CASE DECISION LIST Court of Appeals, Eighth Appellate District Page: 1 of 8. July 26, 2012

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1 Court of Appeals, Eighth Appellate District Page: 1 of 8 July 26, COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v ANTONIO RODRIGUEZ Larry A. Jones, Sr., J., James J. Sweeney, P.J., and Kathleen Ann Keough, J., concur. KEY WORDS: Postconviction petition; postrelease control; res judicata COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO LYNN ARKO KELLEY v JAMES FERRARO, ET AL. Dismissed Mary Eileen Kilbane, J., James J. Sweeney, P.J., and Larry A. Jones, Sr., J., Concur. KEY WORDS: Ordinarily when there is no case in controversy, there will be no appellate review unless the underlying legal issue is capable of repetition yet evading review. Since there is no indication that appellant is questioning the interpretation or validity of the settlement agreement, and to date appellees have not breached the terms of the settlement agreement, there is no controversy so the matter is dismissed DOMESTIC RELATIONS F CIVIL C.P.-JUV, DOM, PROBATE LARRY ELLIOT KLAYMAN v STEPHANIE ANN LUCK DOMESTIC RELATIONS F CIVIL C.P.-JUV, DOM, PROBATE LARRY ELLIOT KLAYMAN v STEPHANIE ANN LUCK Mary J. Boyle, J., Melody J. Stewart, P.J., and Kenneth A. Rocco, J., concur. KEY WORDS: A choice-of-law clause in a marriage settlement agreement does not apply to modifications of custody if the clause only applied to the validity, enforceability, and interpretation of the agreement.

2 Court of Appeals, Eighth Appellate District Page: 2 of COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v JL WILLIAMS, JR. Reversed. Patricia Ann Blackmon, A.J., Mary J. Boyle, J., and Kathleen Anne Keough, J., concur. KEY WORDS: Having Weapons While Under Disability; Constructive Possession; Mere Presence COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v DECO BAILEY Mary J. Boyle, J., Patricia Ann Blackmon, A.J., and Frank D. Celebrezze, Jr., J., concur. KEY WORDS: Motion to suppress; motion to consolidate; identity of the CRI; due process and Evid.R. 806(A); sufficiency and weight of the evidence; prosecutorial misconduct DOMESTIC RELATIONS F CIVIL C.P.-JUV, DOM, PROBATE MAURA A. KEHOE v ROBERT D. KEHOE, ET AL. Affirmed in part, reversed in part and remanded. Patricia Ann Blackmon, A.J., Larry A. Jones, Sr., J., and Sean C. Gallagher, J., concur. KEY WORDS: Divorce, separate property, spousal support COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO MUNICIPAL CONST. EQUIP. OPER. LABOR v CITY OF CLEVELAND Frank D. Celebrezze, Jr., J., Patricia Ann Blackmon, A.J., and Mary J. Boyle, J., concur. KEY WORDS: The trial court did not err in ruling that Union members are not entitled to the hospitalization benefits provided under Cleveland Codified Ordinances when the Union members are paid at the prevailing wage rate; Cleveland was entitled to judgment as a matter of law; the trial court properly declared the parties rights and responsibilities in its summary judgment opinion.

3 Court of Appeals, Eighth Appellate District Page: 3 of COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v KIRK CAREY Larry A. Jones, Sr., J., Patricia Ann Blackmon, A.J., and Kathleen Ann Keough, J., concur. KEY WORDS: Crim.R. 32/motion to withdraw guilty plea; Crim.R. 11/proceeding to judgment and sentence; sentencing/consecutive; H.B COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v STEVEN KERR Colleen Conway Cooney, P.J., Sean C. Gallagher, J., and Kenneth A. Rocco, J., concur. KEY WORDS: Felony theft; functionally impaired person; sufficiency; manifest weight; Evid.R. 702; opinion testimony; handwriting expert; joinder COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v HARRY TERRELL Reversed and remanded. Mary J. Boyle, J., Patricia Ann Blackmon, A.J., and Kathleen Ann Keough, J., concur. KEY WORDS: Trial court failed to engage in any meaningful colloquy with the defendant regarding his waiver of counsel. Thus, trial court could not be satisfied that the defendant made an intelligent and voluntary waiver with the knowledge that he will have to represent himself and that there are dangers in self-representation COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v TRAVEN LYLES Affirmed in part and reversed in part. Eileen A. Gallagher, J., Frank D. Celebrezze, Jr., P.J., and Kenneth A. Rocco, J., concur. KEY WORDS: The trial court followed Ohio s revised sentencing

