Cases from March 31, 2015
Welcome
back readers and fellow litigators! This
week, the Court of Appeals did not release decisions on Friday the 27th,
but on Tuesday the 31st and then some on the 3rd which I
will have to get to later because I’ve been swamped with work…anyway let’s get
to it, shall we?
Cases
decided:
1. State v. Lynch – L-13-1245
2. State v. Conner – L-13-1275
3. State v. Perry – L-14-1075
4. Power v. Bay Park Community Hospital et. al. – L-14-1133
5.
Kenney &
Associates, Ltd v. Smith – L-14-1146
6. Toledo v. Jenkins – L-14-1164
7. State v. Wright – L-14-1167
8. State v. Wright – L-14-1265
9. State v. Williams – OT-14-014
10. DeMars v. DeMars
– S-14-031
11. State, ex rel. Adam v. Hon. C. Allen McConnell, Judge – L-15-1029
12. A.P. v. J.Z. – WD-13-058; WD-13-063; WD 13-079
13. State v. Luciano – WD-14-023
14. State v. Dezanett – WD-14-024
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State v.
Lynch – L-13-1245
Appellant
Dustin Lynch pled no contest to Aggravated Murder, received a life sentence,
and various monetary sanctions.
Appellant appealed…clearly…as why else would that case be here?
This
case is entirely about said monetary sanctions.
Appellant argued the following assignments of error:
1) The
trial court erred to the prejudice of Mr. Lynch when it ordered him to pay the
maximum fine of $25,000 by improperly determining Mr. Lynch’s ability to pay
such fine as required by R.C. 2929.02(C).
2) The
trial court erred to the prejudice of Mr. Lynch when it ordered the elimination
of some costs and imposition of new costs and fees in its sentencing judgment
entry and improperly determined Mr. Lynch’s present and future ability to pay
such costs and fees as required by R.C. 2929.19(B)(5).
3) The
trial court erred to the prejudice of Mr. Lynch when it ordered him to pay an
unspecified amount of restitution where there is no evidence in the record to
support restitution.
So
when a Trial Court issues a fine, the court must find that the person has the
ability to pay. Specifically in R.C.
§2929.02(C):
“The court shall not impose a fine or fines for aggravated murder or
murder which, in the aggregate and to the extent not suspended by the court,
exceeds the amount which the offender is or will be able to pay by the method
and within the time allowed without undue hardship to the offender or to the
dependents of the offender, or will prevent the offender from making reparation
for the victim’s wrongful death.”
The
Trial Court relied on a copy of a Cleveland Newspaper in which Appellant was
quoted in saying he might write a
book, and found that this showed a potential future ability to pay. The Court, however, also found that Appellant
had been incarcerated since the age of 16, never held a job, had no GED, and
may never be released from prison, and that these facts were also known to the
Trial Court. The Court found Appellant’s
First Assignment of Error well taken.
Side
note: The Ohio Revised Code actually prevents a convicted felon from making a profit
from a publication of a book related in any way to the commission of their
crime.
Appellant
argued over costs imposed upon him in the sentencing entry that were not
discussed at sentencing. Appellant’s Trial
Counsel did not object to the imposition of costs at sentencing, making such an
argument barred on appeal for the most part, but the Trial Court erred by not
informing Appellant that he was responsible for paying the $1.00 the citizen’
reward program fee and found that portion of Appellant’s Second Assignment of
Error well taken.
Finally,
a sentencing court cannot impose restitution without determining an
amount. In other words, you cannot be
ordered to pay “any restitution.” You have
to be ordered to pay “X” amount of restitution.
The Court
remanded this case back to the Trial Court for a do-over.
Comments: I find this case fascinating if only because we are
talking about Aggravated Murder and the entire argument is over fees and fines.
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State v.
Conner – L-13-1275
Appellant
Norman Conner appealed his convictions of two counts of Felonious Assault, each
count with a firearm specification.
So, in
February 2011, Appellant was pulled over.
The sergeant approaching first shined a spotlight into the vehicle and
saw Appellant put something under his seat.
Appellant was the passenger. The
driver was very nervous and did not have a license, and Appellant put on a pair
of gloves. The sergeant called for
backup.
Two
Toledo Police Officers arrived. One,
Officer Calzone, approached the passenger side of the car and saw Appellant
holding a gun. Officer Calzone yelled “gun”
and grabbed Appellant’s hands, ordering him to drop the gun. Appellant refused to drop the weapon and verbally
threatened to shoot the officers. During
a struggle, Appellant fired the gun, lodging a bullet into the leg of the
driver. Appellant fired a second shot towards
Officer Lemke’s head before being subdued by the police.
