June 18, Kathleen Ann Keough, J., Frank D. Celebrezze, Jr., A.J., and Mary Eileen Kilbane, J., concur.

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1 Court of Appeals, Eighth Appellate District Page: 1 of 11 June 18, COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v RODNEY LEMONS Kathleen Ann Keough, J., Frank D. Celebrezze, Jr., A.J., and Mary Eileen Kilbane, J., concur. KEY WORDS: sufficient evidence, manifest weight of the evidence, telecommunications fraud, securing writings by deception, attempted theft, extortion, threat by innuendo Defendant s convictions for telecommunications fraud, securing writings by deception, attempted theft, and extortion were upheld where the evidence showed that the defendant manipulated and exploited the friendship and trust of a learning-disabled adult into executing various financial and legal documents in an attempt to gain access and control over the victim s finances and trust fund COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO U.S. BANK v DANIEL L. MALYUK, ET AL. Larry A. Jones, Sr., P.J., Kathleen Ann Keough, J., and Patricia Ann Blackmon, J., concur. KEY WORDS: App.R. 12(A)(2)/assignment of error; App.R. 16/appellant brief. Appellants failed to discuss or cite applicable authorities or statutes; appellants also failed to make any arguments regarding their counterclaims. Appellants assignments of error are moot JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: C.G.S. Affirmed in part, reversed in part, and remanded. Frank D. Celebrezze, Jr., A.J., Eileen T. Gallagher, J., and Anita Laster Mays, J., concur. KEY WORDS: Aggravated vehicular homicide; R.C ; vehicular homicide; recklessness; negligence; excessive speed; juvenile adjudication; manifest weight; sufficiency; jurisdiction of the juvenile court; lifetime driver s license suspension; R.C ; allied offenses; Double Jeopardy; fines; R.C The trial court s verdicts were supported by sufficient evidence and

2 Court of Appeals, Eighth Appellate District Page: 2 of 11 (Case continued) not against the manifest weight of the evidence for juvenile adjudications of delinquency for aggravated vehicular and vehicular homicide. However, the court was without jurisdiction to impose a lifetime driver s license suspension or impose fines in excess of the jurisdictional limit. The court also failed to merge allied offenses COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v JERMEAL WHITE Affirmed and remanded. Frank D. Celebrezze, Jr., A.J., Mary Eileen Kilbane, J., and Anita Laster Mays, J., concur. KEY WORDS: Aggravated murder; R.C ; murder; R.C ; prior calculation and design; aggravated burglary; R.C ; plan to kill; Confrontation Clause; allied offenses; felonious assault; R.C ; kidnapping; R.C ; competent to testify; sufficiency; manifest weight; cell phone records; prison mail Appellant s convictions for aggravated murder, murder, aggravated burglary, kidnapping, and felonious assault are supported by sufficient evidence and not against the manifest weight of the evidence. The court did not err in accepting cell phone records and jailhouse letters into evidence. Appellant s sentence for aggravated murder is not subject to review COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v CLAUDIUS W. BLAND Kathleen Ann Keough, P.J., Eileen T. Gallagher, J., and Mary J. Boyle, J., concur. KEY WORDS: Manifest weight of the evidence Jury verdict finding defendant guilty of burglary, abduction, and theft was not against the manifest weight of the evidence COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v VICTOR HILL Affirmed in part, reversed in part, and remanded. Eileen T. Gallagher, J., and Frank D. Celebrezze, Jr., A.J., concur; Kathleen Ann Keough, J.,

