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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Feb. 25th & 26th, 2009

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

TOPICS:
- Attorney Misconduct
- Attorneys at law / Unauthorized practice of law
- Real property taxation
- Anders v. California
- Motion for new trial / Divorce / Property hearing
- Ability to pay appointed counsel fees/ Residential-living sanctions
- Jurisdiction / Motion to withdraw guilty pleas
- Amend charges / Evidence / Insufficient / Manifest weight / Judgment of acquittal
- Ineffective Counsel
- Qualified immunity / Fourth Amendment right
- Habeas corpus
- Motion to suppress / Lack of probable cause / Sentencing
- Sentencing / Base offense level / Minimal participation
- Clean Air Act
- Social Security Act / Federal Insurance Contributions Act / Stipend
 

Ohio Supreme Court

 

Disciplinary Counsel v. McShane (Slip Opinion)(Feb. 25, 2009)(2009-ohio-746)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-746.pdf
-  Attorneys – Misconduct – Failure to perform promised legal services – Failure to return unearned portion of fees – Failure to cooperate in disciplinary investigation – Two-year suspension, all stayed.

Cincinnati Bar Assn. v. Mid-South Estate Planning, L.L.C. (Slip Opinion)(Feb. 25, 2009)(2009-ohio-747)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-747.pdf
-  Attorneys at law—Unauthorized practice of law—Preparation of estate-planning documents—Injunction issued and civil penalties imposed.

Disciplinary Counsel v. Jarabek (Slip Opinion)(Feb. 25, 2009)(2009-ohio-748)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-748.pdf
-  Attorneys at law—Misconduct—Neglect of an entrusted legal matter—Felony conviction—Practicing law while under suspension—Two-year suspension, partially stayed on conditions.

Cincinnati Bar Assn. v. Mid-South Estate Planning, L.L.C. (Slip Opinion)(Feb. 25, 2009)(2009-ohio-749)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-749.pdf
-  Attorneys at law—Unauthorized practice of law—Preparation of estate-planning documents—Injunction issued and civil penalty imposed.

Cleveland OH Realty I, L.L.C. v. Cuyahoga Cty. Bd. of Revision (Slip Opinion)(Feb. 25, 2009)(2009-ohio-757)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-757.pdf
-  Real property taxation—Property subject to long-term lease—Recent sale price upheld as basis for valuation.

Columbus City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision (Slip Opinion)(Feb. 26, 2009)(2009-ohio-760)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-760.pdf
-  Real property taxation — County boards of revision — Vote to vacate certified determination of value — R.C. 5715.20(A) — Vacation effective without certification.

Ohio State Bar Assn. v. Burkholder (Slip Opinion)(Feb. 26, 2009)(2009-ohio-761)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-761.pdf
-  Attorney misconduct — Record of violations of court orders and rules governing the profession — Indefinite license suspension.

Woda Ivy Glen Ltd. Partnership v. Fayette Cty. Bd. of Revision (Slip Opinion)(Feb. 26, 2009)(2009-ohio-762)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-762.pdf
-  Real property taxation — Valuation of property in light of federal low-income housing tax credit — Board of Tax Appeals erred by valuing property without regard to the effect of federally imposed use restrictions — Decision vacated, and cause remanded.

Cleveland Metro. Bar Assn. v. Jaffe (Slip Opinion)(Feb. 26, 2009)(2009-ohio-763)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-763.pdf
-  Attorneys — Misconduct — Gov.Bar R. V(4)(G) — Failure to cooperate in disciplinary investigation — Six-month suspension.
 

First District Court of Appeals

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*** Judgment Entries ***

State of Ohio vs Siler

-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080545_02252009.pdf
-  In exchange for defendant-appellant Antawn Siler’s guilty pleas to charges of carrying a concealed weapon and tampering with evidence, the state dismissed a charge of obstructing official business. The trial court sentenced Siler to an aggregate prison term of three years. Counsel has sought to withdraw from representation and requests that this court, consistent with Anders, independently review the record to determine whether the proceedings below were free of prejudicial error. Judgment AFFIRMED.

