05/11/2017


Case Caption

Case No.Topics and IssuesAuthorDecided
State v. Harris 104329Sufficiency and manifest weight of the evidence, prior calculation and design, aiding and abetting. Defendant's conviction for aggravated murder upheld. Sufficient evidence was presented that defendant acted with prior calculation and design to support the aggravated murder conviction. Defendant acted with prior calculation and design when he retrieved the gun from a concealed location and pursued the victim while firing the gun repeatedly at the victim. In the event that the jury did not believe that the defendant was the actual shooter, the jury was properly instructed on accomplice liability.Keough 5/11/2017
State v. Pendergrass 104332Ineffective assistance of counsel; plea agreement; motion to disqualify counsel; allied offenses; consecutive sentences; R.C. 2929.14; court costs; indigent. The trial court did not abuse its discretion when it denied the defendant's motion to disqualify counsel where the court considered the request at length and found the request untimely and not supported by good cause. The trial court did not err in failing to merge the defendant's kidnapping offense with his other offenses. Reviewing for plain error, we find the defendant failed to demonstrate a reasonable probability that his kidnapping offense would have merged with his other offenses. We cannot find the record clearly and convincingly does not support consecutive sentences under R.C. 2929.14(C)(4). The trial court did not abuse its discretion when it imposed court costs regardless of the defendant's indigency.McCormack 5/11/2017
State v. Lennon 104344Motion to suppress; pretrial identifications; R.C. 2933.83; photo lineup; blind administrator; single photograph; jury instruction; Crim.R. 29; sufficiency of the evidence; manifest weight of the evidence; consecutive sentences; R.C. 2929.14; admissibility of evidence; Evid.R. 401, 402 and 403. The trial court did not err when it permitted the pretrial identification testimony of an eyewitness and a victim. Since the eyewitness knew the alleged shooter, the detective showed her a single photograph. Therefore, R.C. 2933.83 did not apply and, considering the totality of the circumstances, the procedure for the eyewitness identification was not so impermissibly suggestive. With respect to the victim's pretrial identification, the detective complied with R.C. 2933.83 because he documented that he did not use a blind administrator. Moreover, the procedure for the victim's identification was not so impermissibly suggestive. The trial court was not required to give a jury instruction pursuant to R.C. 2933.83(C)(3). The jury verdict was not against the manifest weight of the evidence or sufficiency of the evidence. The trial court properly imposed consecutive sentences in accordance with R.C. 2929.14. The trial court did not abuse its discretion in allowing a redacted letter written by the defendant to be presented to the jury.Boyle 5/11/2017
Tadross v. Tadross 104373Civ.R. 3(A); service of process; commence; third-party defendant; nullity. Judgment vacated where trial court lacked jurisdiction due to plaintiff's failure to obtain service of process on defendants.Gallagher 5/11/2017
State v. Turner 104490Aggravated robbery; felonious assault; deadly weapon; brandish; circumstantial evidence; sufficient evidence; manifest weight of the evidence. Defendant's aggravated robbery conviction was affirmed based on circumstantial evidence showing that defendant shot a gun at the victim at the time the victim's cell phone and money was taken. Defendant's felonious assault conviction was supported by the manifest weight of the evidence even though the victim testified he did not know who shot him because victim's testimony was not credible and other competent, credible evidence established that defendant shot victim in the calf.Gallagher 5/11/2017
State v. Anthony 104497Resentencing; merger; allied offenses; concurrent sentence. Sentence vacated. The matter is remanded for resentencing pursuant to our mandate in State v. Anthony, 8th Dist. Cuyahoga No. 101847, 2015-Ohio-2267, 37 N.E.3d 751. The trial court erred when resentencing defendant to concurrent sentences as opposed to merging the convictions and sentencing defendant on one conviction. The imposition of concurrent is not the equivalent of merging allied offenses.Kilbane 5/11/2017
State v. Brown 104575Motion for resentencing; post-sentence motion to withdraw plea; mandatory fine; R.C. 2929.18(B)(1); affidavit of indigency; manifest injustice. The trial court erred when it failed to impose a mandatory fine because defendant never filed an affidavit of indigency pursuant to the requirements of R.C. 2929.18(B)(1). The resentencing hearing is limited to the trial court's imposition of the mandatory fine. Defendant can file an affidavit of indigency before the resentencing hearing and if the trial court determines that defendant is indigent, it may waive the mandatory fine. If the trial court determines that defendant is not indigent, the trial court should allow defendant to withdraw his plea as it would be a manifest injustice for defendant to be subject to the mandatory fine when he was not advised of the fine before he entered into the plea.Boyle 5/11/2017
Bayview Loan Servicing, L.L.C. v. St. Cyr 104655Foreclosure; summary judgment; deemed admissions; Civ.R. 36(A); standing; holder of the note; assignment of mortgage. The trial court did not err in granting summary judgment in favor of Bayview and against St. Cyr. Bayview's deemed admissions were implicitly withdrawn, and the affidavit and documents in support of Bayview's motion for summary judgment sufficiently established Bayview was the holder of the note and entitled to enforce the note. St. Cyr failed to meet its reciprocal burden to set forth specific facts demonstrating a genuine issue of material fact. Additionally, St. Cyr lacked standing to challenge the assignments of mortgage.McCormack 5/11/2017
State v. Martin 104802Sentence contrary to law. The appellant's sentence was contrary to law because the trial court sentenced him to a 180-day mandatory prison term when the statute states that the mandatory prison term is 60 days.Laster Mays 5/11/2017