3 Court of Appeals, Eighth Appellate District Page: 3 of 11 concurs with assignment of error number two, and concurs in judgment only as to assignment of error number one (with separate opinion attached). KEY WORDS: Rape; DNA; sentencing; indefinite sentence; definite sentence; H.B. 86; R.C. 1.58(B); indictment; grand jury; Fifth Amendment; probable cause; evidence; supervisory power; fundamental fairness; structural protections. Trial court erroneously sentenced defendant according to sentencing provisions in effect in 1993 when it should have applied H.B. 86 sentencing provisions. Denial of motion to dismiss indictment affirmed. Validity of indictment is not affected by the character of the evidence presented to the grand jury and there were no structural defects that rendered the grand jury proceedings fundamentally unfair COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v PEACHES GIBSON Mary J. Boyle, J., Kathleen Ann Keough, P.J., and Eileen T. Gallagher, J., concur. KEY WORDS: Sufficiency and manifest weight of the evidence; aggravated robbery; robbery, carrying a concealed weapon. Defendant s convictions for aggravated robbery, robbery, and carrying a concealed weapon were supported by sufficient evidence and were not against the manifest weight of the evidence COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v ERICK M. LAWSHEA Eileen A. Gallagher, P.J., Mary J. Boyle, J., and Patricia Ann Blackmon, J., concur. KEY WORDS: R.C (A)(1); R.C (A)(2); aggravated robbery; robbery; sufficiency of the evidence; manifest weight of evidence; eyewitness identification; police investigation; due process; fair trial. Defendant s convictions for robbery and aggravated robbery were supported by sufficient evidence and were not against the manifest weight of the evidence. Victim who knew and recognized defendant testified that defendant was one of the perpetrators who robbed him. That victim originally misstated defendant s nickname in identifying him to police did not preclude the jury from relying on victim s testimony to convict defendant. Defendant was not denied due process or a fair trial based on alleged failure of police to thoroughly investigate and follow up on leads relating to other possible perpetrators of robbery.

4 Court of Appeals, Eighth Appellate District Page: 4 of COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v ROBERT D. DOTSON Melody J. Stewart, J., Kathleen Ann Keough, P.J., and Patricia Ann Blackmon, J., concur. KEY WORDS: Vacate; postrelease control; R.C ; advisement; Crim.R. 11; maximum penalty; prejudice. The Crim.R. 11 mandate that a trial court explain the maximum penalty involved on each charge does not require a trial court to advise a defendant of its authority under R.C to terminate postrelease control and impose a consecutive prison term for the remainder of time on PRC. Further, defendants do not have a constitutional right to be advised under Crim.R. 11 of the maximum penalty involved on each charge, rather this right is statutory. As a statutory right, the defendant must show that he was prejudiced by the court s nonadvisement COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v RYAN MCMANUS Tim McCormack, J., Kathleen Ann Keough, P.J., and Sean C. Gallagher, J., concur. KEY WORDS: Plea agreement; breach; sentencing; on the record; ineffective assistance of counsel. The prosecutor did not breach an agreement to stand silent at sentencing when he objected to defense counsel s unilateral proposal of residential treatment in lieu of prison one month after the defendant entered his plea, where the record demonstrated that the parties understanding was that a prison term would be imposed at sentencing and where the trial court sought the prosecutor s input. The trial court properly considered information made part of the record at sentencing and therefore did not violate the defendant s right to due process. Trial counsel was not ineffective COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v JARRELL J. WILHOITE Mary J. Boyle, J., Eileen A. Gallagher, P.J., and Patricia Ann Blackmon, J., concur.

5 Court of Appeals, Eighth Appellate District Page: 5 of 11 KEY WORDS: Judicial release; R.C (G)(2). The defendant s sentence was not contrary to law as there was no evidence that the trial court attempted to deprive itself of future discretion that is afforded to it regarding judicial release, and the sentence was not otherwise contrary to law COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO FIA CARD SERVICES, N.A. v JUSTIN A. EVANS Reversed and remanded. Eileen T. Gallagher, J., Larry A. Jones, Sr., J., concur; Melody J. Stewart, J., concurs in judgment only (with separate opinion attached). KEY WORDS: Agreed judgment entry; Civ.R. 60(B); relief from judgment; dismissal with prejudice; mistake; settlement. Plaintiff is entitled to relief from judgment pursuant to Civ.R. 60(B)(1) or 60(B)(5) because the trial court s journal entry dismissing the case with prejudice was based on the court s mischaracterization of the parties agreed judgment entry JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: L.R.H. Melody J. Stewart, J., Eileen A. Gallagher, P.J., and Anita Laster Mays, J., concur. KEY WORDS: Contempt; injunctive relief; discovery order; compliance; notice; recordings; continuance; vagueness; premature. Court order enjoining a party from making further surreptitious audio and video recordings in child custody dispute and ordering the production of those recordings was injunctive only as to the order enjoining the party from making future recordings. The order compelling the production of those recordings to the other parties was a discovery order to which the provisions of Civ.R. 65 did not apply. The parties had no ability to vary unilaterally the terms of the court s order dictating the time frame in which to produce the recordings

