Cases from March 13 & 16, 2015
Welcome
back readers and fellow litigators! I
was away on vacation over the weekend, so this blog is a little late. This week, for some reason the Sixth District
released a single decision on Monday, March 16.
It also released 18 other decisions on Friday, the 13th. …oy…well, let’s not waste any time, shall we?
FORMAT CHANGE: So, as I was writing this entry, I came to a decision. I’m kind of
waiving the white flag here. I can’t do
all of these cases. So I’m going to do
what I do best; pretend Civil Law doesn’t exist. …okay, I’m half kidding. What I mean is, I’m going to focus much more
on the criminal cases. For the Civil
cases, I’m going to simply list their assignments of error and the outcome, and
comment on anything I find interesting.
Otherwise I’m going to try to keep the same format for the criminal
cases I have.
Cases
this week:
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State v.
Jones – S-14-003 (March 16, 2015)
Appellant
Billy Jones appeals his sentence after pleading to a minor misdemeanor.
Appellant
argued the following assignments of error:
1) A
trial court errs, and does not have jurisdiction or authority to order forty
hours of community service for a minor misdemeanor when R.C. 2929.27(D) only
allows for thirty hours of community service.
2) A
trial court errs, and does not have jurisdiction or authority to order community
service unless it does so in lieu of all or party [sic] of the fine pursuant to
R.C. 2927(D) [sic].
There’s
no reason to get into the facts of this case.
Basically, the Trial Court ordered Appellant to 40 hours of community
service. It can’t do that because the
maximum is 30 hours. Also, a Trial Court
can only order community service in lieu of paying a fine and not because it
just wanted to impose community service.
The
Court reversed Appellant’s sentence and remanded for the Trial Court to resentence
Appellant and specify what part of a fine it was imposing the community service
hours in lieu of.
Comments: Another case of a municipal court just doing
whatever it wants to do. My guess is
that hardly anyone ever appeals anything like this, so those courts just get
comfortable doing whatever the heck they want to do.
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This
is a foreclosure action in which the Trial Court denied Appellant Vicki Rosin’s
motion for relief from judgment. …joy…
Appellant’s
mortgage was recorded in 2004. In 2010,
Appellant fell behind in her monthly payments.
The Trial Court ordered foreclosure on the property in 2011. This was not appealed.
Appellee
purchased the property through sheriff’s sale 4 months later. A month after that, Appellant filed a motion
for relief from judgment under Ohio Civ.R.60(B). The Trial Court denied this motion without
explanation.
Appellant
appealed, arguing the following assignment of error:
1) The
trial court erred in granting judgment to Plaintiff.
In
order to obtain relief from judgment, a party must show that they: 1) have a
meritorious defense if the relief is granted 2) the party is entitled to
relieve under one of the grounds under Civ.R.60(B)(1-5), and 3) the motion is
made within a reasonable time.
In a
nutshell, the Court found no meritorious defense was apparent from the record,
that Appellant was not entitled to relief because she could not show that
Appellee used fraud to obtain the original judgment nor that she was prevented
from arguing such to the Trial Court during the actual case due to Appellee’s
alleged fraud, and that a six month delay in filing the motion in this case was
unreasonable due to the facts of the case.
Comments: Running theme of this blog: I hate Mortgage
cases…there might actually be something here worth discussing, but heck if I
can find it…
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Assignment
of error:
1) The
trial court erred as a matter of law when it ruled the pre-existing artisan[s]
lien did not have priority over a subsequently created statutory lien.
Result: Affirmed
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In Re O.S. – F-14-012
Appellant
filed a “motion to intervene and return the minor child to the biological mother.” The Trial Court, the juvenile court,
dismissed saying it lacked jurisdiction as the Probate Court has jurisdiction
under R.C.2101.24(A)(1)(e) to appoint and remove guardians.
The
Court agreed and affirmed.
There’s
also a host of reasons this motion was dismissed, but finding the Trial Court
lacked subject matter jurisdiction, the rest of the appeal was rendered moot.
