Court of Appeals, Eighth Appellate District Page: 1 of 13 April 2, 2015 100960 COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v STEPHON OGLETREE Affirmed and remanded. Eileen A. Gallagher, J., Larry A. Jones, Sr., P.J., and Tim McCormack, J., concur. KEY WORDS: Consecutive Sentences; Anders Brief; Bonnell. Trial court made the required findings pursuant to R.C. 2929.14(C)(4) to impose consecutive sentences but failed to incorporate those findings into its sentencing entry. Case remanded for the issuance of a nunc pro tunc entry to properly incorporate said findings. 101245 COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v GUY JARRETT Patricia Ann Blackmon, J., Mary Eileen Kilbane, P.J., and Sean C. Gallagher, J., concur. KEY WORDS: KEYWORDS: Hearsay Evidence: Hearsay is defined as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Evid.R. 801(C). Pursuant to Evid.R. 802, hearsay is inadmissible unless it falls within an exception provided by the rules of evidence. State v. Wright, 8th Dist. Cuyahoga No. 100803, 2014-Ohio-5424. 101271 COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v PAUL GATEWOOD Frank D. Celebrezze, Jr., A.J., and Tim McCormack, J., concur; Melody J. Stewart, J., concurs with separate opinion. KEY WORDS: The facts relied on by the trial court in imposing consecutive sentences were accurate and substantiated; we cannot clearly and convincingly find that the record does not support the trial court s finding that consecutive sentences are not disproportionate to the seriousness of appellant s conduct. Consecutive; clear and convincing; R.C. 2929.14; R.C. 2952.08(G)(2); record; disproportionate.
Court of Appeals, Eighth Appellate District Page: 2 of 13 101280 COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO NATIONSTAR MORTGAGE, LLC v EDWIN J. WAGENER, ET AL. Eileen A. Gallagher, P.J., Tim McCormack, J., and Eileen T. Gallagher, J., concur. KEY WORDS: Foreclosure; summary judgment; standing; substitute plaintiff; Civ.R. 25(C); affidavit; Civ.R. 56; Civ.R. 56(E); personal knowledge Trial court properly entered summary judgment in favor of substitute plaintiff on foreclosure complaint where there were no genuine issues of material fact that original plaintiff had standing, based on its possession of original note endorsed in blank and/or by formal assignment of the mortgage, at the time it filed the complaint and that possession of the original note was transferred and the mortgage assigned to the substitute plaintiff prior to its substitution as plaintiff. Affidavit from assistant secretary of substitute plaintiff in which he averred that he had personal knowledge of facts asserted in affidavit, including that original plaintiff had possession of original note at the time it filed its complaint, was sufficient to satisfy Civ.R. 56(E). The substitute plaintiff also presented evidence establishing that the loan was in default and had not been cured, the amount owed on the loan and that the conditions precedent to foreclosure as set forth in the note and mortgage had been satisfied, meeting its burden under Civ.R. 56. The borrowers failed to meet their reciprocal burden to present evidence of specific facts demonstrating a genuine issue of material fact for trial. 101413 COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v MARCELUS D. BIBBS, SR. Patricia Ann Blackmon, J., Mary Eileen Kilbane, P.J., concurs; Sean C. Gallagher, J., concurs in judgment only. KEY WORDS: KEYWORDS: Anders brief; frivolous appeal; independent review. After an independent review pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L.Ed.2d 493, this court found no errors in the trial court that were prejudicial to appellant. Appointed counsel s motion to withdraw is granted.