4 Court of Appeals, Eighth Appellate District Page: 4 of 8 (Case continued) statute when sentencing the offender to three months in the county jail; the trial court correctly interpreted the phrase organized criminal activity to include the crime trafficking in drugs COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v DEMETRIOUS A. FRETT Conviction affirmed, sentence modified, remanded. Sean C. Gallagher, J., Colleen Conway Cooney, P.J., and Kenneth A. Rocco, J., concur. KEY WORDS: The defendant waived any error with respect to the court s decision regarding the appointment of new counsel when he pleaded guilty to the charges. The defendant s trial counsel was not ineffective for failing to recognize inconsistences with the state s evidence when the defendant pleads guilty to the facts of the indictment. The trial court erred when sentencing the defendant to the version of the felony sentencing statute effective after the date of offense to which the defendant pleaded guilty COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v DELBERT ALLEN Eileen A. Gallagher, J., Patricia Ann Blackmon, A.J., and Mary Eileen Kilbane, J., concur. KEY WORDS: Appellant s second motion to withdraw his guilty plea pursuant to Crim.R was barred by the doctrine of res judicata as the issues presented could have been addressed in a direct appeal of appellant s plea and sentencing or an appeal from the trial court s denial of his original motion to withdraw his plea. Under the doctrine of res judicata, the trial court did not err in refusing to address the issue of allied offenses at appellant s resentencing which was held for the sole purpose of proper imposition of postrelease control. The proper avenue for appellant s allied offense challenge would have been a direct appeal from his original sentencing CLEVELAND MUNICIPAL COURT C CRIMINAL MUNI. & CITY CITY OF CLEVELAND v DEMETRIUS BELCHER Reversed and remanded. Colleen Conway Cooney, J., Patricia Ann Blackmon, A.J., and Kenneth A. Rocco, J., concur.

5 Court of Appeals, Eighth Appellate District Page: 5 of 8 KEY WORDS: Motion to return property; forfeiture; State v. Coleman; no statutory authority COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v DERRELL SHABAZZ Patricia Ann Blackmon, A.J., Larry A. Jones, Sr., J., and Kathleen Anne Keough, J., concur. KEY WORDS: Motion to Suppress; Controlled Firearm Purchase; Carrying a Concealed Weapon COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v DEVON ROUNDTREE Affirmed Mary Eileen Kilbane, J., James J. Sweeney, P.J., and Larry A. Jones, Sr., J., Concur. KEY WORDS: Trial court judgment affirmed. Trial court s imposition of consecutive sentences complied with R.C (C)(4). Trial court s imposition of two year sentence on attempted felonious assault also proper under R.C (G) as sentence was within statutory range and trial court made necessary findings COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v STEPHEN TURNER Mary J. Boyle, J., Patricia Ann Blackmon, A.J., and Kathleen Ann Keough, J., concur. KEY WORDS: The defendant s convictions were not against the manifest weight of the evidence COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO TIVANNI M. TAYLOR, ET AL. v CITY OF CLEVELAND, ET AL. Affirmed and remanded. Mary J. Boyle, P.J., James J. Sweeney, J., and Larry A. Jones, J., concur.

