued that his guilty plea was not knowingly, intelligently, and voluntarily made and that the trial court abused its discretion by not considering mitigating factors when it sentenced him. Both assignments of error were rejected. 

State v. Russell, 2013-Ohio-4895 affirmed the denial of a motion to suppress by the Summit County Common Pleas Court. Russell argued that the affidavit submitted by the officer was not sufficient to establish that the drugs and/or contraband would be found at the premises to be searched. The Court of Appeals reviewed the affidavit and found that even if the one paragraph that was disputed by Russell were not considered, the affidavit still have enough information to establish probable cause. 

Prussak-Klein v. Durachinsky, 2013-Ohio-4894 affirmed a decision of the Summit County Domestic Relations Court regarding whether or not tutoring expenses for the child of the parties was a "medical expense" and whether the motion for back child support was barred by the doctrine of res judicata. The Court of Appeals found no error by the trial court and both assignments of error were overruled. 

Medina County Appellate Decisions for November, 2013

The Court of Appeals for the Ninth Appellate District issued three decisions for appeals from Medina County during the month of November. All three decisions were issued on November 12, 2013.Summaries of the decisions appear below. 

 Sunset Estate Properties, L.L.C. v. Lodi, 2013-Ohio-4973 reversed a decision from the Medina County Common Pleas Court that upheld a zoning ordinance in the Village of Lodi that declared a mobile home park lot vacant if it had not been rented for six months. Such a declaration meant that the Lodi Board of Public Affairs wouldn't extend utility service to such lots. The Court of Appeals found that the ordinance was facially unconstitutional. The Court of Appeals reversed the granting of a summary judgment to the Village of Lodi on the grounds that the section involved was unconstitutional. It remanded the case back to the trial court for further proceedings. 

State v. McDonald, 2013-Ohio-4972  affirmed a decision by the Medina County Common Pleas Court Mr. McDonald him of various sexual offenses including three counts of rape. McDonald alleged four assignments of error. They were that the trial court erred in allowing a witness to testify as an expert; that the verdict was against the manifest weight of the evidence; that the trial court erred in admitting hearsay testimony; and that the trial court erred when it denied a motion to sever the charges. 

State v. Garnett, 2013-Ohio-4971 affirmed a decision of the Medina County Common Pleas Court convicting Mr. Garnett of drug trafficking in an amount equal to or greater than bulk amount. The appeal was based on the argument that the State erred in only testing one of the alleged Oxycodone pills and that it should have tested more. The Court of Appeals affirmed the conviction and held that the State could test a random sample of the pills given that the pills were identical, carried the same markings, and were manufactured by a pharmaceutical company.  

Wayne County Appellate Decisions for November, 2013

The Court of Appeals for the Ninth Appellate District released one decision on an appeal from Wayne County. That decision was released on November 12, 2013. A summary of the decision appears below. 

State v. Fields, 2013-Ohio-4970 affirmed a decision from the Wayne County Municipal Court. Mr. Fields appealed his conviction for driving while under the influence of alcohol. Mr. Fields was originally arrested in March of 2007. When the first trial date appeared Mr. Fields orally waived on the record his right to a speedy trial. He failed to appear and a warrant was issued for his arrest. In June of 2011 he filed a motion to dismiss for lack of speedy trial. That motion was denied. He then filed motions for a pretrial and discovery. The case went to trial and August of 2012 and he was found guilty. 

The Court of Appeals affirmed the trial court's denial of the motion to dismiss under the following analysis: From the time he orally waived his right to a speedy trial until he filed the motion to dismiss was tolled because of the waiver. Then from the time the motion to dismiss was filed until the trial date was reasonable because of delays attributable to the motions that Mr. Fields had filed. 

Lorain County Appellate Decisions for November, 2013

The Court of Appeals released four decisions for cases on appeal from Lorain County courts. Summaries of those decisions are set forth below. 