Court of Appeals, Eighth Appellate District Page: 3 of 13 101416 PARMA MUNI. G CIVIL MUNI. & CITY A & J HOMES, INC. v THOMAS C. GREEN Affirmed Mary Eileen Kilbane, P.J., Sean C. Gallagher, J., and Patricia A. Blackmon, J., concur. KEY WORDS: Lease with option to purchase; land installment contract; R.C. Chapter 5313; eviction; mootness. Parties agreement did not meet requirements for land installment contract under R.C. 5313.02; defendant had a lease with option to purchase, therefore a mere possessory interest and not an ownership interest. Competent credible evidence demonstrated that the defendant failed to pay rent, therefore, the eviction was proper. The defendant did not obtain a stay, and therefore, the matter became moot. 101428 DOMESTIC RELATIONS F CIVIL C.P.-JUV, DOM, PROBATE RITA LUCILLE AICHLMAYR v RONALD LAWRENCE AICHLMAYR Reversed and remanded. Sean C. Gallagher, J., Mary Eileen Kilbane, P.J., and Patricia Ann Blackmon, J., concur. KEY WORDS: Spousal support; modification; jurisdiction; R.C. 3105.18(D). The trial court erred in finding it lacked jurisdiction to modify a spousal support order entered upon a decree of legal separation; R.C. 3105.18(D) specifically provides the trial court with such jurisdiction. 101468 COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v SAMI FARRAJ Kathleen Ann Keough, P.J., Eileen A. Gallagher, J., and Melody J. Stewart, J., concur. KEY WORDS: Motion to withdraw guilty plea; res judicata; direct appeal. Trial court did not abuse its discretion in denying defendant s postsentence motion to withdraw his guilty plea alleging ineffective assistance of counsel; defendant could have raised the issue on direct appeal; because he did not do so, the claims were barred by res judicata.
Court of Appeals, Eighth Appellate District Page: 4 of 13 101474 COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v JACQUELINE MARTINEZ Larry A. Jones, Sr., P.J., Eileen A. Gallagher J., and Tim McCormack, J., concur. KEY WORDS: Crim.R.11(C)/plea; ineffective assistance of counsel; R.C. 2929.11/sentencing; R.C. 2929.12/sentence/contrary to law. Appellant failed to file a transcript of the competency hearing, thus, this court presumes regularity with the proceedings below. Also, neither appellant or her counsel raised the issue of appellant s competency during the plea hearing. The trial court complied with Crim.R. 11 in accepting appellant s plea. After the first competency evaluation proved to be inconclusive, appellant s counsel requested a second evaluation that concluded that appellant was competent to stand trial. Beyond that, there was nothing to suggest that a not guilty by reason of insanity plea would have been successful. Appellant s counsel was not ineffective in his representation of appellant. The trial court considered the purposes and principles of sentencing under R.C. 2929.11 as well as the factors under R.C. 2929.12(A) and appellant s sentence was not contrary to law. 101489 COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v KEVIN T. BELL Anita Laster Mays, J., Eileen A. Gallagher, P.J., and Eileen T. Gallagher, J., concur. KEY WORDS: Amendment of Indictment; Burglary; Correction of Journal Entry; Criminal Damaging; Manifest Weight; Occupied Structure; Person Likely to be Present; Sufficiency; Sentence; Theft The trial court did not err in permitting the state to amend the indictment to list the actual owner of the residence. The state s evidence sufficiently proved the residence was an occupied structure where a person was likely to be present for purposes of the burglary statute, and appellant s guilt of the offenses of criminal damaging and theft. The manifest weight of the evidence also supported Appellant s convictions. However, the trial court found Appellant guilty of criminal damaging, and failed at the sentencing hearing to sentence Appellant on the theft and criminal damaging counts, despite what the journal entry of sentence states. Therefore, the case must be remanded for a re-sentencing hearing and correction of the journal entry.
Court of Appeals, Eighth Appellate District Page: 5 of 13 101500 COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO TERESE KOMOROWSKI v JOHN P. HILDEBRAND CO., LPA, ET AL. Reversed in part, dismissed in part, and remanded. Frank D. Celebrezze, Jr., A.J., Tim McCormack, J., and Melody J. Stewart, J., concur. KEY WORDS: Legal malpractice; attorney-client relationship; partnership; agency; attorney work-product; Civ.R. 26(B)(3); summary judgment. The trial court erred in granting summary judgment in favor of an attorney and his firm where material questions of fact remain about the establishment of an attorney-client relationship and liability through partnership principles. The trial court did not err in holding that a document shared between codefendants was subject to discovery where it contained attorney work-product. 101520 COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v RONALD L. BALIS Sean C. Gallagher, J., Mary Eileen Kilbane, P.J, and Patricia Ann Blackmon, J., concur. KEY WORDS: R.C. 2903.11(A)(1); R.C. 2903.12; felonious assault; aggravated assault; inferior; mitigating; serious provocation; attempted punch; manifest weight. Because the record failed to demonstrate the existence of serious provocation, arising from the victim s attempted punch in response to appellant s assault against him, the trial court did not err in refusing to convict appellant of inferior offense of aggravated assault. Felonious assault conviction was not against the manifest weight of the evidence. 101580 JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: A.A.W. Eileen T. Gallagher, J., Eileen A. Gallagher, P.J., and Tim McCormack, J., concur. KEY WORDS: Expert testimony; invocation hearing; serious youth offender sentence; blended sentence; documentary evidence; clear and convincing evidence; ineffective assistance of counsel. Trial court acted within its discretion when it admitted gang expert s testimony and charts into evidence.
