Daily Case Update Archive

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March 18-21, 2008

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

TOPICS:
- Taxation / Real Property
- Unauthorized practice of law
- Writ of mandamus / Court fines / income
- Workers’ compensation
- Attorneys / Misconduct
- Criminal law / Sentencing
- Jury Instructions / structural error / plain-error
- Sentencing / Post-Release control
- Frivolous Appeal
- Ineffective counsel / Prosecutorial misconduct / Sentencing
- Civil forfeiture of property
- Lack of Personal Jurisdiction
- Motion in limine / Testimony
- Evidence / Reasonable suspicion
- Postrelease-control requirements
- Real Property
- Autos / Criminal / Search & Seizure
- Negigence / slip & Fall
- Labor Management Relations Act
- Bankruptcy / Denial of the Debtor’s discharge
- Civil Rights Act / § 1983 Disparate Treatment Claim
- Immigration / Petition for review / Child Status Protection Act
- Relief for third-party spoliation of evidence
- Qualified immunity
 

Ohio Supreme Court

 

Toledo v. Levin (March 19, 2008)(2008-Ohio-1119)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-1119.pdf
-  Taxation * Exemption and remission of property taxes * R.C. 5715.27 * “Tax year” is the year in which the real property tax is levied and assessed.
 
State ex rel. Brooks v. O'Malley (March 19, 2008)(2008-Ohio-1118)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-1118.pdf
-  Unauthorized practice of law*Custody of children*Complaint alleging neglect and dependency filed by nonattorney employee of children’s services agency*Jurisdiction*Writ of prohibition denied.
 
State ex rel. Turner v. Eberlin (March 19, 2008) (2008-Ohio-1117)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-1117.pdf
-  Mandamus * Prisoners * Ohio Adm.Code 5120-5-03(E) * Department of Rehabilitation and Correction * Attachment by department of cash gifts to prisoner to pay outstanding common pleas court judgment * Gifts are “income” within meaning of rule * Department’s attachment authorized by rule * Writ denied.
 
State ex rel. Airborne Freight Corp. v. Indus. Comm. (March 19, 2008) (2008-Ohio-1116)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-1116.pdf
-  Workers’ compensation * Industrial Commission * Allowed conditions * Sufficiency of the evidence * Judgment affirmed.
 
Cuyahoga Cty. Bar Assn. v. Wagner (March 20, 2008) (2008-Ohio-1200)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-1200.pdf
-  Attorneys at law * Misconduct * Disbarment.
 
Toledo Bar Assn. v. Lowden (March 20, 2008) (2008-Ohio-1199)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-1199.pdf
-  Attorneys at law * Misconduct * Failure to promptly pay funds to client * Neglect of an entrusted legal matter * One-year suspension.
 
Columbus Bar Assn. v. Willette (March 20, 2008)(2008-Ohio-1198)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-1198.pdf
-  Attorneys * Misconduct * Marketing and preparation of living trusts * Engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation * Sharing legal fees with a nonlawyer * Improperly using an organization to promote lawyer’s services * One-year suspension, with six months stayed.
 
State v. Simpkins (March 20, 2008) (2008-Ohio-1197)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-1197.pdf
-  Criminal law*Sentencing*Mandatory postrelease control omitted from sentencing judgment*Resentencing upheld although original sentence nearly completed.
 
Butler Cty. Bar Assn. v. Williamson (March 20, 2008) (2008-Ohio-1196)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-1196.pdf
-  Attorneys * Misconduct * Conduct prejudicial to the administration of justice * Conduct adversely reflecting on fitness to practice law * Engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation * Neglecting entrusted legal matter -- Failure to cooperate in a disciplinary investigation * Indefinite suspension.
 
State v. Wamsley (March 20, 2008) (2008-Ohio-1195)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-1195.pdf
-  Appellate review * Failure to instruct jury on culpable mental state of charged offense, not objected to by defense * Standard of review * Plain-error analysis is proper standard * Automatic reversal under “structural error” analysis inappropriate.
 