Appellant
went to bench trial and was found guilty, was sentenced to 8 years on each
count and 3 years on each firearm specification.
This
is an Anders case. Appellant’s Counsel filed a “No Merit” brief,
stating he could find no argument of merit in his appeal. Appellant filed his own brief pro se, arguing
that there is merit to his appeal.
Appellant
presented the following four assignments of error:
1)
Whether the appellant was denied the effective assistance of counsel as
guaranteed by the Sixth and Fourteenth Amendment.
2)
Whether the State presented sufficient evidence to convict appellant beyond a
reasonable doubt.
3)
Whether appellant was denied his right to the Confrontation Clause.
4)
Whether appellant’s consecutive sentences are contrary to law.
Appellant
argued that his Trial Counsel should have called a specific expert witness who
would have testified that the shell casings found could not be matched to Appellant’s
gun. This is what the State’s expert
testified to…meaning this would have been redundant, and within the sound trial
strategy decision of counsel.
Appellant
argued that the detective who processed the scene was not called to testify and
that prevented him from confronting the witnesses against him. This is a rather important right within our
Bill of Rights; the right to confront your accusers and witnesses against
you. You can, however, waive this right
by failing to follow procedural rules or as a matter of trial strategy…especially
at a pretrial where your lawyer says “we’re better off without him [testifying],”
and then you, as the defendant agree with this statement on the record.
Finally,
two shots at two different people are two different instances and do not merge
as allied offenses.
Comments: I still despise Anders
briefs anymore, especially in a trial…I feel like these arguments could have
been made properly and ended with the same result sometime last year. Oh well…
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State v.
Perry – L-14-1075
Appellant
Marquis Perry appealed his sentence after pleading guilty to one count of Felonious
Assault and being sentenced to eight years to be consecutive to time he was
already serving for a prior offense.
These charges all stem from an assault on a Corrections Officer in the
Toledo Correctional Institution.
Appellant
argued the following assignment of error:
The
trial court’s imposition of the maximum sentence was contrary to law. The trial
court’s order of a consecutive sentence to prior sentences from different
courts was contrary to law.
Appellant
has previously committed seven felony convictions while in custody and received
over 70 institutional infractions. The
Trial Court found that to give Appellant anything other than a maximum sentence
would demean the seriousness of the offense.
The Court agreed.
The
Trial Court made all the proper findings for consecutive sentences as
well. The Court affirmed Appellant’s
sentence.
Comments: Really not much here to talk about.
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Power v. Bay
Park Community Hospital et. al. – L-14-1133
Civil
case; summary judgment; fall; injury on premises
Assignment
of error:
1) The
trial court erred in the workers compensation claim by granting appellees’
motions for summary judgment and denying motion for partial summary judgment,
and in the alternative complete summary judgment because the trial court
improperly applied the summary judgment standard and weighed the facts against
the appellant Linda Power.
2) The
trial court erred in the premises liability claim by granting appellee Bay
Park’s motion for summary judgment.
Result: Affirmed.
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Kenney &
Associates, Ltd v. Smith – L-14-1146
Civil
case; unpaid legal fees; summary judgment; quantum meruit
Assignment
of error:
1) The
Appellant states that the trial court granted Summary Judgment to the
Plaintiff/Appellee in the amount of $80,839.40 in error.
Result: Affirmed
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Toledo v.
Jenkins – L-14-1164
Appellant
David Jenkins appeal his conviction for Domestic Violence from the Toledo
Municipal Court.
Appellant
asserted the following assignments of error:
1) Appellant’s
right to due process and confrontation, under the Sixth Amendment to the United
States Constitution and Article I, Section 10 of the Ohio Constitution, was
violated by the trial court by allowing into evidence the hearsay statements of
Tiffany Maclean.
2) The
trial court erred to the prejudice of appellant by allowing the state to
introduce a 911 call without proper authentication.
Two
called by a woman identifying herself as Tiffany Maclean were made to 911. Officers responded, finding a woman who
identified herself as the same woman and stated that Appellant assaulted
her. Police could not find Appellant at
that time. Based on the victim’s
statements, Appellant was charged with Domestic Violence.
More
confrontational clause issues.
Interesting this comes up twice in one week. Anyway, the US Supreme Court a number of
years ago declared that statements that are “testimonial,” meaning (in part)
that the statement would clearly be used at trial and was not subject to any
exception under the rules governing hearsay (and there’s a LOT of
exceptions). Or at least, it would have
been an interesting issue to raise here, but there’s one problem. THERE WAS NO OBJECTION TO THE 911 TAPE UNDER
THE CONFRONTATION CLAUSE. This was only
objected to as hearsay not volatile of the Confrontation Clause.
