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 13th, 16th & 17th, 2009

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

TOPICS:
- Juvenile Courts / Blending sentencing
- Criminal law / Allied offenses of similar import / ORC 2941.25
- Civil Miscellaneous
- Constitutional Law / Civil / Writs / Real Property
- Instructions / ORC 2941.25 / Prosecutor / New Trial / Criminal Misc.
- Kidnapping / Robbery/ Indictment / Complaint / Constitutional Law / Criminal
- Civil Service / Writs / Jurisdiction / Venue
- Writ of habeas corpus / Prosecutorial misconduct / Ineffective Counsel
- Municiple law unconstitutional / Commercial speech
- Sentencing Guidelines
- Habeas Petition / Subject-matter jurisdiction / REAL ID Act / Immigration
- Banking / Check Cashing Policy / Charging a non-accountholder
- Alien Tort Claims Act / Equitable Tolling of the Statute of limitations / Salvadoran Amnesty Law
 

Ohio Supreme Court

 

State v. Winn (Slip Opinion)(March 17, 2009)(2009-Ohio-1059)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2009/2009-ohio-1059.pdf
-  The crime of kidnapping, defined by R.C. 2905.01(A)(2), and the crime of aggravated robbery, defined by R.C. 2911.01(A)(1), are allied offenses of similar import pursuant to R.C. 2941.25.

In re Sturm (Slip Opinion)(March 17, 2009)(2009-Ohio-1060)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2009/2009-ohio-1060.pdf
-  Judgment of the court of appeals affirmed.

In re Seavolt (Slip Opinion)(March 17, 2009)(2009-Ohio-1061)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2009/2009-ohio-1061.pdf
-  Judgment of the court of appeals affirmed.
 

First District Court of Appeals

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Mather v. Loveland City School Dist. Bd. of Edn. (March 13, 2009)(2009-Ohio-1077)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2009/2009-ohio-1077.pdf
-  A student had no right to appeal to the common pleas court a school board’s decision prohibiting him from participating in extracurricular events: there is a statutory right to appeal only curricular decisions, and there is no constitutional right to participate in extracurricular activities. Judgment REVERSED and Final Judgment Entered.

State ex rel. Gilbert v. Cincinnati (March 13, 2009)(2009-Ohio-1078)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2009/2009-ohio-1078.pdf
-  The landowners’ new evidence showed that a pump station operated by the respondents had repeatedly overflowed, causing raw sewage to be deposited onto their property; therefore, they proved that a taking had occurred, and they were entitled to a writ of mandamus to compel the respondents to begin appropriation proceedings under R.C. Chapter 163. When a taking involved physical invasion of the land, as opposed to a regulatory taking, the landowners did not have to prove that they were denied all economically viable uses of their land to prove that a taking had occurred. Judgment WRIT GRANTED.

State v. Love (March 13, 2009)(2009-Ohio-1079)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2009/2009-ohio-1079.pdf
-  The absence of mens rea allegations in an indictment for aggravated robbery was not plain error under State v. Colon (Colon II), 119 Ohio St.3d 104, 2008-Ohio-3749, 893 N.E.2d 169: the state presented evidence that the defendant had acted with at least the mental state of recklessness, and the jury was not instructed that aggravated robbery was a strict-liability offense. The trial court did not err in sentencing the defendant for both attempted murder and felonious assault under R.C. 2903.11(A)(2): The elements of the offenses did not align so closely that the commission of one offense would have necessarily resulted in the commission of the other, because a person can attempt to cause the death of another without using a deadly weapon and can also cause or attempt to cause another person physical harm with a deadly weapon, without attempting to take the other person’s life. (State v. Lanier, 1st Dist. No. C-080162, 2008-Ohio-6906, overruled.) Attempted murder and felonious assault under R.C. 2903.11(A)(2) are not allied offenses of similar import under State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149: the attempted-murder statute advances the societal interest of protecting human life, whereas the felonious-assault statute advances the societal interest of protecting persons from physical harm. The trial court did not err in sentencing the defendant for both aggravated robbery and kidnapping: the evidence indicated that the defendant had forced the victim from his apartment building and had attempted to put him in the trunk of a car, thus demonstrating an animus separate from the aggravated robbery. The trial court did not commit plain error in its jury instruction on kidnapping: where the instruction tracked the statutory language for kidnapping and the jury charge included definitions of each element of the offense, there was no requirement that the court instruct the jury separately on the element of purposefulness. The trial court did not err in overruling the defendant’s motion for a new trial based on prosecutorial misconduct: The defendant failed to demonstrate that the victim had committed perjury where there were inconsistencies in his description of the clothing he had worn on the night of the offenses; the defendant did not demonstrate that the state had withheld exculpatory DNA evidence where there was no implication that his DNA had been on the victim’s clothing; and the defendant did not show that police officers had misled the jury by taking photographs of items at the police station rather than at the scene of the offenses. The defendant’s convictions for attempted murder, aggravated robbery, aggravated burglary, and kidnapping were based on sufficient evidence and were not against the manifest weight of the evidence: the state demonstrated that the defendant had shot the victim in the abdomen, and that while his accomplice was abducting the victim, he had ransacked the victim’s apartment, taking two sets of keys. Judgment AFFIRMED.

