Daily Case Update Archive

As a service to our members, we monitor opinions issued from the Ohio Supreme Court, the Ohio State First District Court of Appeals, and the United States Sixth Circuit Court of Appeals.  You can read the latest summaries or archived summaries from 2005 , 2006 , 2007 , 2008 , 2009 , 2010 , 2011.

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December 6th, 7th and 8th, 2006

Ohio Supreme Court | Ohio First District | U.S. 6th Circuit - Ohio | U.S. 6th Circuit - Other States
 

TOPICS:
- Criminal law * Postrelease control
- Habeas Corpus
- Workers' compensation
- Corporate franchise tax
- Statute of limitations
- Cincinnati Municipal Code
- Motion for relief from judgment
- Appeal final verdict
- Attorney fees
- Evidentiary hearing motion
- Motion to vacate his plea.
- Procedure/Rules - Sex Offenses
- Postconviction
- Constitutional Law/Civil - Municipal - Civil Miscellaneous
- Constitutional Law/Crim. - Death Penalty - Postconviction
- Procedure/Rules - Constitutional Law/Crim. - Weapons - R.C.2941.25 - Sentencing
- Robbery - R.C.2941.25
- Assault
- Constitutional Violation in State Court
 

Ohio Supreme Court

 

State v. Holloway (Dec. 6, 2006) (2006-Ohio-6114)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-6114.pdf
-  Criminal law * Postrelease control * Court of appeals' judgment reversed on the authority of Watkins v. Collins.
 
Smith v. Leis (Dec. 6, 2006) (2006-Ohio-6113)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-6113.pdf
-  Habeas Corpus * Complaint moot when relator has been released from confinement, no substantial constitutional question or matter of great public or general interest exists, and there is no issue capable of repetition yet evading review.
 
State ex rel. Williams v. Coca-Cola Ents., Inc. (Dec. 6, 2006) (2006-Ohio-6112)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-6112.pdf
-  Workers' compensation * Voluntary retirement forecloses award of temporary total disability.
 
State ex rel. Cliff v. Auburndale Co. (Dec. 6, 2006) (2006-Ohio-6111)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-6111.pdf
-  Workers' compensation * Cause returned to Industrial Commission for further consideration * Conflict created when permanent total disability was awarded after temporary total disability was denied on basis that claimant voluntarily abandoned workforce.
 
Natl. City Bank v. Wilkins (Dec. 6, 2006) (2006-Ohio-6110)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-6110.pdf
-  Corporate franchise tax*R.C. 5733.056(B) and former R.C.5733.05(A)(4)*"Appreciation" construed.
 
Tomasik v. Tomasik (Dec. 6, 2006) (2006-Ohio-6109)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-6109.pdf
-  The statute of limitations for bringing a will contest set forth in the version of R.C. 2107.76 as amended by Sub.H.B. No. 85 applied only to those who were required under R.C. 2107.19 to receive notice of a will's admission to probate.
 
Cleveland Bar Assn. v. CompManagement, Inc. (Dec. 6, 2006) (2006-Ohio-6108)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-6108.pdf
-  Workers' compensation * Representation at hearings by nonlawyer * Third-party administrator may make actuarial determinations regarding settlement, act as a messenger for employer in regard to settlement, and file settlement applications without conducting unauthorized practice of law * Third-party administrator may properly communicate employer's areas of concern to hearing officer * When list of employer concerns is generated by employer, is not drafted to persuade or to advocate, and is stated as factual concern, third-party administrator may present those concerns to hearing officer without engaging in unauthorized practice of law. 
 
Cincinnati v. Baskin (Dec. 8, 2006)(2006-Ohio-6422)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-6422.pdf
-  Cincinnati Municipal Code 708-37, which prohibits the possession of any semiautomatic rifle with a firing capacity of more than ten rounds, is not in conflict with R.C. 2923.17(A) for purposes of Section 3, Article XVIII of the Ohio Constitution.
 