Grande Arcade, Ltd. v. Grand Arcade Condominium Owners' Assn., Inc. 104890Condominium Association; assessment; repairs; Declaration and Bylaws; contract interpretation; declaratory judgment; summary judgment. Summary judgment in favor of condominium association affirmed where condominium owner failed to present evidence demonstrating that assessment levied against it was unlawful or excessive.Gallagher 5/11/2017
Deutsche Bank Natl. Trust Co. v. Gardner 104924Foreclosure; summary judgment; failure to object to the magistrate's decision. Although we review an appeal from summary judgment de novo, our review of this case is limited to "plain error" because appellant failed to object to the magistrate's decision. On appeal, however, Gardner does not assert or demonstrate any "plain error" on the face of the magistrate's decision, nor raise any arguments relating to the fairness, legitimacy, or reputation of the judicial process, and therefore, appellant waives all claims raised in the appeal.McCormack 5/11/2017
Walker v. 24570 Lakeshore Property, L.L.C. 105017Motion for summary judgment; slip and fall; ice and snow accumulation; negligence; R.C. 5321.04; landlord-tenant. Judgment affirmed. The trial court properly awarded summary judgment to defendant as plaintiff admitted that she knew there was snow on the ground the day of the incident. She testified that it had been snowy and icy on the morning of the incident and three days prior to the date of the incident. She described the weather as a mini-blizzard. She proceeded to step onto the icy and snow covered sidewalk despite knowing the inherent risks.Kilbane 5/11/2017
State v. Ramos 105110Motion to terminate postrelease control; sentencing; journal entry; consequences; completed sentences; jurisdiction; transcript; res judicata; vacate; void; stay. The trial court erred when it denied appellant's motion to terminate postrelease control sanctions. Relying on this court's precedent, when a trial court fails to set forth the consequences for violating postrelease control in the sentencing entry and the defendant has completed his sentence, the term of postrelease control is void and should be terminated. The trial court maintained jurisdiction to terminate the postrelease control sanctions. And appellant's failure to submit the sentencing transcript does not affect the outcome of this case because, even if the appellant was advised of the consequences of violating postrelease control at the sentencing hearing, the trial court was not relieved of its obligation to include the notification in the sentencing entry. Moreover, we decline to stay our decision in this case pending the resolution of State of Ohio v. Grimes, Ohio Supreme Court Case No. 2016-0215.Boyle 5/11/2017
State v. M.L. 105214Sealing a conviction; lack of hearing; conceded error. The parties agree the trial court erred by denying a motion to seal the record of conviction without holding an evidentiary hearing and the case must be remanded for the hearing to occur.Gallagher 5/11/2017
Chambers v. Gaul 105229Mandamus; discretion; outstanding motion to suppress; R.C. 2969.25(C); poverty affidavit; R.C. 2731.04; caption; and hybrid representation. The court of appeals denied an application for a writ of mandamus to compel rulings on outstanding motions because to rule on those motions would interfere with the trial court's discretion to regulate the proceedings of the case. Trial court has no duty to rule on pro se filed motions when the defendant is represented by counsel. Relator's mandamus petition was fatally defective because it did not include a proper poverty affidavit and was improperly captioned.Gallagher 5/10/2017
State ex rel. Taylor v. Corrigan 105498Mandamus, R.C. 2969.25(A), sworn affidavit, moot. The relator has filed a complaint for a writ of mandamus through which he seeks an order that requires the respondent-trial court judge to render a ruling with regard to a pro se motion for reconsideration of sentence. The complaint for a writ of mandamus is procedurally defective because the relator has failed to comply with R.C. 2969.25(A) ,which requires a sworn affidavit that contains a description of each civil action or appeal filed in the previous five years in any state or federal court against a government entity or employee. In addition, the request for a writ of mandamus is moot, because the respondent-trial court judge rendered a ruling with regard to the relator's motion to reconsider sentence.Kilbane 5/10/2017
State v. Young 103551App.R. 26(B) application for reopening, ineffective assistance of appellate counsel, request to discharge appointed counsel, false testimony of a witness, credibility of a witness, res judicata. The appellant, through his App.R. 26(B) application for reopening, has failed to establish that he was prejudiced by ineffective assistance of appellate counsel and that the outcome of his appeal would have been different had this court considered his proposed assignments of error. The appellant has raised two proposed assignments of error that deal with the issues of failure of the trial court to discharge appointed counsel, failure of the trial court to appoint new trial counsel, and the credibility of a witness. A review of the trial transcript demonstrates that the appellant abandoned his request to discharge appointed counsel. In addition, the appellant failed to demonstrate, at a hearing held before the trial court, a "breakdown in the attorney-client relationship of such magnitude as to jeopardize a defendant's right to effective assistance of trial counsel." Finally, the issue of credibility of a witness was previously addressed on direct appeal and is thus barred from further review by the doctrine of res judicata.Keough 5/10/2017
State v. Tharp 104216App.R. 26(B); ineffective assistance of appellate counsel; pro se representation; colorable claim; postrelease control. The scope of App.R. 26(B) is limited to a claim of ineffective assistance of appellate counsel, and a defendant who represents himself on appeal cannot later argue his own ineffectiveness in an application to reopen under App.R. 26(B). Even if appellant's application was not barred by his self-representation, his proposed assignment of error fails on the merits and therefore cannot support a colorable claim of ineffective assistance of counsel on appeal as required under App.R. 26(B)(5). The trial court properly notified appellant of the correct term of postrelease control.Blackmon 5/9/2017