CASE DECISION LIST Court of Appeals, Eighth Appellate District Page: 1 of 8. June 11, 2015

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1 Court of Appeals, Eighth Appellate District Page: 1 of 8 June 11, COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v BOBBY THOMPSON Affirmed in part; vacated in part; and remanded. Kathleen Ann Keough, J., Mary J. Boyle, P.J., and Tim McCormack, J., concur. KEY WORDS: jurisdiction, R.C , venue, R.C , course of criminal conduct, Evid.R. 403(A), unfair prejudice, solitary confinement State of Ohio lacked jurisdiction over 11 counts of identity fraud where the evidence showed no reasonable connection between those charges and the underlying criminal enterprise for which the defendant was prosecuted. The admission of evidence about other subsequent alleged fictitious enterprises did not rise to the level of plain error even if unfairly prejudicial due to the overwhelming evidence of defendant s guilt on the remaining charges. Trial court s order of solitary confinement on Veteran s Day was contrary to law DOMESTIC RELATIONS F CIVIL C.P.-JUV, DOM, PROBATE HEATHER M. WASZAK v WILLIAM L. WASZAK Affirmed Mary Eileen Kilbane, J., Larry A. Jones, Sr., P.J., and Tim McCormack, J., concur. KEY WORDS: Motion for relief from judgment; untimely; reasonable time; operative facts; motion to show cause; nondisclosed assets; Civ.R.60(B). Denial of motion for relief from judgment affirmed. Plaintiff s remedy for the nondisclosed asset lies with her show cause motion. Her Civ.R. 60(B) motion was untimely and she did not provide operative facts that demonstrate relief is warranted COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v SHAMANIQUE BRYANT Affirmed in part; reversed in part and remanded. Larry A. Jones, Sr., P..J., Eileen T. Gallagher, J., and Melody J. Stewart, J., concur. KEY WORDS: R.C (A) and (C)(4)/consecutive sentences; postrelease control.

2 Court of Appeals, Eighth Appellate District Page: 2 of 8 (Case continued) The trial court considered appellant s 1) show of remorse, 2) criminal history, 3) the severity of the injuries of the victims, 4) the fact that appellant s actions resulted in a death, and 5) the fact that appellant was on probation to the court at the time this incident occurred. Thus, the record does not clearly and convincingly support a finding that the trial court erred when it found that consecutive sentences were not disproportionate to the seriousness of appellant s conduct and the danger she posed to the public. The trial court erred where it did not inform appellant of the consequences of violating the conditions of postrelease control BEDFORD MUNI. C CRIMINAL MUNI. & CITY VILLAGE OF CHAGRIN FALLS v RUSSELL H. BLOOM Reversed and remanded. Melody J. Stewart, J., Tim McCormack, P.J., and Sean C. Gallagher, J., concur. KEY WORDS: OVI; Terry stop; intoxication; reasonable articulable suspicion of criminal activity. Officer who previously saw the defendant in an intoxicated state on a bicycle had a reasonable, articulable suspicion that the defendant was operating a motor vehicle while intoxicated when the officer saw the defendant driving a car approximately ten minutes later COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v JOSEPH V. FASINO Affirmed and remanded. Eileen A. Gallagher, J., Larry A. Jones, P.J., and Mary J. Boyle, J., concur. KEY WORDS: Petty Theft; R.C ; theft by deception; contracting job; manifest weight. Defendant s convictions for theft by deception were supported by sufficient evidence and not against the manifest weight of the evidence where circumstantial evidence demonstrated that defendant contractor had no intent at the time he was paid to perform the contracting work or repay the victims money. The facts of the case were properly treated as a criminal theft case as opposed to a civil breach of contract because the evidence demonstrated that defendant took the victims money in relatively close temporal proximity and made no effort to perform the work he had been contracted to provide.

3 Court of Appeals, Eighth Appellate District Page: 3 of COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v DARIEN SMITH Eileen T. Gallagher, J., Frank D. Celebrezze, Jr., A.J., and Anita Laster Mays, J., concur. KEY WORDS: Mandatory fine; indigent; ability to pay; rehabilitation; deterrence; waiver; venue. Twenty-thousand dollar fine was not an abuse of discretion where defendant was able to pay his fines in the future. Defendant was not denied his right to effective assistance of counsel where counsel did not object to venue where single offense committed outside the jurisdiction was committed as part of a course of criminal conduct and defendant waived any challenge to venue by virtue of his guilty plea COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v CHARLES F. ANTHONY Reversed and remanded. Mary J. Boyle, P.J.; Anita Laster Mays, J., concurs; Sean C. Gallagher, J., dissents with separate opinion. KEY WORDS: Crim.R. 11(C)(2)(b); allied offenses of similar import; R.C ; ineffective assistance of counsel. Defendant was not prejudiced by the trial court s failure to advise him at his plea hearing that upon acceptance of his plea, it could proceed with judgment and sentence as required by Crim.R. 11(C)(2)(b) because the trial court did not immediately proceed to sentencing. The trial court erred by not merging defendant s felonious assault and involuntary manslaughter convictions. Felonious assault and involuntary manslaughter were allied offenses of similar import in this case because in looking at the defendant s conduct, the offenses were similar in import as they did not cause separate and identifiable harm, and the offenses were committed with the same conduct and animus. Defendant s trial counsel s performance was not ineffective for failing to hire a defense investigator or for failing to raise a Castle Doctrine defense. And even if defendant s trial counsel made incorrect statements at defendant s sentencing hearing, defendant was not prejudiced by such misstatements.

