July 20, KEY WORDS: R.C ; wrongful imprisonment; actually innocent; error in procedure subsequent to sentencing and imprisonment.

Transcription

1 Court of Appeals, Eighth Appellate District Page: 1 of 8 July 20, COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO ANTHONY LEMONS v STATE OF OHIO Reversed and remanded. Mary J. Boyle, P.J.; Anita Laster Mays, J., concurs; Frank D. Celebrezze, Jr., J., concurs in part and dissents in part with separate opinion. KEY WORDS: R.C ; wrongful imprisonment; actually innocent; error in procedure subsequent to sentencing and imprisonment. In this appeal, we find no merit to the state s argument that Lemons could not be a wrongfully imprisoned individual under R.C (A)(4) because his convictions were vacated and dismissed by the trial court rather than on appeal. Because Lemons s convictions were vacated and dismissed by the trial court, Lemons meets the requirements of R.C (A)(4). We overrule Lemons s first assignment of error because we do not agree with Lemons that the trial court s judgment was against the manifest weight of the evidence. We agree with the trial court that Lemons did not prove by a preponderance of the evidence that he was actually innocent of murder and attempted murder under the second prong of R.C (A)(5). We sustain Lemons s second assignment of error because we agree with him that the trial court abused its discretion when it did not allow him to amend his complaint to reinstate his claim that he was a wrongfully imprisoned individual because he was released from prison due to a procedural error that occurred subsequent to his sentencing and imprisonment under the first prong of R.C (A)(5). We further agree with Lemons that this court can address the merits of his procedural-error claim because we find it to be a question of law that was fully addressed and argued by both parties to the trial court and to this court. In doing so, we agree with Lemons that he established he was a wrongfully imprisoned individual within the meaning of the first prong of R.C (A)(5) because he was released from prison due to an ongoing Brady violation that continued after he was sentenced and sent to prison. Judgment reversed and remanded. Upon remand, the trial court is instructed to issue a judgment declaring that Lemons is a wrongfully imprisoned person.

2 Court of Appeals, Eighth Appellate District Page: 2 of COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO KEVIN E. HOWELL v CONSOLIDATED RAIL CORPORATION, ET AL. Affirmed and remanded. Anita Laster Mays, J., Melody J. Stewart, P.J., and Larry A. Jones, Sr., J., concur. KEY WORDS: R.C et seq., Ohio Asbestos Reform Act, Federal Employers Liability Act ( FELA ), 45 U.S.C. Sec. 51, et. seq., railroad worker, competent medical authority, substantial occupational exposure to asbestos. Viewed in a light most favorable to claimant pursuant to R.C , the trial court properly denied railroad employers motion for administrative dismissal of employee s claim under the Ohio Asbestos Reform Act and FELA. The Ohio Asbestos Reform Act s prima facie requirements are procedural, not substantive, in nature. Appellee, a smoker suffering from cancer who claims railroad asbestos exposure during employment is a substantial cause of his impairment, must provide substantiation from a competent medical authority. Asbestos exposure is not required to be the sole or predominant cause, but a predominate cause, i.e., a substantial factor. A trial court is not precluded from considering supplemental medical evidence offered to support the prima facie case as the rules of evidence are relaxed in administrative proceedings COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO BOARD OF HEALTH OF CUYAHOGA COUNTY v AUGUSTUS L. HARPER, ET AL. Dismissed in part and reversed in part. Eileen A. Gallagher, P.J., Mary Eileen Kilbane, J., and Larry A. Jones, Sr., J., concur. KEY WORDS: Default judgment, summary judgment, injunctive relief, standing. Trial court erred in granting judgment on the complaint against a former tenant of a property where a nuisance was arising after incongruously concluding that said tenant lacked standing to defend against the complaint. Because tenant vacated the property after default judgment was obtained against the property owners on the nuisance complaint, no case or controversy existed between the former tenant and the plaintiff board of health.

