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. 26th - 30th, 2009

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

TOPICS:
- Workers' compensation
- Motion to reconsider discretionary appeal
- Discretionary appeal / Civil procedure / Medical claims
- Appeal improvidently accepted
- Writ of habeas corpus
- Attorney misconduct
- Attorneys / Character and fitness
- Judges and attorneys / Misconduct
- Negligence / Duty of Care / Automobile / Pedestrians
- Anders v. California/ Meritorious appeal
- Sentencing excessive / Lack of Jurisdiction
- Personal Injury / Evidence / Witness / Trial / Procedures
- Obstructing police
- IRS / Estate tax return / Valuation for annuities
- Sentencing / Downward departure / Ineffective counsel
- Retiree Medical Benefits / Collective labor agreement
- Sentencing / Mistrial / Testimony
- Sentencing Guidelines / Simple assault definition
- Federal habeas corpus petition
- Hearsay / Sentencing / Jury / Prejudicial error
 

Ohio Supreme Court

 

State ex rel. Hina v. Indus. Comm. (Slip Opinion)(Jan. 28, 2009)(2009-ohio-250)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-250.pdf
-  Workers’ compensation — Alleged violation of specific safety requirement — Ohio Adm.Code 4121:1-5-05(D)(1) — Specific safety requirements must be strictly construed and all reasonable doubts concerning their interpretation must be construed against their applicability to the employer.

State v. Evans (Slip Opinion)(Jan. 28, 2009)(2009-ohio-253)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-253.pdf
-  Motion for reconsideration granted, discretionary appeal accepted, and judgment of the court of appeals reversed on the authority of State v. Davis.

Graf v. Cirino (Slip Opinion)(Jan. 28, 2009)(2009-ohio-254)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-254.pdf
-  Discretionary appeal accepted and judgment of the court of appeals reversed on the authority of Fletcher v. Univ. Hosps. of Cleveland.

Queen City Lodge No. 69, Fraternal Order of Police v. State Emp. Relations Bd. (Slip Opinion)(Jan. 28, 2009)(2009-ohio-255)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-255.pdf
-  Appeal dismissed as improvidently accepted.

Ealy v. Stewart (Slip Opinion)(Jan. 28, 2009)(2009-ohio-256)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-256.pdf
-  Appeal from dismissal of a petition for a writ of habeas corpus – Adequate remedy at law available – Judgment affirmed.

Hughley v. Saunders (Slip Opinion)(Jan. 28, 2009)(2009-ohio-257)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-257.pdf
-  Appeal from dismissal of a petition for a writ of habeas corpus – Failure to attach pertinent commitment papers – Judgment affirmed.

Bollar v. Eberlin (Slip Opinion)(Jan. 28, 2009)(2009-ohio-258)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-258.pdf
-  Appeal from dismissal of a petition for a writ of habeas corpus – Adequate remedy at law available – Judgment affirmed.

Cuyahoga Cty. Bar Assn. v. Cook (Slip Opinion)(Jan. 29, 2009)(2009-ohio-259)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-259.pdf
-  Attorney misconduct — Six-month suspension, stayed on conditions — Charging excessive fee — Nonrefundable retainer — Failure to maintain records of client funds.

In re Application of Nwankwo (Slip Opinion)(Jan. 29, 2009)(2009-ohio-260)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-260.pdf
-  Attorneys — Character and fitness — Applicant repeatedly continued to work on bar exam after proctor called time — Applicant may apply to take the July 2009 bar examination.

Disciplinary Counsel v. Stuard (Slip Opinion)(Jan. 29, 2009)(2009-ohio-261)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-261.pdf
-  Judges and attorneys — Misconduct — Ex parte communications — Public

Lorain Cty. Bar Assn. v. Robinson (Slip Opinion)(Jan. 29, 2009(2009-ohio-262)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-262.pdf
-  Attorneys at law — Misconduct — Default — Neglect and dishonesty — Indefinite suspension.
 

First District Court of Appeals

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*** Judgment Entries ***

Richard and Karen Weaver Radford vs. Richard Ellensohn (Jan. 28, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080414_01282009.pdf
-  The Radford couple began to cross Markbreit Avenue, they were hit by a car driven by Richard Ellensohn. Both Radfords were injured. The Radfords filed a complaint against Ellensohn, alleging that he had been negligent in operating his car. After the parties were deposed, Ellensohn filed a motion for summary judgment, and the Radfords filed a response. The trial court granted summary judgment to Ellensohn. began to cross Markbreit Avenue, they were hit by a car driven by Richard Ellensohn. Both Radfords were injured. The Radfords filed a complaint against Ellensohn, alleging that he had been negligent in operating his car. After the parties were deposed, Ellensohn filed a motion for summary judgment, and the Radfords filed a response. The trial court granted summary judgment to Ellensohn. Judgment AFFIRMED.

