Daily Case Update Archive

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March 18th, 2009

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

TOPICS:
- Attorney Misconduct
- Habeas corpus / Pertinent papers
- Taxation / New property owner
- Portable breathalyzer test
- Appeal Dismissed
- Constitutionality of Senate Bill 10 / Sexual offender re-classification
- Qualified-immunity / Fourth Amendment claim
- Allied offenses of similar import/ Absence of mens rea allegations
- Importuning statute / Evidence / Weight / Resonable inferences
- Child Custody litigation / Parental mental health
- Evidence / Suppress / Testimony / Fair trial / Abuse of Discretion
- Terry stop / Reasonable suspicion / Evidence / Suppress
- Federal Employers’ Liability Act / Federal Railway Safety Act
- ERISA / Cash balance plan
- Sentencing / Career  / Walkaway offense
- ERISA / Savings Clause
 

Ohio Supreme Court

 

Cleveland Bar Assn. v. Davis (Slip Opinion)(March 18, 2009)(2009-Ohio-764)
-  http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-ohio-764.pdf
-  Attorneys at law — Misconduct — Default — Multiple violations of the rules governing the practice of law — Indefinite license suspension.

Knowles v. Voorhies (Slip Opinion)(March 18, 2009)(2009-Ohio-1109)
-  http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-ohio-1109.pdf
-  Habeas corpus — Failure to attach copy of challenged bindover order — Dismissal of petition affirmed.

HK New Plan Exchange Property Owner II, L.L.C. v. Hamilton Cty. Bd. of Revision (Slip Opinion)(March 18, 2009)(2009-Ohio-1110)
-  http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-ohio-1110.pdf
-  Taxation — Appeal from Board of Tax Appeals — R.C. 5717.04 — Notice of appeal served on tax commissioner need not explicitly name commissioner as appellee — Service of notice of appeal not required on new property owner not appearing on record before the Board of Tax Appeals.

State v. Derov (Slip Opinion)(March 18, 2009)(2009-Ohio-1111)
-  http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-ohio-1111.pdf
-  Judgment of the court of appeals reversed in part and appeal dismissed in part as improvidently accepted — Notice of certified conflict dismissed for want of a conflict.

State v. Lawrence (Slip Opinion)(March 18, 2009)(2009-Ohio-1112)
-  http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-ohio-1112.pdf
-  Appeal dismissed as improvidently accepted.
 

First District Court of Appeals

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*** Judgment Entries ***

State of Ohio vs. Larry P. Raymer (March 18, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080812_03182009.pdf
-  Raymer appeals the trial court’s judgment that denied his motions for expungement and relief from judgment. Judgment AFFIRMED.

State of Ohio vs. William M. Engels (March 18, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080725_03182009.pdf
-  Engels was found guilty by a jury of three counts of rape. He was sentenced to three consecutive life sentences in 1994. In 2002, Engels was returned for a sexual-offender-classification hearing, and he was designated a sexually oriented offender. Engels was released in November 2004. Under former R.C. Chapter 2950, after his release Engels was required to annually register as a sexual offender for ten years. In December 2007, Engels received a notice from the Ohio Attorney General stating that he had been reclassified under Am.Sub.S.B. No. 10 (“Senate Bill 10”) as a Tier III sex offender and that he was required to register with the local sheriff every 90 days for life. Judgment AFFIRMED.

State of Ohio vs. Craig Dowell (March 18, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080708_03182009.pdf
-  Dowell was convicted of rape. He was incarcerated in 1987 and was released on August 5, 1999. After a sexual-offender-classification hearing held during his incarceration, Donder. Under former R.C. Chapter 2950, after his release Dowell was required to annually register as a sexual offender for ten years. In December 2007, Dowell received a notice from the Ohio Attorney General stating that he had been reclassified under Am.Sub.S.B. No. 10 (“Senate Bill 10”) as a Tier III sex offender and that he was required to register with the local sheriff every 90 days for life. Judgment AFFIRMED.

Maurice Shelton vs. Ronald Schultz, et al. (March 18, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080608_03182009.pdf
-  Shelton filed a pro se complaint against Officers Schultz and Gutapfel under Section 1983, Title 42, U.S.Code. He alleged that Officer Schultz had violated the Fourth Amendment by improperly impounding his vehicle and that Officers Schultz and Gutapfel had conspired to violate his constitutional rights by charging him with two traffic offenses. The trial court granted summary judgment to Officers Schultz and Gutapfel on qualified-immunity grounds. He raises three interrelated assignments of error in which he argues that the trial court erred in granting summary judgment to Officer Schultz on his Fourth Amendment claim. Judgment AFFIRMED.

State of Ohio vs. Richard Cook (March 18, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080447_03182009.pdf
-  Cook appeals the judgment of the Hamilton County Court of Common Pleas convicting him of aggravated burglary, aggravated robbery, robbery, carrying a concealed weapon, and having a weapon while under disability, with firearm specifications. Cook now argues that aggravated robbery under R.C. 2911.01(A)(1) and robbery under R.C. 2911.02(A)(2) were allied offenses of similar import, thus rendering a separate sentence for robbery improper. He also argues that the omission of mens rea allegations in the indictment for aggravated robbery and robbery mandated the reversal of those convictions. Sentence VACATED and judgment AFFIRMED.