Deutsche Bank v. Holloway, 2013-Ohio-5194 was released on November 25, 2013. The decisions reversed a decision from the Lorain County Common Pleas Court granting a motion for summary judgment to the bank. The trial court was reversed because the bank didn't show that it had standing to bring the foreclosure. The decision relied on the Ohio Supreme Court decision of   Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, ¶ 28 and the Ninth District's own decision in BAC Home Loan Servicing, LP. v. McFerren, 9th Dist. Summit No. 26384, 2013-Ohio-3228, ¶ 8, 13. The latter decision holds that a plaintiff in a foreclosure action must show that it holds both the note and the mortgage when it files the action. 

In re A.H., 2013-Ohio-5080 was released on November 19, 2013. The appeal was from a decision of the Lorain County Common Pleas Court, Juvenile Division,  revoking probation for A.H. for 90 days. The appellate court found the appeal to be moot since he had already served the 90 day revocation period. 

State v. Ditzler, 2013-Ohio-4969 was released on November 12, 2013. The appeal was from a decision of the Lorain County Common Pleas Court denying a motion to void Mr. Ditzler's sexually violent predator specification. Ditzler argued that based on a Ohio Supreme Court decision that had held that a defendant could not be found guilty of such a specification if the predicate offense was not prior to the specification date. The Court of Appeals found that since Ditzler had not appealed this issue back in 2000 when he was convicted, there was no appeal pending from him at the time the Ohio Supreme Court released its decision. Therefore he could not raise the issue on this appeal. 

A.S. v. P.F., 2013-Ohio-4857 was released on November 4, 2013. The decision affirmed the granting of a civil stalking protection order by Lorain County Court of Common Pleas. The decision is very fact specific. The Court of Appeals noted that the decision of the trial court was done under the recently amended Civ. R. 65.1 which allows a magistrate to issue a civil stalking protection order and that order may be reviewed on appeal without the appellant having filed for review by the trial court prior to the appeal. Judge Carr dissented from the holding since she believed that the appellee did not establish a basis for the protection order. 

Income Calculations for Child Support May Include Employer Benefits

Click here to read the opinion summary of Morrow v. Becker prepared by the Ohio Supreme Court's Office of Public Information. 

Hazard in City Park Does Not Affect City’s Recreational Use Immunity

Click here to read the opinion summary issued by the Ohio Supreme Court's Office of Public Information regarding the Court's decision in Pauley v. Circleville. 

Supreme Court Decision Regarding Expert Witness Testimony & Medical Bill Write-Off

In Moretz v. Muakkassa the Ohio Supreme Court wrote the following in the third paragraph of the opinion syllabus: "R.C. 2317.421 obviates the necessity of expert testimony for the admission of evidence of write-offs, reflected on medical bills and statements, as prima facie evidence of the reasonable value of medical services. (R.C. 2317.421, construed.)" The Court of Appeals for the Ninth Appellate District had held that such testimony was required. Note that the actual wording of the syllabus would seem to require that the bill or statement contain information showing the write-off. 

Ninth District Opinions for October 5 through October 31, 2013

State v. Burns, 2013-Ohio-4784 affirmed in part and reversed in part Mr. Burns' conviction from the Summit County Common Pleas Court. Burns was convicted of several offenses, including felonies. Burns appealed alleging that his convictions were based on insufficient evidence, that his counsel was ineffective, and that the trial court allowed inadmissible evidence to be introduced by the State. All of those assignments of error were overruled. 

The Court of Appeals, however, did remand the case back to the trial court to take care of some sentencing issues. One was that the trial court just ordered the imposition of costs as a sentence on three minor misdemeanor counts. The Court of Appeals found that costs cannot be a sentence and that a trial court cannot not impose a sentence in a criminal or traffic case. Therefore the remand was necessary to correct that problem. 

A remand was also necessary to correct sentences that were imposed on offenses that the trial court found had merged with each other for purposes of sentencing. 

