Introduction
Welcome
to my blog! I guess I ought to introduce
myself as…this section is labeled “introduction” and all. It’s already written and it’s not like I can
go back and edit it now, so I’m stuck with it.
My name is Tim A. Dugan and I am an attorney. Currently, I focus my practice on Appellate
work in the Ohio Sixth District Court of Appeals. I am very passionate about Appellate
work…sometimes a little too passionate.
I am
also a nerd. Hence why I think this blog
is worth posting publically…
I
intend to use this as a space to write little capsules of every case that’s
decided by the Ohio Sixth District Court of Appeals. The Court normally releases their decisions
on Friday, so I’m hoping to have this posted weekly sometime on or before Mondays.
Each
case will review generally its facts, the assignments of error, and the
outcome, talking about the legal analysis and findings from the Court if they
are at all interesting. I will then
include any other comments I can think of about the case.
Every
so often I might toss in a section titled “For Non-Lawyers.” This is to explain something rather technical
in a case for a person who is not a lawyer and does not know specific technicalities
in the law. As much as this is a blog
for lawyers, I do want anyone who reads this to enjoy the experience…or, hate
it so much that you come back and read it again and again just out of spite.
And
yes…every case…even the extremely boring civil cases, (excuse me while I now
dodge angry phone calls from civil lawyers).
I am very biased towards criminal cases and I know way more about
criminal law than I do about civil law.
I will try to talk about the civil cases…but don’t expect any awesome
commentary about them. …or really, just
don’t expect any awesome commentary at all, and we’ll all be fine.
I do a
lot of work in the Sixth District, so inevitably; I will have some of my own
cases “reviewed” here. In those cases, I
will need to be a bit more subtle in the things I talk about and the cases will
be clearly marked. Keep in mind,
however, that many of the cases are fully public record, meaning that the
briefs are online.
Glossary for Non-Lawyers
There
are some basic terms that ought to be defined before we start:
“Court” –
this designation is the Court from where the decision comes from. Mostly, this will me the Sixth District Court
of Appeals, but sometimes if I’m bored enough, I might talk about a case from
another Court. Likely the Supreme Court
of Ohio.
“Trial Court”
– this designation is the Court from where the case being appealed came from
“Appellant”
– the person or party bringing the appeal, and wants the Court to reverse the
Trial Court’s decision.
“Appellee” –
the person or party who wants the Court to affirm the Trial Court.
“Assignments of Error” – in the Ohio Courts of Appeals, these are the
arguments the Appellant brings to the Court, saying that the Trial Court
committed error and the case should be sent back there.
“Affirmed” –
Means the Court found no errors in the Trial Court proceedings and is normally
what the Appellee wants to see at the end of the decision.
“Reversed” –
Means the opposite of Affirmed, and is what the Appellant is hoping to see at
the last page of every decision.
“Record” –
the record is the most important part of any appellate case. It is everything that was filed in the Trial
Court and anything that appears on the transcripts from the trial/hearing that
happened in the Trial Court. If it’s not
in the record, you aren’t going to be able to argue it on appeal.
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Well,
with all of that out of the way, let’s get this party started, shall we? Let’s see, for my first week of doing this
there are…twelve decisions…gee…thanks Sixth District…guess I better get
started…
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State v.
Fenderson – E-14-015; E-14-021
Appellant
Takye Fenderson originally charged with 24 criminal counts that spanned two
different cases. Appellant ends up
pleading to two counts of Aggravated Robbery, complicity to commit Grand Theft,
and complicity to commit Aggravated Burglary, with all of the rest of the
charges to be dismissed. In addition,
part of the plea papers included a hand written provision that “promised”
Appellant would be sentenced only to six years in prison.
According
to the Court, the Trial Court consistently initiated a discussion with both
Appellant’s Trial Counsel and the Prosecutor to reflect when Appellant would be
eligible for judicial release, either five or five and one half years. The record contained no information that the
six year agreement was based purely on a favorable Presentence Investigation
Report or consent of the victim
At
sentencing, the Trial Court referenced the “agreement” but sentenced Appellant
to twelve years.
Appellant
asserted a single assignment of error:
The
trial court erred when it sentenced Mr. Fenderson to a term of incarceration in
excess of what the court agreed to at the time Mr. Fenderson’s plea was
accepted.
