06/29/2017


Case Caption

Case No.Topics and IssuesAuthorDecided
State v. Nelson 104336Sufficiency; manifest weight; ineffective assistance of counsel; aggravated murder; R.C. 2903.01; prior calculation and design; identification; plain error; Crim.R. 52; Miranda; custodial interrogation; consecutive sentences; R.C. 2929.14(B)(1)(g). Appellant's conviction for aggravated murder in violation of R.C. 2903.01(A) is vacated because there is not sufficient evidence that he acted with prior calculation and design. Appellant's remaining convictions are supported by sufficient evidence and are not against the manifest weight of the evidence. Appellant was not denied his constitutional right to effective assistance of counsel. The trial court did not commit plain error by permitting a state's witness to identify appellant in court as the shooter. Pursuant to R.C. 2929.14(B)(1)(g), the trial court did not err by ordering appellant to serve the three-year firearm specifications underlying appellant's convictions for aggravated murder, attempted murder, and aggravated robbery consecutively.Celebrezze 6/29/2017
Alotech Ltd., L.L.C. v. Barnes 104389Settlement agreement; enforcement; trust; trustee; beneficiary; R.C. 5808.02(A); contrary; public policy; fiduciary; contract; misconstruction; reversed; remanded. The settlement agreement required the Trustee to transfer trust assets in a manner that did not serve the best interests of the trust beneficiary. Enforcement of the settlement agreement would bring about a result the General Assembly sought to prevent by enacting R.C. 5808.02(A). The trial court erred by granting Alotech's motion to enforce the settlement agreement.Gallagher 6/29/2017
Greater Cleveland Metroparks v. Ismail 104412Speed; radar reliability; admissibility of testimony. Appellant's conviction for speeding was proper. The park ranger established that she was qualified to operate the radar device; that the device had been properly calibrated before operating it; that the device was in good working condition; and its speed measurements were reliable. Expert testimony to the reliability of the radar device was not required.Jones 6/29/2017
State v. Ercoli 104578Sufficiency; manifest weight. Physical production of the firearm into evidence was not necessary to establish a firearm specification where it was determined that the firearm existed and was operable; witness testimony regarding appellant's identity and his actions, during and after committing the offenses, supported the jury's verdicts of guilty. Appellant's convictions were not against the manifest weight of the evidence.Jones 6/29/2017
State v. Rosser 104624Statute of limitations, attempted rape, effective assistance of counsel, preindictment delay, jurisdiction, amenability hearing, bindover. Statute of limitations for attempted rape was not violated because the prosecution was commenced within the relevant 25-year statutory period. Counsel was not ineffective for failing to move for dismissal for preindictment delay because the defendant failed to demonstrate actual prejudice. However, counsel was ineffective for failing to move for dismissal for lack of jurisdiction because the juvenile court improperly bound the defendant over to the general division without conducting an amenability hearing as required under R.C. 2152.12(B).Keough 6/29/2017
State v. Carter 104653Police questioning for investigative purposes; plain error; lesser included offense; jury instruction; expert testimony; right to confront; abuse of discretion; opinion testimony; hearsay testimony; effective assistance of counsel; sufficiency; manifest weight. It was not error where the trial court allowed the officer to testify to the statements appellant made during the officer's investigation. At the time of questioning, appellant was not under arrest and the line of questioning was for investigative purposes to determine what had transpired between appellant and the victim. The jury believed that appellant's actions included an intent to commit a sexual act despite the fact that the act was not completed. The trial court did not err by not giving the jury an instruction for a lesser included offense of abduction. The scientist's testimony was shown to be relevant to the state's claim that appellant choked the victim and that testimony met the criteria of Evid.R. 702. Appellant was not denied his right to confront. There was no proffer in the record about what appellant wanted the nurse to testify about being that the document appellant wanted to address was not a document created by the nurse. The detective's testimony regarding appellant's level of cooperation was properly admitted as to the detective's investigative procedure; appellant's counsel objected to further testimony that was improper and the trial court admonished the witness regarding that testimony. It is presumed that the jury followed the trial court's instruction to disregard that portion of testimony. Appellant's counsel's