Dunn v. State Auto. Mut. Ins., 2013-Ohio-4758 affirmed a decision from the Lorain County Common Pleas Court denying a motion to vacate a judgment under Civ. R. 60 (B). Mr. Dunn raised two issues. One was that the trial court denied him due process when it overruled his motion since he had not received the four notices that were sent to him warning him of a possible dismissal if action was not taken. The second issue was that his counsel was ineffective in representing him. 

The Court of Appeals found that Dunn had not alleged enough facts in his motion to establish that he had a possible meritorious defense, as required by GTE Automatic Elec. Inc. v. ARC Indus. Inc., 47 Ohio St.2d 146, paragraph two of the syllabus (1976). Therefore the Court of Appeals was not able to say that the trial court erred in denying the motion to vacate. With regard to the second issue the Court of Appeals found that a civil litigant cannot raise the issue that his or her counsel was ineffective. 

State v. Winchester, 2013-Ohio-4683 affirmed Mr. Winchester's rape conviction out of the Summit County Common Pleas Court. Winchester alleged that the he was deprived of due process because his conviction was against the manifest weight of the evidence, was based on insufficient evidence, because he had ineffective assistance of counsel, because the trial court improperly sentenced him for two offenses that were allied offenses of similar import and because the trial court improperly denied his counsel the right to argue that one of the State's witness had a motive to lie. All of Winchester's assignments of error were overruled. 

State v. Smith, 2013-Ohio-4682  affirmed Mr. Smith's conviction for felonious assault by the Summit County Common Pleas Court. Smith claimed that the trial court erred in sentencing him to 11 years in prison. His arguments were that the trial court failed to consider the sentencing criteria listed in R.C. 2929.12 and that the trial court failed to consider the criteria listed in R.C. 2929.12 (E) regarding the likelihood of recidivism. Both assignments of error were overruled. 

State v. Randles, 2013-Ohio-4681 affirmed Mr. Randles sentence for rape by the Summit County Common Pleas Court. Randles argued that the trial court erred in sentencing him to 25 year to life for the rape. He maintained that the 
verdict form did not contain a finding that the victim was under 13 years of age or that he engaged in sexual conduct with the victim. The Court of Appeals pointed out that the indictment charged him with a violation of R.C. 
2907.02(A)(1)(b). In order to be found guilty the State had to prove beyond a reasonable doubt both of those facts. If the jury would have had a reasonable doubt as to either of those facts, it would have found him not guilty. Therefore the sentence for the offense which he was found guilty of was appropriate. 

State v. Johnson, 2013-Ohio-4680 reversed in part and affirmed in part a decision from the Summit County Common Pleas Court which convicted Mr. Johnson of rape and gross sexual imposition. The trial court sentenced Johnson to two maximum sentences of 11 and 3 years. Johnson appealed claiming that the trial court had abused its discretion by imposing the maximum sentences consecutively. The court of appeals found that the 11 sentence for rape was not correct since Johnson committed the rape prior to the effective date of HB 86, which increased the penalties for first degree felonies from 10 to 11 years. Johnson also argued that he should not have received consecutive sentences, but the Court of Appeals determined that the issue was not ripe for review since it had to remand the case for re-sentencing. 

In re M.C., 2013-Ohio-4679 affirmed a decision from the Summit County Juvenile Court terminating parental rights and transferring custody to the Summit County Children Services Board. Both parents appealed. The mother argued that the trial court's denial of her motion to transfer custody to her was against the manifest weight of the evidence. The father argued that the trial court's decision was not supported by clear and convincing evidence and was also against the manifest weight of the evidence. All three judges agreed that the finding with respect to the mother was correct, but Judge Carr dissented with respect to the father's assignment of error. 

Summit Cty. Fiscal Officer v. Helms, 2013-Ohio-4678 dismissed an appeal from a decision of the Summit County Common Pleas Court because there was not a final order. The case was one for delinquent taxes on a vacant lot. There were several other parties that had liens on the lot. The order was not a final order because the trial court did not include a specific amount that was due to the plaintiff for back taxes. The case was then remanded for further proceedings. 

