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 20th - 24th, 2009

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

TOPICS:
- Attorney Misconduct
- Abandonment of state highway
- Public records
- Senate Bill 10 / Reclassified / Double Jeopardy / Ten year / Life
- Insufficient Evidence
- Motion to withdraw a guilty plea / Ineffective assistance of counsel
- Personal injury / Recreational user statute / Immunity
- Sex offenses / Evidence / Instructions / Counsel / Sentencing
- Robbery / Indictment / Complaint / ORC 2941.25
- Comprehensive Environmental Response, Compensation and Liability Act
- Statute of limitations / Civil Rights Action
- Jurisdiction / Diversity action / Injunctive relief
- Writ of habeas corpus / Testimony / Self-incrimination / Ineffective
assistance
- Sentencing enhancement
- Religious Land Use and Institutionalized Persons Act
 

Ohio Supreme Court

 

Medina Cty. Bar Assn. v. Lewis (Slip Opinion)(April 21, 2009)(2009-Ohio-1765)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1765.pdf
-  Attorneys at law - Misconduct - Multiple violations of the Rules of
Professional Conduct - Forging a judge’s signature - One-year
suspension from the practice of law.

New 52 Project, Inc. v. Proctor (Slip Opinion)(April 21, 2009)(2009-Ohio-1765)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1766.pdf
-  Abandonment of state highway - R.C. Chapter 5511 gives the director
of transportation the exclusive authority to abandon or vacate portions
of the state highway system. A court of common pleas has no jurisdiction
to decide whether an easement for a state highway has been abandoned.

State ex rel. Toledo Blade Co. v. Toledo-Lucas Cty. Port Auth. (Slip Opinion)(April 21, 2009)(2009-Ohio-1767)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1767.pdf
-  Public records - Proof that records have already been provided -
Application of attorney-client privilege to investigative report
prepared by attorney.
 

First District Court of Appeals

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*** Judgment Entries ***

State of Ohio vs. David West (April 22, 2009)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-080612_04222009.pdf
-  West pleaded guilty to sexual battery. Prior to his release from
prison in 1998, West was designated a sexually oriented offender. Under
former R.C. Chapter 2950, after his release West was required to
annually register as a sexual offender for ten years. In late 2007 or
early 2008, West 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. West
filed an R.C. 2950.031(E) petition to contest his reclassification,
challenging the constitutionality of Senate Bill 10. Judgment AFFIRMED.

State of Ohio vs. Steven Studley (April 22, 2009)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-080604_04222009.pdf
-  Studley was convicted following a bench trial of domestic violence,
a first-degree misdemeanor in violation of R.C. 2919.25(B), and assault,
a first-degree misdemeanor in violation of R.C. 2903.13(B). Studley
argues that his convictions for domestic violence and assault were based
on insufficient evidence. Judgment AFFIRMED.

State of Ohio vs. James P. Miller (April 22, 2009)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-080342_04222009.pdf
-  Following a plea agreement, defendant-appellant James Miller was
convicted of arson and felonious assault. In this appeal, Miller argues
that the trial court improperly overruled his motion to withdraw his
guilty plea, and that his counsel was ineffective. Judgment AFFIRMED.

*** Opinions ***

Mitchell v. Blue Ash (April 24, 2009)(2009-Ohio-1887)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2009/2009-ohio-1887.pdf
-  The trial court did not err in granting summary judgment for a city
on a negligence claim alleging that a city employee had closed a gate on
the plaintiff’s finger during a free fireworks show at a public park:
although there was evidence that the employee’s negligence had
contributed to the plaintiff’s injury, the injury nonetheless arose
from the park’s “premises” under the recreational-user statute,
R.C. 1533.181, thus entitling the city to immunity. [But, see, DISSENT:
R.C. 1533.181 by its clear words does not apply: the cause of the
plaintiff’s injury was the city employee’s negligence-not any
condition of the premises-and the city was therefore not immune from
liability.] Judgment AFFIRMED.