failure to seek an instruction on a lesser-included offense instruction is deemed to be trial strategy; a motion to suppress appellant's non-custodial statement was not proper; even without appellant's counsel's objection, the trial court found on its own that a portion of the officer's testimony was improper; and failure to play a portion of the video was not intentional, but rather a miscommunication. Appellant's counsel was not ineffective and the cumulative error doctrine does not apply here. The victim's testimony that appellant held her against her will and that appellant made unwelcomed sexual advances toward her was sufficient to support a conviction on the kidnapping charge; the jury, having the best view to make observations in weighing the credibility of witness testimony, did not lose its way and the verdict of guilty on the kidnapping charge was not against the manifest weight of the evidence.Jones 6/29/2017
State v. Malenda 104736 & 104829Guilty plea; maximum sentence; prior uncounseled conviction. Defendant failed to show any prejudice from court's error in wrongly stating the maximum sentence as being two months shorter than it really was because the court imposed far-less than the maximum sentence and defendant failed to state that he would not have entered the plea had he been correctly advised. Defendant's guilty plea to indictment containing allegedly uncounseled prior conviction waived pending motion to disallow the use of the prior conviction.Stewart 6/29/2017
Alotech Ltd., L.L.C. v. Black 104791Moot; appeal dismissed; settlement agreement; unenforceable; attorney fees. Appeal of trial court's order aiding in execution of a settlement agreement and award of attorney fees is moot because of the holding in a companion case that the underlying settlement agreement was in violation of public policy and unenforceable.Kilbane 6/29/2017
State v. Darden 104815On the authority of State v. Aalim, Slip Opinion No. 2017-Ohio-2956, mandatory transfer of certain juvenile offenders to adult court pursuant to R.C. 2152.10(A)(2)(b) and 2152.12(A)(1)(b) does not violate the constitution. Defendant's felony sentence is supported by evidence in the record and his counsel was not ineffective.Blackmon 6/29/2017
In re Estate of Abraitis 104816Probate; R.C. 2323.51; Civ.R. 11; frivolous conduct. Court did not abuse its discretion by awarding attorney fees against attorney and client who asserted legal claims in a probate case that were contradicted by legal claims they made in related cases filed in both the probate court and in federal tax proceedings.Stewart 6/29/2017
Cleveland v. Aguilera 104852Defendant invited error in city's use of other acts evidence under Evid.R. 404(B) by opening the door to a prior incident similar to the one for which she was being tried. Defense counsel was not ineffective for failing to seek a separation of witnesses.Stewart 6/29/2017
State v. Young 104861Motion to withdraw plea; manifest injustice; counsel's erroneous prediction. Trial court did not abuse its discretion in denying defendant's motion to withdraw his guilty plea where defendant failed to demonstrate that counsel's erroneous prediction about the sentence the trial court would impose was a manifest injustice.Keough 6/29/2017
State v. Taylor 104892Crim.R. 11(C)(2); guilty plea; consecutive sentences. Court had no obligation during a plea colloquy to advise defendant that sentence could be imposed consecutively to a sentence in another case.Stewart 6/29/2017
State v. Nunez 104917Motion; new trial; leave; unavoidably prevented; trial court; days; recanted; newly discovered evidence; contradict; convicted; abuse of discretion; res judicata; jury instruction; indictment. The trial court did not abuse its discretion by denying defendant's motion for new trial where he did not seek leave to file a delayed motion for new trial. Because the defendant's challenges to the sufficiency of the indictment and the validity of trial court's jury instructions could have been, but were not, raised on direct appeal, they are now barred by res judicata.Gallagher 6/29/2017
Paul v. Tri Cty. Concrete 104920Small claims; breach of contract; defective cement; res judicata; claim preclusion; privity. In a small claims action, the previous suit against a contractor that installed an alleged defective driveway that resulted in a defense verdict precluded further suit against the concrete supplier where the supplier was in privity with the contractor and the second suit raised the same claims as the first.Celebrezze 6/29/2017
State v. Rufus 105026Consecutive sentences; R.C. 2929.14(C)(4); findings; mitigating factors; 2953.08(G)(2)(a); support; R.C. 2929.12(C); allied offenses; separate victims; R.C. 2941.25(B); merger. Trial court's imposition of consecutive sentences was affirmed when the court made the required findings under R.C. 2929.14(C)(4), the findings were supported by the record, and the record did not support any claim of a failure to consider mitigating factors enumerated under R.C. 2929.12(C). Offenses involving separate victims were not allied offenses of similar import subject to merger under R.C. 2941.25(B).Gallagher 6/29/2017