First District Court of Appeals

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*** Judgment Entries ***
 
State of Ohio vs. Donte Royles (March 19, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070018_03192008.pdf
-  Royles was found guilty by a jury of murder. He was sentenced to a mandatory term of 15 years to life in prison. The trial court informed Royles about post-release control and made the possibility of post-release control part of the sentence. He alleges that the trial court erred (1) in overruling his Batson challenge, (2) in admitting into evidence gruesome photographs of the deceased victim, (3) in imposing a period of post-release control as part of his sentence for murder, (4)  prosecutorial misconduct, (5) in overruling Royles’s Crim.R. 29 motion for an acquittal and that his conviction was based upon insufficient evidence, and (6) that his conviction was against the manifest weight of the evidence. Royles's sentence imposing post-release control is vacated and judgment is AFFIRMED in all other respects.
 
State of Ohio vs. Hugo Romeo Lopez (March 19, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070125_03192008.pdf
-  Lopez appeals his convictions and sentences to a seven-year prison term for one count of rape and one count of aggravated burglary. Counsel now requests that this court independently examine the record to determine whether the appeal is wholly frivolous. Judgment AFFIRMED.
 
State of Ohio vs. Jack Brice (March 19, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070128_03192008.pdf
-  Brice pled guilty to two counts of felonious assault with accompanying firearm specifications, having a weapon under a disability with accompanying firearm specifications, and carrying a concealed weapon. The trial court imposed an agreed sentence of 20 years’ imprisonment. He argues that he received ineffective assistance from his trial counsel; that he did not enter his plea knowingly and voluntarily; that the prosecutor committed misconduct by using calculated methods to force Brice to enter a plea; that the trial court erred in denying his motion to suppress; and that the trial court erred in the imposition of sentence. Judgment AFFIRMED.
 
State of Ohio vs. Rashawn Reese (March 19, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070132_03192008.pdf
-  Reese pleaded guilty to robbery with a three-year gun specification. He was sentenced to four years in prison. Reese’s counsel now asks this court to conduct an independent review of the record to determine whether the proceedings below were free from prejudicial error. Appeal found to be frivolous and judgment AFFIRMED.
 
State of Ohio vs. Logan Brown (March 19, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070157_03192008.pdf
-  Brown appeals the Hamilton County Common Pleas Court’s judgment denying his motion to return forfeited property. He contends that the common pleas court erred in failing to make findings of fact and conclusions of law or to otherwise give its reasons for overruling his motion, and that the court erred in failing to find that the forfeiture constituted an unconstitutionally excessive fine or a due-process violation. Until its repeal in 2007, R.C. 2925.43 permitted the state to file a civil action seeking forfeiture of property related to a felony drug offense. Judgment AFFIRMED.
 
Christian Strike vs. Gary Stratton dba Stratton Motorsports (March 19, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070167_03192008.pdf
-  Stratton, d.b.a., Stratton Motorsports, appeals from the trial court’s denial of his motion to dismiss for lack of personal jurisdiction and from the court’s judgment for plaintiff-appellee Christian Strike on his claims for breach of an implied warranty of fitness and merchantability. Judgment AFFIRMED.
 
State of Ohio vs. Robert Smith (March 19, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070170_03192008.pdf
-  Smith pleaded guilty to one count of aggravated burglary, two counts of aggravated robbery, and one count of impersonating a peace officer. The trial imposed a seven-year prison sentence. Counsel now asks this court to conduct an independent review of the record to determine whether the proceedings below were free from prejudicial error. Appeal found to be frivolous and judgment AFFIRMED.
 
Elaine Williams and George W. Reynolds vs. Aaliyah R. Abdullah, et al. (March 19, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070355_03192008.pdf
-  Williams and Reynolds appeal from the trial court’s entry denying their motion in limine and granting the motion in limine and motion to dismiss of State Farm Mutual Automobile Insurance Co.. They argue (1) that the trial court erred in granting the portion of State Farm’s motion in limine that prohibited testimony concerning the cause and the aggravation of fibromyalgia and degenerative disc disease, and (2) that the trial court erred in prohibiting Williams’ treating physician and chiropractor from giving opinions on the aggravation of fibromyalgia and degenerative disc disease. Judgment AFFIRMED.
 
