12/14/2017


Case Caption

Case No.Topics and IssuesAuthorDecided
State v. Mohamed 102398 & 103602Consecutive sentences; sentencing recommendation; plea offer. Trial court had no obligation to sentence a defendant consistent with the terms of a plea bargain that had been rejected by defendant. The court likewise had no obligation to sentence the defendant consistent with a sentencing recommendation discussed by the parties post-trial because state's comment that the victim was okay with the recommendation was belied by her letter to the court asking the court to impose the maximum sentence.Stewart 12/14/2017
State v. Roberts 104474Res judicata; scope of remand; consecutive sentences; findings; supported by the record; R.C. 2953.08(G); R.C. 2929.14(C)(4). Defendant cannot challenge aspects of the sentence not affected by the original appeal and can only challenge the imposition of consecutive sentences. The trial court did not err in imposing consecutive sentences in this case because it cannot be clearly and convincingly found that the record does not support the findings, which were undisputedly made.Gallagher 12/14/2017
Young v. Kaufman 104990 & 105359Will and trust contest claim; removal claim; summary judgment; genuine issues of material fact; presumption of undue influence; confidential relationship; standing. Trial court erred in entering summary judgment in favor of co-executors and co-trustees on will and trust contest claim. Based on son's role as intermediary and spokesperson for his mother with respect to her estate plan, reasonable minds could disagree as to whether son had a confidential relationship with mother that would entitle appellants to a presumption of undue influence. Genuine issues of fact exist as to whether son's relationship with mother was free of undue influence and whether mother acted voluntarily, with full knowledge and understanding of her actions and their consequences, in executing her estate plan. Given ruling on contest claim, genuine issues of material fact also exist as to whether appellants have standing to assert removal claim.Gallagher 12/14/2017
Cleveland v. Borden 105339Assault, aggravated menacing, manifest weight. Appellant's convictions for assault and aggravated menacing were not against the manifest weight of the evidence when she pushed a man over a couch and threatened to shoot two people.Gallagher 12/14/2017
Cuyahoga Metro. Hous. Auth. 105384Motion for relief from judgment; Civ.R. 60(B); reasonable time; res judicata. Trial court properly denied defendant's eighth motion for relief from judgment as untimely and barred by res judicata.Gallagher 12/14/2017
State v. Truhlar 105385 Law of the case, res judicata Trial court did not err in denying defendant's motion to dismiss based on double jeopardy grounds because the issue was decided in a prior appeal. According the law of the case controls and res judicata bars defendant's appeal.Keough 12/14/2017
Minaya v. NVR, Inc. 105445Fraudulent concealment; statute of repose; third parties; political subdivision immunity. Plaintiffs cannot defeat the statute of repose by asserting a claim of fraudulent concealment when alleged fraud was perpetrated on a third party. Claim for city's violation of housing inspection ordinances failed because the ordinances were enacted to provide the general welfare and did not establish a private right of action. City was also immune because housing inspections are a governmental function.Stewart 12/14/2017
State v. Jones 105527R.C. 2907.03(A)(5); sexual battery; incest; unlawful sexual conduct with minor; consecutive sentences; R.C. 2953.08(G); R.C. 2929.14(C)(4). The R.C. 2929.14(C)(4)(b) finding, that the harm is so great and unusual that a single prison term does not adequately reflect the seriousness of the offender's conduct, was supported by the record that demonstrated the defendant engaged in a lengthy incestuous relationship with a child under the age of 16 resulting in the birth of two children.Gallagher 12/14/2017
In re D.D. 105582Juvenile court; sua sponte dismissal; jurisdiction; complaint. The juvenile court erred in its sua sponte dismissal of the complaint with prejudice pursuant to Juv.R. 29(F)(1) for lack of jurisdiction because the complaint clearly satisfied the requirements of Juv.R. 10. Further, the state had the right to appeal pursuant to R.C. 2945.67(A).McCormack 12/14/2017
Shaker Hts. v. El-Bey 105701 & 105702Sovereign citizen; accelerated appeal; summary disposition. Defendant does not challenge the underlying convictions other than to claim that as a sovereign citizen the local ordinances cannot be applied, an argument rejected by this and several other courts.Gallagher 12/14/2017