State v. Rice (March 13, 2009)(2009-Ohio-1080)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2009/2009-ohio-1080.pdf
-  The trial court properly allowed the state to amend a robbery charge by adding the element “recklessly”: The amendment did not change the penalty or degree of the charged offense, and it did not prejudice the defendant; and the amendment was not prohibited by State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917. A conviction for kidnapping does not require a conviction of the predicate offense named in the indictment; it requires only that the victim be restrained to facilitate the commission of that offense, not that the offense be committed. The trial court was not required to compel a codefendant to take the stand in a trial when, during the trial, the codefendant’s counsel had withdrawn and new counsel had not yet been appointed; the court’s offer to continue the case until the codefendant had obtained and conferred with new counsel-an offer that the defendant refused-struck a reasonable balance between the defendant’s constitutional rights to present witnesses on his behalf and to compulsory process, and the codefendant’s rights to counsel and to avoid self-incrimination. Judgment AFFIRMED.

State ex rel. Kramer v. Norwood (March 13, 2009)(2009-Ohio-1081)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2009/2009-ohio-1081.pdf
-  The trial court erred in holding that it did not have subject-matter jurisdiction over a mandamus action in which the relator claimed that a city had improperly abolished a lieutenant’s position in the police force: the relator was not required to pursue the grievance procedure in the city’s collective-bargaining agreement with the police union because the essence of his claim was that the city had violated civil-service laws, not that it had violated the terms of the collective-bargaining agreement. The trial court erred in granting summary judgment in favor of the city on the relator’s claim that the city had improperly abolished a police lieutenant’s position: although the collective-bargaining agreement provided for a reduction in the lieutenant complement, it did not explicitly preempt the Ohio Revised Code’s procedures for reductions in force, and genuine issues of material fact remained with respect to the city’s compliance with the revised code. Judgment REVERSED and Cause REMANDED.
 

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

 

Awkal v. Mitchell (March 16, 2009) (Appeal from N.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0098p-06.pdf
-  In 1992, an Ohio jury convicted Petitioner-Appellant, Abdul Awkal (“Awkal”), of two counts of aggravated murder with prior calculation and design with mass-murder and firearm specifications. The trial court sentenced Awkal to death as recommended by the jury. Awkal now appeals the district court’s decision to deny his petition for a writ of habeas corpus. We granted a certificate of appealability allowing Awkal to raise claims of ineffective assistance of counsel at the guilt and penalty phases and of prosecutorial misconduct. We hold that Awkal’s counsel provided ineffective assistance at the guilt phase of trial by calling an expert witness who testified that Awkal was sane at the time of the murders, an opinion that directly contradicted Awkal’s only defense. Because we REVERSE the district court’s judgment based on this conclusion, we do not decide whether Awkal’s counsel was ineffective at the penalty phase of trial or whether the prosecutor’s statements implying that Awkal would be set free if the jury found him not guilty by reason of insanity constituted prosecutorial misconduct. Accordingly, we REVERSE the district court’s judgment and REMAND this case with instructions that the district court issue a conditional writ of habeas corpus requiring Awkal’s release unless the State of Ohio commences a new trial within 180 days from the date that this judgment becomes final.

