12/07/2017


Case Caption

Case No.Topics and IssuesAuthorDecided
State v. Springer 104649Felony murder, manifest weight, ineffective assistance of counsel, prosecutorial misconduct, court costs. Appellant's conviction for felony murder was not against the manifest weight of the evidence. Appellant's trial counsel was not ineffective for failing to object to object to law enforcement testimony generalizing the effects of time and alcohol on a witnesses memory. The state did not commit prosecutorial misconduct by commenting in closing argument that the deceased victim was unable to tell her story. Appellant's trial counsel provided ineffective assistance at sentencing by failing to move for a waiver of court costs after the trial court had already made a finding that appellant was indigent.Gallagher 12/7/2017
State v. Daver 104745 & 105144Motion to withdraw guilty pleas; Crim.R. 32.1; manifest injustice; abuse of discretion; Crim.R. 11(C); knowing, intelligent and voluntary guilty plea; nature of the charges; effect of guilty plea; duress; substantial compliance; totality of the circumstances; partial compliance; ineffective assistance of counsel; defense counsel's inaccurate prediction of sentence; misinformation regarding judicial release; failure to prepare for trial. Trial court abused its discretion in denying defendant's motion to withdraw his guilty pleas. Under the totality of the circumstances, including the limited time period in which defendant was given to consider the state's plea offers, the incomplete information defendant received regarding judicial release, the defendant's lack of a full and complete understanding of the offenses to which he would be pleading guilty and the effect and consequences of his guilty pleas, defense counsel's admission that he was not prepared to try the case if defendant rejected the state's plea offers and defendant's testimony that, but for this confluence of events, he would not have entered his guilty pleas, defendant did not knowingly, intelligently and voluntarily enter his guilty pleas and withdrawal of his guilty pleas was necessary to correct manifest injustice.Gallagher 12/7/2017
Meinert Plumbing v. Warner Industries, Inc. 104817Belvedere Test, pierce corporate veil, breach of contract, joint venture, third-party beneficiaries, incidental beneficiaries, Ohio Business Opportunity Plan Act, R.C. Chapter 1334. This case involves a commercial business arrangement evidenced by written contracts between multiple parties for the sale of goods and provision of related services. The trial court properly granted summary judgment denying breach of contract and violation of the Ohio Business Opportunity Plan Act, R.C. Chapter 1334. There are no written contracts between appellants and appellees. Existing contracts specifically state that all parties are independent contractors. The record does not demonstrate an intent by appellees to enter into a joint venture with any of the contracting parties. Appellants failed to pierce the corporate veil by establishing that appellees had no separate mind, will, or existence per Belvedere Condominium Unit Owners' Assn. v. R.E. Roark Cos., 67 Ohio St. 3d 274, 617 N.E.2d 1075 (1993). At best, appellants were incidental beneficiaries of the commercial agreements. Appellees and appellants did not qualify as "sellers" and "purchasers" and no "business opportunity plan" existed between the parties under R.C. 1334.01 of the Ohio Business Opportunity Plan Act, R.C. Chapter 1334.Laster Mays 12/7/2017
State v. Carter 104874Sufficiency of evidence, manifest weight of evidence, prosecutorial misconduct, admission of text message evidence, ineffective assistance of counsel. The evidence presented at trial against the appellant was sufficient and not against the manifest weight of the evidence. The prosecutor's statements during opening and closing arguments did not demonstrate that the prosecutor committed misconduct. Appellant's defense counsel was not deficient because all actions were considered permissible, and appellant was not prejudiced or denied a fair trial due to counsel's actions and decisions. The text messages from the victim were admissible because they were not being entered into evidence for the truth of the matter asserted.Laster Mays 12/7/2017
State v. Riedel 104929Suppression; consent; written; residence; competent; credible; coercion; Miranda; arrest; marijuana; cultivation; domestic violence; reside; cohabitation; sufficient; manifest weight; circumstantial; ineffective; assistance; prejudice; objection; jury instruction; harmless error. The trial court did not err by denying defendant's motion to suppress evidence seized from his residence. There was competent, credible evidence presented at the suppression hearing to show that defendant freely and voluntarily consented to the search when he signed the consent to search form. Defendant's domestic violence and illegal cultivation of marijuana convictions are supported by sufficient evidence and are not against the manifest weight of the evidence. The trial court's defective jury instruction on the elements of domestic violence constituted harmless error. As such, defense counsel did not render ineffective assistance of counsel by failing to object to the trial court's instruction on the elements of domestic violence.Gallagher 12/7/2017