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Assignments
of error:
1) The
probate court erred and abused its’ [sic] discretion when it denied the motion
of sole hear [sic] Duane J. Tillimon to be appointed special administrator for
the purpose of bringing a wrongful death lawsuit in the name of administrator Douglas
A. Taylor.
2) The
probate court erred and abused its’ [sic] discretion when it denied the motion
of Duane J. Tillimon to deny payment of fees and commissions to guardian
attorney Edward j. Fischer, guardian attorney Edward j. Fischer’s personal
attorney John R. Wanick, and administrator attorney Douglas a. Taylor because
they all failed in their legal obligations and duties to deceased ward Irene T.
Tillimon.
Result: Affirmed
Comment: This case is from 2008. It was stayed pending the outcome of a
bankruptcy proceeding. No one told the
Court the bankruptcy ended in 2011.
Whoops…
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State v.
Smith – L-14-1189
Appellant
Kevin Smith appealed the denial of his “Motion to Vacate Void Judicial
Sanction.” Appellant was improperly
sentenced to 919 days as a sanction for violating Post-Release Control
consecutive to his 9 year sentence for Felonious Assault. Ten years later, Appellant challenged the
ability of the Trial Court to order the extra Post-Release Control sanction
since he was not informed of the penalties of violating PRC in his prior felony
conviction. The Trial Court agreed and
amended the order (Nunc Pro Tunc), removing any and all mention of the 919 day
sanction.
Appellant
Appealed.
Finding
the Trial Court had already given Appellant his relief, the Court affirmed the
Trial Court’s action.
Comments: I…don’t quite understand the timeline here, and I
don’t have the time to go back and really check…but I have no idea what this
person was going for if he was seriously released and THEN appealed…
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Joelle R.
Castillo, et al. v. Mark Ott, et al. – L-14-1248
Assignment
of error:
1) The
Probate Court erred in granting defendant Mark Ott’s Motion to Dismiss
plaintiffs’ Complaint for Declaratory Judgment and denying plaintiffs’ Motion
for Summary Judgment.
Result: Affirmed
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State v.
Hensley – OT-14-004
Appellant
Robert Hensley appealed the Trial Court’s revocation of his Community Control
(AKA: Probation for Felonies in Ohio) and sentencing him to five year
incarceration.
This
is an Anders Brief, which after
reading the above line, surprised me as much as something that isn’t surprising
in the least bit.
Appointed
Counsel proposed the following Assignments of Error:
1) Appellant
was denied his fourteenth amendment right to due process when the trial court
revoked his probation.
2) The
trial court abused its discretion when imposing sentence upon defendant.
Appellant
admitted being in violation of his community control. Appellant’s juvenile record was three and a
half pages long comprised mostly of drug and theft related offenses.
The
Court found no arguments of merit and affirmed.
Comments: Ahhh Anders…I
hate you and yet I understand you…
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State v.
Myers – OT-14-010
Appellant
Gary Myers appealed his 17 month prison sentence after entering a guilty plea
to one count of Pandering Sexually Oriented Material Involving a Minor, a
felony of the fourth degree. The charges
came after it was discovered that Appellant was in possession of “copious
amounts” of child porn.
Appellant
argued the following assignments of errors:
1) The
trial court erred in imposing a seventeen (17) month sentence upon
defendant-appellant in that It did not comply with the requirements of Ohio Revised
code sections 2929.11 et seq and by doing so, violated defendant-appellant’s
right to due process.
2) The
trial court abused its discretion in imposing a seventeen (17) month sentence
upon defendant-appellant as it was against the manifest weight of the evidence.
Appellant’s
conviction was a sex offense and within the statutory range of a felony of the
forth degree (6 – 18 months) so therefore the sentence was not contrary to law.
Also,
the Court no longer reviews criminal sentences based on “abuse of discretion,”
per R.C. §2953.08(G)(2). As such, Appellant’s
sentence was affirmed.
Comments: Sentencing appeals are difficult to win…and any case
that contains the words “copious amounts” and “child porn” is probably not a
case in which the Appellant is going to garner much sympathy.
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State v.
Penkala – OT-14-028
Appellant
entered a no contest plea to one count of Attempted Possession of Heroin and
one count of Unauthorized use of a Motor Vehicle.
Appellant
argued the following assignments of errors:
1) Appellant’s
guilty plea was involuntary and unknowing when the trial court failed to inform
appellant of the effect of his plea in violation of Crim.R. 11(E).