State of Ohio vs. Anthony Kirkland (March 18, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080308_03182009.pdf
-  Kirkland appeals the judgment of the Hamilton County Court of Common Pleas convicting him of importuning. Kirkland now argues that the conviction was against the manifest weight of the evidence. Judgment AFFIRMED.

In Re: Liliana Friesen (March 18, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080243_03182009.pdf
-  In two cases, consolidated for purposes of argument and disposition, plaintiff-appellant/cross-appellee Connie C. Glenn and defendant-appellee/cross-appellant Jeffery Hall argue that the trial court made various errors involving the custody of their minor child, Liliana Friesen. For the reasons set forth below, we reject Glenn’s arguments, but conclude that the argument in Hall’s cross-appeal warrants a REMAND to the trial court.

State of Ohio vs. Jarred Cotton (March 18, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070864_03182009.pdf
-  Cotton appeals his conviction for the aggravated robbery of Aaron Carmichael. Cotton was also found guilty of an accompanying firearm specification and a separate count of robbery. After merging the robbery count with the aggravated-robbery count, the trial court imposed an aggregate sentence of ten years' imprisonment. Cotton now contends that the trial court erred in overruling his motion to suppress Carmichael's identification testimony and motion for a mistrial. He also argues that the trial court abused its discretion, the weight and the sufficiency of the evidence, his trial counsel was ineffective, and he was deprived a fair trial. Judgment AFFIRMED.
 

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

 

No Opinions.
       

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

 

USA v. Keith (March 18, 2009) (Appeal from E.D. KY)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0103p-06.pdf
-  Jonathan Keith pleaded guilty to several counts, including possession of crearm in furtherance of drug-trafficking. He reserved the right to appeal the district court’s denial of his motion to suppress evidence obtained as a result of an investigatory Terry stop. He claims that the officer who stopped him lacked the requisite reasonable suspicion of criminal conduct. He also asserts that the district court committed errors at sentencing. For the following reasons, we REVERSE the district court’s denial of Keith’s motion to suppress evidence. This renders the sentencing issues moot.

Nickels v. Grand Trunk Western  AND
Donald Cooper v. CSX Transportation, Inc. (March 18, 2009) (Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0104p-06.pdf
-  In this consolidated action, Stanley Nickels and Donald Cooper appeal entries of summary judgment on their Federal Employers’ Liability Act (“FELA”) claims. These former railway employees allege injuries caused by years of walking on oversized track ballast. The district courts below held that a Federal Railway Safety Act (“FRSA”) regulation covers the issue of ballast size, precluding plaintiffs’ negligence actions. We affirm.

Jennifer Durand v. The Hanover Insurance Group, I (March 18, 2009) (Appeal from W.D. KY)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0105p-06.pdf
-  Plaintiff Jennifer A. Durand appeals the district court’s dismissal of her complaint filed under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. (ERISA). The district court held that Durand had failed to exhaust her administrative remedies. We conclude that exhaustion of those remedies would have been futile, and reverse.

USA v. Jeffrey Ford (March 18, 2009) (Appeal from E.D. KY)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0106p-06.pdf
-  Jeffrey Ford challenges his sentence for bank robbery, arguing that the district court improperly sentenced him as a career offender under § 4B1.1(a) of the sentencing guidelines. Because his previous conviction for a “walkaway” escape is not a “crime of violence” under this provision of the guidelines, we reverse and remand for resentencing.

American Council of Life Insurers v. Ken Ross (March 18, 2009) (Appeal from W.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0107p-06.pdf
-  Defendant-Appellee Ken Ross is the Commissioner (“Commissioner”) of the Michigan Office of Financial and Insurance Services (“OFIS”). Under OFIS’s authority to regulate insurance, it promulgated rules, Mich. Admin. Code Rules 500.2201-500.2202 and 550.111-550.112, prohibiting insurers from issuing, delivering, or advertising insurance contracts or policies that contain “discretionary clauses” (the “rules”). Such clauses provide that courts will give deference to a plan administrator’s decision to award or deny benefits or interpretation of plan terms in any court proceeding challenging such decisions or interpretations. Plaintiffs-Appellants American Council ofLife Insurers, America’s Health Insurance Plans, and Life Insurance Association of Michigan (collectively, “Insurance Industry”) filed suit, seeking declaratory and injunctive relief to prevent OFIS from enforcing the rules. Both parties moved for summary judgment, with the Insurance Industry arguing that the rules are preempted by the Employee Retirement Income Security Act of 1974 (“ERISA”), as amended, 29 U.S.C. § 1001 et seq. The district court concluded that because the rules constitute laws regulating insurance under ERISA’s savings clause, ERISA § 514(b)(2)(A), 29 U.S.C. § 1144(b)(2)(A), they are not preempted by ERISA, and granted summary judgment in favor of the Commissioner. The Insurance Industry appealed. For the following reasons, we conclude that Michigan’s rules fall within the ambit of ERISA’s savings clause insofar as they are state laws regulating insurance, and thus are not preempted by ERISA.
 

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