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 or 2006.

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Jan. 11, 2006

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

TOPICS:
- Domestic relations - divorce - incompetent
- Procedure - filing affidavits
- Attorney Misconduct
- Real Property
- Manifest weight of evidence
- Sentencing guidelines
- illegal search
 

Ohio Supreme Court

State ex rel. Downs v. Panioto (January 11, 2006) (2006-ohio-8)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-8.pdf
-  Prohibition- Alternative writ defined - Final orders - Lack of jurisdiction over incompetent party alleged - Service of process on incompetent - Capacity of incompetent to sue for divorce - Adequate remedy in ordinary course of law - Writ denied.
 
State ex rel. Boylen v. Harmon (January 11, 2006) (2006-ohio-7)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-7.pdf
-  O.R.C. 2935.10 governs procedure for affidavits filed under O.R.C. 2935.09 - No conflict between O.R.C. 2935.10 and Crim. R. 4(A) in this case.
 
Columbus Bar Assn. v. Winkfield (January 11, 2006) (2006-ohio-6)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-6.pdf
-  Attorney at law - Misconduct - Practice law while license is under suspension - Conduct involving fraud, dishonesty, or misrepresentation - Intentionally damaging or prejudicing a client - Failure to deliver funds promptly to client - Failure to protect client's interests before withdrawing from representation - Failure to refund unearned fees upon withdrawal - Neglect of an entrusted legal matter - Intentional failure to complete contract of professional employment - Failure to promptly return client's property - Failure to cooperate in disciplinary proceedings - Illegal conduct involving moral turpitude - Illegal discrimination - Accepting employment with risk of conflict of interest - Charging excessive fees - Misappropriation from trust account - Mental illness as mitigation - Indefinite suspension.
 
Columbus Bar Assn. v. Ross (January 11, 2006) (2006-ohio-5)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-5.pdf
-  Attorneys at law - Misconduct - Failure to inform client of lack of liability insurance - Conflict of interest - Representation of clients allegedly involved in criminal activity together - Six-month stayed suspension.
 
Jaylin Investments, Inc. v. Moreland Hills (January 11, 2006) (2006-ohio-4)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-4.pdf
- Real property - Zoning - Restriction of residential lot size to two-acre minimum - Constitutionality of restriction as applied to deny proposed use of half-acre lots in residential subdivision -Test is whether owner has demonstrated beyond fair debate that restriction, as applied to proposed use, is arbitrary, unreasonable, and without substantial relation to public health, safety, and welfare.

First District Court of Appeals

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***Judgment Entries***
City of Cincinnati v. Brown (January 11, 2006)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-040717.pdf
-  Brown failed to comply with the city's orders to repair and clean his property in violation of the Cincinnati Municipal Code 1101-71.1. Brown argues that his conviction in against the manifest weight of the evidence. The city presented substantial testimony and pictorial exhibits that demonstrated that Brown's property was in violation of the city's building code and that he had failed to rectify those violations.  Judgment AFFIRMED.
 
State v. Carroll (January 11, 2006)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-050294.pdf
-  Carroll appeals his conviction for trafficking in marijuana, in violation of O.R.C. 2925.03(A)(2), a felony of the fifth degree. Carroll challenges the weight and the sufficiency of the evidence to support his conviction. Judgment AFFIRMED.

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

 

No Opinion.
 

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

USA v. Miller (January 11, 2005) (Appeal from E.D. Kentucky)
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0010p-06.pdf
-  In this sentencing appeal, we are asked to determine whether a sentence of probation under Georgia's first-offender drug sentencing scheme constitutes a "prior conviction for a felony drug offense [that] has become final," as provided in 21 U.S.C. § 841(b)(1)(A). The district court held that defendant Miller's Georgia conviction triggered application of § 841(b)(1)(A), the effect of which was to double the mandatory minimum sentence for his federal conviction under § 841(a) from ten years to 20 years. Miller appeals the sentencing order, conceding that the "deferred adjudication of guilt" entered in the Georgia case was a "prior conviction for a felony drug offense," but contending that the Georgia conviction never became "final" and was therefore not properly considered in calculating his sentence in this case.1 Because we find no error in the sentencing order, we affirm the district court's judgment.
 
USA v. Buckingham (January 11, 2005) (Appeal from W.D. Tennessee)
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0011p-06.pdf
-  James Anderson Buckingham appeals his conviction and sentence for possession of a firearm by a convicted felon. Buckingham contends that the district court (1) erred in denying his motion to suppress evidence as the fruit of an illegal search and (2) plainly erred in assuming the mandatory nature of the United States Sentencing Guidelines. We agree that the district court erred in upholding the contested search without addressing Buckingham's argument that the search could not be premised on his initial, oral consent because he withdrew that consent. See Painter v. Robertson, 185 F.3d 557, 567 (6th Cir. 1999) ("[T]he consenting party . . . at any moment may retract his consent."). We further conclude that the record on appeal is insufficient to affirm the district court decision on the alternative theory (not addressed by the district court) that Buckingham's subsequent, written consent was valid (i.e., voluntary and unequivocal). See United States v. Worley, 193 F.3d 380, 385-86 (6th Cir. 1999) (requiring proof by "clear and positive testimony" that the asserted consent was "voluntary" and "unequivocally, specifically, and intelligently given") (quotation marks omitted). Accordingly, we vacate Buckingham's conviction and remand to the district court for reconsideration of the motion to suppress in light of this opinion. Because we vacate his conviction, we do not reach Buckingham's arguments regarding his sentence; we anticipate that if he is found guilty in the remanded proceeding, the trial court will re-sentence him ab initio.

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