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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Aug. 4 & 5, 2008

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

TOPICS:
- Use tax
- Adverse possession
- Taxation
- Appeal dismissed
- Unauthorized practice of law
- Attorneys - Misconduct
- Habeas Corps Relief / Sentencing / Mitigating Factors
- Petition for rehearing / Sentencing / Mentally retarded criminal
- Sentencing Range
- Municipal liability under 42 U.S.C. § 1983
- Sentencing / Evidence - mens rea element
 

Ohio Supreme Court

 

 Marc Glassman, Inc. v. Levin (Slip Opinion)(August 5, 2008)(2008-Ohio-3819)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-3819.pdf
-  Use tax * Services purchased by business were not electronic information services.
 
Evanich v. Bridge (Slip Opinion)(August 5, 2008)(2008-Ohio-3820)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-3820.pdf
-  Adverse possession * Nature of intent that shows possession to be adverse * The legal requirement that possession be adverse is satisfied by clear and convincing evidence that for 21 years, the claimant possessed the property and treated it as the claimant’s own * Judgment affirmed.
 
UBS Financial Servs., Inc. v. Levin (Slip Opinion)(August 5, 2008)(2008-Ohio-3821)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-3821.pdf
-  Taxation * Dealers-in-intangibles tax *Board of Tax Appeals had jurisdiction to consider appellant’s claims * Tax Commissioner correctly construed and applied the apportionment statute.
 
In re T.M. (Slip Opinion)(August 5, 2008)(2008-Ohio-3822)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-3822.pdf
-  Appeal dismissed as improvidently accepted.
 
Ohio State Bar Assn. v. Newburn (Slip Opinion)(August 5, 2008)(2008-Ohio-3823)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-3823.pdf
-  Unauthorized practice of law*Preparing documents for another purporting to create legal rights in real property -- Further violations enjoined* No civil penalty imposed.
 
Disciplinary Counsel v. Niermeyer (Slip Opinion)(August 5, 2008)(2008-Ohio-3824)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-3824.pdf
-  Attorneys * Misconduct * Engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation * Creating evidence when lawyer knows that the evidence is false * Suspension stayed upon condition.
 

First District Court of Appeals

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 No Opinions.
 

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

 

Van Hook v. Anderson (August 4, 2008)(Appeal from S.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0275p-06.pdf
-  This is an appeal in an Ohio death penalty case by the prisoner, Van Hook, seeking habeas corpus relief under 28 U.S.C. § 2254. Because we have decided that counsel offered constitutionally ineffective assistance to Van Hook at the sentencing phase of the trial, we will not decide, and we therefore pretermit the remaining issues. For the foregoing reasons, we reverse the decision of the district court and remand the case to the district court with instructions to issue a writ of habeas corpus vacating Van Hook’s death sentence unless the State conducts a new penalty phase proceeding within 180 days of remand.
 
Bies v. Bagley (August 5, 2008)(Appeal from S.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0279p-06.pdf
-  Bies was found guilty, by an Ohio jury, of kidnapping, attempted rape and murder. During the sentencing phase of his trial, Bies introduced the testimony of Dr. Donna Winter, a licensed clinical psychologist, who testified both that Petitioner has an IQ of 69, and that he possesses all the traits necessary for a clinical diagnosis of mental retardation. Dr. Winter’s testimony was corroborated by a letter from Dr. Myron S. Fridman, another licensed clinical psychologist who diagnosed Petitioner as a “marginally functioning, mildly mentally retarded man. . . .” Bies, 519 F.3d at 327. Nevertheless, the jury recommended the death sentence, and on October 30, 1992, the trial court accepted this recommendation. Bies appealed his sentence to the Ohio Court of Appeal, and eventually to the Ohio Supreme Court. Although both courts affirmed the death sentence, both courts also expressly held that Bies is mentally retarded, and the state supreme court explicitly credited Dr. Winter’s diagnosis in making this finding. See Bies, 658 N.E.2d at 761; State v. Bies, No. C-920841, 1994 WL 102196 at * 9 (Ohio Ct.App. March 30, 1994). On June 20, 2002, the Supreme Court decided Atkins v. Virginia, which held that mentally retarded individuals cannot constitutionally be executed. See 536 U.S. at 321. In light of Atkins, Bies challenged his death sentence in a habeas petition filed pursuant to 28 U.S.C. § 2254. After Bies exhausted his remedies in state court, the district court held that, under the Double Jeopardy Clause, the government could not relitigate the already-decided question of whether Bies is mentally retarded, and thus held that Atkins entitles Bies to a sentence other than death. Bies, 519 F.3d at 329. In a unanimous decision, a panel of this Court affirmed.
 

