12/22/2016


Case Caption

Case No.Topics and IssuesAuthorDecided
In re R.A.H. 101936Allied offenses of similar import; plain error; juvenile. The Ohio Supreme Court has concluded that the allied offenses analyses applies to juvenile delinquents. On remand from the Ohio Supreme Court, we conclude that the appellant's two rape counts should have merged because they did not result in separate harm; were committed simultaneously, and were not committed with a separate animus.Blackmon 12/22/2016
State v. Seith 104510Trial court did not err in imposing maximum terms within statutory ranges for fourth- and fifth-degree felonies. However, the court erred in imposing consecutive terms where it failed to make all of the findings required under R.C. 2929.14(C). Consecutive sentence was vacated and matter was remanded for the limited purpose of considering whether consecutive sentences are appropriate under R.C. 2929.14(C)(4).Kilbane 12/22/2016
Abrams v. Grenny Properties, L.L.C. 104452Lease; security deposit; offer; acceptance; counteroffer. Tenant was entitled to refund of amounts paid for security deposit and first month's rent where landlord accepted the payments in cash and failed to deliver possession of the leased property.Gallagher 12/22/2016
Rolsen v. Walgreen Co. 104431Workers' compensation; administrative appeal; personal business or errand; Civ.R. 56; appellate record. The trial court did not err in finding, as a matter of law, that the claimant's injury was not sustained in the course of his employment because the claimant was engaged in a personal errand at the time of injury.Gallagher 12/22/2016
Binder v. Cuyahoga Cty. 104399Declaratory judgment; necessary parties; jurisdictional defect; legally protectable interest; piecemeal litigation. Trial court's dismissal of plaintiffs' complaint reversed where plaintiffs court decided ultimate issue in the case before all jurisdictional requirements of R.C. 2721,12 were satisfied. Appellants' obligation to name all necessary parties to a declaratory judgment was satisfied by its claim for class certification unless and until class certification is denied.Gallagher 12/22/2016
State v. Clarke 104397Consecutive sentences. Court's consecutive sentences were not contrary to law and were supported by the required findings at the sentencing hearing and in the sentencing journal entry.Blackmon 12/22/2016
Elkins v. Manley 104393Civil protection order; menacing; competent and credible evidence; judicial bias; ill will; pattern of conduct; mental distress; knowingly; abuse of discretion. The trial court's judgment granting civil protection order was supported by competent and credible evidence, and was not the product of judicial bias.Gallagher 12/22/2016
State v. Gilbert 104355Court costs; indigent; abuse of discretion; ability to pay. Trial court did not abuse its discretion by imposing court costs as part of defendant's sentence where statute authorizes court to order indigent defendants to pay court costs and defendant was a healthy 29 year old who could work in the future or work off the debt while incarcerated.Gallagher 12/22/2016
State v. Tate 104342Child endangerment; R.C. 2919.22; R.C. 2953.08; guilty plea; defective indictment; sentencing review. Defendant waived any defect in the indictment by pleading guilty, and the sentence is not contrary to law for the purposes of R.C. 2953.08.Gallagher 12/22/2016
State v. Thompson 104322Anders; motion to withdraw as appellate counsel; frivolous; preindictment delay. Defendant's guilty plea waived the right to raise any assignment of error relating to preindictment delay and all constitutional errors occurring before the plea, so it would be frivolous for appellate counsel to maintain an appeal on grounds that the defendant was prejudiced by preindictment delay.Stewart 12/22/2016
State v. Taylor 104284The complicity statute treats the accomplice as though he was the one who committed every act of the underlying principal offense. Court did not err by refusing to merge offenses committed against separate victims.Stewart 12/22/2016
State v. Filous 104287Maximum sentence; R.C. 2953.08; due process; judicial bias. The record clearly supports the trial court's decision to impose the maximum sentence. We cannot say that the trial court failed to consider R.C. 2929.11 and 2929.12 simply because it did not agree with the victim's recommended sentence. Trial court's critical remarks of defendant during sentencing hearing did not evidence judicial bias to support a due process claim. It is not reversible error for a sentencing judge, in explaining the sentence imposed, to make critical statements about a defendant's conduct based upon the facts of the case presented to the court.Boyle 12/22/2016