2) The
trial court violated Crim.R. 32(A) by failing to afford appellant the right of
allocution.
3) The
trial court abused its discretion in sentencing appellant to the maximum term
for the offenses.
4) The
trial court abused its discretion when it imposed fines. Alternatively, trial
counsel was ineffective for failing to request a hearing on the issue of fines.
So,
when you enter a “No Contest” plea, you are not admitting guilt, but you are admitting
the truth of the facts alleged in the indictment, complaint, or information,
and the plea shall not be used against the defendant in any subsequent civil or
criminal proceedings.
Why is
that important? Because a Trial Court has
to tell you this during your plea.
Failure to do so means the plea was not entered knowingly. Guess what didn’t happen in this case? …I’m guessing you’ve figured it out already.
The
Court reversed and vacated Appellant’s plea, sending it back for them to likely
do it correctly the next time.
Comments: This stuff isn’t really that difficult. Municipal Courts just…get lazy
sometimes. Seriously though; get a script. Most judges in Common Pleas at one time had a
script they read off of if they don’t currently use one still.
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State v. Geren – WD-14-029;
WD-14-030
DISCLAIMER: This is my case
Appellant
Rodney Geren appealed his sentencing after pleading guilty to one count of burglary
and one count of breaking and entering.
The Trial Court sentenced Appellant to 2.5 years. At sentencing, Appellant also moved to waive
costs of prosecution.
Appellant
argued the following assignment of error:
1) The
Trial Court abused its discretion in assessing court costs to Appellant.
The Court
said “Nope,” and affirmed Appellant’s sentence.
Comments: Nothing interesting here. Nothing on the record anyway.
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State v. Long – WD-14-042;
WD-14-043
Appellant
James Long appealed his six month sentence that was run consecutively to a
sentence out of Fulton County.
Appellant
argued the following assignment of error:
1) The
trial court erred to the prejudice of Appellant by not making the required
judicial findings before imposing consecutive sentences.
In
making consecutive sentences, a Trial Court has to make certain findings. Specifically that “the consecutive service is
necessary to protect the public from future crime or to punish the offender and
that consecutive sentences are not disproportionate to the seriousness of the
offender’s conduct and to the danger the offender poses to the public,” and any
of the following:
(a)
The offender committed one or more of the multiple offenses while the offender
was awaiting trial or sentencing, was under a sanction imposed pursuant to
section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under
post-release control for a prior offense.
(b) At
least two of the multiple offenses were committed as part of one or more
courses of conduct, and the harm caused by two or more of the multiple offenses
so committed was so great or unusual that no single prison term for any of the
offenses committed as part of any of the courses of conduct adequately reflects
the seriousness of the offender’s conduct.
(c)
The offender’s history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the
offender.
There
isn’t anything specific that a Trial Court has to say, but it still has to make
these findings in the sentencing entry.
Guess
what didn’t – yeah, you’ve probably already figured it out. The Trial Court didn’t make any of these
findings! That means, the case gets to
be sent back for resentencing!
Comments: I rather wish there was an actual consequence for
Trial Courts screwing this up so often…it just gets remanded for resentencing,
meaning the guy still gets the same sentence…just do it right the first
time. This isn’t difficult…it’s
literally copy and pasting words from the statute into the journal entry. I mean, highlighting text, pressing Ctrl+C and
then Ctrl+V is about the easiest set of keyboard commands out there.
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Toledo v.
Grove – L-14-1048
Appellant
James Grove appeals his sentence after his conviction for Menacing by Stalking.
Appellant
argued the following assignments of error:
1) The
trial court erred as a matter of law by imposing conditions of community
control that are overbroad, that are not reasonably related to rehabilitation
and criminality, and which extend beyond the five-year statutory term limit for
community control.
2) The
trial court erred as a matter of law by failing to advise appellant of the
consequences of violating community control.
The Court
goes and lists a number of rather suspicious incidents involving Appellant and
the victim. One specifically being that the
victim’s dog just happened to disappear and Appellant just happened to find it,
saying he found the dog in once place, and then later saying he found the dog
in another place across the city. Also,
his car was seen in the area of the victim’s house at the time the dog “disappeared.” Oh, and Appellant is “skilled in opening locked
doors without keys.” (quote from the opinion).