4 Court of Appeals, Eighth Appellate District Page: 4 of COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v CHARLES HENDRICKS Affirmed and remanded. Eileen T. Gallagher, J., Larry A. Jones, Sr., P.J., and Melody J. Stewart, J., concur. KEY WORDS: Assault; obstructing official business; consecutive sentences; R.C (C)(4); disproportionate; findings; allied offenses; conduct; multiple victims. The trial court made the requisite findings necessary for imposing consecutive sentences under R.C (C)(4); the trial court did not err by failing to merge defendant s assault and obstructing official business convictions COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v SEAN A. HEISA Kathleen Ann Keough, P.J., Melody, J. Stewart, J., and Patricia Ann Blackmon, J., concur. KEY WORDS: Crim.R. 11, factual basis, motion to withdraw guilty plea, actual innocence, agreed sentence Trial court did not err when it did not inquire into the factual basis for the plea where the record reflects the trial court advised the defendant and the defendant agreed, that a guilty plea is a complete admission of guilt, accepting the facts as alleged. The trial court did not abuse its discretion in denying defendant s motion to withdraw his guilty plea where the record demonstrates that the pro se defendant received acceptable assistance of trial counsel, the trial court engaged in a full and complete Crim.R. 11 plea colloquy, and the court gave full and fair consideration to defendant s motion after conducting a hearing. Defendant s protestation of actual innocence was based on alleged flaws in the state s evidence; not any specific defense the defendant wished to raise. Defendant s sentence is not appealable pursuant to R.C (D)(1) because it was an agreed sentence that the trial court imposed and is authorized by law COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO MIDFIRST BANK v KHALID A. SAMAD, ET AL. Dismissed. Eileen T. Gallagher, J., Frank D. Celebrezze, Jr., A.J., and Anita Laster Mays, J., concur.

5 Court of Appeals, Eighth Appellate District Page: 5 of 8 (Case continued) KEY WORDS: Foreclosure; order of confirmation; confirmation; judgment of foreclosure; appraisal; moot; plaintiff-appellee; recorded; deed; summary judgment. Appeal is dismissed because the property has been sold, the order of confirmation has been carried out, and there is no relief in this action that can be afforded COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v CRAIG A. COWAN Affirmed in part; reversed in part and remanded. Mary Eileen Kilbane, J., Larry A. Jones, Sr., P.J., and Tim McCormack, J., concur. KEY WORDS: R.C ; R.C ; consecutive sentences; res judicata; postrelease control. Appellant was barred by res judicata from challenging consecutive sentences. The trial court failed to properly inform appellant of postrelease control COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO DANIEL G. KAMIN CLEVE. ENT., ETC. v CUYAHOGA COUNTY BOARD OF REVISION, ET AL. Larry A. Jones, Sr., P.J., Eileen T. Gallagher, J., and Melody J. Stewart, J., concur. KEY WORDS: Property valuation; reduction in value. Appellant failed to present credible, probative evidence to substantiate a reduction in value. The trial court independently weighed and evaluated the evidence put before it. It was not an abuse of discretion for the trial court to uphold the decision of the Board of Revision COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO MICHAEL FERRARA, SR., ET AL. v VICCHIARELLI FUNERAL SERVICES, ET AL. Sean C. Gallagher, J., Kathleen Ann Keough, P.J., and Tim McCormack, J., concur. KEY WORDS: Manifest weight; recoupment; jury instructions. The jury verdict was not against the weight of the evidence, and the appellants failed to demonstrate that any error in the jury instructions materially affected their substantial rights.

