CASE DECISION LIST Court of Appeals, Eighth Appellate District Page: 1 of 7. November 14, 2013

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1 Court of Appeals, Eighth Appellate District Page: 1 of 7 November 14, COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v GREGORY KOPILCHAK Mary J. Boyle, J., Melody J. Stewart, A.J., and Tim McCormack, J., concur. KEY WORDS: Fine; moot; indigency; maximum sentences. Defendant's challenge of the trial court's imposition of a fine is moot; trial court granted defendant's subsequent motion to suspend the fine on indigency grounds. Trial court did not abuse its discretion in imposing maximum sentence COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v WARREN CALDWELL Affirmed in part, reversed in part, and remanded. Sean C. Gallagher, P.J., and Eileen T. Gallagher, J., concur; Mary Eileen Kilbane, J., dissents with separate opinion. KEY WORDS: rape; kidnapping; plea agreement; rejected; objective reason; abuse of discretion; prosecutorial discretion; hearsay; Evid.R. 404(B); harmless error; indefinite sentence; postrelease control; R.C (B)(1); remand. Trial court abused its discretion in rejecting a plea agreement where the court failed to provide an objective reason for rejecting the prosecutor s viable assessment, failed to justify its all-or-nothing approach requiring the defendant to go through trial and live with the verdict, and failed to inquire into the defendant s reasons for accepting the plea agreement. The trial court committed harmless error with regard to certain evidentiary rulings. The trial court properly imposed five years of mandatory postrelease control in accordance with R.C (B)(1) where defendant received an indefinite sentence for rape in violation of R.C (A)(1)(b). Case was remanded to allow defendant the opportunity to enter a plea according to the plea agreement; defendant was not entitled to a new trial.

2 Court of Appeals, Eighth Appellate District Page: 2 of COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v CLINT LINDER Eileen T. Gallagher, J., Frank D. Celebrezze, Jr., P.J., and Larry A. Jones, Sr., J., concur. KEY WORDS: Res judicata; findings of conclusions of law; motion to withdraw guilty plea; newly discovered evidence; Crim.R. 33. Denial of defendant s motion to withdraw guilty plea affirmed where arguments were barred by res judicata. Trial was not required to issue findings of fact or conclusions of law when it denied defendant s second motion to withdraw guilty plea. Claim of newly discovered evidence was properly rejected. Although one witness recanted his trial testimony, four other witnesses identified defendant as perpetrator COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO DEUTSCHE BANK TRUST CO. v IRA R. NEWBLE, ET AL. Patricia Ann Blackmon, J., Larry A. Jones, J., concur; Mary J. Boyle, P.J., concurs in judgment only. KEY WORDS: Foreclosure, Standing, Assignment of Mortgage COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v ALONZO PATRICK Melody J. Stewart, A.J., Kathleen Ann Keough, J., and Eileen T. Gallagher, J., concur. KEY WORDS: Res judicata; ineffective assistance of counsel; postrelease control; appeal; felony sentencing; journal entry; guilty plea; transcript. Res judicata bars claims in a postsentence motion to withdraw guilty plea that could have brought in a timely direct appeal.

3 Court of Appeals, Eighth Appellate District Page: 3 of COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v PAUL BONNEAU Kathleen Ann Keough, J., Kenneth A. Rocco, P.J., and Mary Eileen Kilbane, J., concur. KEY WORDS: Law of the case; gross sexual imposition; kidnapping; allied offenses; sexually oriented offender; Megan s Law. Trial court did not err in merging gross sexual imposition and kidnapping on resentencing; because kidnapping conviction was affirmed on direct appeal law-of-the-case doctrine precluded defendant s argument on appeal from resentencing that evidence did not support kidnapping conviction; the application of Megan s Law to offenders who committed a sexually oriented offense prior to its enactment does not violate Section 28, Article II of the Ohio Constitution COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v KENNETH J. HUNTER Larry A. Jones, Sr., P.J., Tim McCormack, J., and Eileen T. Gallagher, J., concur. KEY WORDS: Abuse of discretion; prejudicial error; Crim.R. 32/motion to withdraw plea; right to appeal; effective assistance of counsel; App.R. 3(D). The trial court explained the maximum term of incarceration appellant faced; appellant stated that he understood the court s explanation, and the court otherwise complied with Crim.R. 11 in accepting appellant s plea. The trial court did not abuse its discretion in denying appellant s motion to withdraw his guilty plea. Where appellant was granted leave to file a delayed appeal, and appellant was not prejudiced, it was harmless error when the trial court did not advise appellant ofhis appellate rights at the sentencing hearing. Appellant s trial counsel provided evidence in mitigation to the trial court; appellant stated that he was satisfied with his counsel s representation, and that he understood that he was admitting to the charges in his plea. Appellant failed to establish ineffective assistance of counsel.