State of Ohio vs. Lamontica Petty (March 19, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070356_03192008.pdf
-  Petty was charged with theft. She pleaded guilty and was placed on five years’ community control. Petty violated her community control, and she was sentenced to 12 months’ incarceration. Counsel requests permission to withdraw and, as required by Anders, requests that this court independently examine the record to determine if the proceedings below were free of prejudicial error. Petty’s appeal is without merit and wholly frivolous. Judgment AFFRIMED.
 
State of Ohio vs. Marcus Berry (March 19, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070394_03192008.pdf
-  The trial court found Berry guilty of possession of marijuana and trafficking in marijuana and sentenced him to three years of community control. He argues the trial court erred in overruling his motion to suppress. Judgment AFFIRMED.
 
State of Ohio vs. James Beavers (March 19, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070403_03192008.pdf
-  Beavers was convicted of aggravated robbery, with a gun specification, and two counts of kidnapping and sentenced to nine years in prison. Prior to the expiration of his sentence, Beavers was returned to the trial court and resentenced. During that hearing, he was properly informed that he would be subject to five years of postrelease control. Beavers argues that H.B. No. 137 is unconstitutional because it violates the Ex Post Facto Clauses in Article II, Section 28 of the Ohio Constitution and Article 1, Section 10 of the United States Constitution. Judgment AFFIRMED.
 
*** Opinions ***
 
State of Ohio vs. Timothy Lee Booth (March 21, 2008)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2008/2008-ohio-1274.pdf
-  Belching alone during the 20-minute observation period prior to the taking of a breathalyzer test is insufficient to invalidate the test results; to justify the exclusion of the test results as evidence, there must be a showing that the defendant actually regurgitated some material during the observation period.
 
State of Ohio vs. Richard Baumgartner (March 21, 2008)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2008/2008-ohio-1275.pdf
-  The trial court properly overruled defendant’s motion to suppress evidence seized following a traffic stop: a reasonable person in defendant’s position would have understood that he was not in police custody as defined by Miranda v. Arizona, when the officer did not handcuff defendant, but asked him to stand behind his car and to perform field-sobriety tests. The trial court properly denied defendant’s motion to suppress breath-alcohol-test results because the state established that the test’s operator had substantially complied with administrative regulations: the operator properly performed a radio-frequency-interference check with a radio normally used by the law enforcement agency, consistent with Ohio Adm.Code 3701.53-04(A)(1); and the operator retained the instrument-check solution container with the solution while the solution was in use by the law enforcement agency, consistent with Ohio Adm.Code 3701.53-04(C).
 
Jeffrey B. Gall vs. The Mariemont Windsor Square Condominium Association, et al. (March 21, 2008)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2008/2008-ohio-1276.pdf
-  A condominium association could not use a provision for clerical and factual errors to amend the condominium’s declaration by altering several units’ par value and percentage interest in the common areas without a unanimous vote of the unit owners, when the president of the board of trustees testified that she did not understand how the par values in the declaration were determined and why some units’ par values were higher than similar units. A unit owner had standing to challenge the association’s unofficial decision to lower one unit’s par value and percentage interest in the common areas, as well as its amendment of the declaration to lower some units’ par value without a unanimous vote of the unit owners: even though the plaintiff’s par value did not change, all of the owners’ par values changed in relation to each other, and the total amount of funds available to maintain the common areas was lessened.
 
Theresa Primm vs. SchottCo Corp., et al. (March 21, 2008)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2008/2008-ohio-1273.pdf
-  In an action involving a slip and fall on an allegedly defective city sidewalk, summary judgment was properly entered for the property owner, when there was no evidence that it had created the alleged defect, and when a local ordinance concerning sidewalk maintenance did not otherwise impose liability. The trial court properly entered summary judgment for the city, when the plaintiff’s inability to identify what specifically she had tripped on prevented her from demonstrating the proximate cause of her injuries.
 