…yeah…
The
Trial Court ordered a mental health assessment.
Appellant took exception to this.
The Court said “No, that’s perfectly fine, based on the record which…I
mean, look at it.” Also, the Trial Court
did clearly list the consequences to Appellant of what could happen if he
violated the probation conditions placed on him.
Comments: I mean…he’s skilled at picking locks. I legitimately fear for this victim’s safety
reading the facts of this case.
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State v. Hildebrand – L-14-1049
Appellant
Randall Hildebrand appealed his conviction for Failure to Register, a felony of
the third degree. For anyone not in
Ohio, that’s being on the sex offender registry, and failing to register as
required by the courts.
Appellant
entered a guilty plea and the State recommended a two year prison
sentence. The Trial Court sentenced Appellant
to two years in prison.
This
is an Anders case.
Appellant’s
appointed counsel proposed the following potential assignments of error:
1) Appellant
was denied effective assistance of counsel as guaranteed by the United States
and Ohio constitutions.
2) Appellant’s
sentence is contrary to law.
The Court
found neither of these to have any merit to them, and granted appointed counsel
permission to withdraw, affirming Appellant’s sentence.
Comments: Sentencing appeals…likely a huge percentage of Anders cases.
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State v. Byrd – L-14-1065
Appellant
Jordan Byrd appealed his eight year prison sentence after his convictions for
two counts of Rape.
Appellant
argued the following assignment of error:
1)
The trial court erred to the prejudice of
Appellant by not making the required judicial findings before imposing
consecutive sentences.
…this
doesn’t sound familiar at all…
So! This case is just like State v. Long covered above with one difference; the Trial Court
made the correct findings on the record…it just…forgot to put them in its
journal entry. Finding that they’ve dealt
with this before, the Court remanded the case to the Trial Court for the sole
purpose of amending its journal entry to do just that.
Comments: More copy and pasting problems. At least this time the Trial Court put stuff
on the record…
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State v. Gott – L-14-1066
Appellant
Deangelo Gott appealed a number of judgments from the Trial Court, including
granting the State a continuance of the trial date, denying Appellant’s motion
to dismiss, and denying Appellant’s motion to withdraw his plea.
Appellant
was charged with Robbery, Aggravated Robbery, and two Felonious Assaults, all
with firearm specifications.
Appellant
was at a party in a basement of a house.
When the owner returned and asked everyone to leave, the party goers
started singing gang songs and became more rowdy. As they dispersed, one person was punched in
the face, pushed to the floor, and assaulted, with his money, cellphone, and
shoes all being taken. After that, he
was shot in both legs. A second victim
was shot in the chest at close range. In
some act of divine intervention, neither victim died. Both victims identified Appellant from a photo
array.
At a
trial date on September 16, 2013, the State admitted it was having difficulty
getting the cooperation of the victims.
The prosecution indicated it was reason to proceed but it asked for a
continuance, citing that one of the defense attorneys had a conflict. All of the defense lawyers objected and moved
to dismiss for want of prosecution, stating they were all ready for trial. The Trial Court granted the continuance.
On the
next trial date, the State dismissed cases against Appellant’s co-defendants
and Appellant’s case proceeded to trial.
However, after jury voir dire, Appellant entered a guilty plea to
Robbery and Felonious Assault. Soon
after this, Appellant hired new counsel, and that counsel filed a motion to
withdraw Appellant’s plea. The Trial
Court held a two day hearing on the motion before denying it on March 3, 2014.
Appellant
raised the following assignments of error:
1) The
trial court abused its discretion in denying Gott’s motion to vacate his plea
because it was not the product of an intelligent, calculated decision.
2) The
trial court erred in imposing a fourteen year sentence, which is nearly a
maximum, consecutive sentence.
If you
enter a plea, you don’t have the absolute right to withdraw your plea after
doing so. Trial Courts are encouraged to
grant these motions liberally. This is
within the Trial Court’s discretion and is not reversed without a finding that
the Trial Court abused that discretion.
A change of heart or a mistaken belief about entering a plea is an insufficient
reason to withdraw a plea.