State v. Dieterle (April 24, 2009)(2009-Ohio-1888)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2009/2009-ohio-1888.pdf
-  Even if the coroner’s testimony about a vaginal contusion was
improper, any error was harmless because the state had always contended
that the defendant had raped the victim with a knife, and because the
coroner’s testimony about a vaginal laceration was sufficient to prove
the rape. Because the state did not have to prove a rape charge by
showing that the victim was alive when the sexual conduct had occurred,
the trial court did not err in failing to instruct the jury to that
effect. Abuse of a corpse under either R.C. 2927.01(A) or R.C.
2927.01(B) is not a lesser-included offense of rape. The defendant did
not demonstrate that, but for any errors by the trial court, the outcome
of the trial would have been different; therefore, he failed to show
that the cumulative effect of errors denied him a fair trial. The trial
court did not abuse its discretion in imposing sentences within the
statutory ranges and the sentences were not so disproportionate to the
offenses as to shock the community’s sense of justice. The defendant
cannot raise a claim of ineffective assistance of appellate counsel in a
pending direct appeal; instead the issue must be raised in an App.R.
26(B) motion for reopening the appeal after the court has journalized
its judgment. Judgment AFFIRMED.

State v. Brown (April 24, 2009)(2009-Ohio-1889)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2009/2009-ohio-1889.pdf
-  http://www.hamilton-co.org/cinlawlib/resources/cases/firstdistrict/2009/04/Errata04242009.pdf
-  The absence of mens rea allegations in an indictment for robbery was
not plain error under State v. Colon, 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 robbery was a strict-liability
offense. The trial court erred by convicting the defendant of separate
counts of robbery under R.C. 2911.02(A)(2), where the defendant’s
threats of harm to two employees during the theft of money from a bank
arose from a single animus to rob the bank. The trial court did not err
by entering separate convictions for robbery and kidnapping, which are
ordinarily allied offenses of similar import, when the state
demonstrated that, after the robbery had ended, the perpetrators had
continued to restrain the bank employees’ liberty by threatening them
just before leaving the bank. [But, see, DISSENT: There was no separate
animus to support separate convictions for allied offenses of similar
import, when the threats occurred only seconds after the perpetrators
had taken the money from the bank tellers.]  Judgment AFFIRMED in Part,
REVERSED in Part, and Cause REMANDED.
 

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

 

U.S. Bank National Association v. U.S. Environmental Protection (April 20, 2009) (Appeal from S.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0152p-06.pdf
-  Eagle-Picher Technologies, LLC (“EP Tech”), an electronics
manufacturer, filed for Chapter 11 bankruptcy in 2005. The United
States, on behalf of the Environmental Protection Agency and the
Department of Interior, filed a claim in the bankruptcy proceeding
against EP Tech under “CERCLA”-the Comprehensive Environmental
Response, Compensation and Liability Act of 1980. Under CERCLA, the
federal government may recover the cost of cleaning up hazardous waste
from the parties responsible for its release. Over the objections of
U.S. Bank, the bankruptcy trustee, the bankruptcy court found EP Tech
liable for $357,246 of already-incurred costs and $8,735,434 in
estimated future costs for the clean-up of groundwater and soil
contamination near a now-vacant manufacturing plant in Socorro, New
Mexico. U.S. Bank appealed to the district court, which affirmed. U.S.
Bank appeals to this Court, arguing: (i) EP Tech is not liable under
CERCLA for hazardous waste releases that occurred before EP Tech
acquired an interest in the Socorro plant in 1998; (ii) even if EP Tech
is liable for the clean-up costs at the plant, genuine issues of
material fact precluded the bankruptcy court from concluding that EP
Tech was responsible for contamination detected at a well located a mile
and a half south of the plant; and (iii) the bankruptcy court improperly
excluded evidence at the hearing on estimating the future cost of
cleaning up the hazardous substances. The bankruptcy court’s decision
was legally correct, and it did not abuse its discretion by excluding
evidence of future costs. We AFFIRM.
       

