Daily Case Update Archive

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May 2, 2007

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

TOPICS:
- Discretionary appeal accepted
- Final, appealable order
- DNA testing
- Sentencing
- DNA-testing - exclusion result
- Effective Assistance Counsel - Insufficient Evidence - Journal Error
- Insufficient evidence - Sentencing
- Motion to suppress evidence
- Postconviction petition - evidentiary hearing - Jurisdiction
- Postconviction relief
- Evidence - witnesses - suggestive identification
- sentencing - Community Control - informed of violation
- Family and Medical Leave Act
- Securities and Exchange Act
 

Ohio Supreme Court

 

State v. Lather (may 2, 2007) (2007-Ohio-1793)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2007/2007-ohio-1793.pdf
-  Court of appeals’ judgment reversed and cause remanded for consideration of all remaining assignments of error. 2007-Ohio-1793
 
Doe v. Jesus A. Ramos, M.D., Inc. (May 2, 2007) (2007-Ohio-1792)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2007/2007-ohio-1792.pdf
-  Final, appealable order * Insurance * Court of appeals’ judgment reversed on the authority of Gehm v. Timberline Post & Frame. 
 
Uddin v. Embassy Suites Hotel  (May 2, 2007) (2007-Ohio-1791)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2007/2007-ohio-1791.pdf
-  Appeal dismissed as improvidently accepted.
 
State v. Sterling (May 2, 2007( (2007-Ohio-1790)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2007/2007-ohio-1790.pdf
-  Criminal law * DNA testing for convicted inmates * R.C. 2953.82(D) * Provision that prosecuting attorney’s disagreement with inmate’s request for DNA testing prevents any action by trial court on inmate’s filed request renders R.C. 2953.82(D) unconstitutional * R.C. 2953.82(D) severable. 
 
State v. Webb (May 2, 2007) (2007-Ohio-1789)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2007/2007-ohio-1789.pdf
-  Criminal law * Sentencing * Court of appeals’ judgment reversed and cause remanded for further proceedings consistent with State v. Saxon and State v. Evans. 
 
State v. Moore (May 2, 2007) (2007-Ohio-1788)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2007/2007-ohio-1788.pdf
-  Criminal law * Sentencing * Court of appeals’ judgment affirmed and cause remanded for resentencing in accordance with State v. Foster, State v. Mathis, State v. Saxon, and State v. Evans. 
 

First District Court of Appeals

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*** Judgment Entries ***
 
State v. Thomas (May 2, 2007)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-060355.pdf
-  Thomas presents on appeal a single assignment of error challenging the Hamilton County Common Pleas Court’s judgment rejecting his application for deoxyribonucleic-acid, or DNA, testing of evidence admitted at his trial. Judgment AFFIRMED.
 
State v. Moorer (May 2, 2007)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-060358.pdf
-  Moorer appeals his convictions for improper discharge of a firearm, carrying a concealed weapon, and having a weapon while under a disability. Moorer argues that he was denied the effective assistance of defense counsel, the court erred by permitting the prosecutor to make a prejudicial closing argument to the jury, his convictions were based upon insufficient evidence and were not supported by the manifest weight of the evidence, and the trial court erred by journalizing an incorrect judgment entry. Judgment AFFIRMED.
 
State v. Leonard (May 2, 2007)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-060383.pdf
-  Leonard was convicted of robbery, having weapons while under a disability, and possessing cocaine. He had been on community control five days when his community-control officer visited the apartment he was sharing with his two brothers. As a condition of his community control, Leonard was prohibited from owning, possessing, or carrying a firearm. The officer found a loaded shotgun in plain view in one of the bedrooms. The trial court found Leonard guilty of the community-control violation and sentenced him to seven years’ incarceration on the robbery charge. Leonard alleges that the trial court’s finding that he had violated the conditions of his community control were based upon insufficient evidence and were against the manifest weight of the evidence. He argues that the trial court erred by engaging in prohibited factfinding when sentencing Leonard. Judgment AFFIRMED.
 
State v. Marshall (May 2, 2007)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-060415.pdf
-  Following the trial court’s denial of his motion to suppress evidence, defendant-appellant Percy Marshall entered pleas of no contest to two counts of cocaine possession. The trial court convicted him of both offenses. In a single assignment of error, Marshall now argues that the trial court erred by denying his motion to suppress. Judgment AFFIRMED.
 