Krzywicki v. Gay 105039Motion to Amend Complaint; Statute of Limitations; Third-Party Defendant; Civ.R. 14; Civ.R. 15. - Trial court did not abuse its discretion in denying plaintiff's motion to amend complaint to assert direct claims against a third-party defendant where the claims were barred by the statute of limitations; neither Civ.R. 14 nor Civ.R. 15 permitted plaintiff to assert time-barred claims.Keough 6/29/2017
U.S. Bank Natl. Assn. v. Robinson 105067Appeal No. 105067 - U.S. Bank National Association v. Terrence S. Robinson, et al. Statute of limitations; R.C. 1303.16(A); action on mortgage; foreclosure; ejectment. In an action upon the mortgage, summary judgment in favor of the homeowner based on the statute of limitations under R.C. 1303.16(A) was in error - R.C. 1303.16(A) does not preclude a party from maintaining an action in equity to enforce its mortgage lien on the property for the unsatisfied, but unrecoverable, debt.Gallagher 6/29/2017
Wolf & Akers, L.P.A. v. Mezu 105113 Sanctions, R.C. 2323.51, abuse of discretion, hearing. Trial court found defendant's conduct did not rise to the level of frivolous conduct to warrant the award of attorney fees and expenses under R.C. 2323.51. Accordingly, the trial court was not required to hold a hearing when it denies a motion for sanctions.Keough 6/29/2017
State v. Cammon 105124Crim.R. 11(C); voluntary, knowing and intelligent plea; nonconstitutional right; maximum possible sentence; substantial compliance; complete disregard of duties under Crim.R. 11; partial compliance; prejudice; de novo. The trial court erred when it gave the defendant conflicting instructions as to the potential maximum sentence he faced prior to accepting his guilty plea. After the trial court instructed the defendant that he faced a maximum sentence of 30 months in prison, the trial court later sentenced the defendant to 36 months in prison. Therefore, the trial court failed to substantially comply with Crim.R. 11(C)(2)(a). But, the trial court partially complied with Crim.R. 11 because it initially informed the defendant of the maximum sentence, but then gave a conflicting and inaccurate instruction when it chose to expand on the maximum sentence the defendant could receive. The defendant was prejudiced by the trial court's conflicting instructions. Because the defendant did not enter the plea knowingly, intelligently and voluntarily, the plea must be vacated.Boyle 6/29/2017
State v. Alexander 105431Firearm specification sentencing. Appellant's argument that he was improperly sentenced to multiple prison terms for firearm specifications is not supported by the record. Sentencing journal entry reflects that appellant was sentenced properly to three years in prison for firearm specifications.Blackmon 6/29/2017
State v. Bennett 105585Conceded error; no contest plea; finding of guilt; R.C. 2921.34(A)(3); R.C. 2921.34(D); supervised release detention; community control; missing essential element of a crime. The trial court erred in finding appellant guilty of escape after a no contest plea where an essential element of the crime, being on supervised release detention, was lacking in the case and was apparent from the state's recitation of the facts underlying the charge.Celebrezze 6/29/2017
State ex rel. Miller v. Saffold 105718Mandamus, motion to vacate court costs, moot, R.C. 2969.25(A), R.C. 2969.25(C). Relator seeks, through his complaint for a writ of mandamus, an order that requires the trial court to render judgment with regard to a pending motion to vacate court costs. The trial court, however, has rendered a judgment with regard to the relator's motion to vacate court costs. Thus, the complaint for a writ of mandamus is moot. In addition, the complaint for a writ of mandamus is procedurally defective because the relator failed to comply with the mandatory requirements of R.C. 2969.25(A) and R.C. 2969.25(C).Boyle 6/28/2017
State ex rel. Brown v. McCormick 1057339Mandamus; moot; clear legal duty. Mandamus will not lie to compel the performance of a duty that has already been performed. Because the trial court ruled upon the motions subject to the mandamus action, relator's request is moot. Additionally, because relator's allegations do not demonstrate a failure by the respondent to perform a clear legal duty, mandamus is not appropriate.Keough 6/28/2017
State v. Elam 103122App.R. 26(B); Application to reopen; ineffective assistance of appellate counsel; speedy trial; R.C. 2945.71; R.C. 2945.72; and continuances at defendant's request. Appellant's speedy trial claim was meritless, because after reviewing the docket, the multiple continuances at defendant's request, the defense motions filed, and the change in defense counsel, only 15 days of the 90-day period had elapsed.Laster Mays 6/27/2017