Finding
that the Trial Court agreed to the “promised” six year agreement during
Appellant’s plea, the Court reversed the Trial Court, and remanded the case for
resentencing.
Comments: This case rather shows something I see a lot
of; sometimes a prosecutor does not clearly state parts of the plea agreement
into the record. If, indeed, the State
believed the Trial Court had discretion to sentence Appellant to whatever it
wanted it, the prosecutor should have had the Trial Court make this clear
during the plea. Instead, the Trial
Court gave clear signs that it was agreeing to the “agreed upon” sentence
between Appellant and the Prosecutor.
While normally an agreement between the State and a Defendant for
sentencing is a “joint recommendation” which the Trial Court does not have to
abide by. However, a Trial Court CAN
bind itself to an agreement and that’s exactly what the Sixth District found
here. …and people wonder why I keep
saying the record is so important…
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Sylvania/State
v. Johnson – L-14-1001
Appellant
John Johnson appealed his conviction of Petty Theft from Sylvania Municipal
Court. Appellant was charged with
stealing scrap metal from a demolition site.
Appellant was spotted on the property with a long piece of metal in his
hand when the real estate broker of the property stopped by the site to see
check on the progress of the demolition.
The
manager admitted that there were no “No Trespassing” signs and the site was not
fenced off. He also admitted that he did
not see where Appellant had gotten the metal he was carrying.
A
responding officer testified that Appellant admitted to him that he was on the
site and removed property from it.
Appellant
asserted two assignments of error:
1) Appellant’s convictions were against the
manifest weight of the evidence
2) The
Trial Court committed error when it failed to grant Appellant’s motion for
acquittal.
The
Court found that, while the owner of the property didn’t testify, the fact that
he did not consent to Appellant coming onto the site and remove the property
could be inferred since the owner never informed the manager about Appellant’s
right to come onto the site. The Court
found both arguments not well-taken based on the circumstantial evidence
Comments:
Nothing real groundbreaking here.
Appellant’s case likely died the moment the police officer testified
that Appellant admitted being on the site and taking the scrap metal.
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State v.
Miller – L-14-1005
Appellant
Thomas Miller appeals his sentence, claiming that Trial Court erred in
sentencing him to an additional one year after violation the terms of his
Post-Release Control after pleading guilty to a felony while on PRC. Appellant filed a Post-Conviction Relief
motion to demand the Trial Court grant him time served, wanting the time he
spent on Post-Relief Control to be counted against the one year sentence.
Appellant,
pro se, asserted three assignments of errors.
None of which worth mentioning here.
The Court found all of Appellant’s arguments meritless.
For
the Non-Lawyer: A “Pro-se litigant”
is a person representing themselves. In
appellate cases, these are routinely, but not always, inmates.
Comments: Yeah…pro se filings...
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State v.
Howard – L-14-1121; 14-1130; 14-1131
Appellant
Brian Howard appealed his total sentence of seven years in prison after
pleading no contest to Attempt to Commit Burglary, Retaliation, and Escape.
The
Court’s opinion is lacking a description of the facts that gave rise to the
plea.
This
is an Anders brief. Counsel for Appellant pointed to one
assignment of error that could arguable support an appeal; the Trial Court’s
findings that Appellant’s sentences would run consecutively to each other were
not supported by the record. The Court
found the appeal to be wholly frivolous and affirmed Appellant’s sentence.
For
the Non-Lawyer: An Anders brief is a brief filed by
Appointed Appellate Counsel, and only Appointed Appellate Counsel. It is a brief that says “Dear Court, I was
appointed to Appellant, and I really cannot find anything to argue in this
case. Here are a bunch of issues that
might support an appeal, but then here’s why those issues are meritless.”
There’s
a real argument to be made that an Anders
brief is you throwing your client under the bus and wiping your hands of
him/her. When you file one of these, you
have to also move to withdraw as counsel for your client, serve a copy of the
brief on your client, and notify him/her that they have 45 days to file their
own, pro se brief to cover issues you might have missed. Then the Court has to review the entire
record and determine if you missed anything.
If you did, they will appoint a new lawyer to the Appellant. If they do not, then they will withdraw you
from the case and affirm the conviction/sentence. Personally, I don’t see them as a breach of
your ethical duty to your client, but…I can see where people who think that
come from.