3 Court of Appeals, Eighth Appellate District Page: 3 of COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v DONTE B. NELSON Affirmed in part, reversed in part, and remanded. Mary J. Boyle, J.; Mary Eileen Kilbane, P.J., concurs; Sean C. Gallagher, J., concurs in part and dissents in part with separate opinion. KEY WORDS: R.C (B); R.C (A)(2); R.C (A)(3); involuntary servitude; sufficiency of the evidence; manifest weight of the evidence; court costs; R.C (C). The trial court erred when defendant was found guilty of second-degree felony abduction because defendant did not hold the victim in involuntary servitude. Defendant is guilty, however, of felony-three abduction under R.C (B) and R.C (A)(2), and we modify his finding of guilty accordingly. Because we found that Nelson is not guilty of second-degree felony abduction, defendant s argument that abduction with the element of involuntary servitude cannot be a lesser-included offense of kidnapping is moot. Defendant s convictions are not against the manifest weight of the evidence because defendant s arguments are based solely on the credibility of the victim, which we defer to the trial court, who as the finder of fact, was able to observe the witnesses demeanor and decide who was more credible. Finally, defendant s argument that the trial court erred when it imposed costs without orally notifying him at the sentencing hearing is without merit because Nelson can move the court to waive costs at any time COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v ANTWIONE KELLY Sean C. Gallagher, J., Mary J. Boyle, P.J., and Larry A. Jones, Sr., J., concur. KEY WORDS: Sexual predator classification; manifest weight of the evidence; former R.C et seq. There is no error because the trial court fulfilled its obligation to consider all the relevant factors regarding the sexual predator classification, and the sexual predator classification is supported by competent, credible evidence.

4 Court of Appeals, Eighth Appellate District Page: 4 of COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v JOHN BURGER Eileen A. Gallagher, P.J., Melody J. Stewart, J., and Anita Laster Mays, J., concur. KEY WORDS: Consecutive Sentences, R.C (C)(4), R.C (G)(2)(a). The trial court s R.C (C)(4) consecutive sentencing findings were not clearly and convincingly unsupported by the record pursuant to R.C (G)(2)(a) COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO ROSALIND ROBINSON v VEHICLE ACCEPTANCE CORPORATION Kathleen Ann Keough, A.J., Sean C. Gallagher, J., and Anita Laster Mays, J., concur. KEY WORDS: Motion for summary judgment; indispensable party; Consumer Sales Practices Act; fraud; unjust enrichment; repossession. Where a third party unlawfully repossessed the plaintiff s vehicle, the trial court erred in granting summary judgment to defendant based on plaintiff s failure to join that party as an indispensable party where the parties respective motions for summary judgment could be decided without that party; plaintiff s claims for defendant s alleged violation of the Consumer Sales Practices Act, fraud, and unjust enrichment failed as a matter of law where the defendant s alleged actions were not the proximate cause of the plaintiff s injury (the loss of her vehicle) and defendant was not liable for the third-party s criminal act COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO ASSOC. OF CLEVELAND FIRE FIGHTERS, LOCAL 93 IAFF v CITY OF CLEVELAND, OHIO, ET AL. Reversed and remanded. Mary Eileen Kilbane, P.J., Mary J. Boyle, J., and Sean C. Gallagher, J., concur. KEY WORDS: Civil service laws; Ohio Constitution; competitive exam; noncompetitive exam; firefighter; summary judgment; Civ.R. 56; review motions for summary judgment in the first instance; declaratory judgment; justiciable issue. Judgment reversed and remanded. The Ohio Constitution imposes

5 Court of Appeals, Eighth Appellate District Page: 5 of 8 (Case continued) strict limitations on the operation of civil service systems within the state. It provides that [a]ppointments and promotions in the civil service of the state, the several counties, and cities, shall be made according to merit and fitness, to be ascertained, as far as practicable, by competitive examinations. The trial court erred when it dismissed plaintiff s amended complaint without addressing the merits of plaintiff s motion for summary judgment in the first instance. By improperly dismissing the amended complaint, the trial court did not review the merits of plaintiff s motion for summary judgment. Appellate courts cannot cure defects by independently reviewing the record and entering the judgment the trial court should have entered COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v BRIAN A. MITCHELL Tim McCormack, J., Kathleen Ann Keough, A.J., and Mary Eileen Kilbane, J., concur. KEY WORDS: Consecutive sentences; statutory findings; proportionality Defendant, a youth minister at a church who engaged in sexual conduct with a 16-year-old female member of the church s youth ministry, received consecutive sentences totaling ten years for his convictions of multiple counts of sexual battery. The trial court made the required statutory finding that the defendant s consecutive sentences are not disproportionate to the seriousness of his conduct and to the danger he poses to the public, and we do not clearly and convincingly find that the record does not support the finding. Consequently, his consecutive sentences are affirmed COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v WAYNE BLACKMAN Sean C. Gallagher, J., Mary J. Boyle, P.J., and Larry A. Jones, Sr., J., concur. KEY WORDS: Crim.R. 11(F); negotiated plea; chambers; sentence; prejudice; injustice; ineffective assistance; R.C ; R.C ; sentencing factors; consider; presumed. Appellant s sentence was upheld. Appellant s claim that a negotiated plea was not adequately reflected on the record as required by Crim.R. 11(F) was overruled when the record reflected the plea agreement was placed on the record, the trial court discussed at the sentencing hearing a gentleman s agreement