Batcher v. Pierce, 2013-Ohio-4677 affirmed in part and reversed in part a decision from the Summit County Domestic Relations Court that modified child support due to Pierce from Batcher and denied Pierce's motion to terminate the shared parenting plan that the parties had entered into. The Court found that the trial court abused its discretion in lowering the child support due to Pierce from Batcher because it had not undertaken an analysis of whether there had been a change in circumstances justifying the child support reduction. The Court of Appeals affirmed, however, the trial court's decision not to terminate the shared parenting plan.


State v. Hairston, 2013-Ohio-4634 affirmed an order from the Lorain County Common Pleas Court denying Mr. Hairston's motion to resentence him. Hairston argued that the trial court improperly failed to sentence him on all the offenses for which he was convicted. The Court of Appeals noted that since some of the offenses had merged into other offenses, the trial court acted appropriately. Hairston also argued that the trial court improperly imposed consecutive sentences. The Court of Appeals rejected this argument since it could have been brought up by direct appeal. 

Bernardini v. Fedor, 2013-Ohio-4633 reversed in part and affirmed in part the granting of a motion for summary judgment in a legal malpractice case. The trial court granted the motion for summary judgment because Mr. Bernardini had not produced an expert opinion that Mr. Fedor's alleged malpractice was the proximate cause of his damages. The Court of Appeals reversed since such an opinion is not required in every malpractice case and f whether it is required in a particular case depends on an analysis of the nature of the malpractice claim and the attendant circumstances. Therefore the order of the trial court was reversed and the case remanded for further proceedings on that assignment of error.

Akron v. Turner, 2013-Ohio-4578 dismissed an appeal from the Akron Municipal Court's order denying Ms. Turner's administrative appeal of her license suspension. The Court of Appeals found that it did not have jurisdiction since Turner untimely filed her appeal from the trial court's decision regarding her license suspension. The Court of Appeals noted that the license suspension and the underlying operating while under the influence charge are separate proceedings. Turner filed her appeal after she had been found not guilty of OMVI but guilty of speeding and failing to yield. She should have filed it when the trial court denied her license suspension appeal which took place approximately a month before the trial for OMVI and the two minor misdemeanors. 

State v. Proctor, 2013-Ohio-4577  affirmed Mr. Proctor's conviction for the felony theft by the Summit County Common Pleas Court. Proctor appealed citing two assignments of error. The first was that the trial court erred in not finding that he was convicted of a misdemeanor since the verdict form did not include a special finding that the property taken was a motor vehicle. The Court of Appeals found that since he did not object to the verdict form at the time the form was submitted he had to show that the use of the verdict form was plain error and he did not show plain error. Proctor also argued that his lawyer was ineffective. Since the record supported a finding of guilt on the fourth degree felony charge, he could not show ineffective assistance of counsel. 

State v. Berkenstock, 2013-Ohio-4576 affirmed a decision from the Summit County Common Pleas Court sentencing him to 42 months in prison for conviction of fourth and fifth degree felonies. Mr. Berkenstock argued on appeal that the trial court abused its discretion in imposing consecutive sentences. The appellate court found that the trial court had complied with R.C. 2929.14(C)(4) and made the requisite findings on the record. It also found that since the pre-sentence investigation report wasn't made part of the record on appeal it could not determine whether imposing consecutive sentences was an abuse of discretion. The same analysis also applied to Mr. Berkenstock's assignment of error that the trial court abused its discretion in imposing a maximum sentence. That is, given the fact that the psi was not in the record, the appellate court could not undertake an abuse of discretion review. 

State v. Troutman, 2013-Ohio-455 affirmed Mr. Troutman's conviction in the Lorain County Common Pleas Court. Troutman argued that his conviction was based on insufficient evidence, was against the manifest weight of the evidence and that the trial court erred in not granting a suppression motion. All three assignments of error were overruled. 

