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Feb. 15, 2006

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

TOPICS:
- Attorneys * Misconduct: dishonesty, deceit, fraud, or misrepresentation
- Attorneys * Misconduct: IOLTA account
- Domestic violence
- Jurisdiction - wage-loss compensation
- Sentencing
- Withdraw as counsel - Frivolous appeal
- Legal malpractice
- Ineffective assistance
- Adjudication as a sexual predator
- Contracts
- State-created danger
- Ohio common-law claim
- Bankruptcy - chapter 7 relief
- Sentencing Guidelines
 

Ohio Supreme Court

 

Columbus Bar Assn. v. Smith (February 15, 2006) (2006-Ohio-413)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-413.pdf
-  Attorneys * Misconduct * Engaging in conduct prejudicial to administration of justice * Engaging in conduct adversely reflecting on fitness to practice law * Engaging in conduct involving dishonesty, deceit, fraud, or misrepresentation * Failing to cooperate in disciplinary proceeding * Failure to promptly deliver client funds * Failure to maintain complete records of accounts * Engaging in conduct that damages a client * Permanent disbarment.
 
Disciplinary Counsel v. Croushore (February 15, 2006) (2006-Ohio-412)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-412.pdf
-  Croushore violated two provisions of the Code of Professional Responsibility. He acknowledged that his actions violated DR 0-102(A) (requiring a lawyer to maintain client funds in a separate, identifiable bank account) and 9-102(B)(3) (requiring a lawyer to maintain complete records of all client funds and to render appropriate accounts regarding them). Respondent is suspended from the practice of law for 12 months with the entire suspension stayed on condition.

 

First District Court of Appeals

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*** Judgment Entries ***
 
State v. Escobar (February 15, 2006)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-040497.pdf
-  Escobar was convicted of domestic violence in violation of R.C. 2919.25(A). This statute provides that "[n]o person shall knowingly cause or attempt to cause physical harm to a family or household member." She argues that the trial court erred in not granting her Crim.R. 29(a) motion for acquittal at the close of the state's case, and that her conviction was based on insufficient evidence and was against the manifest weight of the evidence.  Judgment AFFIRMED.
 
Brown v. Industrial Commission of Ohio, et al. (February 15, 2006)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-040591.pdf
-  Brown was injured in the course of his employment with defendant Comprehensive Janitorial Services. Brown's claim for workers' compensation benefits was allowed. Subsequently, Brown filed a motion for wage-loss compensation, which the hearing officer denied. The Industrial Commission refused Brown's appeal. Brown filed an appeal in the Hamilton County Court of Common Pleas. Following a merit hearing attended only by Brown, the trial court dismissed the appeal, holding that Brown had not submitted sufficient evidence to support a reversal of the administrative decision. Brown has appealed, essentially alleging that the trial court's decision dismissing his appeal was contrary to law. the trial court had no jurisdiction under R.C. 4123.512 to hear Brown's appeal. Judgment AFFIRMED.
 
State v. Baltomore (February 15, 2006)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-050032.pdf
-  Baltomore was convicted for burglary, aggravated robbery with an accompanying gun specification, robbery, failure to comply with an order or signal of a police officer, two counts of receiving stolen property, and having a weapon while under a disability. Baltomore contends that his oral and written statements to police were involuntarily given. Baltomore argues that the trial court erred by imposing non-minimum and consecutive prison terms without making the required statutory findings. The court vacates the imposition of non-minimum sentences for the receiving-stolen-property offenses and modify Baltomore's sentence on each of those counts to a six-month prison term. As those terms were ordered to be served concurrently with the other terms, Baltomore's aggregate prison term, although modified, remains seven years.
 
State v. Slaton (February 15, 2006)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-050047.pdf
-  Slaton appeals his conviction for one count of unlawful sexual conduct with a minor, in violation of R.C. 2907.04(A), and the trial court's adjudication that he is a sexually-oriented offender. Counsel now requests that this court independently examine the record to determine whether the appeal is wholly frivolous.  Judgment AFFIRMED.
 
