Cases from April 3 – April 17, 2015
Welcome
back readers and fellow litigators! I’m
a little behind (you can thank tax day and the resulting depression for this…oh
and this silly little thing I call a “career” and “case work,” but I digress), BUT
the Court hasn’t released too many decisions so it’s okay. I was originally only going to
include
through April 9th in this blog, but then I realized that the
decisions released on April 17 contained exactly one criminal decision, a
decision on a writ, and two civil cases, that I might as well add them to the
bunch and just catch up entirely.
So,
with that being said; here we go:
Cases
covered this blog:
April
3, 2015:
April
6, 2015:
April 9, 2015:
April
17, 2015:
- Forbush
v. HCR Manor Care, Inc. et al. – WD-14-
071
- State
Ex Rel. Miller v. Judge Ruth Ann Franks –
L-15-1042
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State v.
Greer – L-13-1280
Appellant
Scottie Greer appealed the denial of his motion to withdraw his guilty plea
under Crim R. 32.1. Appellant entered an
Alford plea of guilty for one count
of Domestic Violence, a felony the fourth degree.
FOR
THE NON-LAWYER: An Alford plea is a
plea in which a person maintains their innocence, but pleads guilty to a
reduced charge due to the risks associated with going to trial.
A few
weeks after his plea, Appellant filed a pro se motion to withdraw his plea, and
his Trial Counsel filed a motion the next day.
The Trial Court held a hearing and at the conclusion of which, it denied
Appellant’s motion.
Appellant
argued the following assignment of error:
1)
THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S
MOTION TO WITHDRAW HIS PLEA BECAUSE IT WAS CONTRARY APPLICABLE LAW [sic].
In
determining whether there is a reasonable and legitimate basis for allowing a
defendant to withdraw his plea, there are a number of factors a trial court
should consider:
(1)
whether the state would be prejudiced by withdrawal;
(2)
the representation afforded to the defendant by counsel;
(3)
the extent of the Crim.R. 11 plea hearing;
(4)
the extent of the hearing on the motion to withdraw;
(5)
whether the trial court gave full and fair consideration to the motion;
(6)
whether timing of the motion was reasonable;
(7)
the reasons for the motion;
(8)
whether the defendant understood the nature of the charges and potential sentences;
and
(9)
whether the accused was perhaps not guilty or had a complete defense to the
crime.
By the
way, Trial Courts are encouraged to liberally grant pre-sentence motions to
withdraw a plea.
Appellant
argued that he was scared and that’s why he took the plea, but at the withdraw
hearing, Appellant now said he was no longer scared; that the State’s case was
weak, and he wanted to go to trial. The
State countered with this was “buyer’s remorse” and that there was no
legitimate basis for withdrawing the plea.
The
Court found that Appellant pointed to no new evidence or defense and only made
a bald assertion of innocence. A mere
change of heart is not enough to withdraw your plea. The Court affirmed the Trial Court’s denial
of Appellant’s motion to withdraw his plea.
Comments: Not much to
say about this one; withdrawing a plea
can be difficult depending on the Court and the Judge. Don’t plea unless you REALLY want
to.
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State v. May – L-14-1212
DISCLAIMER: I did work
on this appeal.
Appellant
Logan May appealed the Trial Court’s denial of his motion to suppress
evidence.
Toledo
Police Officer Picking spotted Appellant riding his bicycle in a “high crime”
area that also has “high-gang activity,”
(it’s worth mentioning that basically the entire city is “known” as a
“high crime” area but I digress). Officer
Picking approached Appellant and informed him that he was illegally operating
his bicycle at night without lights.
Officer
Picking noted that Appellant appeared to be nervous despite their conversation
being “calm” and just a “normal conversation.”
Officer Picking asked if he could pat Appellant down over concerns for
his safety. Appellant consented to the
search and as he went to step off of the bike, his shirt lifted up and revealed
a concealed firearm tucked in his waistline.
Appellant was arrested and charged with Carrying a Concealed
weapon. As he was being put into the
cruiser, Appellant stated “I should have just open carried.”
Appellant
filed a motion to suppress evidence, arguing that the stop and search of
Appellant was not conducted under the authority of a warrant and did not rise
to the level of an exception to the warrant requirement under the State and
Federal Constitutions. After the Trial
Court denied the motion, Appellant entered a plea of No Contest to the charge
and appealed.
