09/28/2017


Case Caption

Case No.Topics and IssuesAuthorDecided
State v. Makin 104545Right to self-representation; failure to grant continuance; insufficient evidence; manifest weight of the evidence; felonious assault of a peace officer; failure to comply; effective assistance of counsel; R.C. 2947.23(A) court costs. Judgment affirmed. Defendant was not denied his right to self-representation. The record indicates that the trial court advised defendant of his representation options and set the matter for a hearing that was never pursued. The trial court did not abuse its discretion in denying defendant's motion for a continuance. Defense counsel stated that the witness's absence did not cause defendant any prejudice because both defendant and the state essentially agreed on the testimony that would have been provided by the witness. A review of the record reveals sufficient evidence to sustain the convictions, and the convictions are not against the manifest weight. Defendant knowingly attempted to cause physical harm with a deadly weapon when he drove his car head-on into the car containing an officer and his two colleagues. Additionally, despite the officers' orders to stop, defendant led the officers in a pursuit with multiple collisions and traffic violations. Defense counsel's alleged failure to timely subpoena two defense witnesses was not ineffective because one witness's testimony was not in dispute, and the other witness's testimony would not have changed the outcome of trial. Lastly, the trial court was not required to give defendant the notice required under R.C. 2947.23(A) regarding community control and court costs because the defendant was sentenced to prison.Kilbane 9/28/2017
S. Euclid v. Longino 104569Passing bad checks; money order; check; speedy trial; right to counsel; right to court appointed counsel; discovery; prosecutorial misconduct; sufficient evidence; manifest weight of the evidence. Defendant was brought to trial within the speedy trial period because the speedy trial time started running when defendant was processed on the warrant rather than the issuance of the warrant. Because the trial court properly advised defendant of her right to counsel and court appointed counsel during her arraignment, there was no violation of Longino's right to counsel. Because a money order is a "check" for purposes of R.C. 2913.11(B), Longino's passing bad checks conviction was supported by sufficient evidence and by the manifest weight of the evidence.Gallagher 9/28/2017
Cedar Creek Mall Properties, L.L.C. v. Krone 104863Theft; embezzlement; conversion; summary judgment; discovery requests; motion for relief from judgment; prejudgment attachment; pro se litigant. The trial court did not err in granting summary judgment to plaintiff corporation in this theft/embezzlement and conversion case. Defendant, who was imprisoned and acting pro se throughout these proceedings, offered no evidence to show that a material fact was at issue. The court did not abuse its discretion by denying defendant's second motion for discovery. The court granted defendant additional time to complete discovery and notified her that she needed to follow the rules of civil procedure. Nonetheless, defendant failed to send any discovery requests to plaintiff. This court lacks jurisdiction to review defendant's motion for relief from judgment, as it was filed after her notice of appeal and is not properly before this court. The trial court did not err in granting plaintiff's motion for prejudgment interest.Blackmon 9/28/2017
Brecksville v. Grabowski 104973Crim.R. 11(B)(2); Crim.R. 11(E); petty misdemeanor offense; substantial compliance; effect of plea; motion to withdraw. The trial court's failure to make any mention of the effect of appellant's no contest plea constituted a complete failure to comply with Ohio Crim.R. 11(E). Accordingly, the trial court erred in denying appellant's motion to vacate his plea in light of the Ohio Supreme Court's holding in State v. Clark, 119 Ohio St.3d 239, 2008 Ohio 3748, 893 N.E.2d 462 and this court's holding in Parma v. Buckwald, 8th Dist. Cuyahoga Nos. 92354 and 92356, 2009 Ohio 4032. Additionally, although appellant acknowledged in writing that he was advised of his right to counsel at arraingment, the court did not advise him of such before accepting his plea and did not attempt to obtain his waiver of his right to counsel until after accepting his no contest plea.Kilbane 9/28/2017