In Re: Adrian Sims (Jan. 28, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080410_01282009.pdf
-  Jacqueline Sims appeals the judgment of the Hamilton County Juvenile Court placing her minor son, Adrian Sims, in a planned permanent-living arrangement under the authority of the Hamilton County Department of Job and Family Services. Pursuant to Anders v. California Sims attorney requests this court to review the record for any reverible error. Judgment AFFIRMED.

State of Ohio vs. James Marshall (Jan. 28, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080385_01282009.pdf
-  Marshall appeals his convictions for trafficking in marijuana and possession of marijuana. Judgment AFFIRMED.

State of Ohio vs. Russell Bravard (Jan. 28, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080373_01282009.pdf
-  In exchange for defendant-appellant Russell Bravard’s guilty pleas to aggravated robbery and an accompanying firearm specification, failure to comply with an order or signal of a police officer, and two counts of vehicular assault, the state dismissed charges of felonious assault and receiving stolen property, as well as three firearm specifications. The trial court sentenced Bravard to an aggregate prison term of eight years. Pursuant to Anders v. California, Bravard’s appointed appellate counsel has advised this court that, after a thorough review of the record, he can find nothing that would arguably support Bravard’s appeal.Judgment AFFIRMED.

State of Ohio vs. Tyrell Moore (Jan. 28, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080301_01282009.pdf
-  Moore appeals the judgment of the Hamilton County Court of Common Pleas convicting him of four counts of burglary. Moore’s appointed appellate counsel, pursuant to Anders v. California, states in her brief that she has found no errors in the proceedings below and requests this court to review the record for any reversible error. Judgment AFFIRMED.

State of Ohio vs. James Daniels (Jan. 28, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080255_01282009.pdf
-  As part of a plea agreement, defendant-appellant, James Daniels, pleaded guilty to three counts of trafficking in heroin under R.C. 2925.03(A)(1), one as a fifth-degree felony and two as fourth-degree felonies. The trial court sentenced him to serve a total of 36 months’ incarceration. Daniels’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.Judgment AFFIRMED.

State of Ohio vs. McAaron Martin (Jan. 28, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080215_01282009.pdf
-  Defendant-appellant My the trial court for one count of trafficking in cocaine and for two counts of possession of cocaine, following a remand from this court. Judgment AFFIRMED.

*** Opinions

Cargile v. Barrow (Jan. 30, 2009)(2009-Ohio-371)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2009/2009-ohio-371.pdf
-  In a personal-injury action, the trial court erred by ordering the plaintiff during discovery to provide all of her medical records for the five years prior to the accident, when the plaintiff had reasonably asserted that some of the records remained subject to the doctor-patient privilege, and when the court had failed to conduct an in-camera inspection of the records to determine whether any of them should have remained confidential because they were not historically or causally connected to the plaintiff’s claim. Judgment REVERSED and Cause REMANDED.

State v. Grice (Jan. 30, 2009)(2009-Ohio-372)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2009/2009-ohio-372.pdf
-  The mere failure to produce identification upon request by a police officer is not an affirmative act that will support a conviction for obstructing official business. The evidence was insufficient to support the defendant’s conviction for obstructing official business, where the record did not establish a nexus between the defendant’s affirmative act (telling the police that he had not heard any gunshots) and the hampering or impeding of the police investigation into a report of “shots fired”; the police were unaware of the statement, and there was no evidence that the statement had obstructed the investigation.  [But, see, DISSENT:  Lying to the police—who were investigating whether shots had been fired, who had fired them, and whether anyone had been injured—and telling them that no shots had been fired “hamper[ed] or imped[ed] a public official in the performance of the public official’s lawful duties” within the meaning of R.C. 2921.31.] Judgment REVERSED and Appellant discharged.
 

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

 

Carol Negron v. USA (Jan. 28, 2009) (Appeal from N.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0028p-06.pdf
-  In light of the Supreme Court’s recent decision in Spears v. United States, — S. Ct. —, No. 08-5721, 2009 WL 129044 (Jan. 21, 2009), we VACATE Johnson’s sentence and REMAND for resentencing. Spears held that district courts have the power to categorically reject and vary from the crack-cocaine sentencing guidelines based on a policy disagreement with the guidelines, even in a mine-run case such as this. Because the district court sentenced Johnson without the benefit of Spears, we remand for resentencing to give the district court an opportunity to impose a sentence with full recognition of its authority to reject and vary from the crack-cocaine Guidelines based solely on a policy disagreement with those Guidelines.
       