Comments:
The Court’s opinion might not have any facts in it, but the briefs do! Apparently this started when Appellant for
into a fight with his wife over which pharmacy to use for refilling a
prescription. According to the State,
Appellant hit his wife in the face repeatedly and tried choking her. This was NOT from this case; this was from a
previous case. Appellant was ordered
into CTF for that case.
While
at CTF, Appellant became ill and was taken to the hospital…where he escaped
from custody and went back to their marital home and entered while he was not
allowed to do so. Finally, Appellant
apparently attempted contacting this wife, the victim, who had a CPO against
him by this point.
I
dislike the use of Anders briefs
anymore…but I can’t fault anyone for using them. Sometimes…there’s just nothing to argue…
As a
side note; I wish the Court’s opinions would contain the facts of a case, even
if they aren’t all THAT important…
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In re I.W. – L-14-1210
DISCLAIMERS:
This is one of my cases; this Appeal is taken from Juvenile Court.
Appellant
T.W. appealed the Lucas County Juvenile Court’s decision to terminate her
parental rights to her child I.W.
I.W.
was found to be a neglected and abused child by the Trial Court. Appellant was offered services through Lucas
County Children Services for domestic violence issues, mental health issues,
and substance abuse issues. The Court’s
opinion noted that the record showed that Appellant had a constant alcohol
abuse problem.
The
Caseworker testified that Appellant had not completed a number of her services
and continued to no-show for her appointments.
Appellant
asserted one assignment of error:
Appellee failed to prove by clear and convincing evidence that the
children [sic] could not be returned to Appellant within a reasonable time and
that permanent custody was in the best interests of the children.
The
Court found that, based on the record, they could not say that the Trial
Court’s decision was not against the manifest weight of the evidence.
For
the Non-Lawyer: Any case dealing with
a minor uses initials to identify all parties of the case.
Comments:
As this is my case, and a juvenile case, I will not comment about the facts of
this one. In fact, I really don’t have
much to say about this one …except to say that I HATE it when I make stupid
grammar mistakes in the assignments of error.
Oh, that, and I really dislike it when a CSB caseworker testifies to
something and is like “well, I think this is what happened, so my opinion is
fact and that’s that.” Happens far too
often…
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State v. Ault
– OT-13-037
Appellant
Alan Ault appealed his sentence after entering an Alford plea to Rape, Pandering Obscenity Involving a Minor, Illegal
Use of a Minor in Nudity Oriented Material or Performance, and Pandering
Sexually Oriented Material Involving a Minor.
Appellant received consecutive, maximum sentences for a total of 28½
years in prison.
There
are no facts in the Court’s opinion about this case. Considering the charges…I don’t think we
really need to go there…
Appellant
asserted three assignments of error, all revolving around his sentencing:
1) The
trial court erred in sentencing appellant to serve maximum consecutive
sentences, as the appellant’s sentence does not serve the purpose of the
sentencing statute pursuant to R.C. 2929.11, is clearly and convincingly
contrary to law, and the record clearly and convincingly does not support the
trial court’s findings.
2) The
record clearly and convincingly establishes that the record does not support
the trial court’s finding for imposing consecutive sentences.
3) The
trial court committed plain error by failing to consider the issue of merger
for purposes of sentencing pursuant to State
v. Johnson.
The
outcome is as you might expect; the Court found all three errors not well-taken
and affirmed Appellant’s sentence.
Comments:
Not too much to say about this one. We
get a bit of a plain error review because no one objected to Court not merging
some of the counts together. Plain error
sucks for us Appellate Attorneys.
Friends don’t let friends waive arguments…it’s also entirely possible
this was never really an issue in the first place and Appellate Counsel was
fishing for anything he could possibly argue, (I’ve been there).
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M.C. v. B.K. – S-14-032
Appellant
B.K. appealed the granting of a Civil Protection Order from the Sandusky Court
of Common Pleas. According to the
opinion, B.K. is M.C.’s former husband.
The petition for the CPO stated that Appellant engaged in persistent
emotional and mental abuse, threats of physical violence, and threats of taking
their child with him across state lines.
At the
hearing, Appellant was represented by counsel while Appellee was pro se. evidence at the hearing showed that the child
when he was fourteen years old, decided to live with Appellant. After about six to nine months of this, the
child returned to Appellee and Appellant ceased speaking to or visiting the
child, until the child attempted to commit suicide. Testimony showed that Appellant came to
Appellee’s house while she was at work and took the child to a hospital in
Michigan two hours away, then demanded Appellee show up and sign for all
financial liability.
