January 14, Patricia Ann Blackmon, J., Larry A. Jones, Sr., A.J., concurs; Mary J. Boyle, J., concurs in judgment only.

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1 Court of Appeals, Eighth Appellate District Page: 1 of 8 January 14, BEREA MUNI. C CRIMINAL MUNI. & CITY CITY OF STRONGSVILLE, OHIO v ANTHONY PETRONZIO Patricia Ann Blackmon, J., Larry A. Jones, Sr., A.J., concurs; Mary J. Boyle, J., concurs in judgment only. KEY WORDS: Defendant s no contest plea to the petty offense of aggravated menacing, including a no contact order, complied with Crim.R. 11(E) when the court informed defendant of the effect of his plea. The court did not err by not holding a competency hearing when the record failed to reveal sufficient indicia of incompetence. Absent evidence of defendant unequivocally asserting his right to self-representation, this court must presume regularity in the proceedings below COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v ERNEST L. ALLEN Larry A. Jones, Sr., A.J., Mary J. Boyle, J., and Patricia Ann Blackmon, J., concur. KEY WORDS: Crim.R. 29/motion for acquittal; sufficiency; manifest weight; ineffective assistance of counsel; cumulative prejudicial effect. There was sufficient evidence to support appellant s convictions and the convictions were not against the manifest weight of the evidence. Appellant s offenses were not of similar import because they involved different victims. Under Evid.R. 701, it was proper for police officer to testify regarding his observations about the bullet holes in the car. Appellant failed to show that but for the court s comments the outcome of the trial would have been different, and failed to demonstrate that defense counsel s performance was deficient. Appellant did not receive ineffective assistance of counsel. Appellant s assignments of error were found to be meritless, therefore the cumulative error doctrine does not apply.

2 Court of Appeals, Eighth Appellate District Page: 2 of COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v DEONDRE SMITH Affirmed in part, remanded in part. Anita Laster Mays, J.; Frank D. Celebrezze, Jr., P.J., and Eileen T. Gallagher, J., concur in judgment only. KEY WORDS: Insufficient sentencing, Court Costs, Motion to Withdraw a Guilty Plea, Ineffective Assistance of Counsel, Allied Offenses The trial court was not required to conduct a hearing on the postconviction motion to withdraw a guilty plea. Having a weapon under disability and felonious assault are not allied offenses because the former requires that the defendant have a conviction or a current indictment for drug possession or trafficking DOMESTIC RELATIONS F CIVIL C.P.-JUV, DOM, PROBATE BARBARA A. MORGAN v MELVIN MORGAN Mary J. Boyle, J., Larry A. Jones, Sr., A.J., and Patricia Ann Blackmon, J., concur. KEY WORDS: Abuse of discretion; post-decreee motion to modify division of property order; evidentiary hearing. Trial court did not abuse its discretion in denying husband s post-decree motion to modify division of property order without a hearing. Husband failed to request or present any grounds to support the need for an evidentiary hearing in his motion COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO BRANDON LEATH v CITY OF CLEVELAND, ET AL. Affirmed in part, reversed in part, and remanded. Frank D. Celebrezze, Jr., P.J., Kathleen Ann Keough, J., and Tim McCormack, J., concur. KEY WORDS: Wrongful demolition; Due Process Clause; Civ.R. 56; summary judgment; political subdivision immunity; R.C (A); R.C (E); taking without just compensation; condemnation; demolition; R.C ; R.C ; C.C.O (h); negligence; conversion; trespass; notice; sua sponte dismissal.

