06/01/2017


Case Caption

Case No.Topics and IssuesAuthorDecided
State v. Wynn 103824Felonious assault; continuance; preliminary hearing; admission of evidence; sufficiency; flight instruction. Trial court did not abuse its discretion in denying defendant's motion for continuance on the day of trial where the state informed him at that time that one of its witnesses had no criminal history. Defendant's right to a preliminary hearing was extinguished upon his indictment. Defendant's conviction was supported by sufficient evidence. Trial court erred in admitting photograph exhibits that were not individually identified by a witness but the error was harmless as the unidentified photographs were duplicative of other properly admitted exhibits. Trial court abused its discretion in permitted a flight instruction solely based on the fact that the defendant did not remain at the scene of the offense but such error was harmless.Gallagher 6/1/2017
Westlake v. Cleveland 104282Water rates; contract; notice of termination; reasonable notice. Court erred by concluding that water service agreement between municipalities expired after a period of 25 years. The water service agreement was a non-exclusive agreement for a minimum period of ten years, with annual renewals that constitute new agreements each year. As annual agreements, they do not violate the terms of the city charter that limit the term of non-exclusive franchises to 25 years. Parties to a water service agreement were required to give reasonable notice of intent to terminate agreement, but a question of fact exists as to what constitutes reasonable notice. Water provider has no contractual right to enact surcharges to recover stranded costs from municipal customers.Stewart 6/1/2017
State v. Lash 104310Aggravated murder; excited utterance; prior calculation and design; sufficiency of evidence; manifest weight; prosecutorial misconduct. Appellant's conviction of aggravated murder is affirmed. A declarant's statement about the shooter made on the same night of the shooting was admissible as excited utterance under Evid.R. 803(2). The circumstances surrounding the murder show that appellant, after shooting the victim several times and wounding him, shot him several more times in close range to ensure his death. The cold-blooded, execution-style manner of killing allowed the jury to infer a prior calculation and design.McCormack 6/1/2017
State ex rel. Cuyahoga Cty. v. Jones Lang LaSalle Great Lakes Corporate Real Estate Partners, L.L.C. CA-16-104157County law department lacks standing to bring claim on behalf of the County under R.C. 309.12 for recovery of public funds where the statute expressly authorizes only the county prosecutor to bring such claims. Trial court did not err in finding that the County should have discovered the claims on July 29, 2008, when the Cleveland Plain Dealer published online articles reporting public corruption and the execution of a search warrant on a county commissioner, and linking to a copy of the search warrant.Pietrykowski 6/1/2017
State v. Kahn 104360Megan's Law; sexual predator; sexually oriented offender; competency to stand trial; due process; criminal proceeding; civil proceeding; manifest weight of the evidence; clear and convincing evidence. Trial court was not required to hold competency hearing before proceeding with sexual predator hearing since sexual predator hearings are civil proceedings. Sexual predator classification was supported by the manifest weight of the evidence.Gallagher 6/1/2017
State v. Thomas 104480Fourth Amendment; motion to suppress; pat-down; gun; consensual encounter; investigative stop; voluntary admission; totality of the circumstances. The trial court did not err by denying the defendant's motion to suppress a gun found on his person. The officer and the defendant engaged in a consensual encounter when the officer approached the defendant. When the officer asked the defendant if he could pat him down for officer safety, the defendant voluntarily admitted that he had a gun. Therefore, the Fourth Amendment protections were not implicated during the consensual encounter that led to the defendant's admission of the gun, the pat-down search, and seizure of the gun.Boyle 6/1/2017
State v. Cunningham 104520Theft; forgery; allied offenses. In this case, theft and forgery are not allied offenses because each offense caused separate, identifiable harm, were committed separately and were committed with separate animus or motivation.Laster Mays 6/1/2017
Cleveland v. Chappell 104739Plea; no contest; conviction; Crim.R. 11; housing court; mitigate; fine; notice violation; failure to comply; remedy; C.C.O. 3103.23(e); express; tender. The record does not show defendant expressly pleaded no contest and, therefore, there was no basis for a conviction.Gallagher 6/1/2017