Court of Appeals, Eighth Appellate District Page: 6 of 13 (Case 101580 continued) Trial court s invocation of juvenile s adult portion of his serious youth offender sentence was supported by clear and convincing evidence where several state witnesses testified that youth was not likely to be rehabilitated during remaining period of juvenile jurisdiction. Juvenile was not deprived of the effective assistance of counsel where outcome would not have been different if trial counsel had objected to documentary evidence. 101592 COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO STATE OF OHIO v SAMI FARRAJ Melody J. Stewart, J., Kathleen Ann Keough, P.J., and Eileen A. Gallagher, J., concur. KEY WORDS: R.C. 2953.21; postconviction relief; res judicata; plea agreement. The court did not err in denying defendant s petition for postconviction relief because the petition was barred by the doctrine of res judicata and the petition was untimely. 101597 COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO MCKINLEY DICKERSON, JR. v GREATER CLEVELAND REGIONAL TRANS. AUTH., ET. AL. Sean C. Gallagher, J., Mary Eileen Kilbane, P.J., and Patricia Ann Blackmon, J., concur. KEY WORDS: Wrongful arrest; false imprisonment; immunity; wanton; reckless; Civ.R. 32(A); deposition; R.C. 2744.03(A)(6)(b); public-duty rule; summary judgment. Cleveland police officers were not entitled to summary judgment on the basis of immunity under R.C. 2744.03(A)(b)(6) on claims of wrongful arrest and false imprisonment. Genuine factual disputes existed as to whether the officers acted maliciously, in bad faith, or in a wanton or reckless manner when they arrested appellee and held him in jail for 19 days despite purportedly knowing he was not the person who robbed the bank. The trial court did not abuse its discretion in considering deposition testimony, and the public-duty rule did not apply.
Court of Appeals, Eighth Appellate District Page: 7 of 13 101601 COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v JESUS SANTIAGO Kathleen Ann Keough, P.J., Mary Eileen Kilbane, J., and Melody J. Stewart, J., concur. KEY WORDS: Allied offenses; res judicata; direct appeal; possession of heroin; possession of cocaine; legislative intent; R.C. 2925.11. Defendant s allied offenses argument regarding convictions for possession of heroin and possession of cocaine was barred by res judicata because defendant did not raise any allied offenses issue in his direct appeal; argument also failed on the merits because the legislative intent is that simultaneous possession of different drug groups can constitute multiple offenses under R.C. 2925.11. 101612 COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v LUIS SANTIAGO Dismissed. Kathleen Ann Keough, P.J., Patricia Ann Blackmon, J., and Anita Laster Mays, J., concur. KEY WORDS: Mooted appeal Defendant s appeal dismissed as moot because defendant served entire prison sentence and the basis for the appeal was the length of the prison term imposed. Appeal also dismissed as moot because defendant challenged the trial court s revocation of bond after the entry of conviction. 101616 COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v CARLA RIVERA Affirmed and remanded. Anita Laster Mays, J., Kathleen Ann Keough, P.J., and Patricia Ann Blacklmon, J., concur. KEY WORDS: Allied Offenses; Child Endangering; Felonious Assault; Guilty Plea; Nunc Pro Tunc; R.C. 2930.14(A); Sentencing Entry The trial court was not obligated to inform appellant at the plea hearing that the sentences could be imposed consecutively. Appellant s abuse of the victim over time constituted the offense of child endangering, whereas her felonious assault upon him
Court of Appeals, Eighth Appellate District Page: 8 of 13 (Case 101616 continued) occurred on a specific date; therefore, these offenses were not allied for purposes of R.C. 2941.25(A), and trial court did not err in failing to merge them at the sentencing hearing. The video of the extent of the child s injuries that the state presented at the sentencing hearing did not constitute new information for purposes of R.C. 2930.14(A). However, the trial court did not include the sentencing factors it set forth for imposing consecutive terms into the journal entry; therefore, the case is remanded for the trial court to incorporate the findings nunc pro tunc. 101709 COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v SUNDIATA LANGFORD Mary J. Boyle, J., Mary Eileen Kilbane, P.J., and Eileen T. Gallagher, J., concur. KEY WORDS: Crim.R. 32(c); motion for a final appealable order. Trial court properly denied defendant s motion for a final appealable order. The judgment entry, which Langford timely appealed from over ten years ago, complies with Crim.R. 32. 101712 COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO ANTHONY GALATI v TIMOTHY PETTORINI, ESQ. ET AL. Reversed and remanded. Larry A. Jones, Sr., P.J., Eileen A. Gallagher, J., and Tim McCormack, J., concur. KEY WORDS: R.C. 2317.02/attorney-client privilege/waiver; joint-representation exception; Civ.R. 26(B)(3)/work-product doctrine. One party in joint-representation litigation cannot unilaterally waive privilege of the other co-clients. Likewise, any work-product communication created in joint-representation litigation is unavailable. 101719 COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v JACQUELINE M. FREEMAN 101720 COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v JACQUELYN M. FREEMAN
