Case Caption

Case No.Topics and IssuesAuthorDecided
State v. Barnes 104910Ineffective assistance of counsel; motion to dismiss; preindictment delay; guilty plea. By pleading guilty, appellant waived any claim of ineffective assistance of counsel based on counsel's failure to file a motion to dismiss for preindictment delay. Even if appellant did not waive an ineffective assistance of counsel claim, he failed to demonstrate that he was actually prejudiced by the preindictment delay.Celebrezze 1/11/2018
Hammon v. Huntington Natl. Bank 105107Civ.R. 12(b)(6); motion to dismiss; alternative motion for summary judgment; Civ.R. 56; guardianship; estate of minor ward; final account; res judicata; statute of limitations. The trial court misapplied the discovery rule to plaintiff-appellant's fraud claim against the former guardian of his estate as a minor. The former guardian's administration of the estate was separate and distinct from assurances the guardian allegedly made to plaintiff-appellant's parents regarding trust investment returns upon which plaintiff-appellant alleges that he and his family relied. Issues of material fact remained as to when plaintiff-appellant should have discovered the basis for his fraud claim, specifically the fact that the trust documents themselves did not guarantee return of the principal amounts. Plaintiff-appellant's claims against the trust company and the attorney for the estate were properly dismissed. Plaintiff-appellant failed to plead with sufficient particularity his fraud claims against the trust company and the attorney. Additionally, the complaint conclusively showed on its face that the breach of trust claim was barred by the statute of limitations.Kilbane 1/11/2018
State v. Brown 105211 & 106278Sentencing; sanctions; community control; conditions; violation; notification; prison term; journal entry; resentencing; restrictive; remedy; remand; vacate. The trial court erred in imposing a term of imprisonment for the community control violation based on its failure to make the necessary advisements under R.C. 2929.19(B)(4). At the resentencing, the trial court must choose between the only options remaining under R.C. 2929.15(B): (1) impose a longer time under the same sanction or, (2) impose a more restrictive sanction.Gallagher 1/11/2018
Adams v. McElroy 105399Motion to vacate; motion for relief from judgment; Civ.R. 60(B); default judgment; service of process; void judgment; personal jurisdiction; due process; Civ.R. 4.1; evidentiary hearing; abuse of discretion. Appellant's motion to vacate the default judgment entered against her based on lack of service contained operative facts that warranted relief from judgment. Thus, the trial court abused its discretion by denying appellant's motion to vacate without holding an evidentiary hearing.Celebrezze 1/11/2018
State v. Binford 105414Sufficiency of evidence; manifest weight of evidence; ineffective assistance of counsel; consecutive sentences. Defendant's convictions for felonious assault, having weapons while under disability, and improperly handling firearms in a motor vehicle were supported by sufficient evidence and were not against the manifest weight of the evidence; there is no requirement the state must produce the gun used by defendant, and two witnesses testified that they saw the defendant shooting out of his car window; trial counsel was not ineffective for not introducing a police body camera video into evidence where counsel asked a witness about his inconsistent statements on the video and those statements were not necessarily helpful to the defendant's defense; the trial court properly imposed an 11-year prison sentence where the record reflects the court considered the purposes and principles of R.C. 2929.11 and the factors of R.C. 2929.12, and made the R.C. 2929.14(C)(4) statutory findings for imposing consecutive sentences.Keough 1/11/2018
State v. McNeir 105417Crim.R. 11, coercion, competency hearing, waiver, harmless waiver. The trial court's colloquy with the defendant was not coercive, and the defendant's guilty plea was voluntary. Further, the trial court did not err in failing to hold a competency hearing because the defendant failed to maintain his request for a hearing and, even if he did properly maintain his request, there was insufficient indicia of incompetence.Boyle 1/11/2018
State v. Carzelle 105425Allied offenses, felonious assault, discharging of a firearm on or near prohibited premises. The trial court did not err in imposing a consecutive sentence for felonious assault and discharging a firearm on or near prohibited premises because these offenses are not allied offenses. The offenses were committed with separate animus or motivation and caused a separate, identifiable harm.Laster Mays 1/11/2018
Butler v. Cleveland Clinic 105457Trip and Fall; open and obvious. Trial court did not err in awarding Cleveland Clinic summary judgment in trip and fall case where plaintiff was hurt while stepping onto open and obvious raised concrete island.Blackmon 1/11/2018