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

 

No Opinions.
 

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

 

Carter v. Burns (March 18, 2008) (Appeal from M.D. TN)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0114p-06.pdf
-  John E. Carter, a Tennessee prisoner proceeding pro se, appeals a district court judgment dismissing his civil rights action filed under 42 U.S.C. § 1983. This case has been referred to a panel of the court pursuant to Rule 34(j)(1), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a). The district court however correctly dismissed Carter’s as-applied challenge to the constitutionality of the Tennessee collateral review statutes as barred by the Rooker-Feldman doctrine. Carter’s alleged injury * that the Tennessee courts deprived him of judicial review and redress for his constitutional claims * is an injury from the prior state-court determinations that his constitutional claims were not cognizable or were otherwise barred. See Raymond v. Moyer, 501 F.3d 548, 551-52 (6th Cir. 2007). Accordingly, the district court lacked jurisdiction over Carter’s as-applied constitutional challenge under the Rooker-Feldman doctrine. Thus, the district court’s opinion is affirmed in part and vacated in part, and this case is remanded for further proceedings.
 
Noe v. PolyOne Corp (March 19, 2008) (Appeal from W.D. KY)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0115p-06.pdf
-  This is a retiree health benefits case, in which the court is asked to determine whether the parties to various labor agreements intended for retiree health benefits to vest such that any termination of those benefits constitutes a violation of § 301 of the Labor Management Relations Act (“LMRA”). The district court granted summary judgment for defendant-employer PolyOne Corp. after concluding that the labor agreements in question were unambiguous and established no intent to vest retiree health benefits. Having conducted a thorough review of the record and the applicable law, we arrive at a different conclusion and VACATE the district court’s judgment.
 
In re: Ralph Swegan v. (March 19, 2008) (Appeal from U.S. Bankruptcy Court - Youngstown)
-  http://www.ca6.uscourts.gov/opinions.pdf/08b0006p-06.pdf
-  Buckeye Retirement Co. (“Buckeye”) appeals the bankruptcy court’s order denying its motion for summary judgment and granting summary judgment in favor of the debtor Ralph Swegan (“Debtor”) on Buckeye’s complaint seeking an order denying the Debtor a discharge pursuant to 11 U.S.C. § 727(a)(2)(A). Because the Panel disagrees with the bankruptcy court’s restrictive application of “concealment” within the context of § 727(a)(2)(A) and determines that a genuine issue of material fact exists as to whether the Debtor had the requisite intent to “hinder, delay, or defraud” Buckeye in its collection efforts, the order granting the Debtor summary judgment will be reversed and the adversary proceeding remanded for trial.
 
Arendale v. Memphis Cty  (March 20, 2008) (Appeal from W.D. TN)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0116p-06.pdf
-  Plaintiff Michael Arendale is a white police officer employed by the Memphis Police Department. He appeals the district court’s grant of summary judgment in favor of Defendant City of Memphis (“The City”) in this civil rights suit brought under 42 U.S.C. §§ 1981 and 1983, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Tennessee Human Rights Act (“THRA”), Tenn. Code Ann. § 4-21-101 et seq. For the reasons that follow, the district court’s decision granting summary judgment in favor of the City is AFFIRMED.
 
USA v. Urrieta (March 20, 2008) (Appeal from M.D. TN)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0117p-06.pdf
-  Jose Eduardo Urrieta appeals the district court’s denial of his motion to suppress evidence. During a routine traffic stop, Deputy Sheriff Lee Young detained Urrieta beyond the time reasonably necessary to issue a citation, primarily because the officer mistakenly believed that Urrieta was not allowed to drive in Tennessee with a Mexican driver’s license. Deputy Young claims that, during the course of the traffic stop, he became suspicious that Urrieta was transporting drugs. Eventually Urrieta gave Deputy Young written consent to search his vehicle. The deputy discovered no drugs, but found three handguns and several fraudulent identification cards. Finding that Deputy Young had a reasonable suspicion to extend the detention and that Urrieta’s consent was voluntary, the district court denied Urrieta’s motion to suppress. For the reasons set forth below, we REVERSE the judgment of the district court.
 