This
means the plain error standard applies.
What’s that, you ask? It’s a
standard that hates you and everything you stand for. It also is defined as: “Plain error does not
exist unless it can be said that but for the error, the outcome of the trial
would clearly have been otherwise.” but I’m still going with mine.
Here,
the Court found that all of the victim’s statements were made to help officers
resolve the situation and were non-testimonial, meaning they do not run afoul
of the Confrontation Clause. No plain
error admitting them. The Court also
found the statements to be “excited utterances” made due to the stress of the
event and therefore, not hearsay.
For
the sake of completion, an excited utterance happens under the following
elements: “(1) there was an event startling enough to produce a nervous
excitement in the declarant, (2) the statement must have been made while under
the stress of excitement caused by the event, (3) the statement must relate to
the startling event, and (4) the declarant must have had an opportunity to
personally observe the startling event.”
The Court
also found that the 911 call contained enough details to be authenticated. This is a rather low standard that “‘does not
require conclusive proof of authenticity, but only sufficient foundational
evidence for the trier of fact to conclude * * * [the evidence] is what its
proponent claims it to be.’”
The Court
affirmed the conviction.
Comments:
I REALLY wish the Confrontation Clause issue had been preserved and argued in
more detail. That would have been
interesting…maybe…
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State v.
Wright – L-14-1167
Appellant
Emmanuel Andre Wright appealed…something…no I’m serous, I have no idea.
From
the Court: “Appellant here filed his notice of appeal on July 30, 2014. He
indicates that he is appealing a judgment of conviction entered on July 24,
2014. Appellant did not attach a July 24 judgment entry to his notice of appeal
and we can find no such judgment entry in the record before us.”
Also
from the Court: “Moreover, in his brief, appellant argues the merits of a judgment
entry entered on November 13, 2014. See, e.g., State v. Wright, 6th Dist. Lucas. No. L-14-1265.”
The
Court dismissed the appeal.
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State v.
Wright – L-14-1265
Appellant
Emmanuel Andre Wright (yes, same person as above) appealed the denial of his “Motion
for Findings of Fact and Conclusions of Law” regarding the denial of his
Post-Conviction Relief motion.
This
guy has a long history. Here’s the
problem, and I’m going to go outside the decision one this one: the Trial Court
is not properly denying his Post-Conviction Relief motion. To deny a Post-Conviction Relief motion, a
Trial Court must make findings of facts and law. The Trial Court isn’t doing that, meaning the
entries are NOT final and appealable.
The Court of Appeals cannot DO anything with these cases.
This
man really needs to file a Writ of Mandamus against the judge to get findings
of fact and conclusions of law. He’s
simply just not doing the proper thing.
It’s…rather frustrating to see this.
Not that he has a chance of ever winning anything, but I like seeing
things come to completion.
Anyway,
there’s nothing interesting here.
Affirmed.
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State v.
Williams – OT-14-014
Appellant
Steven Williams, Jr. appealed his conviction of one count of Felonious Assault
and three counts of Child Endangering and 16 year sentence.
Appellant
is the father of a child. At one point,
the child was taken to the hospital by Mother.
The couple reported that the child had been in Appellant’s care for
about 8 hours the previous day while Mother was at work. The child was also at Appellant’s sister’s
home for two hours before everyone returned home. Mother realized the child’s eyes were moving
from side to side and she was crying in an unusual manner and squirming in her baby swing as if uncomfortable.
It
turns out; the child was having a seizure.
Further exams showed moderate bleeding on the brain and fractured ribs
that were at least 10 days old. The
child spent 17 days in the hospital with a prognosis of possible blindness and
mental disability due to the brain injury.
Appellant
raised the following assignments of error:
1. The
Trial Court erred to the prejudice of the Defendant in allowing the admission
of the State’s child abuse expert’s testimony where a proper foundation was not
laid pursuant to Evidence Rule 703 by the admission into evidence of all
records relied upon by the expert, and where the State’s expert gave an opinion
as to the veracity (lack thereof) of the Defendant’s alleged statements to the
child’s mother which constitutes egregious, prejudicial, reversible error and
constitutes ineffective assistance of counsel when counsel fails to object to
such testimony, and without such inadmissible evidence the jury’s verdict was
not supported by the remaining evidence as there was no direct or
circumstantial evidence to prove either “recklessness” or “knowingly” beyond a
reasonable doubt.