McMillan v. Lakewood 105463Administrative appeal; variance; setback; air conditioner; moot; ordinance; amended; practical difficulty; preponderance. Affirmed trial court's decision finding appellant's administrative appeal moot and, in the alternative, affirming the decision of the Lakewood Board of Zoning Appeals that granted a three-foot variance to an adjoining property owner for the installation of an air conditioner condenser unit. The zoning ordinance had been amended with regard to the setback requirement, and the trial court's decision was supported by the preponderance of substantial, reliable, and probative evidence where upon the evidence presented, the board could have reached a determination of practical difficulty and found in favor of granting the variance.Gallagher 1/11/2018
State v. Burton 105470Consecutive sentences; firearm specification; R.C. 2929.14; due process; forfeiture; R.C. 2981.04. Pursuant to R.C. 2929.14(C)(1)(a), the trial court was required to impose consecutive sentences on the two firearm specifications. Appellant's due process rights were not violated regarding forfeiture of property seized from her home.Celebrezze 1/11/2018
In re J.F. 105504Permanent custody; custody; visited; best interests of the child; trial court; juvenile court; legal custody; foster, factors; relative; case plan; suitable; restrictive. The trial court did not abuse its discretion when it found by clear and convincing evidence that granting permanent custody to CCDCFS was in the children's best interests. The trial court's decision to terminate Mother's parental rights was supported by clear and convincing evidence.Gallagher 1/11/2018
Cleveland v. Reynolds 105546Aggravated menacing; subjective belief of serious physical harm; other acts evidence. Testimony that defendant's statement threatening to kick the victim's teeth down her throat was sufficient to establish the victim's subjective belief that defendant would inflict serious physical harm upon the victim. In an aggravated menacing prosecution, the court did not err by allowing victim to testify to prior instances of violence committed against her by the defendant because evidence of the defendant's violent character was admissible to prove that the victim believed that the defendant would cause serious physical harm to her.Stewart 1/11/2018
Akerstrom v. 635 W. Lakeside, Ltd. 105580Condominium development; R.C. Chapter 5311; damages. The trial court erred by imposing a judgment in favor of a plaintiff for damages incurred by, and to be paid to, a nonparty - a condominium association is a legal entity separate from the individual unit owners.Gallagher 1/11/2018
State v. Shivers 105621Sentence; R.C. 2929.11; R.C. 2929.12; clear and convincing; support; contrary to law; due process; guilty plea; waiver; preindictment delay; actual prejudice. Sentence was affirmed where the sentencing transcript and the judgment entry of conviction reflected that the court considered the factors set forth in R.C. 2929.11 and R.C. 2929.12, and it could not be determined by clear and convincing evidence that the record did not support the sentence or that the sentence is otherwise contrary to law. Appellant's guilty plea resulted in a waiver of any alleged due process violation arising from preindictment delay and, irrespective of waiver, appellant failed to demonstrate that he was actually prejudiced by preindictment delay.Gallagher 1/11/2018
Philbin v. Cleveland 105767Subject-matter jurisdiction; motion to dismiss; administrative appeal; R.C. 2506.01; zoning. The trial court erred by determining that the BZA and the court itself lacked jurisdiction to hear the appeal from the decision of the Cleveland Landmarks Commission. This matter is remanded for the trial court to determine the merits of the appeal.Celebrezze 1/11/2018
State v. Justen 105856Anders; R.C. 2929.14; Cruel and unusual punishment; consistency in sentencing. Appellant pled guilty to aggravated vehicular homicide, aggravated vehicular assault and other offenses in connection with a motor vehicle collision associated with heroin use, and was sentenced to an eight year term of imprisonment. Appellant's counsel was permitted to withdraw from case and appeal was dismissed where potential assignment of error challenging maximum term, and pro se assignments of error raising cruel and unusual punishment and lack of consistency in sentencing, all lacked arguable merit.Blackmon 1/11/2018
State v. Johnson 105904Sexual predator classification; masturbation; allied offenses; waiver. Competent credible evidence that defendant's habit of publicly masturbating while in prison, in addition to the circumstances of a rape, supported trial court's decision to classify defendant as a sexual predator. Defendant waived the right to raise the issue of allied offenses on appeal because he specifically agreed in the plea bargain that the offenses did not merge for sentencing.Stewart 1/11/2018
