08/03/2017


Case Caption

Case No.Topics and IssuesAuthorDecided
State v. Mason 104533Motion to suppress, hearing, Crim.R. 12(I), search warrant affidavit, Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), spatial constraint, Bailey v. United States, 568 U.S. 186, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013), Crim.R. 11, appellate court correction of postrelease control, Crim.R. 22, failure to record proceedings. The trial court did not err in failing to hold a hearing on defendant's motion to suppress under Franks and Bailey where defendant failed to support his motion by more than general denials and allegations, including failure to identify grounds supporting a Bailey violation due to spatial constraint. An appellate court may modify or correct a trial court's misstatement of the term of postrelease control. Defendant failed to object or to demonstrate material prejudice due to the failure to record a pretrial proceeding.Laster Mays 8/3/2017
Strongsville v. Johnson 104577Operating a vehicle; resisting arrest; obstructing official business; physical harm. Insufficient evidence of intent to obstruct official business based on defendant's repeated questioning as to why he had to display a driver's license prevented the police from issuing a citation. The city incorrectly assumed that grounds for issuing a citation for failing to display a driver's license existed before defendant questioned why he had to display his driver's license when, in fact, it was defendant's repeated questioning of the need to show his license that caused the police to conclude that he was in violation of R.C. 4507.35(A). Insufficient evidence to prove carrying concealed weapon charge on defendant who had a concealed carry permit but did not immediately notify the police because the police did not stop defendant for any law enforcement purpose, but to render aid because the defendant's vehicle had stalled in the road. Testimony that officer felt a "twinge" in his neck while trying to arrest defendant but did not seek medical treatment or miss any time off from work insufficient to establish physical harm element of resisting arrest. Defendant's conviction for failure to display a driver's license when requested by the police upheld because, although police did not see defendant driving, he was behind the wheel of a stalled vehicle and wife testified that he was driving before the vehicle stalled.Stewart 8/3/2017
State v. Hampton 104629Maximum sentence; R.C. 2953.08; R.C. 2929.11; R.C. 2929.12; contrary to law; clear and convincing. The record clearly supported the trial court's decision to impose the maximum prison sentence upon the defendant. The defendant's criminal history, including two prior bank robberies, and his pattern of alcohol abuse when committing his crimes, supported the imposition of the maximum sentence. We cannot say that the trial court failed to consider R.C. 2929.11 and R.C. 2929.12 and the maximum sentence was not contrary to law.Boyle 8/3/2017
State v. Newton 104878R.C. 2929.14(B)(1)(a)(ii)/consecutive sentences/firearms specifications; ineffective assistance of counsel. Each robbery committed by appellant was a separate criminal transaction with a separate criminal objective. Running the firearm specifications consecutive to one another was proper. The trial court's consecutive sentences were not error. Because there was no error by the trial court in handing down consecutive sentences, appellant's counsel was not ineffective for not telling the trial court it could not run appellant's sentences consecutively.Jones 8/3/2017
State v. Esper 105069Felonious assault, child endangering, abuse, neglect, allied offenses. Trial court erred in failing to merge felonious assault and child endangering in violation of R.C. 2919.22(B)(1) (abuse) because the offenses were committed with the same conduct and animus. Although the defendant was charged with child endangering in violation of R.C. 2919.22(A) (neglect), that offense was dismissed pursuant to the plea agreement.Keough 8/3/2017
In re J.H. 105078Permanent custody; termination of parental rights; R.C. 2151.414; clear and convincing evidence; best interest of the child; reasonable efforts; diligent case planning. Juvenile court did not err in awarding permanent custody of child to Cuyahoga County Department of Children and Family Services. Juvenile court's determinations that child could not be placed with the parents within a reasonable time or should not be placed with the parents and that an award of permanent custody to the agency was in the best interest of the child were supported by clear and convincing evidence and were not against the manifest weight of the evidence. Record did not support father's contention that agency failed to engage in reasonable, diligent case planning or otherwise failed to undertake reasonable efforts to reunify him with his son.Gallagher 8/3/2017
In re K.R.B. 105084Shared parenting; child support; child support obligor; R.C. 3119.23; R.C. 3119.24; best interest of the child; abuse of discretion. Juvenile court abused its discretion in entering a child support order in a shared parenting case naming father the child support obligor where juvenile court did not explain its decision to designate father child support obligor and the court's reasoning in entering the child support order it imposed in the case could not otherwise be discerned from its analysis of the relevant statutory factors or the facts.Gallagher 8/3/2017
Cleveland v. Bardwell 105099R.C. 4511.21(D)(5); Traff.R. 8; Traff.R. 10; arraignment deficiencies. The trial court erred when it denied the defendant's request to continue the trial because the defendant had never had a proper arraignment under Traff.R. 8 and 10.Boyle 8/3/2017
Middle Hts. v. Troyan 105128 & 105131Dog at large; strict liability; sufficiency of the evidence; Crim.R. 29. Violations of R.C. 955.22, the dog at large statute, are strict liability of offenses, The city of Middleburg Heights provided sufficient evidence that the defendant violated R.C. 955.22 by failing to restrain or confine her dog.Gallagher 8/3/2017