Thereafter,
the child would text Appellant now and again to see how he was doing, only to
get the response of “don’t ****ing talking to me, or, you know, you’re a
traitor…” Appellee sought the CPO to
protect her child from further mental abuse from Appellant.
Appellant
testified that he disapproved of the child basing her self-worth on her outer
beauty, and tried to teach her that revealing too much of herself would attract
the wrong kind of people. Appellant
blamed Appellee for not accepting the help of the EMS when the child
overmedicated herself during her suicide attempt.
Appellant’s
counsel testified and concluded that he did not think Appellant would go after
anybody or intentionally harm the child.
The counselor tried to hand wave the text messages as “not showing where
Appellant’s heart is,” but the Trial Court was having none of that.
Appellant
asserted a single assignment of error:
The
trial court’s finding that domestic violence occurred is against the manifest
weight of the evidence and therefore should not (sic) have issued a civil
protection order.
The
Court, stating that the granting of a CPO is within the sound discretion of the
Trial Court, found that the Trial Court’s decision was not an abuse of that
discretion, and affirmed the Trial Court.
Comments:
Hard case to read through. A lot of
terrible facts presented in the decision and I’m sure we only here part of
them. As far as the law is concerned,
the case didn’t really turn on much other than the fact. It’s always difficult to prevail on an
argument based purely on the facts.
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State v.
Santana – WM-14-002
Appellant
Edgar Santana appealed his conviction on seven counts on trafficking of
marijuana, felonies of the third degree, and one count of engaging in a pattern
of corrupt activity (“EPCA”), a felony of the second degree.
According
to the opinion, Appellant is a resident of the State of Texas and periodically
communicated with a confidential informant in Williams County, Ohio. Appellant would sell marijuana to the
informant who would travel to Texas to receive the drugs and pay for it using
money orders sent from a bank in Ohio.
Upon returning to Ohio, the informant would distribute and sell the
marijuana.
Appellant
was charged in Williams County and filed a motion to dismiss, arguing that he
had never been to Ohio and the Williams County Court of Common Pleas lacked
jurisdiction over him. Appellant also
filed a motion to dismiss the EPCA charge claiming the State did not have
evidence to show that Appellant was associated with any enterprise, which is
the primary element of EPCA. The Trial
Court denied both motions.
Appellant
raised a single assignment of error:
The
Trial Court erred by not dismissing the case but instead accepting a plea of
Guilty and sentencing Mr. Santana when the trial Court lacked jurisdiction over
the person of Mr. Santana, who never entered the State [sic] of Ohio prior to
the Indictment, and over his alleged acts, none of which occurred in Ohio.
For
Non-Lawyers: “Personal Jurisdiction:”
jurisdiction over the person and can be waived.
“Subject-Matter
Jurisdiction:” Whether a court has the ability to hear the case before it under
the law. This cannot be waived. A court must have SMJ in order to hear a
case.
The
Court started its analysis by discussing if the Trial Court had personal
jurisdiction over Appellant. A person
waives the issue of personal jurisdiction by voluntary submission at an initial
appearance. This includes pleading not
guilty, which Appellant did, waiving the issue of personal jurisdiction.
The
State argued that under R.C. §2901.11, sufficient elements of the crimes
occurred in Ohio which would grant the Court of Common Pleas jurisdiction. The statute includes that a person is subject
to criminal prosecution in Ohio when the person commits an offense under the
laws under the State of Ohio and any element of the crime occurs in Ohio; or
while out of the State, a person is guilty of complicity in the commission of
the offense or conspires in committing the offense.
Courts
in Ohio have previously held that an offer to sell drugs over the phone to a
person in Ohio is enough to establish jurisdiction. Appellant argued that he did not call the
informant but he was called by the informant, but the Court found that when
Appellant informed the informant that he had drugs to sell, that was
enough. The Court also found that
Appellant and the informant had been in communication periodically via the
telephone where the two confirmed the details of the deal and worked out the
transaction. By pleading guilty to the
charges, Appellant accepted the facts as true.
Finding
the requirements of R.C. §2901.11(A) had been met; the Court affirmed
Appellant’s conviction.