6 Court of Appeals, Eighth Appellate District Page: 6 of COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO AMGAD ABDELSHAHID v CLEVELAND CLINIC FOUNDATION Reversed and Remanded Mary Eileen Kilbane, J., Larry A. Jones, Sr., P.J., and Tim McCormack, J. KEY WORDS: Motion for summary judgment; motion to compel; de novo; abuse of discretion; open and obvious; attendant circumstances; negligence. Grant of summary judgment and motions to compel reversed. Where a trial court s refusal to allow discovery prejudicially affects the substantial rights of the parties, the grant of the motion to compel is an abuse of discretion. It was also error for the trial court to grant summary judgment in favor of the party obstructing discovery. This court cannot condone a defense strategy that withholds vital factual information from the plaintiff, then demands summary judgment on the ground that plaintiff is unable to contradict the defendant s factual assertions COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO U.S. BANK NATIONAL ASSOCIATION v DONITA DUVALL, ET AL. Melody J. Stewart, J., Frank D. Celebrezze, Jr., A.J., and Patricia A. Blackmon, J., concur. KEY WORDS: Summary judgment; foreclosure; standing; note; mortgage; affidavit; personal knowledge; genuine issue of material fact. Summary judgment in favor of bank in foreclosure action was proper where the bank had standing to sue in foreclosure and the bank s affidavit attached to the motion was based on personal knowledge, included sufficient averments to support a motion for summary judgment, and the defendant s failed to submit evidence that created a genuine issue of material fact COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v DANNY DOZANTI Reversed. Sean C. Gallagher, J., Kathleen Ann Keough, P.J., and Tim McCormack, J., concur. KEY WORDS: R.C ; R.C ; relief from disability; abuse of discretion; statutory elements; findings.

7 Court of Appeals, Eighth Appellate District Page: 7 of 8 (Case continued) Trial court abused its discretion in denying motion for relief from disability under R.C where the appellant affirmatively demonstrated that he satisfied all statutory requirements and there was nothing in the record that would support the denial of the motion. Although the trial court was not required to issue findings, the record did not support the trial court s denial of relief from disability, for which it gave no reason COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO KIMBERLY A. STRINGER v DEPARTMENT OF HEALTH-OHIO, ET AL. Sean C. Gallagher, J., and Tim McCormack, P.J., concur; Melody J. Stewart, J., dissents (with separate opinion). KEY WORDS: Workers compensation; settlement; dismissal with prejudice; jurisdiction; expressly retain; Civ.R. 41(A)(1); Civ.R. 60(B); vacate; enforce; hearing; public policy; R.C ; R.C In a workers compensation appeal, although the trial court did not expressly retain jurisdiction to enforce the parties settlement agreement, the trial court had the authority and did not abuse its discretion in vacating the dismissal with prejudice under Civ.R. 60(B). Having properly vacated the dismissal entry, the court possessed jurisdiction and did not err in enforcing the settlement agreement after conducting a hearing at which there was sufficient evidence showing that a valid settlement agreement was reached in mediation prior to the dismissal. The trial court s enforcement of the settlement did not violate public policy because R.C (C) is not applicable to state-funded workers compensation claims on appeal to a common pleas court under R.C and any equal-protection claim was waived where the issue was not raised in the trial court COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO VENZELLA JACOBS v CUYAHOGA METROPOLITAN HOUSING AUTHORITY Reversed and remanded. Mary J. Boyle, P.J.; Anita Laster Mays, J., concurs; Sean C. Gallagher, concurs in judgment only with separate opinion. KEY WORDS: Administrative appeal; perfecting an appeal; regular mail; R.C. Chapter 2506; Civ.R. 4 and 4.1. Appellant s mailing of a copy of the notice of appeal to the administrative body, prior to the expiration of the 30-day deadline, was sufficient to properly perfect her appeal. Trial court erred in

8 Court of Appeals, Eighth Appellate District Page: 8 of 8 (Case continued) dismissing plaintiff s appeal because there is nothing in the record to overcome the presumption of timely delivery in this case. Appellant was not required to serve CMHA a second time through the clerk of courts in this R.C. Chapter 2506 appeal. Application of Civ.R. 4 and 4.1 are inapplicable to this administrative appeal COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v JOSEPH ATWATER Reversed and remanded. Sean C. Gallagher, J., Kathleen Ann Keough, P.J., and Tim McCormack, J., concur. KEY WORDS: Postrelease control; limited remand. The trial court erred by denying the defendant s motion to correct the invalidly imposed postrelease control term from the 2001 sentencing JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: S.C. Affirmed Mary Eileen Kilbane, P.J., Eileen T. Gallagher, J., and Melody J. Stewart, J., concur. KEY WORDS: R.C (B); permanent custody; CCDCFS. Juvenile court s termination of parental rights and award of permanent custody to the CCDCFS was supported by clear and convincing evidence going to both factors set forth in R.C (B) COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v DAVID RODRIGUES Tim McCormack, J., Kathleen Ann Keough, P.J., and Sean C. Gallagher, J., concur. KEY WORDS: Consecutive sentences; findings; R.C (C)(4). The trial court made the consecutive sentence findings under R.C (C)(4). The trial court had no duty to provide reasons in support of its findings, so long as those findings are supported by the record. The record in this case supports consecutive sentences.