2. The
Trial Court erred to the prejudice of the Defendant and abused its discretion
in imposing maximum consecutive sentences against the Defendant contrary to
law.
This
entire case pretty much revolves about the testimony of Dr. Randall Schlievert
and his testimony, The first assignment of error is…okay, there’s no nice way
to put this, written poorly. That’s way
too long for an “Assignment of Error.”
Anyway,
Appellant argued that Dr. Schlievert’s testimony should have been excluded
because the documents he relied upon were not entered into evidence at trial. The Court found the argument had no
merit. Turns out, Evid. R. 703 basically
says you don’t have to admit the documents into evidence, as an expert’s
opinion can be based off of facts or data perceived by said expert. Dr. Schlievert testified at length about his
investigation and his detailed report was entered into evidence. The Court found Dr. Schlievert’s testimony
was properly admitted, which basically ended the entire what I’ll dub the “paragraph
of error.”
Also,
the sentence was within the statutory range and therefore not contrary to law. The Court affirmed
Comments: Based on this opinion, I can’t say they Court seemed
that impressed with the brief of the Appellant.
I can’t look it up though, so I don’t know what was actually in it.
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DeMars
v. DeMars – S-14-031
Divorce
case.
Assignments
of error (copied and pasted directly from the brief because I’m too tired to
format them properly):
No. 1:
THE COURT ABUSED ITS DISCRETION BY WAITING
APPROXIMATELY
ONE YEAR AFTER TRIAL TO ISSUE A RULING,
DURING
WHICH TEMPORARY ORDERS REQUIRED APPELLANT
TO
MAKE ALL MORTGAGE PAYMENTS ON THE MARITAL HOME,
AND
THEN FAILING TO GIVE APPELLANT AN OFFSET OR
CREDIT
FOR MORTGAGE PAYMENTS MADE DURING THE
PENDENCY
OF THE DECISION IN ITS FINAL ORDER, THEREBY
GIVING
APPELLEE A WINDFALL WHEN THE COURT REQUIRED
THE
HOME TO BE SOLD AND PROCEEDS EQUALLY SPLIT.
No. 2:
THE TRIAL COURT COMMITTED PLAIN ERROR IN
FAILING
TO DIVIDE MARITAL ASSETS AND LIABILITIES
PURSUANT
TO R.C. §3105.171 (C), INCLUDING THE PARTIES’
PENSIONS,
IRA ACCOUNTS, MUTUAL FUND, INTELLECTUAL
PROPERTY,
HOUSEHOLD GOODS AND FURNISHINGS, AND
DEBTS
OWED BY APPELLEE TO THE PARTIES’ CHILDREN.
No. 3:
THE TRIAL COURT ABUSED ITS DISCRETION IN
IGNORING
DOCUMENTARY EVIDENCE OFFERED BY
APPELLANT
AND CHOOSING [TO] ACCEPT ALL OF APPELLEE’S
VALUATIONS
FOR ASSETS AND LIABILITIES.
Result: Affirmed
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State, ex
rel. Adam v. Hon. C. Allen McConnell, Judge – L-15-1029
Petitioner
Spencer Adam, pro se, filed a petition for a Writ of Prohibition against Judge
McConnell asking the Court to prevent the Judge (Respondent) from ordering Petitioner
to pay over $7,300 in damages in an eviction action.
This case
comes out of an eviction out of Toledo Municipal Court. That case is currently on Appeal. The Court granted a stay of a damages hearing
that was set in the Trial Court. The Trial
Court decided to hold the damages hearing anyway. Bizarrely, YOU CAN’T DO THAT. The Trial Court had no jurisdiction to act.
Petitioner,
pro se, was granted the writ.
Comments: I mean, I guess no one should be surprised that a
judge from a Municipal Court did something apparently because he wanted to and
not because it was legal or anything…
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A.P. v. J.Z. – WD-13-058;
WD-13-063; WD 13-079
Ongoing
custody dispute, Juvenile Court case
Assignments
of error:
I.
Appellant/Father’s Brief Filed October 9, 2013, in Case No. WD-13-063
The
trial court erred and abused its discretion by not equally and fairly dividing
the guardian ad litem fees.
II.
Appellant/Father’s Brief Filed February 4, 2014, in Case No. WD-13-079
1) The
trial court erred and abused its discretion by holding plaintiff-appellant in
contempt relating to the minor child’s first counseling session with AJA
Behavioral is against the manifest weight of the evidence.
2)
The trial court erred and abused its discretion
by holding plaintiff-appellant in contempt relating to the defendant-appellee’s
visitation time with the minor child is against the manifest weight of the
evidence.