State v. Mock 105060R.C. 2953.08; contrary to law; R.C. 2929.14; R.C. 2929.11; R.C. 2929.12; clerical error; Crim.R. 36; nunc pro tunc entry. Appellant's sentence is not contrary to law. The trial court's sentencing journal entry does not accurately reflect the sentence imposed in open court. Thus, the matter is remanded to the trial court for the limited purpose of issuing a nunc pro tunc sentencing entry.Celebrezze 12/7/2017
State v. Edwards 105163Motion to suppress; anonymous tip; corroboration of information; probable cause. Where appellant's codefendant confirmed the police officers' suspicion of marijuana use, corroboration of the anonymous tipster's information was not necessary. The police officers had probable cause to search the vehicle. The trial court erred in granting appellant's motion to suppress.Jones 12/7/2017
State v. Alim 105164Motion to suppress; Fourth Amendment; consensual encounter; probable cause; anonymous tip. The trial court erred when it granted defendant's motion to suppress based on the fact that police failed to corroborate an anonymous tip. When police originally approached the defendant in his vehicle, the encounter was consensual. Once the officer reached the defendant's vehicle, however, he immediately smelled marijuana, which then gave rise to probable cause to search.Boyle 12/7/2017
State v. Bybee 105165Sufficiency of the Evidence; Manifest Weight of the Evidence; Aggravated Robbery. Defendant's convictions for aggravated robbery and other offenses were supported by sufficient evidence and were not against the manifest weight of the evidence.Blackmon 12/7/2017
State v. English 105237Crim.R. 33/motion for a new trial; newly discovered evidence. Appellant failed to establish any newly discovered evidence. The evidence presented here was presented in appellant's direct appeal. The trial court did not err in denying appellant's motion for a new trial.Jones 12/7/2017
State v. Wilson 105280No contest plea. Defendant's no contest plea was not voluntarily, knowingly, or intelligently entered, because it was based on the mistaken belief that he could appeal an interlocutory motion in limine.Blackmon 12/7/2017
State v. McMillan 105296Consecutive sentences; supported by the record; contrary to law; findings; worst form of the offense; disproportionate; competency evaluation; ineffective assistance of counsel; learning disabilities; intellectual disabilities; competency. Consecutive sentences affirmed where they were not contrary to law and trial court made findings required by R.C. 2929.14(C) that were supported by the record. Defendant was not denied the effective assistance of counsel even though counsel stipulated to competency evaluation where there was no indicia of incompetence, and court psychologist provided reasonable basis on which to conclude that defendant understood the proceedings against him and could assist in his defense.Gallagher 12/7/2017
State v. Davis 105299Sentence; community control; substantial evidence; unsworn testimony; violation hearing; due process; plain error. Judgment vacated and the matter remanded for resentencing. The trial court erred when it sentenced the defendant to a term of 6 months for a nolled count. The court further erred when it sentenced defendant to three years in prison for a community control violation when he was previously advised that he would receive two years for a violation. Additionally, substantial evidence was presented at the hearing to sustain defendant's violation conviction. Defendant's due process rights were not violated under a plain error standard of review because defendant did not object to the unsworn testimony at the hearing.Kilbane 12/7/2017
Cleveland v. Ellis 105338Ineffective assistance of counsel; R.C. 2929.22. Appellant received effective assistance of counsel. The trial court did not abuse its discretion when it sentenced the appellant because it considered the factors from R.C. 2929.22.Laster Mays 12/7/2017
In re T.W. 105346Cold stand or show-up identification; Juv.R. 22(F); unduly suggestive procedure; reliability; motion to suppress; abuse of discretion. The trial court abused its discretion in suppressing the victim's out-of-court identification of the juvenile because the court relied on factors considered for the purposes of determining whether the show-up identification procedures were unduly suggestive in determining whether the victim's identification was reliable.Gallagher 12/7/2017