Rodgers v. Rodgers 105095Marital property; contingent bonus; contingent loan; financial misconduct; spousal support; duration; calculation; income; modification; overpayment; child support; combined income over $150,000; extrapolation method; attorney fees; litigation; experts; conduct of the parties. Allocation of contingent loan to husband in division of marital property was not an abuse of discretion. Husband's liquidation of an IRA account to pay temporary child and spousal support was not financial misconduct where husband's take-home pay was not sufficient to make the payments. Spousal support award based on one year of husband's income was not an abuse of discretion where husband's income fluctuated dramatically from year to year. A 48-month term of spousal support was not an abuse of discretion where court found that wife was healthy, educated, and capable of finding employment in that time period. Child support award based on minimum allowed for combined incomes over $150,000 was not an abuse of discretion where wife received spousal support almost equal to husband's income. Attorney fee award to husband was not an abuse of discretion where wife's false allegations of sexual abuse caused attorney fees and expenses to be inflated.Gallagher 9/28/2017
State v. Welch 105158R.C. 2929.18/restitution; sufficiency; cumulative error. The trial court's order of restitution was supported by competent, credible evidence and the amount of the order was not in excess of the victim's actual economic loss. Appellant's plea to a lesser-degree offense did not negate the actual economic loss of the victim. Because there were no multiple errors committed during the trial court's proceedings, the cumulative error doctrine is inapplicable.Jones 9/28/2017
GMAC Bank v. Bradac 105242Foreclosure; mortgage; admissibility of exhibits; standing; default; notice of default. The trial court properly granted summary judgment in favor of the foreclosing bank.McCormack 9/28/2017
Wolf v. Cleveland Div. of Police 105416Civ.R. 56/summary judgment; statutory immunity. The trial court's denial of appellants' motion for summary judgment was proper. Genuine issues of material fact exist regarding whether appellant followed proper procedure and did he operate his police cruiser in a wanton, willful, or reckless manner.Jones 9/28/2017
State v. Laird 105594Assigned error; plain error; burden; trial court; sentence; allied offenses; similar import; merge; transcript; regularity. Appellant did not file the transcript of the proceedings and, therefore, failed to demonstrate that the trial court committed plain error by failing to merge certain offenses for the purpose of sentencing.Gallagher 9/28/2017
State ex rel. Mays v. McCormick 106009Procedendo; motion to terminate void postrelease control; mootness. Procedendo action to compel ruling on a motion to terminate void postrelease control was rendered moot by the judge issuing a ruling.Gallagher 9/27/2017
State v. Turner 104490App.R. 26(B); ineffective assistance of appellate counsel; Strickland test; complicity statute; allied offenses. Because defendant failed to demonstrate a genuine issue that he was deprived effective assistance of appellant counsel, the application for reopening under App.R. 26(B) fails. Appellate counsel cannot be deemed ineffective for refraining from raising assignments of error that have no merit. Under R.C. 2923.03(F), a person who is guilty of complicity in the commission of an offense "shall be prosecuted and punished as is he were a principal offender." Even if defendant did not fire the shot that hit the victim, the evidence established as a minimum that he acted in concert with that person; appellate counsel was not ineffective in failing to challenge the lack of scientific evidence linking defendant with the specific bullet that hit victim. Because the trial court did not err in refusing to merge the offenses of aggravated robbery, felonious assault, and having a weapon while under disability, appellate counsel was not ineffective in refraining from raising an allied offense argument.Gallagher 9/27/2017
State v. Asadi-Ousley 104267App.R. 26(B) application for reopening, ineffective assistance of appellate counsel, failure to argue proposed assignment of error, res judicata, right to jury trial, indictment, failure to file motion to dismiss based upon expiration of statute of limitations. The appellant's App.R. 26(B) application for reopening is granted. Reopening of the appellant's appeal is warranted because there exists a genuine issue as to whether the appellant was prejudiced by the failure of appellate counsel to argue on appeal that trial counsel was deficient by not filing a motion to dismiss the count of felonious assault as based upon the expiration of a six-year statute of limitations.Gallagher 9/22/2017