III.
Appellant/Father’s Brief Filed February 4, 2014, in Case No. WD-13-058
Plaintiff-Appellant’s
Assignment of Error Number One:
The
trial court erred and abused its discretion by ruling that the best interest of
the child is for the defendant-appellee to remain the legal custodian of the
minor child and is against the manifest weight of the evidence.
Plaintiff-Appellant’s
Assignment of Error Number Two:
The
trial court erred and abused its discretion to disregard correcting the errors
made by the trial court.
Plaintiff-Appellant’s
Assignment of Error Number Three:
The
trial court erred and abused its discretion by ordering that the best interest
for the child was for the current counselor, Cyd Laurel, remain as counselor
and refusing to appoint the minor child’s previous counselor Sandra Tebbe is
against the manifest weight of the evidence and not in the best interest of the
child.
Plaintiff-Appellant’s
Assignment of Error Number Four:
The
trial court erred and abused its discretion by ordering plaintiff-appellant to
see a psychologist is against the manifest weight of the evidence and his
religion.
Plaintiff-Appellant’s
Assignment of Error Number Five:
The
trial court erred and abused its discretion by not holding defendant-appellee
in contempt concerning the court orders relating to the minor child’s
activities and is against the manifest weight of the evidence.
Result: Affirmed
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State v.
Luciano – WD-14-023
Appellant
William Luciano was convicted of drug trafficking and sentenced to 8 years. He was found with 907 pounds of marijuana in
a motor home he planned to drive from Chicago to Rochester, New York.
This
is an Anders case. Appointed Counsel set forth the following
proposed assignments of error that might sustain an appeal:
1) THE
TRIAL COURT ERRED, IN PREJUDICE TO THE
APPELLANT,
BY MAKING FINDINGS THAT WERE CLEARLY AND
CONVINCINGLY
UNSUPPORTED BY THE RECORD, AND IMPOSING A SENTENCE THAT IS CLEARLY AND
CONVINCINGLY CONTRARY TO LAW.
2) THE
TRIAL COURT ERRED, TO THE PREJUDICE OF THE APPELLANT, BY FAILING TO ORDER A
PRESENTENCE INVESTIGATION REPORT AND/OR REVIEW THAT REPORT BEFORE SENTENCING.
3) THE
TRIAL COURT ERRED IN APPLYING THE MANDATORY DRIVER’S LICENSE SUSPENSION UNDER
R.C. 2925.03 BECAUSE THAT STATUTE VIOLATES APPELLANT’S DUE PROCESS RIGHTS UNDER
THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION.
4)
APPELLANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED
BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, RESULTING
IN APPELLANT ENTERING A GUILTY PLEA THAT WAS NOT KNOWING AND VOLUNTARY.
The
Court found all of these to be without merit and affirmed Appellant’s case.
Comments: Nothing really here to discuss.
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State v.
Dezanett – WD-14-024
Appellant
Lucas Dezanett appealed the Trial Court’s denial of his motion to withdraw his
plea prior to sentencing and his consecutive sentences for Rape and Sexual
Battery.
On
appeal, Appellant argued the following assignments of error:
1) DEFENDANT/APPELLANT’S
PLEA SHOULD BE VACATED AS THE COURT ABUSED ITS DISCRETION IN DENYING
DEFENDANT/APPELLANT’S MOTION TO WITHDRAW GUILTY PLEA.
2) DEFENDANT/APPELLANT’S
SENTENCE SHOULD BE VACATED AS THE TRIAL COURT FAILED, AS A MATTER OF LAW, TO
MAKE SPECIFIC FINDINGS OF FACT BEFORE IMPOSING CONSECUTIVE SENTENCES PURSUANT
TO OHIO REVISED CODE §2929.14(C)(4).
This
opinion going for quite a while about how well represented Appellant was during
his plea, and how Appellant didn’t question or request to look at the evidence
with his lawyer until after the plea.
With
withdraw your plea, a court must review the following factors: (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.
The
Court went through all of these and basically found none of them applied. It doesn’t help when you tell the Judge that
you’re satisfied with your lawyer’s advice and counsel. While these motions should be liberally granted
(that’s the language in the case law), you do not have a right to withdraw your
plea. If you’re pleading to something,
make DARN sure you want to…
However,
the Trial Court failed to make and of the necessary findings for consecutive sentences,
so the Court was required to send this case back for resentencing.
Comments: Wood County has problems with consecutive sentences…this
has happened multiple times this year…
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That’s
all for March 31st. The Court
released more decisions on April 3rd, but we’ll cover those in the
next blog.
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