Court of Appeals, Eighth Appellate District Page: 9 of 13 101721 COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v JACQUELYN M. FREEMAN Kathleen Ann Keough, P.J., Patricia Ann Blackmon, J., and Anita Laster Mays, J., concur. KEY WORDS: Crim.R. 32(B) At the time of sentencing, the trial court has no duty to ascertain the basis or grounds upon which a defendant seeks to appeal. The trial court is only required to advise a defendant of her appellate rights pursuant to Crim.R. 32(B). Additionally, trial counsel has no duty to state the basis or grounds upon which a defendant seeks to appeal. 101729 COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO U.S. BANK NATIONAL ASSOCIATION, ETC. v MARY L. LAVELLE, ET AL. Reversed and remanded. Frank D. Celebrezze, Jr., A.J., Kathleen Ann Keough, J., and Mary Eileen Kilbane, J., concur. KEY WORDS: Foreclosure; trust; note; mortgage; inconsistent; summary judgment Civ. R. 56; holder; chain of assignments. The trial court erred in granting summary judgment in favor of foreclosing party where the bank has submitted two inconsistent notes and has not provided an explanation for the inconsistency. The bank did not establish the chain of assignments and transfers. 101739 COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO EARL COHEN v CITY OF BEDFORD HEIGHTS, ET AL. Eileen A. Gallagher, J., Larry A. Jones Sr., P.J., and Tim McCormack. J., concur. KEY WORDS: Political subdivision immunity; judgment on the pleadings; unjust enrichment; negligence; statute of limitations; R.C. 2744.04(A); discovery rule. Trial court did not err in denying City s motion for judgment on the pleadings because plaintiff alleged a negligence action and taking the allegations of the complaint as true it would be inappropriate to conclude based on a judgment on the pleadings that plaintiff s action was barred pursuant to R.C. 2744.03(A)(5). Further discovery was necessary to ascertain the applicability for that statute to the facts. Furthermore,
Court of Appeals, Eighth Appellate District Page: 10 of 13 (Case 101739 continued) the civil discovery rule applied to the statute of limitations found in R.C. 2744.04(A) and the trial court did not err in granting judgment in favor of the city on plaintiff s unjust enrichment claim. 101781 JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: H.P., ET AL. Frank D. Celebrezze, Jr., A.J., Sean C. Gallagher, J., and Eilleen A. Gallagher, concur. KEY WORDS: Juvenile court; void ab initio; UCCJEA; R.C. 2151.23; home state; de novo; R.C. 3127; significant connection; default jurisdiction; custody. The juvenile court properly exercised jurisdiction over custody proceedings where no other proceedings were taking place in the jurisdiction of another court because the children are absent from California and there is no longer a parent living in California. California did not have jurisdiction under R.C. 3127.15(A)(1); Ohio had jurisdiction to resolve the custody dispute based on the state s significant connections. 101833 COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v HARVEY F. CAFFEY 101834 COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v HARVEY F. CAFFEY Affirmed and remanded. Eileen A. Gallagher, P.J., Tim McCormack, J., and Eileen T. Gallagher, J., concur. KEY WORDS: R.C. 2929.11; R.C. 2929.12; driving while under the influence; mitigating factors; consecutive sentences; R.C. 2929.14(C)(4); sentencing hearing; sentencing journal entry; nunc pro tunc Trial court complied with its obligations to consider the purposes and principles of sentencing and relevant statutory factors under R.C. 2929.11 and 2929.12 when sentencing defendant. Sentencing journal entries stated that trial court considered all required factors of the law and that court finds that prison is consistent with the purposes of R.C. 2929.11. Although trial court made findings required for the imposition of consecutive sentences under R.C. 2929.14(C)(4) on the record at the sentencing hearing, trial court failed to include those findings in sentencing journal entries. Sentences affirmed; case remanded to incorporate consecutive sentence findings made at sentencing hearing into trial court s sentencing journal entries.