State v. Ladson 105374 Community control sanctions, consecutive sentences, allied offenses Trial court erred in imposing consecutive sentences without making the requisite findings. Trial court erred in imposing individual sentences on offenses that were declared allied at the time of the plea.Keough 12/7/2017
State v. Jackson 105376Felonious assault; R.C. 2903.11(A); knowingly; R.C. 2901.22(B); sufficiency and manifest weight of the evidence. Defendant's convictions were supported by sufficient evidence and were not against the manifest weight of the evidence. The state presented sufficient evidence that defendant acted knowingly because the victim testified that defendant was outside of the car on the ground when the defendant shot his gun at the victim in a car. The defendant's convictions were not against the weight of the evidence because the victim's version of the events were just as likely to have occurred as the defendant's theory of what happened.Boyle 12/7/2017
State v. Ortiz-Santiago 105441Presentence motion to withdraw plea; request for new counsel; consecutive sentences; abuse of discretion. Trial court did not abuse its discretion in denying defendant's motion to withdraw his plea where the defendant was represented by competent counsel, and was given a full Crim.R. 11 plea hearing and a hearing on the motion to withdraw, and the court gave full and fair consideration to his request. Trial court did not abuse its discretion in denying defendant's request for new counsel where the request was untimely made on the day of trial and there were no facts demonstrating a breakdown in the attorney-client relationship so as to jeopardize the defendant's right to effective assistance of counsel; the trial court properly imposed consecutive sentences when it both made the statutory findings and incorporated those findings into the sentencing entry; there was no requirement that it give reasons for its findings.Keough 12/7/2017
State v. Delp 105467Blanket prison sentence; guilty plea; final appealable order; Crim.R. 11; maximum sentence; R.C. 2953.08; R.C. 2929.14; R.C. 2929.11; R.C. 2929.12; contrary to law; juvenile adjudication. In CR-15-599103-B, appellant knowingly, voluntarily, and intelligently pled guilty to burglary and assault, and the trial court's sentence is not contrary to law. In CR-15-595152-B, the trial court erred by imposing a single prison sentence because appellant pled guilty to two counts of drug possession. This case is remanded for resentencing on each count.Celebrezze 12/7/2017
State v. Frazier 105469Consecutive sentence for firearm specification. Court's consecutive sentence for firearm specification was unambiguous and was not contrary to law.Blackmon 12/7/2017
Bueno v. Cleveland 105485Summary judgment; political subdivision immunity; issue of fact. Judgment affirmed. The trial court found, and we agree, that there is a genuine issue of material fact as to whether Officer Anderson operated the vehicle in a wanton, willful, or reckless manner and as to whether he was competent to transport inmates within the scope of his employment.Kilbane 12/7/2017
Cleveland v. State 1055002016 Ohio H.B. No. 180; R.C. 9.49; R.C. 9.75; Cleveland Codified Ordinances Chapter 188; Ohio Constitution, Article II, Section 34; Ohio Constitution, Article XVIII, Section 3; permanent injunction; constitutionality; statute; de novo; public authorities; contractors; local hiring requirements; public improvement projects; residency; general welfare; contract; terms; home rule; local self-government; conflict; police power; general law; unconstitutional. Affirmed trial court's judgment and order granting a permanent injunction that enjoined the State from enforcing 2016 Ohio H.B. No. 180 and R.C. 9.49, subsequently designated R.C. 9.75, which prohibits public authorities from requiring contractors on public improvement projects to employ a certain percentage of individuals who reside within a defined geographical area. The enactment of R.C. 9.75 was not a valid exercise of the legislature's authority pursuant to Ohio Constitution, Article II, Section 34. Despite the General Assembly's stated purpose, the statute does not relate to the right of an individual to choose where to live or a matter implicating the general welfare of all employees; but rather, seeks to limit the contracting powers of local authorities with contractors choosing to bid on local public improvement projects. Further, the statute unconstitutionally infringes upon the municipal home-rule authority guaranteed by Ohio Constitution, Article XVIII, Section 3 and is an unlawful attempt to eliminate a local authority's powers of local self-government in negotiating the terms of public improvement projects.Gallagher 12/7/2017