First District Court of Appeals

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*** Judgment Entries - Wednesday ***
 
State v. Patterson (Dec. 6, 2006)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-050057.pdf
-  Patterson was indicted for felonious assault on a peace officer and the accompanying firearm specifications, carrying a concealed weapon, and resisting arrest. Following a bench trial, Patterson was acquitted of two counts of felonious assault and the accompanying specifications. He was convicted of all other counts. Patterson was sentenced to an aggregate term of 11 years' incarceration. He has appealed. Patterson's sentences are vacated, and this case is remanded solely for resentencing pursuant to State v. Foster. The trial court's judgment is affirmed in all other respects.
 
State v. Asberry (Dec. 6, 2006)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-050182.pdf
-  Asberry appeals his conviction for aggravated murder and aggravated robbery. Judgment AFFIRMED.
 
Mitchell v. Walker (Dec. 6, 2006)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-050546.pdf
-  Mitchell filed a forcible-entry-and-detainer action for nonpayment of rent against his tenant, Walker. The magistrate issued a writ of restitution. Walker was physically evicted from the premises. Walker filed a Civ.R. 60(B) motion for relief from judgment. Mitchell did not respond to Walker's motion. The trial court overruled Walker's motion without holding a hearing. Walker's sole assignment of error alleges that the trial court erred in overruling her Civ.R. 60(B) motion without holding a hearing, because she had set forth sufficient operative facts to warrant relief. We hold that the trial court abused its discretion in failing to hold a hearing to resolve the factual issues before ruling on Walker's Civ.R. 60(B) motion. Judgment REVERSED and cause REMANDED for hearing.
 
State v. Oden (Dec. 6, 2006)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-050675.pdf
-  Oden was indicted for aggravated robbery and robbery. The trial court found Oden not guilty of aggravated robbery but guilty of robbery. The court entered a judgment of acquittal on the aggravated-robbery charge. The court convicted and sentenced Oden for the robbery. The state seeks to appeal the trial court's judgment acquitting Oden on the aggravated-robbery charge. Pursuant to R.C. 2945.67(A), the state may not appeal the final verdict in a criminal case. Because this court lacks jurisdiction to consider the state's appeal, it must be dismissed.
 
Lassiter v. Lassiter (Dec. 6, 2006)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-060032.pdf
-  Lassiter appeals the trial court's judgment regarding various motions. We reverse the trial court's judgment regarding the stay on enforcement of attorney fees in the amount of $7,136, and that stay order is, accordingly, lifted. In all other respects, the judgment of the trial court is affirmed.
 
Weaver v. Ohio Dept. of Job & Family Services (Dec. 6, 2006)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-060221.pdf
-  This appeal is based on plaintiff-appellee Kathlene Weaver's newly discovered evidence. We are convinced that res judicata does not bar Weaver's motion for an evidentiary hearing. Accordingly, the decision of the trial court granting Weaver's evidentiary hearing motion is affirmed.
 
State v. McNeil (Dec. 6, 2006)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-060389.pdf
-  McNeil appeals from the Hamilton County Common Pleas Court's judgment denying his Crim.R. 32.1 motion to withdraw his guilty plea. McNeil filed a Crim.R. 32.1 motion to withdraw his guilty plea. The common pleas court denied the motion, and this appeal followed. McNeil contended that his guilty plea had not been knowing or intelligent because the court had failed, as required by Crim.R. 11(C), to advise him that he was subject to post-release control. Judgment AFFIRMED.
 
*** Opinions - Friday ***
 
State v. Seay (Dec. 8, 2006)(2006-ohio-6454)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2006/2006-ohio-6454.pdf
-  The trial court did not abuse its discretion in denying the defendant's Crim.R. 32.1 presentence motion to withdraw his guilty plea: The defendant was represented by highly competent counsel who had negotiated a favorable plea bargain for two first-degree felonies; the trial court had complied with Crim.R. 11 when the defendant entered his plea, had conducted a full hearing on the Crim.R. 32.1 motion, and had given ample consideration to the withdrawal request; but the court was skeptical about the victim's new living arrangements with the defendant's mother and believed that there was pressure for the victim to state that she did not want to prosecute the defendant. The trial court did not err in classifying the defendant as a sexual predator: (1) The defendant had a prior conviction for a sexually oriented offense, corruption of a minor, for which he was a registered sexually oriented offender and on parole; (2) he had displayed cruelty towards the victim; and (3) he had a high risk of reoffending according to the Static-99 test. 
 
