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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March 2d, 3d & 4th, 2009

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

TOPICS:
- Attorney Misconduct
- Mandamus action
- Theft / Degree of Offense
- Criminal law — R.C. 2925.03(B)(1)
- Workers Compensation
- Motion to suppress breathalyzer test
- Warrant/ Probable cause
- Health Education Assistance Loan / Indebtedness / Truth in Lending Act
- Habeas corpus relief / Miranda waiver
- Cross examination / Witness / Evidence / Jury Instructions / Sentencing Guidelines
- Writ of habeas corpus / Certificate of appealability
- Exposure to Pesticides / Expert testimony/ Discovery
- Sentencing Guidelines / Two level enhancement
- Social Security Disability Insurance
- Convention Against Torture
 

Ohio Supreme Court

 

Butler Cty. Bar Assn. v. Matejkovic (Slip Opinion)(March 3, 2009)(2009-Ohio-776)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-776.pdf
-  Attorneys — Misconduct — Failing to maintain separate account — Failure to notify client of lack of professional-liability insurance — Public reprimand.

Toledo Bar Assn. v. Johnson (Slip Opinion)(March 3, 2009)(2009-Ohio-777)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-777.pdf
-  Attorneys at law — Misconduct — Conduct adversely reflecting on the lawyer's fitness to practice law — Failure to maintain client funds in identifiable bank accounts — Charging a clearly excessive fee — Improper division of fees — Six-month stayed suspension.

Toledo Bar Assn. v. Sawers (Slip Opinion)(March 3, 2009)(2009-Ohio-778)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-778.pdf
-  Attorneys at law — Misconduct — Accepting employment in a legal field in which lawyer is not professionally competent — Failure to maintain client funds in identifiable bank accounts — Charging a clearly excessive fee — Public reprimand.

State ex rel. Estate of Miles v. Piketon (Slip Opinion)(March 4, 2009)(2009-Ohio-786)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-786.pdf
-  Mandamus — Mandamus action used to compel satisfaction by municipality of a monetary judgment against former employee — No entitlement to extraordinary relief — Writ denied.

State v. Smith (Slip Opinion)(March 4, 2009)(2009-Ohio-787)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-787.pdf
-  Because theft is a lesser included offense of robbery, an indictment for robbery necessarily includes all the elements of all lesser included offenses, together with any of the special, statutory findings dictated by the evidence produced in the case — When an indictment charges a defendant with robbery and does not specify the value of the property stolen, the defendant may be convicted of theft as a lesser included offense of robbery, and the degree of the offense will depend on the special finding of the value of the property stolen.

State v. Nucklos (Slip Opinion)(March 4, 2009)(2009-Ohio-792)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-792.pdf
-  Criminal law — R.C. 2925.03(B)(1) — To convict a licensed health professional of trafficking in drugs under R.C. 2925.03(A), the state bears the burden of proving beyond a reasonable doubt the inapplicability of the licensed-health-professional exception in R.C. 2925.03(B)(1) by submitting evidence that the licensed health professional violated statutes or regulations that define the standard of care for dispensing controlled substances.
 

First District Court of Appeals

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*** Judgment Entries ***

Anthony D. Phillips vs. Marsha P. Ryan, Administrator, Ohio Bureau of Workers' Compensation, et al. (March 4, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080390_03042009.pdf
-  Phillips claimed that he was injured in a workplace accident. The case was tried to the bench, and the trial court entered judgment forWorkers’ Compensation. We have reviewed the record and determine that it contains competent and credible evidence supporting the findings of fact and conclusions of law rendered by the trial court. The judgment of the trial court to deny Phillips’s claim for workers’ compensation benefits was supported by the record and not contrary to the weight of the evidence. Judgment AFFIRMED.

State of Ohio vs. Sheila M. Gemperle (March 4, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080175_03042009.pdf
-  Gemperle was charged with driving under the influence of alcohol and with speeding. Gemperle now challenges the Hamilton County Municipal Court’s denial of her motion to suppress breathalyzer test results. Judgment AFFIRMED.