6 Court of Appeals, Eighth Appellate District Page: 6 of 8 (Case continued) reached in chambers as to a potential sentence and afforded appellant an opportunity to withdraw his plea, and the sentence did not exceed the sentence discussed with the court. The claim of ineffective assistance of counsel was overruled because there was no prejudice shown. Trial court s consideration of appropriate factors under R.C and could be presumed from the sentencing journal entry, and appellant failed to affirmatively demonstrate otherwise COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v ADRIAN AYERS Melody J. Stewart, J., Eileen A. Gallagher, P.J., and Anita Laster Mays, J., concur. KEY WORDS: Sufficiency of evidence; manifest weight of evidence; fraud. State presented sufficient evidence of defendant s complicity to engage in identify theft, money laundering, telecommunications fraud, theft, and misuse of credit cards on evidence that defendant several times accompanied principal offender to retail merchants where the principal would open credit card accounts under a stolen identify, allow the defendant to pick out merchandise for purchase, and then sell the merchandise to the defendant for half its purchase price BEREA MUNI. C CRIMINAL MUNI. & CITY CITY OF MIDDLEBURG HEIGHTS v LEEANNA ELSING Reversed and remanded. Eileen A. Gallagher, P.J., Melody J. Stewart, J., and Anita Laster Mays, J., concur. KEY WORDS: OVI offense; R.C ; no contest plea; explanation of the circumstances. Trial court erred in finding defendant guilty on OVI offense without an explanation of the circumstances surrounding the offense under R.C Judgment reversed; OVI conviction vacated and defendant discharged as to the OVI conviction.

7 Court of Appeals, Eighth Appellate District Page: 7 of COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v SAMUEL ROBINSON Larry A. Jones, Sr., J., Mary Eileen Kilbane, P.J., and Mary J. Boyle, J., concur. KEY WORDS: Motion to dismiss; speedy trial; prejudicial error; R.C Appellant was incarcerated on other unrelated cases, was unaware that charges were pending against him and his life was not disrupted by the unresolved pending charges; the state s failure to locate appellant and serve the indictment was not a purposeful act, and appellant failed to exercise his rights under R.C The trial court did not commit prejudicial error where it denied appellant s motion to dismiss on speedy trial grounds JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: A.G., ET AL. Tim McCormack, P.J., Melody J. Stewart, J., and Larry A. Jones, Sr., J., concur. KEY WORDS: Permanent custody; R.C ; best interest of the children; Indian Child Welfare Act ( ICWA ); 25 U.S.C. 1912; ineffective assistance of counsel. Clear and convincing evidence supported the trial court s award of permanent custody of Mother s three minor children to the CCDCFS, and permanent custody is in the best interest of the children. The record demonstrated the conditions causing removal of the children have not been remedied and the failure to remedy those conditions demonstrates Mother s lack of commitment to the children and an unwillingness to provide an adequate permanent home for the children. Mother failed to meet her burden regarding the applicability of the ICWA as she failed to do more than raise the mere possibility of Native American ancestry on appeal. Trial counsel was not ineffective in defending Mother against the amended complaint, failing to call witnesses on Mother s behalf, or in proceeding to a plea without the benefit of discovery. Mother failed to demonstrate counsel s performance was deficient and how the alleged deficiencies prejudiced her.

8 Court of Appeals, Eighth Appellate District Page: 8 of BEDFORD MUNI. C CRIMINAL MUNI. & CITY VILLAGE OF WOODMERE, OHIO v GREGORY KORPONIC Sean C. Gallagher, J., Kathleen Ann Keough, A.J., and Melody J. Stewart, J., concur. KEY WORDS: Sufficiency; manifest weight; ordinance; leaving the scene; accident; circumstantial evidence; inference; knowledge; damage. Appellant s conviction for violating ordinance for leaving the scene of an accident was supported by the sufficiency of evidence when evidence was presented upon which the trier of fact could reasonably infer that appellant had knowledge of the accident. The conviction was not against the manifest weight of the evidence. Despite any lack of evidence concerning damage to the vehicle, the record as a whole supported a determination that appellant was involved in an accident and left the scene with knowledge of the accident COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO STATE OF OHIO v OSIRIS ALI Kathleen Ann Keough, A.J., Tim McCormack, J., and Anita Laster Mays, J., concur. KEY WORDS: postconviction relief, res judicata, grand jury Unsupported beliefs by the defendant that a defect in the grand jury proceedings occurred and that the prosecution against him was improper was not supported by the record. Additionally, the issues raised could have been raised on direct appeal or in prior petitions for postconviction relief; thus, they are barred by res judicata.