6 Court of Appeals, Eighth Appellate District Page: 6 of COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v ANGELO GAINES Judgment vacated; remanded. Melody J. Stewart, J., Kathleen Ann Keough, P.J., and Patricia Ann Blackmon, J., concur. KEY WORDS: Plea agreement; Crim.R. 11; plea; involuntary; strict compliance; constitutional rights; constitutional protections; self-incrimination. The court did not strictly comply with Crim.R. 11(C)(2) s requirement that the defendant be intelligently informed of his right not to testify at trial when it failed to adequately respond to the defendant s question regarding the right but instead explained only the state s burden of proof COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO EHADI MOHMED, ET AL. v CERTIFIED OIL CORPORATION Tim McCormack, J., Kathleen Ann Keough, P.J., and Sean C. Gallagher, J., concur. KEY WORDS: Commercial activity tax; fuel; R.C ; breach of contract; summary judgment Although R.C permits a vendor to recoup the commercial activity tax by including an amount equal to the tax in the price charged for goods or services, appellee gasoline supplier breached a contract by adding the amount equal to the tax to a pre-negotiated price. The breach-of-contract claim, however, was barred by the contractual time limitation COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO DEAN LOBAS, ET AL. v FC MIDTOWN, LLC., ET AL. Melody J. Stewart, J., Kathleen Ann Keough, P.J., and Patricia Ann Blackmon, J., concur. KEY WORDS: Slip and fall; open and obvious; snow; ice; actual notice; constructive notice. Court did not err by granting summary judgment in slip and fall case on plaintiff s claim that he slipped on snow-covered ice because the snow itself was an obvious hazard in that it covered

7 Court of Appeals, Eighth Appellate District Page: 7 of 11 (Case continued) the ground, a condition of which the plaintiff was fully aware, thus absolving the defendant of any duty to warn about the danger COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v PETER BIZON Reversed and remanded. Mary J. Boyle, J., Mary Eileen Kilbane, P.J., and Tim McCormack, J., concur. KEY WORDS: R.C (C)(4); consecutive sentences. The trial court erred when it failed to make the required findings under R.C (C)(4) before imposing consecutive sentences COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v JEFFREY KEITH COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v JEFFREY C. KEITH COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v JEFFREY C. KEITH Anita Laster Mays, J., Kathleen A. Keough, P.J., and Patricia A. Blackmon, J., concur CLEVELAND MUNI. C CRIMINAL MUNI. & CITY CITY OF CLEVELAND v HARVEY CRAWFORD Anita Laster Mays, J., Frank D. Celebrezze, Jr., A.J., Eileen T. Gallagher, J., concur. KEY WORDS: Municipal court applied the correct legal standard in finding defendant guilty of OVI, and the city presented sufficient circumstantial evidence to prove for purposes of the ordinance that defendant had operated his vehicle while intoxicated.

8 Court of Appeals, Eighth Appellate District Page: 8 of COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO DAVID HOWELL, JR., ETC. v PARK EAST CARE AND REHABILITATION, ET AL. Dismissed. Kathleen Ann Keough, P.J., Mary J. Boyle, J., and Sean C. Gallagher, J., concur. KEY WORDS: Protective order; discovery; privilege; final appealable order; provisional remedy; R.C (B)(4); sanctions Appeal dismissed for lack of a final, appealable order where the appellant fails to establish the necessity of an immediate appeal or demonstrate prejudice to satisfy the requirements of R.C (B)(4)(b) COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO DIANA RETUERTO v BEREA MOVING STORAGE AND LOGISTICS, ET AL. Affirmed in part; reversed in part and remanded. Larry A. Jones, Sr., P.J., Mary Eileen Kilbane, J., and Tim McCormack, J., concur. KEY WORDS: Civ.R. 56/summary judgment. Genuine issues of material fact remained on several of appellant s claims. The trial court s blanket grant of summary judgment was error JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: F.D. Larry A. Jones, Sr., P.J., Eileen A. Gallagher, J., and Mary J. Boyle, J., concur. KEY WORDS: Juv.R. 29(E)(4)/delinquent adjudication; R.C (A)(2/felonious assault; sufficiency; manifest weight. It was reasonable for the trier of fact to find that appellant knowingly caused physical harm to the victim and that appellant s actions were intentional, and not an accident. The trial court did not lose its way in finding appellant delinquent or that the adjudication was against the manifest weight of the evidence.