Christopher Pagan v. Village of Glendale, OH (March 16, 2009) (Appeal from S.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0099p-06.pdf
-  In this appeal, the Village of Glendale, Ohio challenges the district court’s entry of final judgment for Plaintiff Christopher Pagan after we issued an en banc decision Pagan’s favor. Pagan v. Fruchey, 492 F.3d 766 (6th Cir. 2007), cert. denied, 128 S. Ct. 711 (2007) (“Pagan I”). The question in this case is what “further proceedings” we instructed the district court to hold when we reversed and remanded Pagan’s case for “further proceedings consistent with this opinion” in Pagan I. Id. at 779. Glendale contends that we meant for the case to “proceed[] as if Glendale’s motion for summary judgment had never been filed,” and that in refusing to allow Glendale to re-litigate the constitutionality of its statute, the district court misinterpreted our mandate. But Glendale misreads Pagan I. We decided the merits of Pagan’s claim in Pagan I in his favor and invalidated the ordinance he challenged. Accordingly, we AFFIRM.
       

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

 

USA v. Baker (March 16, 2009) (Appeal from E.D. TN)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0097p-06.pdf
-  Defendant Myron Baker appeals the 300-month sentence he received following his guilty plea for conspiracy to distribute cocaine hydrochloride. For the reasons stated below, we AFFIRM in part, REVERSE in part, and REMAND to the district court for the limited purpose of resentencing defendant after determining whether he qualifies as a career offender under the Sentencing Guidelines.

Merita Muka v. Robin Baker (March 17, 2009) (Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0100p-06.pdf
-  Petitioners-Appellants Merita Muka, her husband, Ilirian Muka, and their children, Lionela and Brajen Muka (collectively referred to as “the Mukas”), appeal the district court’s dismissal of their habeas petition for lack of subject-matter jurisdiction. Specifically, the Mukas argue that: (1) in the instant case, application of the provisions of the REAL ID Act of 2005, 8 U.S.C. § 1252, divesting the district court of jurisdiction over writs of habeas corpus in immigration cases would violate the Suspension Clause of the U. S. Constitution; and (2) the Mukas are entitled to protection from removal under 8 U.S.C. § 1255(i). For the reasons discussed below, we disagree with the Mukas’ first argument, which is dispositive in this case, and AFFIRM the district court.

Juliet Murphy v. National City Bank (March 17, 2009) (Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0101p-06.pdf
-  Plaintiff Juliet M. Murphy filed this putative class action, alleging that Defendant National City Bank’s practice of charging fees as a condition of cashing official checks violated Michigan’s Uniform Commercial Code (MUCC), M.C.L. 440.3412, 440.3413, and 440.3414. The district court granted Defendant summary judgment on pre-emption grounds, and did not reach the MUCC issue. We affirm the district court’s grant of summary judgment for the reasons the district court set forth in a companion case, i.e., that the MUCC is not violated by a bank charging a nonaccountholder a fee to cash its teller’s check. See NNDJ, Inc. v. Comerica, Inc., 584 F. Supp. 2d 957 (E.D. Mich. 2008).

Chavez v. Carranza (March 17, 2009) (Appeal from W.D. TN)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0102p-06.pdf
-  Defendant Nicolas Carranza appeals a jury verdict awarding compensatory and punitive damages to victims of torture, extrajudicial killing, and crimes against humanity in violation of the Alien Tort Statute (ATS), also called the Alien Tort Claims Act (ATCA) and the Torture Victims Protection Act (TVPA). Carranza argues that the district court abused its discretion by (1) holding that extraordinary circumstances justified equitable tolling of the statute of limitations, (2) not granting comity to the Salvadoran Amnesty Law, and (3) making various evidentiary rulings. He also contends that the district court erred in its instruction to the jury on command responsibility. We AFFIRM.

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