Comments:
We don’t normally get a case all about Subject-Matter Jurisdiction. My Civil Procedure Professor would be so
happy right now. Still, if you want to
contest if a court has jurisdiction over you, do NOT walk in and plead Not
Guilty to the charge at arraignment. In
order to protect jurisdiction, you must show up and say that you are appearing
only to contest the court’s jurisdiction over you. It’s called a “special appearance.” Wonder if the Appellant’s attorney advised
him of this…
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Ellen Jean Mix, Individually and as Personal
Representative of the Estate of Timothy Mix v. Timothy – WD-13-090
Appellant
Ellen Jean Mix appealed the Trial Court’s granting of summary judgment in favor
of the City of Northwood and Doctor David Miramontes, an emergency physician,
in a wrongful death lawsuit, regarding the death of Appellant’s husband.
The
City of Northwood has a volunteer fire department, meaning despite being paid a
small sum to respond, they are not obligated to respond to a page. The city maintained two fire stations and a
“first response unit” with advanced lifesaving services that was intended to be
manned 24 hours a day. In the year
proceeding Mr. Mix’s death, the vehicle was unmanned for 52.5 hours.
Two
years prior to Mr. Mix’s death, the city had to make cutbacks which caused a
reduction to the volunteer pool. When
911 was called for medical help, the dispatcher would “tone out” or page the
EMT’s assigned to the nearest fire station.
If no response was made after 7 minutes, the dispatcher would call for
aid from a neighboring department pursuant to a mutual agreement.
In
March 2011, Appellant called Northwood 911 after being unable to wake her
husband. At 6:50am, station two and the
emergency first response unit were toned out, but it was discovered that the
unit was unmanned. At 6:57, both
stations were toned out. At 7:01, a
responder arrived at the station and responded to the dispatcher and waited for
a second person per policy (the ambulance unit requires two people). At 7:06, the responder contacted the
dispatcher to determine if anyone else had responded. Once he heard no one else had responded in
the other station, he responded to the scene solo. At 7:11, Appellant contacted the dispatcher
and reported her husband’s heart had stopped beating. At 7:13, Lake Township was contacted for help
and they responded. Upon hearing this,
the Northwood responder asked for the stations to be toned out again.
Upon
arrival, the Northwood responded began CPR and oxygen treatment. Shortly after the medical unit arrived and
began ALS procedures. Mr. Mix’s pulse
returned, but he died in the hospital two days later. On the date of the incident, Dr. Miramontes
was acting as a consultant and provided medical training to first
responders. The wrongful death suit
arose out of these facts.
The
City and Dr. Miramontes both filed for Summary Judgment.
For
the Non-Lawyer: “Summary Judgment:” a motion to a court in a
civil matter that argues that there are no genuine issues of material facts in
contest, and that the moving party has a right to a judgment as a matter of
law. In other words: “take all of the
facts and view them in the best way possible for the other side; we still win.”
The
City argued that they and their employees have immunity from such
lawsuits. At issue was only if the
conduct of the city employees were “willful or wanton.” The City argued that there were no facts in
dispute that showed the City acted in a manner that rose to willful or wanton
misconduct. Dr. Miramontes argued that
he was a consultant to the Northwood Fire Chief and he had no oversight over
the department staffing, procedures, or response times.
Appellant
cited a memorandum authored by Dr. Miramontes to the Northwood mayor, stating
that the current EMS-Fire deployment plan did not meet the community standard
of care, authored in 2011. Appellant
offered two affidavits of experts in their opposition to the motions for Summary
Judgment. The affidavits opined that the
city’s response time did not meet the relevant standard of care. Dr. Miramontes objected to the use of his
memorandum and the expert’s affidavits as a “subsequent remedial measure.” The Trial Court agreed and disregarded the
documents.
The
Trial Court ultimately ruled in favor of Appellees and granted the Summary
Judgment motions.
Appellant
raised four assignments of error:
1) The
lower court erred in granting summary judgment on behalf of appellees Mark
Stoner, Timothy Romstadt, Dr. David Miramontes and City of Northwood.
2) The
lower court erred in determining that there was no genuine issue of material
fact related to the wanton and/or reckless conduct of appellees.
3) The
lower court erred in determining that appellee Miramontes’ April 16, 2011
memorandum should be excluded under Ohio Evidence Rule 407 as evidence of
subsequent remedial measures.
