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May 26, 2006

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

TOPICS:
- Divorce
- Procedure/Rules - O.R.C. 2941.25
- Procedure/Rules - Appellate Review / Civil
- Civil Miscellaneous
- Homicide - Prosecutor - Constitutional Law / Criminal
- Postconviction - Procedure/Rules - Constitutional Law/ Criminal - Sentencing
- Probate - surviving spouse
- Negligence claims - duty of care
- Sentencing Guidelines
 

Ohio Supreme Court

 

No Opinion.
 

First District Court of Appeals

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Thompson v. Thompson (May 26, 2006) (2006-Ohio-2623)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2006/2006-ohio-2623.pdf
-  A trial court must have discretion to do what is equitable under the facts and circumstances of each divorce case.  There was no abuse of discretion in the division of the parties' marital property*retirement benefits and pensions earned during the marriage were properly considered marital assets in dividing the marital property.  While Social Security benefits themselves are not subject to division in a divorce proceeding, a trial court may consider the parties' future Social Security benefits when dividing marital assets. Because the wife failed to provide the court with any information about her income and living expenses, the court did not abuse its discretion in deciding that the husband should retain full control over a specific retirement account and his Social Security benefits. Judgment AFFIRMED.
 
State v. Ellison (May 26, 2006) (2006-Ohio-2620)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2006/2006-ohio-2620.pdf
-  The trial court did not abuse its discretion when it denied the defendant's motion to withdraw his guilty pleas:  the trial court thoroughly considered and addressed each of the applicable factors, and the record did not support that the defendant was rushed into making his pleas.  The record instead indicated that the defendant made his guilty pleas knowingly and intelligently, and that his trial counsel's performance was not deficient when she allowed him to plead guilty. Because the defendant's offenses of kidnapping and abduction had separate victims, the offenses were not allied offenses of similar import. Judgment AFFIRMED.
 
www.Headhunting.Org, LLC v. Logicalis, Inc. (May 26, 2006) (2006-Ohio-2619)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2006/2006-ohio-2619.pdf
-  There is no reversible error by a trial court in denying summary judgment where the movant subsequently loses at trial on the same issues raised in the summary judgment motion.  A manifest-weight-of-the-evidence claim in a civil case cannot be sustained on appeal, when the appellant fails to provide an adequate record of the trial court's proceedings, choosing to supply a partial transcript of only its own witnesses' testimony and excluding opening statements, all of the appellee's witnesses' testimony, and closing arguments.  Under these circumstances, the appellate court must presume regularity in the trial court's proceedings and affirm. Judgment AFFIRMED.
 
In re Poliksa (May 26, 2006) (2006-Ohio-2617)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2006/2006-ohio-2617.pdf
-  The trial court did not err in adjudicating a woman incompetent and appointing a guardian for her:  There was competent, credible evidence that the woman had debilitating multiple sclerosis, dementia, and organic mood disorder, which rendered her incapable of taking care of her person or her property*she was unable to walk, feed, dress, or bathe herself, and she was not capable of making decisions concerning medical treatment and diet.  Judgment AFFIRMED.
 
State v. Harriel (May 26, 2006) (2006-Ohio-2616)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2006/2006-ohio-2616.pdf
-  When the state presented credible evidence to show that the defendant acted with the specific intention to kill, a conviction for murder was supported by both the sufficiency and the weight of the evidence, and no error occurred in the denial of the defendant's Crim.R. 29 motion for an acquittal. A prosecutor should refrain from vouching for the credibility of a witness, but when there is no objection from defense counsel, a reviewing court cannot reverse absent plain error. A defendant's Sixth Amendment right to a jury trial is not violated when, in a bench trial, she is convicted of the offense charged in the indictment rather than a lesser-included offense. Judgment AFFIRMED.
 