Appellant
argued the following assignment of error:
1) The
Trial Court erred in denying Appellant’s motion to suppress.
An
Appellate Court reviews a motion to suppress as a mixed question of facts and
law. The Trial Court’s findings of fact
are given deference in that they will not be questioned so long as they are
supported by competent, credible evidence.
The question of law, however, is reviewed with no deference to the
conclusion of the Trial Court. That’s a
lot of legalese that really means this: The Appellate Court will accept the
Trial Court’s findings of facts so long as they are supported by the record,
and take those facts and apply the law on its own.
Appellant
did not contest the legality of the stop.
However, Appellant argued that the Officer impermissibly extended the
length of the stop by asking Appellant to step off the bike.
There
is an exception to the warrant requirement for investigative stops even without
probable cause to arrest so long as the officer reasonably concludes that the
individual is engaged in criminal activity.
The United States Supreme Court has held that: the scope and duration of
a traffic stop must be carefully tailored to its underlying justification and
last no longer than necessary to effectuate the purpose of the stop.
The
Court found that Officer Picking’s questions were tailored to the underlying
purpose of his stop and did not extend the stop beyond the permissible time.
Appellant
also argued that his consent to search should not have been accepted as
Appellant clearly did not feel free to leave and his consent was compelled by
the circumstances.
It is
true that the State does not satisfy the burden of proving consent to search by
showing a mere submission to a false claim of lawful authority. The factors that go into
determining if
consent to search was freely given are:
(1)
the voluntariness of the defendant’s custodial status;
(2)
the presence of coercive police procedures;
(3)
the extent and level of the defendant’s cooperation with the police;
(4)
the defendant’s awareness of his right to refuse to consent;
(5)
the defendant’s education and intelligence; and
(6)
the defendant’s belief that no incriminating evidence will be found.
(…I
have a lot of lists today…)
The
Court found that there was no evidence of coercive police procedures in this
case and that both Appellant and the Officer testified that the conversation
between them was “calm.” The fact that
the two were standing in a public street and Appellant was not physically
restrained also weighed in on the Court’s decision. The Court found that Appellant’s consent to
be searched was freely and voluntarily given.
The
Court affirmed the denial of the motion to suppress.
Concurring
Opinion: This case contains a
concurring opinion from Judge Singer. Having a judge write a separate opinion
is a rare enough event that I feel the need to comment on it. A concurring opinion is written
separately by
a judge who agrees with the majority’s opinion, but normally wishes to point
out something the majority opinion did not address.
In
this case, Judge Singer concurred, but wrote separately to express concerns
that their decision might led to justify unlawful detentions or “fishing
expeditions” based on nothing more than a mere bicycle infraction. Judge Singer pointed out
that, in this case,
the time between the stop and the appearance of the weapon was extremely short,
implying that had there been a longer time period here, the outcome might be
different.
Comments: As I worked
on this case, I will refrain from saying
much here. This case is a nice overview
of suppression and investigatory stop case law, but I like the Lentz case from a couple of
weeks ago
much better…for…probably obvious reasons…
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State v.
Mathis – WD-14-021
DISCLAIMER:
I represented the Appellant in this case.
Appellant
Manuel Mathis appealed his conviction of Receiving Stolen Property after jury
trial.
The
Victim, “Frank” was restoring his 1966 Chevrolet El Camino at Wood County
Collision. As of May 31, 2013, Frank had
sunk approximately $42,000 into his restorative efforts and the project was one
day away from completion.
On May
31, while Frank was working on the vehicle at Wood County Collision, two
unknown males approached and admired the vehicle. Later that night, the owner of the business
received a phone call that the security system had been triggered. When the owner arrived, he
observed that the
24 gauge, double sided overhead door that weighted several hundred pounds had
been broken and the steel gate cut off of the building. It was determined that whoever broke
into the
business had to be in possession of heavy duty equipment. Notably, the only properly stolen was
Frank’s
1966 El Camino.
Frank
offered a reward for the return of his vehicle on Facebook and Craigslist. Shortly after posting
the reward, Frank
received a call from a restricted number.
The caller, later identified as Appellant. After asking Appellant a number of
verification questions, Appellant confirmed that he did know where Frank’s car
was and that he could return it.