State v. Anderson 104460App.R. 26(B); application to reopen; ineffective assistance of appellate counsel; manifest weight; insufficient evidence; ineffective assistance of trial counsel; prosecutorial misconduct; appellate review limited to the record; and strategy and tactics on appeal. Applicant's claims of ineffective assistance of appellate counsel were not well taken. Several of his arguments required evidence outside the record, and appellate review is limited to the record. Appellate counsel raised many of the points that the applicant raised in support of a manifest weight of the evidence argument. This court will not second-guess counsel's reasonable professional decisions on strategy and tactics.McCormack 1/10/2018
State v. Young 104627App.R. 26(B) application for reopening, timely filed, ineffective assistance of appellate counsel, manifest weight of the evidence. The appellant has filed a timely App.R. 26(B) application for reopening and has raised one proposed assignment of error in support of his claim of ineffective assistance of appellate counsel. The appellant argues that his appellate counsel was ineffective by failing to raise on appeal the claim that his conviction was against the manifest weight of the evidence. A challenge to the manifest weight of the evidence involves whether the state has met its burden of persuasion. When considering the manifest weight of the evidence, this court must also determine the credibility of each witness. However, determinations regarding the credibility of any witness and the weight of offered testimony are primarily issues for the trier of fact. After reviewing the entire record, weighing the evidence and all reasonable inferences, and considering the credibility of all witnesses and resolving any conflicts, we cannot agree that the trial court, as the trier of fact, "clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." Thus, we find no merit with regard to the appellant's proposed assignment of error. The appellant was not prejudiced by the failure of appellate counsel to raise the issue of manifest weight upon appeal. Application for reopening is denied.Kilbane 1/10/2018
State v. Harris 104833App.R. 26(B); application to reopen; ineffective assistance of appellate counsel; R.C. 2903.02(A); R.C. 2903.02(B); sufficiency of the evidence; and manifest weight of the evidence. Appellate counsel properly rejected a sufficiency of the evidence argument based on the element of purposefully under R.C. 2903.02(A), because the applicant was charged under R.C. 2903.02(B) that does not require proof of purposefully. In marshaling the evidence to support the manifest weight argument, appellate counsel's decision not to tender speculation was a reasonable, professional, tactical decision.Gallagher 1/8/2018
State v. Nunez 104623App.R. 26(B) application for reopening, ineffective assistance of appellate counsel, manifest weight of the evidence, sufficiency of the evidence, Crim.R. 29 motion for acquittal. The appellant has filed a timely App.R. 26(B) application for reopening. In support of his application for reopening, the appellant has raised two proposed assignments of error: 1) conviction for felonious assault not supported by sufficient evidence; and 2) trial court erred by failing to grant a Crim.R. 29 motion for acquittal. Although sufficiency of the evidence and manifest weight of the evidence comprise different legal concepts, manifest weight must subsume sufficiency in conducting the required analysis; that is, a finding that a conviction is not against the manifest weight of the evidence necessarily includes a finding of sufficiency. On direct appeal, this court has already determined that the appellant's conviction for the offense of felonious assault was supported by the manifest weight of the evidence. The finding that the appellant's conviction for the offense of felonious assault was not against the manifest weight of the evidence is dispositive of the claim that his conviction was not supported by sufficient evidence. Nunez's conviction for the offense of felonious assault was supported by sufficient evidence. Finally, when examining a challenge to the denial of a Crim.R. 29, this court must determine whether the evidence adduced at trial, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. Herein, after viewing the evidence adduced at trial in a light most favorable to the prosecution, we find that a rational trier of fact could have found the essential elements of felonious assault proven beyond a reasonable doubt. Thus, the trial court did not err by denying the appellant's Crim.R. 29 motion for acquittal. The application for reopening is denied.Gallagher 1/8/2018
State v. Carter 104653App.R. 26(B) application for reopening, ineffective assistance of appellate counsel, res judicata. The applicant has filed a timely application for reopening pursuant to App.R. 26(B). The doctrine of res judicata, however, bars further review of the applicant's sole proposed assignment of error in support of his claim of ineffective assistance of appellate counsel. The applicant's proposed assignment of error was previously reviewed on appeal and found to be without merit. We further find that the application of the doctrine of res judicata is not unjust and thus deny the application for reopening.Jones 1/2/2018