4) The
lower court erred in refusing to consider the expert affidavits of Thomas Weber
and Dr. Peter Springer.
Appellant
argued that Dr. Miramontes’s memorandum was not a remedial measure as
contemplated by the statute, rather it was a statement of recommendations to
bring the City up to standard. The Court
disagreed, finding that Dr. Miramontes was a consultant and the memo was his
recommendations to prevent further issues.
That is exactly what a “subsequent remedial measure” is, and the Trial
Court properly found it to be inadmissible.
As to
the affidavit of the experts, the Trial Court held that they were inadmissible
as they relied on Dr. Miramontes’s memo, but the Court find
differently…partially. The Court found
that part of the affidavits were based purely around the expertise of the
experts and could have been considered independently of the inadmissible portions. The Court found the fourth assignment of
error to be well-taken in part.
However,
the Court found that the City was not willful or wanton in its behavior towards
the first response unit, and that a State of the City address posted on the
City’s website in 2010 stating that the unit would be manned “24/7” was a
goal. Failure to achieve it, especially
in view of the budget cuts forced upon the City was not willful misconduct.
Finally,
the Court found that Dr. Miramontes might possibly have been negligent in not
recognizing the deficiencies, but that did not raise to “willful or wanton”
misconduct. The Court found the first
two assignments of error not-well taken and affirmed the Trial Court.
Comments:
I know nearly nothing about civil practice so I don’t have much to say about
the legal aspects of this case. This
case is really sad though from the fact pattern. Sadly, I have to agree with the Court on this
one. Nothing from the facts, to me,
shows that the City acted in a manner that was Willful or Wanton. Still, if this was a family member of mine, I
would probably be just as upset over the slow response.
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State v.
Wolfe – WD-14-022
Appellant
Bradley Wolfe appealed his convictions for Tampering with Evidence and
Abduction, following his guilty plea.
This
is our second Anders case of the
bunch.
Appellant’s
Appointed Counsel offered the following potential assignments of error:
1)
Appellant was denied effective assistance of counsel.
2) The
trial court abused its discretion by accepting the Appellant’s guilty plea
without ensuring that the plea was knowingly, intelligently and voluntarily
entered.
3) The
trial court abused its discretion in sentencing appellant to a term of
imprisonment.
4) The
trial court abused its discretion in denying appellant’s motion to sever
charges.
5)
Appellant’s guarantee against double jeopardy were [sic] violated where the
jury indicted him on the charge of felonious assault after no probable cause
was found with regard to said charge at a preliminary hearing.
The
Court noted that Appellant’s Counsel did not front any arguments regarding the
listed potential assignments of error.
The
Court found no evidence that Appellant’s Trial Counsel was ineffective, that
Appellant’s guilty plea was not voluntary, knowingly, or intelligently given,
that the Trial Court’s sentence was an abuse of discretion (especially
considering this isn’t even an allowable argument anymore), that a person
waives any argument that charges should be severed by entering a guilty plea,
and that jeopardy does not attach in a preliminary hearing.
Comments:
If you’re going to write an Anders
brief, I personally believe you ought to be doing more than just listing
potential assignments of error. To me,
an Anders brief is to show the Court
and your client that you have actually looked through the entire record. That’s just me…I’m personally done with them
anyway…
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State v.
Rodriguez – WD-14-075
Appellant
Jose Rodriguez appealed the Trial Court’s denial of his motion for
post-conviction relief…for the second time.
For
the Non-Lawyer: A motion for “Post-Conviction Relief” is a motion, after
conviction, attacking your conviction for one reason or another. In cases of a plea, it could be a motion to
withdraw your plea. In cases of a trial,
it could be a motion for a new trial.
Appellant
represented himself Pro Se.
Appellant
asserted the following assignment of error:
“The
trial court erred and abused its discretion when it failed to entertain an
untimely successive post conviction petition relief predicted upon a claim of
withheld material evidence by the state, in which newly discovered evidence
required a due process violation analysis under State v. Reedy, 1999 Ohio App.
LEXIS 4717, further see Brady v. Maryland, 373 U. S. 83 S. Ct. 1194, 10 L. Ed.
2D 215”
Appellant
was convicted on January 29, 2008. The
Court affirmed his conviction in 2009.