However, Appellant was insistent that there be no police involvement.
Frank
and Appellant met at a gas station where Appellant hand drafted a purported contact
that he had Frank sign. The contract
read that Appellant was entitled to the reward money and that Appellant would
not be held liable for anything connected to the vehicle. Appellant again insisted that there be
no
police involvement. Appellant had the
contracted notarized outside of Frank’s presence.
However,
the police were notified of these events and met Appellant while he was en
route transporting the stolen vehicle in his tow truck. The El Camino was stripped, badly
damaged,
and covered in oil to inhibit fingerprints.
Appellant
stated that he was simply returning the vehicle in the normal course of his
operation of a towing business. However,
after further questioning, Appellant first stated that he discovered the
vehicle inside a garage at an abandoned home, but then said it was actually
next to the garage and he was unable to recall the location of said
garage. Appellant would later testify at
trial that a person named “Steve” told him about the car and in response,
Appellant towed the vehicle from a location at a corner on Cherry Street in
Toledo.
Appellant
raised the following assignments of error:
1) The
state presented legally insufficient evidence to sustain appellant’s conviction
for receiving stolen property.
2)
Appellant’s conviction fell against the manifest weight of the evidence.
There
isn’t much to analysis here. The Court
found that the evidence was sufficient, especially given Appellant’s actions of
repeatedly demanding the reward money, demanding no police involvement, having
the victim sign an unenforceable contract and then having it improperly
notarized. Add that to Appellant’s story
changing every time he was asked and the Court found no reason to overturn
Appellant’s conviction.
Comments: No
comment.
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In
Re. J.K. and K.K. –
L-14-1225
Termination
of parental rights case. It’s a civil
case, but I’m going to talk about this one.
Both
Mother and Father appealed the termination of their parental rights over J.K.
and K.K. (and in case you have not noticed, all minors are referred to by
initials only).
When
K.K. was born, she tested positive for opiates and cocaine and marijuana. Mother admitted to not
seeking any prenatal
treatment during pregnancy for fear of her drug use being found out. Mother and Father also
admitted active use of
cocaine, marijuana, heroin, and suboxone (being completely honest when I say
this is the first time I’ve seen that last one before). This also necessitated the youngest
being put
on methadone for a time.
The
Lucas County Children Service Board (LCCS or CSB) filed for an emergency
shelter care hearing and filed a complaint in abuse , dependency, and
neglect. A Guardian Ad Litem was
appointed as both a GAL and Attorney for both children.
To say
that the Parents’s participation in reunification programs was lacking would be
understating the problem just a tiny bit.
From the opinion, the Parents were both found in contempt at least once,
neither successfully completely…any real part of the case plan, both had only
about two months of actual compliance, and at one point, both simply
disappeared. LCCS moved to terminated
the Parents’ parental rights to the children and sought permanent custody of
the children.
At the
hearing, Mother appeared and waived her rights to a hearing on LCCS’s
motion. She signed the forms, the Trial
Court made sure such a waiver was knowingly, voluntarily, and intelligent, and
then permitted her and her attorney to leave.
Father failed to appear for the hearing.
LCCS put on their case and at the end, the Trial Court terminated the
parental rights of both parents.
…both
parents then appealed. …because, why
not, I guess…after all, there’s no better time to fight for your kids than
after the Trial Court has already taken them away…forever…
Appellants
collectively raised a single assignment of error:
1) The
termination of Appellants’ parental rights was not in the best interest of the
child because there was a conflict between the wishes of child one and the
report and recommendation of the Guardian ad Litem and there was no separate
attorney appointed for child one.
The
amazing thing about this is; this is not only a legitimate issue, but it’s a
good one.
So,
the GAL is appointed to represent the “best interests” of the children. Many times, the GAL also
serves as the
children’s attorney. However, if a
child’s wishes differ from the recommendation of the GAL, the Trial Court is
required to appoint a separate attorney to represent the legal interest of the
child.
However,
the Court noted that this issue had never been raised in the Trial Court,
meaning the argument has been waived for all but “plain error.” Plain error is routinely used in
the criminal
area of law, but it can be used in the civil area as well “to prevent a
manifest miscarriage of justice, and where the error complained of, if left
uncorrected, would have a material adverse effect on the character of, public
confidence in, judicial proceedings.”