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

 

USA v. Kenneth Johnson (Jan. 26, 2009) (Appeal from W.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0026p-06.pdf
-  Defendant-Appellant Kenneth James Johnson (“Johnson”) appeals a 110-month sentence imposed after he pleaded guilty to one count of conspiracy to distribute more than five grams of cocaine base (crack), one count of distribution of cocaine base (crack), and four counts of distribution of more than five grams of cocaine base (crack). Johnson makes five arguments on appeal: (1) the district court abused its discretion in ordering Johnson’s federal sentence to be served consecutive to his state sentence for drug possession; (2) the withinguidelines sentence imposed is procedurally and substantively unreasonable; (3) the district court erred in failing to grant a downward departure on the ground that Johnson’s criminal history category of VI substantially overrepresented the seriousness of his criminal history; (4) trial counsel was ineffective at sentencing by failing sufficiently to argue for a downward departure banal cooperation and acceptance of responsibility; (5) the district court erred in failing to articulate whether it considered Johnson’s exceptional cooperation and acceptance of responsibility in denying Johnson’s motion for a downward departure. In light of the Supreme Court’s recent decision in Spears v. United States,— S. Ct. —, No. 08-5721, 2009 WL 129044 (Jan. 21, 2009), we VACATE Johnson’s sentence and REMAND for resentencing. Spears held that district courts have the power to categorically reject and vary from the crack-cocaine sentencing guidelines based on a policy disagreement with the guidelines, even in a mine-run case such as this. Because the district court sentenced Johnson without the benefit of Spears, we remand for resentencing to give the district court an opportunity to impose a sentence with full recognition of its authority to reject and vary from the crack-cocaine Guidelines based solely on a policy disagreement with those Guidelines.

Gary Winnett v. Caterpillar, Inc. (Jan. 27, 2009) (Appeal from M.D. TN)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0027p-06.pdf
-  Plaintiffs are retired workers from Defendant Caterpillar. They argue that Caterpillar breached its promise to provide lifetime retiree medical benefits at no cost when it began charging them for a portion of their medical care. Most of their claims turn on whether a 1998 collective labor agreement provided workers with a right to no-cost retiree medical benefits that vested as soon as the worker became eligible for retirement or a pension. We hold that it did not. Accordingly, we REVERSE and REMAND for further proceedings.

USA v. Russell Wimbley (Jan. 28, 2009) (Appeal from E.D. TN)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0029p-06.pdf
-  Russell Wimbley was charged with three counts of distributing crack cocaine, in violation of 21 U.S.C. § 841(a), after allegedly selling varying quantities of the drug to a police informant on three separate occasions. He was convicted by a jury on all three counts and was sentenced by the district court to a mandatory minimum life sentence under 21 U.S.C. § 841(b)(1)(A) as a result of both his current and prior drug convictions. In this timely appeal, Wimbley contends that the district court erred by twice denying his motions for a mistrial after (a) a drug task-force officer testified that Wimbley had made “numerous” and “so many” sales to the informant, and (b) the prosecutor commented that Wimbley could have introduced fingerprint or DNA evidence if he had so chosen, but did not. Wimbley also argues that 21 U.S.C. § 841(b)(1)(A)’s mandatory life sentence requirement is unconstitutional. For the reasons set forth below, we AFFIRM the judgment of the district court.

USA v. Christian Gagnon (Jan. 29, 2009) (Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0030p-06.pdf
-  This case turns on the surprisingly vexing determination of what distinguishes a “simple assault” from “all other cases” under 18 U.S.C. § 111, which imposes punishment on anyone who “forcibly assaults, resists, opposes, impedes, intimidates, or interferes with” certain federal officers and employees. Defendant Christian Gagnon argues that his conviction was improper because the magistrate judge did not find that he committed “assault” and instead only found that he forcibly resisted, impeded, and interfered with an officer. But, because § 111 expressly prohibits more conduct than merely the commission of common-law assault, we affirm.

Harris v. Lafler (Jan. 30, 2009) (Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0031p-06.pdf
-  A jury convicted Karl Harris of violating several Michigan criminal laws, including second-degree murder, and the judge sentenced him to 52 to 77 years in prison. His state-court efforts to obtain relief came to naught, and he filed this federal habeas corpus petition, which the district court rejected in all respects, save one: It granted relief on his Brady claim that the failed to disclose three statements made by the police to the State’s lead witness before he testified. We affirm.

USA v. Young AND
USA v. Roller (Jan. 30, 2009) (Appeal from E.D. TN)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0032p-06.pdf
-  In 2006, the government named Morris Roller (“Roller”) and Jeffory Young (“Young”) as defendants in a twenty-count supersedingindictment. Count one charged both men with a conspiracy to manufacture 1000 or more marijuana plants and to distribute 1000 or more kilograms of marijuana. Roller and Young were tried jointly, and the jury convicted each man of conspiracy involving more than 100 but less than 1000 marijuana plants and more than 100 but less than 1000 kilograms of marijuana. Roller and Young were also convicted of the substantive offenses with which they were charged. The district court sentenced Roller to serve 200 months and Young to serve 224 months of imprisonment. Roller and Young appeal their convictions and their sentences. On appeal, Roller and Young allege that: (1) the district court erroneously admitted hearsay; (2) the district court erred when it applied a leadership-role sentencing enhancement; (3) the district court erred in considering acquitted conduct in sentencing; and (4) their sentences were procedurally and substantively unreasonable. Young also arguesthat the district court erred when it admitted statements by Roller regarding the use of force to collect drug-related debts. Roller asserts that the district court’s response to the jury’s question regarding the duration of the conspiracy was prejudicial error. We AFFIRM Roller’s and Young’s convictions and sentences.
 

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