6 Court of Appeals, Eighth Appellate District Page: 6 of 8 KEY WORDS: When a police officer transports a prisoner to the hospital, it is a call to duty that amounts to an emergency call for purposes of political subdivision immunity. When a plaintiff alleges that a police officer proceeded through a stop sign without stopping at a high rate of speed, a question of fact exists as to whether the police officer acted in a willful and wanton manner such that it would defeat political subdivision immunity COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO SELECT PORTFOLIO SERVICING, INC. v SELIMIR MILOSEVIC COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO SELECT PORTFOLIO SERVICING INC. v SELIMIR MILOSEVIC ET AL Reversed and remanded. Patricia Ann Blackmon, A.J., Mary J. Boyle, J., and Kathleen Ann Keough, J., concur. KEY WORDS: The trial court erred by sua sponte dismissing the appellant s case with prejudice. There is no evidence that the appellant failed to prosecute its declaratory judgment action, comply with the Civil Rules, or obey a court order The appellee s discharge of bankruptcy had no effect on appellee s transferring the property via quit-claim deed to appellant five months later. Pursuant to Section 727(a), Title 11 of the Bankruptcy Code, a discharge in bankruptcy discharges the debtor from all debts that arose before the date of the order of relief JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: M.H. Reversed. Mary J. Boyle, J., Patricia Ann Blackmon, A.J., and Kathleen Ann Keough, J., concur. KEY WORDS: The trial court s order of civil contempt constituted an abuse of discretion. It was unreasonable for the trial court to find mother in contempt for violating an order that was not the basis of the underlying motion to show cause. Clear and convincing evidence was not presented that mother violated the order subject to the motion to show cause.

7 Court of Appeals, Eighth Appellate District Page: 7 of BEREA MUNI. C CRIMINAL MUNI. & CITY CITY OF STRONGSVILLE v DAVID KANE Sean C. Gallagher, J., Colleen Conway Cooney, P.J., and Kenneth A. Rocco, J., concur. KEY WORDS: A trial court does not abuse its discretion in ordering an amount of restitution when that amount does not exceed the economic loss resulting from defendant s crime even when the allegations of criminal conduct relate to a single instance but the victim testifies the damage necessitating restitution occurred over a period of several months COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v WILLIAM LEE Patricia Ann Blackmon, A.J., Eileen A. Gallagher, J., and Mary Eileen Kilbane, J., concur. KEY WORDS: Appellant s motion constituted an untimely petition for postconviction relief; therefore, the trial court lacked jurisdiction to consider it COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO 21ST CENTURY INSURANCE COMPANY v ESTATE OF DOUBRAVA, ET AL. Melody J. Stewart, P.J., Frank D. Celebrezze, Jr., J., and Eileen A. Gallagher, J., concur. KEY WORDS: Employer s monthly payment to an employee for use of his vehicle in the course and scope of employer s business did not make the employee s vehicle fall within a hired vehicle liability only coverage endorsement because the reimbursement bore none of the hallmarks of a traditional rental or lease arrangement in which the lessee has possession and control over the thing leased. The employee s truck remained under his possession and control at all times, so it was not leased or hired for purposes of the insurance endorsement.

8 Court of Appeals, Eighth Appellate District Page: 8 of COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO WILLIAM LORETA v ALLSTATE INSURANCE COMPANY Colleen Conway Cooney, P.J., Sean C. Gallagher, J., and Kenneth A. Rocco, J., concur. KEY WORDS: Directed verdict; de novo review; pro se; special treatment COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO YANKO MANSARAY v STATE OF OHIO Reversed and Remanded Mary Eileen Kilbane, J., James J. Sweeney, J., and Larry A. Jones, Sr., J., Concur. KEY WORDS: The trial court judgment granting the State of Ohio s motion to dismiss plaintiff s wrongful imprisonment complaint is reversed. Plaintiff satisfied requirements of R.C (A)(5) when the trial court s improper denial of his motion to suppress resulted in his release from prison.