3 Court of Appeals, Eighth Appellate District Page: 3 of 8 (Case continued) The trial court did not err in granting summary judgment in favor of the City where appellant had actual notice of condemnation of the property at the time of purchase. However, the trial court erred in sua sponte dismissing claims against the contractor that demolished the home where the complaint was not frivolous and the contractor never moved for summary judgment COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v TERRENCE RUDD, JR. Affirmed in part, reversed in part, and remanded. Frank D. Celebrezze, Jr., P.J., Eileen A. Gallagher, J., and Eileen T. Gallagher, J., concur. KEY WORDS: Murder; R.C (B); felonious assault; R.C (A)(2); R.C (A)(1); court costs; manifest weight; sufficiency; eyewitness identification; photo array; blind photo array; R.C ; inconsistent testimony; gunshot residue; R.C Appellant s convictions for murder and felonious assault were supported by sufficient evidence and the jury s verdict was not against the manifest weight of the evidence. The trial court erred by imposing court costs in its sentencing entry without imposing the costs during the sentencing hearing. We reverse and remand the trial court s judgment for the limited purpose of allowing appellant to seek a waiver of court costs COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v FULLER MURRAY Mary J. Boyle, J., Melody J. Stewart, P.J., and Sean C. Gallagher, J., concur. KEY WORDS: Batson challenge; sufficiency of the evidence; manifest weight of the evidence; prosecutorial misconduct; curative instruction. The trial court s acceptance of the prosecutor s stated reasoning for excusing a juror was not clearly erroneous. Body language and demeanor are permissible race-neutral justifications for exercising a peremptory challenge. There is no evidence in the record refuting the prosecutor s explanation to excuse juror; we cannot say that the trial court s denial of defendant s Batson challenge was clearly erroneous. The state presented sufficient evidence to support defendant s convictions for felonious assault and discharging a firearm. Convictions also supported by the weight of the evidence. Defendant s testimony that he accidentally fired his shotgun into

4 Court of Appeals, Eighth Appellate District Page: 4 of 8 (Case continued) the victim s home was not credible defendant retrieved the shotgun immediately following an altercation with the victim, the bird shot casing from shotgun traveled directly into the victim s dining room, and defendant never once stated to officers arriving on the scene that he accidentally discharged the firearm. Based on the totality of the record, defendant was not denied a fair trial it appears clear beyond a reasonable doubt the jury would have found defendant guilty even without the prosecutor s improper comment LYNDHURST MUNI. C CRIMINAL MUNI. & CITY CITY OF LYNDHURST v ALEXANDER LASKER-HALL Affirmed as modified and remanded. Patricia Ann Blackmon, J., Larry A. Jones, Sr., A.J., and Mary J. Boyle, J., conur. KEY WORDS: Waiver of Counsel; petty theft; Crim.R. 44(B). At trial, the appellant represented himself without the court first obtaining a knowing, intelligent and voluntary waiver of counsel. The trial court s failure to obtain a valid waiver of counsel in a petty theft offense, prevents the trial court from imposing a sentence of confinement on the defendant. It does not vacate the entire conviction. Accordingly, the conviction is affirmed as modified. The trial court also entered the incorrect amount of restitution; therefore, the matter is remanded for correction. Also, because the victim stated the property was still at the school, if the victim can prove the property was returned to the victim, no restitution can be ordered because to do so would allow double recovery to the victim JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: A.D. Sean C. Gallagher, J., Frank D. Celebrezze, Jr., P.J., and Mary Eileen Kilbane, J., concur. KEY WORDS: Delinquency; transcript filed with objections; Juv.R. 40; admission of evidence; Evid.R. 404(B). The trial court did not err by overruling objections as to the manifest weight of the evidence presented to the magistrate because the trial court was not provided a transcript of the proceedings pursuant to Juv.R. 40(D)(3)(b)(iii). Further, the trial court properly considered evidence of motive pursuant to Evid.R. 404(B).

5 Court of Appeals, Eighth Appellate District Page: 5 of COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO TROY LEIGHT, ET AL. v OSTEOSYMBIONICS, LLC, ET AL. Patricia Ann Blackmon, J., Larry A. Jones, Sr., A.J., and Melody J. Stewart, J., concur. KEY WORDS: Denial of motion to compel arbitration and stay trial proceedings affirmed. Majority member of L.L.C. did not have unilateral authority to add an arbitration clause to an operating agreement when there was no agreement to arbitrate claims or disputes by the minority members in the original operating agreement JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: M.B. Frank D. Celebrezze, Jr., P.J., Eileen A. Gallagher, J., and Eileen T. Gallagher, J., concur. KEY WORDS: Custody; visitation; motion to modify visitation; change in circumstances; best interests of the child; findings of fact and conclusions of law; objections to the magistrate s decision; R.C ; abuse of discretion; Civ.R. 61; harmless error; Civ.R. 53(D); excusable neglect. The trial court s judgment denying appellant s motions to modify visitation are affirmed. Appellant failed to demonstrate a change of circumstances and that visitation was in the child s best interests as required by R.C COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v RICHARD C. TYREE Dismissed. Eileen A. Gallagher, J., Frank D. Celebrezze, Jr. P.J., and Melody J. Stewart, J., concur. KEY WORDS: Anders brief; Crim.R. 11; Allied offenses; postrelease control; forfeiture; Following filing of an Anders brief by appellant s counsel, the court conducted an independent review of the entire record as well as a review of potential errors raised by counsel and found no errors in appellant s plea or sentencing