Arpin v. Consol. Rail Corp. 104279Summary judgment; Section 5; FELA; 45 U.S.C. 55; railroad; release; actual controversy; nonmalignant asbestos-related claim; asbestosis; cancer; bright-line rule; known claim; non-accrued; future claim; known risk; boilerplate; separate disease rule; two-disease rule; R.C. 2307.94; public policy; fear of cancer; damages. A release signed in connection with the settlement of a nonmalignant asbestos-related claim for abestosis was invalid as applied to future cancer-related claim under Section 5 of FELA. The bright-line rule adopted by the Sixth Circuit was followed and deems a release valid under FELA only when it reflects a bargained-for settlement of a known claim for a specific injury. Further, the release was of the boilerplate variety warned against by the Third Circuit. Any damages sought in the prior action for fear of cancer related to the asbestosis-related claim that was in controversy. Under the separate-disease rule a new lawsuit could be brought under FELA for a cancer-related claim.Gallagher 12/22/2016
State v. Dorsey 104229Community Control Sanctions; Conditions; Alcohol Prohibitions; No Contact with Individuals with a Criminal History. Trial court did not abuse its discretion in forbidding appellant from using alcohol or entering any establishment where alcohol is served, sold or used as part of the conditions of his community control sanctions because the condition was reasonably related to rehabilitating appellant, had some relationship to his offense and was related to future criminality. However, the trial court's condition that barred appellant from associating with any persons with a criminal record was overly broad and an abuse of discretion.Gallagher 12/22/2016
State v. Tharp 104216Ander's Brief; Crim.R. 11 guilty plea; felony sentencing. Counsel's motion to withdraw is granted. Defendant pled guilty and was sentenced to eight years in prison. This court finds no arguably meritorious assigned errors in the trial court's plea and sentencing hearings.Blackmon 12/22/2016
State v. Lee 104190Sentencing; contrary to law; due process; R.C. 2953.08; R.C. 2929.11; R.C. 2929.12; R.C. 2929.14; final order; vindictive sentence. Appellant's sentence is not contrary to law. The trial court had authority to modify appellant's sentence because it had not been journalized. The trial court did not violate appellant's due process rights by increasing his sentence based on the new information that altered the court's calculation of the appropriate sentence.Celebrezze 12/22/2016
State v. Watts 104188Denial of motion to withdraw as counsel; ineffective assistance of counsel; motion to suppress; Fourth Amendment; private citizen. Although appellant's trial counsel was clearly frustrated with appellant, there is no evidence in the record that the communication problems between the two prohibited trial counsel from providing effective assistance of counsel; trial court did not abuse its discretion in denying trial counsel's motion to withdraw. Because the record does not support a finding that the loss prevention specialist who detained defendant and seized items from him was acting as a government agent to support a constitutional challenge under the Fourth Amendment, trial counsel was not ineffective in failing to file a motion to suppress.Boyle 12/22/2016
State v. Gray 104140Drug trafficking; continuance; mandatory fine; mandatory prison sentence; presentence investigation report; PSI; abuse of discretion; waiver; ability to pay. The trial court did not abuse its discretion when it declined to continue the sentencing hearing to a later date to order a presentence investigation report and allow defense counsel an opportunity to file an affidavit of indigency. The record reveals that the court considered the relevant events and circumstances that would have been reflected in an updated PSI and contemplated the defendant's present and future ability to pay the mandatory fine, when declining to postpone sentencing.Stewart 12/22/2016
Cole v. Tubbs 104117Civil stalking protection order; jurisdiction; R.C. 2903.214; R.C. 2903.211(A)(1) - Trial court had jurisdiction over petition for civil stalking protection order ("CSPO"). Trial court's decision denying petition for CSPO was supported by competent, credible evidence. Trial court did not err in denying petition for CSPO where petitioner failed to meet her burden of establishing by a preponderance of the evidence that respondent knowingly engaged in a pattern of conduct that caused petitioner to believe that respondent would cause her physical harm or caused her mental distress.Gallagher 12/22/2016