State v. Stambaugh, 2013-Ohio-4558 reversed a decision by the Medina County Common Pleas Court sentencing Mr. Stambaugh to one year in prison. The basis of the appeal was that the trial court should have sentenced Stambaugh to nine months in prison instead of one year. Originally the trial court had ordered community control sanctions for Stambaugh and said that if he violated the community control sanctions he would receive a one year prison term. In September of 2012 the trial court sentenced him to nine months in prison for violating community control sanction. At the request of the Bureau of Sentence Computation the trial court held another sentencing hearing on October 29, 2012 to clarify the amount of jail time credit Stambaugh should receive. Following that hearing the trial court issued a new sentencing entry ordering a one year prison sentence. The Court of Appeals held that since the entry imposing the nine month prison sentence was a final and appealable order, the trial court did not have jurisdiction to then order a one year prison sentence. 

Pfizer, Inc. v. Schmidlin, 2013-Ohio-4557 affirmed a decision from the Lorain County Common Pleas Court denying a motion to vacate a judgment under Civ. R. 60 (B). Ms. Schmidlin argued that her failure to file an answer was caused by inadvertence and excusable neglect, In particular she argued that she believed the case would proceed like a small claims case and she would be able to appear in court after receiving notice of a hearing date. In this particular case the appellate court found by a 2-1 decision that she was not entitled to her the default judgment vacated. Judge Belfance dissented because she believed the trial court should have held a hearing on the motion. 

State v. Robertson, 2013-Ohio-4556 affirmed a decision from the Medina County Common Pleas Court denying Mr. Robertson's motion to withdraw his guilty plea. The trial court found that the claim was barred by the doctrine of res judicata since Robertson had raised the same issue in a prior decision by the trial court that had been affirmed by the Court of Appeals. 

State v. Perry, 2013-Ohio-4466 affirmed a decision by the Summit County Common Pleas Court denying a motion for post-conviction relief. Mr. Perry filed his motion untimely. Since he filed it out of time he had to show that the filing of his untimely petition satisfied R.C. 2953.23(A). That section requires a petitioner to show that he or she was unavoidably prevented from discovering the facts upon which the petitioner must rely to establish the claim. If the petitioner is alleging that there was a constitutional error he or she must establish by clear and convincing evidence that bur for the constitutional error no reasonable tried of fact would have found the petitioner guilty. In this case Perry did not establish that R.C. 2953.23 (A) applied to his case. 

State v. Rapp, 2013-Ohio-4408  affirmed a decision by the Wayne County Municipal Court denying a motion to suppress. Mr. Rapp argued that the trial court had erred when it ruled that based on the report of a citizen informant the Ohio State Highway Patrol trooper lacked a reasonable suspicion to justify a traffic stop. He also argued that the trial court erred when it denied his motion to file a subsequent motion to suppress. Both assignments of error were overruled. 

Burr v. Nationwide Mut. Ins. Co., 2013-Ohio-4406 reversed a decision from the Lorain County Common Pleas Court granting a motion for summary judgment. The case arose from the death of a person on a motorcycle. Nationwide insured the operator of the vehicle that struck the motorcycle. The motorcycle had two people on it when the collision occurred, the driver and his passenger. The driver was killed. His estate settled with Nationwide and with the insurance company that covered him. Nationwide then claimed that since the settlement with AIG, the insurance carrier that covered the operator, it was released from all liability. The Estate then sued alleging fraudulent inducement, breach of contract, promissory estoppel, and unjust enrichment. The trial court found that the AIG settlement had released Nationwide. The Court of Appeals found that there was a material issue of fact since the Estate was alleging that the torts which were the basis for the lawsuit against Nationwide arose out of the settlement negotiations and therefore there was a question of whether the release covered such torts. 

State v. Hartman, 2013-Ohio-4407 reversed a conviction of Mr. Hartman by the Medina County Common Pleas Court for errors that occurred during the trial. The State has filed an appeal to the Ohio Supreme Court.