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 , 2006 , 2007 , 2008 , 2009 , 2010.

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April 9th & 10th, 2009

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

TOPICS:
- Criminal Law / Evidence / Hearsay
- criminal procedure / Withdrawal of guilty plea
- R.C. 2941.25 / Indictment / Complaint / Speedy Trial / Search & Seizure
- Subject-matter jurisdiction / Telephone Consumer Protection Act
- Sentencing / Upward variance
- Securities Exchange Act / Investment Advisers Act
- Bankruptcy / Preferential transfers
 

Ohio Supreme Court

 

State v. Silverman (Slip Opinion)(April 9, 2009)(2009-Ohio-1576)
-  http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-ohio-1576.pdf
-  Criminal law — Hearsay — Evid.R. 807 — Child declarant — A hearsay statement of a child declarant can be admitted under Evid.R. 807 without a determination of the child’s competence to testify.

State v. Boswell (Slip Opinion)(April 9, 2009)(2009-Ohio-1577)
-  http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-ohio-1577.pdf
-  Criminal procedure — Withdrawal of guilty plea — Motion after void sentence to be treated as presentence motion — Crim.R. 32.1.
 

First District Court of Appeals

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State of Ohio vs. Stanley Foster (April 10, 2009)(2009-Ohio-1698)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2009/2009-ohio-1698.pdf
-  The trial court erred by imposing separate sentences for aggravated robbery under R.C. 2911.01(A)(1) and robbery under R.C. 2911.02(A)(2): the offenses were allied and of similar import, and they were committed with a single animus. 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 had not been instructed that aggravated robbery was a strict-liability offense. Tolling of speedy-trial time occurs by operation of R.C. 2945.72, regardless of whether the defendant has executed a waiver of his right to a speedy trial; any delay triggered by the defendant’s request for a continuance extends the time within which the defendant must be brought to trial under R.C. 2945.71. The trial court properly denied a defendant’s motion to suppress evidence resulting from an investigatory stop of a car, where a police officer had a reasonable, articulable suspicion that an occupant of the car had been involved in an aggravated robbery: moments after a convenience store had been robbed and a description of the black male robber and his getaway car had been broadcast, an officer saw a car, occupied by three black males, that matched the description as it drove away from the area of the crime. The trial court properly denied a defendant’s motion to suppress evidence resulting from a pat-down search of his person, where the officer had a reasonable suspicion that the defendant was armed and dangerous, and where the search was limited to what was necessary for the discovery of weapons. Judgment AFFIRMED and Sentence VACATED.
 

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

 

Philip Charvat v. GVN Michigan, Inc. (April 9, 2009)(Appeal from S.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0142p-06.pdf
-  Plaintiff-Appellant Philip Charvat appeals the district court’s grant of partial summary judgment to Defendant-Appellee GVN Michigan, Inc. (“GVN”) and subsequent dismissal for lack of subject-matter jurisdiction. After GVN and its agents placed ten telemarketing calls to Charvat’s residence, Charvat filed a complaint in the district court asserting 186 claims against GVN based on alleged violations of the federal Telephone Consumer Protection Act of 1991 (“TCPA”), 47 U.S.C. § 227, the Ohio Consumer Sales Practices Act (“CSPA”), Ohio Rev. Code §§ 1345.01–1345.13, and various other Ohio statutes and regulations.trict court found that Charvat could not recover statutory damages under the TCPA or the CSPA based on alleged violations occurring in the first phone call made by GVN and that Charvat was limited under both the TCPA and the CSPA to recovery of statutory damages on a per-call basis rather than per violation. Noting that the TCPA does not provide for federal-question jurisdiction, the district court found that these limitations on damages reduced the amount in controversy below $75,000 and dismissed Charvat’s case for lack of subject-matter jurisdiction. On appeal, Charvat argues that the district court erred by (1) dismissing all of Charvat’s claims for violations of the TCPA and the CSPA committed during the first call, (2) holding that damages for violations of the TCPA must be calculated on a per-call, rather than a per-violation, basis, (3) holding that damages for violations of the CSPA must be calculated on a per-call, rather than a per-violation, basis, and (4) dismissing Charvat’s action for lack of subject-matter jurisdiction. Although we believe that the district court erred in finding that Charvat could not collect under the TCPA for violations occurring in the first telephone call, we conclude that the district court correctly found that the TCPA damages are available on only a per-call basis. Because Charvat did not meet the amount-incontroversy requirement for diversity jurisdiction,  we AFFIRM the district court’s judgment dismissing the case for lack of subject-matter jurisdiction.
 

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

 

USA v. Julio Garcia-Robles (April 9, 2009) (Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0143p-06.pdf
-  In June 2007, Julio Cesar Garcia-Robles (“Garcia-Robles”) pleaded guilty to unlawful re-entry of an alien deported after an aggravated felony conviction. The district court and the parties agreed that Garcia-Robles’s sentencing guidelines range was 30 to 37 months of incarceration. At sentencing, Garcia-Robles asked for a downward variance to a sentence of 24 months of incarceration. The government asked that the court impose a sentence within the guidelines range. The district court determined that, because of the severity of the offense and the fact that Garcia-Robles had previously returned to the United States after deportation, an upward variance was necessary. The district court sentenced Garcia-Robles to 96 months of incarceration. Garcia-Robles appeals this sentence and argues that the district court failed to give proper notice of this upward variance and that the sentence imposed was procedurally and substantively unreasonable. We VACATE Garcia-Robles’s sentence as procedurally unreasonable and REMAND for resentencing.

Jeffrey Gibson v. SEC (April 9, 2009) (Appeal from Securities & Exchange Commission )
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0144p-06.pdf
-  Jeffrey L. Gibson seeks review of the February 4, 2008 order of the Securities and Exchange Commission, which affirmed the administrative law judge’s issuance of a lifetime bar precluding Gibson from associating with any broker or dealer pursuant to § 15(b) of the Securities Exchange Act of 1934 and from associating with any investment adviser pursuant to § 203(f) of the Investment Advisers Act of 1940. For the reasons that follow, we DENY Gibson’s petition for review.

In re Sharrene Wells v. Marcia Meoli (April 10, 2009) (Appeal from W.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0145p-06.pdf
-  This appeal comes to this court from the Bankruptcy Appellate Panel’s affirmance of the bankruptcy court’s decision to grant summary judgment in favor of the bankruptcy trustee Meoli. The issue this case presents is whether two $5,000 “convenience checks” paid from the debtor’s Chase Bank account to offset the balance on her MBNA credit card account shortly before filing for bankruptcy are preferential transfers within the meaning 11 U.S.C. § 547(b). We conclude that ts and we affirm the bankruptcy court’s decision.
 

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