Ahmed v. Mukasey (March 20, 2008) (Appeal from Immigration & Naturalization Service)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0118p-06.pdf
-  Petitioner Muhammad M. Mana Ahmed, a native and citizen of Yemen, seeks review of a final order of removal issued by the Board of Immigration Appeals, denying his motion to remand and affirming the determination of the Immigration Judge that he was ineligible for consideration of adjustment of status pursuant to the Child Status Protection Act of 2002 (“CSPA”), Pub. L. 107-208, 116 Stat 927. For the reasons stated below, we hold that the BIA abused its discretion by failing to address petitioner’s newly acquired evidence. Accordingly, we grant Ahmed’s petition for review, vacate the BIA’s removal order, and remand to the BIA for further proceedings consistent with this opinion.
 
Graham v. Mukasey (March 20, 2008) (Appeal from Immigration & Naturalization Service)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0119p-06.pdf
-  Petitioner Nicholas Antonio Graham is a citizen of Jamaica who entered the United States as a visitor, overstayed his visa, and was subsequently convicted in federal court on two counts of conspiracy to commit mail fraud. He now petitions for review of the final administrative order of removal based on his status as an alien convicted of an aggravated felony, under 8 U.S.C. § 1227(a)(2)(A)(iii). Graham contends that the expedited removal procedure to which he was subjected, pursuant to 8 U.S.C. § 1228(b), violated both his due process and his equal protection rights. We find no merit to these contentions and, therefore, deny the petition for review.
 
Adkins v. Wolever (March 21, 2008) (Appeal from W.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0120p-06.pdf
-  Kenneth Ray Adkins brought an action in federal court against Basil Wolever, a guard at the Ionia Maximum Correctional Facility in Ionia, Michigan. Adkins alleges that Wolever assaulted him in his cell and caused serious injuries. At trial, Adkins asked the district court for an instruction on the alleged spoliation of the film and photographic evidence of the alleged assault, which Adkins maintains was destroyed in contravention of prison policy. The district court denied the instruction, finding that Michigan law did not provide for a third-party spoliation sanction. Because the district court did not abuse its discretion under the present law of our Circuit, we AFFIRM the verdict, along with the hope that an en banc panel will change this law to recognize the power of the federal courts to order such sanctions in appropriate circumstances.
 
Dunlap v. TVA (March 21, 2008) (Appeal from M.D. TN)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0121p-06.pdf
-  David Dunlap brought suit under Title VII of the Civil Rights Act of 1964, alleging racial discrimination by the Tennessee Valley Authority. The district court found that Dunlap had been subjected to discrimination under both disparate treatment and disparate impact analyses, concluding that the TVA’s subjective hiring processes permitted racial bias against both Dunlap and other black job applicants. The TVA now appeals, arguing that the district court erred in each of these analyses. We find that although the district court was correct in finding disparate treatment, the proof was insufficient for a finding of disparate impact. We therefore AFFIRM on the disparate treatment claim, REVERSE on the disparate impact claim, and AFFIRM the court’s award of damages and fees.
 
King v. Ambs (March 21, 2008) (Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0122p-06.pdf
-  This is an appeal from summary judgment entered in favor of a police officer in a § 1983 action. Officer Kevin Ambs was questioning a third party, Nicholas Klein, when plaintiff Sean King told Klein not to speak to the officer. After King had twice told Klein not to talk to the officer, Officer Ambs threatened to arrest King if he said “one more word.” King told Klein a third time not to speak to the officer, at which point Officer Ambs arrested King. Relying on Houston v. Hill, 482 U.S. 451 (1987), King argues that the arrest violated his First and Fourth Amendment rights. Officer Ambs argues that the arrest did not violate the Constitution and that he is entitled to qualified immunity. The district court granted Officer Ambs’ motion for summary judgment and held that King’s interference with Officer Amb’s investigation provided probable cause for the arrest. We affirm the district court’s judgment.
 

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