The
GAL’s report stated that J.K., the oldest, refused to state his wishes
“although he tells me he is going to live with a relative soon.” The GAL provided no testimony
into J.K’s
wishes or if J.K. was ever even asked what his wishes were.
Ohio
Law REQUIRES a Juvenile Court consider the wishes of the child as expressed
directly by the child or through the child’s GAL, with due regard for the
maturity of the child. Typically the
failure to address this warrants reversal.
J.K. was seven years old, more than capable of expressing his wishes.
HOWEVER;
we’re under the plain error standard.
What is that, you ask? Well, that
means that it’s in the Court’s discretion whether it wants to notice the error
or not. That means the Court can simply
say “Well, that’s error, but we choose not to notice it.” That’s what happened here. The
Court stated that even if the Trial Court
had done things properly, the Court saw nothing on the record that would lead
it to believe that another outcome was possible, especially since neither
Appellant participated in the trial.
Because
the outcome of the case would not have changed even if the Trial Court had done
things correctly, the Court affirmed the Trial Court’s decision.
Dissenting
Opinion: This case contains a
Dissenting Opinion. Unlike a Concurring
Opinion like we had earlier, a Dissent is an opinion that disagrees with the
majority. In this case, Judge Jensen
wrote separately to state that he would have reversed the Trial Court’s
decision and remanded the case back in order for the Trial Court to ascertain
the child’s wishes as required under the statute and determine if it needed to
appoint separate counsel to the child.
Judge Jensen noted that other Appellate Courts have found that the
provisions of R.C. §2151.414(D) are mandatory and must be scrupulously
observed.
Judge
Jensen noted that the GAL specifically requested that J.K. be allowed to
maintain contact with his parents, which is a request that cannot be legally
mandated.
Comments: I hate the
“plain error” standard, and this case
highlights why. I think the Court got
this one wrong and there’s no diplomatic way to put it. This is mandated by the Revised Code
that the
wishes of the children be considered.
The Trial Court did not consider them, of if it did, it didn’t note it
in its journal entry. Would it have
affected anything? No; but skirting the
line of a potential conflict of interest between the GAL and the children is
worth remanding the case back all of the time.
I’ve
had a case involving this very issue. It
was not raised at the Trial Court (on the record anyway) and yet, there was NO
discussion of “plain error” in that case, (http://lcapps.co.lucas.oh.us/
Courts/Appeals/DecisionsPDF/6490.pdf
if you’re interested). Clearly the Court
was not enamored with the parents, and who would be? Still, I disagree with this outcome
entirely. The last thing LCCS needs is
that feeling that they can do whatever the heck they want to.
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In Re: E.M.– L-14-1220
This
is an appeal from the Juvenile Court involving the determination that E.M. was
an abused child.
Appellant,
the mother of E.M. admitted using heroin while pregnant. The month prior to E.M. being born,
Appellant
went to the hospital to detox and was prescribed Subutex. E.M. was born with Subutex in her
system, but
neither E.M. or Appellant was found to have heroin in their systems. After E.M.’s birth, she was
placed in the
care of her maternal grandparents.
Within
weeks, Lucas County Children Services (LCCS) filed a complaint in abuse,
dependency, and neglect. The magistrate
found E.M. to be an abused and neglected child.
Appellant filed an objection to the magistrate’s order, claiming that a
finding of dependency was the only proper finding. The Trial Court reversed the magistrate’s
finding in part by finding E.M. to be an abused and dependent child. Specifically, the Trial
Court found that
using heroin approximately five weeks before birth, when the fetus was viable,
exposed the child to an illegal substance and considered the child, or any
similarly situated child, to be abused.
Appellant
asserted a single assignment of error on appeal:
1) The
trial court erred in holding that when a mother exposes her viable fetus to an
illegal substance, that child, when born, is per se an abused child.
R.C. §2151.031(D)
defines an abused child as a child who “[b]ecause of the acts of his parents,
guardian, or custodian, suffers physical or mental injury that harms or
threatens to harm the child’s health or welfare.” A Trial Court’s determination that a child is
abused, neglected, or dependent, must be supported by clear and convincing
evidence. Clear and convincing evidence
requires proof which “produce[s] in the mind of the trier of facts a firm
belief or conviction as to the facts sought to be established.”