Middleburg Hts. v. Troyan 105132, 105133, 105134, 105135Dog at large; R.C. 955.22(C); strict liability; Crim.R. 29; sufficiency of the evidence. R.C. 955.22, the dog at large statute is a strict liability offense. The city of Middleburg Heights presented sufficient evidence that the defendant violated R.C. 955.22(C) by failing to restrain or confine her dog.Kilbane 8/3/2017
State v. McKinney 105136Plain error; allied offenses; merger; R.C. 2941.25. R.C. 2941.25 precludes a trial court from imposing separate sentences for disrupting public services and criminal damaging when a single, discrete act simultaneously constituted the commission of both crimes, and the state failed to demonstrate a separate identifiable harm.Gallagher 8/3/2017
State v. Wilson 105147Conceded error; right of allocution. The trial court failed to afford appellant an opportunity to address the court at sentencing as required by Crim.R. 32(A)(1). The state concedes the error. Appellant's sentence is vacated. The matter is remanded for resentencing.McCormack 8/3/2017
Ballinger v. Ballinger 105180Qualified domestic relations order ("QDRO"), divorce, domestic relations division Local Rule 28(F) . Trial Court's QDRO was not inconsistent with the judgment entry of divorce. Trial court did not err in issuing a QDRO to effectuate the judgment entry of divorce despite not specifically mentioning the use of a QDRO as an enforcement tool within the judgment entry. Trial court did not err in issuing a QDRO despite its failure to comply with Local Rule 28(F).Gallagher 8/3/2017
Natal v. U.S. Cotton, L.L.C. 105259Motion to enforce settlement agreement; jurisdiction. The trial court was without jurisdiction to enforce a settlement agreement when the dismissal entry neither incorporated the terms of the settlement agreement nor stated the trial court retained jurisdiction to enforce the settlement agreement. The trial court's judgment denying appellant's motion to enforce is affirmed.McCormack 8/3/2017
Matthews v. U.S Bank Natl. Assn. 105315Judgment on the pleadings; summary judgment; foreclosure; rescission; note; mortgage; collateral attack; breach of contract; unjust enrichment; declaratory judgment. Trial court's decision to grant bank's motion for judgment on the pleadings and for summary judgment was upheld. Res judicata precluded appellant borrower from collaterally attacking a foreclosure judgment, and his claims were compulsory counterclaims under Civ.R. 13(A) that should have been raised in the foreclosure action. Even if res judicata were not applied to bar the claims, appellant failed to plead viable claims.Gallagher 8/3/2017
State v. Woods 104285, 104581, 104694, 104792Court costs, community service, R.C. 2947.23. Trial court did not err when it ordered appellant to pay court costs without notifying him of the consequences of a failure to pay.Gallagher 8/3/2017
State v. D.K. 105812Sealing 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 8/3/2017
In re R.H. 104455App.R. 26(B); Application to reopen; ineffective assistance of appellate counsel; R.C. 5139.52(F); and consecutive sentences. R.C. 5139.52 requires sentences for juvenile parole violations be served concurrently. Appellate counsel was ineffective for not raising this issue. Because the state concedes that the statute applies, the court reopens the appeal, reinstates it to the active docket, vacates the consecutive sentence, and remands for resentencing on the parole violation.Gallagher 8/2/2017
State v. Bogan 105747Prohibition; jurisdiction under R.C. 2931.03; alleged discovery violations; R.C. 2969.25(A); R.C.2929.25(C); Civ.R. 10(A). A writ of prohibition does not lie to compel the trial court to remove prosecuting attorneys for alleged discovery violations. Petitioner possesses adequate remedies in the ordinary course of the law to address the alleged discovery violations, thereby precluding an action for an extraordinary writ. Inmate's failure to comply with R.C. 2969.25 and Civ.R. 10(A) rendered his petition procedurally defective.Jones 8/2/2017
State v. Gurkovich 102558App.R. 26(B); application to reopen; ineffective assistance of counsel; untimely; good cause; assignment of error; and postconviction relief petition. Appellant's application to reopen was untimely. Clearing a procedural requisite for a federal habeas corpus filing was not good cause for untimely filing. Failure to advise about the remedy of a postconviction relief petition was not an assignment of error for purposes of App.R. 26(B)(2)(c).Boyle 8/1/2017
State v. Bolton 103628App.R. 26(B); application to reopen; ineffective assistance of appellate counsel; res judicata; appeal of conviction and sentence; post-trial motions; motion for new trial on newly discovered evidence; allied offenses; statute of limitations; and waiver. The court denied the defendant's App.R. 26(B) application to reopen. His statute of limitations argument was waived by failing to file the necessary motion before trial. Res judicata and the scope of App.R. 26(B) also barred his arguments. App.R. 26(B) applies to the appeal of the judgment of conviction and sentence and does not apply to post-trial motions such as a motion for new trial based on newly discovered evidence. This court had previously decided that his convictions for rape and gross sexual imposition were not allied offenses.Celebrezze 7/28/2017
State ex rel. Infante v. Byrd 105853Indigent appellant, second trial transcript at state's expense, duty of clerk of courts to provide indigent defendant with second copy of trial court transcript. The relator's complaint for a writ of mandamus, in order to compel the Cuyahoga County Clerk of Courts to provide him with a second trial transcript at state's expense, is denied. The state is not required to provide an indigent criminal defendant with a second trial transcript at state's expense. In addition, the clerk of courts possesses no duty to provide an indigent defendant with a second free copy of a trial transcript, if a trial transcript has already been filed in the court of appeals.Blackmon 7/28/2017