Appellant’s
motion to withdraw his plea, the formerly retained counsel testified that he believed
the case against Appellant would not likely proceed due to the non-cooperation
of the victims. He admitted that he didn’t
interview any other witnesses listed in the discovery turned over by the
State. Counsel also admitted that he did
not file a motion to suppress the photo identification, despite the detective who
made the array also administering it.
The
Court found that the Trial Court erred in finding that Appellant had not
proclaimed his innocence. The Court’s holding
says that simply by entering a guilty plea as coached by your lawyer does not
mean that you cannot believe you are innocent.
Also, the Court took issue with the Trial Court’s finding that Appellant
did not receive ineffective assistance of counsel by not fully investigating
the case before trial, finding that any trial strategy formed from his limited
investigation would be unreasonable. (This
is the first time I’ve ever seen this line in an appellate case, but there’s
case citations so it’s clearly been said before).
The
Court found that the ineffective assistance rendered by counsel who represented
Appellant at the time of the plea outweighed the prejudice to the State and vacated
Appellant’s plea.
Comments: Wow…a big win here for the defense side for
sure. Really, I don’t understand the
unwillingness of some Courts to deny motions to withdraw pleas, especially if
filed mere weeks after the original plea.
If the guy wants to take it to trial, let him take it to trial,
especially when new counsel comes in and immediately files the motion.
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State v.
Lentz – L-14-1091
DISCLAIMER:
I was involved in writing the brief in this case.
Appellant
Jordan Lentz appealed the Trial Court’s denial of his motion to suppress
evidence. Specifically, several white
pills found on Appellant’s person after a search resulting from a traffic stop.
Appellant
raised the following assignment of error:
1) The
trial court erred in denying appellant’s motion to suppress.
…surprising,
right?
So,
one day, Appellant went into a bar and then exited the bar mere minutes later,
got back into his car in a rushed fashion, and then drove off. This bar was being monitored for drug
activity. Detectives watching the bar
ordered uniformed officers to pull Appellant over. Despite testifying that they have only seen
drug deals happen outside of the bar and saw nothing of what happened inside
the bar, police still pulled Appellant over.
Police also did not see Appellant any criminal or traffic offenses.
This
is as far as the Court got. The Court
found that officers had no reasonable articulable suspicion to justify stopping
Appellant’s vehicle. As such, the Court
found that the motion to suppress should have been granted.
Comments: What the Court didn’t get into is what happened
after the stop. We made this whole argument
about consent to search with like five police officers standing around, two
with black face masks and that Appellant was not free to leave at the time he
was asked to be searched. The Court
declined to address any of it since it found that the stop was unlawful in the
first place. The fact pattern of this
case is rather worth reading, but there’s not a ton of legal analysis here.
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Assignments
of error:
None
identified
From
the opinion: “Nevertheless, in her brief, she questions whether it is just for
the trial court to dismiss her appeal on a technicality when she is doing the
best that she can as a pro se litigant, and in light of the fact that our
justice system has a liberal notice pleading policy. Based on appellant’s argument, we construe
that she is assigning as error the trial court’s retraction of permission to
amend her pleading, and the court’s dismissal of her appeal.”
Result: Affirmed
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State v.
Flowers – L-14-1141
Appellant
Damien Flowers appeals his sentence after being convicted of Robbery, a felony
of the third degree.
Specifically,
Appellant asserted the following assignments of error:
1) The
trial court committed plain error to the prejudice of Appellant at sentencing
by imposing financial sanctions without consideration of Appellant’s present or
future ability to pay.
2)
Appellant received ineffective assistance of counsel in violation of his rights
under the Sixth and Fourteenth Amendments to the United States Constitution and
Article I, §10 of the Constitution of the State of Ohio.
If you
don’t make a motion to waive costs at sentencing, you waive the issue for the
mandatory costs assessed in criminal cases.
Appellant made no such motion.
The Trial Court also found that Appellant would or could be expected to
have the ability to pay the discretionary costs as it’s required to do.
The
Court also found that, even if Counsel had objected, it would have been
unlikely for the Trial Court to waive the costs.
Comments: Not much here.
Costs arguments are the last resort before Anders most of the time.
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Man…that
was way too many cases.
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