Appellant filed a motion for Post-Conviction Relief in 2010. A motion for Post-Conviction Relief must be
filed within 180 days after the trial transcripts are filed in the Court of
Appeals in the direct appeal of the judgment of conviction. This means the first motion was
untimely. There are exceptions but if
you don’t meet any of them, a court has no jurisdiction to hear an untimely
motion. The exceptions mostly revolve
around that the defendant was “unavoidably prevented from discovering the facts
giving rise to the petition.”
The
Court found that Appellant’s second petition simply repeated everything in the
first, and the first was properly dismissed as untimely. The Court affirmed the Trial Court’s denial
of Appellant’s petition.
Comments:
Nothing really to say. Sometimes people
just keep filing the same thing over and over thinking that it’ll work this
time…it doesn’t…ever…
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First
National Bank of Bellevue v. NE Port Investments, LLC, et al. – OT-14-027
This
is a Cross-Appeal…oy.
For
the Non-Lawyer: “Cross Appeal.”
Sometimes, the Appellee also disagrees with the Trial Court and wants to
appeal. Our Appellant becomes the
“Appellant/Cross-Appellee” and the Appellee becomes the
“Appellee/Cross-Appellant.” For ease, I
will continue calling them “Appellant” and “Appellee.”
…this
is probably the worst possible thing to happen in my first blog post…
NE Port Investments purchased a $2 million marina
in Port Clinton. Appellants Gene and
Mary Molnar financed a portion of the sale while the rest was financed by
Appellee Bank.
NE
Port defaulted and Appellee Bank sued.
Appellee received a cognovit judgment in the amount of $1,174,669.11
plus interest. Appellants initiated
discussions with Appellee about possibly purchasing the mortgage and the
underlying cognovit note. They signed a
letter of intent, but never signed a purchasing agreement.
In
2013, Appellee filed a complaint for foreclosure against NE Port and named as
defendants all parties who might have a legal interest in the property,
including Appellants. NE Port failed to
answer, and Appellee was granted a default judgment. Appellant filed cross-complaints against NE
Port and were also granted a default judgment.
The
conflict comes when Appellee filed a notice of satisfaction of judgment.
For
the Non-Lawyer: “A notice of
satisfaction of judgment” is a filing that lets a court know that the side that
you have a civil judgment against has satisfied that judgment.
Two
weeks later, Appellee filed a motion for attorney fees. Appellee requested the amount of $53,045.90
in fees and $9,144.47 in expenses.
Appellant challenged Appellee’s motion.
The
Trial Court, after extensive facts were put before it, granted Appellee’s
motion, but only for $48,650.66.
Appellant
brought the following assignments of error:
1) The
trial court committed error when it granted the Plaintiff/Appellee First
National Bank of Bellevue a monetary award in the amount of $48,650.66 for the
payment of the plaintiff’s attorney fees and expenses when no claim for
attorney fees and expenses was set forth in the body of the plaintiff’s
complaint or in the plaintiff’s prayer for relief.
2) The
trial court committed error when it granted the Plaintiff/Appellee First
National Bank of Bellevue a monetary award for attorney fees and expenses
incurred by the plaintiff that were not secured by the plaintiff’s mortgage on
the subject real property and ordered the payment of said amount from the
proceeds received upon the sale of the property.
3) The
trial court committed error when it granted the Plaintiff/Appellee First
National Bank of Bellevue a monetary award for the reimbursement of attorney
fees and expenses for an unreasonable amount.
Appellee
cross appealed with the following assignments of error:
1) The
trial court committed error by denying an award of fees incurred in settlement
efforts.
2) The
trial court committed error by denying an award of fees incurred in prosecuting
the motion for attorney fees.
That’s
a nice set of errors don’t you think?
We’re going to only talk about Appellant’s first assignment of error.
Appellee
never actually asked for attorney fees prior to filing the motion AFTER filing
a satisfaction of judgment. There are
about six pages of legal analysis on this, but the case basically turned on
this point. Finding Appellant’s first
assignment of error well-taken, it rendered every other assignment of error
moot. The Court reversed the judgment of
the Trial Court.
Comments:
I really dislike civil cases. I don’t
have the mind for them…I’m sure this case is fascinating to someone…and
probably deserves more than just a quick sentence about it, but…I am not that
person.
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Oh
wow…well, there’s that for the week. My
goodness…
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