State v. Peoples (May 26, 2006) (2006-Ohio-2614)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2006/2006-ohio-2614.pdf
-  The common pleas court properly overruled the defendant's "Motion to Modify Sentence":  The defendant's collateral challenge, in his no-name motion, to his counsel's competence in advising him to agree to his sentence was reviewable as a postconviction petition under O.R.C. 2953.21 et seq.; but the court had no jurisdiction to entertain his postconviction claim, when the defendant filed his motion after the time afforded under O.R.C. 2953.21(A)(2) had expired, and when he did not, as he could not, demonstrate that "but for" his trial counsel's incompetence in advising him to agree to the sentence, "no reasonable factfinder would have found [him] guilty of the offense[s] of which [he] was convicted."  See O.R.C. 2953.23(A)(1)(b). The common pleas court properly overruled the defendant's postconviction petition without an evidentiary hearing, when the court had no jurisdiction to entertain the petition. The common pleas court did not deny the defendant procedural due process when it failed to give him the fourteen days provided under Civ.R. 12(A)(2) to respond to the state's memorandum in opposition to the defendant's postconviction petition:  Postconviction proceedings under O.R.C. 2953.21 et seq. are civil in nature, but the rule provides time for a response to a "motion[]," not to a memorandum that merely brought to the court's attention the legal basis for dismissing the postconviction petition. The common pleas court did not deny the defendant procedural due process when it failed to give him the seven days provided under Loc.R. 14(B) of the Court of Common Pleas of Hamilton County to respond to the state's memorandum in opposition to the defendant's postconviction petition:  The state could not be said to have submitted its opposing memorandum in response to a "motion," as contemplated by the rule, and local rules are merely administrative and do not implicate constitutional rights. The common pleas court did not abuse its discretion when it overruled the defendant's Crim.R. 32.1 motion to withdraw his guilty pleas, because the defendant failed to demonstrate that the withdrawal of his pleas was necessary to correct a manifest injustice. The common pleas court did not abuse its discretion when it overruled the defendant's Crim.R. 32.1 motion to withdraw his guilty pleas without first conducting a hearing:  The defendant did not seek by his motion to withdraw his guilty pleas and proceed to trial; he instead sought modification of his sentences, relief that Crim.R. 32.1 does not afford.  Thus, the facts alleged in the motion, and accepted as true by the court, would not have required that the pleas be withdrawn. The common pleas court did not deny the defendant procedural due process when it failed to give him the fourteen days provided under Civ.R. 12(A)(2) to respond to the state's memorandum in opposition to the defendant's Crim.R. 32.1 motion to withdraw his guilty pleas, because the rule, by its terms, applies to "responses and motions" permitted in a civil action. The common pleas court did not deny the defendant procedural due process when it failed to give him the seven days provided under Loc.R. 14(B) of the Court of Common Pleas of Hamilton County to respond to the state's memorandum in opposition to the defendant's Crim.R. 32.1 motion to withdraw his guilty pleas, because local rules are merely administrative and do not implicate constitutional rights.
 

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

 

Dotson v. Wilkinson  (May 25, 2006) (Appeal from N.D. Ohio)
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0180p-06.pdf
-  ORDER
 

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

 

DaimlerChrys, et al v. Durden (May 26, 2006) (Appeal from E.D. Michigan)
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0181p-06.pdf
-  This appeal involves an interpleader action filed by a pension plan seeking a declaration of which of two claimants is decedent, Douglas Durden's surviving spouse. The district court granted summary judgment in favor of Rita Lorraine Marshall-Durden, finding that Rita is Douglas Durden's "surviving spouse" and is entitled to surviving spouse benefits. On appeal, the other claimant, Ann Durden, contends that the district court erred in applying Michigan substantive law to determine which claimant is the surviving spouse. She argues that Ohio law applies and that under Ohio law she is entitled to the benefits as the surviving spouse. For the following reasons, we conclude that Ohio law should have been applied and that under Ohio law Ann is the surviving spouse. Consequently, we reverse the decision of the district court.
 
Kessler v. Visteon Corp (May 26, 2006) (Appeal from E.D. Michigan)
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0182p-06.pdf
-  Howard H. Kessler and his wife, Jacqueline A. Kessler ("Kessler"), appeal the decision of the district court granting summary judgment to the defendant, Visteon Corporation ("Visteon"), on their negligence claims. While making a business visit to a Visteon plant, Kessler was struck by a forklift driven by a Visteon employee. He sought damages for injuries sustained in the accident and his wife presented claims for loss of consortium. The district court, applying Michigan law, found on summary judgment that Visteon did not owe Kessler a duty of care because of the open and obvious nature of the hazard. We reverse. The district court erroneously combined and dismissed two distinct allegations of unreasonable risk of harm when it dismissed the danger as open and obvious. We hold that 1) Visteon, through its employee, owed Kessler a duty of care to operate its machinery in a reasonably safe manner and 2) Kessler has raised a genuine issue of material fact as to whether the operation of a forklift in proximity to pedestrians on the loading dock that day is an open and obvious activity that presents special aspects of danger under Michigan law.
 
USA v. Buchanan (May 26, 2006) (Appeal from W.D. Tennessee)
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0183p-06.pdf
-  PER CURIAM. Paul Buchanan pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). After his sentencing hearing, the district court sentenced him to 77 months of incarceration and 3 years of supervised release. Buchanan appeals. Because the district court did not err in calculating his advisory sentence under the guidelines and because the sentence is a reasonable one, we affirm.
 

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