State v. Muhammad 104111Sufficiency of the evidence; manifest weight; identity; DNA evidence; chain of custody; R.C. 2929.14(C); findings for imposition of consecutive sentences - Defendant's convictions for rape and kidnapping were supported by sufficient evidence and were not against the manifest weight of the evidence. Although the victims were unable to identify defendant as their attacker, the DNA evidence in and of itself overwhelmingly supported the conclusion that defendant was their attacker. Trial court made the findings necessary for the imposition of consecutive sentences under R.C. 2929.14(C)(4) and properly incorporated those findings into the sentencing journal entry. Case remanded for the trial court to issue a nunc pro tunc entry identifying the California court and case number associated with the California sentence to which the sentences imposed by the trial court in this case were ordered to be served consecutively.Gallagher 12/22/2016
Cirino v. Ohio Bur. of Worker's Comp. 104102Subject matter jurisdiction; equitable restitution; Ohio Bureau of Worker's Compensation; workers' compensation benefits; mandatory electronic benefits transfer program; debit cards; fees charged to access benefits; agency; Article II, Section 35 of the Ohio Constitution; R.C. 4123.341; R.C. 4123.67; R.C. 4123.311; class certification; Civ.R. 23; rigorous analysis; adequacy of class representative; typicality; Civ.R. 23(B)(2); individualized inquiry; Civ.R. 23(B)(3); predominance of common issues over individual issues; defenses; rulings on summary judgment; appellate jurisdiction; final, appealable order; Ohio Constitution, Article IV, Section 3(B)(2); R.C. 2501.02; R.C. 2505.02 - Trial court had subject matter jurisdiction over claims by workers' compensation benefit recipients that the Ohio Bureau of Worker's Compensation's ("BWC's") mandatory electronic benefits transfer ("EBT") program and, in particular, the fees the BWC authorized bank to charge benefit recipients to access their workers' compensation benefits through debit cards issued under the program, violates Article II, Section 35 of the Ohio Constitution and R.C. 4123.341 and 4123.67. Plaintiff's claim for the balance of the full workers' compensation benefit payments he should have received from the BWC pursuant to his workers' compensation award but did not receive due to the manner in which the BWC distributed workers' compensation benefits under the EBT program was a claim for equitable restitution. Trial court did not abuse its discretion in certifying a class under Civ.R. 23(B)(2) and (B)(3). Trial court conducted a sufficiently rigorous analysis of the Civ.R. 23 requirements for class certification. Class representative's interests were aligned with, not antagonistic to, those of other class members. Typicality requirement was met where the same conduct gave rise to the claims of the class representative and those of other class members and their claims were based on the same legal theory. Conduct at issue involved ongoing benefits payment practices that continued to affect all class members, i.e., the continued withholding of portions of class members' workers' compensation benefits that were assessed as fees, such that claims for injunctive and declaratory relief fell squarely within Civ.R. 23(B)(2). Restitution claim met the requirements for class certification under Civ.R. 23(B)(3). Even assuming one or more of the BWC's defenses applied, any individualized inquiries associated with the application of its defenses would not predominate over the common questions of law and fact. Appeal dismissed as to BWC's challenges to the trial court's denial of its motion for summary judgment and granting of plaintiff's motion for summary judgment due to lack of appellate jurisdiction.Gallagher 12/22/2016
State v. Lee 103988Gang specifications; firearm specification; drive-by specification; merger; prejudicial evidence; murder; verdict forms; aggravating element; enhancement language; prosecutorial misconduct; "psychopath"; consecutive sentences; additional prison term; sufficient evidence; felonious assault; merger; allied offenses; dissimilar import; separate victims. Court properly declined to merge drive-by specification with one- and three-year firearm specifications where R.C. 2929.14(B)(1)(g) specifically instructs courts to run prison terms on these specifications consecutively. Although evidence that defendant's codefendant subsequently murdered the victim after events giving rise to this case was highly prejudicial, evidence was harmless where defendant admitted shooting at victim. Court erred in refusing to reduce discharging of a firearm at or near a prohibited premises conviction to a misdemeanor where verdict form failed to include aggravating element that would have made the offense a third-degree felony. Prosecutor's act of calling defendant