4 Court of Appeals, Eighth Appellate District Page: 4 of COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v JERMAINE L. AKINS Melody J. Stewart, A.J., Kathleen Ann Keough, J., and Tim McCormack, J., concur. KEY WORDS: R.C ; contrary to law; abuse of discretion; sentence; appellate review. Under R.C (G)(2), an appellate court has no authority to review a criminal sentence for an abuse of discretion; it can only review such sentences for the specific errors listed in R.C (A) COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO NATIONSTAR MORTGAGE, LLC v ANGELA M. PERRY Melody J. Stewart, A.J., Frank D. Celebrezze, Jr., J., and Sean C. Gallagher, J., concur. KEY WORDS: Standing; real party in interest; affidavit; mortgage; note; summary judgment; complaint; endorsement. Standing to foreclose is established where plaintiff demonstrates holder status of the note prior to the filing of the complaint COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v JAVONTE L. HODGES Sentence reversed; remanded for resentencing. Larry A. Jones, Sr., J., and Frank D. Celebrezze, Jr., P.J., concur; Eileen T. Gallagher, J., concurs in judgment only with separate opinion. KEY WORDS: R.C /Felony sentencing/concecutive sentences; allied offenses. The trial court properly considered the applicable factors and principles et forth in R.C and ; there was no error. A merger analysis was conducted; the multiple offenses failed to meet the two-part test determining whether offenses are offenses of similar import. Appellant s murder convictions and having weapons while under disability were properly not merged. The trial court did give reasons for the sentence; however, the

5 Court of Appeals, Eighth Appellate District Page: 5 of 7 (Case continued) trial court did not make the statutory findings required for the imposition for consecutive sentences COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v LANELL SIMMONS COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v LANELL A. SIMMONS Sean C. Gallagher, P.J., Kathleen Ann Keough, J., and Mary Eileen Kilbane, J., concur. KEY WORDS: withdraw plea; maximum penalty; plea colloquy; postrelease control notification. Defendant cannot show he was prejudiced by the trial court s minor omissions in informing the defendant during the plea colloquy of his nonconstitutional rights. The trial court did not err in accepting the defendant s guilty plea,which was entered knowingly, voluntarily, and intelligently COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v FLOY GILL Affirmed in part; reversed in part and remanded. Larry A. Jones, Sr., J., Frank D. Celebrezze, Jr., P.J., and Eileen T. Gallagher, J., concur. KEY WORDS: Manifest weight, R.C (G)(2)/consecutive sentences. Where a jury found a witness s testimony credible and the direct and circumstantial evidence proved beyond a reasonable doubt that appellant was the shooter, the convictions were not against the manifest weight of the evidence. Substantial compliance with the statutory requirements for the imposition of consecutive sentences is not sufficient COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v PAUL LIUZZO Larry A. Jones, Sr., P.J., Tim McCormack, J., and Eileen T. Gallagher, J., concur.

6 Court of Appeals, Eighth Appellate District Page: 6 of 7 (Case continued) KEY WORDS: Allied offenses; statutorily required mitigating factors; effective assistance of trial counsel. The trial court did not err where it imposed consecutive sentences. Appellant s counsel was not ineffective by not requesting an allied offense hearing. The trial court did not err where it did consider mitigating factors during the hearing sentence COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO WOODROW GARRICK, ET AL. v GREATER CLEVELAND REG.TRANS.AUTH. Patricia Ann Blackmon, J., Mary J. Boyle, P.J., and Larry A. Jones, J., concur. KEY WORDS: Request for Admissions; Motion for Relief from Judgment. The trial court did not err by denying appellant s request to withdraw his admissions because counsel did not provide an adequate reason why he failed to respond to the request for admissions and the case had been ongoing for three years. The trial court did not err by denying appellant s motion for relief from judgment. We cannot consider arguments raised on appeal that were not raised in appellant s motion for relief from judgment COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v RAMON TORRES Mary J. Boyle, J.; Tim McCormack, J., concurs; Melody J. Stewart, A.J., concurs in judgment only. KEY WORDS: Jury instructions; other acts instruction; flight instruction; eyewitness identification instruction; accomplice instruction; sentence; consistency in sentencing; R.C (G)(2). Jury Instructions: Trial court did not abuse its discretion in giving other acts instruction. The instruction was not unfairly prejudicial and warranted. The other acts evidence was offered to prove defendant s identity and involvement in the shooting. It is not error for the trial court to give a flight instruction when there is such evidence. Given that several witnesses identified defendant as the shooter and substantial evidence existed corroborating the witnesses identification, we find no abuse of discretion in the trial

7 Court of Appeals, Eighth Appellate District Page: 7 of 7 (Case continued) court s decision to use Ohio s standard s eyewitness identification instruction and not charge the jury with a cross-racial identification instruction. Sufficient evidence existed to warrant an accomplice instruction, even if the accomplices pled guilty to a lesser offense. Because the record did not clearly and convincingly establish that defendant s sentence was contrary to law, defendant s sentence was upheld. The record revealed that trial court considered and applied the proper statutory factors when sentencing defendant. Defendant s conviction was not against the weight of the evidence. Although there was not forensic evidence to tie defendant to the victim, substantial testimonial and circumstantial evidence exists to justify the jury s verdict DOMESTIC RELATIONS F CIVIL C.P.-JUV, DOM, PROBATE CHERYL REGALBUTO v MICHAEL REGALBUTO Eileen A. Gallagher, P.J., Mary Eileen Kilbane, J., and Tim McCormack, J., concur. KEY WORDS: Judgment affirmed; divorce; spousal support; contempt; unfair allocation of trial time; distributive award. The judgment of the trial court is affirmed; a trial court does not violate an appellant s due process rights when the court divides the trial time equally and gives each party the opportunity to testify and cross-examine one another; a distributive award will not be disturbed absent an abuse of discretion; impossibility is a defense to a contempt citation COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v ALBERT J. BRADLEY Dismissed. Frank D. Celebrezze, Jr., P.J., Kathleen Ann Keough, J., and Mary Eileen Kilbane, J., concur. KEY WORDS: Crim.R. 32(B); nunc pro tunc; entry of sentence; appeal rights. This court lacks jurisdiction over the present untimely appeal because the trial court s use of a nunc pro tunc entry attempting to correct its failure to notify appellant of his appellate rights is void. The use of a nunc pro tunc entry to extend the time within which appellant has to appeal is also improper.