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March 31, 2006

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

TOPICS:
- Real Property - Constitutional Law - Civil
- O.R.C. 2941.25 - Sentencing
- Evidence - Constitutional Law - Criminal Procedure
- Civil Miscellaneous
- Sentencing Guidelines
 

Ohio Supreme Court

 

No Opinions.
 

First District Court of Appeals

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Beneficial Ohio, Inc. v. Primero, LLC. (March 31, 2006) (2006-ohio-1566)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2006/2006-ohio-1566.pdf
-  The trial court erred when it entered judgment confirming the sheriff's sale of real property upon which the appellant held a second mortgage:  The appellant filed the underlying foreclosure action.  But the first mortgagee, when it alone moved for an order of sale, incurred an obligation to notify all parties to the lawsuit of the time, date, and place of the sale.  And its failure to so notify the appellant denied the appellant due process, exempted the appellant from the statutory bar to relief established by the entry confirming the sale, and provided a ground for vacating the sale.  In an appeal seeking reversal of a judgment confirming a sale of real property on the ground that the appellant had not been afforded notice of the sale, the court of appeals could not consider as a binding judicial admission appellant's counsel's statement in its brief suggesting that counsel had known of the sale before its confirmation:  The statement was unsupported by the record of the proceedings before the trial court, and an appellate court may review cases only on the basis of what occurred at the trial level as reflected in that record. Judgment REVERSED and Cause REMANDED.

State v. Foster (March 31, 2006) (2006-ohio-1567)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2006/2006-ohio-1567.pdf
-  Trafficking in heroin in violation of O.R.C. 2925.03(A)(2) and possession of heroin in violation of O.R.C. 2925.11 are not allied offenses of similar import, even when they stem from a single transaction involving the same type and quantity of drugs.  See State v. Rance (1999), 42 Ohio St.3d 632, 710 N.E.2d 699.  A reviewing court must vacate the defendant's prison sentence and remand for resentencing, when the defendant was sentenced under statutes held unconstitutional by the Ohio Supreme Court in State v. Foster, __ Ohio St.3d __, 2006-Ohio-856, __N.E.2d __. Sentence VACATED in Part and Cause REMANDED.

State v. Anderson (March 31, 2006) (2006-ohio-1568)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2006/2006-ohio-1568.pdf
-  The trial court properly dismissed a charge against the defendant of operating a motor vehicle with a prohibited breath-alcohol level:  The state had destroyed a videotape that the defendant had specifically moved to preserve, depicting matters disputed at the hearing on the defendant's motion to suppress his intoxilyzer results.  The videotape's destruction shifted the burden ordinarily imposed on the defendant, to show that requested evidence was materially exculpatory, to the state, to show that the evidence was only inculpatory.  And the state failed to meet its burden. Judgment AFFIRMED.

In Re: 1995 Mercedes C280, VIN WDBHA28E7SF216650, Seized From Oludayo Ashipa (March 31, 2006) (2006-ohio-1565)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2006/2006-ohio-1565.pdf
-  A person who disclaims any ownership interest in property may not challenge its forfeiture. Judgment AFFIRMED.
 

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

 

USA v. Hochschild  (March 31, 2006) (Appeal from N.D. Ohio)
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0113p-06.pdf
-  This case requires us to determine which of two U.S. Sentencing Guidelines applies to the offense of crossing a state line with the purpose of having sex with a minor, when both guidelines refer to attempting to have sex with a minor, but neither guideline refers to the particular crime of traveling in interstate commerce with the purpose of having sex with a minor. Only one of the two guidelines applies when the defendant attempted to have sex with a minor under 12 years of age (U.S.S.G. § 2A3.1). The other guideline can only apply to an attempt where the attempt was to have sex with a minor 12 years of age or older (§ 2A3.2). Because the defendant in this case concededly traveled interstate with the purpose of having sex with a minor under 12 years of age, the more appropriate guideline is § 2A3.1. Moreover, application of the specific offense characteristic of that guideline-that the offense involved a victim under 12-does not amount to impermissible "double counting," and is proper notwithstanding the fact that the prosecution arose from a sting that involved no actual child. The district court therefore properly calculated the guideline range in this case. However, we vacate defendant's sentence and remand for resentencing in light of the Supreme Court's remedial holding in United States v. Booker, 543 U.S. 220 (2005).

Pough v. USA  (March 31, 2006) (Appeal from N.D. Ohio)
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0114p-06.pdf
-  Lance Pough, a federal prisoner who first pled guilty to federal drug charges and later to a state murder charge, appeals the denial of his § 2255 motion to vacate his sentence. He contends that the two lawyers who represented him during the course of his plea proceedings in the district court, as well as his court-appointed appellate counsel on direct appeal, all rendered constitutionally ineffective assistance. Pough asserts that this entitles him to vacate his guilty plea or, at a minimum, to an evidentiary hearing. In response, the government maintains that none of the three lawyers performed deficiently, and that the district court should never have addressed the merits of Pough's case because his motion was untimely. For the reasons set forth below, we AFFIRM the judgment of the district court without reaching the government's argument as to timeliness.
 

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

 

*** Order ***

USA v. McClain (March 31, 2006) (Appeal from M.D. Tennessee)
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0115p-06.pdf
-  This matter comes before the court upon the petitions for rehearing, with suggestion for rehearing en banc, filed by the appellees, and the response of the appellant thereto. The petitions have been circulated not only to the original panel members but also to all other judges* of the court in regular active service, less than a majority of whom have voted in favor of rehearing en banc. Accordingly, the petitions have been returned to the panel for decision. Upon consideration of the petitions and the response the panel concludes that the issues raised therein were fully considered upon the original submission and decision of the case, and each of the requests for rehearing is therefore denied. In addition, Chief Judge Boggs has revised the penultimate paragraph of his opinion concurring with the decision of December 2, 2005, and copies of that decision and the revised concurrence are attached hereto.
 

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