6 Court of Appeals, Eighth Appellate District Page: 6 of COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO HONORABLE JUDGE BRIAN J. MELLING, ET AL. v GERARD SCOTT, ET AL. Affirmed in part, reversed in part and remanded. Frank D. Celebrezze, Jr., P.J., Larry A. Jones, Sr., A.J., and Anita Laster Mays, J., concur. KEY WORDS: Declaratory judgment; injunctive relief; UCC 1 financing statements; admiralty claims; liens; harass; R.C ; sua sponte dismissal without notice; fixture filings; I.R.C. 7402(a); irreparable harm; justiciable controversy; adverse parties; summary judgment; default judgment. The trial court erred in sua sponte dismissing appellants declaratory judgment action where the claims were not frivolous and the facts alleged in appellants complaint were sufficient to demonstrate some set of facts entitling them to relief. The trial court did not err in denying appellants motion for summary judgment or motion for default judgment COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v EDWARD J. HYDE Reversed and remanded. Patricia Ann Blackmon, J., Larry A. Jones, Sr., A.J., and Mary J. Boyle, J., concur. KEY WORDS: R.C ; R.C ; termination of life suspension of driving privileges; granting of occupational driving privileges. The trial court erred by denying appellant s motion to terminate his life suspension of his driver s license or in the alternative occupational driving privileges. The trial court relied upon case law that predated the enactment of R.C and R.C COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO AUTHOR CHARLES D. NEWTON v CITY OF CLEVELAND, ET AL. Sean C. Gallagher, J., Frank D. Celebrezze, Jr., P.J., and Mary Eileen Kilbane, J., concur. KEY WORDS: Res judicata; summary judgment. The trial court did not err in granting summary judgment on the grounds that claims advanced in the case had been resolved to the plaintiff s detriment in a prior action.

7 Court of Appeals, Eighth Appellate District Page: 7 of COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO MARY C. PALLADINO v DENNIS G. KENNEDY, CUYAHOGA COUNTY FISCAL OFFICER Frank D. Celebrezze, Jr., P.J., Mary Eileen Kilbane, J., and Sean C. Gallagher, J., concur. KEY WORDS: R.C ; real estate valuation complaint; sufficient evidence; change in value; burden of proof; R.C ; independent review; R.C Appellant did not offer sufficient evidence to demonstrate her proposed value was closer to the true value of the property than the value set by the taxing authority JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN THE MATTER OF: J.C.P Anita Laster Mays, J., Larry A. Jones, Sr., A.J., Sean C. Gallagher, J., concur. KEY WORDS: R.C (F)(1)-(2); Evid.R. 401, 402, 403, 611(A), limitation of number of photographic evidentiary exhibits; manifest weight of the evidence. The trial court did not abuse its discretion in limiting the number of photographs the Father attempted to introduce with accompanying testimony where there was sufficient evidence in the record to support the position the photographs were offered to prove and the Father s rights were not substantially prejudiced by the limitation. The court has broad discretion to exercise reasonable control over the presentation of evidence to avoid needless consumption of time where the probative value is substantially outweighed by considerations of undue delay, or needless presentation of cumulative evidence. The trial court s findings are supported by the manifest weight of the evidence COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v ROBERT GODWIN Mary Eileen Kilbane, J., Frank D. Celebrezze, Jr., P.J., and Sean C. Gallagher, J., concur. KEY WORDS: Guilty plea, postsentence motion to withdraw guilty plea; manifest injustice; abuse of discretion; maximum penalty;

8 Court of Appeals, Eighth Appellate District Page: 8 of 8 (Case continued) constitutional rights. Judgment affirmed. Trial court did not abuse its discretion when it denied defendant s postsentence motion to withdraw guilty plea The trial court complied with Crim.R. 11 by properly advising defendant of the maximum penalty for each charge and the sentencing range for the charges. The trial court substantially complied with Crim.R. 11, and defendant subjectively understood the consequences of the plea and the nature of the rights being waived.