State of Ohio vs. Besik Loladze (March 4, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080135_03042009.pdf
-  Loladze, a citizen of the Georgian republic, was apprehended for shoplifting over $400 in clothing from a Dillard‟s department store. Loladze now contests the trial court‟s entry overruling his motion to suppress the evidence gained from a search of his van, including over $6,000 in stolen goods and booster bags, aluminum bags used to secret stolen items and to defeat theft-deterrent sensors. Loladze contends that the affidavit submitted in support of the warrant failed to establish a sufficient nexus between his criminal conduct and the contents of the van. Judgment AFFIRMED.
 

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

 

USA v. Patricia Petroff-Kline (March 3, 2009) (Appeal from N.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0079p-06.pdf
-  Patricia Petroff-Kline (“Petroff-Kline”) appeals the district court’s grant of summary judgment to the United States and its corresponding denial of Petroff-Kline’s cross-motion for summary judgment. Acting on behalf of the Department of Health and Human Services (“HHS”), the Government brought the action against Petroff-Kline to collect the amount of Health Education Assistance Loan (“Health Education Loan”) indebtedness that Petroff-Kline had incurred while she was a student at Tufts University’s School of Dentistry (“Tufts”). After considering the parties’ cross-motions for summary judgment and supplemental briefing as to the amount of Petroff-Kline’s indebtedness, the district court granted the Government’s motion for summary judgment in the amount of $208,349.20 plus interest accrued from August 15, 2007. We affirm.

Garner v. Mitchell (March 3, 2009) (Appeal from S.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0081p-06.pdf
-  Habeas corpus relief was properly denied in this case because William Garner validly waived his Miranda rights, notwithstanding expert testimony—based in part on a test administered six years later—to the effect that Garner mentally could not have sufficiently understood the scope of what Miranda protects. In 1992, Garner burglarized and set fire to an apartment in Cincinnati, Ohio, killing five children who he knew were sleeping inside. After he was arrested and advised of his Miranda rights, Garner agreed to speak with police officers and confessed on tape to setting the fire. The confession was admitted at trial and Garner was eventually convicted by a jury on, among other charges, five counts of aggravated murder, and sentenced to death. The Ohio state courts affirmed Garner’s convictions and sentence on direct and collateral review, and Garner filed this 28 U.S.C. § 2254 action in federal district court, raising twenty-three grounds for relief. The district court denied Garner’s habeas petition on all twenty-three grounds, and Garner now raises four grounds on appeal, three of which relate to the Miranda waiver. Because the record shows that Garner knowingly and intelligently waived his Miranda rights before he confessed to his crimes, and because Garner’s other claims lack merit, Garner is not entitled to habeas relief 
       

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

 

USA v. Corey Guthrie (March 2, 2009) (Appeal from W.D. KY)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0076p-06.pdf
-  Defendant-Appellant Cross-Appellee Corey L. Guthrie (“Guthrie”) appeals his conviction for one count of car-jacking in violation of 18 U.S.C. § 2119; one count of discharging a firearm during a crime of violence in violation of 18 U.S.C. § 924(c); one count of possession of a sawed-off shotgun in violation of 18 U.S.C. §§ 5861(d) and 5871; and one count of possession of firearms by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). A jury convicted Guthrie on all four counts. Plaintiff-Appellee Cross-Appellant United States of America cross appeals Guthrie’s sentence. The district court sentenced Guthrie to 180 months incarceration on Count 1 (carjacking) and on Count 4 (possession of firearms by a felon) and to 120 months imprisonment on Count 3 (possession of a sawed-off shotgun), all to be served concurrently. Further, the district court sentenced Guthrie to 120 months imprisonment on Count 2 (discharging a firearm during a crime of violence), to be served consecutively to the other counts. In total, the district court sentenced Guthrie to 25 years of imprisonment. A jury convicted Guthrie on all four counts. Plaintiff-Appellee Cross-Appellant United States of America cross appeals Guthrie’s sentence. The district court sentenced Guthrie to 180 months incarceration on Count 1 (carjacking) and on Count 4 (possession of firearms by a felon) and to 120 months imprisonment on Count 3 (possession of a sawed-off shotgun), all to be served concurrently. Further, the district court sentenced Guthrie to 120 months imprisonment on Count 2 (discharging a firearm during a crime of violence), to be served consecutively to the other counts. In total, the district court sentenced Guthrie to 25 years of imprisonment. For the reasons that follow, we AFFIRM Guthrie’s convictions and his sentence.

