Daily Case Update Archive

As a service to our members, we monitor opinions issued from the Ohio Supreme Court, the Ohio State First District Court of Appeals, and the United States Sixth Circuit Court of Appeals.  You can read the latest summaries or archived summaries from 2005 or 2006.

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Jan. 16th & 20th, 2009

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

TOPICS:
- Speedy Trial
- Automobiles / Criminal
- Criminal Rule 11 / Constitutional law
- Immigration and Nationality Act / Convention Against Torture
- Constitutionality / Jurisdiction / Abuse of Discretion
- Petition for rehearing en banc / Sentence / Evidence

Ohio Supreme Court

 

No Opinions.
 

First District Court of Appeals

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State v. Ford (Jan. 16, 2009)(2009-Ohio-146)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2009/2009-ohio-146.pdf
-  A defendant’s motion for discovery tolls the speedy-trial time, but the state must respond to the motion within a reasonable time; if the state takes an unreasonable amount of time to respond, the excess time must be charged against the state. Although a defendant’s motion to sever charges tolls the speedy-trial time, the trial court cannot take an unlimited amount of time to rule on the motion; after a reasonable amount of time has passed, the defendant’s speedy-trial time begins to run again. Affirmed in C-070571; Reversed and Appellant Discharged in C-070560.
 
State v. Breving (Jan. 16, 2009)(2009-Ohio-144)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2009/2009-ohio-144.pdf
-  The trial court did not err in denying the defendant’s motion to suppress the results of his breath test, when the calibration solution did not need to be refrigerated while it was “being used,” within the meaning of Ohio Adm.Code 3701-53-04(C), during the time it took to transport the solution to all five Cincinnati police districts and to calibrate the different Intoxilyzer machines. Judgment AFFIRMED.
 
Cincinnati v. Smith (Jan. 16, 2009)(2009-Ohio-143)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2009/2009-ohio-143.pdf
-  The trial court erred in accepting the defendant’s plea of no contest to solicitation: the plea was entered involuntarily after the defendant had expressed her intent to exercise her constitutional right to a jury trial, and the court vindictively responded by indicating that if the defendant chose to proceed with a jury trial, it would impose a significantly harsher penalty for a pending probation violation. Judgment Reversed and Cause Remanded.
 

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

 

No Opinions.
      

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

 

Shan Zhao v. Michael B. Mukasey (Jan. 16, 2009) (Appeal from Board of Immigration Appeals )
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0019p-06.pdf
-  Shan Sheng Zhao (Zhao) seeks review of the Board of Immigration Appeals’ (BIA) decision denying his applications for withholding of removal for fear of persecution pursuant to section 241(b)(3)(B) of the Immigration and Nationality Act (the Act or the INA), 8 U.S.C. § 1231(b)(3)(A),1 and for withholding of removal for fear of torture pursuant to Article 3 of the Convention Against Torture (CAT).2 Zhao argues that the BIA erred by: (1) adopting and affirming the Immigration Judge’s (IJ) finding that Zhao was not credible; and (2) denying Zhao’s applications for withholding of removal under the Act and the CAT. For the following reasons, we affirm the decision of the BIA.
 
Geoffrey Fieger v. Michigan Supreme Court (Jan. 20, 2009) (Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0020p-06.pdf
-  In the present case, Fieger and co-plaintiff Richard Steinberg, Fieger’s attorney, challenge the constitutionality of the disciplinary rules on facial grounds. The United States District Court for the Eastern District of Michigan held that the courtesy and civility provisions violate the First and Fourteenth Amendments to the United States Constitution because the rules are overly broad and vague and enjoined their enforcement. We vacate the judgment of the district court and remand with instructions to dismiss the complaint for lack of jurisdiction. We hold that Fieger and Steinberg lack standing because they have failed to demonstrate actual present harm or a significant possibility of future harm based on a single, stipulated reprimand; they have not articulated, with any degree of specificity, their intended speech and conduct; and they have not sufficiently established a threat of future sanction under the narrow construction of the challenged provisions applied by the Michigan Supreme Court. For these same reasons, we also hold that the district court abused its discretion in entering declaratory relief.
 
USA v. Bailey (Jan. 20, 2009) (Appeal from E.D. KY)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0021p-06.pdf
-  Defendant Terrell R. Bailey (“Bailey”) has submitted a petition for rehearing by the panel or, in the alternative, a petition for rehearing en banc, challenging our prior panel opinion upholding his convictions and sentences for possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1); possession of a firearm in furtherance of drug trafficking in violation of 18 U.S.C. § 924(c)(1)(A)(i); and being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). See United States v. Bailey, 510 F.3d 562 (6th Cir. 2007). We grant the petition for rehearing and amend the panel opinion to correct a factual mistake concerning which evidence had been admitted for the jury’s consideration regarding Bailey’s firearm convictions and thus may be reviewed on an insufficiency-of-the-evidence challenge. We also amend the opinion to reflect the legal consequences of correcting the prior opinion’s factual mistake. We adhere to our prior panel opinion, except for the opening paragraph and parts III.B., III.C., IV, and V. We VACATE parts III.B., III.C., IV, and V, and substitute the opinion below for those parts. We adopt by reference the following parts of our prior panel opinion: part I, discussing the factual and procedural background; part II, affirming the district court’s sentencing of Bailey as a career offender; the opening paragraph of part III, setting forth the standard for a sufficiency-of-the-evidence challenge; and part III.A., affirming Bailey’s conviction pursuant to 21 U.S.C. § 841(a)(1). In sum, we AFFIRM Bailey’s conviction under 21 U.S.C. § 841(a)(1), REVERSE his conviction under 18 U.S.C. § 924(c)(1)(A)(i), and REVERSE his conviction under 18 U.S.C. § 922(g)(1). We REMAND to the district court for further proceedings consistent with this opinion.
 

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