9 Court of Appeals, Eighth Appellate District Page: 9 of COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v ARIF MAJID Tim McCormack, J., Mary Eileen Kilbane, P.J., and Mary J. Boyle, J., concur. KEY WORDS: Indigent; pending appeal; transcript; public expense. Where indigent defendant has no pending appeal or postconviction action, he is not entitled to a transcript of proceedings at public expense COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO JOSEPH VASIL, ET AL. v PULTE HOMES OF OHIO, LLC, ET AL. Mary J. Boyle, J., Mary Eileen Kilbane, P.J., and Sean C. Gallagher, J., concur. KEY WORDS: Arbitration; unconscionability; motion to stay pending arbitration. Even assuming that the limited warranty s arbitration provision does not apply, the plaintiffs are still subject to the arbitration provision contained in the purchase agreement. Having failed to raise any arguments regarding the enforceability of this arbitration provision, the plaintiffs did not meet their burden to defeat a motion to stay pending arbitration JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: K. A. D. Affirmed in part; reversed in part and remanded. Melody J. Stewart, J., Frank D. Celebrezze, A.J., and Patricia Ann Blackmon, J., concur. KEY WORDS: Interim order; magistrate s decision; jurisdiction; dismissal; Juv.R. 40(D)(4)(e); Juv.R. 22(D)(2). Even though the court had approved and adopted a magistrate s decision to dismiss without prejudice an application for custody, that approval was entered as interim order under Juv.R. 40(D)(4)(e) because the court had yet to rule on the opposing party s objections to the magistrate s decision. The court thus had jurisdiction to rule on objections and, having done so, did not err by finding that dismissal erroneously entered the party seeking

10 Court of Appeals, Eighth Appellate District Page: 10 of 11 (Case continued) dismissal had not timely raised the issue of procedural defects in the application for custody as required by Juv.R. 22(D)(2). With the basis for the procedural dismissal no longer valid, case remanded for the court to rule on pending substantive objections to order granting temporary custody COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v ORLANDO JONES Appeal dismissed. Larry A. Jones, Sr., P.J., Kathleen Ann Keough, J., and Anita Laster Mays, J., concur. KEY WORDS: Final appealable order. It was error for the trial court to sentence appellant to a single term of community control sanctions for multiple convictions. Appellant had not violated the terms of his community control sanctions and no prison term had been imposed. The trial court's sentencing judgment was not a final appealable order JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: S.C. Eileen T. Gallagher, J., Mary Eileen Kilbane, P.J., and Melody J. Stewart, J., concur. KEY WORDS: Custody; maternal grandmother; parental rights; foster family; therapy; legal custody; social worker; terminating; foster; remote testimony; guardian ad litem; best interest; convincing evidence; recommended; assignment of error; paternal; due process; technology; abuse of discretion. The conditions set forth under R.C (B)(1) were established, as it was undisputed that the child was in the temporary custody of the Cuyahoga County Division of Children and Family Services for 12 or more months of a consecutive 22-month period, was abandoned, and could not be placed with the biological parents within a reasonable time; termination of mother's parental rights was in the best interests of the child; trial court did not abuse its discretion by denying Mother s motion for continuance; trial court had no obligation to facilitate the technology necessary for transmitting maternal grandmother s remote testimony via Skype.

11 Court of Appeals, Eighth Appellate District Page: 11 of COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v JAMES VARHOLIC Larry A. Jones, Sr., P.J., Eileen A. Gallagher, J., and Mary J. Boyle, J., concur. KEY WORDS: R.C , , and ; motion to correct sentence, community control sanctions; collateral consequence. Appellant was given notice that a violation of his community control sanctions could result in more restrictive sanctions or a prison term. The trial court s sentence was permissible and appellant suffered no collateral consequence.