Basically,
clear and convincing evidence is somewhere between “preponderance of the
evidence” and “beyond a reasonable doubt.”
I’m not even kidding; this is a definition some case law gives us…
The
Court looked through case law and found that a finding of abuse has only been
made when a child is born with an illegal substance found in their system,
creating a substantial risk to the health of the child. In this case, there were no such
issues. The record contained no evidence that the
Subutex found in E.M.’s system was harmful in any way, or that the illegal drug
use harmed E.M. at all. The Court also
found the Trial Court’s holding that any illegal drug use within 5 weeks prior
to birth was per se abuse was unreasonable.
The
Court reversed the Trial Court’s finding that E.M. was an abused child.
Comments: You might be
wondering why this matters as E.M. was
still found to be a dependent child?
Being found to be an abused child opens up so many more doors for LCCS
to come in and take the children and move to terminate your parental rights;
getting that wrongfully found NEEDS to be fixed, as it was in this case. I’m clearly not
condoning or recommending any
expecting parent go off and use drugs, but if that drug use miraculously did
not harm the child, then you simply cannot find the child to be abused because
you’re angry the mother was so reckless.
Solid reversal here.
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Riley et al.
v. Frank et al. – F-14-007, F-14-
008
Accelerated
Appeal involving the Trial Court’s denial of Appellant’s motion for prejudgment
interest against Appellees. Appellees moved
for attorney fees and costs, arguing that this appeal was frivolous.
Assignment
of error:
The
trial court erred in not awarding pre-judgment interest against both
Defendants-Appellees for their less than good faith efforts in pursuing
settlement of Plaintiff-Appellant’s claim.
Issues
raised within that assignment of error:
A. The
trial court abused its discretion in ignoring the record of
Defendant-Appellees’ conduct in denying Plaintiff-Appellant’s motion for
prejudgment interest pursuant to R.C. 1343.03(C).
B. The
trial court abused its discretion by misapplying the standard set forth in R.C.
1343.03(C).
C. The
trial court abused its discretion through its unreasonable and arbitrary
analysis.
D. It
is appropriate for this court to determine the award of prejudgment interest
pursuant to authority granted to it under App.R. 12.
Result: Affirmed;
Request for Attorney Fees denied as the
appeal, while not successful, was not frivolous.
Comments: I have been
told recently at a meeting of the Bar Association’s
Common Pleas Committee that this decision has some very important issues
contained within. Heck if I can
understand any of them…if you are into this kind of case law, you’ll likely
want to read the decision yourself…
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State v.
Craig – WD-14-061
DISCLAIMER:
I represented the Appellant in this case.
Appellant
appealed his eleven month sentence after pleading guilty to one count of Attempted
Gross Sexual Imposition.
Appellant
was originally indicted with one count of Rape, a felony of the first degree. After a number of
pretrial conferences,
Appellant entered a plea agreement which reduced the charge to the Attempted
Gross Sexual Imposition, a felony of the fifth degree. For those of you keeping score, a felony
of
the first degree is the highest degree of felony we have in Ohio (only below “unclassified
felonies” like Murder and Aggravated Murder), while a felony of the fifth
degree is the lowest degree of felony we have (right next to things like theft
of anything worth over $1,000, and assaulting a Corrections Officer).
At
sentencing, the Trial Court stated: “Obviously this victim was impaired and the
defendant has received a huge benefit by the reduction that the prosecutor and
the defense have agreed to. I think, in view of that, the appropriate sentence
in this case is eleven months in the Ohio Department of Rehabilitation and
Corrections.”
Appellant
raised the following assignment of error:
Appellant’s
sentence is contrary to law.
R.C.
§2929.11(A) lists the principals and purposes of sentencing as: “The overriding
purposes of felony sentencing are to protect the public from future crime by
the offender and others and to punish the offender using the minimum sanctions
that the court determines accomplish those purposes…” A Trial Court is expected to “reasonably
calculated to achieve the two overriding purposes of felony sentencing …
commensurate with and not demeaning to the seriousness of the offender’s
conduct and its impact upon the victim, and consistent with sentences imposed
for similar crimes committed by similar offenders.”
A
Trial Court is also supposed to consider the seriousness and recidivism factors
under R.C. §2929.12. “Recidivism” is
simply the likelihood of reoffending. I’m
quite certain it’s just a fancy word we created at some point just for the
Criminal Justice system.