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

 

USA v. Bobby Curry (August 5, 2008)(Appeal from E.D. KY)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0276p-06.pdf
-  Bobby Curry, through counsel, appeals his 240-month sentence for various drug offenses. His appeal has been referred to a panel of this court pursuant to Rule 34(j)(1), Rules of the Sixth Circuit. Curry’s counsel has moved to withdraw, and has submitted a brief pursuant to Anders v. California, 386 U.S. 738 (1967). Counsel submitted two issues for review: (1) whether the district court should have departed downward to a greater extent; and (2) whether Curry’s sentence was reasonable. Curry was notified of his right to respond, but no response has been received by the court. Upon consideration, we grant counsel’s motion to withdraw and affirm Curry’s sentence.
 
Ford v. Grand Traverse (August 5, 2008)(Appeal from W.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0277p-06.pdf
-  On a Sunday morning in January of 2003, Amy Lynn Ford, a self-described recovering alcoholic who also suffers from epilepsy, was arrested on a probation violation and taken to the Grand Traverse County Jail in Traverse City, Michigan. That afternoon, Ford had a seizure, fell from the top bunk of a bed in her cell, and sustained significant injuries to her right hip and right clavicle. Ford subsequently brought suit against a number of jail officials and the County of Grand Traverse (collectively referred to as the defendants). She claimed that the officials had exhibited deliberate indifference to her serious medical needs in violation of her constitutional rights under the Eighth and Fourteenth Amendments to the U.S. Constitution. Ford also contended that the County’s policy or custom regarding the provision of medical care at the jail on weekends reflected deliberate indifference to her serious medical needs and had caused her injuries. Her case proceeded to trial. The jury found that none of the jail officials were deliberately indifferent to Ford’s serious medical needs, but determined that the County’s policy regarding weekend medical care exhibited deliberate indifference to and was the proximate cause of Ford’s injuries. It awarded her $214,000 in damages. After the verdict was returned, the County brought two motions for judgment as a matter of law. The district court denied both motions. For the reasons set forth below, we AFFIRM the judgment of the district court.
 
USA v. Fekete (August 5, 2008)(Appeal from E.D. TN)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0278p-06.pdf
-  A jury found Stephan Fekete guilty on two counts of carjacking, on two counts of brandishing a firearm in relation to a carjacking, and on one count of conspiracy to commit multiple carjacking offenses. He is contesting on appeal (1) the sufficiency of the evidence as to the mens rea element of intent to cause death or serious bodily harm regarding one of the carjacking offenses, (2) the related offense of brandishing a firearm during that same carjacking, and (3) the district court’s decision to count the two carjackings as separate convictions for sentencing purposes. Although there was no evidence of physical touching, no explicit threat of harm, and no direct evidence that Fekete’s gun was loaded, we nonetheless conclude that a rational trier of fact could find beyond a reasonable doubt that Fekete had the conditional intent to cause death or serious bodily harm during the disputed carjacking. We also conclude that the district court did not err in treating the two carjacking convictions as separate offenses for sentencing purposes. We therefore AFFIRM the judgment of the district court.