Dover W. Condominium Unit Owners' Assn. v. Carandang 105730Civ.R. 60(B); motion for relief; pro se; Civ.R. 55(A); default judgment; hearing; discretion; attorney fees; appeal; substitute. Trial court's denial of a motion for relief from judgment was affirmed where appellant's motion was untimely as to Civ.R. 60(B)(1), (2), and (3), and she failed to demonstrate grounds for relief under Civ.R. 60(B)(4) and (5) or a meritorious defense. Appellant chose to proceed pro se, did not file an answer, and the trial court acted within its discretion in conducting an evidentiary hearing pursuant to Civ.R. 55(A). Appellant did not file an appeal from the trial court's award of attorney fees and costs, and a Civ.R. 60(B) motion cannot be used as a substitute for an appeal.Gallagher 12/14/2017
Paczko v. Ohio Dept. of Job & Family Servs. 105783Statutes; administrative regulations; R.C. 5163.30(C)(3). Administrative rules or regulations derive from statutory authority, so they cannot supersede statutes when there is a conflict. Court did not err by upholding agency's application of amended R.C. 5163.30(C)(3) to application for recalculation of a restricted Medicaid coverage period even though the existing regulation pertaining to the statute had yet to be changed to reflect the amended statute.Stewart 12/14/2017
State v. Hodges 105789Motion to withdraw guilty pleas; Crim.R. 32.1; abuse of discretion; manifest injustice; ineffective assistance of counsel; res judicata. Trial court did not abuse its discretion in denying defendant's post-sentence motion to withdraw his guilty pleas based on claims that defense counsel misled defendant into believing he would be pleading guilty to involuntary manslaughter rather than to murder and failed to bring defendant's mental health issues to the attention of the trial court. To the extent defendant's ineffective assistance of counsel arguments could have been raised in his prior direct appeal, they are barred by res judicata. To the extent defendant's arguments are based on discussions with his attorney or others that would require evidence outside the record, they lacked evidentiary support. Defendant could not raise issue relating to his mental health for the first time on appeal. Moreover, it was clear from the record that defendant understood he was pleading guilty to murder at the time of his plea and that the trial court had reviewed court psychiatric clinic's report prior to sentencing defendant.Gallagher 12/14/2017
State v. Alexander 104281App.R. 26(B) application for reopening, ineffective assistance of appellate counsel, testimony of witness with regard to cell phone record data analysis, testimony with regard to gang activity, harmless error beyond a reasonable doubt per Crim.R. 52(A), imposition of life sentence without possibility of parole, imposition of consecutive sentence of incarceration. The appellant's App.R. 26(B) application for reopening fails to establish that his appellate counsel was ineffective on appeal and is denied. The appellant has raised four proposed assignments of error in support of his application for reopening: 1) testimony of FBI agent concerning cellular phone analysis was improper; 2) testimony concerning gang activity was improper; 3) imposition of life sentence without possibility of parole was unconstitutional; and 4) trial court erred by imposing consecutive sentences of incarceration. The appellant has failed to establish that he was prejudiced through any of his four proposed assignments of error.Mays 12/12/2017
State v. Lennon 104344App.R. 26(B); untimely; no good cause; ineffective assistance of appellate counsel; speculation; failure to investigate; alibi witnesses. Applicant failed to demonstrate good cause for his untimely application for reopening, requiring denial of his application. Aside from being untimely, applicant failed to satisfy the standard for reopening. Speculation alone is insufficient for making an appellate argument and does not establish prejudice. Because there is no evidence in the trial court record that trial counsel failed to properly investigate or call potential alibi witnesses, appellate counsel was not ineffective in choosing not to raise these arguments.Boyle 12/8/2017
State ex rel. Peterson v. McClelland 106188Procedendo, pending motion to vacate judgment, mandate of court of appeals upon remand, moot. The relator has filed a complaint for a writ of procedendo through which he seeks an order that requires respondent to issue a ruling with regard to a motion to vacate sentence for lack of jurisdiction that is pending. The relator also seeks an order that requires respondent to comply with the order and mandate of the court of appeals upon remand. Relator's complaint for a writ of procedendo is moot as it relates to the motion to vacate and the request for respondent to follow the mandate of this court. Writ denied.Boyle 12/8/2017
State v. Frett 106207Mandamus; motion to withdraw guilty plea; R.C. 2969.25; and R.C. 2731.04. Mandamus to compel rulings on motions to withdraw guilty plea was rendered moot by the trial court denying the motions. Relator also failed to submit the required affidavits under R.C. 2969.25 and improperly captioned the petition. R.C. 2731.04.Stewart 12/8/2017