Clark, et al. v. Anninos (February 15, 2006)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-050087.pdf
-  Anninos, appeals the judgment on the pleadings entered by the Hamilton County Court of Common Pleas in favor of plaintiffs-appellees, Monica Clark and Matthew B. Clark, in a legal-malpractice action. Anninos now argues that the trial court erred in granting the motion for judgment on the pleadings. We find no error in the trial court's judgment. Because Anninos failed to file an answer to the amended complaint, the trial court had before it only the allegations in the complaint. Those allegations were sufficient to establish legal malpractice on the part of Anninos, thus entitling the Clarks to judgment in their favor.
 
State v. Bennett (February 15, 2006)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-050230.pdf
-  Bennett convicted of having weapons while under a disability in violation of R.C. 2923.13(A)(2) and having  possession of cocaine in violation of R.C. 2925.11(A).  He contends he received ineffective assistance of trial counsel, the state failed to prove a prior conviction of prison term, and his pleas were not knowingly and voluntarily made. Judgment AFFIRMED.
 
State v. Dirr (February 15, 2006)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-050235.pdf
-  Dirr appeals his adjudication as a sexual predator pursuant to R.C. Chapter 2950. Dirr argues that the state failed to prove by clear and convincing evidence that he is likely to engage in the future in one or more sexually-oriented crimes. After a review of the record, we affirm the trial court's judgment.
 
State v. Jeffries (February 15, 2006)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-050246.pdf
-  Jefferies was charged with driving under suspension; he tested positive for marijuana use on five occasion and refused to submit to testing on five separate occasions; he failed to maintain employment; he failed to pay any of the outstanding balance on his child support; he failed to notify the probation department of his change of address; he failed to pay any of his court-imposed financial obligations; and he failed to attend several appointments scheduled by the probation department. As a result of these violations, the trial court imposed seventeen months' imprisonment. Jefferies has appealed from this sentence, arguing that the trial court erred in imposing more than a minimum sentence. Finding no merit in Jefferies's argument, we affirm.
 
Nix, et al. v. Rookwood Construction & Development, LLC. (February 15, 2006)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-050389.pdf
-  Nixes entered into a contract with Rookwood for the purchase of a newly constructed house. After the parties had closed on the sale, the Nixes filed a lawsuit alleging defects in the construction of the home. Rookwood filed a motion to stay the proceedings pending arbitration, and the trial court denied the motion. Rookwood now argues that the trial court erred in refusing to stay the proceedings and to refer the dispute to arbitration. Judgment AFFIRMED.t
 

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

 

May v. Franklin Cnty Comm  (February 15, 2006) (Appeal from S.D. of Ohio)
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0062p-06.pdf
-  Deborah Kirk ("Kirk") was murdered by her boyfriend Marvin Moss ("Moss") in the early morning hours of August 14, 1998. During the conflict with Moss that culminated in her death, Kirk telephoned 911 three times, each time reaching one of the appellees in the Franklin County Communication Center ("Comm Center"). After Kirk's second call, appellees dispatched a police cruiser to her residence. The police officer who arrived at the scene did not hear any signs of a dispute within Kirk's apartment. When neighbors told the officer that they were not aware of any conflict inside the apartment, the officer cleared the call and left the scene. Unbeknownst to the officer, Moss was restraining Kirk inside the apartment, and their conflict continued after the officer left, with Moss eventually killing Kirk. Appellant Phyllis May, the administratrix of Kirk's estate, filed suit in state court against, among others, appellees Franklin County, Franklin County Board of Commissioners, Sheriff Jim Karnes, Sgt. Earl Taylor, and Communications Technician ("Comm Tech") Marino A. Susi (referred to collectively as "Franklin County"). May's suit alleged a violation of 42 U.S.C. § 1983 as well as a wrongful death claim under Ohio law, and the case was removed to federal court. Advancing the "state-created danger" theory of state liability for private violence, May argued that the arrival and departure of the police without intervening in the conflict increased the risk of harm to Kirk, thereby violating her substantive due process rights. After discovery, appellees moved for summary judgment on all claims. The district court granted summary judgment on the federal claim, and remanded May's state-law claim to Ohio state court. Because we conclude that May has not produced evidence to show that Franklin County created or increased the risk that Kirk would be harmed, we AFFIRM the judgment of the district court.
 