Carl E. Lawrence-Slater vs. B. Joy Lawrence-Slater (Feb. 25, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080508_02252009.pdf
-  Carl Lawrence-Slater filed for divorce from Joy Lawrence-Slater in 2005. (Because the parties share a last name, we use first names.) Joy did not attend a hearing to settle property issues. The magistrate awarded assets and child support based on Carl’s testimony. Joy objected to the magistrate’s decision and requested a new trial. The trial court adopted the magistrate’s decision and ordered judgment accordingly. Joy again moved for a new trial. The trial court denied her motion based on res judicata. Judgment AFFIRMED.

State of Ohio vs. Altaa Jackson (Feb. 25, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080403_02252009.pdf
-  In case B-0709481, defendant-appellant Alta Jackson was convicted of sexual battery,2 sentenced to four years in prison, and classified as a tier III sexual offender.3 In case B-0709972, he was convicted of one count of identity theft4 and sentenced to a concurrent prison term of thirteen months. The trial court denied his request to waive costs in both cases. Jackson has appealed both judgments, and we have consolidated the two cases for argument, review, and disposition. We affirm the trial court’s judgments in part, reverse them in part, and remand these cases to the trial court for further proceedings consistent with this entry.

State of Ohio v. Anthony Hayes (Feb. 25, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080377_02252009.pdf
-  Hayes was convicted upon guilty pleas to multiple counts of aggravated robbery, robbery, kidnapping, and having a weapon under a disability. Hayes filed with the common pleas court separate Crim.R. 32.1 motions to withdraw his guilty pleas. The court overruled the motions. He argues that the trial court had no jurisdiction to convict him upon his guilty pleas, because the counts of the indictment charging him with aggravated robbery and robbery did not include a mens rea element. He also contends that his plea agreement was “unenforceable” because the amendment of the prior-offense element of count ten of his indictment violated Crim.R. 7(D). Judgment AFFIRMED.

State of Ohio vs. Myheart Askew (Feb. 25, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080346_02252009.pdf
-  Askew appeals a conviction for cruelty to a companion animal under R.C. 959.131(C). Judgment AFFIRMED.

State of Ohio vs. Arturo Lucero (Feb. 25, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080341_02252009.pdf
-  Lucero was convicted upon guilty pleas to two counts of trafficking in marijuana and was sentenced to consecutive three-year prison terms. He filed a Crim.R. 32.1 motion to withdraw his guilty pleas. The common pleas court overruled the motion, and this appeal followed. Lucero asserted in his motion that his guilty pleas were the unknowing and unintelligent product of his trial counsel’s ineffectiveness. Judgment AFFIRMED.
 

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

 

No Opinions.
       

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

 

Edward Drogosch v. Tim Metcalf (Feb. 25, 2009) (Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0067p-06.pdf
-  Timothy Metcalf, a parole agent with the Michigan Department of Corrections (MDOC), placed Edward Drogosch under arrgosch had violated the terms of his probation. Because Metcalf did not have the proper type of paperwork with him to place Drogosch in the custody of the Wayne County Jail as a probation violator, Metcalf decided to lodge Drogosch in the jail using a type of form that identified him as a parole violator—a class of prisoners that Metcalf knew would not be entitled to a prompt probable-cause hearing before a judge. As a result, Drogosch lingered in jail for 13 days before being released. Drogosch subsequently sued Agent Metcalf and several other defendants pursuant to 42 U.S.C. § 1983, claiming that his constitutional rights were violated by the defendants’ unlawful search and arrest, as well their failure to present him to a judge promptly following the arrest. Metcalf now appeals the district court’s denial of his motion for summary judgment that he had sought on the basis of qualified immunity. For the reasons set forth below, we AFFIRM the judgment of the district court.