State v. Rogers (Dec. 8, 2006) (2006-Ohio-6453)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2006/2006-ohio-6453.pdf
-  An appeal from a judgment denying a postconviction petition must be dismissed when the judgment was not a final appealable order: The common pleas court failed to file findings of fact and conclusions of law, and the court's entry did not otherwise apprise the petitioner of the basis for the court's decision or facilitate meaningful appellate review. See R.C. 2953.21(C) and (G).
 
Cleveland Constr., Inc. v. Cincinnati (Dec. 8, 2006) (2006-Ohio-6452)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2006/2006-ohio-6452.pdf
-  A municipality's failure to follow the mandate of its own ordinance governing selection of a lowest and best bidder for a construction contract constituted an abuse of discretion that resulted in the deprivation of an unsuccessful bidder's property interest in the contract award. A municipality's small-business-enterprise program was subject to strict scrutiny where the program required documentation of a bidder's specific efforts to achieve the participation of minority subcontractors to the extent of their availability as predetermined by the municipality, and where the program thereby undeniably pressured bidders to implement racial preferences; and to the extent that the program's rules pressured bidders to hire women-owned subcontractors, the municipality was required to demonstrate an "exceedingly persuasive" justification for the gender-based preference. Where a disappointed bidder for a municipal construction contract successfully challenged the unconstitutional race- and gender-based provisions of the municipality's small-business-enterprise program, and where, as a result, the municipality would no longer be able to apply those provisions, the bidder was a prevailing party for purposes of Section 1988, Title 42, U.S.Code. The trial court erred by entering a directed verdict in favor of a municipality on a disappointed bidder's lost-profits claim brought pursuant to Section 1983, Title 42, U.S.Code, where a jury could have concluded that the bidder had established all the elements of its claim.
 
State v. Gumm (Dec. 8, 2006) (2006-Ohio-6451)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2006/2006-ohio-6451.pdf
-  The common pleas court properly granted the defendant's postconviction claim that because he was mentally retarded, his execution would violate the proscription against cruel and unusual punishment in the Eighth Amendment to the United States Constitution: The defendant's IQ scores over 70 gave rise to a presumption that he was not mentally retarded; but the record provided reliable, credible evidence to support the court's conclusion that he had overcome the presumption with proof by a preponderance of the evidence that, before the age of 18, he had manifested significantly subaverage intellectual functioning and significant limitations in the adaptive skills of functional academics, social/interpersonal relationships, self-direction, and self-care, and that those deficits had persisted into the present. [But, see, DISSENT: The trial court erred by using faulty statistical analysis and irrelevant testimony about the defendant's level of functioning 20 years earlier to improperly conclude that the defendant was presently mentally retarded; because the court's determination was not supported by reliable evidence, and because credible evidence, in fact, supported the conclusion that the defendant was not mentally retarded, his mental-retardation claim should not have allowed him to avoid the death penalty.] The common pleas court properly declined to entertain postconviction claims challenging the voluntary nature of the defendant's confession and his counsel's effectiveness: The claims, which sought relief from the defendant's 1992 conviction, were filed well beyond the time strictures established by R.C. 2953.21; and R.C. 2953.23 precluded the court from entertaining the claims because the record did not demonstrate that the defendant had been unavoidably prevented from discovering the facts underlying the claims, or that the claims were based upon a new or retrospectively applicable federal or state right recognized by the United States Supreme Court since the time for filing his petition had expired. The common pleas court properly declined to entertain a postconviction claim challenging the state's failure to disclose in discovery, before the defendant's murder trial, information developed by the police during their investigation: The claim, which sought relief from the defendant's 1992 conviction, was filed well beyond the time strictures established by R.C. 2953.21; and although the record showed that the defendant had been unavoidably prevented from discovering the facts underlying the claim, R.C. 2953.23 precluded the court from entertaining the claim, when the defendant had failed to satisfy the jurisdictional requirement of outcome-determinative constitutional error.
 