a "psychopath" during closing argument was inappropriate but did not prejudice the outcome of the trial. Court properly refused to run prison term on gang specification concurrently with other prison terms where R.C. 2929.14(G) specifically instructs courts to impose "an additional prison term," if the defendant is found guilty of an offense of violence. There was sufficient evidence to support defendant's felonious assault convictions where there was evidence defendant knew three victims were present inside the car when he fired gunshots at the vehicle. Court properly refused to merge felonious assault conviction related to one victim and the attempted murder conviction related to a second victim because each victim's harm was separate and distinct.Gallagher 12/22/2016
State v. Morris 103561Obstructing official business; sufficiency of evidence. Appellant's conviction of obstructing official business is supported by insufficient evidence and therefore vacated. The trial testimony does not reflect that appellant, while imprudently disrespectful and unaccommodating toward the officers, engaged in an affirmative act that satisfied the statutorily enumerated elements of the offense of obstructing official business. Appellant's exasperation and angry state of mind and resultant uncooperative behavior no doubt rendered the police officers' performance of their duty more arduous and unpleasant. The courts, however, have not interpreted the obstructing official business statute to criminalize uncouth, uncooperative conduct such as displayed by appellant.McCormack 12/22/2016
State v. Thomas 103406Sentence; trial court's jurisdiction; pending notice of appeal with Ohio Supreme Court; State v. Washington, 137 Ohio St.3d 427, 2013 Ohio 4982, 999 N.E.2d 661. Sentence vacated and the matter is remanded for a resentencing hearing. Under Washington, which is the most recent Supreme Court case to apply the rule regarding jurisdiction and the filing of a notice of appeal, the trial court did not have jurisdiction to resentence the defendant in July 2015, after the state had filed its notice of appeal in March 2015.Kilbane 12/22/2016
State v. Adams 104331Rape; kidnapping; complicity; plain error; merger; allied offenses; R.C. 2941.25. Defendant's argument that the court erred in failing to merge certain felony charges is overruled. The defendant agreed that certain offenses were not allied as part of his plea deal, failed to raise the issue of allied offenses with regard to certain other offenses below, and cannot show that the offenses should have merged for the purposes of plain error review on appeal.Stewart 12/22/2016
State v. Kirk 104866Preindictment delay. The trial court erred by dismissing the appellant's indictment because of prejudicial preindictment delay, when the appellant did not show actual prejudice. Now that the standard of showing prejudice has been clarified by the Ohio Supreme Court, the trial court should make it's decision based upon the new holding.Laster Mays 12/22/2016
State v. Knight 104675Anders brief; Loc.App.R. 16; withdraw; dismiss. Appointed counsel's motion to withdraw is granted and the appeal is dismissed where appointed counsel filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Loc.App.R. 16 asserting there are no legal issues of arguable merit to raise on appeal, and this court agreed, following an independent review of the record.McCormack 12/22/2016
State v. Sowell 104673Repeat Violent Offender; res judicata. We do not find the trial court erred by denying appellant's motion to delete the sentence as it relates to the repeat violent offender specification. Appellant could have raised his argument that his indictment was defective in his prior appeals; therefore, res judicata bars his argument. Moreover, appellant's indictment was valid even after the Supreme Court eliminated the factfinding provision from the statute because his indictment did not require factfinding because the repeat violent offender specification was based on appellant's prior conviction.Blackmon 12/22/2016
State v. Howard 97695App.R. 26(B); ineffective assistance of trial counsel; ineffective assistance of appellate counsel; untimely; and lack of good cause. The court dismissed the appellant's App.R. 26(B) application to reopen as untimely. The difficulty of showing good cause does not warrant ignoring the Supreme Court of Ohio's admonitions to strictly enforce the 90-day deadline. Appellant's arguments were not such "dead-bang winners" as to grant the application.Gallagher 12/20/2016
State v. Hammond 100656App.R. 26(B) application for reopening, untimely filed, failure to establish good cause for untimely filing, sworn statement requirement pursuant to App.R. 26(B)(2)(d). Boyle 12/16/2016