State v. Atwater 104760R.C. 2953.08(G)(2), vacate felony sentence, R.C. 2953.08(D), sentence not subject to review. The trial court correctly denied appellant's motion to vacate the judgment of conviction. Appellant's motion is barred by R.C. 2953.08(D) which provides that a sentence is not subject to review where it is authorized by law, jointly recommended by the prosecution and defendant, and imposed by a sentencing judge. Appellant stipulated that the sentence was justified.Laster Mays 6/1/2017
McKee v. McCann 104956Political subdivision immunity; qualified privilege; intentional conduct. Court did not err by granting summary judgment to city and police officers. A political subdivision cannot be sued in intentional tort. Police officers and law director enjoyed qualified privileges to report facts detailing an incident in which the plaintiff was stopped on suspicion of shoplifting and arrested for, but not charged with, failing to provide identifying information to police officers.Stewart 6/1/2017
Clinton v. MetroHealth Sys. 104957Civ.R. 60(B); motion to vacate judgment; res judicata; law of the case; untimely; motion to disqualify; basis; App.R. 16(A)(7). Trial court did not abuse its discretion in denying a Civ.R. 60(B) motion to vacate judgment when several arguments were precluded by res judicata and law of the case and the motion was untimely. The trial court did not err by denying a motion to disqualify the Cuyahoga County Prosecutor's Office when no legitimate basis or relevant authority was provided.Gallagher 6/1/2017
State v. Lenard 104986Theft; grand theft; tampering with records; amend indictment; identity of the offense; grand jury; Crim.R. 7(D); sufficiency; evidence. Amending indictment to add name of second victim did not violate defendant's right to grand jury where amendment did not change the identity of the offense because the first victim was an individual and the second victim was the individual's business. There was sufficient evidence to support defendant's tampering with records conviction where there was evidence that defendant provided false information on a quit claim deed.Gallagher 6/1/2017
U.S. Bank, N.A. v. Matthews 105011Foreclosure; summary judgment; standing; affidavit; plain error; waiver of objections; Civ.R. 56(C), (E); Civ.R. 53(D)(3)(b)(iv) - Because borrowers failed to timely object to magistrate's decision, review was limited to plain error. There was no plain error in trial court's entry of summary judgment in favor of plaintiff on foreclosure complaint where there were no genuine issues of material fact that plaintiff had standing and was entitled to enforce the note and foreclose on the mortgage and plaintiff presented evidence establishing that the loan was in default and had not been cured, that any conditions precedent to foreclosure had been satisfied and the amount owed on the loan.Gallagher 6/1/2017
State v. Lutz 105595Jail-time credit; confinement; R.C. 2967.191; R.C. 2948.38; conceded error. The parties agree that the trial court erred when it granted a motion for jail-time credit, but failed to credit the defendant with jail-time credit for the days he spent in the Lakewood city jail and the Northcoast Behavioral Center. The trial court's judgment is reversed and remanded with instructions to properly credit the defendant with 212 days of jail-time credit.Boyle 6/1/2017
State v. Brown 103748Ineffective assistance of appellate counsel; App.R. 26(B); Crim.R. 7(D); amendment to indictment; prejudice; aggravated vehicular homicide; failure to stop after accident; R.C. 4549.02(A); and fraudulent information. Appellant alleged ineffective assistance of appellate counsel for failing to argue an amendment to an indictment for failure to stop and fraudulent information presented to the grand jury and at sentencing. This court denied the App.R. 26(B) application to reopen because the amendment did not prejudice the appellant and conformed to Crim.R. 7(D) and because this court could not identify any fraudulent information.Celebrezze 5/31/2017
State ex rel. Arnold v. Gallagher 105351Mandamus, procedendo, vacate original guilty plea and sentence, compel de novo guilty plea hearing, compel de novo sentencing hearing, sentencing errors, adequate remedy at law. The relator seeks a writ of mandamus/procedendo in an attempt to require the trial court to vacate the original journal entries that journalized the plea of guilty and sentence of incarceration. The relator argues that numerous sentencing errors require a de novo guilty plea hearing and a de novo sentencing hearing. Sentencing errors, however, are not remediable through an extraordinary writ, because the relator possesses or possessed an adequate remedy at law through a direct appeal.Gallagher 5/26/2017