State v. Little (May 2, 2007)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-060431.pdf
-  Little presents a single assignment of error in which he challenges the Hamilton County Common Pleas Court’s judgment denying his postconviction petition without a hearing. Because Little failed to satisfy the time strictures of R.C. 2953.21 and the jurisdictional requirements of R.C. 2953.23, the common pleas court had no jurisdiction to entertain his tardy postconviction petition. And because the common pleas court had no jurisdiction to entertain Little’s petition, he was not entitled to an evidentiary hearing. Judgment AFFIRMED.
 
State v. Dunn (May 2, 2007)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-060477.pdf
-  Dunn appeals the Hamilton County Common Pleas Court’s judgment denying his petition for postconviction relief. The record before us does not demonstrate either that Dunn was unavoidably prevented from discovering the facts underlying his claims, or that his claims were predicated upon a new or retrospectively applicable federal or state right recognized by the United States Supreme Court since the time for filing a petition. We, therefore, conclude that the common pleas court properly declined to entertain Dunn’s petition. And because the court was without jurisdiction to entertain his petition, Dunn was not entitled to an evidentiary hearing. Judgment AFFIRMED.
 
State v. Jackson (May 2, 2007)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-060541.pdf
-  Jackson was convicted of robbery in violation of R.C. 2911.02(A)(2). He claims that the evidence presented in this case was insufficient to support a conviction and that the conviction was against the manifest weight of the evidence, the trial court erred in not granting two requests for a continuance to bring in witnesses for his case, and the identification procedure was unnecessarily suggestive under Neil v. Biggers in that he was in handcuffs in the back seat of the police car when he was presented to Hanne for identification. Judgment AFFIRMED.
 
State v. St. Clair (May 2, 2007)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-060564.pdf
-  Defendant-appellant, Deangelo St. Clair, pleaded guilty to and was convicted of aggravated burglary under R.C. 2911.11(A)(2), with an accompanying firearm specification, and aggravated robbery under R.C. 2911.01(A)(1). The trial court sentenced him to serve a total of ten years’ incarceration. Judgment AFFIRMED.
 
State v. Featherkile (May 2, 2007)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-060623.pdf
-  Featherkile was convicted of four counts of gross sexual imposition and sentenced to consecutive terms of imprisonment. We vacated the sentences and remanded the case for resentencing because the trial court had failed to inform Featherkile of the mandatory term of post-release control. On remand, the trial court reimposed the same sentences. Featherkile appealed, and we vacated the sentences and remanded the case for resentencing under State v. Foster. The trial court again imposed the same sentences. This appeal followed. Judgment AFFIRMED.
 
State v. Dickens (May 2, 2007)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-060664.pdf
-  Dickens pleaded guilty to seven counts of drug trafficking in violation of R.C. 2925.03(A)(1) and was sentenced to community control. Dickens now argues that the trial court should have granted his second motion to withdraw his guilty plea because he “was never notified of the specific prison term he would receive.” Judgment AFFIRMED.
    

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

 

Mutchler v. Dunlap Memorial Hosp (May 2, 2007) (Appeal from N.D. Ohio)
-  http://www.ca6.uscourts.gov/opinions.pdf/07a0154p-06.pdf
-  Plaintiff, Carla Mutchler, appeals the district court’s grant of summary judgment to Defendants, Dunlap Memorial Hospital and Kathy Loede, on her claim that Defendants violated the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601 et seq. Plaintiff’s appeal rests on two claims: first, that she met the “hours of service” requirement for purposes of FMLA eligibility; and second, that Defendants should be equitably estopped from denying her eligibility. For the reasons that follow, we AFFIRM.
 

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

 

Clemens Trust v. Morgan Stanley DW  (May 2, 2007) (Appeal from W.D. Tenn.)
-  http://www.ca6.uscourts.gov/opinions.pdf/07a0153p-06.pdf
-  The Robert N. Clemens Trust, Automobile Consumer Service Corporation, John D. Brandon, Jr., Pat F. Wakefield, and Marty D. Jackson (collectively the “Plaintiffs”) brought this class-action suit against Morgan Stanley DW, Inc. (“Morgan Stanley”). Plaintiffs allege that Morgan Stanley’s brokers recommended to Plaintiffs the purchase of unsuitable securities in violation of Section 10(b) of the Securities and Exchange Act of 1934, codified at 15 U.S.C. § 78j, and Rule 10b-5, codified at 17 C.F.R. § 240.10b-5. The Plaintiffs also brought statelaw claims against Morgan Stanley under Tenn. Code Ann. § 48-2-121(a), which parallels the language in Rule 10b-5, and Ala. Code § 8-6-19. The district court granted Morgan Stanley’s motion, under Rule 12(b)(6), to dismiss Plaintiffs’ complaint. For the following reasons, we AFFIRM the district court’s dismissal of Plaintiffs’ suit.
 

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