Eastman v. Marine Mechanical  (February 15, 2006) (Appeal from N.D. of Ohio)
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0064p-06.pdf
-  Plaintiff John Eastman appeals from the decision of the district court granting the defendant's motion for summary judgment on an Ohio common-law claim of retaliatory employment discharge in violation of public policy. The complaint, originally filed in an Ohio state court, identified federal law as the source of the public policy violated by the defendant, and it was on that basis that the defendant claimed in its removal notice that the case "[arose] under the Constitution, treaties or laws of the United States," 28 U.S.C. §§ 1331, 1441(b), and thus was "removable without regard to the citizenship or residence of the parties." 28 U.S.C. § 1441(b). We hold, however, that the plaintiff's state-law employment claim alleging wrongful discharge in violation of federal public policy does not raise a substantial federal question over which federal courts may exercise original or removal jurisdiction, because accepting such cases would be "[in]consistent with congressional judgment about the sound division of labor between state and federal courts governing the application of § 1331." Grable & Sons Metal Prod., Inc. v. Darue Eng'g & Mfg., 545 U.S. __, 125 S. Ct. 2363, 2367 (2005). Because we find that the district court did not have subject matter jurisdiction to adjudicate the claim, we will vacate the district court's judgment and remand with instructions to remand the matter to the state court whence it came.
 
In re: Marketing v.  (February 15, 2006) (Appeal from N.D. of Ohio)
-  http://www.ca6.uscourts.gov/opinions.pdf/06b0001p-06.pdf
-  Involuntary debtor, Marketing and Creative Solutions, Inc. ("MACS"), appeals the bankruptcy court order granting chapter 7 relief to the petitioning creditors, Scripps Howard Broadcasting Co., d/b/a WEWS NewsChannel5 ("WEWS"); Plain Dealer Publishing Co., d/b/a The Plain Dealer ("PDP"); and WKYC-TV, Inc., d/b/a, WKYC-TV3 ("WKYC") (collectively, "Petitioning Creditors"). Judgment AFFIRMED.
 

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

 

USA v. Katzopoulos   (February 15, 2006) 2006) (Appeal from M.D. of Tennessee)
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0063p-06.pdf
-  Pursuant to a written plea agreement, Anastasios Katzopoulos pled guilty to ten counts of mail fraud and conspiracy to commit wire fraud for his involvement in an internet auction scheme. At the time of the plea agreement, the Federal Sentencing Guidelines constitutionality was in question as the Supreme Court had not decided United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The uncertain legal landscape caused the parties to enter into an agreement which required the district court to determine whether the Sentencing Guidelines were constitutional in light of Blakely v. Washington, 542 U.S. 596 (2004). If the district court found the Sentencing Guidelines to be unconstitutional, then Katzopoulos would waive his right to have a jury determine the enhancements and allow the district court to determine whether the enhancements existed beyond a reasonable doubt. At sentencing, the district court, over defense objections on grounds of both hearsay and a violation of his Sixth Amendment right to confrontation, admitted the hearsay testimony offered by the government's sole witness at the hearing, United States Postal Inspector Jill Gregg. Relying in part on her testimony, the district court found that two sentencing enhancements applied: (1) the value of loss to the victims exceeded $200,000; and (2) that the number of victims exceeded fifty. Following the Sixth Circuit precedent at the time, the district court held the mandatory application of the Sentencing Guidelines to be constitutional and imposed a thirty-three month sentence with three years' supervised release under the mandatory Sentencing Guidelines regime. Alternatively, the district court made a factual finding that the sentence enhancements were proven by the government beyond a reasonable doubt and therefore imposed an identical, alternative sentence as if the Guidelines were unconstitutional. Petitioner now challenges his sentence on direct appeal. Katzopolous contends that the district court erroneously enhanced his sentence by impermissibly relying on hearsay evidence in violation of his Sixth Amendment right to confrontation articulated in Crawford v. Washington, 541 U.S. 36 (2004). Katzopoulos also argues that the district court improperly enhanced his sentence in violation of his Sixth Amendment rights by relying on sentencing factors, not charged, admitted in open court or proven by the government beyond a reasonable doubt. For the reasons set forth below, we affirm Katzopoulos' sentence.

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