State v. Lumbus 105524Jail time credit; Ohio Adm.Code 5120-2-04(F). Defendant was not entitled to have the surplusage of any jail time credit applied to his shorter sentences accumulated and then have the accumulation applied against his longer sentences.Gallagher 12/7/2017
State v. Jones 105526Attempt; carrying a concealed weapon; R.C. 2929.11 and 2929.12; purposes and principles of felony sentencing; R.C. 2953.08. Jones's sentence for attempted carrying of a concealed weapon was not contrary to law as this sentence was within the applicable statutory range, and the trial court stated both on the record and in the sentencing journal entry that it had considered the purposes and principles of felony sentencing as set forth in the Ohio Revised Code.Kilbane 12/7/2017
State v. Porch 105536Crim.R. 32.1; presentence motion to withdraw guilty pleas; Civ.R. 5(E); correspondence sent to the court. The trial court did not abuse its discretion in denying appellant's presentence motion to withdraw his guilty pleas.Celebrezze 12/7/2017
State v. Alhweiti 105540Adjustment hearing; perjury; R.C. 2921.11(A); false statement; material; sufficient evidence; Crim.R. 29; outcome of the proceeding. The state provided sufficient evidence that the appellant's false statement in an adjustment hearing concerning his employment could have affected the outcome of the proceeding and was therefore material.McCormack 12/7/2017
Nolan v. Cleveland 105552R.C. 2744.02; Water Department; Proprietary Function; manhole cover; water meter vault; Cleveland Codified Ordinance 533.01 and 533.14. Plaintiff was injured after stepping onto unsecured manhole cover. The city was not entitled to summary judgment R.C. 2744.02 because maintenance and operation of municipal corporation water supply system is proprietary function; the city was not entitled to summary judgment under CCO 533.01 because this ordinance pertains to a property owner's responsibility for "new connections," and other code provisions explicitly outline city's responsibility for maintenance and repair.Blackmon 12/7/2017
Spit Shine A One Detailer, L.L.C. v. Rick Case Hyundai 105553Breach of contract; fraudulent representation; Civ.R. 12(B)(6); Civ.R. 12(E); Civ.R. 10(D); failure to attach a written agreement; de novo review; motion for a more definite statement; fraud; particularity. The trial court appropriately granted appellees' Civ.R. 12(B)(6) motion to dismiss where the complaint did not allege a valid claim for breach of contract asserted by appellant against appellees, and a fraud claim was not pled with particularity even after the court gave appellant an opportunity to amend its complaint.Celebrezze 12/7/2017
State v. Fayne 105641Allied offenses; void sentence; concurrent sentences; res judicata; postconviction relief. Appellant's sentences were not void as alleged, and therefore, res judicata barred his postconviction claim that he was improperly sentenced on allied offenses.Celebrezze 12/7/2017
Kurtock v. Cleveland Bd. of Zoning Appeals 105755Administrative law; zoning; use variance. The court did not err by affirming the Board of Zoning Appeals decision to grant a restaurant/bar a use variance permitting live music, because the decision is supported by a preponderance of reliable, probative, and substantial evidence in the record.Blackmon 12/7/2017
State v. Simmons 105984Crim.R. 11. The trial court erred by failing to explain defendant's constitutional rights to him before accepting his guilty plea.Boyle 12/7/2017
Thompson v. Donnelly 106100Procedendo, petition for postconviction relief, R.C. 2969.25(A), R.C. 2969.25(C). The relator's request for a writ of procedendo is moot. The respondent-trial court rendered a ruling that denied the relator's petition for postconviction relief. In addition, the relator failed to comply with R.C.2969.25(A), which requires a sworn statement of each civil action or appeal of a civil action filed in the previous five years in any state or federal court, and R.C. 2969.25(C), which requires a statement setting forth the relator's inmate account balance as certified by the institutional cashier.Jones 12/4/2017
State v. Woods 82789App.R. 26(B) application for reopening, untimely filed application, failure to establish good cause for untimely filing, no right to successive App.R. 26(B) application for reopening. The application for reopening was filed more than 90 days after journalization of the appellate judgment subject to reopening. The applicant has failed to argue any showing of good cause for the untimely filing of his application for reopening. It is proper to deny an application for reopening solely because it is untimely filed and fails to establish good cause for the untimely filing. In addition, an applicant is not permitted to file a second application for reopening. There exists no right to file successive applications for reopening under App.R. 26(B).Keough 12/1/2017