Court of Appeals, Eighth Appellate District Page: 11 of 13 101967 JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: J.K.S. 101968 JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: J.K.S. Reversed and remanded. Frank D. Celebrezze, Jr., A.J., Larry A. Jones, Sr., J., and Tim McCormack, J., concur. KEY WORDS: Confinement credit; R.C. 2152.18(B); confinement. The trial court erred in denying appellant credit for time confined in a juvenile residential treatment facility where he was not free to come and go, but was subject to confinement. 101999 JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: Q.M., ET AL. 102001 JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: C.M. 102003 JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: D.M. 102004 JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: M.M. 102007 JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: A.M. 102008 JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: F.M. Affirmed Mary Eileen Kilbane, P.J., Tim McCormack, J., and Patricia A. Blackmon, J., concur. KEY WORDS: R.C. 2151.414(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. 2151.414(B).
Court of Appeals, Eighth Appellate District Page: 12 of 13 102020 COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v ALI TAYLOR Eileen A. Gallagher, P.J., Tim McCormack, J., and Eileen T. Gallagher, J., concur. KEY WORDS: Postconviction relief; ineffective assistance of appellate counsel; habeas corpus; R.C. 2953.21; R.C. 2953.23. Trial court lacked jurisdiction to consider defendant s untimely petition for postconviction relief. Defendant s arguments that his appellate counsel provided ineffective assistance of counsel in failing to advise him of the relevant statutory time limitations for challenging an infective assistance of trial counsel argument based on evidence outside the record via a petition for postconviction relief did not qualify as an exception to the timeliness requirements under R.C. 2953.23. His arguments that his appellate counsel was ineffective were not cognizable on an appeal from a petition for postconviction relief but rather needed to be pursued in accordance with App.R. 26(B). The court declined to follow the Sixth Circuit s decision in Gunner v. Welch, 749 F.3d 511 (6th Cir.2014) which held that for the purposes of habeas review Ohio appellate counsel is ineffective for failing to advise a defendant of postconviction time limitations because the application of Gunner would conflict with established Ohio Supreme Court authority regarding the right to counsel in postconviction proceedings and the appropriate avenue for pursuing claims of ineffective assistance of appellate counsel. 102032 COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO IN RE: Q.M. 102033 JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: C.M. 102034 JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: D.M. 102035 JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: M.M. 102036 JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: A.M. 102037 JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: F.M. Tim McCormack, J., Mary Eileen Kilbane, P.J., and Patricia Ann Blackmon, J., concur. KEY WORDS: R.C. 2151.414; permanent custody; clear and
Court of Appeals, Eighth Appellate District Page: 13 of 13 (Case 102037 continued) convincing evidence; best interest of the child. The trial court's determination under R.C. 2151.44 that permanent custody with the agency is in the best interest of the children was supported by clear and convincing evidence. 102179 COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO MADFAN INC., ET AL. v DINO MAKRIS, ET AL. Dismissed. Kathleen Ann Keough, J., Larry A. Jones, Sr., P.J., and Patricia Ann Blackmon, J., concur. KEY WORDS: Final, appealable order; damages; injunctive relief; multiple claims; jurisdiction. Appeal dismissed for lack of jurisdiction where trial court s judgment entry disposed of appellees claims for damages but did not address their claim for a permanent injunction.