State v. Reid (Dec. 8, 2006) (2006-Ohio-6450)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2006/2006-ohio-6450.pdf
-  The trial court did not err when it refused to grant the defendant's motion for a change of venue: Even though all the potential jurors had heard about the case, there was no indication that the jurors could not be fair and impartial. Because the legislature has clearly indicated its intent to allow for cumulative punishments for having a weapon under a disability, specifications to such offenses do not violate the Double Jeopardy Clause. The trial court erred in allowing a specification to accompany a weapon-under-disability charge, where the specified offense was not a first- or second-degree felony; but because the improper specification was merged with one that was appropriate, there was no prejudice to the defendant. Based on the Ohio Supreme Court's decision in State v. Rance, felonious assault in violation of R.C. 2903.11(A)(1) and felonious assault in violation of R.C. 2903.11(A)(2) are not allied offenses of similar import, because the elements of the offenses do not correspond to such a degree that the commission of one will result in the commission of the other; the trial court therefore properly imposed multiple sentences even though each offense involved the same victim and arose from the same incident. Because the defendant's consecutive and maximum sentences were imposed under unconstitutional statutes, the sentences must be vacated, and the defendant must be resentenced.
 
State v. Johnson (Dec. 8, 2006) (2006-Ohio-6449)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2006/2006-ohio-6449.pdf
-  The defendant's convictions for aggravated robbery with a firearm specification and robbery were supported by sufficient evidence and were not against the manifest weight of the evidence. Aggravated robbery, in violation of R.C. 2911.01(A)(1), and robbery, in violation of R.C. 2911.02(A)(2), are not allied offenses of similar import, and the trial court did not err in entering separate convictions for these two offenses. The trial court erred in convicting the defendant on separate counts of robbery in violation of R.C. 2911.02(A)(2), where the defendant's threats of harm to two employees during the theft of money from a restaurant were made with the singular purpose of robbing the restaurant and were committed as part of one course of conduct.
 
State v. Walter (Dec. 8, 2006) (2006-Ohio-6448)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2006/2006-ohio-6448.pdf
-  Evidence showing that the defendant kicked the victim in the face, causing him to suffer a broken jaw and the loss of two teeth, because the victim had refused to give the defendant a cigarette earlier in the evening was sufficient to support the defendant's conviction for felonious assault under R.C. 2903.11(A)(1). Even if the trier of fact had believed the defendant's claim that he punched the victim in self-defense because he found the victim standing over him with his penis in his hand, the defendant, by his own admission, used more force than was reasonable under the circumstances; therefore, his conviction for felonious assault was not against the manifest weight of the evidence. 
 

U.S. Sixth Circuit Court of Appeals:  Ohio Cases

 

No Opinions.
 

U.S. Sixth Circuit Court of Appeals: Other States Cases

 

USA v. Morris (Dec. 7, 2006) (Appeal from E.D. Mich.)
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0453p-06.pdf
-  Defendant Richard Morris was charged in Michigan state court with three firearm and drug related charges. The investigation and prosecution of his alleged crimes was conducted through Project Safe Neighborhoods, a joint effort between the federal government and Michigan state authorities to address problems related to gun violence. Morris initially pled not guilty to charges brought in state court, at which point they were dropped. His case was then referred to the United States Attorney's office and he was eventually indicted in federal court. He subsequently filed a motion to "remand" to state court, on the basis that he was denied effective assistance of counsel in the state proceedings. After conducting two days of evidentiary hearings, the district court agreed that Morris was denied effective assistance of counsel, and granted his motion. The government now appeals.