Stephen Fleming v. Linda Metrish (Feb. 25, 2009) (Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0068p-06.pdf
-  Stephen Michael Fleming was convicted of second-degree murder and a related firearm offense. He was sentenced to life in prison on the two charges. Fleming then petitioned for state postconviction relief, but was turned down at all levels of the state judiciary. He subsequently sought habeas corpus relief in federal court, arguing that the state trial court erred by denying a motion to suppress his confession and by not allowing him to call a witness who purportedly would have aided his defense. The district court conditionally granted his petition for a writ of habeas corpus. For the reasons set forth below, we REVERSE the judgment of the district court and REMAND the case with instructions to deny Fleming’s petition.

USA v. Oliver Higgins (Feb. 26, 2009) (Appeal from W.D. TN)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0069p-06.pdf
-  Higgins was indicted and charged with six counts: possession with intent to distribute cocaine base, possession with intent to distribute cocaine, possession with intent to distribute marijuana, possession of counterfeit currency with intent to defraud, felon in possession of a firearm, and possession of a firearm in connection with a drug-trafficking crime. Higgins asserts that the district court erred in denying his motion to suppress because the search warrant lacked probable cause. Second, Higgins presents three arguments for why the district court erred in imposing a sentence of life imprisonment: (1) although the jury convicted Higgins of an offense involving cocaine base, his sentence violated the Sixth Amendment because it was based on a judicial finding that the offense involved crack cocaine; (2) Higgins’s sentence was greater than necessary, and the district court failed to consider mitigating factors; and (3) the district court improperly enhanced Higgins’s sentence based on prior convictions. Judgment AFFIRMED.

USA v. Jack Groenendal (Feb. 26, 2009) (Appeal from W.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0070p-06.pdf
-  Defendant Jack Groenendal appeals his forty-two month sentence for one count of possession of child pornography. The United States District Court for the Western District of Michigan calculated Groenendal’s base offense level pursuant to a cross-reference under the United States Sentencing Guidelines (“Guidelines”) for trafficking. The district court imposed enhancements for the distribution of prohibited materials in exchange for the receipt of a thing of value and the sadistic or masochistic nature of the materials. The district court also declined to reduce his sentence on account of his “minimal” or “minor” participation. Groenendal claims that the district court erred in calculating his sentence pursuant to the cross-reference to trafficking, applying these enhancements, and denying him a reduction for his minimal role. Sentence VACATED and rema, 2009) (Appeal from Environmental Protection Administration)

Sierra Club v. EPA (Feb. 26, 2009) (Appeal from Environmental Protection Administration)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0071p-06.pdf
-  The Clean Air Act requires the Environmental Protection Agency to object to an air-pollution permit if any person “demonstrates” to the EPA “that the permit is not in compliance” with the Act’s requirements. 42 U.S.C. § 7661d(b)(2). In August 2006, the Sierra Club petitioned the EPA Administrator to object to a permit issued by the Kentucky Division of Air Quality to the East Kentucky Power Cooperative, claiming it had “demonstrate[d]” non-compliance because the EPA previously had issued a notice of violation to the same company (about the same plant) in January 2003 and had filed afederal-court complaint against the same company (about the same plant) in January 2004. The EPA declined to object. Because it reasonably interpreted § 7661d(b)(2) to mean that the agency may alter its position about a power plant’s compliance with the Act based on intervening events and because the Sierra Club does not challenge the impact of these intervening events on the power plant’s compliance with the Act, we deny the petition for review.

USA v. Detroit Med Ctr (Feb. 26, 2009) (Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0072p-06.pdf
-  The ultimate question in this case is whether the Social Security Act covers physicians participating as medical residents in a graduate training program conducted by a hospital group jointly with a university. The issue arises in a suit by the United States against the hospital group to collect social security taxes under the Federal Insurance Contributions Act (“FICA”) on the stipends the hospital group pays to the residents. The district court granted summary judgment for the United States, ruling (1) that the stipends were wages and not scholarships or fellowships, and therefore not exempt from income tax, and (2) that the residents did not qualify for the exemption from social security tax for “students.” We affirm in part, vacate in part and remand the case to the district court for further proceedings.
 

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