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

 

Sha'rewa Bonner v. David Perry (April 20, 2009) (Appeal from W.D. KY)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0153p-06.pdf
-  Plaintiff-Appellant Sha’rewa Bonner (“Bonner”) appeals the
district court’s dismissal of her claim, brought under 42 U.S.C. §
1983, against the Commonwealth of Kentucky Department of Corrections
(“DOC”).1 Citing our decision in Collard v. Kentucky Board of
Nursing, 896 F.2d 179 (6th Cir. 1990), the district court applied a
one-year statute of limitations to Bonner’s claim and concluded that
the claim was filed outside the limitations period. Bonner’s sole
contention on appeal is that Collard was wrongly decided, and thus that
we should overrule the decision. Because we do not have the power to
overrule an earlier published Sixth Circuit decision under the instant
circumstances, we AFFIRM the district court’s dismissal.

SunCoke Energy Inc. v. Man Ferrostaal Aktiengesellsc (April 20, 2009) (Appeal from E.D. TN)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0154p-06.pdf
-  This is a diversity action for injunctive relief seeking the return
of confidential trade information generated and provided by SunCoke Co.
of Knoxville,Tennessee to the defendant, MAN Ferrostaal, a German
engineering and construction company. Relying on the Tennessee long-arm
statute, SunCoke brought suit in federal court in Knoxville, where its
principal place of business is located. The District Court dismissed for
lack of personal jurisdiction. It held that the activities of the German
corporation did not create a sufficiently “substantial connection with
the forum state,” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475
(1985), to meet the due process standard of “fair play and substantial
justice,” Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U.S.
102, 116 (1982). This broad constitutional standard requires us to
consider all of the facts concerning the business relationship at issue
to determine whether the exercise of federal jurisdiction is reasonable
under the circumstances.1 We believe that the defendant’s dealings
with SunCoke in Tennessee were substantial enough to meet the due
process standard, and hence we reverse and remand the case for further
proceedings.

Christopher Hall v. Doug Vasbinder (April 22, 2009) (Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0155p-06.pdf
-  Christopher Hall filed a petition for a writ of habeas corpus in
connection with his state convictions. A Michigan jury convicted Hall of
criminal sexual conduct against his daughter as well as obstruction of
justice and conspiracy to obstruct justice. During the trial, both the
prosecutor and defense counsel elicited testimony about Hall’s silence
during an earlier probate court proceeding and commented on Hall’s
silence during their respective closings. On habeas review, the district
court concluded that the testimony and remarks of the prosecutor
violated Hall’s federal constitutional rights to due process and
against self-incrimination. Moreover, defense counsel’s failure to
object to the testimony and remarks constituted ineffective assistance
of trial counsel. The district court conditionally granted habeas relief
to Hall. The Warden, Doug Vasbinder, now appeals. For the reasons set
forth below, we reverse.

USA v. Alvin Boudreau (April 23, 2009) (Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0156p-06.pdf
-  Defendant Alvin Boudreau appeals from the 240-month mandatory
minimum sentence the district court imposed upon remand from this court
for resentencing in light of the Supreme Court’s decision in United
States v. Booker, 543 U.S. 220 (2005). Boudreau asserts that the
government improperly filed its information to enhance Boudreau’s
sentence under 21 U.S.C. § 851(a) because of his two prior drug-offense
convictions, rendering the enhancement inapplicable. We disagree and
hold that under our well-established case law, the government’s filing
of the information in open court coupled with personal service upon the
defendant prior to trial satisfied the statutory requirements.
Consequently, we affirm the judgment of the district court.

Gerald Cardinal v. Linda Metrish (April 24, 2009) (Appeal from W.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0157p-06.pdf
-  Plaintiff Gerald William Cardinal appeals the district court’s
grant of summary judgment in favor of the defendant Linda Metrish, the
warden where he was incarcerated. The district court dismissed
plaintiff’s claims alleging an Eighth Amendment violation under 42
U.S.C. § 1983, as well as violations of the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1 et
seq. We AFFIRM.

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