The
basic argument was that the Trial Court had failed to properly consider R.C.
§2929.11 and R.C. §2929.12 despite saying it had done so, based on the record. The Court
disagreed and affirmed Appellant’s
sentence.
Comments:
I had a line in my brief arguing that the Trial Court’s reliance on the deep
reduction of the charge as a reason to send my client to jail was unwarranted
since there are “many reasons a prosecutor may decide to reduce a charge so
drastically.” The Court of Appeals
responded with: “We find appellant’s argument to be purely speculative and not
supported by the record.” …ouch. BUT, I…can’t really say I disagree…appointed
work is like being dealt a hand of cards and being forced to play it.
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Martin
Forbush, individually and on behalf of the wrongful death beneficiaries of
Thomas Forbush, Jr. v. HCR Manor Care, Inc. et al. – WD-14-071
http://lcapps.co.lucas.oh.us/ Courts/Appeals/DecisionsPDF/6615.pdf
http://lcapps.co.lucas.oh.us/ Courts/Appeals/DecisionsPDF/6615.pdf
Appellant
nursing home is being sued by the estate of Mr. Forbush after dying allegedly
due to the low standard of care he received at Appellant’s facility.
During
the suit, Appellants moved to stay the case pending arbitration arguing that
the parties were under an arbitration agreement. Appellees opposed, saying more discovery was
needed to determine if the arbitration agreement was enforceable.
The
Trial Court denied Appellant’s motion by stating:
“The
court has determined that this matter should not be stayed or referred to
arbitration at this point. The parties shall engage in discovery. If, after engaging
in discovery, the defendants feel that the facts here render this action
referral to arbitration, they may renew their motion. But as for the present
time, it is denied.
Defendants’
motion to stay pending arbitration is denied.”
Assignments
of error:
I have
no idea. …no seriously, I have no
idea. The Court didn’t list them.
Before
a Court of any kind can act on a case before it, it must have jurisdiction. Jurisdiction
comes in two forms; personal and subject matter. Personal Jurisdiction is jurisdiction over
the parties. Since Wood County is in the
Sixth District, the Court of Appeals had that.
Subject
Matter Jurisdiction, however, is whether the Court can actually have the case
before it under statutes or the Constitution.
A
Court of Appeals may only consider cases with a Final Appealable Order, defined
as “an order which affects a substantial right, determines the action and
prevents a judgment; affects a substantial right in a special proceeding;
vacates or sets aside a judgment or grants a new trial; grants or denies a
provisional remedy; determines an action may or may not be maintained as a
class action; determines the constitutionality of a change to a statute; or
arises in an appropriation proceeding.”
R.C.
§2711.02(C) states that: “an order … that
grants or denies a stay of a trial of any action pending arbitration,
including, but not limited to, an order that is based upon a determination of
the court that a party has waived arbitration under the arbitration agreement,
is a final order.”
However,
in this case, the Court found that as much as the Trial Court said Appellant’s
motion to stay was “denied,” it really just continued the case for more
discovery and left the door open for Appellant to refile tis motion upon
completion of said discovery.
As
such, the Court dismissed the appeal, finding the Trial Court’s order was not a
final, appealable order.
Comments: I seem to
remember the Court of Appeal’s Court
Administrator once saying that questions on Final Appealable Orders was the topic
he was asked about the most. This really
is a hard topic because there are so many pitfalls. If you fail to meet the 30 day deadline to
file an appeal, you are barred from appealing, except in criminal cases and
juvenile delinquency cases, where you may file a request for a delayed appeal, leaving
it up to the Court of Appeals as to whether you get to appeal or not.
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State Ex Rel.
Miller v. Judge Ruth Ann Franks – L-15-
1042
Relator
Thomas Miller, pro se, filed an “Original Action in Procedendo” asking the
Court to order the Respondent to issue
findings of fact and conclusions of law as to a Post-Conviction Relief motion
he filed on December 17, 2014. The
petition was filed on February 23, 2015.
On
February 25, 2015, Respondent issues findings of fact and conclusions of
law. Relator appealed and that case is
currently pending before the Court.
Result: Wirt denied as
moot.
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Whew…finally
got a blog finished. Hooray! I’ll see you next time!