Russell Hill v. Tom Dailey (March 2, 2009) (Appeal from E.D. KY)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0077p-06.pdf
-  Russell Hill, a Kentucky prisoner arguing on his own behalf, challenges a district court’s order denying his petition for a writ of habeas corpus and denying him a certificate of appealability. See 28 U.S.C. §§ 2253(b), 2254. Construing his notice of appeal as an application for a certificate of appealability, see Fed. R. App. P. 22(b)(2); Castro v. United States, 310 F.3d 900, 903 (6th Cir. 2002), the court denies the application.

Gass v. Marriott Hotel Serv (March 3, 2009) (Appeal from W.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0078p-06.pdf
-  Plaintiffs, Elizabeth A. Gass and Deborah DeJonge, appeal the district court’s grant of summary judgment to Defendants, Ecolab, Inc. (“Ecolab”) and Marriott Hotel Services, Inc. (“Marriott”). Plaintiffs sued Defendants under Michigan law, claiming that they were poisoned by pesticides during their stay at a Marriott hotel in Maui, Hawaii. Plaintiffs allege that employees of Ecolab, which provides extermination services for Marriott, sprayed their belongings with an unknown pesticide and filled their hotel room with toxic vapors, causing Plaintiffs to become ill. The district court granted summary judgment to Defendants, holding that no reasonable jury could conclude that Defendants’ negligence caused Plaintiffs’ injuries. We disagree, and accordingly REVERSE the grant of summary judgment and REMAND this case to the district court for trial.

USA v. Robert Shafer (March 3, 2009) (Appeal from W.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0080p-06.pdf
-  Defendant-Appellant Robert Shafer (“Shafer”) appeals his sentence of 360 months of imprisonment resulting from his guilty plea to one count of enticing a minor to engage in sexually explicit conduct for the purposes of producing visual depictions of such conduct and which were produced using material which had been shipped and transported in interstate and foreign commerce iof 18 U.S.C. § 2251(a) and his agreement to a forfeiture demand pursuant to 18 U.S.C. §§ 2253(a)(1) and (a)(3). Shafer’s sole argument on appeal is that the district court clearly erred at sentencing when it imposed a two-level enhancement pursuant to the U. S. SENTENCING GUIDELINES MANUAL (“U.S.S.G.”) § 2G2.1(b)(2)(A) (2006). For the reasons discussed below, we VACATE Shafer’s sentence and REMAND for resentencing.

Sherry DeLisle v. Sun Life Assurance Co. of Canada (March 4, 2009) (Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0082p-06.pdf
-  Defendant Sun Life appeals the district court’s decision that Sun Life’s denial of long-term disability benefits to Plaintiff Sherry DeLisle was arbitrary and capricious. We agree with the district court that Sun Life’s determination did not result from a deliberate and principled reasoning process. Accordingly, we AFFIRM.

Luisa Diaz-Zanatta v. Eric H. Holder, Jr. (March 4, 2009) (Appeal from Board of Immigration Appeals)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0083p-06.pdf
-  Luisa Margarita Diaz-Zanatta seeks review of the denial of her petition for asylum and withholding of removal. For the foregoing reasons, we GRANT Diaz-Zanatta’s petition for review, VACATE the decision and orders of the IJ and BIA, and REMAND to the BIA for reconsideration and further proceedings consistent with this opinion.

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